Burke v. Union Pac. R. Co.

• Decision Date: 15 July 1919
• Citation: 226 N.Y. 534,124 N.E. 119
• Parties: BURKE v. UNION PAC. R. CO.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 534

124 N.E. 119

BURKE

v.UNION PAC. R. CO.

Court of Appeals of New York.

July 15, 1919.

Appeal from Supreme Court, Appellate Division, First Department.

Submission of controversy upon an agreed state of facts, pursuant to Code Civ. Proc. § 1279, between James J. E. Burke and the Union Pacific Railroad Company. From a judgment of the Appellate Division for plaintiff for less relief than demanded (178 App. Div. 783,166 N. Y. Supp. 100), plaintiff appeals by permission. Reversed and rendered.

See, also, 180 App. Div. 887,166 N. Y. Supp. 1088.

Hogan, J., dissenting.Arthur W. Clement and Wilson E. Tipple, both of New York City, for appellant.

Oscar R. Houston, of New York City, for respondent.

COLLIN, J.

The plaintiff, in virtue of an assignment vesting in him the right, seeks to recover the sum of the invoice price or value of goods destroyed while in the possession of the defendant as a common carrier, to wit, the sum of $17,549.01. The defendant, conceding a liability, asserts that, because of the agreed valuation of the goods and a corresponding limitation, it does not exceed the sum of $5,600. The Appellate Division gave the plaintiff judgment for the latter sum, with interest.

The goods, consisting of 56 cases, were delivered, March 10, 1915, at Yokohama, Japan, to the Pacific Mail Steamship Company for transportation to New York City, to be there delivered to the shippers' order. A bill of lading was then and there delivered by the company to and accepted by the shippers. It contained the provision:

‘It is expressly agreed that the goods named in this bill of lading are hereby valued at not exceeding $100 per package, and unless a different or other value is expressly written and declared herein, the liability of the companies therefor, in case of the total loss of all or any of the said goods from any cause, shall not exceed $100 per package. * * *’

It did not express or declare a different value. The goods at San Francisco were by the company delivered to the Southern Pacific Company, as a connecting carrier, which delivered them to the defendant, as a connecting carrier, and were totally destroyed while being transported by the defendant. Their invoice value was $17,549.01. No part of the freight was paid. We are to determine whether or not the liability of the defendant is limited by the agreed valuation.

[1][2][3] The Southern Pacific Company, the defendant and the other inland carriers were, of course, subject to the federal Act to Regulate Commerce, and had duly established and filed with the Interstate Commerce Commission certain classifications, tariffs, and schedule of rates which were applicable to the transportation from San Francisco to New York City. Armour Packing Co. v. United States, 209 U. S. 56, 77, 28 Sup. Ct. 428, 52 L. Ed. 681. The transportation from San Francisco being interstate, the laws of Congress and the decisions of the United States Supreme Court are, of course, so far as applicable, binding. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314,44 L. R. A. (N. S.) 257;Chicago, Burlington & Q. Ry. Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323. The Carmack Amendment of January 29, 1906, declared that any common carrier receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and denied to an initial carrier the former right to make a contract limiting its liability to its own line. Beyond controversy, transportation by ocean carriers between the United States and nonadjacent foreign countries is not included in or affected by the Act to Regulate Commerce, and the jurisdiction of the Interstate Commerce Commission, or the classification and schedule of rates and charges, pursuant to the act, cannot extend to carriers engaged in that transportation. Cosmopolitan Shipping Co. v. Hamburg-American Packet Co., 13 Interst. Com. Com'n R. 266; Chamber of Commerce of N. Y. v. N. Y. C. & H. R. R. R. Co., 24 Interst. Com. Com'n R. 55. Interstate rates and charges to and from ports of entry must be published and filed as independent from the ocean transportation. Ocean transportation may be conducted under through bills of lading, issued at a foreign port, but the classifications and schedules of rates and charges of the inland carrier or carriers must be limited to inland transportation and services, and cannot relate to liability, service, or obligation of the ocean carrier. Armour Packing Co. v. United States, 209 U. S. 56, 77, 28 Sup. Ct. 428, 52 L. Ed. 681;Pacific Mail S. S. Co. v. Western Pacific R. Co., 251 Fed. 218, 163 C. C. A. 374.

