[34] It cannot be gainsaid that the cars in question, together with their contents, were delivered to plaintiff prior to their destruction. At the time of the fire they were in the full custody and control of plaintiff, to the exclusion of every one else; they were neither actually nor constructively possessed by defendant. The custody and control was so complete in plaintiff, by virtue of the cars' being under lock and key managed by the latter, that the defendant could not have prevented the loss even had it received timely notice of the commencement of the blaze in the warehouse.
[35] Unless there be contractual provisions to the contrary governing this case (the delivery having taken place), the defendant is not responsible. Generally speaking, the liability of a common carrier as an insurer of the property entrusted to it for transportation "* * * endures from the shipment of the goods until their arrival at their destination, and continues use thereafter until, but only until, the carrier has made an actual delivery of the property, in good condition, or has done that which may be considered an equivalent to, or a substitute for, such delivery." American Jurisprudence, verb Carriers, Section 667.
[36] The majority opinion holds the defendant responsible on the theory that the bills of lading (admittedly contracts between the parties) render the carrier liable as an insurer when, as in this case, the fire occurs during the stipulated free time for unloading. But those bills of lading, I maintain, are inapplicable here. They, with reference to the contracted liability during free time, pre-suppose possession, custody and control of the goods by the carrier at the time of the loss; that which, as above shown, this defendant did not enjoy.
[37] That the bills of lading contemplate only a loss occurring before delivery clearly appears from the provisions thereof quoted in the majority opinion. Thus, Section 1 (a) states:"The carrier or party in' possession * * * shall be liable * *." In Section 1(b) we find: "* * * after placement of the property for delivery at destination, or tender ofdelivery of the property to the party entitled toreceive it, has been made * * *." And in Section 4(a) it is said: "Property not removed by the party entitled to receiveit within the free time * * * after placement of theproperty for delivery at destination has been made * * *." The emphasized language, obviously, would not have been used in the contracts if the liability of the carrier were intended to continue after the effecting of delivery. (Italics mine.)
[38] The case of Michigan Central Railroad Company v. Mark Owen and Company, 256 U.S. 427, 41 S. Ct. 554, 556, 65 L. Ed. 1032, which the majority holds to be controlling of this litigation, is readily and easily distinguishable in that therein the goods were stolen prior to their delivery. To quote from the opinion rendered in that case: "* * * The property here was not delivered; access was only given to it that it might be removed, and 48 hours were given for the purpose. Pending that time it was within the custody of the railroad company, the company having the same relation to it that the company acquired by its receipt and had during its transportation."
[39] The cars containing the goods in the Michigan case, the opinion therein further shows, were located on a public delivery track of the railroad; hence, they were available to the carrier for inspection and even removal if and when it saw fit. The same cannot be said about the cars of copra in the instant case, which, at the time of their loss, were under lock and key and exclusively controlled by plaintiff.
[40] I respectfully dissent.