Wheeler v. Oceanic Ateam Nav. Co.

• Decision Date: 13 January 1891
• Citation: 26 N.E. 248,125 N.Y. 155
• Parties: WHEELER v. OCEANIC ATEAM NAV. CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 155

26 N.E. 248

WHEELER

v.OCEANIC ATEAM NAV. CO.

Court of Appeals of New York.

Jan. 13, 1891.

Appeal from supreme court, general term, first department.

Bondinot Keith, for appellant.

Lawrence Godkin, for respondent.

FINCH, J.

Section 4281 of the Revised Statutes of the United States provide in substance that, if any shipper of certain articles, which are specifically named, and among which are ‘pictures,’ shall lade the same as freight or baggage on any vessel without at the time giving notice to its owner, master, or agent of the true character and value of the property shipped, and having the same entered upon the bill of lading, ‘the master and owner of such ship or vessel shall not be liable as carriers thereof in any form or manner.’ The protection of this statute has been successfully invoked by the defendant company against the loss which forms the subject of this action. Dora Wheeler, the plaintiff, and described in the evidence as an artist of established reputation, returning home from a foreign journey, took passage on the steamer Germanic, and, in addition to her ordinary baggage, delivered to the ship for transportation a package of valuable portraits which she had painted while abroad. These were contained in a box of whitewood, with iron hinges and corher clasps, and closed by a lock. The package itself, besides the address, was marked ‘Studio,’ and its appearance unmistakably indicated something other than and different from the ordinary baggage of a traveler. There was no attempty to deceive the defendant as to its true character, or by artifice or misrepresentation to make it appear to be personal baggage, or shield it as such from proper freight charges. Nevertheless it was not entered upon the bill of lading with notice of its character and value, or in any manner whatever, but was put in the hold of the vessel for transportation to New York. The voyage was unattended by either accident or delay, and it is reasonably certain that the package came in the ship to its port of destination. Arrived at its wharf, the trunks and packages of the passengers were landed upon the dock, each individual being left to find and collect together his own. The package in question was never delivered to its owner, but was probably misdelivered, or permitted to be taken by one having no right to receive it. For the damages thus sustained the plaintiff brought this action, and has been defeated upon a construction of the statute which is challenged upon this appeal. That construction is a very broad one. It denies liability ‘in any form or manner.’ It relieves the ship-owner from all responsibility where the baggage or goods have not been entered upon the manifest. It involves a ruling that he may accept the property for transportation, and yet owe no duty, even of the slightest care, to its owner, who finds that he has put his baggage in a lottery, and must take the chances of its restoration. The goods may be delivered to the wrong person through gross carelessness, or be ruined by inexcusable negligence, or even stolen or converted by the crew, and yet the ship-owner is not liable ‘in any form or manner;’ and such, it is claimed, is both the language and purport of the statute. Its provisions meet the shipper at the port of destination, and place him at the mercy of the owner or master of the vessel. If the property is restored it is through the grace of those in command; if it is not delivered they are not liable for its loss ‘in any form or manner.’ Such construction goes far beyond the due protection of those engaged in the transportation of property, and, instead of merely moderating or lessening their liability, sweeps it all away, and leaves the baggage and property of the passenger protected by no duty, and guarded by no liability. It is quite true that, even upon this construction, the courts would hesitate and halt before a proven theft or an actual conversion, on the ground that the fact and opportunity of transportation did not change the nature or character of such positive wrongs; but there would still remain a gap to be spanned between the actual wrong-doer and the defendant company, and, when safely crossed, as it well might be, the relief would be of little value, since ordinarily the shipper can neither know nor prove the cause of the loss, especially where motive exists for its concealment. If, therefore, the statute admits of a more just construction, and one which, while giving needed protection to the ship-owner, preserves some reasonable duty to the shipper or to the passenger, I think we should not hesitate to adoptit.

The construction which has prevailed eliminates from the statute the words ‘as carrier thereof,’ and gives them no force or meaning. They become wholly superfluous. To us they appear to be vital to the true interpretation. The liability of the carrier as such was well understood by the framers of the statute. It had long been settled so that no one could mistake it. By force of his public employment he became an insurer of the property intrusted to his care, and liable for its loss, irrespective of the cause, unless from the act of God or the public enemy. But involved in this greater liability and absorbed by it was a lesser liability as bailee for hire; of no consequence while the greater liability existed, but surviving the destruction of that, so that when the carrier ceased to be liable as carrier he yet remained liable as bailee. In Dorr v. Navigation Co., 4 Sandf. 145, the doctrine was thus expressed: ‘A common carrier has in truth two distinct liabilities,-the one, for losses by accident or mistake, where he is liable by the custom of the realm or the common law as an insurer; the other, for losses by default or negligence, where he is answerable as an ordinary bailee;’-and the language was cited by the federal court in Railroad Co. v. Lockwood, 17 Wall. 363, and the doctrine approved in Dorr v. Navigation Co., 11 N. Y. 485,...