Holmes v. North German Lloyd Steamship Co.

Cullen, Ch. J. This action was brought to recover damages for the loss' of two suit cases under the following circumstances: The plaintiff and her daughter were cabin passengers in one of the appellant’s steamers sailing for Europe on the 17th of- September, 1903. The passage ticket was purchased some twenty days prior to the date of sailing and from that time was in the possession of the plaintiff. The ticket contained the following provision printed on its face: “ It is mutually agreed that this ticket is issued by the Morth German Lloyd S. S. Co. and accepted by the passenger on the following conditions : * * * It is also agreed that neither the shipowner nor the passage broker or agent nor the ship, is in any case liable for loss of or injury to or delay in delivery of luggage or personal effects of the passengers beyond the amount of one hundred dollars ($100), 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.” On the day of sailing the plaintiff with her daughter and husband drove to the *283 defendant’s pier in Hoboken; her baggage was taken from the cab, and two trunks were delivered to the baggage master and receipts taken therefor. The plaintiff and her husband itarted to carry the suit cases to her cabin or stateroom when they were directed by the baggage master to place the suit Bases with the other baggage and he stated that they would be carried to the room. The baggage master also told her that no receipts were given therefor. The suit cases were never delivered to the plaintiff at her cabin or elsewhere, but were lost. The value of the property was stipulated at six hundred' dollars. The defendant did not deny its responsibility for the loss of the property, but contended that under the provision of the passage ticket hereinbefore recited its liability was limited to one hundred dollars and that- is the only question presented by this appeal, the trial court having awarded the plaintiff judgment for the full value of the lost articles. The ground on which the decisions of the courts below have proceeded was that the plaintiff was not obliged to declare the value of her baggage until after it was actually placed upon the ship and that by its loss before that time she was prevented from making such a declaration. We place our decision on .a different ground. We are of opinion that the provisions of the passage ticket did not apply to baggage intended to be taken by the passenger to her stateroom for use during the voyage, but only to such as might be delivered to the defendant to remain in its possession until the termination of the voyage. The difference between the two classes of baggage in respect to a carrier’s liability therefor has given rise to many conflicting decisions in the courts, and the law thereon differs in different jurisdictions. As to baggage of a passenger delivered to its exclusive possession, the carrier assumes the full liability of a common carrier and is an insurer. (Powell v. Myers, 26 Wend. 591; Merrill v. Grinnell, 30 N. Y. 594.) This doctrine obtains everywhere so far as we know. But as to baggage which remains, to some extent at least, in the personal cus *284 tody of the passenger, a different rule exists, and the carrier is liable only for negligence. This distinction generally prevails, though there is conflict in the authorities as to when the personal control exercised by the passenger excludes a possession by the carrier and relieves the carrier from its strict liability. The distinction prevails in this state in the case of railroads, and it has. been held that a company is not liable for the theft of an overcoat taken from a seat in a car, nor for articles stolen from the berth of a sleeping car, except in case of negligence. (Tower v. Utica & Schenectady R. R. Co., 7 Hill, 47; Carpenter v. N. Y., N. H. & N. R. R. Co., 124 N. Y. 53.) In the case of a steamboat or steamship which provides cabins or staterooms in which the passenger is expected to deposit the baggage needed for his voyage and to retire to rest, the responsibility of the carrier is that of an innkeeper, and the company is liable for moneys stolen from the clothes of the passenger which he has taken off on retiring to sleep. (Adams v. New Jersey Steamboat Co., 151 N. Y. 163.) This principle would equally control a loss of any other property of the passenger stolen from his stateroom. We think that the agreement contained in the passage ticket was not intended to relieve the defendant from liability for baggage of this character. In terms it purports to include not only the luggage of the passenger, but his personal effects. Surely it was not expected that the passenger should make a declaration of the amount of money he had on his person or the value of the watch and jewelry he carried or of the clothes he was wearing, of his overcoat and his wraps. Had the suit cases not been lost it is entirely possible that the plaintiff might before dinner time or at least the next morning have substituted a dress and other articles of apparel from the suit. cases for those she wore going on board the steamer. Thus, the contents of this baggage would have been constantly shifting during the voyage and probably the value equally changing. The language of the ticket, which is to he construed against the carrier and every ambiguity in which is to be resolved in favor of the passenger, supports the view that it *285 was not intended to include baggage taken by the passenger in his cabin for use during the voyage. It provides that if the value of the baggage and personal effects of the passenger exceed one hundred dollars, freight at current rates shall be paid thereon, and also that baggage shall be distinctly labeled, and in case of neglect so to do the company shall not be liable for loss or delay in its delivery. Certainly it could not have been expected that the personal effects of the passenger taken into his cabin or stateroom, the use of which changed from day to day or during the same day, should be paid for as freight or those articles distinctly labeled. The conduct of the baggage master equally confirms this interpretation of the provision. ¡Receipts were given for the trunks, not for the cabin baggage. It is unnecessary to determine whether the liability of the defendant in what may be termed the incidental service of carrying the passengers’ hand luggage from the wharf to the stateroom was that of an insurer or merely for negligence. The loss of the suit- cases unexplained established a prima facie case of negligence and no explanation was given. The service thus rendered was not a voluntary one on the part of the employee outside of the scope of his duty, for it is the common custom of the stewards and other employees of an ocean steamer to carry the cabin baggage of the passengers on and off the boat. The judgment appealed from should be affirmed, with costs.