The bill of lading delivered by the steamship company was a through bill, issued, manifestly, in arrangement with and in the behalf of the inland connecting carriers. The rate for the inland transportation was stated in it separately from that of the ocean transportation and as 125 cents per 100 pounds, in minimum carloads of 30,000 pounds. Such was the rate fixed for the inland transportation by the classifications and schedule of rates and charges established and duly filed by the inland carriers. The bill of lading contained this clause:

‘In consideration of the rate of freight herein named, it is hereby stipulated that the service to be performed hereunder shall be subject to the conditions, whether printed or written, on the face and on the back hereof, and said conditions are hereby agreed to by the shipper and by him accepted for himself and assigns as just and reasonable.’

The agreed valuation of the goods at $100 per package and limiting the liability of the companies to a sum not exceeding that valuation was a condition of the bill. The filed classifications and schedules did not contain an agreed valuation, controlling, in form, the shippers' recovery in case the goods were lost, similar to that I have quoted from the bill of lading. No bill of lading other than that delivered to the shippers by the steamship company was issued.

[4] The permissibility of limiting the recovery, in case of liability, to a valuation of the freight agreed upon or declared by the shipper is conclusively established. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314,44 L. R. A. (N. S.) 257;Atchison, Topeka & Santa Fé Ry. Co. v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901;D'Utassy v. Barrett, 219 N. Y. 420, 114 N. E. 786;Boyle v. Bush Terminal R. R. Co., 210 N. Y. 389, 104 N. E. 933. The Cummins Amendment (Act March 4, 1915, c. 176, 38 Stat. 1196 [U. S. Comp. St. §§ 8592, 8604a]), relating to the permissibility, need not be heeded here, because it was not effective prior to June 2, 1915, and the goods were shipped March 10, 1915. The permissibility must, however, be shown or declared by the established and filed classifications and schedule of rates and charges, and in accordance with them invoked and executed. Southern Ry. Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836.

[5][6][7][8] The liability of the defendant is not and, under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. §§ 8604a, 8604aa]), could not be questioned. Boston & Maine Railroad v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593;Gulf, Colorado & Santa Fé Ry. Co. v. Texas Packing Co., 244 U. S. 31, 37 Sup. Ct. 487, 61 L. Ed. 970. The plaintiff asserts and argues that the agreed valuation in the instant case, if there was an agreed valuation, was not valid and effective, because the charge made for the inland transportation was not based upon the agreed valuation. The plaintiff states in his brief:

‘It is a fixed requirement of all the federal decisions that an ‘agreed valuation,’ to be valid, must be supported by a freight rate based upon it, or, in other words, the shipper must have obtained a lower freight rate in consideration of agreeing to the limited valuation of his shipment.'

In judicial opinion and decisions there is support for the assertion of the appellant. In a leading case (Hart v. Penn. R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717), plaintiff, a shipper, sought to recover of the defendant, a carrier, the market value of horses killed of injured in transportation under a bill of lading containing an agreed valuation as the extent of liability. The court said:

‘It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and expecially in the absence of any evidence to the contrary, that, as the rate of freight expressed is stated to be on the condition that the defendant assumes a liability to the extent of the agreed valuation named, the rate of freight is graduated by the valuation. * * * The distinct ground of our decision in the case at bar is that where a contract of the kind, signed by the shipper, is fairly made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations.’

The doctrine that an agreed valuation, when made the basis for a rate, is given effect in measuring the damages and limiting the shipper's recovery, was not abrogated or changed by the Carmack Amendment. American Express Co. v. United States Horse Shoe Co., 244 U. S. 58, 62, 37 Sup. Ct. 595, 61 L. Ed. 990;Pierce Co. v. Wells Fargo & Co., 236 U. S. 278, 35 Sup. Ct. 351, 59 L. Ed. 576;Kansas City So. Ry. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683;Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314,44...