[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 In the case of Belger v. Dinsmore (51 N.Y., 166) it was decided that in the absence of fraud, concealment or improper practice, the legal presumption is that *Page 5 stipulations limiting the common-law liability of common carriers, contained in a receipt given by them for freight, were known and assented to by the party receiving it. In that case the decision in Blossom v. Dodd (43 N.Y., 264) was examined and shown to be entirely consistent with the conclusion arrived at. I do not perceive any distinction growing out of the fact, that in the case before us the subject was the transportation of a passenger and her baggage, which can render the decision inapplicable. The plaintiff, by her agent, was an applicant for a passage to Europe by the defendant's ship, the voyage to be commenced at a future day, and received on payment of the price a written engagement from the defendant expressing its undertaking. A printed fac simile of this paper is before us, and although part of it is in smaller type than the rest, no part of it is in such type as to suggest to the mind the idea of concealment as the possible motive for its being thus printed. It is all printed on one side of the paper, and all the printed matter precedes the signature of the agent of the defendant. That the plaintiff herself never read the paper is of no moment. The arrangement was made by her agent, who must be presumed to have acquainted himself with the terms of the engagement which the defendant assented to. Looking to the course of business, the court may take notice that an engagement for a voyage across the ocean is a matter of more deliberation and attention than buying a railroad ticket or taking an express company's receipt for baggage or for freight. There is, therefore, no room in such a case for the suggestion that the party is surprised into a contract, when he supposes himself only to be taking a token indicative of his right. The paper in evidence ought, therefore, to be regarded as having received the mutual assent of the parties, and as being, as its language purports, their contract touching the voyage in question.
Assuming then that we have in the paper in question the contract of the parties, the first inquiry which arises under it relates to the following clause: "Twenty cubic feet of *Page 6 luggage is allowed to each passenger, free of charge, in consideration of which it is agreed, that the company are not to be held liable or responsible for any loss or damage thereto, in any sum, except where the same shall have been proven to have occurred from gross negligence of said company or their servants." While the cases of Belger v. Dinsmore, before cited, and Cochran v. Dinsmore (49 N.Y., 249) sustain the validity of such a provision, the latter holds that the burden is upon the plaintiff to show that the loss did proceed from the gross negligence of the carrier or his servants, and a new trial was granted in that case because the court on the trial erred in imposing the burden on the carrier. In the case now before us, the defendant's counsel asked the court to rule that gross negligence had not been proved, and did not propose to go to the jury upon the question. The court refused to hold in accordance with the defendant's request. In this there was no error: for it affirmatively appeared that the plaintiff's luggage was, on her going aboard the ship, delivered into the custody of the defendant's agents, who assumed the charge of it, and that she could have no further care over it. At the end of the voyage the defendant did not produce it, nor in any way account for its non-production, and all inquiry on the part of the plaintiff was ineffectual. Under these circumstances of actual and exclusive custody on board its own ship at sea, I think the proof was sufficient to make out a case on which a jury might find gross negligence.
The clause of the contract before cited, was immediately followed by the following provisions: "Nor in any event shall the passenger demand beyond the sum of fifty dollars, at which said baggage is hereby valued, unless a bill of lading or receipt be signed therefor, specifying the articles and their respective values." Under this provision the case of Belger v. Dinsmore (above cited) is a direct adjudication that the recovery could not, in the absence of a bill of lading or such a receipt as the contract called for, go beyond the sum of fifty dollars.
The contract contained likewise the further provision, "that *Page 7 money, jewelry and all valuables, are entirely at the passenger's own risk, unless placed in the company's charge, and a bill of lading or receipt signed therefor." A part of the recovery which was had, was for jewelry and silverware contained in the trunk, which, of course, came within the terms of the contract just cited. While it is quite true that all these articles were suitable to the plaintiff's station in life and not unsuitable to be carried as part of her baggage on her journey, yet that cannot be allowed to relieve her from the duty of conforming to the requirements of the defendant's contract, or relinquishing her recourse to it to make good her loss.
To the position that the courts of New York have no jurisdiction of this action as being of maritime jurisdiction exclusively, it is a sufficient answer to say, that the question not having been raised in the courts below, it cannot now be raised and decided here; and any opinion which we should express on it would be obiter. (Vose v. Cockcroft, 44 N.Y., 415.)
The judgment must be reversed and a new trial ordered, costs to abide the event.
All concur.
Judgment reversed.