76 N.Y.S. 806 | N.Y. App. Div. | 1902
The action is brought to recover the value of two trunks and contents which the complaint alleges that the defendant received from him or from his assignor on the 9th day of July, 1900, at Bremen, in the Empire of Germany, for a valuable consideration, under a contract by which the defendant undertook to carry, transfer and deliver them to him at No. 18 Waterloo street, Hove-Brighton,
It further appeared, either by oral evidence or written stipulation, that at the time of this transaction there were no trans-channel steamers stopping at Hove-Brighton ; that the place was not a sea.port; that the person who received and receipted for the baggage at Bremen disposed of it in the usual and customary manner; that he did not promise or agree with the plaintiff to forward the trunks on any one of the defendant’s steamers; that he did not represent to the plaintiff that they would not be detained by the British customs authorities, and in fact that he had no conversation at all with the plaintiff.
The receipt, so far as material, is as follows : “North German "Lloyd, Baggage Department, Bremen. Received from S. S.. Grosser Kurfürst two trunks for transfer by slow freight to Charles "N. Parker, via London, 18 Waterloo street, Hove-Brighton.”
Upon this proof the learned trial justice directed a verdict in favor of the plaintiff for the agreed value of the trunks and contents, on the theory that the defendant received the trunks at Bremen under a contract to carry them to the plaintiff at Hove-Brighton, and that ¡the liability of the defendant is accordingly that of an insurer.
The many cases cited by the learned counsel for the plaintiff have no direct application. They are chiefly cases where goods have been delivered by the owner or shipper to express companies under undoubted contracts to carry, and the disposition of the actions chiefly turns upon the effect and validity of conditions contained in the receipts designed to limit the liability of the carrier.
But aside from the general question of the defendant’s liability under the terms of the receipt, I think the peril which destroyed the property was beyond any guaranty assumed. The case of Howell v. Grand Trunk Ry. Co. (92 Hun, 423) seems quite decisive. There the plaintiff had purchased a ticket at Blythe,, Canada, for passage over the defendant’s road to Suspension Bridge, in this State, and his baggage, checked for the same destination, was destroyed by fire at the custom house in the latter place on the night of its arrival. In holding that the plaintiff could not recover the amount of his loss from the common carrier, the court said (p. 424): “ Prior to the fire, and on its arrival at Suspension Bridge, the baggage was taken into the possession of the customs officers of the United States, pursuant to the statute and regulations of that government relating to customs^ and remained in the possession and cus
This reasoning applies to the case at bar, and is equally applicable where the fire occurs in transit as where it occurs in the custom house at the place of destination. There is no proof of deviation and nothing tending in any way to charge the defendant, directly or indirectly, with the fire at Queensboro pier. The parties must be presumed to have contracted with the common knowledge of the necessity for customs detention and inspection, and the burden was on the plaintiff to make provision for the passage of his property beyond the borders of the foreign territory, if non-dutiable. The defendant was wholly powerless to prevent its seizure and detention, and, on the authority of the case cited, cannot be held liable for its destruction while in the possession of the foreign government .by a fire which it did not occasion and which it could not by any possible act of diligence have prevented.
The plaintiff offered some evidence, which was rejected, and which was apparently offered for the purpose of enlarging or varying the terms of the receipt. The rejection was not erroneous. (Long v. N. Y. C. R. R. Co., 50 N. Y. 76; White v. Ashton, 51 id. 280; Hinckley v. N. Y. Cen. & H. River R. R. Co., 56 id. 429, 432.)
The judgment should be reversed.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.