Tewes v. North German Lloyd S.S. Co.

• Decision Date: 09 October 1906
• Citation: 78 N.E. 864,186 N.Y. 151
• Parties: TEWES v. NORTH GERMAN LLOYD S. S. CO.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 151

78 N.E. 864

TEWES

v.NORTH GERMAN LLOYD S. S. CO.

Court of Appeals of New York.

Oct. 9, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Theodore Tewes against the North German Lloyd Steamship Company. From a judgment of the Appellate Division (93 N. Y. Supp. 1149,104 App. Div. 619) affirming a judgment in favor of plaintiff, after the denial of a motion to set aside the verdict (85 N. Y. Supp. 994), defendant appeals. Reversed.

This action was brought to recover damages for the loss of plaintiff's baggage, consisting of a trunk containing wearing apparel, which loss it is alleged was caused by the defendant's negligence. The plaintiff is a resident of Long Island City, and on or about June 20, 1900, purchased a ticket from the defendant entitling him to passage on the defendant's steamship Grosser Kurfürst from Hoboken, N. J., to Bremerhaven, Germany, to sail on June 28th following. This ticket, which in its general features is in the usual form, contained the following provisions: ‘It is mutually agreed that this ticket is issued by the North German Lloyd Steamship Company and accepted by the passenger on the following conditions: * * * It is also agreed that neither the shipowner, nor the passage broker or agent, nor the ship, is in any way liable for loss of or injury to or delay in delivery of luggage or personal effects of the passengers beyond the amount of fifty dollars, unless the value of the same in excess of that sum be declared at or before the issue of this contract, or at or before the delivery of said luggage to the ship, and freight at current rates for every kind of property is paid thereon.’ Two days before the day of sailing the plaintiff delivered his trunk to an expressman with directions to deliver it to the defendant. It was properly marked for delivery on board the steamship Grosser Kurfürst. One of the expressmen, called as a witness for the plaintiff, testified that he delivered the trunk at the place where he had been in the habit of delivering baggage for a number of years, that a watchman at the entrance to defendant's piers told him what pier to place it on, and that he delivered it to whoever was there. It appears that plaintiff's trunk was not placed on the steamer on which he took passage, but by some mistake it was left on a different pier of the defendant than that from which the Grosser Kurfürst sailed, where it was subsequently destroyed by a fire which occurred on June 30th and greatly damaged the defendant's piers. The jury rendered a verdict in favor of the plaintiff for $289.50, the value of the trunk and its contents, and the judgment entered on that verdict was unanimously affirmed at the Appellate Division.

Cullen, C. J., and Haight, J., dissenting.Joseph Larocque, Jr., for appellant.

Lyman W. Redington, for respondent.

WERNER, J. (after stating the facts).

For the purposes of this appeal we must assume that plaintiff's trunk was properly delivered to the defendant. The verdict of the jury settled that question in plaintiff's favor, and the unanimous affirmance of the Appellate Division precludes us from examining the record to ascertain whether the verdict is supported by evidence. There are exceptions to the charge, however, the principal one of which relates to the provision in the passage ticket purchased by the plaintiff, purporting to limit defendant's liability for loss of baggage. After the learned trial court had charged the jury very briefly as to the delivery of the trunk, and as to the obligations which the defendant assumed if the fact of proper delivery were deemed to be established, the defendant's counsel requested the court to charge ‘that in no event can the defendant be liable for an amount exceeding $50.’ In response to this request the court charged: ‘If this clause in this passage contract that the liability must be limited to $50 to each person * * * if that clause was not called to the attention of the plaintiffs, and they knew nothing about it, and by the exercise of reasonable attention would not have known it, in that case it will go for nothing, and the amount will be fixed at the full value which you find these things were worth.’ This charge was clearly in conflict with a number of well-settled cases which hold that there is a just and logical distinction between an ordinary railroad ticket, which may often be regarded as a mere token, and a passage ticket for an ocean voyage, the sale and purchase of which is usually conducted with such caution and deliberation as to invest the transaction with the elements of a contract, the terms of which the purchaser has ample opportunity to ascertain and understand. Steers v. Liverpool, N. Y. & P. S. S. Co., 57 N. Y. 1, 15 Am. Rep. 453;Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575;Wheeler v. Oceanic Steam Nav. Co., 72 Hun, 5, 25 N. Y. Supp. 578, affirmed without opinion 149 N. Y. 576, 43 N. E. 990.

