usually the wharf, but at a proper time. A carrier who would deposit goods on a wharf at night or on Sunday, and abandon them without a proper custodian before the consignee had proper time and opportunity to take them into his possession and care, would not fulfill the obligation of his contract. When the goods are not accepted by the consignee, the carrier should put them in a place of safety; and, when he has so done, he is no longer liable on his contract of affreightment."12 12. Richardson v. Goddard, 23 the propellor as a common carHow. 28; Price v. Powell, 3 Coms. rier to store the [goods] properly 322; Redmond v. Steamboat Co., on account of the consignor until 56 Barb. 320; s. c. 46 N. Y. 578; he could be found. This duty is Scheu v. Benedict, 116 N. Y. 510; a maritime one, and for any negRichmond v. Steamboat Co., 87 lect or imperfect performance of N. Y. 240; Hermann v. Goodrich, it the vessel is liable in rem for 21 Wis. 536; Ostrander v. Brown, damages." Richardson v. God15 Johns. 39; Gibson v. Culver, dard, 23 How. 39; The Surrey, 26 17 Wend. 305; Merwin v. Butler, Fed. Rep. 791, 794. 17 Conn. 138; Blossom v. Smith, 2 Blatch. 316; Ely v. S. B. Co., 53 Barb. 207; Mayell v. Potter, 2 Johns. Cas. 371; The Peytona, 1 Ware, 541; The Grafton, Olcott, 42; Chickering v. Fowler, 4 Pick. 371; The Peytona, 2 Curtis, 21; Gatliffe v. Bourne, 4 Bing. N. C. 314; s. c. 3 Man. & Gran. 643; Dean v. Vaccaro, 2 Head, 488; Northern v. Williams, 6 La. Ann. 578; Segura v. Reed, 3 id. 695; Shenk v. Steam Propeller Co., 60 Penn. St. 109; The Eddy, 5 Wall. 481; Vose v. Allen, 3 Blatch. 289; Withers v. N. J. etc. Co., 48 Barb. 455; Rowland v. Miln, 2 Hilton, 150; Wilson v. Shipping Co., 24 Fed. Rep. 815; Ex parte Easton, 5 Otto, 75; Western Transp. Co. v Hawley, 1 Daly, 327; The M. C. Currie, 132 Fed. 125; The Richard Winslow, 67 Fed. 259. "It is true that a carrier does not remain under the very strict liability of a carrier after a delivery on the wharf, notice to the consignees and a reasonable time for the consignees to take the goods away; but the carrier, after such time, is not justified in failing to exercise reasonable care for the preservation and protection of the goods. He is no longer charged with the strict liability of a carrier, but he is charged · with the liability of a warehouseman or bailee, having the duty of exercising reasonable care and attention to prevent loss or injury to the goods." The Titania, 124 Fed. 975, affirmed in 131 Fed. 229, 65 C. C. A. 215. When a consignee refuses to receive the goods, the master is authorized to land and store the In The Captain John, 33 Fed. cargo at the nearest proper and Rep. 927, it is said: "Upon the convenient port, having reference refusal of the consignee to re- to his own convenience and the ceive the goods, it was the duty of apparent best interests of the Sec. 689. (§ 359.) Must give notice of arrival and allow reasonable time for removal.-The carrier in such cases is considered as retaining the custody of the goods, and is responsible for their safety, at least until he has given notice of their arrival to the consignee; and it has been held that his liability as carrier continues even after that, until the consignee has had a reasonable time for their removal. "A discharge from a vessel," it was said by Allen, J., in Redmond v. The Steamboat Company,13 at a proper place, seasonable hour, and upon due notice to the consignee, does not discharge the carrier from all responsibility for the safety of the goods. It may, under some circumstances, be regarded as a delivery to the consignee, and a performance of the contract of affreightment, so as to discharge the ship-owner from the stringent liability of a carrier, but such cases are exceptional, and as a rule, if for any reason the consignee does not appear to claim the goods, or does not receive them, it is the duty of the carrier to provide a proper place of deposit, or in case of imported goods, subject to duty, to see that they are in proper custody. The general rule is, and to it there are no recognized exceptions, if the consignee owner; always, of course, acting prudently and in