a tender of delivery, will be ineffectual in divesting the first carrier of his liability as an insurer.18 Sec. 132. (§ 103a.) Same subject-Duty when succeeding carrier neglects or refuses to receive the goods.—Where the succeeding carrier neglects or refuses for any reason or is unable to receive the goods, the first carrier must use reasonable diligence to notify the consignor or consignee, and to take reasonable care to preserve the goods from injury while awaiting instructions as to their disposition. If he fails to use reasonable diligence to notify the consignor or consignee,19 or if he leaves the goods. exposed to danger,20 he will be liable for their loss or injury. In either case his liability as carrier is not terminated. And if the first carrier, when the goods are refused by the succeeding carrier, should undertake to send them forward over the route of some other carrier, it would be his duty, as the forwarding agent of the owner, to exercise the same care in selecting a carrier or succession of carriers for the purpose as the owner, being a man of ordinary prudence, would have exercised had he been present and as fully acquainted with all the lines and connections as the first carrier.21 But where the succeeding carrier neglects or refuses to receive the goods after 18. Railway Co. v. Clayton, 173 transportation by tendering them U. S. 348. 19. Petersen v. Case, 21 Fed. 885; Lesinsky v. Great Western Dispatch, 10 Mo. App. 134; Railroad Co. v. Diether, 10 Ind. App. 206, 37 N. E. Rep. 1069, 53 Am. St. Rep. 385, citing Hutchinson on Carr; Railroad Co. v. Odill, 96 Tenn. 61, 33 S. W. Rep. 611, 54 Am. St. Rep. 820; Bird v. Railway Co., 99 Tenn. 719, 42 S. W. Rep. 451, 63 Am. St. Rep. 856. The general rule of law is, that an intermediate carrier, who receives goods to be carried to a point short of their final destination, is bound only to use reasonable diligence to secure further to the connecting line, and, if acceptance be refused, to notify the consignor or consignee, without unreasonable delay, and store, or otherwise take care of them while awaiting instructions. Having done this, his liability as a carrier will cease and the liability of a warehouseman will be substituted. Buston v. The Railroad, 119 Fed. 808, 56 C. C. A. 320, affirming, 116 Fed. 235. 20. Goold v. Chapin, 20 N. Y. 259; Miller v. Navigation Co., 10 N. Y. 431. 21. Railroad Co. v. Duncan & Orr, 137 Ala. 446, 34 So. Rep. 988. a proper tender of them has been made, a failure to give notice of such refusal to the consignor or consignee will not be ground for the recovery of damages when notice would not have averted the loss, and the parties have consequently suffered no injury by reason of the failure to give it ;22 nor should notice be required where because of the perishable nature of the goods, to give it would not be practicable on account of the fact that a delay might cause their injury or destruction.23 Where a succeeding carrier refused to accept goods intended for him, and the first carrier stored them in his warehouse, but did not give either the consignor or the consignee notice of the second carrier's refusal of them until about three months after they were shipped and six weeks after their non-arrival had been reported to him, after which time the consignee refused to accept them as the season for their salability had passed, and they had greatly declined in value, it was held that the first carrier was liable for the injury so occasioned.2+ So where goods were delivered to a carrier by water to be forwarded over several connecting lines, and at the end of its own route it deposited them upon a float of its own, lying in a basin, which was prepared and kept by it for the purpose of delivering freight to the connecting carrier, and though it gave notice to such connecting carrier on three successive days that the goods were on the float for it, accompanied by a request to come and take them away, yet permitted the goods to remain for three days on the float, and on the afternoon of the third day the float and goods were destroyed by fire not attributable to the negligence of the carrier, it was held that his liability as common carrier still continued when the goods were burned.25 22. Regan v. The Railway, 61 N. H. 579. 23. Railroad Co. v. Duncan & Orr, supra. 259; Miller v. Navigation Co., 10 N. Y. 431. In Lesinsky v. Western Dispatch, 10 Mo. App. 134, supra, 24. Lesinsky บ. Western Dis- Thompson, J., said: "By acceptpatch, 10 Mo. App. 134. ing the plaintiff's goods, directed 25. Goold r. Chapin, 20 N. Y. to a point beyond the termination Sec. 133. (§ 103b.) How duty to make delivery to a succeeding carrier affected by usage.-The general obligation created by law in respect to the mode of making delivery to a connecting carrier may be controlled by a generally estab of its own line, and consigned to the care of a carrier whose line connected with its line, the defendant assumed the duty of delivering them to such connecting carrier. Rawson v. Holland, 59 N. Y. 611. Delivery to the connect ing carrier in this case being impossible by reason of the fact that such carrier refused to receive the goods, did the defendant incur liability to the plaintiff for failing to give notice of that fact? "It is familiar law that the liability of a carrier does not cease till he has delivered the goods to the consignee, or made a reasonable attempt to deliver them. "Where his own route extends to the place of ultimate destination of the goods, and the consignee refuses to receive the goods, he ordinarily discharges himself from liability by storing the goods safely without giving notice to the consignor, although there are some cases which hold that such notice must be given. The reason why such notice is not ordinarily required seems to be that the consignce is presumptively the owner of the goods, the consignor the agent of the owner for the purpose of shipment, and the carrier, in like manner, the agent of the owner. Hutch. on Car. § 108; Briggs r. Railroad Co., 6 