§ 938. The carrier's risk terminates as soon as the goods are deposited at their proper place of destination;3 or rather as soon as the owner has had a reasonable time to remove them.4 And such place may be determined by usage, in cases where no special orders are given.5 But it has been thought that, from their pecuto person or place, it must be complied with, or the carrier will be responsible;1 but otherwise, there must be a personal delivery to the- owner, unless there be some usage or custom to the contrary.2 So long, however, as the earner retains the possession of the goods, or is to perform any further duty, he is liable. The fact, that the vehicle in which he carries breaks down, or by any accident becomes unfitted for carriage, does not, in the least, absolve him from all the liabilities of a common carrier, but he is bound to procure another conveyance, and to take charge of the goods in the intermediate time; and his responsibility remains until the goods arrive at their terminus and are delivered.8 If, therefore, after such an accident the goods be embezzled, or lost by theft or robbery, the carrier is liable.4 But wherever the owner receives them into his exclusive custody, the responsibility of the carrier is terminated. So when goods are placed on board a lighter, after arrival, and are to be carried to the wharf by the carrier, he is responsible; but if the owner undertake to carry them to the wharf, the owner is responsible.1 A delivery on the usual wharf will be a delivery, so as to avoid the responsibility of the carrier; provided that the consignee receive due and reasonable notice before such delivery is made, so as to enable him to remove the goods, or to take charge of them.2 If, however, he be unable, or refuse to receive them, the carrier cannot leave them on the wharf, but must take care of them for him.8 Where the wharfinger or warehouseman has accepted the custody of the goods, the carrier's responsibility ceases, as soon as the tackle of the other party is affixed to them.4 But if the carrier undertake to land the goods, or hoist them into a warehouse, and the tackle break, he would be liable.5
1 Camden & Amboy Railroad Co. v. Belknap, 21 Wend. 354.
2 Cobban v. Downe, 5 Esp. 41; Morse v. Slue, 1 Vent. 190, 238; 2 Ld. Raym. 919.
3 See Graff v. Bloomer, 9 Barr, 114; Smith v. Nashua & Lowell Railroad, 7 Fost 86.
4 Louisville, C. & L. R. Co. v. Mahan, 8 Bush, 184 (1870); Jefferson-ville R. Co. v. Cleveland, 2 Bush, 473. See Hedges v. Hudson River R. Co., 49 N. Y. 223 (1872); Russell Manuf. Co. v. New Haven Steamboat Co., 50 N. Y. 121 (1872), a case of goods received on a holiday; Goodwin v. Boston & A. R. Co., Ib., 154; Pinney v. First Div. St. Paul & P. R. Co, 19 Minn. 251 (1872).
5 Merriam v. Hartford & New Haven Railroad Co., 20 Conn. 354. In this ease, Storrs, J., said: "The plaintiff claimed to have proved, on the trial, that the property, to recover the value of which this action was brought, was delivered by him, to be transported by the defendants, as common carriers, from the city of New York to Meriden, on a dock in said city, which was the private dock of the defendants, and in their exclusive use, for the purpose of receiving property to be transported by them; and that it was delivered there, in the usual and accustomed manner in which the defendants received property for transportation; and the court charged the jury that such delivery at said dock was a good delivery to the defendants, to render them liable for the loss of the property, although neither they nor their agents were otherwise notified of such delivery. The defendants insist that they were not chargeable for it, unless they had express or actual notice of such delivery; and that the jury should have been so instructed.
"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 liar facilities for doing so, express companies are bound to make personal delivery-.1 If there be a special direction, with regard 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 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 property, 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, if 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.