It has been already stated 20 that there must be an actual or constructive delivery to the consignee before the exceptional bailment liability of the common carrier is at an end. In Norway Plain vs. Boston and Maine R. R. (21), the Court said: "Being liable as common carriers, the rule of the common law attaches to them, that they are liable for losses occurring from any accident which may befall the goods, during the transit, except those arising from the act of God or a public enemy. It is not necessary now to inquire into the weight of those considerations of reason and policy, on which the rule is founded, nor to consider what casualty may be held to result from an act of God, or a public enemy; because the present case does not turn on any such distinction. It is sufficient, therefore, to state and affirm the general rule. In the present case, the loss resulted from a fire, of which there is no ground to suggest that it was an act of God; and it is equally clear that it did not result from any default or negligence on the part of the company, though the goods remained in their custody. If, at the time of the loss, they were liable as common carriers, they must abide by the loss; because, as common carriers, they were bound as insurers to take the risk of fire, not caused by the act of God, and in such case no question of default or negligence can arise. Proof that it was from a cause for which they, neither by themselves nor their servants, were in any degree chargeable, could amount to no defence, and would therefore be inadmissable in evidence. If, on the contrary, the transit was at an end, if the defendants had ceased to have possession of the goods as common carriers, and held them in another capacity, as warehousemen, then they were responsible only for the care and diligence which the law attaches to that relation; and this does not extend to a loss by accidental fire, not caused by the default or negligence of themselves, or of servants, agents, or others, for whom they are responsible.

17 Converse vs. Norwich, etc., Trans. Co., 33 Conn., 166; Hunt vs. New York, etc., R. Co., 1 Hilt. (N. Y.), 228.

18 Shewalter vs. Missouri Pac. R.

Co., 84 Mo. App., 589.

19 St. Louis, etc., R. Co. vs. Piper,

13 Kans., 505. 20 See Section 6.

"The question then is, when and by what act the transit of the goods terminated. It was contended, in the present case, that, in the absence of express proof of contract or usage to the contrary, the carrier of goods by land is bound to deliver them to the consignee, and that his obligation as carrier does not cease till such delivery.

"This rule applies, and may very properly apply, to the case of goods transported by wagon and other vehicles, traversing the common highways and streets, and which, therefore, can deliver the goods at the houses of the respective consignees. But it cannot apply to railroads, whose line of movement and point of termination are locally fixed. The nature of the transportation, though on land, is much more like that by sea, in this respect, that from the very nature of the case, the merchandise can only be transported along one line, and delivered at its termination, or at some fixed place by its side, at some intermediate point. The rule in regard to ships is very exactly stated in the opinion of Buller, J., in Hyde vs. Trent & Mersey Navigation, 5 T. R., 397. 'A ship trading from one port to another has not the means of carrying the goods on land; and, according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the carrier.'

"Another peculiarity of transportation by railroad is that the car cannot leave the track, or line of rails on which it moves; a freight train moves with rapidity, and makes very frequent journeys, and a loaded car, whilst it stands on the track, necessarily prevents other trains from passing or coming to the same place; of course, it is essential to the accommodation and convenience of all persons interested, that a loaded car, on its arrival at its destination, should be unloaded, and that all the goods carried on it to whomsoever they may belong, or whatever may be their destination, should be discharged as soon and as rapidly as it can be done with safety. The car may then pass on to give place to others, to be discharged in like manner. From this necessary condition of the business, and from the practice of these transportation companies to have platforms on which to place goods from the cars, in the first instance, and warehouse accommodation by which they may be securely stored, the goods of each consignment by themselves, in accessible places, ready to be delivered, the court are of the opinion that the duty assumed by the railroad corporation is - and this, being known to owners of goods forwarded, must, in the absence of proof to the contrary, be presumed to be assented to by them, so as to constitute the implied contract between them - that they will carry the goods safely to the place of destination, and there discharge them on the platform, and then and there deliver them to the consignee or party entitled to receive them, if he is there ready to take them forthwith; or if the consignee is not there ready to take them, then to place them securely and keep them safely a reasonable time, ready to be delivered when called for. This, it appears to us, is the spirit and legal effect of the public duty of the carriers, and of the contract between the parties when not altered or modified by special agreement, the effect and operation of which need not here be considered.

