$336. A remarkable instance of the application of this law to the case of the carrier is furnished by the case of Hadley v. Clarke.1 A vessel had taken a cargo on board, under a contract to deliver at a foreign port. Before she sailed for the port of destination, an embargo was laid upon all ships bound to that port, in consequence of which, she was obliged to suspend her voyage. She retained the cargo on board for two years, and the embargo not having been taken off, she then unloaded it. Two months afterwards, the embargo was removed, and the owner of the cargo sued the carrier for a breach of contract in not carrying the goods. The court of King's Bench, at the head of which was Lord Kenyon, held that both parties were innocent, and that whatever their decision might be, one of them must suffer; and that neither being in fault, the case must be determined upon strict principles of law. The embargo, it was admitted, was a legal interruption of the voyage, but it was held that it was only a suspension of the contract, and that when that suspension ceased, the liability to perform was revived, and that the defendant, having engaged to convey, the dangers of the seas only excepted, he could set up no other excuse. $337. POWER OF THE OWNER OF THE GOODS TO CHANGE THEIR DESTINATION. So long as the goods remain the property of the bailor, he may countermand any directions he may have given as to their consignment, and may at any time during the transit require of the carrier their redelivery to himself; and if such redelivery can be made without too much inconvenience or expense to the carrier, he will be bound to make it. "A carrier is employed as bailee of a person's goods for the purpose of obeying his directions respecting them, and the owner is entitled to receive them back at any period of the journey when they can be got at. To say that a carrier is bound to deliver goods according to the owner's first directions, is a proposition wholly unsupported, either by law or common sense. I can well understand the case of goods being placed in such a position that they cannot easily be got at, though it is usually otherwise." But if the Miss. 458; Bennett v. Byram, 38 id. 17; 18 T. R. 259. Per Martin, B., in Scothorn v. Railway Co. 8 Exch. 341; Mich. etc. R. R. v. Day, 20 Ill. 375. goods are demanded by the owner during the transit, when the carrier is willing and able to fulfill the contract on his part, the latter will be entitled to his full freight, for the whole distance to the destination to which they were originally directed, and any expense he may be put to in unloading. If this be tendered, and he refuse to restore the goods, it will amount to a conversion. 1 Violett v. Stettinius, 5 Cranch C. El. 314; Thomson v. Small, 1 Com. B. Ct. 559; Shipton v. Thornton, 9 Ad. & 328. CHAPTER VIII. DELIVERY BY THE CARRIER. 338. The last duty required of the common carrier is that of delivery. This duty the law imposes upon him as soon as he accepts the goods, and whether so expressed or not, it becomes a part of his contract. From that moment, he becomes not only responsible for their safety against all accidents, except such as are attributable to the act of God, or the public enemy, and not excepted in his contract, but he becomes, also, responsible for their proper delivery, and until this is made, his extraordinary liability continues. It therefore becomes important to ascertain how the law requires this delivery to be made, and what is necessary to constitute such a delivery as will put an end to this liability. No word has the same invariable meaning when used in different connections, and the meaning of delivery, when used in the common affairs of life, does not always determine its meaning when used as a legal term; and even when thus used, what we are to understand by it frequently varies according to the particular subject or relation to which it is applied. So the delivery required of the common carrier has, by usage and legal construction, come to have very different significations, according to the particular kind of business which he undertakes, and the various modes of conveyance which he employs in its transaction; and that which constitutes a delivery in one case, or as to one kind of carrier, will not be considered as sufficient for the purpose when performed by another, the particular nature of whose employment as carrier, or whose mode of carriage may be different. In this regard, the usages of the various kinds of carriers have conformed to the necessities of commerce, and the law, in its turn, seems to have been made to conform to such usages. $339. The law upon the subject of delivery by carriers to each other, where there are connecting lines, and it becomes necessary that one should