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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 177 The bill of lading contained special clauses defining the obligation of the carrier in respect to the delivery of the goods, and also the duty of the consignees as to receiving them. By the first of the clauses referred to, the goods were "to be delivered from the ship's deck (when the ship-owner's responsibility shall cease), at the port of New York," and by the second it was declared that the goods were "to be received by the consignees immediately the vessel is ready to discharge, or otherwise they will be landed and stored at the sole expense and risk of the consignees, in the warehouses provided for that purpose, or in the public store, as the collector of the port of New York shall direct." Among the exceptions in the bill of lading is one against loss by "pirates, robbers, thieves, etc., whether such perils or things arise from the negligence, default or error in judgment of the pilot, master, mariners, engineers, stevedores, agents, or other persons in the service of the ship-owner, and occur before, during the voyage, or at the port of discharge." It is conceded that the sixty-three slabs of tin, the value of which the plaintiff seeks to recover in his action, have been lost and have never come to the actual possession of Mayer Bros. Co., or their assignees. The necessary conclusion from the evidence is that they were removed from the wharf of the defendant after they had been discharged from the ship, by some one without authority of the true owner. The finding that they were not taken by theft leads to the alternative conclusion that they were taken by some person other than the true owner, by mistake, but with the passive acquiescence, at least, of the persons in charge of the wharf. If the original taking was not felonious, it is difficult to resist the conclusion that there was a subsequent felonious appropriation, in view of the fact that the property has never been *Page 179 returned and that all efforts to trace it have proved unavailing. But whether taken by felony or mistake, there can be no reasonable doubt that the tin in question passed from the wharf of the defendants through the usual gate through which goods were taken, and under the observation of the persons in charge. The weight of each slab exceeded 100 pounds. The ship lay against the wharf. The wharf was enclosed on all sides. On the water side there was a gate for the discharge of cargo on to the pier. There were two other gates, one for the entrance of trucks and one through which the loaded trucks passed on leaving the wharf. It is a reasonable inference that whether the tin was taken by felony or mistake, the loss would have been prevented if the defendant's agents in charge of the wharf had required from the person taking the tin an exhibition of his authority, and had followed the rule prescribed by the defendant, requiring the gateman to inspect goods passing the gate and to take receipts from cartmen before permitting goods to leave the wharf. It is not claimed that any authority was exhibited to the defendant's agents other than the original order of Mayer Bros. Co., indorsed to Lucius Hart Co., on the twenty-eighth, to deliver the twenty-five tons of tin embraced in the order, nor that any receipt was taken by the gateman for the sixty-three missing slabs. The trial judge found, in substance, that the defendant never delivered the tin pursuant to its contract of carriage, but held it at the time of the loss in its capacity of carrier, subject to the rigorous liability imposed upon carriers by the common law, except as modified by the bill of lading, and that the tin was not lost by any of the perils excepted in the bill of lading. But the trial judge placed the right of the plaintiff to recover on an additional ground, viz., actual negligence on the part of the defendant's agents and servants in the care of the goods while on the wharf, by reason of which they were lost, and held that, assuming it was not liable as carrier under the contract of affreightment, it was liable for a breach of duty, to use ordinary care in the protection and preservation of the goods. *Page 180
We concur in the conclusion of the General Term that the judgment of the trial court cannot be supported on the liability of the defendant, as carrier, under the bill of lading. The general principle that the duty and obligation of a common-carrier by water, does not, ipso facto, cease on the unloading of goods from the ship and their deposit upon a wharf, and especially where the place of discharge is also the terminus of the particular voyage, is the settled doctrine of this court and the generally accepted doctrine of the maritime law. The obligation of the ship-owner is not only to carry the goods to the port of destination, but to deliver them there to the consignee. But a delivery which will discharge the carrier may be constructive and not actual. To constitute a constructive delivery the carrier must, if practicable, give notice to the consignee of the arrival, and when this has been done and the goods are discharged in the usual and proper place, and reasonable opportunity afforded to the consignee to remove them, the liability of the carrier, as such, terminates. The duty of the consignee to receive and take the goods is as imperative as the duty of the carrier to deliver. Both obligations are to be reasonably construed, having reference to the circumstances. The stringent liability of the carrier cannot be continued at the option, or to suit the convenience of the consignee. The consignee is bound to act promptly in taking the goods, and if he fails to do so, whatever other duty may rest upon the carrier in respect to the goods, his liability, as insurer, is by such failure terminated. (Redmond v. Liverpool Co., 46 N.Y. 578;Hedges v. Hudson R.R.R. Co., 49 id. 223.)
