Murray v. Cunard S.S. Co.

• Decision Date: 06 March 1923
• Citation: 235 N.Y. 162,139 N.E. 226
• Parties: MURRAY v. CUNARD S. S. CO., Limited
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 162

139 N.E. 226

MURRAY

v.CUNARD S. S. CO., Limited

Court of Appeals of New York.

March 6, 1923.

Action by Luke J. Murray against the Cunard Steamship Company. Judgment for plaintiff entered on the verdict of a jury was affirmed by a divided court of the Appellate Division, First Department (200 App. Div. 466,193 N. Y. Supp. 220), and defendant appeals.

Judgment reversed, and complaint dismissed.Appeal from Supreme Court, Appellate Division, First department.

Thaddeus G. Cowell, of New York City, for appellant.

Louis J. Greenburg, Moses Feltenstein, and Richard Welling, all of New York City, for respondent.

CARDOZO, J.

The plaintiff left New York on April 24, 1920, as a second cabin passenger on the defendant's steamship Mauretania. On April 28 he broke his knee cap by a fall upon the deck. His statement is that he caught his foot in a rope attached to a canvas curtain, which had been left unfastened so that it was blown by the wind. The defendant says that he was injured in jumping over ropes which separated the deck for one class of passengers from the deck for another. The vessel reached Southampton on May 2, 1920. The plaintiff went ashore with the aid of a crutch, and was taken by train to London. From London he went to Dublin, where he was for six weeks in Dublin Hospital. Leaving the hospital, he spent a week or two in his home in Strokstown, Roscommon county. As the result of trouble which developed in his knee, he went to Roscommon Hospital and was there for several months. He then spent another fortnight in his home, and, dissatisfied with his progress, returned to Dublin Hospital, where he submitted to an operation involving the removal of pieces of bone. His final discharge from the hospital was about the middle of November. After remaining some weeks in Ireland, he sailed for New York on January 8, 1921. On February 24, 1921, without preliminary notice, this action was begun.

The plaintiff's ticket, issued to him some days before the departure of the vessel, is described in large type as a ‘cabin passage contract ticket.’ It provides, again in large type, that ‘This contract ticket is issued by the company and accepted by the passenger on the following terms and conditions.’ One of the terms and conditions is that no action shall be maintained either for injury to property or for personal injury to the passenger unless commenced within one year after the termination of the voyage. That requirement was obeyed. Another term or condition is that no action shall be maintained for injury to property unless written notice of the claim be delivered to the company with 20 days after debarkation, and that no action shall be maintained for injury to the passenger unless written notice of the claim be delivered to the company within 40 days after debarkation. That requirement was not obeyed. At the top of the ticket is printed a notice: ‘The attention of passengers is specially directed to the terms and conditions of this contract.’

[1] We assume, without intending to decide, that the plaintiff's narrative, if accepted,would sustain a finding by the jury that the defendant had been negligent. We assume also that a contract exonerating the defendant altogether from liability for negligent injury to a passenger would be ineffective and void because opposed to public policy. Smith v. N. Y. Cent. R. Co., 24 N. Y. 222. This case is not within the exceptions established by such decisions as Kansas City Southern Ry. Co. v. Van Zant, 43 Sup. Ct. 176, 67 L. Ed. 348;Northern Pac. Ry. Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513, and Anderson v. Erie R. Co., 223 N. Y. 277, 119 N. E. 557. Exoneration, however, is not to be confused with regulation. ‘A stipulation for written notice within a reasonable time stands on a different footing, and of this there is no doubt.’ Gooch v. Oregon Short Line Ry. Co., 258 U. S. 22, 42 Sup. Ct. 192, 66 L. Ed. 443. There the contract called for notice within 30 days. ‘The plaintiff was in a hospital for about 30 days under the care of a doctor employed by the defendant, but was not disabled from giving the notice.’ The court enforced the contract. ‘Very probably,’ it was said, ‘an exception might be implied if the accident made notice within the time impracticable’ Gooch v. Oregon Short Line Ry. Co., supra. There is no evidence that this plaintiff was physically or mentally unable to give notice of the injury. Forsyth v. City of Oswego, 191 N. Y. 441, 444,84 N. E. 392,123 Am. St. Rep. 605;Smith v. Trustees of Village of Clifton Springs, 233 N. Y. 591, 135 N. E. 930. Even if we were to assume in his favor that there was incapacity for a time, with a resulting extension of the period for notice, he did not make a move within 40 days thereafter. Limitations of this kind have their justification in the need of some safeguard to protect the carrier against fraud. Passengers on steamships scatter in all directions when the voyage is at an end. If claims may be presented at any time within the term of years permitted by the statute of limitations, the opportunity for investigation will often be lost beyond recall. ‘The practice of fraud is too common to be ignored.’ Gooch v. Oregon Short Line Ry. Co., supra.

[2][3] The plaintiff argues that he is not bound by the conditions of the ticket because he did not read them. The omission does not help his case. The law is settled in this state that a ticket in this form, issued by a steamship company for a voyage across the ocean, is more than a mere token or voucher. It is a contract, creating the obligation and defining the terms of carriage. Steers v. Liverpool, etc., S. S. Co., 57 N. Y. 1, 15 Am. Rep. 453;Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151, 155,78 N. E. 864,8 L. R. A. (N. S.) 199,9 Ann. Cas. 909; 1 Williston on Contracts, §§ 90, 90a, 90b. The ruling is in accord with judgments in other jurisdictions. Fonseca v. Cunard S. S. Co., 153 Mass. 553, 27 N. E. 665,12 L. R. A. 340, 25 Am. St. Rep. 660;O'Regan v. Cunard S. S. Co., 160 Mass. 356, 35 N. E. 1070,39 Am. St. Rep. 484;Secoulsky v. Oceanic Steam Nav. Co., 223 Mass. 465, 112 N. E. 151; cf. New York Cent. R. Co. v. Beaham, 242 U. S. 148, 151, 37 Sup. Ct. 43, 61 L. Ed. 210; Cooke v. T. Wilson Sons & Co., 1916, 85 L. J. [K. B.]...