Allen, 246. It is, therefore, a case where an agent tenders performance of his contract to his principal, and the latter refuses, in which case there seems to be no good reason why the agent should be held bound to notify a third person of that fact. But the reason of this rule does not apply to the case where the carrier undertakes to transport goods over his own line and deliver them te a connecting carrier to complete the transit. Here, the goods having passed wholly out of sight of both the consignor and consignee, if, from any circumstance, deliv ery to the succeeding carrier be comes impossible, the former carrier is under an obvious duty to notify either the consignor or the consignee, unless it is impracticable to do so. Where notice may be readily sent by letter or by telegram, he is, on principle, guilty of a clear breach of duty if he neglects to send it, and there are cases which so hold. Convoy's Wheat, 3 Wall. 225; Railroad Co. v. Campbell, 7 Heisk. 253, 261. "In all of these cases the carrier is bound to do what, under the circumstances, is reasonable. Hudson v. Baxendale, 2 Hurl. & N. 575. Where, as in this case, the good: have passed out of the hands and out of the sight both of the con signor and the consignee, and are interrupted in their transit by a circumstance unknown to either. but known to the carrier, it canno for a moment be argued that the carrier does what is reasonable by housing the goods, giving notice to no one, and losing all knowledge of them himself. No more lished and uniform usage.26 In Rawson v. Holland,27 Andrews, J., said: "It is said in Van Santvoord v. St. John,2s that a carrier who receives a box marked in a particular way, without any directions except such as may be inferred from the marks themselves, has a right to presume that the consignor intends that he shall transport and dispose of them in the usual and customary way. That was the case of a carrier by towboats on the Hudson river who received a package marked 'J. Petrie, Little Falls, Herkimer county,' and it was held that the first carrier was justified in delivering it at the end of his route to a succeeding carrier by canal, and was discharged thereby from further responsibility; it being shown that there was a general, established and uniform usage in the business that such delivery might be made; and it was also held that the consignor was bound by it whether he knew it or not." But if a usage or custom be relied on to affect or control the general obligation created by law, and it appears that such usage or custom lacks the essential elements of a valid usage, namely, that it was not so general, established and uniform that the parties could reasonably be presumed to have contracted with reference to it, the general obligation created by law and not the usage will control. Thus a custom of a particular road that goods destined to points on another which convincing argument against such a conclusion could be suggested than the circumstances of this case. Here were goods of the value of several hundred dollars, interrupted in their transit at a point remote from consignor and consignee. A postal card costing a cent, and a few scratches of a pen by a clerk, would have notified either of this fact. For nearly three months a knowledge of their whereabouts was completely lost to the consignor, the consignee and the defendant. In the meantime the season during which they were salable had passed, and they were, for this reason, greatly depreciated in value. This seems to make out a clear case for the recovery of damages. But if, in addition to this, the circumstances which obstructed the goods in their transit existed for six days only after they arrived at the end of its line, and the defendant knew or the fact of the obstruction being removed, then the failure of duty on its part is still more clear." 26. Gibson v. Culver, 17 Wend. 305. 27. 59 N. Y. 618. connected with it should be detained until notice was given to the consignees and their direction taken as to sending them by that road will not relieve the first road from its obligation to deliver, and it will be liable if the goods are lost during the delay. "The proof," says Andrews, J.,29 "falls far short of establishing a custom superseding the general obligation of the defendant to make delivery of the goods to the next carrier. At most it was a usage recently established and confined to the particular business of the defendant at a particular place, not known to the plaintiffs, and which they were not bound to ascertain. The usage relied upon in this case lacks the essential elements of a valid usage. It is neither general, established, uniform or continuous. It would be unreasonable to give it effect in this case to defeat a recovery by the plaintiffs. The parties did not make their contract in reference to it, and cannot be presumed to have done so. It is the general rule that a local usage must be shown to have been known to a party before he will be held to be bound by it.'30 And in The Railway Co. v. Hassell,31 where a custom was observed between two carriers of holding goods in transit whenever a controversy arose between them over the proper amount of freight charges tendered by one to the other until the charges were adjusted or corrected, it was held that such a private understanding between the two companies, not amounting to a general, established and uniform custom in the business, could not operate to relieve the carrier whose neglect to promptly forward the goods had occasioned damage, from the obligation imposed by law to exercise reasonable diligence in sending the goods forward, and that he was liable for any damage arising from a delay thus caused. Sec. 134. ($104.) Agreements between carriers not binding on owner. As between the connecting carriers themselves it is undoubtedly true that by express agreement, by usage 29. Rawson v. Holland, 59 N. Y. 618 31. 23 Tex. Civ. App. 681, 58 S. W. Rep. 54, citing Hutchinson on 30 See also, Dunham v. Rail- Carr. rcad 70 Me. 164. |