The principle which governs these cases may be stated *179 thus. If the transportation be the chief thing, and the deposit of the goods on a wharf or in a building be for a short time only, and merely incidental to the transportation, and the owner of the goods relinquishes them entirely when they are so deposited, then they are so delivered to the common carrier in that capacity, and he is liable for them accordingly. (t) Thus, most carriers have a receiving-office, or depot, or station. How ing line on the canal, and also in at least one vessel carrying freight upon the lakes. On the 17th of October, the defendants shipped the goods on board the schooner C., a transient vessel which ran between Buffalo and Chicago, in which they had no interest. They took the captain's receipt, and made a bill of lading for the goods, agreeing with the captain as to the amount of freight he should receive. The vessel was a good one, and her captain in good credit. One of the cases of goods was lost before arriving at Chicago. Upon these facts the court held, 1. That the legal import of the memorandum was not that the goods should be stored at Buffalo, and that the defendants should act as agents of the plaintiffs in procuring a carrier of them from Buffalo to Chicago; but that they were consigned to the defendants at B., with a request or direction that they should be carried, by vessel, from B. to Chicago. 2. That the defendants, receiving the goods with the accompanying memorandum, and transporting or causing the same to be transported by vessel to Chicago, were to be regarded as impliedly contracting to carry; and upon such a receipt the risk of a carrier, and not that of a warehouseman or forwarder, attached. Roberts . Turner having been cited for the defendants, Wright, J., who delivered the opinion of the court, thus endeavored to distinguish the two cases: "We are referred to Roberts v. Turner, 12 Johns. 232, as controlling this case. That case was decided in 1815. But without referring to the actual condition of the business of the country since that decision, the case is distinguishable from the present, in that the whole facts showed that Turner acted but as a forwarder of the goods. He kept a store at Utica, where produce was left by the public to be forwarded by boats or wagons to Albany. He had no interest in the boats or wagons. The plaintiff knew, when his ashes were left to be sent to Albany, that Turner's only business, in relation to the carriage of goods, consisted in forwarding them. This was also understood by the public; and that without any concern in the vessels by which the goods were forwarded, or any interest in the freight, they were stored with him merely for the purpose of forwarding by others; he taking upon himself the expenses of transportation, for which he received a compensation from the owners of the goods. But this was not the position of the defendants in the present suit. They were in a measure engaged in the carrying business, and were interested to some extent in vessels on the canal and lakes. They kept a public office for the transaction of their business, at a place of trausshipment; receiving and carrying all goods that might be directed to their care, in their own vessels when convenient, and in such other vessels as they could employ on terms most advantageous to themselves. They received the goods in question directed to them, which were destined west on the lakes. They employed a vessel to carry them forward, making out a new freight-bill, and returning the old one, and for themselves taking the captain's receipt for the goods. Persons ostensibly engaged as forwarders have, in this State, become numerous, and their business complicated and extensive. The rigid rules of the common law make the carrier assume the liability of an insurer of property, whilst the warehouseman and forwarder are but answerable as bailees, for ordinary neglect. The law distinctly defines the business of each, and their liabilities. Whilst the warehouseman confines himself to the receipt and storage of goods for a compensation, and a forwarder to the receipt of goods, and the forwarding of them by a carrier other than himself, in good credit and in safe vessels, they only assume the liability of depositaries for hire. But if, calling themselves forwarders, they so act and conduct their business as to lead the public to regard them as carriers, and employ them as such, without intimation of their true character, the liabilities of a carrier attach to them." (t) Maving v. Todd, 1 Stark. 