does the usage or custom of the port where the delivery is to be made, unless the contract provides for a different mode of delivery. A general usage or custom regulating the mode of delivery, prima facie binds the parties; it is not necessary show, in order to bind a party, that he was conversant with the custom; 2 still the carrier must prove the existence of a local usage relied upon by him, as dispensing with the usual notice to the consignee, where the goods are landed on the wharf.3

§ 621. It is the privilege of a carrier by water to deliver goods on the wharf at his usual place of discharge; his implied contract is to carry from port to port, and he is not obliged to bring his vessel to a wharf nearest or most convenient to the consignee. His actual contract may, and often does control the time and mode of the delivery, while it apportions the expense and risks attendant upon the landing of the goods."

§ 622. The consignee's liability for demurrage is based upon his duty to receive the goods brought to him by the carrier within a reasonable time; and the rules rendering him thus liable under the contract or under the custom of the port, may be received as fixing what the law regards as a reasonable time for the landing and delivery of goods. These rules may also be considered as bearing upon the carrier's duty where the consignee unreasonably delays to accept and receive the goods. As the delay does not leave him without a legal remedy and redress for the injury he sustains, the law does not justify him in landing goods. on a holiday, or perishable goods in bad weather; and it does not discharge him from the duty of taking reasonable care of ordinary goods after he has landed them, on a wharf chosen by himself, at a reasonable time and on due notice. The consignee's failure to appear does not jus

1 Atlantic Nav. Co. v. Johnson, 4 Robt., 474, 498; Gleadell v. Thompson, 56 N. Y., 194; Henshaw v. Rowland, 54 N. Y., 242.

2 Gibson v. Culver, 17 Wend., 305; Van Santvoord v. St. John, 6 Hill, 157; Farmers' & M. Bank v. Champlain Transp. Co., 16 Vt., 52; as to the general affect of a custom, see Walls v. Bailey, 49 N. Y., 464.

3 Rowland v. Milu, 2 Hilton, 1:0. For some purposes a tender of delivery has the same effect as an actual delivery; 17 Barb., 184.

4 Western Transp. Co. v. Hawley, 1 Daly, 327; Chickering v. Fowler, 4 Pick., 371; Ostrander v. Brown, 15 John., 39; Gatliff v. Bourne, 4 Bing. N. C., 314; Cope v. Cordova, 1 Rawle, 203.

5 Gleadell v. Thompson, 56 N. Y., 194. 6 Ante §§ 592, 593.

' McAndrew v. Whitlock, 2 Sweeny, 623; S. C., 52 N. Y., 40; see Russell Manuf. Co. v. New Haven Steamboat Co., 50 N. Y., 121; where the goods were landed on the fourth of July, and it was not the consignee's custom to receive goods on that day.

tify him in leaving the goods unprotected; and it does not relieve him of the duty to deliver or store the goods. The rule is different where the consignee appears and pays the freight, showing his readiness to receive the goods; or where he selects the wharf and commences to receive the goods. Here it is the duty of the consignee to protect the goods against damages from the weather; and the delivery is complete as soon as the consignee has had a reasonable time to remove them.2

An unreasonable delay by the consignee to receive the goods, after notice of their arrival, relieves the carrier of his common law liability and brings him under the usual obligation of a bailee for hire. The consignee cannot arbitrarily prolong the time during which the carrier shall remain liable as an insurer; 3 and it appears that an agreement by the carrier to retain the goods on board for some days for the accommodation of the consignee, after tendering a delivery, does not prolong his responsibility as a carrier."

§ 623. The carrier's duty to notify the consignee of the arrival of the goods, is enforced in many forms. If the consignee be absent or unknown, it is the carrier's duty to use proper and reasonable diligence to find him; and if by the exercise of such diligence the consignee cannot be found, the carrier discharges his duty by storing the goods in a proper manner. A reasonable and diligent effort to find the consignee, is a condition precedent to the carrier's right to store the goods; and the carrier's failure in this duty will render him liable for the damages resulting from his neglect, by depreciation in value, or otherwise.5 Having fulfilled his duty, the carrier may deposit the goods in a warehouse subject to his lien for freight; or he may thus deposit them, receiving his freight from the warehouseman, and free himself from all further interest in or duty in respect to the goods."