transfer the goods to the other next succeeding, for further transportation, has already been treated.' It was thought that the subject of delivery as between such carriers would be more appropriately discussed in that connection, as upon it turns the question, so frequently of vital importance to such connecting lines, as to what is necessary to shift the liability for the safety of the goods from one to another. And as this can only be done by a delivery, it became pertinent then to enquire what, as between them, was necessary to constitute such delivery. Occasion was also then taken to give the law and authorities upon the subject of what is known as constructive delivery, as the question when and under what circumstances delivery, which was not actual or its equivalent, would be considered as sufficient to change the responsibility for the goods, is of more frequent occurrence between connecting lines of carriers than between the bailor and the carrier. Much of what has been there already stated would not be inappropriate under the head of this chapter. The rule that the carrier is required to carry and deliver the goods within a reasonable time and the excuses which he is allowed to make for delay, have been also treated of in the next preceding chapter in relation to his duties in respect to the carriage. Referring to what is there said as belonging also appropriately to the subject of this chapter, it is now proposed to treat of the duty of the carrier in respect to the delivery of the goods when they have reached their destination. $340. It may be stated, generally, that every delivery must be made to the right person, at a reasonable time, at the proper place, and in a proper manner. These are all requisites of a valid delivery, except in so far as a compliance with them may be waived by the party entitled to the goods. If tendered to the proper person at an unreasonable time, at an improper place or in an improper manner, he may still accept the goods, and by so doing, he of course waives all objections which he might have urged against their acceptance under the circumstances, and acquits the carrier of all further liability. But if he refuse to 1 Ante, § 102. 2 Jewell v. Railroad, 55 N. H. 84; Lewis v. Railroad, 11 Met. 509; Sweet v. Barney, 23 N. Y. 335; Cleveland etc. Railroad v. Sargent, 19 Ohio St. 438; receive them, for any of these reasons, and it should turn out that the carrier was in fault, such tender will not relieve him from his responsibility for the safety of the goods.1 Questions of time, place and manner, as well as of the person to whom delivery should be made, are therefore of frequent importance in deciding whether an attempted performance of his duty to deliver has relieved the carrier of his onerous charge. $341. Formerly, it was understood to be the duty of all common carriers to deliver the goods to the consignee personally, except in the case of goods brought by ships from foreign countries. In such cases, it was established by custom that the duty of the carrier only required him to carry from port to port, and that there was no obligation upon him to make a personal delivery to the consignee. But as to other carriers, it was held that, prima facie, it was their duty to make delivery directly to the person entitled thereto, at his residence or place of business.2 But it was always admitted that it was competent for the carrier to show that the uniform usage and course of the business in which he was engaged authorized a delivery in a different manner, and if he could show such a usage, of long continuance, uniformity and notoriety, he would be discharged, if he had delivered in accordance with it.8 $342. The manner in which, however, the various classes of common carriers are required to make delivery has now become so well settled, that a case could but seldom occur in which it could not be at once determined, without a resort to the proof of usage or custom. Not only have the usages of those who ply the business of carrying goods for hire for the public in the various modes and according to their various professions become Richardson v. Goddard, 23 How. 28; 1 Eagle v. White, 6 Whart. 505; Hill v. Humphreys, 5 Watts & S. 123. Gibson v. Culver, 17 Wend. 305; Eagle v. White, 6 Whart. 505; Duff v. Budd, 3 Brod. & B. 177; Birket v. Willan, 2 Barn. & Ald. 356; Storr v. Crowley, 1 McClel. & Y. 129; Hyde v. T. & M. Nav. Co. 5 T. R. 389; Bartlett v. S. B. Philadelphia, 32 Mo. 256; Hemphill v. Chenie, 6 Watts & S. 62; Schroeder v. Railroad, 5 Duer, 55; Fisk v. Newton, 1 Denio, 45. F. & M. Bank v. Cham. Trans. Co. 23 Vt. 186; Huston v. Peters, 1 Met. (Ky.) 558; Broadwell v. Butler, 6 McLean, 296; Van Santvoord v. St. John, 6 Hill, 157; Loveland v. Burke, 120 Mass. 139. |