
    Cohen v. Frost and others.
    (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 24;
    July 2, 1853.
    The plaintiff, an. emigrant German, was a steerage passenger in a ship owned by the defendants, on a voyage from Liverpool to New York, and during the voyage, his trunk containing wearing apparel, &c., was stolen and never recovered.
    
      Held, that as it appeared that the trunk was in the exclusive possession and cus. tody of the plaintiff himself, and that he trusted to his own care and vigilance to protect him against its loss, the defendants as common carriers were not bound to indemnify him.
    To render those who. transport persons for hire responsible for the loss of baggage, it must he placed under their charge, and it is not so placed when the passenger retains possession and trusts to his own care for its safety.
    Verdict for plaintiff set aside; verdict and judgment thereon entered for defend, ants.
    
      Case on a verdict subject to the opinion of the court at General Term,
    The action was against the defendants, as the owners of the ship Princeton, a ship employed in the carriage of passengers and freight between the ports of Liverpool and New York, and was brought to recover the value of a trunk and its contents, the property of the plaintiff, which it was alleged,'through the negligence of the defendants, were stolen and lost on the pas» sage of the ship from Liverpool to this port.
    The answer denied that the trunk was in the possession or under the control of the defendants on the voyage, and that it was lost through their negligence or that of their servants; and alleged that by the usage of ships engaged in the transportation of emigrant passengers from Liverpool to New York, the passengers retain the exclusive possession and control of their personal baggage; that the plaintiff was a passenger of this class, and that the usage was well known to him when he was received on board, and that he acted in conformity to it,
    The reply denied that the plaintiff had any knowledge of the alleged usage, or that he would have been bound by it, had its existence been known to him.
    The cause was tried before the Chief Justice and a jury at the February trial term, 1853.
    The following are the material facts proved on the trial: The plaintiff is a German emigrant, and took his passage as such in the steerage of the Princeton, on the voyage referred to in the pleadings; when he went on board he took his trunk with him into the steerage, and kept it for some time under Ms bed, and then tied it with ropes to the berth in which he slept, During the rnght of a violent storm, which occurred when the ship had been, seven or eight days at sea, the ropes which fastened (the trunk were cut, and it was carried off and stolen by some unknown persons and never recovered. The contents were proved to be of some value—wearing apparel and some gold and silver coins.
    "When the testimony on the part of the plaintiff was closed, the defendants’ counsel stated, "that he proposed showing that the transportation of passengers was a business prosecuted by various lines of vessels sailing between New York and Liverpool, and had been followed as a business for many years; and that the general custom and usage, by and among the masters and owners of such vessels in such business, and the emigrants, whom they carried, was, that all the luggage of such passengers continued to be under their own direction and control; and that the same was never taken into the possession or custody of the owners or masters of such vessel or their agent, and that the same was never delivered to nor accepted by them.
    The plaintiff’s counsel objected to the evidence of any such custom or usage. The court overruled the objection, and to its decision the plaintiff’s counsel then and there duly excepted.
    The usage alleged was fully proved by several witnesses; and that it had existed for many years past. There was no contradictory testimony.
    The case was here rested on both sides.
    It was then agreed by the respective counsel that the jury should pass upon the damages the plaintiff was entitled to recover, if entitled to recover at all.
    The jury, after retiring under the charge of the court, rendered a verdict for the plaintiff for $300 damages and costs; two hundred dollars thereof being for the wearing apparel of the plaintiff contained in the lost trunk, sixty-four dollars for money, and thirty-six dollars for the jewelry also contained in the trunk and lost with it.
    By the consent of the respective counsel all questions of law as to the right of the plaintiff to recover were reserved for the future consideration of the court, at General Term, with liberty to the court to order a verdict and judgment to be entered for either party, as it might then determine.
    
