discovered that part of it had been removed from the wharf by some one without authority from the consignees. Held, that as said loss occurred after the lapse of a reasonable time for the removal of the tin by the consignees after notice, defendant was not liable as a common carrier.

The wharf was closed by a gate through which the missing tin must have been taken; the delivery to consignees of cargo landed at defendant's wharf was under the direction of a delivery clerk, who had been instructed not to deliver goods to be taken from the wharf without taking a receipt, and it was the practice of the 'carman, when goods were being removed by a cartman, to count the load and take the cartman's receipt in a book provided for that purpose. The delivery clerk testified that when he knew the cartmen, he sometimes permitted them to take goods without receipting for them. There were no receipts taken. for the tin in question. The servants of defendant were negligent in omitting to take ordinary care in the custody of the tin in question, permitting it to be removed without taking receipts; the defendant was chargeable with such negligence.

Although the complaint was based solely on the contract of affreightment, as the case was tried upon both theories of liability without objection, it was too late to take the objection here. Tarbell v. The Royal Exchange Shipping Co., 110 N. Y. 170, rev'g 21 J. & S. 190, and judg't for pl'ff.

From opinion.-" 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. Co., 49 id. 223.

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 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 shipper'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, is not liable as carrier for the reason that it 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.

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. Liverpool Co., 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."

Carrier receiving goods addressed to points on line of connecting carrier, and also price for the same, undertakes to carry through for the price paid. If first carrier has not authority to contract for second carrier, it contracts itself for the whole line. Where contract required rail service the first carrier is liable for loss if it employs water transportation. Condict v. G. T. R. Co., 4 Lansing, 106; s. c. aff'd, 54 N. Y. 500.

Common carriers had at terminus an elevator through which they received merchandise for transportation, and also used as storehouse. Having received there grain from a connecting carrier, consigned to a point beyond the other terminus of his line, without agreement or di

rections for storage, they were held liable as carriers and not as warehousemen. Rogers v. Wheeler, 6 Lansing, 420; s. c. aff'd, 52 N. Y. 262. Defendant received box for West Virginia, C. O. D. $40, and receipted with exemption against negligence of connecting carriers, and stipulated to forward to nearest point reached by it; and, having done this, the connecting carrier took and tendered the same to consignee, who refused to accept it, and it was placed in the warehouse where it was burned. Defendant held not liable save as warehouseman, which was not found. Words "C. O. D." did not affect character of shipment. Gibson v. American Mer. Ex. Co., 1 Hun, 387.

A package sent by the defendant to be delivered C. O. D. Consignee notified of arrival but could not pay, promising to pay in a few days. Meanwhile defendant's express office was broken into and package stolen. Defendant then was warehouseman and not carrier and not negligent in not notifying consignee of the delay. Grossman v. Fargo, 6 Hun,

310.

Plaintiff sent his trunk to Watertown by defendant's express, and while yet at defendant's office the plaintiff paid the charges and receipted for the trunk and was allowed thereupon to take from the trunk some articles, though he locked it and said that he intended to leave it there until the next day. Before he called for it, the agent had delivered it to other parties, who claimed to have been sent for it. A nonsuit was improper, as it was a question for the jury whether the agent was acting within his apparent authority in making the arrangement, and whether the defendant was liable as a warehouseman.

Upon a new trial the question was properly submitted to the jury as above, and whether the defendant retained the trunk as a warehouseman or bailee, it was held that a direction to the agent not to do the act was not a defense unless it were made known to the plaintiff. A verdict for the plaintiff was sustained. Oderkirk v. Fargo &c. Ex. Co., 61 Hun. 418.

A consignment of cotton having arrived at its destination, defendant began unloading and sent the consignee notice that 100 bales were ready for delivery, who, upon receipt thereof, removed a portion of the cotton. Failure to remove the rest for three full days was an unreasonable delay and the carrier's relation to the goods was changed to warehouseman. Wynantskill Knitting Co. v. Murray, 90 Hun, 554.

Diamonds, misdirected, were received at the place designated on Saturday at 4 p. m., where they remained until 7.30 p. m. on Monday, the defendant having immediately mailed a notice of arrival to the consignee directed to the address given. A reasonable time having expire. for delivery and there having been no negligence as to its custody as

warehouseman, defendant was not liable. Laporte v. Wells &c. Co., 23 App. Div. 267.