72. And see Clarke v. Needles, 25 Pa. 338; Moses v. The Boston & Maine Railroad Co. 4 Foster (N. H.), 71. ever such a place be called, goods once delivered and received there are as much at the risk of the carriers as if they were packed in the wagon or car, and in actual motion. (u) But if they are deposited even in such receiving-office, with orders not to transport them, but to let them lie until further instructions shall be given by the owner, the carrier has not received them for carriage; or, in other words, he has not received them as a carrier, but only as a depositary. (v) As soon as final instructions to transport the goods were received by the carrier, his liability in that character would begin under some circumstances. But not if the goods had been previously deposited there, for a distinct time, and an independent purpose. In such case the *180 order to carry would * have no further operation than an order by an owner to carry goods in the owner's possession. It attaches no liability until the order is executed, or begins to be executed. So, if goods are deposited with one who is a carrier, but distinctly for the purpose of warehousing them, the depositary is answerable only for negligence; and if afterwards he is ordered to carry, and undertakes to carry the same goods, his peculiar liability as carrier does not begin until he begins to carry, or moves the goods, or prepares them for carriage, taking them as it were anew into his possession for this specific purpose. The delivery to a carrier must be known to the carrier, in order to create a responsibility on his part. (w) If goods are left in his depot or receiving-office, with no notice to him, and no knowledge by him, he is not then, in general, bound to any care or charge of them. But usage, or terms made public by advertisement, 181 might raise such an obligation. (x) As if he had adver (u) Camden & Amboy Railroad Co. v. Belknap, 21 Wend. 354; Woods v. Devin, 13 Ill. 746; Moses v. Boston & Maine Railroad Co. 4 Foster (N. H.), 71. (v) Platt v. Hibbard, 7 Cowen, 497; Moses v. Boston & Maine Railroad Co. 4 Foster (N. H.), 71. (w) Selway v. Holloway, 1 Ld. Raym. 46; Buckman v. Levi, 3 Camp. 414; Packard v. Getman, 6 Cowen, 757. (r) Mechanics & Traders Bank v. Gordon, 5 La. An. 604. The case of Merriam v. The Hartford Railroad Co. 20 Conn. 354, is very strong to this point. In that case, certain goods, designed to be transported by the defendants as common carriers, from New York to Meriden, in Connecticut, were delivered in New York, in the usual manner, on the defendants' private dock, which was in their exclu sive use for the purpose of receiving property to be transported by them. It was held, that such delivery was a good delivery to the defendants to render them liable for the loss of the goods, although neither they nor their agent were otherwise notified of such delivery. And Storrs, J., said: "A contract with a common carrier for the transportation of property being one of bailment, it is necessary, in order to charge him for its loss, that it be delivered to and accepted by him for that purpose. But such acceptance may be either actual or constructive. The general rule is, that it must be delivered into the hands of the carrier himself, or of his servant, or some person authorized by him to receive it; and if it is merely deposited in the yard of an inn, or upon a wharf to which the carrier resorts, or is placed in tised that parcels properly directed might be put into his box, that adequate provisions had been made for their safety, and that he should hold himself responsible for them, he would in such case undoubtedly be held to this responsibility. And the knowledge of his authorized agent is his knowledge. (y) But not every one employed by him is his agent in such wise as to charge him with this responsibility. (2) Drivers of stage-coaches, or conductors of cars, may be in the habit of carrying goods generally, in parcels of some particular kind, on their own account, receiving themselves the pay, and not accounting for it to their employers. One who delivers goods to such a person for carriage, knowing that he carries them only in this way, and that no part of the the carrier's cart, vessel, or carriage, without the knowledge and acceptance of the carrier, his servants or agents, there would be no bailment or delivery of the prop erty, and he consequently could not be made responsible for its loss. Addison on Cont. 809. But this rule is subject to any conventional arrangement between the parties in regard to the mode of delivery, and prevails only where there is no such arrangement. It is competent for them to make such stipulations on the subject as they see fit; and when made, they, and not the general law are to govern. If, therefore, they agree that the property may be deposited for transportation at any particular place, and without any express notice to the carrier, such deposit merely would be a sufficient delivery. So if, in this case, the defendants had not agreed to dispense with express notice of the delivery of the property on their dock, actual notice thereof to them would have been necessary; but if there was such an agreement, the deposit of it there, merely, would amount to constructive notice to the defendants, and constitute an acceptance of it by them. And