"This we consider to be one entire contract for hire; and although there is no separate charge for storage, yet the freight to be paid, fixed by the company as a compensation for the whole service, is paid as well for the temporary storage as well as for the carriage. This renders both the services, as well as the absolute undertaking for the carriage, as the contingent undertaking for the storage, to be services undertaken to be done for hire and reward. From this view of the duty and implied contract of the carriers by railroad, we think there result two distinct liabilities: first, that of common carriers, and afterwards that of keepers for hire, or warehouse keepers; the obligations of each of which are regulated by law.

"We may then say, in the case of goods transported by railroad, either that it is not the duty of the company as common carriers, to deliver the goods to the consignee, which is more strictly conformable to the truth of the facts; or, in analogy to the old rule that delivery is necessary, it may be said that delivery by themselves as common carriers, to themselves as keepers for hire, conformably to the agreement of both parties, is a delivery which discharges their responsibility as common carriers. If they are chargeable after the goods have been landed and stored, the liability is one of a very different character - one which binds them only to stand to losses occasioned by their fault or negligence. Indeed the same doctrine is distinctly laid down in Thomas vs. Boston & Providence Railroad, 10 Met., 472, with the same limitation. The point that the same company, under one and the same contract, may be subject to distinct duties, for a failure in which they may be liable to different degrees of responsibility, will result from a comparison of the two cases of Garside vs. Trent & Mersey Navigation, 5 T. R., 389 (260). See also Van Santvoord vs. St. John, 6 Hill, 157, and McHenry vs. Philadelphia, Wilmington & Baltimore Railroad, 4 Hairing, 448.

"The company, having received an adequate compensation for the entire service, if they store the goods, are paid for that service; they are depositaries for hire, and of course responsible for the security and fitness of the place, and all precautions necessary to the safety of the goods, and for ordinary care and attention of their servants and agents, in keeping them and delivering them when called for. This enforces the liability of common carriers to the extent to which it has been uniformly carried by the common law, so far as the reason and principle of the rule rendered it fit and applicable, that is, during the transit; and affords a reasonable security to the owner of goods for their safety, until actually taken into his own custody.

"The principle, thus adopted, is not new; many cases might be cited; one or two will be sufficient. Where a consignee of goods, sent by a common carrier to London, had no warehouse of his own, but was accustomed to leave the goods in the wagon office, or warehouse of the common carrier, it was held, that the transit was at an end, when the goods were received and placed in the warehouse. Row vs. Pickford, 8 Taunt., 83. Though this was a case of stoppage in transitu, it decides the principle. But another case in the same volume is more in point. In re Webb, 8 Taunt., 443. Common carriers agreed to carry wool from London to France, under a stipulation that when the consignees had not room in their own store to receive it, the carriers, without additional charge, would retain it in their own warehouse, until the consignor was ready to receive it. Wool thus carried, and placed in the carrier's warehouse, was destroyed by an accidental fire; it was held that the carriers were not liable. The courts say that this was a loss which would fall on them, as carriers, if they were acting in that character, but would not fall on them as warehousemen.

"This view of the law, applicable to railroad companies, as common carriers of merchandise, affords a plain, precise, and practical rule of duty, of easy application, well adapted to the security of all persons interested; it determines that they are responsible as common carriers until the goods are removed from the cars and placed on the platform; that if, on account of their arrival in the night, or at any other time, when, by usage and course of business, the doors of the merchandise depot or warehouse are closed, or for any other cause, they cannot then be delivered; or if, for any reason, the consignee is not there ready to receive them, it is the duty of the company to store them and preserve them safely, under the charge of competent and careful servants, ready to be delivered, and actually deliver them when duly called for by parties authorized and entitled to receive them; and for the performance of these duties after the goods are delivered from the cars, the company are liable, as warehousemen, or keepers of goods for hire."21