Moore, C. J.
Although the questions in this' case are fully settled by well-established rules of commercial law, and by the decisions of courts of the highest authority, as they involve points of considerable importance to the mercantile community, and those engaged .in the business of [117]*117common carriers, we have endeavored to give them the full attention which they merit, and will now, though without elaboration, indicate the conclusions at which we have arrived, and which we hold to he sustained hy elementary principles and well-considered decisions.
That the appellant was engaged in the business of a common carrier is not disputed, and that he was liable to the full extent of responsibility which the law attaches to those engaged in such business in respect to the goods, on account of which this suit is brought, is unquestionable. By the contract of affreightment of goods from port to port, the carrier stipulates not only for their safe transportation to the place of destination, hut also for their delivery on arrival to the consignee. It is not enough if he carry the goods in safety, but he must, in due time and without demand upon him, deliver them, or do that which in contemplation of law is tantamount thereto, before he is discharged from his responsibility as carrier. (2 Kent, 604; Eagle v. White, 6 Whart, 505; Gilson v. Culver, 17 Wend., 305; Erskin v. Thomas, 6 Miss., 371.)
Since one engaged in carrying goods hy water from one port to another is not ordinarily supposed to have the' means of transporting them on land, unless the contrary appear from the contract or from established usage, the customary wharf for discharge of the vessel must be regarded as the place of delivery. (Story on Bail., § 544.)
It is not to be supposed, however, unless it he clearly shown hy special agreement or well-known usage, that the mere landing of goods upon the wharf is such a delivery as will discharge the carrier. (Ostrander v. Brown, 15 Johns., 39; Hemphill v. Cherrie, 6 Watts & Serg., 62; Galloway v. Hughes, 1 Bail., 553.)
In Kohn v. Packard, 3 La., O. S., 227, it is said: “But though the contract does not require the owners of the vessel to deliver goods at any other place in the port than the usual places of discharge, it is not to he considered that [118]*118they have the right to land the goods at those places, and release themselves by doing so from all further care and responsibility, without giving notice to the person who is to receive them.”
And it is also well said: “Persons to whom goods are sent may be absent from the port when the ship reaches it; they may be disabled by sickness from attending to their business; they may not be informed of the arrival of the vessel. Under such circumstances, or many others similar that may be supposed, it would be extraordinary indeed if the carrier were authorized to throw the goods on shore, where they could not fail to be exposed to injury from the weather, and could not fail to be stolen. There could be little difference in such an act'and any other that would occasion their loss. Contracts impose on parties not merely the obligations expressed in them, but everything which, by law, equity, and custom, is considered as incidental to the particular contract, or necessary to carry it into effect.
“Delivery is not merely an incident to a contract of affreightment, it is essential to its discharge; and as there cannot be a delivery without the act of two parties, it is indispensable that the freighter should be apprized when and where the ship-owner or his agent is ready to hand over the goods.”
That he has such information, may be shown either by proof of express notice brought home to him, or by circumstantial evidence, from general custom and usage, or other facts sufficient to raise the presumption against him.
The evidence in this ease clearly establishes the fact, that the usage of the port where appellee’s goods were to be delivered agrees with the ordinary undertaking of carriers by water, and fixes the wharf where appellant’s vessels are accustomed to discharge as the place for the delivery of the goods. But whether, by the custom and usage of the trade, and from the usual arrival and departures of appellant’s vessels according to their schedule as mail-boats, or from [119]*119any other circumstances, the consignee was also bound to take notice of the time of arrival of the ship bringing his goods, is more questionable. It is a fact usually for the consideration of the jury, but its practical determination is unimportant in the present case, for, as we shall see, if appellant is exonerated from liability for the loss of the goods, it is on account of their destruction by “act of God” or “peril of the sea,” which could not be guarded against by human skill or foresight.
The goods must also he tendered in a proper time and manner, as well as place, to relieve the carrier from responsibility. Hence it must be within business hours, and under such circumstances that the consignee may receive and put his goods away consistently with their safety. And it is the duty of the" carrier to hold the goods in his custody until this may he done, and while he does so he continues to hold them under his responsibility as carrier. (Bowman v. Teale, 23 Wend., 306; Hill v. Humphreys, 5 Watts & Serg., 123.) If the consignee be absent or refuse to receive them, he should place them in a warehouse or other place of safety. (Ostander v. Brown, 15 Johns., 39; Fish v. Newton, 1 Denio, 45.)
