§ 943. Where the common carrier is a railway company, it is said that the presumption created by usage is that the goods are only to be carried to the platform or warehouse of the company and there discharged, and that if the consignee is not there to take them, and they are stored in his behalf (as it is the carrier's duty to do), the company are only liable as warehousemen.3 This is, however, only a presumption, and may be shown to be false. So, where the carriage is by ship or steamboat, although the general rule is, that the delivery must be to the consignee personally, yet a delivery on the wharf would generally be held sufficient to avoid liability as carrier, whenever it was justified by the custom and usage of the place,4 and not otherwise.6 In cases of transportation by railway, steamer, or ship, it would seem to be necessary for the carrier to give notice to the consignee of the arrival of the goods, and he could not, without giving notice and allowing reasonable time to the consignee, leave the goods uncared for.1 Whether, however, after discharging goods at the terminus or on the wharf, his liability would be that of a common carrier or only that of a warehouseman or wharfinger, in case he did not give notice, seems not to be settled. According to general principles he would be liable as carrier, unless he gave notice; but his contract may be varied by usage and custom, and in a late case a strong intimation of opinion has been given, that no notice would be necessary to terminate a railway company's liability as carrier, but after discharging the goods, its responsibility would be merely that of warehousemen, to take care of the goods, and store them properly.2
1 Hyde v. Trent & Mersey Nav. Co., 5 T. R. 389; Golden v. Manning, 3 Wils. 429; Stephenson v. Hart, 4 Bing. 476; Garnett v. Willan, 5 B. & Al. 56; Gibson v. Culver, 17 Wend. 305; Eagle v. White, 6 Whart. 505; Humphreys v. Reed, 6 Whart. 435.
2 Chickering v. Fowler, 4 Pick. 371; Ackley v. Kellogg, 8 Cow. 223.
3 Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 270; Thomas v. Boston & Providence Railroad Co., 10 Met. 472. See Klein v. Hamburg Packet Co., 3 Daly, 390; Torpey v. Williams, ib. 162. But see contra, Moses v. Boston & Maine Railroad, 32 N. H. 523.
4 Cope v. Cordova, 1 Rawle, 203; Chickering v. Fowler, 4 Pick. 371; Farmers' & Mechanics1 Bank v. Champlain Trans. Co., 23 Vt. 212; Hyde v. Trent & Mersey Navigation Co., 5 T. R. 399; Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 270. But see Ostrander v. Brown, 15 Johns. 39. The usage is not so on the Ohio River. See Hemphill v. Chenie, 6 Watts & Serg. 62.
5 Galloway v. Hughes, 1 Bailey, 553; Blin v. Mayo, 10 Vt. 56; Albatross v. Wayne, 16 Ohio, 513.
1 Fisk v. Newton, 1 Denio, 45; Pickett v. Downer, 4 Vt. 21; Gibson v. Culver, 17 Wend. 305; Pacard v. Bordier, 2 Kent, Comm. (6th Am. ed.) 605, note f; Cope v. Cordova, 1 Rawle, 203; Quiggin v. Duff, 1 M. & W. 174; Packard v. Getman, 6 Cow. 757.
