the shipper; at least if he be duly and reasonably notified of such preference. And where one shipper or consignee owns the whole cargo, he has, in my opinion, the same right that a charterer would have to say where the vessel shall discharge, it being, of course, a suitable place and within the limits of the port."

404. When a delivery cannot be made at destination, such prudent care of the goods and their diligent and safe delivery, with notice to the consignee at such point as best comports with the interests of the owner, according to the circumstances, will excuse the carrier, but the carrier must prove such matter of excuse.1.

Where goods were, by the bill of lading, to be landed at "Chelsea, below bridges," it was held they must be landed there from the ship if it could be done with safety to her.2

In a suit for a statutory penalty in Alabama for the landing of goods by a carrier less than ten feet above the water of a river where they were submerged and greatly injured, where it appeared that the warehouseman to whom they were consigned told the carriers they might put them there and said he was satisfied, it was held that the consignee is the agent of the owner to receive goods at the port of delivery and has authority to receive them at any particular point of that port. Where the bill of lading stipulates for delivery to "warehouse or assigns," the warehouseman at the landing is the consignee.3

§ 405. Where, after inquiry, the consignees under a bill of lading cannot be found, the duty of the carrier is to retain the goods until they are claimed, or to store them prudently for the owner. Close v. Beatty' was an action brought for not delivering goods shipped on board the defendant's vessel, to be delivered to the plaintiffs or their assigns. The defendants pleaded that they carried the goods to their destination and, there being no person on plaintiff's behalf to receive them, or to whom notice of their arrival could be given and no means of notifying the plaintiffs, who lived at a great distance, the defendants having no warehouse of their own and there not being any other ware

1 Green and Barren River Nav. Co.

v. Marshall, 48 Ind. 596.

2 Shaw v.

Gardner, 12 Gray, 488.

Winston v. Cox, 38 Ala. 268.

4 28 U. C. C. P. 470.

house in which they could store the goods, after waiting a reasonable time, landed the goods at the only wharf there, where it was usual and customary to land goods, and placed them in the care of the person in charge of the wharf, so far as he would consent to take charge of them. The plaintiffs demurred and it was held that the plea was no defence, the court saying: "We cannot agree that this was a fulfilment of their duty."

§ 406. What constitutes a delivery on a wharf was considered in the case of The Steamship Ville de Paris. A package of goods, being one of three specified in a bill of lading, was delivered over the ship's side by its employés, placed from its tackles upon a hand-truck belonging to the ship and was then wheeled by an employé of the ship to the door of a movable house which stood at a point between the ship's gangway and the inner end of the wharf. The employé stopped with the truck having the case upon it, in front of the customs inspectors, who were at the door of the house and submitted the case to their view. One of them placed upon it the letters "P. S.," with chalk and it was then wheeled away on the same truck, by the same employé of the ship, further, towards the inner end of the wharf and further from the ship than the house. So far as it appears it was never seen or heard of afterwards. Its deposit upon the wharf from the truck was not shown. The letters "P. S." indicated that it was to be taken to a public store and it was in course for the truckman to deposit it at a particular place on the wharf which the inspectors had previously designated as a place for the aggregation of such packages as were to be taken to a public store. It was not found. at that place. Search was made for it about half an hour afterwards, but it could not be found. The other two cases, which came out of the ship at other times, were wheeled separately on other trucks to the inspector's house and were there marked by them each with a cross, to denote that they were to be delivered to their consignees, were afterwards found at their proper place of deposit on the wharf (which was a different place from that where the case in question ought to have been deposited), and were received by the libellants. The wharf was

13 Benedict, 276.

exclusively occupied by the claimants and was inclosed on the inner end of it by a fence, access through which was had by gates. The court held that these facts did not constitute any delivery of the case on the wharf, or any delivery of it to the custom house authorities, so as to exonerate the vessel from her liability under the bill of lading.

