This action was brought to recover the value of the plaintiff's trunk, and wearing apparel therein contained, which was delivered to the defendant company for transportation from New York to Bremen on the North German Lloyd steamship Grosser Kurfürst, to sail June 28th, 1900, at twelve o'clock noon, but which, by reason of the negligence of one of the defendant's employees, was *Page 160 placed on the wrong pier, and was not, therefore, placed on board of the vessel when she sailed, and was subsequently destroyed by fire. The question arising upon the trial with reference to the delivery of the trunk to the defendant and the negligently placing of it upon the wrong pier, was settled by the verdict of the jury and the unanimous affirmance of the judgment entered thereon by the Appellate Division.
The plaintiff had previously procured a ticket from the defendant's office for his transportation from New York to Bremen on the steamship named, which contained the condition to the effect that the defendant should not be liable "for loss of or injury to or delay in delivery of luggage or personal effects of the passengers beyond the amount of fifty dollars, unless the value of the same in excess of that sum be declared at or before the issue of this contract, or at or before the delivery of said luggage to the ship, and freight at current rates for every kind of property is paid thereon." The court, in its charge to the jury, submitted the question as to whether the plaintiff had his attention called to this condition embraced in the ticket at the time he procured the same, or that he knew of the provision at the time of the delivery of the trunk to the defendant. For the purpose of this case I shall assume, but without determining it, that the plaintiff was chargeable with constructive notice of this provision contained in the ticket, and that the court improperly submitted that question to the jury. But it could not possibly have harmed the defendant, if, under the plaintiff's contention, the proper construction of the contract is that it did not relate to the loss or injury of baggage occurring through the negligence of the defendant or of its employees. There was no declaration made on behalf of the plaintiff of the value of the trunk and contents before its delivery to the ship. The defendant asked the court to charge that there can be no recovery for more than fifty dollars. This was refused, and the question is, therefore, presented as to the meaning of this provision. It will be observed that the limitation of the liability of fifty dollars is for the loss or injury to or delay in delivery of luggage *Page 161 or personal effects of the passengers. Nothing is said with reference to negligence of the defendant or of its servants. The limitation of fifty dollars is to the cases of loss, injury or delay therein referred to. At common law the vessel owners were held to strict liability for the care of property delivered to them. They were practically insurers and liable for the property without regard to the question of negligence. It was doubtless for the purpose of relieving the defendant from its strict liability under the common law that the clause in question was inserted in the contract, and not for the purpose of relieving the defendant from its negligence. If common carriers of persons and property are to be relieved from liability for their acts of negligence, then they are no longer under legal obligation to exercise any care or caution with reference to property delivered into their custody for transportation. They may leave it in dangerous or unguarded places, subject to the action of thieves or to injury by reason of storms. They may dump it wherever the whim of a careless or reckless employee may suggest or find most convenient for his purpose. They may put a traveler's trunk on board or leave it, as the inclination of the servant may dictate, and they would be under no obligation to keep a record of it or to aid owners in tracing it in case of loss, for they would owe him no legal duty with reference to its care, protection or even delivery. This is what is meant by the relieving of common carriers from liability for negligence with reference to property delivered to them for transportation. A contract, therefore, which is claimed to relieve a common carrier from negligence should be carefully scrutinized. As was said by MAYNARD, J., in the case of Rathbone v. N.Y.C. H.R.R.R. Co. (140 N.Y. 48): "It is well settled that these stipulations in the contract will not be construed to relieve the carrier from liability for his own negligent acts. His duty and obligation to exercise a proper degree of care of the property while in his custody is not affected by them. Full and sufficient scope is given to their operation when it is held that they exempt the carrier from his common-law responsibility *Page 162 as an insurer of the property. It is not reasonable to suppose that the party intended to contract that a bailee for hire might with impunity be careless and remiss in the discharge of the trust reposed in him. If such a result is intended it must be so stated expressly and unequivocally in the contract. General words are not sufficient. Notwithstanding the contract of shipment in this case, defendant's liability for negligence in the handling and transportation of the property remained unimpaired, unless there is some other ground upon which exemption can be predicated." (Magnin v. Dinsmore, 56 N.Y. 168; Minard v.Syracuse, B. N.Y.R.R. Co., 71 N.Y. 180; Nicholas v. N.Y.C. H.R.R.R. Co., 89 N.Y. 370; Jennings v. Grand Trunk R. Co.,127 N.Y. 438.)
I consequently conclude that the losses referred to in the contract had reference to the common-law liability of the common carrier, but not including losses which occurred by reason of the carrier's negligence. It is claimed, however, that a shipper may agree upon the value of the property shipped, and that such an agreement is binding upon him. Very true, if he so expressly agrees. (Zimmer v. N.Y.C. H.R.R.R. Co., 137 N.Y. 460.)
But in this case it appears from the evidence that he did not know of the condition limiting the defendant's liability as expressed in the ticket delivered to him, and that he did not have his attention called thereto at the time he purchased the ticket. He at most, therefore, is chargeable only with constructive notice of such a limitation. The trunk lost contained nothing but ordinary wearing apparel, such as was customary for travelers to take on journeys of this character. The value, while exceeding the limitation expressed, did not exceed that ordinarily contained in the luggage of passengers. There was, therefore, no deception as to its character or contents, and it, therefore, is distinguishable from the case ofMagnin v. Dinsmore (62 N.Y. 35). In that case a box contained bills, checks, and notes of over £ 4,000 in value, $20,000. Its contents had not been disclosed to the carrier who was deceived with reference thereto. It, therefore, *Page 163 appears to me that the restriction as to the amount of the liability contained in the ticket had reference to the losses therein contemplated; and the losses therein contemplated not having reference to losses occurring through negligence, the limitation did not relate to such losses. In the case of Bermel v. N.Y., N.H. H.R.R. Co. (62 App. Div. 389) the common carrier had inserted in the bill of lading a limitation as to the value of the property shipped, with similar conditions to those which we have had under consideration. In that case it was held, by the unanimous decision of the Appellate Division, second department, that the conditions and the limitation as to value had reference to the losses occurring otherwise than through the negligence of the carrier for which it would be liable at common law, and that, therefore, the shipper had the right to recover for all the damages suffered by him by reason of the carrier's negligence. This case was affirmed in the Court of Appeals upon the opinion written in the Appellate Division by WOODWARD, J. (172 N.Y. 639). In Kenney v. N.Y.C. H.R.R.R. Co. (125 N.Y. 422), GRAY, J., says: "The rule is firmly established in this state that a common carrier may contract for immunity from its negligence, or that of its agents; but that, to accomplish that object, the contract must be so expressed, and it must not be left to a presumption from the language. Considerations based upon public policy and the nature of the carrier's undertaking influence the application of the rule and forbid its operation, except where the carrier's immunity from the consequences of negligence is read in the agreement ipsissimis verbis." (See, also, Wheeler v. Oceanic Steam Navigation Co., 125 N.Y. 155 -160; Johnston v. Fargo, 184 N.Y. 379; Jennings v.Grand Trunk R. Co., 127 N.Y. 438-450, and authorities cited in the foregoing cases.)
The judgment should be affirmed, with costs.
GRAY, EDWARD T. BARTLETT and HISCOCK, JJ., concur with WERNER, J.; CULLEN, Ch. J., concurs with HAIGHT, J.; O'BRIEN, J., absent.
Judgment reversed, etc. *Page 164