In the application of these principles to this case, it is necessary to determine whether the appellant was justified, under the circumstances existing at the time, in placing the goods upon the wharf for the purpose of being delivered; for all the testimony in the record is to the effect, that by the usage of the trade goods were not regarded by the carrier or consignees as delivered until they were checked off by the agent of the former to the draymen. It is also beyond reasonable question, that the weather during the day on which the goods were landed was not such as was suitable for their reception by appellee, and he was, therefore, if apprized that they were upon the wharf, under no obligation to receive them. Appellant, while the goods remained upon the wharf, was still in charge of them as a [120]*120carrier, and responsible in this capacity for their safety. And if there was either negligence or the want of due foresight and prudence in placing them there under the circumstances, he was responsible for their loss, although it was subsequently occasioned by the immediate “act of God,” unless it clearly appeared they would have been destroyed by the same peril if there had been no failure of duty by the carrier. (Crosby v. Fitch, 12 Conn., 410; Williams v. Grant, 1 Conn., 487; Olur v. Maryland Insurance Co., 7 Cranch, 497; Hard v. Baynes, 4 Whart., 204.)
This question, however, was one of fact, to have been determined by the jury upon the evidence before them. (Colt v. McMichen, 4 Johns., 160; Elliott v. Rossell; 10 Johns., 1.) And we think, therefore, that the ninth instruction given by the court is properly objected to, as trenching upon the province of the jury in this particular, if it were intended to instruct the jury that appellant had been in point of fact guilty of gross negligence; and, if intended to indicate facts from which the law inferred negligence, we are of the opinion that in the manner the charge is expressed it was calculated to mislead them.
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Moore, C. J.
Although the questions in this' case are fully settled by well-established rules of commercial law, and by the decisions of courts of the highest authority, as they involve points of considerable importance to the mercantile community, and those engaged .in the business of [117]*117common carriers, we have endeavored to give them the full attention which they merit, and will now, though without elaboration, indicate the conclusions at which we have arrived, and which we hold to he sustained hy elementary principles and well-considered decisions.
That the appellant was engaged in the business of a common carrier is not disputed, and that he was liable to the full extent of responsibility which the law attaches to those engaged in such business in respect to the goods, on account of which this suit is brought, is unquestionable. By the contract of affreightment of goods from port to port, the carrier stipulates not only for their safe transportation to the place of destination, hut also for their delivery on arrival to the consignee. It is not enough if he carry the goods in safety, but he must, in due time and without demand upon him, deliver them, or do that which in contemplation of law is tantamount thereto, before he is discharged from his responsibility as carrier. (2 Kent, 604; Eagle v. White, 6 Whart, 505; Gilson v. Culver, 17 Wend., 305; Erskin v. Thomas, 6 Miss., 371.)
Since one engaged in carrying goods hy water from one port to another is not ordinarily supposed to have the' means of transporting them on land, unless the contrary appear from the contract or from established usage, the customary wharf for discharge of the vessel must be regarded as the place of delivery. (Story on Bail., § 544.)
It is not to be supposed, however, unless it he clearly shown hy special agreement or well-known usage, that the mere landing of goods upon the wharf is such a delivery as will discharge the carrier. (Ostrander v. Brown, 15 Johns., 39; Hemphill v. Cherrie, 6 Watts & Serg., 62; Galloway v. Hughes, 1 Bail., 553.)
In Kohn v. Packard, 3 La., O. S., 227, it is said: “But though the contract does not require the owners of the vessel to deliver goods at any other place in the port than the usual places of discharge, it is not to he considered that [118]*118they have the right to land the goods at those places, and release themselves by doing so from all further care and responsibility, without giving notice to the person who is to receive them.”
And it is also well said: “Persons to whom goods are sent may be absent from the port when the ship reaches it; they may be disabled by sickness from attending to their business; they may not be informed of the arrival of the vessel. Under such circumstances, or many others similar that may be supposed, it would be extraordinary indeed if the carrier were authorized to throw the goods on shore, where they could not fail to be exposed to injury from the weather, and could not fail to be stolen. There could be little difference in such an act'and any other that would occasion their loss. Contracts impose on parties not merely the obligations expressed in them, but everything which, by law, equity, and custom, is considered as incidental to the particular contract, or necessary to carry it into effect.
“Delivery is not merely an incident to a contract of affreightment, it is essential to its discharge; and as there cannot be a delivery without the act of two parties, it is indispensable that the freighter should be apprized when and where the ship-owner or his agent is ready to hand over the goods.”