6

What is the duty of the carrier when the consignee refuses to accept the goods? It can hardly be claimed that he comes under any different or greater obligation than that which the law imposes upon him

1 Redmond v. Liverpool, N. Y. and Phila. S. Co., 46 N. Y., 578; Collins v. Burns, 63 N. Y., 1; 7 Blatchf., 186.

2 Goodwin v. Baltimore & Ohio R. R. Co., 50 N. Y., 154; 50 N. Y., 121; Richardson v. Goddard, 23 How. U. S., 28.

3 Clendaniel v. Tuckerman, 17 Barb., 184; Hedges v. Hudson River R. Co., 49 N. Y., 223.

Hathorn v. Ely, 28 N. Y., 78.

Zinn v. New Jersey Steamboat Co., 49 N. Y., 442; 45 N. Y., 13; Sherman v. Hudson River R. Co., 64 N. Y., 254; Mors-le-Blanch v. Wilson, 5 English (Moak), 286.

6 Western Trausp. Co. v. Barber, 56 N. Y., 544.

'Hamilton v. Nickerson, 11 Allen (Mass.), 308; Fish v. Newton, 1 Denio, 45.

where he fails, after using due diligence, to find the consignee. A return of the goods is not required. There is no ground on which to infer a request by the consignor to bring back the goods, since in many cases the return freight would be utterly lost; the goods being as a rule of greater value at the place of destination than at the point of departure.1 Where goods are sent by a carrier to be delivered to the consignee, the purchaser, on his paying the price of them, the carrier discharges his duty by tendering a delivery of the goods on the terms of the contract; and where the consignee promises from time to time to take and pay for the goods, the carrier's omission to notify the consignor of the delay, is not an act of negligence. And he is not liable for the goods as a carrier, after tendering a delivery of them for cash.2

§ 624. Ships and vessels transport goods from port to port, having no facilities for transferring the goods from the landing place to the consignee's warehouse or place of business. Railroads transact the carrying business under a similar limitation. They can only receive and deliver goods at fixed stations or depots, at the terminus, or along the line of the track. They provide no facilities for removing the goods from the station or depot: the law does not require it of them, and it is no part of their business to do so.

Under a statute of this State regulating the business of railroad corporations, it is required that "every such corporation shall start and run their cars for the transportation of passengers and property, at regular times to be fixed by public notice; and shall furnish sufficient accommodation for the transportation of all such passengers and property, as shall within a reasonable time previous thereto, be offered for transportation at the place of starting and at the junctions of other railroads, and at usual stopping places established for receiving and discharging way passengers and freight; and shall both transport and discharge such passengers and property at, from and to such places, on the due payment of the freight or fare legally authorized therefor; and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premises."

The statute makes railroad corporations common carriers of property, with such variations as the nature of the business requires. It imposes

1 Mors-le-Blanch v. Wilson, 5 English (Moak), 286, involving a cargo of coal carried from the Thames to Buenos Ayres; Steamboat Keystone v. Moies, 28 Mo., 243; 1 Denio, 45.

2 Weed v. Barney, 45 N. Y., 344; Grossman v. Fargo, 6 Hun, 310; Lyons v. Hill, 46 N. H., 49.

3 Laws of 1850, p. 231.

upon them the same general duties as the common law prescribes to the common carrier.1

§ 625. Where there is no custom to the contrary, carriers by water must give notice of the arrival of goods, and of their readiness to deliver. By analogy railway carriers should notify the consignee of the arrival of goods, and give him a reasonable opportunity to remove them, before they place the goods in store and assume the character of warehousemen. It is clear that a railway carrier remains liable as such, until the consignee has had a reasonable time to remove the goods; as where they arrive so late in the afternoon that the consignee has no opportunity to remove them before the close of business hours for the day, and they are burned up during the night.3 The custom of railroads in this State is to give the consignee notice that the goods are ready for delivery; and the law requires them to give the notice; it treats them like ordinary carriers, who are not bound to carry the goods to the consignee's place of business.

In some of our States a railroad carrier is not required to give the consignee notice of the arrival of goods. The decisions to that effect proceed upon two grounds; first, that the contract of the railroad does in terms bind the company to give the notice; and second, that it is the duty of the consignee to anticipate the arrival and call for the goods; that being advised of the shipment, as he is in the usual course of business, he can compute or reckon the time of the arrival with reasonable certainty. His contract is the same as that of a carrier by water; and

1 Wibert v. New York & Erie R. Co., 12 N. Y., 245.

2 Schroeder v. Hudson River R. R. Co., 5 Duer, 55, 62; Clark v. Masters, 1 Bosw., 177, 183; Rome Railway v. Sullivan, 14 Geo. R., 277; Michigan Central v. Ward, 2 Mich., 538; Browning v. Long Island R. Co., 2 Daly, 117; Hedges v. Hudson River R. Co., 6 Robt., 119; S. C., 49 N. Y., 223; Fenner v. Buffalo & State Line R. Co., 44 N. Y., 505; Sherman v. Hudson River R. Co., 64 N. Y., 254.

