THE BOSKENlU BAY.
ment was the contract between the patties, and its provisions, so far as they are valid, conclude the libelant. Were it not for these spp.cial conditions, liability of the ship to answer for the loss would be unquestionable. The duty of a carrier by water towards an owner of goods is not satisfied until a proper delivery has been made to the owner; and, unless a valid substituted delivery has been made, the strict responsibility of the carrier as an insurer of the goods does not terminate until actual delivery. If he does not deliver to the consignee actually, he must justify his substituted delivery by sh()wing that it was in accordance with the terms of the particular contract, or with the usage of the port, or with the ,course of business between the parties. On the other hand, the consignee is bound to watch for the arrival of the shi p, and be ready to receive the goods at the time and place at which they are deliverable. If the consignee refuses or neglects to accept the goods, the carrier must, if practicable, give notice to him of the time of the intended discharge; and, when this has been done, and the goods are discharged in a usual and proper place, and at the proper time, the substituted delivery stands in the place of an actual delivery. These are familiar rules of the law of carrier and consignee. No notice was given in the present case, and, except forthe speoial clauses of the contract, the discharge of the goods as made would not have been a delivery. The special conditions are plainly intended to relieve the carrier of any obligation, either to make actual delivery of the goods to the consignee, or to give him notice of the time or place of their intended discharge. As they are explicit, they preclude resort to any usage to define the rights and duties of the parties. Neither the condition for delivery "from the ship's deck, where the ship's responsibility shall cease,." nor the condition whereby the consignee is to receive the goods "simultaneously with the ship's being ready to unload," absolves the carrier from the duty of making a proper delivery, actual or substituted; and it would, nevertheless, be incumbent upon the carrier to give due and reasonable notice of the time of intended delivery, and put the goods in a suitable place, under proper care and custody, to constitute a good delivery in the absence of the consignee. The Sanfee,7 Blatchf. 180; The Middlesex, 21 Law Rep. 14; GleadeU v. Thomson, 56 N. Y. 194; TarbeU v. Shipping Co., 110 N. Y. 170, 17 N. E. Rep. 721. But the furtfier clauses by which it is conditioned that, in case the consignee is not ready to receive the goods when the ship is ready to unload, the master or agent of the ship may land the goods at the wharf Where the ship lies to discharge, without notice to the consignee, and at the risk of the consignee after the goods leave the deck of the ship, have no significance whatever, unless they mean that the consignee is not to be entitled to notice of discharge of the goods, and that they are to be at his risk; when landed at the place specified, if he is not ready to receive them when the ship is ready to unloa.d. Unless the clause dispensing with notice to the consignee is intended to permit the carrier to make a substituted delivery in place of an actual one, without previous noticEt to the consignee, it is wholly inoperative, because notice of landing or warehousing goods, or that the ship is ready to discharge, is unneces-
sary:wbeunotice of inten:ded .deliveryl;J.as been properJy:given. According to the oootractJalso, wl1enthe gOQdsare thus landed OIl the wharf at whichtheship .lies for dieoharge; they are.to renrain. there at the risk of, the: cOlJl3ignee, ·after .they leave the ship's deck·. Taking all the clauses together, by thebi11 of lading the consignee has, inetfect, said tq the carrier: ,"If you: will transportm.Y goods to New York for the freight mentioned,Twill waive. notice of delivery, and be ready· to receive thelU when the ,ship is ready to unload them; and, if lam not, thus ready to receive them,,'lconsent they,may be landed,ang. remain at my risk at the wharf where the ship may lie for discharge." Although exempir ive provisions in bills oflading intended to relax the obligations of carriers in ,essential matters are not favored, and will not be extended beyond the narrowest cOllstruction of which they are reasonably capable, the courts cannot refuse to give effect to their explicit and unequivQcal meaning, unless they are void because contrary to public policy. The terms of the present contract would justify the carrierin discharging the goods at an unsuitable time 'Or place, so as to expose them to obvious danger of being inj ured. If an unfttwhal1f were selected, or unfit: weather, or an hour of the night when the consignee could not.have a fair opportunity to examine his goods a.nd remove them, the discharge would not be a good delivery within the proper interpretation of the contract. The language used is satisfied by placing upon it a more restricted meaning. It is not to be read so literally as to frustrate the beneficial objects of the transaction to which it relates, a.nd it cannot be SUPPO$OO that the pa.rties intended to protect the' carrier; against responsibility for his willful misconduct. Nor would the rules of interpretation of contracts authorize it to be read as intended to shield the carrier from, the consequences of his own negligence. It was declared in Magnin v. Dinsmore, 56 N. Y. 168, that a contract with a carrier will not be deemed to exceptlosBes occasioned by his negligence, unless that be expressly stipulated. The authorities a.re unanimous that no exception, which is not. contained in the con,tract itself, can beingrafted upon it by implication, either to excuse its non-performance,or the, exercise. of Qrdinary care in performing it. It suffices to refer to Navigation Co. v. Bank, 6 How. 344; Railroad Co. v.Manufacturing (]o., 16 Wall. 318; and Bank v. Expreaa Co., 93 U. S.174. ' Construing the 'contract as one that authorizes a discharge of the goods without notice to the consignee, but not as one relieving the ship from the duty of exercising reasonable care to protect them so long as they are, or ought to be, under the control ofthe master, it hardly seems debatable that such a contract is lawful. Judge Story says: "However universal the custom may be to deliver the goods to the owner at the place of destination,.still the parties may, by their contract, waive it, and j f they do the carrier is discharged." Story, .Bailin. § 541. It cannot be doubted that if after the arrival of a ship the consignee instructs the master that he will not require notice of discharge of his goods, but will be ready to receive them whenever the. ship is ready to unload at the wharf where she may lie, and that if he is the master may