Reichman v. Compagnie Generale Transatlantique

*347 Lewis, J. The plaintiff, while a passenger first-class on the defendant’s steamship Champlain cruising from New York to the West Indies, placed cash in the amount of $160 and jewelry of the conceded value of $13,200 in a safe-deposit envelope and delivered the same for safe-keeping to the desk of the ship’s cashier. She had taken this precaution after reading the following item of “ General Information for Passengers ” contained within a “ Passenger List Booklet ” with which she had been provided by the defendant after she came aboard ship: “ Valuables. The particular attention of passengers is drawn to the ticket conditions regarding the carriage and custody of articles specified in Section 4281 of the revised Statutes of the United States; but passengers can, and are accordingly advised to protect themselves by insurance. The French Line has provided a safe at the Information Desk in which passengers may deposit money, jewels, ornaments, documents, or other valuables for safe keeping, and a deposit receipt will be issued by the Purser.” *348 At the time of depositing the envelope at the cashier’s desk there was delivered to the plaintiff a receipt which read as follows: “ Compagnie G-enerale Transatlantique 6 Ene Auber — Paris No. 4958 Steamship Champlain Voyage No. Eeceived on deposit from Mrs. Eeichman sealed without liability or responsibility of any nature while in the charge of the company or of the Captain. On Board 193 For the Company Cashier (Signed) Max Kleiner Note: This receipt must be presented by the passenger to obtain the return of any deposit.” Later, when the plaintiff presented her receipt and demanded the return of her property, she was informed that her safe-deposit envelope could not be found. Further search under supervision of officers of the ship was unavailing. In short the defendant’s failure to return to the plaintiff the envelope and its contents has led to the present action by which the plaintiff demands of the defendant steamship company that it make good her loss. At the close of the trial the defendant, consistent with its prior offer of judgment, moved for a directed verdict of $250, in favor of the plaintiff. The motion by the defendant was in accord with the provisions of the plaintiff’s passage contract which, as we shall see, formed the basis not only of her first cause of action but also of a separate and partial defense interposed by the defendant. The plaintiff then moved (1) for a directed verdict in her favor in the amount of $13,360 and (2) for the submission to the jury of issues of fact which it was claimed were presented by evidence introduced in support of the plaintiff’s second cause of action in which she charged the defendant with the conversion of her property. The trial court denied the plaintiff’s motions and, in response to the defendant’s motion, directed a verdict of $250 in plaintiff’s *349 favor. The judgment entered upon the directed verdict was thereafter unanimously affirmed at the Appellate Division. The case is here on appeal by the plaintiff by our permission. Claiming that she was entitled at Trial Term to a directed verdict for the stipulated value of her property, the plaintiff asserts that her delivery of valuables to the defendant for safekeeping constituted a common law bailment and that the defendant may not now invoke as a partial defense provisions in her contract of passage by which the defendant limited its liability to an amount fixed by an agreed valuation of the property lost. In the verified bill of particulars furnished by the plaintiff is the statement — “ That the plaintiff was a passenger on board the S. S. Champlain, under no other expressed contract than that contained in Exhibit ‘ A ’ annexed to the defendant’s answer.” Concededly Exhibit “ A ” is the ticket issued by the defendant to the plaintiff. It bears the caption “ Passage contract subject to the terms stated on this page and overpage.” After numerous items which, among others, recite the name of the ship, its sailing schedule, the name of the passenger (the plaintiff) and the fare paid, there appears the statement — “ Passengers should read the terms of the contract of carriage stated below and overpage, their particular attention being called to the limitations of liability therein contained.” Then follows the heading “ Terms of contract — Read before accepting,” after which appear certain provisions which establish the conditions under which the defendant agreed to furnish the transportation accepted by the plaintiff: “ In consideration of the sum of money hereinabove stated French Line (Compagnie Generate Transatlantique) agrees to accept the persons above named as passengers for the voyage above described subject to the terms of this contract stated on this page and overpage: “ The purchaser hereof covenants and warrants that he is duly authorized by or in behalf of all of the passengers named herein to agree to all the stipulations of this contract stated on this page and overpage, and by accepting and/or using this ticket he and/or they do agree accordingly and do agree that the same shall be binding on them with the same force and effect as if they had every one of them signed this contract. *350 “ 4. Regulations and Limitations oe Cabbies’s Liability with Respect to Pebsonal Pbopebty. (a) The term ‘ baggage ’ as used herein means only trunks, handbags, valises, satchels and bundles, containing such wearing apparel and personal effects as are necessary and appropriate to the purpose of the journey and to the passenger’s station in life. * * * “ (g) Each first-class passenger represents, and it is hereby agreed, that the total value of his baggage, as defined in section 4(a) of this contract, does not exceed $150 and that the total, value of all other property taken with him on the voyage, and carried on his person or retained in his possession, does not exceed $100; * * * The Carrier’s liability, if any, * * * shall not exceed the above amount in the event of loss, damage or delay to a/ny of the passenger’s property taken with him on the-voyage, the fare for