3 Moses v. Boston & Maine R. Co., 32 N. H., 523; Wood v. Crocker, 18 Wis., 345; see Francis v. Dubuque & Sioux City R. R. Co., 25 Iowa, 60; excusing the railway carrier under like circumstances; and 1 Gray (Mass.), 263.

Crawford v. Clark, 15 Ill., 561; Gaff v. Bloomer, 9 Penn. St., 114; 64 N. Y., 254; 49 N. Y., 223, and cases above cited.

5 Thomas v. Boston & Prov. R. Co., 10 Metc. R., 472; Norway Plains Co. v. Boston & Maine R., 1 Gray (Mass.), 263; Farmers' & M. Bank v. Champlain Transp. Co., 23 Vt., 211; Bansemer v. Toledo & Wabash R. Co., 25 Ind., 435; Francis v. Dubuque & Sioux City R. R. Co., 25 Iowa, 60; Jackson v. Sacramento Valley R. Co., 23 Cala., 268; Morris & Essex R. Co. v. Ayres, 29 N. J. Law R., 393; Skenk v. Phila. Steam P. Co., 60 Penn. St., 109; Moses v. Boston & Maine R. Co., 32 N. H. 523; Illinois R. Co. v. Friend, 64 Ill., 303; Illinois Central R. Co. v. Cobb, 64 Ill., 128; Anchor Line v. Knowles, 66 Ill., 150; Rothschilds v. Mich. C. R. Co., 69 Ill., 164, 630; Rice v. Hart, 118 Mass., 201; Stowe v. N. Y., Boston & P. R., 113 Mass., 521.

the time of the arrival by water can be ascertained beforehand with nearly the same certainty, as the arrival of freight by a railroad. As a matter of principle, it is therefore difficult to point out any true ground of discrimination between carriers by rail and carriers by water.

§ 626. It is conceded that a railroad carrier must give notice of the arrival of goods, where it is the custom to do so. On the same ground, of a well known custom, the giving of a notice may be excused; the delivery being generally regulated by the custom or course of business. A road having many way stations to which it carries goods, addressed to parties doing business some little distance therefrom, does not find it convenient to send a messenger with notice to the consignee whenever a package is received. The road cannot afford the expense of the extra service required, and the neighborhood cannot well get along without using the railroad and receiving its freight from the station. The situation and the business give rise to a custom, under which the goods addressed to persons living near it, are received at the station to await the call of the consignee, without notice. The custom becoming once established, contracts are made with reference to it, and the carrier fulfills his duty by delivering the goods or package in the usual manner; or by receiving and placing the same in his warehouse to await removal by the consignee. Under the custom the carrier becomes a warehouseman, and liable only in that capacity after the lapse of a reasonable time to remove the goods. The authorities in the different States may be reconciled on this theory of custom, as modified by contract and the varying circumstances attending the arrival and storage, or delivery of goods.3

The principle is not new. Where a carrier has a warehouse at the place of destination, in which by a usage well known among his employers, or by a special agreement, he is accustomed to store the goods for the accommodation and benefit of the owner until it is convenient for him to come and take them away, the carrier is not answerable for them as a carrier, after they are safely warehoused. His duty having ended as a

1 Chicago & N. R. Co. v. Sawyer, 69 Ill., 285; 18 American R., 613, relating to bonded goods arriving in Chicago.

2 Hurd v. Hartford & N. Y. S. Co., 40 Ct., 48; The J. Russell Manuf. Co. v. N. H. S. Co., 52 N. Y., 657; 50 N. Y., 121.

3 Ante § 625, and authorities there cited; also Tanner v. Oil Creek Railway, 53 Penn. St., 411; Price v. Powell, 3 N. Y., 323; New Albany & Salem R. Co. v. Campbell, 12 Ind., 55; Barstow v. Murison, 14 La. Ann., 335; Ganch v. Storer, 14 La. Ann., 411, 417; in respect to baggage, under a promise to keep over night; Ouimit v. Henshaw, 35 Vt., C05.

Matter of Webb, 8 Taunt. R., 443.