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It is now the settled law of this State, that it is competent for a common carrier and the owner of goods, by agreement, to establish conditions of liability different from those which the law imposes upon the carrier in the absence of any special agreement. (Dorr v. The N.J.S. Nav. Co., 11 N.Y., 485;Bissell v. N.Y.C.R.R. Co., 25 N.Y., 442.) The question upon this appeal is, whether the exception contained in the bill of lading is comprehensive enough to embrace and excuse the act of the servant of the defendants, which occasioned the loss in question. Although the contract in question contains provisions which appear to be somewhat extraordinary; yet it is entitled to a fair construction, as it is the agreement to which the plaintiffs consented and they therefore must be bound by it. From a careful examination and consideration of the instrument in question, I am convinced that the parties could not have intended, by the exception contained in the bill of lading, to embrace and excuse an act of gross carelessnesss, such as occasioned the loss in question. It is obvious, to my mind, that they contemplated only those hazards which attended the transportation of the goods in question, and could not have intended to relieve the defendants from liability, for the negligent act of their servant in delivering the case of goods to a person who exhibited no authority from the plaintiffs to receive it, and who was not, in fact, by them thus authorized; and that, too, after the goods had been removed from the ship to the wharf. The conduct of the defendants' servant exhibited extreme carelessness, if not recklessness, in delivering the merchandise in question to a stranger, who did not produce any authority from the plaintiffs to receive the same. It would be establishing a dangerous rule, to authorize a common carrier to deliver the property of the owner to whomsoever should demand the same, without producing some evidence of authority from the
owner to receive the delivery thereof. The defendants might almost as well have thrown the case of merchandise into the ocean, and then sought protection under the bill of lading. I, therefore, conclude that a reasonable construction of the instrument in question does not excuse the defendants from liability, and that the decision of the referee was correct. The judgment should be affirmed, with costs.
All concur for affirmance except SUTHERLAND and GROVER, JJ., who did not vote.
Judgment affirmed.