#### *St. John & Tousey *vs.*Van Santvoord and others.

*Common carriers*employed in the transportation of goods on the Hudson river, between *New-York*and *Albany,*receiving a package directed to a place *beyond*Albany, and giving an acceptance of the same, *without limiting their responsibility*to *Albany,*are liable for the loss of the goods happening *after*their delivery at Albany to other forwarders, although such delivery be conformable to the usage of the trade, if *knowledge*of such usage be not brought home to the owner of the goods.

Error from the New-York common pleas. This was an action on the case against the defendants, *common carriers*of a tow-boat line of vessels plying between Albany and New-York, in the transportation of goods and merchandize. The plaintiff put on board of one of the boats of the defendants a box of clothing directed to “ J. Petrie, Little Falls, Herkimer Co.,” and obtained a receipt therefor from the master of the boat, in these words: “ New-York, October 22,1836. Rec’d from St. John & Tousey, on board of tow boat *Ontario,*one box of merchandize marked “ J. Petrie, Little Falls, Herkimer Co.” On the arrival of the boat at Albany the box was transferred to a boat forming part of a *line of canal boats*plying between Albany and Utica, and the freight of the' box from New-York to Albany was paid by the master of the canal boat. On the arrival of the box at *Little Falls*it was found to contain *twelve pairs of ladies’ shoes,*but no clothing; and on examination the box appeared to have been broken open. The defendants proved that their business was limited to the transportation of goods between Albany and New-York *;*and that it was the universal custom or usage of all the tow-boat lines on the Hudson river, engaged in that business, when they brought from New-York boxes or packages directed to a place *west*or *north*of Albany, to de*504liver them over to the masters of canal boats employed in the transportation of goods west and north of Albany, and to receive from them the river freight, which was charged to the consignee, and received on delivery of the goods to him; and having done so, the owners of the tow-boat lines considered their duty ended. Knowledge of such custom or usage, or that the [ *661 ] defendants’ line terminated *at Albany, was not brought home to the plaintiff, and proof of the *custom*was objected to by them: but the objection was overruled. The presiding judge charged the jury that there was no evidence of any contract on the part of the defendants to carry the goods to *Little Falls,*and that none could be implied from the *receipt*which had been given; that the known usage of the trade entered into and formed part of the contract between the parties ; and if they should find that the goods were delivered at Albany according to such usage, and that the defendants had used ordinary diligence in procuring a safe conveyance, and in forwarding the goods beyond Albany to Little Falls, they had discharged their duty as common carriers, and were entitled to a verdict in their favor. To which charge the plaintiffs excepted. The jury found for the defendants, and judgment for costs being rendered against the plaintiffs, they sued out a writ of error.

*A. L. Allen,*for the plaintiffs,

insisted that the goods being directed to a place beyond *Albany*and the defendants having receipted them as thus directed, they assumed the responsibility of their safe delivery at *Little Falls,*and that the evidence of *usage*was irrelevant, and ought not to have been received. That if the defendants did not intend to be liable beyond *Albany,*they should have made a *special aeeeptance.*That the judge therefore erred, in admitting improper evidence, and in his charge to the jury.

C. *Van Santvoord,*for the defendant,

contended that his clients being *common carriers*only between *Albany*and *New-York,*could not be held responsible for the safety of the goods beyond Albany ; that the receipt for the goods imported no more than that they would safely transport them as, far as their route extended, and that the delivery of the goods at Albany in conformity to the established usage of the trade discharged them from all responsibility. He insisted that the case of *Garside*v. *The Proprietors of the Trent and Mersey Navigation,*4 *T. R.*581, fully supported the last proposition, and could not be distinguished from the present case. He also cited 8 *Cowen,*223 ; *Story on Bailment,*345, and *Story on Agency,*94, §106.

[ *662 ] ** By the Court,*

Nelson, C. J.

I am of opinion the court below erred in charging, that the usuage of the trade at Albany, *505determined the rights of the parties, there being no contract express or implied to carry the goods beyond that place. It appears to me such a contract is fairly to be inferred from the receipt of the captain, in the absence of any explanation. The box was directed to *J. Petrie, Little Falls,*Ser*himer Co.*indicating plainly to whom the plaintiffs were desirous of sending it, and was delivered on board for the express purpose of transhipment to him; and without any qualification or explanation the agent received the article, and gave his receipt therefor: in effect, saying to the plaintiffs, I will take and deliver it at the place of destination, according to the direction. So the plaintiffs must undoubtedly have understood the contract. It is the plain interpretation of the transaction. If the defendants had intended to limit their duty as common carriers short of the place of destination, they should in some way have indicated to the plaintiffs this intent. Perhaps usage of the line brought home to them might have been sufficient, and might have controlled the otherwise reasonably implied engagement from the receipt; but the contract derivable therefrom is too explicit and manifest to be varied by the mere fact of such general custom. Regularly, the receipt itself should have limited the carriage to Albany, to be forwarded to the place of destination, if to be sent further. Then the defendants would have been liable, as *carriers*to Albany, and as *forwarders*only beyond that point. This is a very common arrangement with carriers. 8 *Cowen,*223. 5 *T. R.*389. *Story on Bailment,*343. 4 *T. R.*581. The contract would thus have been materially modified, as the forwarder is only liable for ordinary care in procuring a proper conveyance for the goods ; and all parties would have understood their rights and liabilities.

Judgement reversed.