Fonseca v. Cunard Steamship Co.
27 N.E. 665
Mass.
1891
Check Treatment
Knowlton, J.

It is not expressly stated in the report, that the law of England was put in evidence as a fact in the case, but it seеms to have been assumed at the trial, if not expressly agreed, that this law should be considered, and the argument before this court has proceeded on the same assumption. It is conceded that the presiding justice correctly found and ruled as follows: “ That the contract was a British contract; that, by the English law, a carrier may by сontract exempt himself from liability, even for loss caused by his negligence; that in this case, as the carrier has so attempted, and the terms are broad enough to exonerate him, the question remains of assent on thе part of the plaintiff.” That part of his ruling which is called in question by the defendant is as follows: “ This has been decided in Massachusetts to be a question of evidence, in which the lex fori is to govern; that although it has been decided that the law conclusively presumes that a consignor knows and assents to the terms of a bill of lading or a shipping recеipt which he takes without dissent, ‍​‌​​‌​‌​​‌‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌‌​​​​​​‌​‌‌​​‍yet a passenger ticket, even though it be called a ‘ contract ticket,’ dоes not stand on the same footing ; that in this case assent is not a conclusion of law, and is not proved as а matter of fact.”

The principal question before us is whether the plaintiff, by reason of his acceptаnce and use of his ticket, shall be conclusively held to have assented to its terms. It has often been decided, that one who accepts a contract, and proceeds to avail himself of its provisions, is bound by thе stipulations and conditions expressed in it, whether he reads them or not. Rice v. Dwight Manuf. Co. 2 Cush. 80. Grace v. Adams, 100 Mass. 505. Hoadley v. Northern Transportation Co. 115 Mass. 304. Monitor Ins. Co. v. Buffum, 115 Mass. 343. Germania Ins. Co. v. Memphis & Charlestown Railroad, 72 N. Y. 90. This rule is as applicable to contracts for the carriage ‍​‌​​‌​‌​​‌‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌‌​​​​​​‌​‌‌​​‍of persons or property as to contracts of any other kind. Grace v. Adams, 100 Mass. 505. Boston & Maine Railroad v. Chipman, 146 Mass. 107. Parker v. South Eastern Railway, 2 C. P. D. 416, 428. Harris v. Great Western Railway, 1 Q. B. D. 515. York Co. v. Central Railroad, 3 Wall. 107. Hill v. Syracuse, Binghamton, & New *556York Railroad, 73 N. Y. 351. The cases in which it is held that one who receives a ticket that appears to be a mere check showing the points between which he is entitled to be carried, and that contains conditions on its back which he does nоt read, is not bound by such conditions, do not fall within this rule. Brown v. Eastern Railroad, 11 Cush. 97. Malone v. Boston Worcester Railroad, 12 Gray, 388. Henderson v. Stevenson, L. R. 2 H. L. Sc. 470. Quimby v. Vanderbilt, 17 N. Y. 306. Railway Co. v. Stevens, 95 U. S. 655. Such a ticket does not purport to be a contract whiсh expressly states the rights of the parties, but only a check to indicate the route over which the passenger is to be carried, and he is not expected to examine it to see whether it contains any unusual stipulаtions. The precise question in the present case is whether the “ contract ticket ” was of such a kind that thе passenger taking it should have understood that it was a contract containing stipulations ‍​‌​​‌​‌​​‌‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌‌​​​​​​‌​‌‌​​‍which would determine thе rights of the parties in reference to his carriage. If so, he would be expected to read it, and if he fаiled to do so, he is bound by its stipulations. It covered with print and writing the greater part of two large quarto pagеs, and bore the signature of the defendant company affixed by its agent, with a blank space for the signature of the passenger. The fact that it was not signed by the plaintiff is immaterial. Quimby v. Boston § Maine Railroad, 150 Mass. 365, and cases there cited. It containеd elaborate provisions in regard to the rights of the passenger on the voyage, and even went into such dеtail as to give the bill of fare for each meal in the day for every day of the week. No one who cоuld read could glance at it without seeing that it undertook expressly to prescribe the particulars which should govern the conduct of the parties until the passenger reached the port of destination. In that particular, it was entirely unlike the pasteboard tickets which are commonly sold to passengers on railroаds. In reference to this question, the same rules of law apply to a contract to carry a passеnger, as to a contract for the transportation of goods. There is no reason why a consignor who is bоund by the provisions of a bill of lading, which he accepts without reading, should not be equally bound by the terms of a cоntract in similar form to receive and transport him as a passenger. In *557Henderson v. Stevenson, ubi supra, the ticket was for transportation a short distance, from Dublin to Whitehaven, and the passenger was held not bound to read the notice on the back, because it did not purport to be a contract, but a mere check given as evidence ‍​‌​​‌​‌​​‌‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌‌​​​​​​‌​‌‌​​‍of his right to carriage. In later English cases, it is said that this decision went to the extreme limit of the law, and it has repeatedly been distinguished from cases where the ticket was in a different form. Parker v. South Pastern Railway, 2 C. P. D. 416, 428. Burke v. South Eastern Railway, 5 C. P. D. 1. Harris v. Great Western Railway, 1 Q. B.D. 515. The passenger in the last mentioned case had a coupon ticket, and it was held that he was bound to know what was printed as a part of the ticket. Steers v. Liverpool, New York, Philadelphia Steamship Co. 57 N. Y. 1, is in its essential facts almost identical with the case at bar, and it was held ‍​‌​​‌​‌​​‌‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌‌​​​​​​‌​‌‌​​‍that the passenger was bound by the conditions рrinted on the ticket. In Quimby v. Boston Maine Railroad, ubi supra, the same principle was applied to the case of a passenger travelling on a free pass, and no sound distinction can be made between that case and the casе at bar.

We are of opinion that the ticket delivered to the plaintiff purported to be a contrаct, and that the defendant corporation had a right to assume that he assented to its provisions. All these provisions are equally binding on him as if he had read them.

The contract being valid in England, where it was made, and the plaintiff’s acceptance of it under the circumstances being equivalent to an express assent to it, and it not being illegal or immoral, it will be enforced here, notwithstanding that a similar contract made in Massachusetts would be held void as against public policy. Greenwood v. Curtis, 6 Mass. 358. Forepaugh v. Delaware, Lackawanna, Western Railroad, 128 Penn. St. 217, and cases cited. In re Missouri Steamship Co. 42 Ch. D. 321, 326, 327. Liverpool & Great Western Steam Co. v. Phenix Ins. Co. 129 U. S. 397.

Judgment for the defendant.