407. McMaster v. Walker' was a rather curious case, involving the general subject of delivery by a carrier to a consignee. The plaintiffs sued for the value of two chains, which, together with a third chain, the defendant, as master of a steamship, had received in good order and condition as per bill of lading, and had undertaken to carry and deliver, but which he neglected and failed to do. While the said three chains were still in his charge and custody, two of them were, by the carelessness and negligence of defendant, lost overboard and sunk. The defendant pleaded full delivery. The evidence established that shortly after the arrival of the steamship a bateau was sent alongside of her, at the instance of the plaintiff, to receive the three chains in question; that for the purpose of delivery the people on board of the steamship attached the three chains together by tying the ends with rope; that by this means the chains were hoisted out of the hold, a number of feet at a time, and slackened off into the bateau alongside, and in this manner delivery was proceeded with until two of the chains and part of the third had been delivered and put on board of the bateau, when a portion of this chain got down between the steamship and the bateau, and by its weight began dragging away the other portions on board of both the steamship and the bateau, and all upon the bateau was carried out and sunk in the river, the rope gave way and the two chains remained at the bottom of the river. The owner of the bateau said that the loss was occasioned by the too great rapidity with which the people of the steamship delivered it; that they could not receive it so fast. It was held, "In this case the court here confirms the judgment of the court below. The chains being attached together by the people on board the steamship were one whole and until a delivery of the whole was made, there

1 8 Lower Can. Rep. 71.

was no delivery at all and therefore they, the people of the steamship, ought to have observed greater caution. It is moreover proved, that the ropes with which they were attached were not strong enough and therefore the people on board of the steamship ought to have taken more care and greater precaution in slackening the chain into the bateau.”

408. Where packages, identical in appearance, but containing goods of different quality or weight, are so mingled in the vessel that a wrong delivery is made to the respective consignees, the carrier is liable for any loss resulting from the mistake. In the case of the ship "Ben Adam," flour was shipped on board of a vessel by two different shippers, the flour being all similarly branded, but the two different lots having also other brands by which they were easily distinguishable. In the bills of lading given to the respective shippers the flour was entered the same. On the arrival of the vessel only a part of one consignment was delivered to the consignee, it being of a better quality than that in the other consignment, and the remainder was taken away by the consignee of the other lot, who was allowed to take it from the other dock by the delivery clerk of the vessel having charge of the delivery of the cargo. The court held that the consignee was entitled to a delivery of the identical barrels shipped and was entitled to a decree against the ship for the damages occasioned by the non-delivery to him of the whole number of barrels shipped to him, less the freight and primage.

409. Bradley v. Dunipace was a case in which a flour company shipped on a vessel of which the defendant was master, 1676 bags of rye meal, some of which weighed 12 and some 8 stone each. They were shipped all mixed together and the master knew nothing of their relative capacity. He signed two bills of lading, one for 1209 bags and one for 467 bags deliverable to order. The latter was for 467 bags rye meal, gross 35 tons 9 cwt. and at the foot of it was "contents unknown and not responsible for weight." The bags were all marked alike and no means were taken to identify by marks in the bills of lading any particular bags. There was nothing on the face of the

1 2 Benedict, 445.

2 7 H. & N. 200; 32 L. J. Exch. 22.

bills of lading from which the master could see that they were intended for different consignees. The defendant by mistake delivered to the plaintiff, the consignee of the 467 bags, a number of bags of only 8 stone. The right number was delivered, but the total weight was short several tons. It was held in the Exchequer Chamber, on appeal from the Exchequer, that the master was responsible for the deficient delivery. Where, by mistake through the error of the clerk of a carrier, two consignments were put together in one bill and both lots of stock were delivered to one shipper, whereby the other shipper lost his property, the carrier company was held liable for the value of the stock and interest. The owner of a vessel is liable for the expense of the carriage of goods from the place where the master lands them to the place of landing called for by the bill of lading of the goods.2

§ 410. Where, by the contract with a railroad, goods are to be unloaded by the consignee and this has been done, no further act remaining to be done by the carrier, nothing is wanting to constitute a delivery. A stipulation in a shipping bill that delivery of goods will be considered complete and the responsibilities of the carrier will be considered to terminate when placed in the carrier's shed or warehouse, relieves the carrier only from liability as such and not as warehousemen, where the goods have been stored and no notice of arrival given, although it was the custom of defendants to deliver goods and charge for cartage. Where an express company's receipt for goods said "to be forwarded to our agency nearest or most convenient to destination only," it was held that the word "agency" included not only the defendants' place of business, but also their servants and teams employed to deliver packages and that they were liable for the carriage and delivery of packages so far as their agency extended."

1 C. & N. W. R. R. Co. v. Ames, 51 Iowa, 338; Dennis v. C. & C. B. R. 40 Ill. 249. R. Co. ib.

2 The Port Adelaide, 38 Fed. Rep. 753; Beard v. Steele, 34 Upper Canada Q. B. 43; Richmond v. Union Steamboat Co., 87 N. Y. 240.

3 Reineman v. C. C. & B. R. R. Co.,

4 McCrosson v. Gr. Tr. Ry. Co., 23 U. C. C. P. 107.

259.

Sullivan v. Thompson, 99 Mass.