p. 492the boat, or, if going west of that place, to have it checked on the dock and placed in baggage cars. The baggage-room on board the boat was in charge of another person, whose duty it was on presentation of passenger tickets to check baggage for Albany and Saratoga. "When baggage was brought unaccompanied by a passenger ticket, he took charge of it, if his attention was called to it, but not otherwise, and he took measures to enable him to identify the person entitled to it. This trunk had no card or mark on it to identify it, so far as was shown by the evidence.
The referee found the above facts, and that this usage of the defendants had existed for thirteen years; that the defendants had large cards posted conspicuously with the words, “Albanybaggage checked on the boat. Baggage for the west checked on the dock,” and that the trunk had been demanded by the plaintiff, but never recovered. He also found - that the plaintiff "was negligent in delivering the trunk, and that the complaint should be dismissed.
On this report the defendants entered up judgment, from which the plaintiff appealed.
Henry Whinfield, for plaintiff appellant.
Charles Jones, for defendant respondent.
By the Court.
There was no contract, express or implied, to carry the trunk as baggage, for no person went with it as a passenger that night in the defendant’s steamboat ; nor was it delivered to be transported as freight, which, by the established course of the defendant’s business, is received by clerks as it comes upon the wharf, and taken to a different set of clerks, where it is weighed, or tallied, entered, receipted "ifor, and then stowed away; the rule being that the delivery of the goods, to charge the carrier, must be to the servant or agent appointed to receive them, and not to one engaged in other duties (Blanchard v. Isaacs, 3 Barb. R., 388 ; Leigh v. Smith,, 1 Car. & P., 638). The question in this case, therefore, is whether there was such a delivering and acceptance of the trunk as would make the defendants responsible for its -loss, and in my judgment there was not.
The only intimation which the cartman received from the plaintiff was to take the trunk to the steamboat New World
p. 493for Albany. As ilie cartman came upon the wharf a person having checks in his hand, and who was checking trunks, asked him -where he was going, and upon his answering that he wanted to put the trunk on board the boat for Albany, this person told him to drive to the, first gangway and put it on board. By the regulations which the defendants had established, all baggage going west óf Albany was checked upon the wharf, and baggage for Albany and Saratoga, upon the boat. ¡Notice of this regulation upon large cards, was posted at conspicuous places on the wharf, and there was a baggage-room on hoard of the boat (in charge of a baggage-man), who received and checked baggage for Albany and Saratoga upon the presentation of the passenger’s ticket. Baggage was not checked unless a passenger ticket was shown; hut if baggage was brought by a cartman or other person with the statement that it was going to Albany, the baggage man put it in the baggage room with the unchecked baggage, and did not deliver it without a description of the baggage or its contents, and upon doing so he took a receipt. When baggage came imaccompanied by a passenger, the baggage man took charge of it
if his attention was called to it, hit not otherwise, and took directions which would enable him to identify the person entitled to receive it. ¡Most of the baggage which came in that way, was brought by the City Express Companies, and was identified by the card and number they put upon it, a corresponding card and number being given by them to the passenger.
The cartman took the trunk upon the boat and deposited it with other trunks at the baggage-room door, and then left without saying anything or calling any one’s attention to it, and the referee has found that the trunk had on it no mark or direction indicating to whom it belonged or where it was" to go. The contents of the trunk consisted of the plaintiff’s wife’s clothing. On the following evening he bought a passenger ticket for her, and she went to Albany that night without a trunk.
If the plaintiff meant to send" the trunk to Albany by the steamboat a day in advance of the departure of his wife, he should either have sent it as freight, or instructed the cartman to put it into the custody of some person upon the boat author
p. 494ized to take charge of it. The cartman, receiving no other in-sanction but to take it to the steamboat
New World, for Albany, may very rationally have supposed that the plaintiff or some other person was going with it as a passenger in the boat that night, who, upon coming on board would have it checked in the usual way. He was not directed to get a check for it, nor could he have obtained one without procuring, and paying for a passenger ticket, and having received no other instruction but what has been above stated, he no doubt considered his duty sufficiently discharged when he placed it -with the other trunks at the baggage-room door. That the trunk was not taken-charge of by the baggage-man was owing to the fact that his attention was not called to it, and this was attribntable to the plaintiff’s rather than to the cartman’s negligence.
To charge a carrier or carriers, there must be an acceptance of the goods either in a special manner, or according to the usage of their business (Story on Bailments, § 533 ; Angell on Carriers, § 140), and in this case there was not such a delivery into the custody of, and acceptance of the trunk for carriage by, the defendants as would make them liable for its loss, or which would create an ordinary bailment. The direction given by the defendant’s agent upon the wharf to the cartman to take the trunk on board was not an acceptance. Ilis duties were limited to checking the baggage of emigrants and to instructing persons having baggage going west of Albany to have it checked upon the wharf, and if it were for Albany, to put it on board of the boat. He gave the proper instructions to the cartman, and if the trunk was not checked on board the boat, as it should have been, if the intention was to send it to Albany as baggage, it was through the plaintiff’s negligence in not giving the cart-man instructions to that effect. Left upon the boat without anything to indicate to whom it belonged or where it was to go; and without being brought to the notice of any one in authority upon the boat, it was in the power of any dishonest person who went up in the boat that night to get a check for it as his own property. It was held in Leigh v. Smith, 1 Car. & P., 638, that the delivery, to bind the carrier, must be to some one in authority, and that a delivery to one of the crew of a vessel would not be sufficient. In Buckman v. Levy (3 Camp., 414), the goods were left upon the wharf piled
p. 495up among other goods, with the name upon them of the person to whom they belonged and the place to which they were to be sent, while a person supposed to be a servant of the wharfinger was upon the wharf) and it was held that there was not such a delivery to the wharfinger as would make him responsible for the loss of the goods, and in Packard v. Getman, 6 Cow. R., 757, it was held that even where it was the usage to leave the goods upon the wharf near the boat, it is not a good delivery unless accompanied by express notice to the carrier. The responsibility of the carrier does not commence until there has been a complete delivery to him (2 Kent’s Com. 604), and where, as in this case, by the established usage of the defendant’s business, there was an agent upon the boat to receive and take charge of baggage for Albany, who gave a voucher or check for it, it was not a good delivery to leave the trunk upon the boat without either getting a check for it, or calling tins agent’s attention to it (Selway v. Holloway, 1 Ld. Ray., 46; Cobban v. Downe, 5 Esp. R., 41; Tower v. Utica and Schenectady R. R. Co., 7 Hill, 47 ; Bochem, v. Combe, 2 Maul. & S., 172; Harris v. Packwood, 3 Taunt., 264; mLovett v. Hubbs, 2 Show, 128. The obligation to carry the trunk as baggage, as I have said, did not exist, as that is an obligation incident to and growing out of the contract for the carriage of the passenger, and no passenger went with it. If it had been called to the attention of the baggage-man, and he had taken it and placed it with the unchecked baggage, the defendants would have been entitled to a compensation for its carriage; hut upon the facts stated, no obligation on their part can be implied, either to carry it as baggage, or as freight. The report of the referee should be confirmed.