
    Lechowitzer v. Hamburg American Packet Co.
    (City Court of New York—General Term,
    January, 1894.)
    USTo contract limiting the liability of a carrier for loss of baggage arises in law from the mere acceptance of a receipt or ticket containing such condition; to have such effect it must appear that the attention of the •owner of the baggage was called to such provision or that he assented to it in some particular, although it is not necessary that it should have ..been read to him.
    
      Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury.
    
      Nicholas Aleincoff, for plaintiff (respondent).
    
      Wheeler, Cortis & Godkin, for defendant (appellant).
   Newburger, J.

This action was brought to recover for baggage claimed to have been lost on the steamer Sorrento while on a trip between Hamburg and New York.

On the 19th day of August, 1891, the plaintiff took passage on said steamer at Hamburg for New York. He gave his railroad check for his baggage to the ship’s officials, for which he received a slip, and the officials obtained his baggage and put it on the steamer, where it was afterwards seen by the plaintiff and his witness. Its loss and value was not disputed.

Defendant’s defenses were that the baggage was not delivered to it, and not lost in its custody; that there was no proof of negligence on its part; and that the steamship Sorrento did not belong to the defendant, and that, even if it were proved that it did, the plaintiff was traveling under a contract ticket which limited the defendant’s liability in any event to 200 marks.

The trial justice in his charge to the jury, among other things, said: If you believe that this ticket received by the plaintiff contained the printed matter as appears upon the ticket offered in evidence by the defendant, and that the plaintiff either read or that it was explained to him, then the plaintiff is bound by this limitation, and cannot recover from the defendant for more than is limited in this contract.

“ The plaintiff’s attention must have been called to it, or he must have assented to it in some particular, but the mere fact of the paper not having been read to him would not exempt him from the terms of the contract.

In other words, it was not necessary to have it read to him, and if it was explained to him, or if, by any means, he assented to its terms, he would be bound by it equally as if he had read it.” Exception was taken by the appellant to this part of the charge. We think that this was a proper statement of the law of this case.

It is not denied that the defendant, if liable at all, is liable for the full value of the baggage unless the common-law liability has been modified by contract with the plaintiff, whereby the defendant’s liability would be limited to 200 marks. Ho such contract arises in law from the acceptance of a receipt or ticket under the circumstances of this case. They do not justify the inference that the plaintiff agreed to be bound by the special contract in the receipt. There was no negotiation or agreement that the plaintiff should receive any reduced rates for himself and family; nothing from which the court could hold that the plaintiff assented to the special contract.

The cases cited by the learned counsel for appellant (Wheeler v. Oceanic Steam Navigation Co., 72 Hun, 5; Steers v. Liverpool S. S. Co., 57 N. Y. 1; Zimmer v. N. Y. C. & H. R. R. Co., 137 id. 460) were cases in which the court held that the circumstances thereof, to wit, experience in traveling,, reduced rates, discussion as to the disposition of the boxes and ■ trunks, would warrant the court in inferring that the passengers had knowledge of the content's of the contract.

Ho such assumption is warranted by the evidence in this-case.

For these reasons the judgment must be affirmed, with costs.

Fitzsimons, J., concurs.

Judgment affirmed, with costs.  