Wheeler v. Oceanic Steam Navigation Co.

Section 4281, of the Revised Statutes of the United States, provides, in substance, that if any shipper of certain articles which are specifically named, and among which are “pictures,” shall lade the same as freight or baggage on any vessel, without at the time giving notice to its owner, master or agent, of the true character and value of the property shipped, and having the same entered upon the bill of lading, “ the master and owner of such ship or vessel shall not be liable as carriers thereof in any form or manner.” The protection of this statute has been successfully invoked by the defendant company against the loss which forms the subject of this action.

Dora Wheeler, the plaintiff, and described in the evidence as an artist of established reputation, returning home from a foreign journey, took passage on the steamer Germanic, and in addition to her ordinary baggage delivered to the ship for transportation a package of valuable portraits which she had painted while abroad. These were contained in a box of white Wood, with iron hinges and corner clasps, and closed by a lock. The package itself, besides the address, was marked “ Studio,” and its appearance unmistakably indicated something other than and different from the -ordinary baggage of a traveler. There was no attempt to deceive the defendant as to its true character, or by artifice or misrepresentation to make it appear to be personal baggage, or shield it as such from proper freight charges.

Nevertheless, it was not entered upon the bill of lading with notice of its character and value, or in any manner whatever, but was put in the hold of the vessel for transportation to New York. The voyage was unattended by either accident or delay, and it is reasonably certain that the package came in the ship to its port of destination. Arrived at its wharf, the trunks and packages of the passengers were landed upon the dock, each individual being left to find and collect together his own. The package in question was never delivered to its owner, but was probably misdelivered, or permitted to be taken by one having no right to receive it. For the damages thus sustained the plaintiff brought this action, and has been defeated upon a construction of the statute which is challenged upon this appeal.

That construction is a very broad one. It denies liability “ in any form or manner.” It relieves the ship-owner from all responsibility where the baggage or goods have not been entered upon the manifest. It involves a ruling that he may accept the property

It is quite true that even upon this construction the courts would hesitate and halt "before a proven theft or an actual conversion, on the ground that the fact and opportunity of transportation did not change the nature or character of such positive wrongs; but there would still remain a gap to be spanned between the actual wrong-doer and the defendant company, and, when safely crossed, as it well might be, the relief would be of but little value, since ordinarily the shipper can neither know nor prove the cause of the loss, especially where motive exists for its concealment. If, therefore, the statute admits of a more just construction, and one which, while giving needed protection to the ship-owner, preserves some reasonable duty to the shipper or to the passenger, I think we should not hesitate to adopt it.

The construction which has "prevailed eliminates from the statute the words, “as carrier thereof,” and gives them no force or meaning. They become wholly superfluous. „ To us they appear to be ‘vital to the true interpretation. The liability of the carrier as such was well understood by the framers of the statute. It had long been settled so that no one could mistake it. By force of his public employment he became an insurer of the property entrusted to his care, and liable for its loss irrespective of the cause unless from the act of God or the public enemy. But involved in this greater liability and absorbed by it was a lesser liability as bailee for hire; of no consequence while the greater liability existed, but surviving the destruction- of that, so that-when the carrier ceased to be liable as carrier he yet remained liable as bailee.

In Dorr v. N. J. St. Nav. Co., 4 Sandf., 145 , the doctrine was thus expressed: “A common carrier has in truth two distinct lia7 bilitics; the one for losses by accident or mistake, where he is liable by the custom of the realm or the common law as an insurer; the other for losses by default or negligence, where he is answerable as an ordinary bailee,” and the language was cited by the-federal court in Railroad Co. v. Lockwood, 17 Wall., 363 , and the doctrine approved in Dott v. N. Jersey St. Nav. Co., 11 N. Y., 485 , where it was held that the carrier might by special agreement-

But what the carrier and his customer might accomplish by special agreement, congress could effect by statute in the absence of such agreement; but must necessarily leave the lesser liability of bailee unaffected if it merely removes the liability as carrier, and does not, by clear and definite language, indicate its purpose to go further. So much, and no more than that, the section under consideration accomplished, for it distinctly removes the liability as carrier without touching that as bailee. We are bound to assume that the word “-carrier ”■ was used in its recognized legal sense, and not in some loose or careless or merely colloquial way; and that, especially, because it occurs in connection with the idea of liability, and the phrase “ liable as carrier ” can only mean the liability attached by law to that public employment.

Nor is this construction affected by the added words, “in any form or manner.” They are not used disjunctively, and so as to constitute a separate command, but qualify the expression “ shall not be liable as carrier thereof; ” the full force of the words being that the liability as carrier shall not exist in any form of action or by any manner of procedure. In Atlantic Mut. Ins. Co. v. Mc Loon, 48 Barb., 28 , it was held that the carrier’s liability assumed two different forms, and that he might be proceeded against either in tort for a violation of his public duty, or in contract for a breach of his implied agreement to carry and deliver safely. And so the statute deemed it prudent, in relieving the carrier from liability, to add “ in any form or manner;” that is, by any form or mode of action or proceeding whatever.

We are further referred to the case of Hinton v. Dibbin, 2 Ad. & Ell., N. S., 646, in which it was held under a similar statute, 1

It follows that the nonsuit in this case was erroneous. The plaintiff in her complaint alleged negligence and the facts which she proved prima facie established it. The non-delivery at the port of destination is presumptive evidence of such negligence. Canfield v. B. & O. R. R. Co., 93 N. Y., 538 . In addition it was shown that the vessel stopped nowhere until the port of destination was reached and then the baggage was placed upon the dock with little of order or control and leaving the passengers to find their own in the consequent confusion. And so a case was made-which should have gone to the jury.

A possible criticism upon this view of the statute is qfuite likely at this point to suggest itself. One may inquire of what value to the ship owner is the enactment when after all he is left liable for the loss, and responsible whether the property is entered upon the ship’s manifest or not? The inquiry goes to the root of the matter and its answer will further test the justice and propriety of our interpretation. Under it I tliink the ship owner is protected as far as he should be, and in two very important respects.

First. The statute leaves him at liberty to refuse to carry the property at all unless its value and character are disclosed and entered upon the ship’s manifest. The law leaves him master of the situation and able, if he shall please, to enforce obedience to it. As carrier he could not refuse, but since he does not become such unless the proper entry is made he may refuse until then to transport the property at all. As a simple bailee he may take the property or decline it. If now he chooses to take it in that character the act is voluntary; there is no compulsion about it; and on what.principle shall we say that because he so takes it he shall be absolved from all care over it, at liberty to be as negligent as he pleases and the only bailee in the world having that lawless control ?

Second. If a loss occurs he is no longer liable as an insurer. The door to a just defense is opened before him, and the burden of proof to establish negligence is shifted to his adversary. If the ship-owner has in truth exercised due care he may show it and go discharged. If he has not exercised it, if he has been negligent and careless, he ought to respond in damages and must do so.

It was suggested by the general term in aid of their construction that one reason for the enactment was the interest which the government had in procuring entries upon the vessel’s manifest of all property shipped. If that be true the construction of the courts below tends very distinctly to defeat such purpose; for while it makes it for the interest of the passenger to enter his baggage or parcel upon the bills of lading, it leaves him liable to pay

It may be that congress might go as far as the English statute has gone, but our judgment is that it has neither done so, nor intended to do so ; and that it has stopped short of a rule which would protect master and ship-owner from the consequences of their own negligence. That the federal court has held is against public policy and, presumably, would not encourage a construction in such direction where any other was permissible. It follows that the plaintiff was erroneously defeated, and should have an opportunity to present her case to a jury.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.