(dissenting.) Twenty-three cases of goods were consigned to the plaintiff, and sent from Liverpool by the steamer Edinburgh to this port. The general clerk of the plaintiff made out the custom-house entry for the goods, had them entered, and obtained a permit to send them from the steamer to the public warehouse. He put the permit in the box of Cole, a custom-house cartman, authorized by his license to cart goods to the warehouses, and there to leave them. The twenty-three cases were delivered from the steamer on the 8th of March, 1866, but *335one of them was lost or stolen, the rest having been safely deposited in the warehouse designated for their reception. The warehouses are places of deposit established by law. When one of the defendants’ steamers arrives, it appears frbm the evidence, that an inspector of the customs attends the vessel, to pass the goods from her to the defendants’ wharf upon permits therefor, obtained at the customhouse, and to designate whether they shall be delivered at once to the consignee, which may" be done if the duties have been paid, or be sent to the general order store, which may be done when the goods have not been entered, or be sent to a bonded warehouse, which may be done when the goods have been bonded and entered for warehousing. This system is predicated of acts of congress, hereafter referred to, and the regulations of the treasury department authorized by them. The inspector, in the discharge of his duty, takes the numbers and marks of the packages as they pass out of the vessel, and the practice of the defendants was to check each package also, at the same time; a duty performed by a clerk assigned for that purpose. When the goods are thus passed, they are separated, each class being kept by itself, goods on which the duty has been paid, goods for the general order store and bonded goods for bonded warehouse. When this is done, a different class of persons appears, namely, custom-house eartmen, acting by appointment of the collector, and under official oath and bonds for the faithful discharge of their duties, and they take charge of the goods for delivery, which are to be placed in general store or bonded warehouse. It would seem to be proved that of these eartmen some have charge of a district embracing certain wharves, and the one having charge of the district which includes the defendants’ wharf, takes immediate control of the public store goods, and general order goods, and of the bonded goods for bonded warehouse, unless some other cartman demands the latter, having been selected therefor *336by the consignee, or otherwise. From these cartmen it was the practice of the defendants to take receipts for goods carted away by them, but not always for bonded or warehouse goods; and it does not appear to have been the custom to take receipts for such goods by other companies. It has already been stated that the permit for the plaintiff’s goods was placed in the box of one Cole, a licensed or appointed cartmen, and that gave him the right to take possession of the goods and transport them to the warehouse named. He "took twenty-two cases only, and the referee finds that the other case was not delivered to the plaintiff, and it does not appear to have been delivered formally to Cole or his assistants. The right to take possession of the whole consignment was undoubtedly yielded to Cole by the district cartman, and there can be no doubt that it was all discharged from the vessel, although the referee does not find the fact. It appears to have been the duty of the district cartman to report himself at the vessel as soon as the defendants commenced to discharge her. And it also appears that he was at his post, and that the plaintiff was notified of the arrival of the vessel, and had the opportunity to pay the duties, or bond the goods for warehousing, or to adopt any course with reference to them that he might think proper. He entered them as already stated, and obtained a permit to have them sent to a warehouse. Upon these facts the question presented is whether the defendants are responsible for the lost package. These goods were landed on the defendants’ wharf, according to the testimony of one of. their clerks, on the 8th of March, as already stated, but at what time of the day does not appear. The discharge of the vessel on that day was commenced at 7 a. m. and continued until 2 a. m. of the 9th, the day following; and it may be that the case lost or stolen was discharged after daylight, and if so, it could not be taken into the warehouse until the next day, it appearing that such is the rule. Assuming, therefore, *337that the defendants’ duty as a carrier may be discharged by landing the goods on the wharf after the proper inspection of them, where the consignee has determined by his entry-that they shall be placed in a warehouse and taken thence by the person authorized to convey them thither, yet there is an insurmountable barrier to the success of such a defense in this - case. The discharge must take place at a reasonable hour, sometime during the daylight, if not at such time of the day as will enable the cartman with due diligence to transport the goods to the place designated. (Richardson v. Goddard, 23 How. U. S. Rep. 39; opinion of Justice Grier. Story on Bailments, 6th Am. ed., § 545.) If the carrier, for his own convenience or advantage, .places the goods upon the wharf, whether his own = or that of another, at unseasonable hours, he must assume all the consequences that ensue; the consignee is under no obligations, either personally or by agent, to attend the place of delivery after the usual working hours of the day, in the absence of some custom, or usage or contract binding him so to do. There is, it is time, some evidence in this case that the goods were unloaded during the daytime and carted away by the plaintiff’s cartmen or his assistants, but th"e evidence is conflicting, and the finding is against the defendants on that subject.
