147 N.Y.S. 794 | City of New York Municipal Court | 1914
The complaint in this action alleges: That the defendant was engaged in the transportation of property partly by railroad and partly by water in conjunction with other common carriers under an arrangement for a continuous carriage or shipment from one state of the United States, the state of Texas, through another state of the United States, the state of New York, to an adjacent foreign country, the Dominion of Canada. That on or about April 15, 1912, at Cleburne, in the state of Texas, there was delivered to the defendant, as a common carrier, and as the initial carrier, certain property consisting of 31 bales of cotton consigned to shipper’s order at Kingston, Ontario, Canada, notify the Dominion Textile Company, Limited, Kingston Branch, at Kingston, Ontario." That at said time the defendant accepted and received the property, and foir a valuable consideration promised and agreed to carry and deliver the same to the consignee in the same order and condition in which it was received, and duly issued its bill of lading therefor. That such cotton, at the time of the delivery to the defendant, was in good order and condition and the property of Lake Bros, of New York City. That the defendant, or.common carrier, railroad or transportation company en route, to whom it delivered said property, or over whose line or lines said property passed, negligently conducted itself or themselves in the custody, control, transportation, and care of the property, and so negligently dealt with, cared for, and transported said property that the 31 bales and its contents were partially destroyed and otherwise damaged to the amount of $398.10, and also alleges an assignment by Lake Bros, to the plaintiff. The answer denies the material allegations of the complaint, and alleges for a second and complete defense: That on or about April 15, 1912, there was delivered to the defendant at Cleburne, Tex., a certain shipment consisting of 31 bales, said to contain cotton, being the property referred to in the complaint, consigned to shipper’s order, Kingston, Ontario, notify the Kingston Textile Company, Limited, Kingston, Ontario, to be transported by defendant to Galveston, Tex., and there delivered to the Mallory Steamship
“Sec. 20. That any common carrier, railroad, or transportation company, 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 shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it, or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.”
The property in question was received by the defendant for transportation. Was it received “for transportation from a point in one state to a point in another state,” within the meaning of the act ? If this question is answered in the affirmative, then the contract which is alleged in the second defense of the answer, the defense demurred to, is apparently void, for the reason that such contract seeks to confine the liability of the defendant to loss upon its own line as part of the through route, which would1 be in contravention of the statute. It may be conceded that the shipment in question was interstate commerce. It is provided by the first section of the act that its provisions shall apply to any common carrier engaged in the transportation of property wholly by railroad (or partly by railroad and partly by water when both are used in the common control, management, or arrangement for a continuous carriage or shipment) from one state or territory of the United States, or the District of Columbia, to any other state or territory of the United States, or the District of Columbia, or from one place in a territory to another place in the same territory, or from any place in the United States to an adjoining foreign country, or from any place in the United States through a foreign country to any other place in the United States, etc.
The general purpose of the Interstate Commerce Act and the results sought to be accomplished thereby are entirely different and distinct from those of the Carmack Amendment. The former aimed at correcting abuses arising from rebating and discriminating among shippers. The latter sought to relieve shippers from the difficulty, and oftentimes impracticability, of tracing loss through consecutive carriers so as to obtain redress from that one through whose default the loss occurred. The language of the amendment is new and different legislation, and not at all germane to the general purpose of the statute. When the amendment was enacted, Congress had before it the provisions of section 1, to which reference has been made, relative to the general application of the act to carriers engaged in transportation
The amendment is a radical departure from the rule theretofore governing the liability of carriers, and its effect should not be extended beyond the clear meaning of the language used and its evident purpose. I am therefore of opinion that the shipment in question, having been received for transportation from a point in a state of the United States, destined to an adjoining foreign country, does not come within the meaning of the Carmack Amendment, even though .such transportation required the passage of the property through another state of the United States. The points from and to which property is received for transportation are determined, as it seems to me, by the contract of carriage, and these, as appears from the allegations of the second defense, were Cleburne, Tex., and Kingston, Ontario; and in fact the same appears in the complaint. The question has received consideration in Houston Ry. Co. v. Inman (Tex. Civ. App.) 134 S. W. 275, and Texas R. R. Co. v. Sabine Tram. Co., 227 U. S. 111, 33 Sup. Ct. 229, 57 R. Ed. 442.
For these reasons I conclude that the demurrer is not well taken and should be overruled, with the privilege to- the plaintiff of withdrawing the same on the payment of $5 costs.