Plaintiff shipped certain bales of hops by the defendant's line, which, upon arrival in New York, were lightered to a dock, and the consignee was notified of their arrival. He replied that they would be removed during the day, but only one load was taken, and late in the afternoon he sent word that no more would be taken that day. The captain of the lighter then covered the bales with tarpaulins to protect them, but, in consequence of a heavy storm during the night, the hops were damaged, and the consignee refused to receive the balance. Held, that the space of one day afforded a reasonable time for the removal of the bales, and that there was a constructive delivery sufficient to relieve defendant of liability as carrier; that under the circumstances it was not required to store the goods, and having used the usual means of protection, was not liable as warehouseman. Brand v. The New Jersey Steamboat Co., 10 Misc. 128. (New York Common Pleas.)

Stipulation that property not removed within 24 hours would be stored at the sole risk of the owner, referred to the termination of the carrier's liability and did not relieve it of the liability of a warehouseman for the unexplained disappearance of the goods. Aaronson v. Pennsylvania R. Co., 23 Misc. 666.

Where consignor gives notice to carrier to hold goods consignee has refused to accept, till called for, carrier becomes liable thereafter only as warehouseman. Byrne v. Fargo, 36 Misc. 543.

Where, in the absence of husband, wife directed carrier to leave the goods upon the dock, as her husband was not ready for them, carrier after a reasonable time became liable only as warehouseman. King v. New Brunswick Steamboat Co., 36 Misc. 555.

Goods injured after termination of defendant's character as common carrier may be recovered for only as for bailment to warehouseman. Ala. &c. R. Co. v. Grabfelder, 83 Ala. 200.

Reasonable time for consignee to remove goods must elapse before a company's liability for them, as carrier ceases. Three days was a reasonable time for the removal of a piano. Columbus &c. R. Co. v. Ludden, 89 Ala. 612.

Custom may determine the fact of delivery; if cars containing goods. were to be side tracked until a way bill was furnished, liability of connecting carrier would be that of a warehouseman until such way bill was given. Mount Vernon Co. v. Alabama &c. R. Co. 92 Ala. 296.

After a reasonable time has elapsed for the consignee of goods to call for them, the liability of the carrier as such ceases and he becomes liable as warehouseman. Anniston &c. R. Co. v. Ledbetter, 92 Ala. 326.

An express company, making no delivery beyond its office, notified consignee of the arrival of his goods, and received in reply a request to leave them at the office until the next day. The liability as carrier terminated and liability as warehouseman began with the notification of arrival. Southern Ex. Co. v. Holland, 109 Ala. 362.

Stipulation that liability as common carrier should cease immediately on arrival construed to mean, after a reasonable time for removal.

Six days was held to be unreasonable time for the removal of 437 bales of cotton, though the consignee had to haul it six miles to its factory, and the carrier was not liable as insurer for loss by fire. Tallassee Falls Man. Co. v. Western R., 128 Ala. 167.

Where goods remained in carrier's possession by reason of consignee's refusal to accept, on ground that they were damaged, at the time of a subsequent fire, the liability was that of a warehouseman and not a carrier. Frederick v. Louisville &c. R. Co., (Ala.) 31 South Rep. 968.

Failure of railroad company to remove cotton from compress company's warehouse is not the cause of the burning of the same, and damages therefor cannot be awarded against it. Martin v. Railway Co., 55 Ark. 510.

Defendant had been in the habit of giving notifications of arrival of goods stating that unless removed within a given time they would be stored at the owner's risk and storage therefor would be charged. Held, insufficient to show a custom continuing liability as common carrier and varying the general rule that such liability ceases on arrival of goods at destination and deposit in place of safety. Georgia &c. R. Co. v. Pound,

111 Ga. 6.

Cars containing consigned goods were side tracked on tracks of consignee for unloading and were burned. Defendant's liability as insurer had ceased when on consignee's order it had side tracked the cars. Peoria &c. Co. v. U. S. Rolling Stock Co., 136 Ill. 643.

A carrier is liable only as warehouseman for corn destroyed by floods, after it had reached its destination, and before delivery to the consignee, it being the custom for consignee to receive such a shipment on the track if he fails to designate a place of delivery. Gregg v. Illinois Cent. R. Co., 147 Ill. 550.

Liability as carrier terminated upon the arrival within the usual time for transit and deposit in a safe deposit or warehouse ready for delivery, though the consignee was not notified thereof. Illinois C. R. Co. v. Carter, 165 Ill. 570; s. c., 36 L. R. A. 527; rev'g s. c., 62 Ill. App. 618; Chicago &c. R. Co. v. Kendall, 72 Ill. App. 105.

Stipulations limiting liability not available where goods billed to one not the consignec. Chicago &c. R. Co. v. Fifth Nat. Bank, 26 Ind. App.