That he has such information, may be shown either by proof of express notice brought home to him, or by circumstantial evidence, from general custom and usage, or other facts sufficient to raise the presumption against him.
The evidence in this ease clearly establishes the fact, that the usage of the port where appellee’s goods were to be delivered agrees with the ordinary undertaking of carriers by water, and fixes the wharf where appellant’s vessels are accustomed to discharge as the place for the delivery of the goods. But whether, by the custom and usage of the trade, and from the usual arrival and departures of appellant’s vessels according to their schedule as mail-boats, or from [119]*119any other circumstances, the consignee was also bound to take notice of the time of arrival of the ship bringing his goods, is more questionable. It is a fact usually for the consideration of the jury, but its practical determination is unimportant in the present case, for, as we shall see, if appellant is exonerated from liability for the loss of the goods, it is on account of their destruction by “act of God” or “peril of the sea,” which could not be guarded against by human skill or foresight.
The goods must also he tendered in a proper time and manner, as well as place, to relieve the carrier from responsibility. Hence it must be within business hours, and under such circumstances that the consignee may receive and put his goods away consistently with their safety. And it is the duty of the" carrier to hold the goods in his custody until this may he done, and while he does so he continues to hold them under his responsibility as carrier. (Bowman v. Teale, 23 Wend., 306; Hill v. Humphreys, 5 Watts & Serg., 123.) If the consignee be absent or refuse to receive them, he should place them in a warehouse or other place of safety. (Ostander v. Brown, 15 Johns., 39; Fish v. Newton, 1 Denio, 45.)
In the application of these principles to this case, it is necessary to determine whether the appellant was justified, under the circumstances existing at the time, in placing the goods upon the wharf for the purpose of being delivered; for all the testimony in the record is to the effect, that by the usage of the trade goods were not regarded by the carrier or consignees as delivered until they were checked off by the agent of the former to the draymen. It is also beyond reasonable question, that the weather during the day on which the goods were landed was not such as was suitable for their reception by appellee, and he was, therefore, if apprized that they were upon the wharf, under no obligation to receive them. Appellant, while the goods remained upon the wharf, was still in charge of them as a [120]*120carrier, and responsible in this capacity for their safety. And if there was either negligence or the want of due foresight and prudence in placing them there under the circumstances, he was responsible for their loss, although it was subsequently occasioned by the immediate “act of God,” unless it clearly appeared they would have been destroyed by the same peril if there had been no failure of duty by the carrier. (Crosby v. Fitch, 12 Conn., 410; Williams v. Grant, 1 Conn., 487; Olur v. Maryland Insurance Co., 7 Cranch, 497; Hard v. Baynes, 4 Whart., 204.)
This question, however, was one of fact, to have been determined by the jury upon the evidence before them. (Colt v. McMichen, 4 Johns., 160; Elliott v. Rossell; 10 Johns., 1.) And we think, therefore, that the ninth instruction given by the court is properly objected to, as trenching upon the province of the jury in this particular, if it were intended to instruct the jury that appellant had been in point of fact guilty of gross negligence; and, if intended to indicate facts from which the law inferred negligence, we are of the opinion that in the manner the charge is expressed it was calculated to mislead them.
The testimony shows that the wharf was in good condition and secure, except against inevitable accident; that the goods were protected by tarpaulins from the rain, and there was evidence tending to show that it was the general custom, from the fact that appellant’s vessels carried the mail, to discharge their freight immediately on their arrival, either in the day or night, in good or bad weather. And, while all the witnesses concurred as to the general state of the weather, yet some represent it as much more threatening than others.
It should have been left, as a question of fact, therefore, upon all the evidence in the case, to the jury to say whether there was negligence on the part of the appellant’s agents in unloading the vessel in such weather and under such circumstances as it was done. If it were not, they [121]*121should then have been directed to the same inquiry with reference to the care and diligence used for the preservation of the goods after they had been placed upon the wharf and they were being destroyed by the injury to the wharf from the vessel driven through it by the storm, and when, it seems from the testimony, a large portion of them, at least, might have been saved, if any exertion had been made for. that purpose. For, as we have said, the goods were still in appellant’s possession as a carrier; and, although they were destroyed by the immediate “ act of God,” if they might have been saved, nevertheless, by the use of foresight and prudence, after there was reason to apprehend this danger, he would not be excused.
The rule in respect to the measure' of damages was, we think, correctly laid down by the court. (Sug. on Meas. of Dam., 370; Ludwig v. Meyer, 5 Watts & Serg., 435.)
The judgment is reversed, and the cause
Remanded.