D'Utassy v. Mallory Steamship Co.

Headnote

D’ Utassy v. Mallory Steamship Co., 162 App. Div. 410 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1914, which reversed an order of Special Term sustaining a demurrer to a separate defense set up in the answer and overruled such demurrer. Plaintiff shipped cotton from a place in Texas consigned to St. John, New Brunswick. It was delivered to defendant at Galveston, transported in one of its vessels to New York and there placed on a lighter for transfer to another forwarding company. While on the lighter the cotton was destroyed by fire and plaintiff seeks to recover under the following provision of the bill of lading. “ Sec. 1. The carrier or party in possession of any of the

property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided. No carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, quarantine, the authority of law, or the act or. default of the shipper or owner. * * * ” The answer set up as a separate defense section 4282 of the Revised Statutes of the United States, which provides: “ No owner of any vessel shall be liable to answer for or make good to any person any loss or damage which may happen to any merchandise whatsoever, which shall be shipped, taken in or put on board of any such vessel by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the'design or neglect of such owner.”

The following question was certified: “ Is the affirmative defense set forth in the paragraph of the answer designated tenth sufficient in law upon the face thereof to constitute a defense to the cause of action set forth in the complaint herein? ”