we have no doubt, that the proof by the plaintiff of a constant and habitual practice and usage of the defendants to receive property at their dock for transportation in the manner in which it was deposited by the plaintiff, and without any special notice of such deposit, was competent, and in this case sufficient to show a public offer, by the defendants, to receive property for that purpose, in that mode; and that the delivery of it there accordingly, by the plaintiff, in pursuance of such offer, should be deemed a compliance with it on his part; and so to constitute an agreement between the parties, by the terms of which the property so deposited should be considered as delivered to the defendants without any further notice. Such practice and usage was tantamount to an open declaration, a public advertisement, by the defendants, that such a delivery should, of itself, be deemed an acceptance of it by them, for the purpose of transportation; and to permit them to set up, against those who had been thereby induced to omit it, the formality of an express notice, which had thus been waived, would be sanctioning the greatest injustice and the most palpable fraud. The present case is precisely analogous to that of the deposit of a letter for transportation in the letterbox of a post-office, or foreign packet vessel, and to that of a deposit of articles for carriage in the public box provided for that purpose, in one of our express offices; where it would surely not be claimed, that such a delivery would not be complete without actual notice thereof to the head of these establishments or their agents." See also Green v. Milwaukee & St. Paul R. R. Co. 41 Ia. 410; Meyer v. Vicksburg, &c. R. R. Co. 41 La. An. 639; Montgomery, &c. Ry. Co. v. Kolb, 73 Ala. 396. (y) Burrell v. North, 2 Car. & K. 680; Davy v. Mason, 1 Car. & M. 45; D'Anjou v. Deagle, 3 Har. & J. 206. (z) But the agent must have an authority for this purpose, or be held out as having it. Therefore, where a common carrier sent his wagon to Nashville with a load of cotton, and the driver was a young negro who had never been allowed to make contracts for hauling, and who had never before been intrusted with the wagon and team alone, and who was particularly instructed to bring home a load of salt, and not to receive goods of any kind for carriage, notwithstanding which he did receive goods for carriage, and the goods were damaged; it was held, that the owner of the team was not liable. Jenkins v. Pickett, 9 Yerg. 480. See Ford v. Mitchell, 21 Ind. 54. compensation he receives goes to his employer, cannot hold that employer liable for loss of the goods. (a) But the employing carrier cannot defend himself by showing that his servant carried his goods on his separate account, and for his separate gain, *182 provided the owner did not know the state of the case, but believed that the employer was the carrier, and the servant his receiver of goods for carriage, and was justified by the apparent facts of the case in so believing. (b) * A ship may be a common carrier, whether in the hands of her owner, or chartered by him to another. But she may be char (a) Thus where a ship is not put up for freight, but employed by the owner on his own account; and the master receives goods of another person on board as part of his privilege, taking to himself the freight and commissions, the owner of the ship is not liable in case of embezzlement, or for the conduct of the master in relation to such goods. King v. Lenox, 19 Johns. 235. See also Butler v. Basing, 2 C. & P. 613; Reynolds v. Toppan, 15 Mass. 370; Citizens Bank v. Nantucket Steamboat Co. 2 Story, 16; Allen . Sewall, 2 Wend. 327, 6 id. 335; Walter v. Brewer, 11 Mass. 99. (b) Thus, where the owners of a stagecoach employed a driver, under a contract that he should receive a certain sum of money per month, and the compensation which should be paid for the carriage of small parcels, it was held, that the owners would be answerable for the negligence of the driver in not delivering a parcel of that description, intrusted to him to carry, unless this arrangement was known to the proprietor of the goods, so that he contracted with the driver as principal. Bean v. Sturtevant, 7 N. H. 146. See also Allen v. Sewall, 2 Wend. 327; s. c. 6 id. 335; Hosea v. McCrory, 12 Ala. 349; Chouteau v. Steamboat, 16 Mo. 216; Whitmore v. Steamboat Caroline, 20 id. 513. See also the case of Farmers and Mechanics Bank v. Champlain Transportation Co. 23 Vt. 186, in which these points are thoroughly considered. See the facts of the case stated post, p. 187, note (s). One of the points made was whether the defendants were to be held as common carriers of the bank-bills in question. Upon this point Redfield, J., said: "It seems to us that when a natural person, or a corporation, whose powers are altogether unrestricted, erect a steamboat, appoint a captain, and other agents, to take the entire control of their