By the Court.*
Daly, Chief Justice.The complaint averred that the defendants contracted to carry the plaintiff and his baggage from the city of Hamburg to the city of New York, and if the plaintiff had proved the contract as laid, the judgment might be sustained upon the ground that the nonperformance of the condition would not be excused because the baggage after the arrival of the vessel, was, by a public regulation, taken into the possession of the Commissioners of Emigration, or their officers or agents, and was lost whilst in their custody. (Torpey v. Williams, ante, p. 175; Merwin v. Butler, 17 Conn. 138; Story on Contracts, §§ 463-975; Angell on Carriers, § 268-95.)
A common carrier has the right, in my judgment, to limit his obligation in view of the existence of a public regulation at the place of delivery, by which the baggage of the passenger, when landed from the vessel, is taken into the possession of the public authorities, who assume the exclusive right thereafter of delivering it to the passenger, and which divests the *394carrier of all further custody and control of it; but, to entitle him. to the benefit of this qualification, it must either be expressed in or implied by the nature of the contract. (Muschamp v. Lancaster & Preston R’y Co., 8 Mees. & Welsb. 421; St. John v. Van Santvoord, 25 Wend. 660; 6 Hill, 157.) _ The general rule is succinctly stated in an early case, in these words: “Where the law creates a duty or charge, and the party is disabled to perform it without any default in him and hath no remedy over, then the law will excuse him; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident or inevitable necessity, because he'might have provided against it by his contract.” (Pardine v. Jane, Alleyn, 27.) In that case it was held that the tenant was not discharged from the rent he had stipulated to pay, though a foreign enemy, who had invaded the kingdom, entered upon the demised premises, expelled the tenant and kept him out of the possession and beneficial enjoyment of them.
The defendants, by their answer, denied all the averments in the plaintiff’s complaint, except what they expressly admitted and all that was admitted by the answer, or proved upon the trial was, that the plaintiff came to this country as a passenger in the defendants’ steamer, with his baggage, consisting of his trunk; which was sufficient upon the complaint to charge the defendants, if the plaintiff’s baggage was lost by the breach of that obligation and duty which the law imposes upon common carriers for the safe-keeping and due delivery of the baggage to the passenger, their liability in respect to that being the same as common carriers of goods. (Angell on Carriers, §§ 113, 114.) While that obligation and duty continues, the carrier is excused only for loss or damage arising by the act of Q-od or of public enemies, and the point presented in this case is, whether that obligation continued up to the time when the plaintiff" applied for his trunk and it could not be found.
The steamer of the defendants arrived at her wharf at Hoboken, in New Jersey, opposite New York, on the other side of the Hudson river, which, it appears by the evidence, was her final destination.
*395There the plaintiff was landed and his baggage was put upon the dock for examination by the custom officers. The plaintiff opened his trunk for the officers to examine its contents, and his baggage having been inspected and passed by the officials, he locked the trunk and it was put on board of a barge of the Commissioners of Emigration by the hands of the steamer. Before the plaintiff left the dock, a man belonging to the barge, or to the Commissioners of Emigration, handed the plaintiff a brass check for the trunk, and a corresponding check was fastened upon the trunk. The plaintiff then went on board the barge, and upon the passage across the river to Castle Garden, frequently had his eye upon the trunk. When the barge was fastened to the wharf at Castle Garden, he went ashore, and from the wharf, saw his trunk on board of the barge. It was then nearly dark, and he was told that he must go into Castle Garden; that he could not get his baggage then.
In the morning he returned to Castle Garden and looked for his trunk, but could not find it.
It was proved, on the part of the defendants, that they are compelled, by the laws of the State, to deliver their passengers to the Commissioners of Emigration ; that the dock at which their steamers arrive is. at Hoboken; that when the steamer arrives the passengers are landed there; that the baggage is put upon the wharf, in the presence of the passengers, to be examined by the custom-house officers, after which it is taken charge of by the employees of the Commissioners of Emigration ; that the passenger receives a brass check for his trunk, and that the trunk is then put on board the barge provided by the Commissioners, and that from the time the baggage is landed at Hoboken, the defendants have no control over it. They have men upon the dock who assist the passengers in getting their baggage on board of the barge, and, as a general thing, it is delivered by these men at the string-piece of the pier, and from there, shoved on board the barge by the employees of the Commissioners of Emigration ; though occasionally there is one of the defendants’ men on the barge to assist. The checks for baggage are given by a man connected with the *396barge, the checks being furnished by the Commissioners of Emigration, and the defendants have nothing to do with them.