good faith. The Scandinavia, 49 Fed. 658. If, however, the consignee has due notice of discharge, and accepts the goods, the duty of protecting the property is cast upon him, and the ship is released if the property is thereafter injured while lying in an exposed position. The St. Georg, 104 Fed. 898, 44 C. C. A. 246, reversing 95 Fed. 172. A provision in a bill of lading that "the consignee of the said goods is hereby bound to be ready⚫ to receive the same from the ship's side, either on the wharf or quay, at which the ship may lie for discharge" does not protect the ship from liability for failure to exercise reasonable care in taking care of perishable goods, on the ground that there had been a delivery to the consignee, where the ship's officers refused to allow the consignee's servants to remove the goods, although having no claim thereon for freight. The Ainwick, 135 Fed. 884. Different cargoes, of course, require a different degree of care. If "stearine" is shipped as "tallow" the stevedore is entitled to rely on the description in the bill of lading, and the ship is not liable if the stearine is placed in a place suitable for tallow, but unsuitable for stearine, and the stearine is thereby injured. The Mississippi, 76 Fed. 375. 13. 46 N. Y. 583. is unable or refuses to receive the goods, the carrier is not at liberty to leave them on the wharf, but it is his duty to take care of them for the owner. It follows that until this is done, the liability of the carrier continues. If it be conceded that a carrier by water may discharge himself from liability by delivering merchandise upon a wharf, with notice to the consignee, the latter is entitled to a reasonable time to remove them, and they are at the risk of the carrier until a reasonable time for such removal has elapsed; and a right to put the goods in store for the consignee does not exist until the latter has had a reasonable time for their removal. ''14 Sec. 690. (§ 360.) Notice must be actual. The notice to the consignee of the arrival of the goods must be actual, and the mere publication of the fact in a newspaper, without proof that it was brought home to his knowledge, will be insufficient.15 And if it be intended that he shall call for and remove 14. Price v Powell, 3 Com. 322; her arrival. The consignee did Russell Manufg. Co. v. Steamboat Co., 50 N. Y. 121; McAndrew v. Whitlock, 52 id. 40; Gleadell v. Thompson, 56 id. 194; Salmon Falls Co. v. The Tangier, 1 Clifford, 396; Crawford v. Clark, 15 Ill. 561; The Titania, 131 Fed. 229, 65 C. C. A. 215, affirming 124 Fed. 975; Smith v. Steamship Co., 123 Fed. 176; The Ravendale, 75 Fed. 413; s. c. 75 Fed. 408, 410. In Rosenstein v. Vogemann, 92 N. Y. Supp. 86, 102 App. Div. 39, the bill of lading provided that the goods were to be taken from the ship by the consignees directly they came to hand in discharg ing the ship and that the carrier's responsibility was to cease pack age by package immediately. the goods left deck or tackle. the ship's not receive notice of the arrival of the vessel until 2 or 3 o'clock p. m. on the day of its arrival. The goods were unloaded the next day, and at about 5 p. m. the pier collapsed under their weight, and the goods were destroyed. The court held the carrier's liability had not ceased, as the consignee had not been given sufficient notice under the circumstances. 15. Kohn v. Packard, 3 La. 225; McKeon v. See, 4 Rob. (N. Y.) 449. A notice to a clerk or other person in charge of the consignee's place of business fulfills the carrier's duty. So a carrier has a right to rely upon the apparent authority of a consignee's wife to represent her husband in such a matter and is not bound to seek him out personally where she is in the consignee's place of busi did not have any usual wharf, or, if she had, such wharf was unavailable for use at the time of ness, apparently in charge during the goods on the same day upon which it is given, it must be given at such time of the day as will give the opportunity of removing them before the expiration of business hours; otherwise he will be entitled to a reasonable time on the next day to complete their removal, and