boat, and thus enter upon the carrying business, from port to port, they do constitute the captain their general agent to carry all such commodities as he may * choose to contract to carry within the scope of the powers of the owners of the boat. If this were not so it would form a wonderful exception to the general law of agency, and one in which the public would not very readily acquiesce. There is hardly any business in the country, where it is so important to maintain the authority of agents, as in this matter of carrying by these invisible corporations, who have no local habitation, and no existence or power of action except through these same agents, by whom almost the entire carrying business of the country is now conducted. If, then, the captains of these boats are to be regarded as the general agents of the owners, and we hardly conceive how it can be regarded otherwise, whatever commodities, within the limits of the powers of the owners, the captains, as their general agents, assume to carry for hire, the liability of the owners as carriers is thereby fixed, and they will be held responsible for all losses, unless, from the course of business of these boats, the plaintiffs did know or upon reasonable inquiry might have learned, that the captains were intrusted with no such authority. Prima facie the owners are liable for all contracts for carrying, made by the captains or other general agents for that purpose, within the powers of the owners themselves, and the onus rests upon them to show that the plaintiffs had made a private contract with the captain, which it was understood should be kept from the knowledge of the defendants, or else had given credit exclusively to the captain. But it does not appear to us that the mere fact that the captain was, by the company, permitted to take the perquisites of carrying these parcels, will be sufficient to exonerate the company from liability. Their suffering him to continue to carry bankbills ought, we think, to be regarded as fixing their responsibility, and allowing the captain to take the perquisites, as an arrangement among themselves." tered in two ways. If the hirer provides and pays the officers and crew, in this case the owner is not more liable for their acts than if he had sold the ship. (c) If the owner agrees to man the ship, and then the hirer hires ship, officers, and crew, * of the owner, the owner alone is in general responsible *183 for the acts of the officers and men in reference to the goods, because his possession and control of the ship for that voyage are sufficient to render him thus liable. (d) The owner of the ship is certainly liable for the acts of those whom he provides and pays, where the goods were laden on board on his credit, trusting to him as the owner of the ship, he knowing this trust, and by his words or conduct authorizing it, and so accepting the responsibility. So an owner of a ferry who has leased it and placed the lessee in possession, is not liable for loss of goods in crossing the ferry. (e) SECTION IX. WHEN THE RESPONSIBILITY ENDS. As the liability of the carrier begins with the delivery of the goods to him, so it continues until the delivery of the goods by him. For he is bound not only to carry them to their destined place, but to deliver them there to the bailor, or as the bailor may direct. (f) And this he must do within what shall be a reasonable time, judging from all the circumstances of the case; (g) and within the proper hours of business, when the (c) James v. Jones, 3 Esp. 27; Vallejo v. Wheeler, Cowp. 143; Frazer v. Marsh, 13 East, 238; Reynolds v. Toppan, 15 Mass. 370; Marquette Bank v. Stewart, 26 Mich. 83. (d) Parish v. Crawford, Stra. 1251; Emery v. Hersey, 4 Greenl. 407; McIntire v. Browne, 1 Johns, 229. (e) Ladd v. Chotard, Minor (Ala.), 366. (f) Golden v. Manning, 3 Wils. 429; s. c. 2 W. Bl. 916; Hyde v. Trent & Mersey Navigation Co. 5 T. R. 389; Wardell . Mourillyan, 2 Esp. 693; Storr v. Crow ley, McClel. & Y. 129; Gibson v. Culver, 17 Wend. 305; Fisk v. Newton, 1 Denio, 45; Ostrander v. Brown, 15 Johns. 39; Eagle v. White, 6 Whart. 505; McHenry v. Railway Co. 4 Harring. (Del.) 448; Adams v. Blankenstein, 2 Cal. 413. The bailor undertakes also that a proper person shall be at the destination of the goods, and in default thereof, the liability of the carrier, upon due notice, is discharged. Marshall, &c. v. Am. Express Co. 7 Wis. 1. (g) Hand v. Baynes, 4 Whart. 204; Favor v. Philbrick, 5 N. H. 358; Wallace v. Vigus, 4 Blackf. 260; Nettles v. Railroad Co. 7 Rich. L. 190; Raphael v. Pickford, 6 Scott, N. R. 478. 1 In the absence of a special contract, the law implies an agreement on the part of a common carrier to transport merchandise within a reasonable time, and if he negli gently omits to do so, and its market value falls, the measure of damages is the difference in its value at the time and place it ought to have been delivered, and at the time 13 193 VOL. II. |