[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 261
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 262 Although we cannot fail to see that the destruction of the goods in question was inevitable and that no blame can be attributed to the defendants for their loss, yet the question whether that loss shall be brone by them or by the plaintiffs must be decided according to the principles which are applicable to the legal relation which the defendants sustained to the goods at the time the fire occurred. The cause and circumstances of the destruction were such as a common carrier is bound to answer for, but not such as suffice to charge a bailee for custody merely. The important inquiry therefore is, whether the goods at their destruction were in the custody of the defendants as carriers.
The goods were delivered to the defendants in New York to be carried to Albany, and there delivered to another carrier to be transported to Brockport, N.Y. All this appears from the *Page 263 receipt given on the shipment of the goods, which discloses plainly these facts and shows that the parties to whom delivery was to be made at Albany were to receive the goods not as owners nor as general consignees of the owners, but as carriers. In VanSantvoord v. St. John (6 Hill, 157), it was held that the first carrier's obligation was discharged when he had safely delivered the goods to the next carrier, but that case did not present any question as to what would amount to such a delivery. The same remark is applicable to Ackley v. Kellogg (8 Cow., 223). In both cases the second carrier had actually received the goods and was chargeable as carrier for their safety. It is found by the referee in this case — and as we have not the evidence we must certainly assume the finding to be well warranted — that the Atlantic Line did not receive the goods from the defendants within a reasonable time after notice was given of their arrival and a request that they should be taken away. Assuming that such notice, if given to the owner at the end of the transit, and the unreasonable delay in taking the goods, would have put an end to the liability of the defendants as carriers, yet, as I think, the cases and the nature of the transaction itself point to a distinction between that case and the case of consignee or second carrier. If an undue refusal to receive by the the owner at the end of the transit would justify the carrier in renouncing all further care over the goods, it clearly would not in the case of consignee or subsequent carrier, where these relations were known to the first carrier. In Ostrander v. Brown (15 Johns., 43), Mr. Justice PLATT, giving the opinion of the court, says: "Suppose the consignees had been dead or absent or had refused to receive the goods in store, what would have been the carrier's duty? Certainly he would have no right to leave them on the wharf or in the street without protection. He would not be justified in abandoning the goods. He had notice that S. and B. were the owners, and if M. and O. would not take charge of the goods as consignees, he ought to have secured them on board his vessel or in some other place of safety." This was said in a case where the goods were left unprotected on a wharf, and the duty of protection was the *Page 264 only point to be made out. In Fisk v. Newton (1 Denio, 45), the goods had been stored; the consignee not being found after due search, and the storekeeper having failed and the goods being missing, the question was whether such storing was a defence to the carrier, and it was held that he was not liable. Now the goods in this case were transferred from the boat to the float to enable the defendants to complete their contract by making delivery. The float was not a storehouse in the proper sense of that word. It was a part of the machinery to facilitate the business of carriage, which the defendants adopted for their own convenience in performing their contracts to carry and deliver. When the goods were unladen from the boat on which they were brought up the river and placed upon the float, it was a step in performance of the contract to deliver, but not a delivery. The performance was not by that act complete. It was a mode of delivery which undoubtedly promoted the convenience of both sets of carriers, but it did not alter the responsibility of the first carrier who had not yet made delivery. There was no refusal to receive on the part of the second carrier, but there was unreasonable delay. The defendants, however, did not find this delay so unreasonable as to feel compelled to make any new disposition of the goods. They did not remove them from the exposure of a floating vessel, from different parts of which goods were being delivered to different lines, and place them in store. They indulged the other carriers in the delay, as from the course of business was natural and suitable; and until some act was done on their part indicating a clear purpose to make an end of their relation of carriers as to these goods, I think their responsibility as such continued. No owner can be supposed to have an agent to superintend each transhipment of his goods, in the course of a long line of transportation; and if the responsibility of each carrier is not continued until delivery in fact to the next carrier — or at least until the first carrier, by some act clearly indicating his purpose, terminates his relation as carrier — we shall greatly diminish the security and convenience of those whose property is necessarily abandoned to others, with no *Page 265 safeguards save those which the rules of law afford. The stringency of the rules belonging to this species of bailment had its origin in public policy, which long experience has approved as wise and salutary. Any other rule in respect to the duty of carriers at such points of transhipment, when unmodified by custom, than that above contained, would give rise and afford protection to the same class of mischiefs against which public policy has protected the community by the strict responsibility imposed upon carriers in other cases.