the carrier will, in the meantime, remain responsible for the safe custody of so much of them as could not have been removed by the exercise of reasonable. diligence.16 And if the carrier takes the risk of sending notice. of the arrival of the goods by mail instead of by a messenger, he must bear the consequences of any delay in its receipt occasioned thereby.17 But a custom to notify by mail is reasonable and valid, if established.18 Sec. 691. (§ 361.) Goods must be put in situation for removal. And not only must actual notice be given, but the law requires of the carrier a due and proper separation and designation of the goods for the use of the consignee. They must be put in such a situation as to be open to his inspection, and so as to be conveniently accessible and a fair opportunity afforded for their removal. The notice will be of no avail if, when the consignee calls for his goods, they are so mingled with or covered by other goods that the consignee cannot inspect or remove them without himself undertaking their selection and separation from the heap.19 Until this is done by the carrier the goods are not ready for delivery.20 his absence. King v. Steamboat Co., 73 N. Y. Supp. 999, 36 Misc. 555. 16. Segura v. Reed, 3 La. Ann. 695; Price v. Powell, 3 Com. 322. 17. Solomon v. S. B. Co., 2 Daly, 104. 18. Roth Clothing Co. v. Steamship Co., 88 N. Y. Supp. 987, 44 Misc. 237; s. c. 86 N. Y. Supp. 25; Friedman v. Metropolitan S. S. Co., 90 N. Y. Supp. 401, 45 Misc. 383. 19. The Eddy, 5 Wall. 481; The Ben Adams, 2 Ben. 445; 3 Kent's Com. 215; The Titania, 131 Fed. 229, 65 C. C. A. 215, affirming 124 Fed. 975. 20. Goodwin v. Railroad, 58 Barb. 195. In the absence of a special agreement to that effect, however, a carrier is not obliged to leave heavy castings weighing several tons each in such a position that they may be readily placed together. Hudson River Lighterage Co. v. Wheeler, etc., Co., 93 Fed. 374. Sec. 692. (§ 362.) Consignee not to be requested to remove goods on Sunday or a legal holiday on which labor is forbidden. -Nor can the goods be landed and the consignee required to accept them or take them away on the Sabbath day or upon any legal holiday on which labor is forbidden. But the fact that the day is a fast day by proclamation or a holiday, unless labor be interdicted, will afford no excuse to the consignee for not receiving and removing the goods; and if he fail to do so, and they are lost by the delay, the loss must be borne by him and not the carrier. "The policy of the law," says Grier, J., in Richardson v. Goddard,21 "holds the carrier to a rigorous liability, and in the discharge of it he is not bound to await the convenience or accommodate himself to the caprice or conscientious scruples of the consignee. The master of a ship usually has a certain number of lay-days. He is bound to expedite the unlading of his vessel in order to relieve the owners from the expense of demurrage, and to liberate the ship from the onerous liability of the contract of affreightment as soon as possible. He has six days of the week in which to perform this task, and has a right to demand the acceptance of his freight by the consignee. The consignee may think it proper to keep Saturday as his Sabbath, and to observe Friday as a fast day or other church festival, or he may postpone the removal of the goods because his warehouse is not in order to receive them; but he cannot exercise his rights at the expense of others, and compel the carrier to stand as insurer of his property, to suit his convenience or his conscience." It was, therefore, in that case held that the fact that the governor of a state had appointed a day as a general fast day did not interfere with the right of the master of the vessel to continue the unlading of the goods, nor with the obligation of the consignee to accept and take them away; and the latter, having delayed the removal of the goods from the 21. 23 How. 28. In Gates v. Ryan, 37 Fed. Rep. 154, where the vessel reached her wharf on Saturday and the next Monday was "Labor Day" a holiday the court held the consignee not bound to begin receiving until Tuesday. |