The error in the charge referred to was later discovered by the learned trial judge upon the hearing and consideration of a motion for a new trial, when he handed down an opinion which recognized the controlling force of the cases above cited, but denied the motion on the ground that the passage ticket or contract contained no provision absolving the defendant from liability for its own negligence, and that the finding of the jury necessarily established the defendant's negligence in failing to put the trunk aboard the steamer on which the plaintiff sailed pursuant to his contract. To support this conclusion a number of cases were cited which, we think, have no application to the case at bar, since they all relate to the common-law liability of common carriers, unaffected by special contract stipulations designed to limit the carrier's liability. There is, however, a case (Westcott v. Fargo, 61 N. Y. 542, 19 Am. Rep. 300) which seems to support the conclusion that a stipulation limiting the amount for which the carrier shall be liable does not cover a loss of goods occasioned by his negligence. That action was brought to recover the value of a bale of furs, which had been shipped through the defendant's express company and lost by its negligence. The receipt given to evidence the shipment contained the following limitation: ‘Nor shall this company be liable for any loss or damage of any box, package or thing for over fifty dollars unless the true and just value thereof is herein stated.’ The value of the furs was not stated in the receipt, and the defendant had no means of knowing the value or nature of the contents of the package. The plaintiff's agent had delivered the receipt containing the limitation to the defendant's agent, who signed and redelivered it to the former. In deciding that under such circumstances the plaintiff was entitled to recover, Dwight, C., writing for the Commission of Appeals, said: ‘The true question in this cause concerns the effect upon the parties of the stipulation that the defendant should ‘not be liable for any loss or damage of any box, package or thing for over fifty dollars, unless the just and true value is herein stated.’ It must be conceded that this stipulation, under the circumstances of this case, is a part of the contract, and is binding on the plaintiff. This was decided in Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575, and in Steers v. Liverpool, N. Y. P. Steamship Co., 57 N. Y. 1, 15 Am. Rep. 453. * * * The result of these cases is that it is lawful for a carrier to make such a contract as was entered into in the present case, and that he may, by clear and distinct expressions, relieve himself from losses occasioned by his own negligence.' After thus clearly stating the rule, which has ever since been consistently followed, the learned commissioner concluded that the words of limitation in the receipt referred to were not so unambiguous as to exempt the carrier from liability for its own negligence, and he was of opinion that the case was controlled by the decision in Magnin v. Dinsmore, 56 N. Y. 168, where it was held that, although a common carrier may stipulate for his exemption from liability for losses through his negligence, his contract will not be construed to contain such an exemption, unless it is so expressly agreed. The decision in Magnin v. Dinsmore, supra, was handed down in March, 1874. The case of Westcott v. Fargo, supra, was decided by the Commission of Appeals in January, 1875. In the following May the Magnin Case came to this court on a second appeal, where it was held that a stipulation limiting the amount for which the carrier shall be liable was binding upon the shipper who had notice of the limitation and whose merchandise had been lost by the ordinary negligence of the carrier. In that case the merchandise consigned consisted of watches and watch keys. The shipper did not disclose their real value. The receipt given by the carrier provided that: ‘If the value of the property above described is not stated by the shipper, the holder thereof will not demand of the Adams Express Company a sum exceeding fifty dollars for the loss or detention of or damage to the property aforesaid.’ In reversing a judgment for the full value of the goods lost, this court said: ‘As has been stated, in the absence of agreement for a limited liability, it is the duty of the carrier to make all needful inquiry as to value. But, when the shipper agrees with the carrier for a limited liability, he thereby expresses to the latter his estimate of the risk to be run and of the care needed and holds out the package to him as an ordinary article which he would have no objection to take as of course. The carrier is thereby put off his guard. The shipper might refuse to agree to a limited liability and demand generally carriage upon the common-law liability of the carrier; and then they deal at arms' length, and that would arouse the attention of the carrier, or at least would put upon him...