Wiener v. Compagnie Generale Transatlantique

• Decision Date: 05 December 1932
• Docket Number: No. 52.,52.
• Parties: WIENER v. COMPAGNIE GENERALE TRANSATLANTIQUE.
• Court: U.S. Court of Appeals — Second Circuit

61 F.2d 893 (1932)

WIENER v. COMPAGNIE GENERALE TRANSATLANTIQUE.

No. 52.

Circuit Court of Appeals, Second Circuit.

November 14, 1932.

Rehearing Denied December 5, 1932.

Proskauer, Rose & Paskus, of New York City (J. Alvin Van Bergh and Alfred Appel, both of New York City, of counsel), for appellant.

Haight, Smith, Griffin & Deming of New York City (Wharton Poor and James McKown, Jr., both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The plaintiff was a passenger on the French Line steamship Ile de France sailing from New York to Havre on April 7, 1928. He purchased and paid for his passenger ticket for Havre through an agent of the line, and sent three trunks for shipment to the pier. The day the vessel was to sail, he went down to the pier and saw a man seated at a desk. He asked this man whether he would check the trunks to Paris, and was told that he would. He was also told by the same individual that he would see a representative of the French Line at the Paris station, and that, if the checks were presented to him, he would attend to sending the trunks to the plaintiff's home. The clerk at the pier asked the plaintiff to pay $4.50 for overweight baggage. One of the trunks which was placed in the hold was overweight, and for this excess weight $4.50 was paid; $3 of which was for the rail charge and $1.50 for the ocean carriage. (Fol. 280).

After the foregoing conversation, three checks were given to the plaintiff by the man at the pier, of which No. 67796 was for the trunk in question and read: "Cie Gle. Transatlantique-French Line. Baggage check from New York to Paris." On the reverse side the check read: "Delivery of baggage will be made at destination on surrender of this check."

The plaintiff embarked and toward the end of his ocean voyage purchased on the steamer a railroad ticket from Havre to Paris. On arriving at Paris, he presented his checks to the representative of the French Line at the Paris station and obtained two of his trunks, but failed to obtain No. 67796, which had been destroyed by a fire on the railroad. This was the trunk in the hold.

The steamship ticket was for the transportation of "Mr. & Mrs. William E. Wiener" from "New York to Havre," and contained a clause providing that each passenger should be entitled to the ocean transportation of one trunk not exceeding 150 pounds in weight and should pay $1.50 for each additional piece, provided the above-mentioned weight was exceeded. The ticket also provided that: "No agent or employee of the Company is authorized to vary or modify the terms of the foregoing agreement, and each passenger agrees that this is the only contract had between him and the Company."

This action was brought against the French Line as a common carrier for failure to deliver the plaintiff's trunk at Paris. It is contended by way of defense that the defendant only contracted to carry the trunk to Havre, and that in making the arrangement for delivery in Paris it acted as agent for the railroad and not as principal. It is further said that, if the clerk at the pier arranged for carriage of the trunk to Paris on account of the steamship company, he had no authority to bind it to such a contract.

The trial court directed a verdict for the defendant on the ground that there was no contract made on its behalf to carry plaintiff's trunk beyond its own line, and, if one was attempted, the representative at the pier lacked authority to consummate such an arrangement. From a judgment entered on the verdict, the plaintiff took this appeal.

We think there was ample ground for concluding that the defendant as principal contracted to carry the trunk to Paris. At the time plaintiff made his arrangement with the clerk at the pier, he had not purchased a railroad ticket nor was anything then said about purchasing one. He appears to have been then at liberty to go from Havre to Paris himself by automobile or aeroplane as well as by rail. The fact that some days later he purchased a passenger ticket can have no bearing on the contract to take his trunks. He was told nothing by the clerk about what relation the steamship company had with the railroad, and it was not suggested that the clerk was acting on behalf of the railroad in contracting to carry the trunk from Havre to Paris. Moreover, the clerk's statement to the plaintiff that the latter would see a representative of the French Line at the Paris station who would take his checks and attend to sending the trunks to his home in Paris was an indication that the trunks were to be carried by rail under a contract with the defendant. The checks for the baggage were issued in the name of the French Line, and each read: "Delivery of baggage will be made at destination upon surrender of this check." It is true that a baggage check is a receipt and not in itself a contract of carriage (Isaacson v. New York Central & H. R. Ry. Co., 94 N. Y. 278, at page 286, 46 Am. Rep. 142); but here we have an oral contract of affreightment by rail from Havre to Paris, and the inscription on the check may be regarded as tending to confirm the parol evidence as to what that contract was.

Even though, under the so-called American rule, the initial carrier, in the absence of a special contract, is not subject to liability for damage occurring to baggage after it comes into the possession of a connecting carrier, there was a special contract of affreightment here. The check was not issued upon tickets covering first the line of the initial carrier and then the line of a connecting carrier. Here a contract was made for carriage from Havre to Paris by rail; that carriage was paid for, and there was no accompanying railroad ticket. We think that the defendant acted as principal in making such a contract. Ogdensburg & Lake Champlain R. R. Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; Northern Pac. Ry. Co. v. Amer. Trading Co., 195 U. S. 439, 25 S. Ct. 84, 49 L. Ed. 269; Hutchins v. Pennsylvania R. R. Co., 181 N. Y. 186, 73 N. E. 972, 106 Am. St. Rep. 537; Talcott v. Wabash R. R. Co., 159 N. Y. 461, 54 N. E. 1; Jennings v. Grand Trunk Railway of Canada, 127 N. Y. 438, 28 N. E. 394; Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y. 278, 46 Am. Rep. 142; Millard v. Missouri, K. & T. R. R. Co., 86 N. Y. 441; Condict v. Grand Trunk Ry. Co., 54 N. Y. 500; Van Buskirk v. Roberts, 31 N. Y. 661; Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469; Hart v. Rensselaer & Saratoga R. R. Co., 8 N. Y. 37, 59 Am. Dec. 447.

The contention that the clerk who arranged for the transportation of the trunk by rail lacked authority to contract on behalf of the defendant is without merit. He was in charge of checking baggage, and was supplied with checks for checking trunks from Havre to Paris. The evidence shows that he was clothed with authority, and money was paid to the clerk and retained by defendant in order to cover the railroad carriage. Talcott v. Wabash R. R. Co., 159 N. Y. 461, at page 468, 54 N. E. 1; Isaacson v. New York C. & H. R. R. R....