147 N.Y.S. 313 | N.Y. App. Div. | 1914
This action is brought to recover damages to a consignment of 138 bales of cotton alleged to have been caused by fire on one of defendant’s lighters in the port of New York on which it was being transferred from defendant’s steamer, on which it had been transported from Galveston, Tex., to the Maine Steamship Company as a connecting carrier.
The cotton was delivered at Childress, Tex., to the Fort
The question presented for decision is whether, by the express terms of the bill of lading, the provisions of section 4282 of the Revised Statutes of the United States have been waived by the carrier. That section- provides as follows: “No owner of any vessel shall be liable to answer for or make good to any person any loss or damage which may happen to any merchandise whatsoever, which shall -be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner.” These provisions were originally enacted in substantially the same form in the act of Congress of March 3, 1851 (9 U. S. Stat. at Large, 635, chap. 43, § 1), which was an act relating to the limitation of the liability of shipowners. As originally enacted, it contained a provision as follows: “ That nothing in this act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of ship-owners; ” but by the subsequent revision that sentence has been omitted. By section 1 of the original act (Id. 636) it was provided that the act should not apply “to the owner or owners of any canal boat, barge or lighter, or to any vessel of any description whatsoever, used in rivers or inland navigation.” This section was revised by section 4289 of the Revised Statutes of the United States (as amd. by 18 U. S. Stat. at Large, 316, 320, chap. 80, § 1). By section 4 of the act of Congress of June 19, 1886 (24 U. S. Stat. at Large, 80, chap. 421), section 4289 of the Revised Statutes of the United States was amended so as to make the provisions first quoted applicable “to all sea-going vessels, and also to all vessels used on lakes or rivers or in inland navigation, including canal-boats, barges and lighters.” It is quite plain, therefore, that by virtue of the provisions of said section
The bill of lading in question is known as a uniform bill of lading, which was evidently prepared under the supervision of the Interstate Commerce Commission, and agreed upon by shippers and carriers, after a series of conferences between them and the Interstate Commerce Commission. (See Matter of Bills of Lading, 14 I. C. C. Rep. 346; 29 id. 417.) The only provisions of the bill of lading expressly referring to carriers by water are one in section 3, by which it is provided that in case of physical necessity the carrier shall have the right to forward the property “by any railroad or route between the point of shipment and the point of destination; but if such diversion shall be from a rail to a water route the liability of the carrier shall be the same as though the entire carriage were by rail; ” and in section 9, the provisions of which, material to the question presented by the appeal, are as follows: “Except in case of diversion from rail to water route, which is provided for in section 3 hereof, if all or any part of said property is carried by water over any part of said route, such water carriage shall be performed subject to the liabilities, limitations and exemptions provided by statute and to the conditions contained in this bill of lading not inconsistent with such statutes or this section, and subject also to the condition that no carrier or party in possession shall be liable for any loss or damage resulting from the perils of the lakes, sea, or other waters; or from explosion, bursting of boilers, breakage of shafts, or any latent defect in hull, machinery, or papurtenances; or from collision, stranding, or other accidents of navigation, or from prolongation of the voyage. * * * The term ‘ water carriage’ in this section shall
The respondent relies on the last sentence quoted from said section 9, and contends that the effect thereof is to waive the Federal statutory exemption from liability for fire on a lighter in a harbor, occurring without its design or neglect, and to make the liability of a carrier by water for freight in such case governed by the provisions of section 1 of the bill of lading, which are as follows: “ The carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided. No carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, or the act or default of the shipper or owner, or for differences in the weights of grain, seed, or other commodities caused by natural shrinkage or discrepancies in elevator weights. For loss, damage, or delay caused by fire occurring after forty-eight hours (exclusive of legal holidays) after notice of the arrival of the property at destination or at port of export (if intended for export) has been duly sent or given, the carrier’s liability shall be that of warehouseman only. Except in case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession), the carrier or party in possession shall not be liable for loss, damage, or delay occurring while the property is stopped and held in transit upon request of the shipper, owner, or party entitled to make such request; or resulting from a defect or vice in the property or from riots or strikes. When in accordance with general custom, on account of the nature of the property, or when at the request of the shipper the property is transported in open cars, the carrier or party in possession (except in case of loss or damage by fire, in which case the liability shall be the same as though the property had been carried in closed
It is contended by the learned counsel for the respondent that the bill of lading should be construed strictly against the carrier. That is the ordinary rule where exemption is claimed by the carrier on the contract evidenced by the bill of lading pre
The demurrer, therefore, should have been overruled. It follows that the order should be reversed, with ten dollars costs and disbursements, and demurrer overruled, with ten dollars costs, but with leave to plaintiff to withdraw the demurrer on payment of the costs of the appeal and of the motion.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Order reversed, "with ten dollars costs and disbursements, and demurrer overruled, with ten dollars costs, with leave to plaintiff to "withdraw demurrer on payment of costs in this court and in the court below. Order to be settled on notice.