Kaiser v. Hoey — 16 N.Y. St. Rep. 803

Majority

p. 803

Julius Kaiser v. John Hoey, President Adams Express Company.

(City Court of New York, Trial Term,

Filed June, 1888.)

Headnote

Common carriers—They may, by stipulation, limit the time during which they are responsible for loss.

A stipulation inserted in a bill of lading issued by a common carrier that it is not to be liable for loss, unless the claim therefor shall be presented within thirty days, is valid and binding on the parties, and if not observed, bars the action.

The Adams Express Company is a joint stock association and a common carrier of goods. On the 23d of December, 1887, at Shenandoah, Pa., the plaintiff’s assignor delivered

p. 804

to the defendant certain goods which the company agreed to deliver to him at No. 44 Maiden lane, in the city of New York. By the terms of the bill of lading delivered at the time, it is provided th'at “in no event shall the Adams Express company be liable for any loss or damage unless the claim therefor shall presented to them, in writing, at this (Shenandoah) office, within thirty days after this date, in a statement to which this receipt shall be annexed.”

It is conceded that the claim was not presented to the company as required by the provision just referred to, and the main defense is that such failure precludes the plaintiff from maintaining his action.

Drachman & Nelson, for pl’ff; Seward, Da Costa & Guthrie, for deft.

As the defendant is liable for the loss of goods intrusted to its care, it is not unreasonable to impose as a condition of recovery that claims for losses must be made within a reasonable time specified in the contract.

Such a provision is in the nature of a condition precedent, is binding on the party who accepts such a contract, and precludes him from recovering, without proof that the condition has been performed.

Its purpose is to enable the company to search for the missing goods, finding them if it can, and either delivering them to the consignee or redelivering them to the shipper, and, in case of failure to discover the goods, to place the responsibility for the loss where it properly belongs, that it may seek indemnity from the persons guilty of the wrong. Similar provisions have been held binding on insurers having claims against insurance companies (May on Ins., 583), and there is fully as much propriety in applying the rule to common carriers. It was so applied in Hirshberg v. Dinsmore ( 12 Daly, 429 ), and the case cited is conclusive against the plaintiff’s right to recover.

It is unnecessary to consider whether the contract ought to be interpreted according to the laws of Pennsylvania, for there is no proof that the laws of that state on the subject differ from our own, and the presumption is that the common law of both states are alike. Waldron v. Ritchings, 3 Daly, 288 ; Stearns v. St. L. and S. F. R. R. Co., 4 St. R., 715.

It follows that there must be judgment for the defendant.