Brand v. New Jersey Steamboat Co. — 62 N.Y. St. Rep. 470

Majority

p. 470

George W. Brand, App’lt, v. The New Jersey Steamboat Company, Resp’t.

(New York Common Pleas, General Term,

Filed November 5, 1894.)

Headnote

1. Carrier—Goons—Liability.

Carrier of goods retains its character as such, with the attendant liability as insurer, until the goods have been delivered to the consignee, either actually or constructively

2. Same—Constructive delivery. .

To constitute constructive delivery, there must be notice of arrival and the affording of a reasonable time for the removal of the goods by the consignee.

3. Same—Reasonable time.

The circumstances of the particular case must control in determining the extent of this reasonable time.

4. Same.

In such case, the consignee’s obligation to exercise due diligence in removing the goods is a material element of consideration. ,

5. Warehouseman—Liability.

' If the carrier fails, after such reasonable time, to divest itself of all liability by storing-the goods for the consignor, a liability as warehouseman attaches.

6. Same.

In such case, an absence of ordinary and reasonable care of the goods must be shown, in order that a liability for their injury may be imposed.

Appeal from a judgment entered upon the report of a referee. Action for injuries to goods when in the defendant’s custody under contract for carriage. The plaintiff shipped 63 bales of hops, by the defendant’s steamboat from Albany, consigned to the Claus Lipsius Brewing Co., in Williamsburg, under a verbal contract of affreightment. The goods were lightered by the defendant upon their arrival in New York and were transported to a dock within one mile of the consignee’s place of residence, the lighter reaching

p. 471

the dock'at 8.30 in the morning of July 19th 1889. The consignee was notified of the arrival of the goods and a reply was received that removal of the hops would be made early in the morning of the above date. By nine o’clock that morning a dray arrived from the consignee’s brewery, and took on a load of seventeen bales, delivering the same at the brewery by ten o’clock, but no other wagons from the consignee arrived at the dock that day. At one o’clock the captain of the lighter telephoned to the brewery with regard to the delivery of the remaining bales, and was told that they would be sent for during the day; at five he telephoned again, and received word 'that no more hops would be taken that day. Thereupon the bales were covered with tarpaulins, in the manner followed by lightermen, and remained on board during the night. Before morning a particularly heavy rain storm took place and damage to the goods occurred, resulting in their refusal by the consignee and a consequent loss to the plaintiff. It appeared that an order had been given by the consignee to its servants to send three drays for the purpose of unloading these goods, and that a number'of drays sufficient for the carrying out of the order could have been made available; also that three loads would have sufficed for the transportation of the entire consignment. The evidence tended to show that this transportation was not made owing to the opinion of the consignee’s servants that the weather was threatening, and the testimony as to the state of the weather during the day presented a conflict.

The referee rendered judgment in favor of the defendant for dismissal of the complaint upon the merits.

Adam F. Schaiz {Wm. 0. Campbell, of counsel), for app’lt; W. P. Prentice, for resp’t.

No claim is made that the goods in suit were injured while in the course of actual transportation by the defendant carrier, and the only question raised by the appellant relates to the defendant’s liability for the damage occurring, under the state of facts above recited, either in the capacity of 'carrier or of warehouseman.

It is well settled that a carrier of goods retains its character as such, with the attendant liability as insurer, until the goods have been delivered to the consignee either actually or constructively, and that to constitute a constructive delivery there must be notice of arrival and the affording of a reasonable time for the removal of the goods by the consignee. After this reasonable time has elapsed, and the carrier should fail to divest itself of 'all liability by storing the goods for the consignor, as it may, a liability as warehouseman attaches and an absence of ordinary and reasonable care of the goods must be shown in order that a liability for their injury may be imposed. Tarbell v. Royal Exchange Shipping Co., 110 N. Y. 180 ; 17 St. Rep. 153 ; McKinney v. Jewett, 90 N. Y. 271 ; Redmonds v. Liverpool, etc., S. S. Co., 46 Id. 578; McAndrew v. Whitlock, 52 Id. 40; Fenner v. Buff. & S. L. R. R. Co., 44 Id. 505; Draper v. Pres't, etc., D. & H.

p. 472

in determining the extent of this reasonable time, McAndrew v. Whitlock, supra, and, in this connection, the consignee’s obligation to exercise due diligence in removing the goods is a material element of consideration, Tarbell v. R. E. S. Co., supra.

As to the defendant’s liability as carrier, then, the case turns upon the question whether or not the space of one day afforded a reasonable time for the unloading of the hops in suit, and, in view of the circumstances of the case, we agree with the learned referee that this was such a reasonable time.

There was no provision for “ lay days ” in the contract of carriage and the consignee, at intervals during the day of the lighter’s arrival, expressed his intention of removing the goods before night, which removal, by the means contemplated, could readily have been accomplished in a short space of time, and it appears from the evidence, considering the perishable nature of the goods, that the carrying out of its expressed intention by the consignee would have been but the performance of its duty to the carrier as imposed by law. There is ample evidence to support the referee’s finding that upon this particular day the state of the weather reasonably admitted of the safe transportation by the consignee of the goods, notwithstanding the conflict ppon this point, and the defendant is in no way accountable for errors of judgment on the part of the consignee’s servants with regard to the expediency of carting the hops during the period in question.

Not being liable as carrier for the injury which occurred to the-goods, is the defendant chargeable with negligence in caring for them as warehouseman?

That the defendant’s agent, the captain of the lighter, exercised reasonable care in covering the hops for the night cannot, we think, be seriously disputed, and, indeed, the appellant’s argument upon this point is confined to the proposition that it was the defendant’s duty to place the goods in storage for their proper protection.

It is not contradicted that the captain carefully employed the usual means provided for protecting goods. upon a lighter, nor that these means, under ordinary circumstances, would suffice for their purposes, and, in view of the repeated expressions by the consignee of its intention to remove the goods that day, together with its failure to give notice of its change of intention until the end of the day, it cannot be questioned that the placing of the goods in storage over night would have been an act of extraordinary diligence not required of the defendant. The duties of the parties were correlative, Tarbell v. R. E. S. Co., supra, and those of the defendant were not to be increased by the consignee’s failure to observe those on its part to be performed. Button v. Hudson River R. R. Co., 18 N. Y. 256 .

'The appellant raises no points which require a further discussion and we ar,e well content to affirm the judgment, whereby the respondent appears to have obtained but justice.

Judgment affirmed with costs.

Bookstaver, P. J., and Pryor, J., concur.