In the present case prompt notice of the arrival of the goods was given by the defendant to Mayer, Bros. Co. They were discharged from the ship on Monday, September twenty-seventh, and deposited on the proper wharf. The consignees had three full days thereafter in which they could have removed the tin, before the first of December, the day when the loss was discovered. They were not prevented from removing it from the wharf during those days by any act of the defendant, or by any vis major, and it is very clear that *Page 181 its removal during that time was practicable in the exercise of due diligence by the consignees. (Richardson v. Goddard, 23 How. [U.S.] 28.) Under these circumstances, the defendant, under the authorities, must be held to have made delivery of the tin under its contract as carrier, and to have discharged itself from its custody as such; and as the loss, upon the evidence and findings, must be held to have occurred after notice to the consignees of arrival, and the lapse of a reasonable time for the removal of the tin from the wharf, the General Term properly overruled the first ground of liability asserted by the plaintiff. The general duty of a carrier to deliver, and of a consignee to receive, as defined in the authorities to which we have referred, is not, we think, essentially changed by the clause in the bill of lading that the goods are to be delivered "from the ship's deck, when the ship-owner's responsibility shall cease," or by the clause that the goods are to be received by the consignee "immediately the vessel is ready to discharge." (Collins v. Burns, 63 N.Y. 1; Gleadell v. Thomson, 56 id. 194.) The defendant, in our view, are not liable as carrier for the reason that it had made delivery, as such, according to the general rule governing the liability of carriers by water.
But this conclusion does not meet the other ground of liability asserted, and found by the trial court, viz., that the defendant neglected to exercise due and proper care of the tin and negligently permitted it to be taken from its wharf by strangers, which is the substance of the findings on this branch of the case. It is claimed by the learned counsel for the respondent that this cause of action was not alleged in the complaint, and that the action was brought exclusively upon the contract of affreightment, and the duty of the defendant to make delivery under the bill of lading. The case was tried upon both theories of liability, and no objection was made that a cause of action for negligence, in not properly caring for the tin after the strict liability of the defendant as carrier had ceased, was not within the issues. It is now too late to take this objection. (Wellington v. Morey, 90 N.Y. 656; Vann v. Rouse, *Page 182 94 id. 407.) There can be no doubt, we suppose, that in many cases a carrier's whole duty in respect to goods carried by him is not discharged by a constructive delivery terminating his strict responsibility as carrier. Although a consignee may neglect to accept or receive the goods, the carrier is not thereby justified in abandoning them, or in negligently exposing them to injury. The law enables him to wholly exempt himself from responsibility in such a contingency by giving him the right to warehouse the goods. When this is done he is no longer liable in any respect, and if they are subsequently lost by the negligence of the warehouseman, the carrier is not liable. (Redmond v. LiverpoolCo., 46 N.Y. 578, and cases cited.) But so long as he has the custody of the goods, although there has been a constructive delivery which exempts, him from liability as carrier, there supervenes upon the original contract of carriage by implication of law, a duty as bailee or warehouseman to take ordinary care of the property. This duty of ordinary care rested upon the defendant in this case. The tin, it is true, was placed by the act of the defendant under the dominion of the consignees for the purposes of weighing and removal, but, nevertheless, as between the defendant and the consignees and their assignees, the actual custody of the part not removed by the consignees or their assignees, remained at all times in the defendant. It was deposited on its private wharf, to which alone it, its servants, and those permitted by it had access. The tin could not have been removed against their consent. It was, in fact, removed by some one unknown, by their tacit acquiescence, doubtless without any fraud on their part, but, nevertheless, its removal by a stranger was made possible by reason of an omission on the part of the defendant's servants to take the precautions against misdelivery which the defendant had deemed it proper to prescribe to prevent such an occurrence. The trial court found that the omission to take these precautions was negligence. We do not perceive why this finding is not supported by evidence. If there was negligence on the part of the servants of the defendant which occasioned or contributed to *Page 183 the loss, the doctrine of respondeat superior applies and makes it in law the negligence of the defendant. The delay of the consignees in removing the tin had no legal connection with this breach of duty by the defendant, and cannot justly be considered as a concurring cause of the loss. The exceptions in the bill of lading of loss by thieves, etc., do not exempt the defendant from liability, for the reasons, first, that it was found by the trial court that the tin was not lost by theft; and, second, by the true construction of the contract the perils excepted were those which should happen before or during the voyage and while the goods were in the possession of the carriers as such under the bill of lading.
Upon the whole case we are of opinion that the original judgment is supported upon the ground of actual negligence of the defendant after the contract of carriage had been performed in omitting to exercise ordinary care in the custody of the tin. It was found by the trial judge, upon the request of the counsel for the defendant, that the plaintiff owned, by assignment, the claim in suit, and no question can now be made as to the right of the plaintiff to maintain the action.
For the reasons stated, we think the General Term erred in reversing the judgment, and the order of reversal should, therefore, be reversed, and the judgment of the trial court affirmed.
All concur, except EARL and GRAY, JJ., not voting.
Order reversed and judgment affirmed.