186 N.E. 214 | NY | 1933
The action is in conversion to recover the value of six separate shipments of motor trucks and parts carried by defendant and delivered at destination to an *95 unauthorized person without surrender of the outstanding order bills of lading.
The shipments were from Buffalo, N.Y., to ports in Morocco, and were consigned to the order of the shipper, notify X. Drafts for their value, drawn by the shipper upon X payable to the plaintiff, to which were attached the bills of lading indorsed in blank by the shipper, were delivered to the plaintiff and by it forwarded to its Morocco correspondent for collection. They were presented to X for acceptance but none was accepted. Nevertheless, the defendant delivered the shipments to X against a bank guaranty for its own protection.
The bills of lading provided, among other things, that in case of failure to make delivery, notice of loss in writing must be given to the defendant within a specified time after delivery should have been made; that written claims must be filed within a specified time after giving the aforesaid notice; that unless the notice be so given and the claim be so filed, defendant should not be liable; and that no suit for loss should be maintained unless instituted within one year after giving the written notice. There is no question here as to the reasonableness of the time limitations, nor as to the fact that none of the above provisions was complied with.
Such non-compliance constitutes defendant's answer to plaintiff's claim. The question is whether or not that answer is good in point of law.
Plaintiff says it brings the action on the theory that the contracts of carriage and the ensuing transportation were wholly controlled by the general maritime law, under which defendant's essential obligation was safely to carry and rightly deliver the shipments; that the willful misdelivery breached that obligation and constituted a conversion, thereby estopping defendant from claiming any benefit from the notice clauses and rendering it liable to plaintiff, as in tort.
It has been said that to denounce an act of an ocean *96
carrier as conversion is, in the admiralty, "only calling bad names." (HOUGH, J., The Cabo Villano,
Within the limits prescribed by legislation and public policy, maritime contracts of carriage may, like any other, include provisions excepting certain risks or limiting and defining the relations of the parties. (Tewes v. North German Lloyd S.S.Co.,
It is conceded that there is no legislation regulating or forbidding the notice clauses here in question, nor are they opposed to public policy. (Georgia, F. A. Ry. Co. v. BlishMilling Co.,
We come then directly to the point of whether misdelivery is covered by the notice clauses in question, and if so, whether defendant may have the benefit of them.
The bills of lading under which the shipments were made were issued pursuant to certain Federal statutes. (The Harter Act, 27 U.S. Stat. 445; 46 U.S. Code, § 190; The Bill of Lading Act, 39 U.S. Stat. 538; 49 U.S. Code, § 81.) Their proper construction is a Federal question. (Chesapeake O. Ry. Co. v. Martin,
The need for uniformity in effect as well as in construction of bills of lading, is obvious and persuasive. Both in legislation and in judicial decision the tendency has been toward uniformity. (Cf. The Lake Galera,
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; HUBBS, J., not sitting.
Judgment accordingly. *99