      D. Evans, for the plaintiff,
    now moved for judgment upon the verdict, and relied upon the following points and authorities.
    I. By the common law, common carriers are insurers of the goods intrusted to and received by them in that capacity, and are liable for all losses except such as are occasioned by the act of God or public enemies. (Coggs v. Bernard, 2 L’d Raym., Rep. 909; 1 Smith’s Leading Cases, 172; 2 Kent’s Comm., 2d ed., 597; Story on Cont., § 752-769; Hollister v. Nowlen, 19 Wend. 234.)
    II. Gamers of passengers, whether by land or water, are liable as common carriers in respect to the personal baggage of their passengers, of which they are insurers, the consideration for carrying the same being included in the fare or price paid for the conveyance of the passenger owner. (2 Kent’s Com., 2d ed., pp. 601, 602; Story on Cont., §§ 751, 752, 755, 768; Story on Bailm., § 498; Camden & Amboy R. R. Co. v. Burk, 13 Wend. 611; Hollister v. Nowlen, 19 Wend. 234, and cases cited; Cole v. Goodwin, 19 do. 251; Powell v. Meyers, 26 do. 591; Hawkins v. Hoffman, 6 Hill, 586.)
    IH. There is no distinction in respect to liability between carriers by land and. carriers by water. (Story on Cont., § 768, 769, 769 a, 769 b; Abbott on Shipping, 5th Am. ed., p. 288, and cases cited; 2 Kent’s Comm., 2d ed., pp. 599, 600, and id. p. 608, and cases cited in note (c), and cases cited above under n.
    IV. Besides wearing apparel, the term personal baggage may properly include a reasonable amount of money for the passenger’s incidental expenses, and .articles of personal convenience and comfort. (Orange Co. Bank v. Brown, 9 Wend. 85; and see Hawkins v. Hoffman, ubi supra; also, Jones v. Vorhees, 10 Ohio Rep. 145.) 1. If this last point should be denied to be law, in respect to land or inland carriers, the rule still holds in respect to carriers on the ocean, where the proper and usual place of deposit of pocket money of passengers is in their trunks or other baggage.
    V. Even if the existence of the usage in respect to the baggage of emigrant passengers on board the vessels plying between New York and Liverpool, of which evidence was allowed to be given to the jury, should be considered as having been established on the trial, as a question of fact, such a usage, even if brought home to the knowledge of the plaintiff, would not discharge the defendants from their common law liability as common carriers. A general usage, the effect of which is to control the well settled rules of law, is inadmissible. (Hone v. The Mutual Safety Co., 1 Sandford, S. C. R. 138; Schooner 
      
      Reeside, 2 Sumner R. 567; Hollister v. Nowlen, 19 Wend., page 247; Cole v. Goodwin, id. 251; Story on Cont., § 650; Gould v. Hill, 2 Hill, 623; Wells v. The Steam Navigation Co., 2 Com. 204; Price v. Powell, 3 id. 322.)
    VI. 1. Usage is only admissible for the purpose of determining the real intentions and understanding of the parties, where they are not otherwise determined, and are doubtful. (Story on Cont., § 649; Story, J., in Schooner Reeside, 2 Sumner, 567.) 2. But it is against the policy of the law that common carriers should be allowed to vary or limit their ordinary liability, or make contracts by implication in their own favor; and hence even direct notice given by them for the purpose of limiting their liability, is not allowed to prevail in this State. (Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, id. 251; Camden Transportation Co. v. Belknap, 21 Wend. 354; Gould v. Hill, 2 Hill, 623; other cases and authorities, under 2.) 3. Besides, in the present case, the defendants failed to prove any notice to have been given by the defendants in reference to the baggage of the emigrant passengers, for the purpose of limiting their liability in respect thereto.
    VH. 1. The leaving of the baggage, in a measure, under the control' of the plaintiff, on board the ship, does not discharge or vary the liability of the defendants. It was placed in the part of the ship designated by the defendants, and over which they continued to exercise a supervision. (Robinson v. Dunmore, 2 Bosanq. & Pull. 416; 2 Kent’s Com. 2 ed., p. 601; Story on Cont. § 768 ; Hollister v. Nowlen, ubi supra.) 2. The only limitation recognised to this rule applies to articles of baggage so small as to be conveniently carried about the person. (Tower v.The Utica & Schenectady Railroad Co. 7 Hill’s Rep. 47.)
    
