
    Helen S. Holmes, Respondent, v. North German Lloyd Steamship Company, Appellant.
    
      Common earner—a contract limiting its liability for baggage, the value, of which is not stated, will be strictly construed—liability for. hand baggage taken by employees of a steamship company on the dock to be pvt on board, and lost — the limitation does not apply until opportitnity is given to, make the statement as to value on the ship. ..
    Provisions in a contract of carriage, limiting the common-carrier’s liability, are to be construed strictly against the carrier.
    The following clause contained in a steamship ticket: “ 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, unless the value of the samé in excess of .that sum hé declared at or before the issue of this contract, or at or before the delivery óf said luggage to the ship, and ' freight at current rates for every kind of property is paid thereon,” does not operate to limit to $100 the steamship company’s liability for baggage which, when the passenger arrived at the steamship wharf, was taken by employees of the steamship company with the assurance that it would be duly placed on board the steamer, and which was not so placed on board and was lost or stolen.
    In such a case, the passenger is. not called upon, at. the moment of delivering the baggage upon the wharf, to make the declaration required by the quoted clause of the ticket, but has. a right to assume that her luggage will follow her upon the ship where she may make the declaration to the proper officer; ■ and where the passenger has been prevented from making the required declaration through the fault of the servants of the steamship company, the quoted clause does not operate to limit the amount of her recovery. .
    Stover, J., dissented.
    Appeal by the defendant, the North German Lloyd Steamship Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office'.of the clerk of the county of Erie on the 29th day of April, 1904, upon the decision of the-court rendered after a trial at the Erie Trial Term, a jury having been waived.
    
      Joseph Larocque, Jr., for the appellant.
    
      Loran L. Lewis, Jr., for the respondent.
   Hiscock, J.:

The defendant sold and issued' a ticket to the plaintiff for the transportation of herself and infant daughter by One of its- steamships from New York to Cherbourg. Upon September VI, 1908, plaintiff proceeded to the defendant’s wharf for the purpose of embarking, and had with her two steamer trunks and three pieces of hand luggage, including two suit cases, which are involved in this action. When she alighted at the wharf and, with her husband, was about to carry said hand luggage aboard the steamer, the same was taken by the employees of the defendant, with the assurance that it would be duly placed on board the steamer. The suit cases were not so placed on board, and after their delivery as aforesaid upon the wharf to defendant’s employees plaintiff never saw them, and this action was brought to recover the value thereof.

The defendant urged in defense to the claim and action brought thereon a clause contained in the ticket issued by it- as aforesaid, which reads as follows: 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, 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.”

No question was made Upon the trial by the defendant but that the suit cases were delivered to the defendant’s employees, as claimed by plaintiff, and thereafter lost and never restored to the plaintiff. The only defense urged was the alleged limitation, of defendant’s liability to $100, upon the ground that no declaration had been made of extra value, it being conceded, however, subject to this defense, that the value of the property lost was $600.

We think that the trial justice was correct in disallowing defendant’s claim of a limited liability, and that the judgment appealed from should be affirmed.

It is urged by the counsel for the respondent that the clause quoted from the ticket issued by defendant is not applicable to the species of luggage lost by plaintiff. We shall, however, assume that it is applicable, considering as the only question whether, under its language, plaintiff has been limited to a claim of $100.

The principle is well settled that contracts like the one before us, limiting the liability of railroads and steamship lines, are to be construed strictly against the carrier. This contract prohibited plaintiff from establishing a claim in excess of' $100 unless she made a declaration! of such excess at or before the issue- of this contract, or at or before the delivery of said luggage to the ship.” We think it is fair to construe the latter words as meaning that she might make, it at or before delivery upon the ship itself as distinguished from a delivery upon the wharf in process of having her baggage placed upon the ship. At the time her suit cases were taken from her upon the wharf it was for the" purpose of having the same placed'upon the ship. There was nothing which called Upon her at the moment of delivery upon the wharf to make her declaration, but she had a right to assume that her luggage would follow her upon the ship, where, under the terms of her contract, if she desired she might- make a declaration in excess of value to the proper officer. This she has been prevented from doing by the fault of the defendant’s agents and employees, who failed to keep their agreement and deliver the articles as promised. Under these cir-. cumstances it seems quite clear that she was relieved from .making her declaration, and having been prevented by the fault of the defendant and its employees from complying with the requirements ’of the limiting clause, she is not prohibited thereby from maintaining her action.

The judgment should be affirmed, with costs.

All concurred, except Stover, J., who dissented in a memorandum.

Stover, J.

(dissenting) : The complaint seeks to charge defendant under the' contract for . passage, and alleges a failure to'deliver baggage received as a carrier.

It is alleged (that the suit cases were delivered to the baggage-master of defendant, upon the wharf or dock from which the steamer 'was -to sail. This, I think, was a delivery to the ship under the contract.

, The plaintiff had ample- opportunity to declare the value of the property delivered and .thus protect both herself and the company. She was bound by the contract to declare it at the time of delivery^ and, failing, cánnot recover the excess value. I think the judgment should be reversed and judgment directed for $100.

Judgment affirmed, with costs..  