It is no answer to this view, that the system or mode of landing is such that bonded goods for bonded warehouse may pass to the possession of the revenue officers of the government. If the goods had been destined for any public warehouse, owned or leased by the United States, (see Act of March 28, 1854, 10 Stat. at Large, 270, § 1,) in w'hich they may be deposited when bonded according to law, it might be held that it became the duty of the collector of this port to take possession of them and to deposit them, as required by the act of August 6, 1846, (9 Statutes at Large, p. 53,) but these goods were to be sent *338to a bonded warehouse approved by the secretary of the treasury, and placed in charge of a proper officer of the customs, who, together with the owner and proprietor of the warehouse, shall have joint custody of the merchandise received. (Act of 1854, supra, § 1.) The possession is therefore divided between the government and the owner of the warehouse, and the consignee has the right to select the cartmen who shall convey his goods to the warehouse. It is true that by the regulations of the treasury department, established by authority of acts of congress, the cartmen are to be appointed as already stated, and that such regulations declare it to be intended that bonded goods shall at all times be in the custody of the officers of the customs or their authorized agents. (Treasury Regulations, §§ 7, 9.) Nevertheless it is apparent that these regulations relate to the lien of the government which they are designed to protect and secure, while the right to select the eartman, conceded by the government to the consignee, undoubtedly makes him the agent of the latter, and a delivery to him in any proper form a protection to the carrier. The defendants are not entitled to the benefit of the laws governing the transportation of goods, from the wharf to the warehouse, unless they have, in the performance of their duties as carriers, discharged their obligations beyond doubt. It will no£ be so regarded when the goods they carry are placed upon their wharf after the working hours of the day shall have expired, and more particularly when the place of deposit being named, and to which they must be -conveyed, and which he has not the power to change, is closed, for the time being, against the consignee. The dispatch necessary to a successful prosecution of the defendants’ enterprise may require the discharge of their vessels at unseemly hours, but if it does, and the defendants act upon the necessity, they must bear the burden. They can protect themselves by proper means *339from any disadvantages. The onus of establishing a proper delivery rested upon them. They assume to have done so, by proving a compliance with the revenue laws, the effect of which was, they claim, to transfer the possession and responsibility to the officers of the customs, but I am not able to declare that result to have been attained. The defendants have not shown that they delivered the goods in question to the plaintiff or his agent, or to any person authorized by law to receive them, to the exclusion of the plaintiff, who accepted them and assumed the responsibility of their custody. There is no charge of loches or negligence against the plaintiff or his cartmen, arising from absence from the defendants’ wharf dui’ing the proper hours for the unloading of the vessel, and the case presents, therefore, an abstract question of the defendants’ liability upon the facts disclosed and considered. The consignee is entitled to consideration. He may select the cartmen and the place of deposit, but he must execute a bond to acquire these privileges, and should not be compelled in addition thereto to accept as a full discharge of the carrier’s duty and liability, a delivery in strict formal accordance with the revenue laws and regulations, but not in harmony with that responsibility and duty which the common law imposes upon them. But, if otherwise, then it is not unreasonable to require from carriers that they shall, in the discharge of their freight, as between them and the consignee, conform to the rules of the revenue system which prevails in relation to such' discharge and the disposition of the property carried, with which their agents are familiar, and which would require its delivery during daylight.
The result of these considerations is, that it not appearing conclusively in the case that the package in question was landed upon the defendants’ wharf during daylight, it was not properly delivered, and the defendants are respons*340ible. What would be the result of this investigation if it had been established that the goods were landed at a proper time of the day, and while the eartman of the plaintiff was present, or ought to be, it is unnecessary to state. I think the judgment should be affirmed.
[New York General Term, April 4, 1870.blew trial ordered.
Ingraham, Geo. G. Barnard and Brady, Justices.]