Josephy v. Panhandle & Santa Fe Railway

139 N.E. 277 | NY | 1923

The defendant, Panhandle and Santa Fe Railway, issued a bill of lading in which it acknowledged receipt of certain packages marked as containing dressed poultry, "the contents and condition of contents of packages unknown."

Relying on this bill of lading, plaintiffs paid a draft for $4,000 drawn by the shipper. Some of the packages instead of containing poultry were packed with rabbits and eggs. A verdict was directed in favor of the plaintiffs for $2,019.43, the amount of the damage claimed.

Section 21 of an act of Congress, effective January 5, 1917, entitled: "An Act relating to bills of lading in interstate and foreign commerce," commonly called the Pomerene Act, provides that where a bill of lading contains a statement that "the contents or the conditions of the contents of the packages are unknown, such statements, if true, shall not make liable the carrier issuing the bill of lading, although the goods are not of the kind or quantity or in the condition in which the marks or labels upon them indicate or of the kind or quantity or in the condition they were said to be by the consignor."

In this case the bill of lading states in so many words that the contents and condition of contents of packages are unknown. The effect of this recital is not overcome by the following words which are emphasized by counsel for the plaintiffs.

"Description of Articles | Weight and Special Marks (Subject to Correction) Dressed Poultry | 20,000 Lbs."

These words amount to nothing more than a statement of the description supplied by the consignor. They do not revoke or overrule the defendant's express disclaimer of knowledge of the contents. (Dworkwitz v. N.Y.C.R.R. Co., 230 N.Y. 188.) It is unnecessary for the carrier to insert in the bill the words: "shipper's weight, load and count," or other words of like import, when it plainly appears that contents are unknown to the carrier and that the words of description are the words of the consignor and are superfluous except for purposes of identification. (Leigh Ellis Co. v. Payne, 274 Fed. Rep. 443; affd., on other grounds, 276 Fed. Rep. 400.) The carrier says that the contents of the packages are unknown, but that the description is as stated. No inconsistency arises. (Miller v.Hannibal St. Joseph R.R. Co., 90 N.Y. 430.)

Section 22 of the Pomerene Act reads as follows:

"If a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to (a) the owner of goods covered by a straight bill subject to existing right of stoppage in transit or (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, for damages caused by the non-receipt by the carrier of all or part of the goods or their failure to correspond with the description thereof in the bill at the time of its issue."

Plaintiffs urge that this language enlarges their remedy against the carrier on the bill in suit. Such is not its purpose. Prior to the enactment of this statute the United States courts held that a carrier was not liable for the act of its agent in issuing a bill of lading for goods where no goods had been in fact received. (Freidlander v. Texas P.R. Co.,130 U.S. 416; Missouri Pacific R. Co. v. McFadden, 154 U.S. 155.) The statute (Section 22, supra) incorporates the contrary New York rule (Bank of Batavia v. N.Y., L.E. W.R.R. Co., 106 N.Y. 195) and changes the rule of the United States courts. It is to be read in subordination to and in harmony with section 21,supra. The New York decisions and the Bills of Lading Act are in accord on this point.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN and ANDREWS, JJ., concur; CRANE, J., dissents.

Judgments reversed, etc.