the voyage and the rate of excess baggage tariff being in part based upon the above valuation. Nevertheless, each passenger may, prior to embarkment, deliver a declaration in writing, specifying a higher value, to the Carrier at 610 Fifth Avenue, New York, N. Y. U. S. A. or at 6 Rue Auber, Paris, France, or to the Carrier’s baggage master, and pay an additional amount of 1% of the excess of value thus specified over the said amount, for which a written receipt must be obtained, in which case the Carrier’s liability shall not exceed such specified value.” (Emphasis supplied) The jewels and currency placed by the plaintiff in the safe-deposit envelope and delivered to the defendant’s agent for safekeeping constituted “ the passenger’s property taken with [her] on the voyage ” within that provision of her passage contract, quoted above, by which was limited the “ Carrier’s liability.” The plaintiff’s act of acceptance of the passage contract gave rise by implication to her assent to the limitation upon the defendant’s liability which was one of the express conditions upon which the defendant undertook to transport the plaintiff. -Had she desired to evaluate the property which she took upon the voyage at a figure higher than that which fixed the limit of defendant’s liability, and thereby protect herself in full against the loss of her valuables, she could have done so, under provisions of the contract, by paying one per cent of whatever excess value she might specify. *351 We think the agreed valuation clause of the passage contract, which the defendant now invokes, was in no sense ambiguous. It was reasonable in its terms and was authorized by the settled law of this jurisdiction. (Kilthau v. International Mercantile Marine Co., 245 N. Y. 361, 365.) Indeed what was said in Murray v. Cunard S. S. Co. (235 N. Y. 162 at pp. 165, 166) applies with equal force to the facts now before us: “ The law is settled in this state that a ticket in this form, issued by a steamship company for a voyage across the ocean, is more than a mere token or voucher. It is a contract, creating the obligation and defining the terms of carriage (Steers v. Liverpool etc., S. S. Co., 57 N. Y. 1; Tewes v. North German Lloyd S. S. Co, 186 N. Y. 151, 155; 1 Williston on Contracts, §§ 90, 90a, 90b). The ruling is in accord with judgments in other jurisdictions (Fonseca v. Cunard S. S. Co., 153 Mass. 553; O’Regan v. Cunard S. S. Co., 160 Mass. 356; Secoulsky v. Ocean Steam Nav. Co., 223 Mass. 465; cf. N. Y. etc., R. R. Co. v. Beaham, 242 U. S. 148, 151; Cooke v. T. Wilson Sons & Co. 1916, 85 L. J. R. [K. B.] 895, 896; Hood v. Anchor Line, 1918, A. C. 837, 845, 849). This is not a case of a mere notice on the back of a ticket, separate either in substance or in form from the body of the contract (The Majestic, 166 U. S. 375). Here the condition is wrought into the tissue, the two inseparably integrated. This ticket, to the most casual observer, is as plainly a contract, burdened with all kinds of conditions, as if it were a bill of lading or a policy of insurance. ‘ No one who could read could glance at it without seeing that it undertook to prescribe the particulars which should govern the conduct of the parties until the passenger reached the port of destination.’ (Fonseca v. Cunard S. S. Co., 153 Mass. 553). In such circumstances, the act of acceptance gives rise to an implication of assent (1 Williston on Contracts, §§ 90, 90a, 90b; Fonseca v. Cunard S. S. Co., supra, N. Y. C. Ry. Co. v. Beaham, supra.) The passenger who omits to read takes the risk of the omission.” (See also Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151, 154, 155; Baron v. Compagnie Generate Transatlantigue, 108 F. 2d 21.) In the case at bar the contract of passage — unlike the contract involved in Hasbrouch v. N. Y. C. & H. R. R. R. Co. (202 N. Y. 363), upon which the plaintiff relies — does not avoid liability for the entire loss suffered by the plaintiff; it places upon the *352 plaintiff’s property taken with her on the voyage a valuation which establishes the measure of the defendant’s limited responsibility in the event liability is established. (D’Utassy v. Barrett, 219 N. Y. 420, 424, 425.) Passing to the plaintiff’s claim that the trial court erred in dismissing her second cause of action which charges the conversion of her property by the defendant: We find no evidence that the defendant converted to its own benefit the property which is the subject of this suit; nor is there evidence that in connection with the plaintiff’s property the defendant was guilty of an affirmative act of wrongdoing which will deprive the defendant of the benefit of its contract with the plaintiff for a liability limited to an agreed valuation. (Magnin v. Dinsmore, 70 N. Y. 410, 417-419; Wamsley v. Atlas S. S. Co., 168 N. Y. 533, 536-538.) In the present case we find in the text of the agreed valuation clause (§ 4 [g]) that “ * * * the fare for the voyage * * * [is] in part based upon the above valuation.” In those circumstances — “ The distinction must be borne in mind between a limitation of liability and an agreed valuation in case of liability. When it is urged that the limitation of value should notjbe applied to any case of theft by the carrier’s employees, for the reason that the company is liable for such acts as if the company had been the thief (Adams Express Co. v. B. & W. Co., 35 App. Cas. [D.C.] 208), the argument loses sight of this distinction. When the agent acts within the scope of his employment in taking possession of the shipment ' in legal effect it was the same as if the defendant, personified, had taken it ’ (Vaun, J., in Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363, 373), but the liability may exist and the valuation of the shipment in case of liability may be agreed upon when the rates for transportation are based on the valuation of the goods intrusted to the carrier.” (D’Utassy v. Barrett, supra, p. 424; and see Millhiser v Beau Site Co., 251 N. Y. 290, 294, 295; M. & T. Trust Co. v. Export S. S Corp., 262 N. Y. 92, certiorari denied 290 U. S. 650.) The judgment should be affirmed with costs.