Ely v. New Haven Steamboat Co. — 6 Abb. Pr. 72

Majority

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ELY against THE NEW HAVEN STEAMBOAT COMPANY.

Supreme Court, Second District; General Term,

Dec., 1868.

Headnote

Cause oe Action.—Delivery by Carriers.

An action does not lie against carriers by steamboat, for loss of goods occurring after landing them upon the wharf and the lapse of a reasonable time for the consignee to send for and remove them, where, by the settled usage of business between the parties, the consignees were accustomed to send for their goods at the wharf, and no negligence on defendants’ part is shown.^[1]

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If the consignee’s place, of business was closed on the day of arrival, the carriers are excused from giving him notice of the arrival.

It makes no difference that such day was the fourth of July.

Appeal from a judgment.

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This action was Brought "by Messrs. Ely and Sanger, leather dealers in the city of New York, against the defendants as common carriers, to recover for the loss of certain leather received by them for transportation from New Haven to New York.

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The plaintiffs were the agents of the tanneries of Homer Ely and Colton Ely, of Ashleyville, in Massachusetts, the consignors of the property, and sued as their assignees. The leather was delivered at Springfield, Mass., to the Hartford & New Haven Railroad Company, and "by that company delivered at New Haven, on July 3, 1866, to defendants’ steamer Continental, which arrived at her pier in New York at her usual hour early in the morning of July 4. The cargo of the vessel, including this leather, was all put on the wharf "by 8 o’clock, A. m., ready to be taken away by the various consignees, and persons were in attendance during the day to make deliveries of goods. No one called for the leather, and about 2 a. m. of July 5, an accidental fire destroyed the cargo left upon the pier. The leather was marked and addressed, “H. Gr. Ely & Sanger, No. 2 Jacob-Streét, New York.” There was no bill of lading or shipping receipt given.

The plaintiffs had been in the habit of receiving leather from these tanneries by defendants’ line, for some years, as often as once a week, and generally received from the consignees advices by mail of the shipments. The letters

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advising, of the shipments in question were mailed at Ashley ville, where' the consignors resided, instead of Springfield, where the goods were put on the cars,' and did not reach plaintiffs till after the fire.

The plaintiffs kept a cartman, who was in the hahit of calling at the pier of defendants, and taking away the leather when it arrived, but he was not on duty at all on the 4th of July.

There was some discrepancy in the evidence as to the practice of notifying the consignees, the plaintiffs claiming that the defendants had always sent notice of the arrival of goods, and that they then sent their cartman for them ; while the defendants claimed that notices were not sent to parties in New-York who were in the habit of sending for their goods, except sometimes at the request of the cartmeii and for them convenience, and these notices, when given, were given by Low & Roberts, licensed cartmen in New-York, who had an office on defendants’ pier, and who, on the arrival of the boats, received the whole freight list, assorted the cargo, and carted such of it as was addressed to parties in the city not in the habit of sending for their goods. Such as was to go to some connecting line they carted, unless it was addressed to the care of other cartmen.

"Upon these facts the defendants moved to dismiss the complaint, on the ground that their extraordinary liability as carriers had ceased at the time of the fire, and that no negligence had been shown.

The court so held, and the complaint was dismissed, and judgment entered for the defendants ; from which the plaintiffs appealed to the court at general term.

Jesse C. Smith, for the plaintiffs.

S. T. Wash, for the defendants.

It is apparent that the circumstances in which the harsh and rigid rules of

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the common law governing the liability of common carriers had their origin have greatly changed, and that some amelioration of these rules has become necessary since the introduction of steamboats, railroads and the electric telegraph. Courts have not been unmindful of this necessity, and have gradually modified these rules in accordance with the views of public policy and individual right. The precise nature and extent of this modification, however, is still very uncertain, and it would be a fruitless task to attempt to reconcile the conflicting decisions on this subject. If it were necessary, we should be inclined to hold that, independently of the usage proved in this case, the extraordinary liability of the defendants, as common carriers, ceased when the goods were landed on the wharf and were ready for delivery ; that thenceforth they were liable only for ordinary care, and that the law does not require, from the class of carriers to which the defendants belong, a notice to consignees of the arrival of the goods carried. Such rule we think best accords with sound public policy, and with the intention of the parties in making the contract, and it is sustained by the more judicious of the recent decisions of the courts on this subject (Norway Plains Co. v. Boston, &c. R. R. Co., 1 Gray, 263 ; Thomas v. The same, 10 Met., 472 ; Lamb v. Western R. R. Co., 7 Allen, 98 ; Northrop v. Syracuse, &c. R. R. Co., 5 Abb. Pr. N. S., 425.

But we are of opinion that the evidence clearly establishes a course of business between the parties, in relation to the mode of delivering goods, which must govern the liability of defendants in this case. The plaintiffs had been accustomed for many years to receive goods by the defendants’ boats, as often as once a week. These boats arrived in New York each day at stated hours, morning and evening. Upon the arrival of the boat each trip, the goods were landed on the defendants’ wharf, and placed in charge of trustworthy persons employed by them to take care of and deliver the goods to the consignees and collect the freight. The plaintiffs always sent their own cartman to the wharf for their own goods soon after

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the arrival of the boat, and there received them from the persons so employed by the defendants. A delivery upon the wharf, therefore, in the usual way, and the lapse of a reasonable time for the plaintiffs to take away or reject the goods, terminated the extraordinary liability of the defendants as common carriers, for the reason that their contract had been performed by a carriage of the goods safely to the point of ultimate destination, and a delivery thereof at the appointed place of delivery. After these acts the defendants must be deemed to have renounced their liability as carriers, and assumed that of wharfingers, and they could be held liable only for actual negligence (Hyde v. Trent. Nav. Co., 5 T. R., 397, per Buller, J.; Gatliffe v. Bourne, 4 Bing. N. C., 314 ; S. C., 1 Scott N., 1; and 8 Id., 604; Abb. on Ship., 5 Am. ed., 463; Gibson v. Culver, 17 Wend., 305 ; Goold v . Chapin, 20 N. Y., 259 , per Strong, J. ; Hathorn v. Ely, 28 Id., 78).

It is not contended by the plaintiffs that there was any negligence' on the part of the defendants. It is, however, urged by the learned counsel for the plaintiffs, that the defendants’ liability as common carriers continued until after the loss of the goods, because, according to the course of business referred to, a notice should have been given to the plaintiffs of the arrival of the goods.

As before intimated, where the contract in terms, or as affected by the usage of trade, is to deliver the goods at the wharf, notice is not necessary. It is not itself an act of delivery, or equivalent, or even akin to it. It is a substitute for it, arbitrarily created.

There was, perhaps, enough evidence that the duty of sending a notice to the plaintiffs’ store of the arrival of their goods formed a part of the usage in this case, to require the submission of that question to the jury, if it had been material to the determination of the case. But we are of opinion that if the fact were so, the plaintiffs’ store having been closed the whole of the day on which the goods arrived, and until after the goods had been destroyed, the defendants were excused from giving the no

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tice. Absence of the consignee dispenses with notice (Fisk v. Newton, 1 Den., 45 ; Northrop v. Syracuse, &c. R. R. Co., supra). The defendants were under no obligation to go beyond the usage alleged, and seek the plaintiffs elsewhere than at their store.

The 4th of July was not a holiday in any sense which affects this case.

The judgment should be affirmed.

Footnotes

[1] Present, Gilbert, J. F. Barnard, and Tappen, JJ.