Stone v. Waitt

Tenney. J.

The risk of a common carrier terminates as soon as the goods have arrived at their place of destination, and are deposited there, and no further duty remains to be done under the contract to carry them. Story on Bailments, § 538. If the owner of the goods, by the contract with the carrier waive any of his rights touching the delivery, so far as the waiver extends, the carrier will be relieved of his liability. This is the law, notwithstanding any custom to the contrary. If a man has no warehouse of his own, and directs *412 the carrier to leave the goods at the wagon office, till he should find it convenient to remove, or to sell them, the carrier’s responsibility will terminate with the deposit. Ibid, § 540, 541. When the transit is ended, and the delivery is either completed or waived by the owner, then the responsibility of the carrier ceases. Ibid, 542.

If the consignee take charge of the goods before they have arrived at the extreme or ultimate place of delivery, the carrier’s risk will then terminate. Ibid, § 542; 2 Kent’s Com. § 40, p. 469; Strong v. Natally, 4 Bos. & Pul. 16.

When the same person is not only master of the vessel, but also supercargo, he acts in two distinct characters. In the storage of the cargo and in the navigation of the vessel, and in the conveyance and the delivery of the cargo, he acts as the agent of the owners. But in the sale of the goods consigned to him, and accounting for the proceeds, he is not their agent, but the agent of the consignor. “ After the arrival of the ship at the port of destination, he delivers the cargo as master, and receives it as consignee ; all his authority as master is then determined.” 2 Livermore, 215; Williams v. Nichols, 13 Wend. 58 . These different characters in which the same person may act, are to be treated as distinct, as if the acts appropriate to each character, were confided to different persons. Story’s Agency, sect. 36.

In the one case he is a common carrier, in the other a factor, and for any want of fidelity in that trust, his employers have the same remedies against him, that they would have against any other person and no other. The Waldo, Davee’s R. 161.

It is insisted by the plaintiffs that the duties of the defendant, as a common carrier, had not terminated, when the hay was injured by the rain after its arrival in Boston ; that it was incumbent on him, to have landed and to have stored it.

The facts of the case show no custom, on the subject of landing or storing hay, after it reaches the place of destination, where the master of the vessel is the consignee for the purposes of sale. The hay in this case “ was shipped on board the schooner Echo, of which the defendant was master, to *413 be carried to Boston, and consigned, or entrusted to the defendant as master of said vessel, for sale.” It does not appear that the defendant had any warehouse, or- other building in which he was accustomed to store goods. The conduct of the parties shows, if it was the right of the shipper to have his goods landed and stored, that in this instance that right was waived by the plaintiffs. By the express agreement of the parties, the hay was carried upon deck, and was thereby in every respect as much exposed to rains on the voyage, as after its arrival.

The master continued to have charge of the vessel as master, after she arrived in Boston, and it must have been expected that a sale might be so speedy, that the storage would be an expense and trouble not anticipated under the circumstances: the landing of the goods would be no security from the weather, if they were not stored, and it could not have been designed, when they were to be in charge of the defendant, after he had fully performed all his duties as carrier, that they should be left upon the wharf, before their sale.

The conduct of the defendant shows, that he entered upon his duties as factor on Friday morning, the vessel having arrived on the preceding night; and he may be considered as having received the hay in his character of consignee from the time of his arrival. No complaint was made by one of the plaintiffs, who was informed by the defendant during the storm, that he had been unable to effect a sale, and was inquired of what shotdd be done with the hay, indicative of an idea, that the contract as master of the vessel had not been fulfilled. Under all the facts of the case, the defendant is not shown to have neglected his duties as a common carrier.

Is he liable as consignee of the goods ?

Factors are generally held liable for ordinary diligence. And if they act in good faith, and with reasonable diligence, they are protected. Story on Bailments, sect. 455.

If it was the expectation of the plaintiffs that sale of the hay should be made before it should be landed, so that it could be carried from the wharf by the purchaser, there has been no want of ordinary care imputable to him as consignee.

*414 After all reasonable endeavors to make sale of the hay without success, and the time having arrived, when- it became necessary that the defendant should depart with his vessel, it was his privilege to leave the hay in the hands of some suitable person for sale ; he placed it in the hands of responsible commission merchants for that purpose, after that, he was relieved from further responsibility in relation to the sale ; the persons with whom it was entrusted, became the agents of the plaintiffs, and were accountable to them. The Waldo, before cited; Lawler v. Keaquick, 1 Johns. Cas. 174 ; Day v. Noble, 2 Pick. 615 .

The defendant received the sum of $40,75 as avails of the hay; and paid the sum of $5, for expenses in his attempts to malee sale of it, before it was delivered to the commission merchants. Not having rendered his account to the plaintiffs of his doings, while he had charge of the hay, nor informed them therein that he held in his hands a balance of the proceeds, which came to his possession, he was liable. He was entitled to deduct the expenses, which he had incurred. He offered to be defaulted for a sum as large as the plaintiffs are entitled to recover, and costs are to be allowed him, from the time, that the offer was filed. These costs are to be set off against the sum offered, and judgment entered for the balance, in favor of the plaintiffs, with costs to the time, when the offer to be defaulted was entered.