of the goods from the defendant which had thus deposited the goods, and that it could not therefore be made to account to the owner for their subsequent loss by fire. And in Pratt v. The Railway Company,38 in which the facts were similar, the same conclusion was reached by the supreme court of the United States. But in both these cases the circumstances seemed to be regarded as constituting an actual delivery to the succeeding carrier, the agent of such carrier in the latter case having actual knowledge of the arrival of goods and of their having been deposited in the depot for further carriage by his road. To the same effect is the case of Washburn Crosby Co. v. The Railroad.39 It there appeared that a railroad company had a pier at the end of its line, and that a steamship company which formed a connection with the railroad company at that point used and occupied a portion of the pier for the purpose of receiving freight deposited upon it by the railroad company and intended for further transportation on the steamship company's vessels. It also appeared that unloading freight in such manner was regarded by both companies as a delivery to the steamship company. A quantity of flour which the railroad company had unloaded on the pier to await transportation by the steamship company was destroyed by fire. Suit was brought against the railroad company for its value, and the question was whether the facts showed a delivery. In deciding the question, Holmes, C. J., said: "If it was understood in advance that as soon as goods were left on the wharf by the railroad company, the steamship company was free to take them at its pleasure, and that it was expected to take notice of their presence and to assume responsibility for them. without more notification, the deposit of the flour on the wharf was an actual delivery without more." It was held, therefore, that a delivery had been shown, and that the railroad company was not liable.

Sec. 138. (§ 107.) Owner may recover for goods constructively delivered.-But it by no means follows that the owner of

38. 95 U. S. 43.

590. See also, Truax v. Railroad

39. 180 Mass. 252, 62 N. E. Rep. Co., 3 Houst. 233, 251.

the goods may not recover for the loss from the connecting carrier to whom they have been only constructively delivered. He is not obliged to look to him, and may pursue another in whom was the last actual possession. But if, as between the carriers themselves, the one to whom delivery has been constructively made for further carriage is the responsible party, there is no reason why he should not be liable also to the owner of the goods. Thus where goods were carried to the end of the first carrier's route and there placed in a warehouse to be farther transported by the defendants, to whom notice was given of the arrival of the goods and by whom they were entered upon their books for transportation, it being the course of business for the defendants to take goods deposited in the warehouse for them with notice without further delivery, it was held that they had become liable for the loss of the goods by an accidental fire after they had remained in the warehouse eight days awaiting removal. "In the present case," said the court, "the flour was not only deposited in the usual place, but notice was given to the defendants, who entered it upon their books. From this time it must be held to have been in the possession of the defendants as common carriers. "'40

Sec. 139. (§ 108.) First carrier as forwarding agent for owner. When goods are delivered to the carrier for the purpose of being carried to a point beyond the terminus of its route, and for that purpose to be delivered by him to a connecting carrier in order to continue the carriage, or where it becomes necessary for that purpose to make successive deliveries from one to another upon a continuous line or succession of carriers, the first and each succeeding carrier becomes the agent of the owner of the goods to make delivery to the next carrier; and it is incumbent upon him to do so not only to relieve himself from further liability, but because it is a duty which he owes to the owner, and which he has assumed with the acceptance of the goods. He is the party in charge of

40. Etna Ins. Co. v. Wheeler, 49 N. Y. 616.

them, and the only one with whom the succeeding carrier can make the necessary arrangements, and stands towards them for this purpose in the position of an owner.41 Therefore, where there was a failure to deliver to such succeeding carrier, because one of his rules was that he would not receive goods for carriage without a written contract restricting his liability, which the carrier having the goods in possession did not feel authorized to accept, and therefore kept them in his warehouse for twenty days without offering them to the next carrier, or giving him notice of their arrival, and whilst he awaited directions from the consignee who had been informed of the fact, the goods were destroyed by fire, it was held that he should have tendered them to the next succeeding carrier, and that he would have been justified in delivering the goods and accepting on behalf of their owners the usual terms required by the succeeding carrier; and that not having done so, he continued to hold the goods as a carrier, and was liable for their loss.42 In such cases, it is said that the owner constitutes the carrier his forwarding agent to deliver to the succeeding carrier, and becomes himself responsible for his acts in the execution of the agency.4

43

Sec. 140. Same subject-Duty of first carrier to forward shipping directions. If the first carrier receives the goods from the owner with instructions or directions as to their

41. Nelson v. The Railroad, 48 N. Y. 507; Squire v. The Railroad, 98 Mass. 240; York Co. v. Central R. R., 3 Wall. 113; Railrcad Co. v. Foulks, 191 Ill. 57, 60 N. E. Rep. 890, affirming 92 Ill. App. 391, citing Hutchinson on Carr.; Taylor v. Railroad Co., 87 Me. 299, 32 Atl. Rep. 905.

of the owner; each exercises an independent employment as a contractor with the owner, and is responsible for its own negligence, but it cannot make the owner responsible for the negligence of a connecting road. To like effect, see Dunham v. Boston, etc., R. Co., 70 Me. 164. A carrier acts as

42. Rawson v. Holland, 59 N. Y. agent of the owner in turning the

611.