Upon this state of facts, I think the conclusion must be that the defendants’ obligation and duty as common carriers ceased, in respect to the plaintiff’s baggage, when the trunk was delivered into the possession of the employees of the Commissioners of Emigration. The transit, as respects the defendants, was then at an end, and the plaintiff’s baggage, by a public regulation, had passed into the custody of persons who were not the defendants’ agents or servants, and over whom they had no control. (Hood v. New York and New Haven R. R. Co., 22 Conn. 1; Garside v. Trent Nav. Co., 4 T. R. 581; Tower v. Utica and Schenectady R. R. Co., 7 Hill, 47; Angell on Carriers, §§ 113, 140, 322, 75.) In the absence of proof of a contract on the part of the defendants to convey the plaintiff and his baggage to the city of New York, it must be assumed that they undertook to transport him and his baggage according to their established laws, usage and custom, to the port of New York, and what that was is shown by the evidence. It was to convey him to the dock at Hoboken, the place at which the vessel arrives, and which is the termination of her voyage, or, as the evidence expresses it, her final destination, where emigrant passengers and their baggage, destined for the city of New York, are taken charge of by the subordinates or employees of the Commissioners of Emigration and transported to' the emigrant depot at Castle Garden. If I am right in assuming, in the absence of the proof of any other contract, that this was the extent of their obligation, then it was fully discharged, and their duty was at an end when the plaintiff and his trunk was put on board the barge. The plaintiff came from Hamburg, in the steerage of the'steamer, and was what is known as an emigrant passenger.
By the laws of the State of New York all personal baggage of emigrant passengers arriving at the port of and destined for the city of New York, must be landed at the place in this city designated by the Commissioners of Emigration, and the master or owner of any vessel, landing any emigrant passenger, or his baggage, at any other place in this city, is subject to a pen*397alty (2 Laws of 1857, p. 243); nor can any steamboat, tug, barge, propeller, or other vessel, take such passenger, or his baggage from any ship or vessel, to any dock in this city or Brooklyn, unless by the special license or authority of the Commissioners. (Id. p. 240.) The Commissioners have designated Castle Garden, in this city, as the place for the landing of such passengers and their baggage, and the defendants could not lawfully land the plaintiff at any other place, nor allow any other vessel to come and take the emigrant passenger from their steamer, except one designated, or licensed by the Commissioners. As the defendants’ dock and wharf for their steamer was at Hoboken, and as the Commissioners had a barge there ready to take the passengers and their baggage to the depot at Castle Garden, there was nothing for the defendants to do but to land the plaintiff and other emigrants and their baggage, upon .the dock at Hoboken, when the steamer arrived; and having done this, and by their servants, put the plaintiff’s trunk on board the barge, they did all they could be required to do in ■the fulfillment and discharge of their contract.
We held, in Murphy v. The Commissioners of Emigration, that an action would not lie against the Commissioners for the non-delivery of the baggage of an emigrant passenger taken from the vessel by a tug-boat licensed by the Commissioners, for the reason that they are public officers, and as such, are not ■ personally responsible for loss occasioned by the neglect or acts of their subordinates or those acting under them, or by their authority, and this is now the settled law of this State, the decision having been affirmed by the Court of Appeals (28 N. Y. R. 134). “ The government,” said Selden, J., “ in assuming control over the landing of emigrants and their baggage, does not undertake, either by itself or its officers, to indemnify the emigrant.” If the regulation which it has established fail to protect the emigrant, though designed for that purpose, “ it is a misfortune for which he has no remedy against the State or against the Commissioners.”
The question may be asked, who, then, is responsible for the loss of the plaintiff’s trunk? The answer must be, the subordinates of the Commissioners of Emigration who took it *398in charge, or who was intrusted with the safe keeping of it. (Rowning v. Goodchild, 3 Wils. 453, 454, 2 Ed; Whitfield v. DeDespencer, Cowp. 765; Bayley v. The Mayor &c., 3 Hill, 531; Stock v. Harris, 5 Burr. 279; Story on Bailments, §463; Story on Agency, § 319, 6, 7th Ed.)
If lost by their negligence they are answerable, or if they fail to deliver it, or cannot produce it when the emigrant applies for it, or explain its loss through circumstances that will excuse them, its loss through their negligence may be presumed until the contrary is shown. (Arent v. Squire, 1 Daly, 347; Murphy v. Com'rs of Emigration, 28 N. Y. R. 134; Semler v. The Same, 1 Hilt., 244; Shearman & Redfield on Negligence, 12.)
It would seem from the evidence, that the Commissioners assumed a more direct and exclusive control and custody of the emigrant and his baggage, than was the case in Murphy v. The Com'rs, &c. (supra), or in Semler v. The Same (1 Hilt., 244.)
Whether they have or have not, by so doing, brought themselves within the pale of individual responsibility, it is impossible for us to say upon the facts now before us. All that we can say is, that if the Commissioners go beyond the limits of their official power, or act in the discharge of them in so inexcusable a manner as to become directly, themselves, the canse of -loss or injury to the emigrant, they would be responsible. (Dunlop v. Munroe, 7 Cranch, 242, 269; 2 Kent’s Com. 610, 4th Ed.; Story on Agency, § 319, 7th Ed.)
Whoever may be answerable for the loss of the plaintiff’s trunk, it is very clear to my mind that the defendants are not.
The judgment should be reversed.
Judgment reversed.
Present—Daly, Ch. J., Robinson and Larremore, JJ.