(dissenting) : The defendant, a common carrier, admits that the plaintiff was its passenger and that it undertook to safely transport herself as well as her baggage, worth the sum of $1,359, to the place of destination and that such baggage was lost through its own negligence. It pleads, however, that it is not liable for the loss of the baggage to an amount exceeding fifty dollars, because the ticket sold by it to the plaintiff contained the “ condition,” founded on a reduced fare, that “ this company’s liability for baggage belonging to each passenger shall not exceed fifty dollars.” Assuming that this condition limits the liability of the defendant as an insurer for a loss occurring through want of care on its part, the question presented for decision is whether it also limits its liability as bailee for a loss arising from its own negligence.
In a recent case, following others that preceded it, we held that “contracts intended to limit the liability of a common *397carrier are to be construed strictly against the carrier. A common carrier has two distinct liabilities; one for losses by accident or mistake, where he is liable as an insurer, the other for losses by default or negligence, where he is answerable as an ordinary bailee. Provisions in a bill of lading issued by a railroad company, intended to limit its liability for loss or damage to the goods carried, will, unless otherwise expressly stipulated, be construed to relate to the carrier’s common-law liability as an insurer and not to his liability as a bailee for hire.” (Bermel v. N. Y., N. H. & H. R. R,. Co., 62 App. Div. 389 ; 172 N. Y. 639.)
In Wheeler v. Oceania Steam Navigation Co. (125 N. Y. 155, 161) Judge Finch, after reviewing certain cases, wrote for all the judges as follows: “ These cases show that the liability for negligence as bailee survives even when by special contract the carrier has thrown off his liability as such; and the courts of this state have exhibited a very decided purpose to retain and enforce that liability wherever it is possible. Even that may be thrown oft' by force of a special agreement, but we have refused to permit any general words to accomplish such result, and have insisted that where the carrier seeks to contract against the consequences of his own negligence, he must say so openly and plainly so as not to be in the slightest degree misunderstood. * * * (Nicholas v. N. Y. C. & H. R. R. R. Co., 89 N. Y. 372).”
The defendant claims to have thrown off its liability as bailee by virtue of the “ condition ” above quoted, which it regards as a special agreement of valuation. I cannot assent to this position under the rule of strict construction against the carrier, which, unless many precedents are to be disregarded, must be applied in this case. There is nothing in the stipulation that suggests valuation to my mind. Neither the word “value” nor “ valuation,” nor any equivalent word or expression, appears in the “ condition,” which is simply an arbitrary and flat limitation of liability to the sum of fifty dollars, not as a valuation but as a limitation, pure and simple. The opportunity, afforded in many of the reported cases, to *398declare a higher value and pay at a higher rate was not given to the plaintiff. Such a provision shows an intention to value at the sum named, hy offering as an alternative the chance to value at a higher rate, if the shipper so elects. There was no express valuation, and a valuation by implication is not stated “ in unequivocal terms ” or “ so that it cannot be misunderstood ” as the cases require. (Mynard 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; Canfield v. Balt & O. R. R. Co., 93 N. Y. 532.)
As was said in Kenney v. N. Y. C. & H. R. R. R. Co. (125 N. Y. 422, 425): “ Our decision, however, is placed upon the ground that this contract does not in unmistakable language provide for an exemption from liability for the negligence of the defendant’s employees. The rule is firmly established in this state that a common carrier may contract for immunity for 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.”
The plaintiff did not agree directly or indirectly that her baggage should be valued at the amount named or at any amount. There was no mutual valuation and no reference was made to a loss by negligence. Instead of saying “ openly and plainly” that her baggage was “ valued at,” or was received “ at a valuation of,” or something that would call her attention to the subject, nothing whatever was said to even suggest that a valuation was intended. Unless we reverse our well-established rule of strict construction against the carrier and lay down its opposite of strict construction against the passenger or shipper, this judgment cannot logically be sustained.
The claim that the Bermel case, decided in 1902, was over*399ruled by a later case decided in 1906, has slender support when the facts of the two cases and the opinions written therein are compared. (Tewes v. North German Lloyd Steamship Co., 186 N. Y. 151.) In the latter case there was a limitation of liability “ beyond the amount of fifty dollars,” but this was directly followed by the significant provision, “ 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.” (p. 152.)
I find no case in this court, nor any well-considered case in any court, holding that there was a valuation agreement, unless there was either a stipulation making a valuation in express terms, or a reservation in favor of the shipper of the right to value himself and pay accordingly.
I vote to reverse and to answer the question certified in the negative.
Werner, Chase and Collin, J.J., concur witli Hiscook, J.; Cullen, Ch. J., and Willard Bartlett, J., concur with Vann, J.
Order affirmed.