43. Briggs v. The Railroad, 6 Allen, 246. In Sherman v. Hudson R. R. Co., 64 N. Y. 255, it is said that neither company is an agent

goods over to the connecting carrier, and not as agent of the lat ter. Marquette R. R. v. Kirkwood, 45 Mich. 51.

ultimate delivery or disposition, or relative to their safe and seasonable delivery at destination, it is his duty as the forwarding agent of the owner to see that such instructions are given to the succeeding carrier to whom he delivers the goods for further transportation. Thus if the first carrier directs the goods to a destination other than the one requested by the owner, and in consequence the shipment is delayed, he will be liable although he has provided in his contract that he will assume no liability for loss or damage beyond the terminus of his own line. 45 So if he misdirects the goods, and they are forwarded to a wrong destination and thereby lost, or if, without sufficient cause, he selects an unusual or circuitous route whereby the freight charges are greater than they would have been had he selected the ordinary and more direct route, he, and not the succeeding carrier will be responsible. And under such circumstances, the connecting carrier is not required to delay the reception or forwarding of the goods until he can ascertain whether or not the owner and the first carrier have stipulated the terms of shipment, and if so, what those terms are and whether the preceding carrier has complied with them; or, if no terms are stipulated, whether the preceding carrier has in all things faithfully and honestly discharged his duty as the owner's forwarding agent.46 And it has been held that if the first carrier by his contract undertakes to forward. the goods over several connecting lines, it is his duty, although he has expressly limited his liability as a common carrier to his own route, to see that each successive carrier is notified of the conditions under which the shipment is made.47

Sec. 141. ($109.) Carrier cannot become warehouseman of the goods while they are in transit.-No higher degree of re

44. North v. Transportation Co., 146 Mass. 315; Colfax Mountain Fruit Co. v. The Railroad, 118 Cal. 648, 46 Pac. Rep. 668; s. c. 50 Pac. Rep. 775.

45. Railroad Co. v. Southern Seating & Cabinet Co., 104 Tenn.

568, 58 S. W. Rep. 303, 78 Am. St. Rep. 933, 50 L. R. A. 729.

46. Glover . The Railroad, 95 Mo. App. 369, 69 S. W. Rep. 599, citing Hutchinson on Carr.

47. Colfax Mountain Fruit Co. v. The Railroad, supra.

sponsibility, of course, rests upon the carrier while the goods are en route than when they have arrived at destination, so long as he stands to them in the relation of carrier. But when the question occurs whether by his course of dealing with them he has divested himself of that responsible relation, somewhat different considerations arise and somewhat different rules are to be applied when the goods are in itinere, from those which govern when the transit is brought to an end by their arrival at destination. As has been said, "the owner loses sight of his goods when he delivers them to the first carrier and has no means of learning their whereabouts till he or the consignee is informed of their arrival at destination. At each successive point of transfer from one carrier to another they are liable to be placed in warehouses, there perhaps to be delayed by the accumulation of freight or other causes and exposed to loss by fire or theft, without fault on the part of the carrier or his agent. Superadded to these risks are the dangers of loss by collusion, quite as imminent while the goods are thus stored at some point unknown to the owner as while they are in actual transit. As a general rule the storing of the goods under such circumstances should be held to be a mere accessory to the transportation, and they should be under the protection of the rule which makes the carrier liable as an insurer from the time the owner transfers their possession to the first carrier until they are delivered to him at the end of the route."'48 But when they have reached their destination nothing more generally remains to be done by

48. McDonald v. The Railroad, 34 N. Y. 497. See also, Lewis v. The Railway, 47 W. Va. 656, 35 S. E. Rep. 908, 81 Am. St. Rep. 816; Southard v. The Railway, 60 Minn. 382, 62 N. W. Rep. 442.

The owner of goods who delivers them under a contract of shipment to a carrier for transportation over two or more connecting lines does not contemplate or make a contract for storage. His

contract is for carriage, and until the goods reach their final destination, he has a right to a continuous carrier's duty and responsibility which cannot, without his consent, be changed to the duty and responsibility of a warehouseman however convenient such a course may be for the carrier. Wehman v. The Railway, 58 Minn. 22, 59 N. W. Rep. 546.