
    William H. Granbery, Respondent, v. George C. Taylor, as president of American Express Company, an unincorporated association composed of more than seven members, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Carriers — of merchandise — express companies — tariff rates — value of package —■ appeal.
    An express company, upon receiving a package in Brooklyn for transportation to a point in Central Park west, issued a receipt therefor containing no express limitation upon the carrier’s liability but reciting that the package was received “ subject to the classifications and tariffs in effect on the date hereof.” The tariff duly filed by the express company provided that the rates governed by the classification of valuation charges were based upon a value of not exceeding fifty dollars on each shipment of 100 pounds etc. and that the liability of the company was limited to the value as given unless a greater value was declared at the time of shipment. Held, that in the absence of such declaration by the shipper his recovery for the loss of the package was limited to fifty dollars.
    The tariff rates of the express company did not give it an option to inquire as to the value of the package and to fix its rate and liability accordingly, nor did it import a waiver if no such inquiry were made.
    Where the objection that defendant did not prove that its tariff had been filed under all attendant technical requirements was not made at the trial, nor the matter called to the attention of the court or of the defendant, the defect in merely formal proof could not be. availed of on appeal.
    Appeal, by defendant from judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, for $360.65, in favor of plaintiff after a trial by a judge without a jury.
    
      Carter, Ledyard & Milburn (Milton C. Lightner, of counsel), for appellant.
    Putney, Twombly & Putney (Walter H. Griffin, of counsel), for respondent.
   Bijur, J.

This case has many points of similarity with Lichterman v. Barrett, post, 594, decided simultaneously herewith.

Plaintiff delivered to defendant at a house in Brooklyn in this city a trunk and a package to be transported to another point in this city at Central Park west. The trunk was delivered, but the package lost. It is conceded that at the time of delivery to the carrier no valuation of the shipment was declared by the shipper or requested by the carrier.

The only question involved is in regard to the limitation of defendant’s liability to the amount of fifty dollars. As a matter of practical interest, it appears that the form of receipt formerly used by the defendant prior to the Cummins Amendment to the Interstate Commerce Law has recently been changed, probably to conform to the requirements of the Cummins Amendment approved March 4, 1915, so that the same receipt may be used for interstate and intrastate shipments interchangeably. The present form of receipt contains no express limitation upon the carrier’s liability. A note on its face refers to a requirement that the value of the article shipped must be declared under certain circumstances, but there is no provision indicating that the carrier’s liability shall be varied according to the value of the contents. On the face of the receipt, however, it is recited that the article is received “ subject to the classifications and tariffs in effect on the date hereof.”

Whatever doubt may have been heretofore entertained regarding the binding character of these tariffs when duly filed as constructive notice to the carrier has been removed as to interstate shipment by Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97; Barstow v. N. Y. N. H. & H. R. R. Co., 158 App. Div. 665, and as to intrastate shipments, referring to tariffs filed with the public service commission in this state, by Gardiner v. N. Y. C. & H. R. R. R. Co., 201 N. Y. 387; Lewis v. N. Y., O. W. R. R. Co., 210 id. 429, 432. The appropriate tariff duly filed by the defendant provides:

*1 Bule 13: Valuation Charges: (a) The rates governed by this classification are based upon a value of not exceeding $50.00 on each shipment of 100 lbs. or less, and not exceeding 50 cents per pound, actual weight, on each shipment weighing more than 100 lbs., and the liability of the express company is limited to the value above stated unless a greater value is declared at time of shipment, and the declared value in excess of the value above specified is paid for, or agreed to be paid for, under the schedules of charges for excess value.”

I think that both by way of contract (Belger v. Dinsmore, 51 N. Y. 156; see also cases cited in Litcherman Case, supra), and by reason of the binding character of the tariff itself, the plaintiff was bound by, and the defendant entitled to the benefit of, the limitation of its liability to fifty dollars, dependent upon the valuation or rather absence of valuation, by the shipper of the package. It is conceded that such limitation coincident with a fixing of rates dependent upon the value of the goods shipped, placed at the option of the shipper, is a valid regulation. Hart v. P. R. R. Co., 112 U. S. 331.

The only question that has occurred to me has been whether the provision of defendant’s tariff is to be construed as awarding to it an option to inquire as to the value of the package and to fix its rate and liability accordingly, and as importing a waiver if no such inquiry is made. Meister v. Woolverton, 140 App. Div. 926, approved in Robinson v. N. Y. C. & H. R. R, R. Co., 145 App. Div. 391, affd. on the opinion of Miller, J., 203 N. Y. 627. I think, however, that the language of section 38 of the Public Service Commission Law so construed in those cases differs materially from the provision of defendant’s tariff in the instant case, and that the doctrine of waiver there applied is not applicable here.

Respondent urges that the defendant did not prove that its tariff had been filed under all attendant technical requirements. No such objection was made in the court below, nor was the matter called either to defendant’s or the court’s attention directly or indirectly. Under such circumstances, the defect in merely formal proof cannot be availed of here. Ramsay v. Miller, 202 N. Y. 72.

The judgment must, therefore, be reduced to $50, with appropriate costs in the court below, and as so modified affirmed, with costs of this appeal to appellant.

Guy and Philbin, JJ., concur.

Judgment modified and as so modified affirmed, with costs.  