194 A.D. 278 | N.Y. App. Div. | 1920
The action was to recover from the carrier prepaid freight. The complaint alleges the shipment of 500 bales of cotton from Wilmington, N. C., to Genoa, Italy, and the prepayment of freight charges" amounting to $22,116.96 by the steamship Guadalquiver, pursuant to a bill of lading issued by the master of said vessel, a copy of which is annexed to the complaint and made a part thereof; that the Guadalquiver was. sunk at sea by an enemy submarine and the 500 bales of cotton were wholly lost; that the agreement to'transport the said merchandise was not carried out and the cotton was not delivered to the order of the shippers or their assigns as provided in the bill of lading; demand and refusal of repayment of the prepaid freight. The answer sets up three separate defenses to which the plaintiff demurred for insufficiency. The court overruled the demurrers to the first and third and sustained the demurrer to the second, giving the plaintiff leave to withdraw the demurrers to the first and third defenses and to reply thereto.
The demurrer to the first defense should have been sustained.
The answer admits the issuance of the bill of lading and that the copy attached to the complaint is a correct copy.
It is sought to set up a prior contract, of February first for shipment of these goods and that it was thereby agreed that the freight should be prepaid and that the freight so prepaid should be retained by the defendants in any event, ship or goods lost or not lost, and that the shipment was to be made by Alexander Sprunt & Son in accordance with the regular bill of lading of the defendants, which said bill of lading, as was.
In so far as the defense sets up the insurance and assignment to the insurance company it is insufficient as the complaint alleges such assignment and an assignment by the insurance company to plaintiff; that there has been a mesne assignment of a cause of action is not a defense, if the complaint alleges an assignment by the mesne assignee to the plaintiff prior to the commencement of the action.
In so far as the defense seeks to set up another agreement than that contained in the bill of lading it is insufficient.
It is not alleged that the provision in regard to the retention of prepaid freight was omitted by mistake or fraud, nor that the master did not have authority to issue the bill of lading that was issued. The law is well settled that the bill of lading is not a mere receipt for goods shipped, but is also the contract under which they are shipped and that the terms thereof cannot be varied by extrinsic evidence of a prior contract in relation thereto. (Vittuci Co. v. Canadian Pac. Ry. Co., 238 Fed. Rep. 1005; Germania Fire Ins. Co. v. Memphis & Charlestown R. R. Co., 72 N. Y. 90, 93; Hill v. Syracuse, Binghamton & N. Y. R. R. Co., 73 id. 351.) When we consider that this bill of lading was a negotiable bill, transferable by indorsement, the reason of the rule requiring the bill to be the final statement of the contract becomes evident.
The law is well settled- in this country, contrary to the English cases, that prepaid freight, in the absence of an agreement to the contrary, must be returned to the shipper if the goods do not arrive. (Nat. Steam Nav. Co. v. Int. Paper Co.,
The third defense is predicated upon the clause in the bill of lading that “ this contract- shall be governed by the law of the flag of the vessel carrying the goods; ” that the ship was a Spanish ship and, therefore, the Statute of Limitations of Spain applies. It may well be that the nature, validity and legal effect of the contract are to be governed by the laws of Spain. “It is well settled in this State that a plea of the Statute of Limitations of the State or country where the contract is made is no bar to a suit brought in a foreign tribunal, and the lex fori governs all questions prising under that statute. * * * ‘ Matters respecting the remedy, such as bringing suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.’ ” (Miller v. Brenham, 68 N. Y. 83, 87; New York Life Ins. Co. v. Aitkin, 125 id. 660.)
It is, of course, competent for parties to a contract to establish a shorter or different limitation to the right of action thereunder than that given by statute. The intent to do so must clearly appear from the contract itself, and cannot be inferred from the blind phrase used in this bill of lading.
The demurrer to the third cause of action should have been sustained.
The order, in so far as appealed from, is reversed, with ten dollars costs and disbursements to appellant, and the demurrers to the first and third defenses are sustained, with ten dollars costs.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and demurrer to first and third defenses sustained, with ten dollars costs.