2 Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 270. In this case, Mr. Chief Justice Shaw said: "It was argued in the present case, that the railroad company are responsible as common carriers of goods, until they have given notice to consignees of the arrival of goods. The court are strongly inclined to the opinion, that in regard to the transportation of goods by railroad, as the business is generally conducted in this country, this rule does not apply. The immediate and safe storage of the goods on arrival, in warehouses provided by the railroad company, and without additional expense, seems to be a substitute better adapted to the convenience of both parties. The arrivals of goods, at the larger places to which goods are thus sent, are so numerous, frequent, and various in kind, that it would be nearly impossible to send special notice to each consignee of each parcel of goods or single article forwarded by the trains. We doubt whether this is conformable to usage; but perhaps we have not facts enough disclosed in this case to warrant an opinion on that question. As far as the facts on this point do appear, it would seem probable that persons frequently forwarding goods have a general agent, who is permitted to inspect the way-bills, ascertain what goods are received for his employers, and take them as soon as convenient after their arrival. It also seems to be the practice for persons forwarding goods to give notice by letter, and inclose the railroad receipt, in the nature of a bill of lading, to a consignee or agent, to warn him to be ready to receive them. From the two specimens of the form of receipt given by these companies, produced in the present case, we should doubt whether the name of any consignee or agent is usually specified in the receipt and on the way-bill. The course seems to be, to specify the marks and numbers, so that the goods may be identified by inspection and comparison with the way-bill. If it is not usual to specify the name of a consignee in the waybill, as well as on the receipt, it would be impossible for the corporation to continues for a reasonable time after giving such notice.1 But all agree that the carrier's liability as such does not terminate until the goods have been properly stored in a safe and proper warehouse.2
§ 944. There seem to be three distinct views entertained by different courts on the subject of the preceding sections; give notice of the arrival of each article and parcel of goods. In the two receipts produced in this case, which are printed forms, a blank is left for the name of a consignee, but it is not filled, and no consignee in either case is named. The legal effect of such a receipt and promise to deliver, no doubt, is, to deliver to the consignor or his order. If this is the usual or frequent course, it is manifest that it would be impossible to give notice to any consignee; the consignor is prima facie the party to receive, and he has all the notice he can have. But we have thought it unnecessary to give a more decisive opinion on this point, for the reason, already apparent, that in these receipts no consignee was named; and for another, equally conclusive, that Ames, the plaintiff's authorized agent, had actual notice of the arrival of both parcels of goods." See also Farmers' & Mechanics' Bank v. Champlain Trans. Co., 23 Vt. 187. But see Miller v. The Steam Navigation Co., 13 Barb. 363.. In this case, Welles, J., said: "It is contended, on behalf of the appellants, that upon the arrival of the barge at the pier at Albany, their relation became changed from common carriers to that of warehousemen of the goods in question, and that as there is no negligence imputed to them, and as warehousemen are only liable in case of negligence, no recovery can be had against them. The contract of shipment was to deliver the goods to F. M. Adams, the agent, at Albany, of the Rochester City Line, which line the respondent had selected for their transportation west of Albany; and, in my judgment, the appellants continued to hold the relation of common carriers in reference to the goods, until they were so delivered, or until a reasonable time should have elapsed after notice to the agent of their arrival, and an offer to deliver. We so ruled on a similar question in the case of Goold and others v. Chapin & Mallory, 10 Barb. 612. The appellants had no right to warehouse the goods, unless in case of the absence of the person authorized to receive them, or his refusal or neglect to receive them after reasonable notice. If the contract was to deliver them to Adams, they had no more right to store them at Albany than at New York, or any intermediate point on the river, unless for one of the reasons mentioned. The legal obligations and liabilities of the appellants as common carriers, were fastened upon them from the time they received the goods in New York, until they had performed the service which the transaction implied, and delivered them agreeably to their contract, unless presented by the conduct of the owner or his agents. There does not appear to have been any notice given to Adams of the arrival of the goods; no offer to deliver them to him; no act on the part of the appellants, indicating that they desired or intended to change their character from common carriers to that of warehousemen. Adams went on board the barge some two or three hours after its arrival, and saw the trip-book. He testifies that he had a boat near by, ready to take the goods from the float, upon which, as appears by the testimony of the captain of the barge, it was the invariable custom of the neither one of which, at present, can be fairly termed the prevailing doctrine. The first is that when the transit is ended, and the goods have been properly stored in the carrier's warehouse, ready for delivery to the consignee, the carrier's liability, as such, instantly ceases, and his liability as warehouseman immediately commences.1 The second is that the liability as carrier continues in such cases, until the consignee has had a reasonable time to remove the goods from the warehouse, after their arrival, in the ordinary course of business, although it is not the carrier's duty to notify the consignee of such arrival.2 The third view is that it is the duty of the carrier to notify the consignee of the arrival of the goods, and his liability as carrier defendants to ship goods brought by them up the river, before they were delivered on board the canal boats. The goods in question were in the process of being passed from the barge to the float, and before it was completed, and while a portion of them was in the float and the residue in the barge, the fire drove away the hands engaged, and destroyed both the barge and float, with all the goods they contained. Under these circumstances, it is preposterous to contend that there was any thing like an attempt or intention to store the goods; or any occasion or justification for storing them, if such had been the intention. On the contrary, the appellants were merely preparing and getting ready to deliver them, but had not commenced the delivery. They were not in fact ready or in a situation to commence the delivery. The goods were still in their possession as common carriers, to all intents and purposes." See also Smith v. Nashua & Lowell Railroad Co., 7 Fost. 86; Rowe v. Pickford, 8 Taunt. 83.