
    Theodore Tewes, Plaintiff, v. The North German Lloyd Steamship Co., Defendant.
    (Supreme Court, Queens Trial Term,
    December, 1903.)
    Common carrier—When a limited liability clause does not apply to a loss by negligence.
    Where an ocean carrier fails to put aboard its outgoing steamer the trunk of a passenger which has been delivered to its docks in time to be shipped and the trunk is destroyed by a fire which occurred on the docks two days later, the carrier cannot invoke, in an action for the value of the trunk, a condition of the passage ticket limiting liability to $50 unless excess value be declared and paid for as freight, and this because its negligence in failing to ship the trunk was the proximate cause of the loss and for that negligence it is liable.
    Action to recover for loss of baggage. Verdict for the plaintiff. Motion to direct a verdict for the defendant reserved until after verdict. Motion to set aside the verdict, or to do so unless it be consented to reduce it to $50.
    Lyman W. Redington for plaintiff.
    Joseph Larocque, jr., for defendant.
   Gaynor, J.:

The jury found on sufficient evidence that the trunk was delivered to the defendant to go to Europe on its steamer on which the plaintiff had engaged passage, but that it was not put aboard by the defendant, and was destroyed two days after the steamer sailed in a conflagration of the defendant’s docks. The trunk was delivered in the usual way at the place where baggage was received on the defendant’s docks for its many steamships. The motion to direct a verdict for the defendant is denied.

The passage ticket, which was purchased and received before the trunk was delivered, contains a provision limiting the liability for the loss of baggage to $50, unless the value in excess should be declared and freight paid thereon. This is binding on the plaintiff (Steers v. Liverpool, N. Y. & P. S. Co. 57 N. Y. 1; Zimmer v. N. Y. C. & H. R. R. R. Co. 137 N. Y. 460), but by the defendant’s neglect (or breach of contract, if you prefer,) to put the trunk aboard, it lost the benefit thereof, and made itself subject to the full liability of a common carrier. The loss is traced back of the immediate cause, viz., the fire, to the first cause, viz., the defendant’s neglect, or breach of contract in leaving the trunk on the dock instead of sending it off on the steamer, and attributed thereto; and there is no clause in the contract making the limited liability cover the case of negligence (Michaels v. N. Y. C. R. R. Co. 30 N. Y. 564; Read v. Spaulding, id. 630; Maghee v. Camden & A. R. R. Co. 45 N. Y. 514; Condict v. Grand Trunk R. Co. 54 N. Y. 500; Rawson v. Holland, 59 N. Y. 611; London & L. F. Ins. Co. v. Rome, W. & O. R. R. Co. 144 N. Y. 200).

There is a clause in the contract making a total exemption from liability for loss by fire. It is inapplicable for the reason stated above; but it is enough that no such defence is pleaded; nor was it presented on the trial, if that could be of any moment.

The motion to set aside the verdict is denied.  