152 N.Y.S. 154 | N.Y. App. Div. | 1915
Lead Opinion
As I view the case it is unnecessary to decide whether the defendant would have been liable for failing to procure the
Under the so-called Carmack Amendment to the Hepburn Bill amending the Interstate Commerce Act, the defendant would have been liable not only for the negligent acts and omissions of its own employees, but for those of connecting carriers resulting in any loss or damage to the goods en route, and also for any loss or damage resulting from the failure of the final carrier to notify the consignee of the arrival of the goods 'at destination and for its failure, on the consignee’s refusing to accept them, to store the goods for the account of the shipper or to exercise proper care in holding them for him. (Adams Express Co. v. Croninger, 226 U. S. 491; Kansas Southern Railway v. Carl, 227 id. 639; Galveston, H. & S. A. R. Co. v. Wallace, 223 id. 481; Atlantic Coast Line v. Riverside Mills, 219 id. 186; Becker v. Pennsylvania R. R. Co., 109 App. Div. 230; Earnest v. D., L. & W. R. R. Co., 149 id. 330; Coovert v. Spokane, P. & S. Ry. Co., 80 Wash 87 ; 141 Pac. Rep. 324; Norfolk & W. R. Co. v. Stuart Draft
I am, therefore, of opinion that the learned Appellate Term erred in reversing the judgment of the Municipal Court (See 85 Mise. Eep. 42), and its determination is reversed, with costs, and the judgment of the Municipal Court affirmed, with costs
Clarke, Scott and Dowling, JJ., concurred; Hotchkiss, J., dissented.
See 34 U. S. Stat. at Large, 838, Res. No. 47.— [Rep.
Dissenting Opinion
On February 8,1912, plaintiff delivered to the defendant in New York city a case of merchandise consisting of dresses or gowns consigned to the People’s Store at Coffeyville, Kans., the shipment being routed over the Santa Fe railroad. It was conceded on the trial that, the goods arrived at their destination within a reasonable time; that the consignee was promptly notified of their arrival; that the consignee in due time notified the agent of the Santa Fe that it refused to accept the shipment, and that notice of this fact was not given to plaintiff until as hereinafter stated.
On or about April twenty-fourth plaintiff received a letter from the consignee saying that it refused to accept the goods.
The question whether the defendant or the Santa Fe were under any duty to promptly notify plaintiff that the consignee had refused to accept the goods is not, I think, in the case, because concededly plaintiff received notice from the consignee that the goods had been rejected, and up to April
We are thus brought to the main question. Because of the exceptions in the bill of lading the defendant cannot be held for any loss unless it be under that part of section 20 of the Interstate Commerce Law known as the Carmack Amendment to the Hepburn Bill. (See 24 U. S. Stat. at Large, 386, § 20, as amd. by 34 id. 593, 595, § 7. See, also, 34 U. S. Stat. at Large, 838, Res. No. 47.) The defendant claims that the act was intended to apply only so long as the goods are en route and the duty of the carrier qua carrier continues; that where transportation has been completed to the ultimate point of delivery and notice of arrival has been given or the fact of arrival has been brought home to the consignee, the obligation of the initial carrier ceases and the act no longer applies. I think this is too narrow a construction and one in accord neither with the letter nor the spirit of the act. The reasons for the passage of the act were judicially noticed in Atlantic Coast Line v. Riverside Mills (219 U. S. 186, 200, 201), where it is said to have been the intention of Congress to give to the shipper the benefit of a through contract against the initial carrier and to relieve him in case of loss or damage from being compelled to go to some distant point and there inconveniently and
‘ If the consignee neglect to accept or to receive the goods, the carrier is not thereby justified in abandoning them, or in negligently exposing them to injury. If they are not accepted and received when notice is given of their arrival, he may relieve himself from responsibility by placing the goods in a warehouse for and on account of the consignee, but so long as he has the custody, a duty devolves upon him to take care of the property and preserve it from injury.’ (Scheu v. Benedict, 116 N. Y. 513.) ” This duty does not arise out of any new agreement but is an implied obligation growing out of the original contract of carriage. (Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155; Great Western Ry. Co. v. Crouch, 3 Hurlst. & N. 183, 195; Metzenburg v. Highland Ry. Co., 7 Scotch Sess. Cas. [3d series (1869)] 919, 922.) As I have shown, the breach of duty in this case arose from the misinformation given by the Santa Fe concerning the fact of delivery, thus preventing plaintiff from securing a return of the goods in time to enable him to sell them fór a sum which then represented
I think the determination was right and should be affirmed.
Determination reversed, with costs, and judgment of Municipal Court affirmed, with costs.