      J. Cochrane, contra,
    
    insisted that judgment ought to be rendered for the defendants, upon the following grounds.
    I. The plaintiff’s trunk was gone—alleged to have been stolen. There is no evidence by whom it was taken; but whether stolen by a stranger or a sailor, in either case the defendants are not liable. (Bull v. The Great Western R. R. Co., 7 Eng. Law and Equity R. 442.)
    
      II. The defendants were not liable for the trunk of the plaintiff as common earners. They did not accept the custody of it. It was not at any time in their custody, but was in that of the plaintiff. ■ To make a common carrier liable for baggage, he must have accepted it. (Angel on Carriers, §§ 140, 141, 322; Addison on Contracts, 809; Miles v. Cuttle, 6 Bing. 743; East India Co. v. Pullen, 2 Strange, 690; 2 Bos. and P. 419; Tower v. Utica R. R. Co., 7 Hill, 47.) A general, known, and valid usage was proved, exempting defendants from all liability for baggage. This was the usual course of business. The basis of any liability of common carriers for baggage is a contract by them, implied from the usual course of business to carry it. (6 Hill, 589.) It is therefore competent to show what is the usual course of business. If that is not to receive baggage there can be no liability.
    IH. If the defendants are liable for baggage, they are not liable for the loss of the contents of plaintiff’s trunk. He was an emigrant. All his worldly goods were packed in his trank. It was his store-house and sub-treasury. It contained all his clothing, all his money, and all his jewellery. It contained more than enough for personal convenience on a journey. Such contents are not usually carried as baggage. (Hawkins v. Hoffmann, 6 Hill, 586, 589, 590.)
   By the Court. Oakley, Ch. J.

We are all of opinion that, upon the evidence before us, the plaintiff cannot be permitted to recover. The ground of our decision is, that the trunk was never placed in the charge or custody of the defendants, as common carriers. It was in the exclusive possession and custody of the plaintiff himself, when the voyage commenced, and so remained at the time of the loss. He took it with him into the steerage, placed it under his bed, and fastened it with ropes to his berth ; all his conduct in relation to it plainly showing that he relied upon his own care and vigilance to protect him against its loss. Whether the usage proved was binding upon the plaintiff, unless communicated and assented to by him, and whether the evidence justifies the presumption that it was in fact made known to him, are questions which we deem it unnecessary to consider, since, even supposing him to have been ignorant of the existence of the usage, we hold that he is concluded by his acts.

The case is not to he distinguished from that of a guest at an inn, who, when he takes his luggage to his own chamber, of which he keeps the key, discharges the innkeeper (Burgess v. Clements, 4 M. & Sel. 306; Jervis v. Utica R. R. Co. 607; 6 Hill, 47). The guest has his election, to trust for the safety of his property to the care and responsibility of the innkeeper, or to Ms own prudence. He cannot impute negligence to the innkeeper, when his conduct shows that he trusted Mmself. The innkeeper is not liable unless the property is placed in his charge. It is not so placed when the guest retains its exclusive possession and control, and we see no reason to doubt that these remarks equally apply to the relation between passengers and those who undertake to transport them for hire.

Mr. Justice Bronson, in the able opinion delivered by him, in the case of Hawkins v. Hoffman (6 Hill, 586), appears to have shown that the doctrine, that those who transport persons for hire, are responsible for the safe keeping arid delivery of the baggage of passengers, is of modern origin, and rests not upon any positive rule of the common law, but upon a contract which has been implied from usage ; and it seems a necessary consequence, that this implication may be repelled by evidence of an opposite usage. If so, the evidence of usage given upon the trial was properly received, and was of itself conclusive. It is not, however, upon tMs ground, but upon the reasons we have before given, that we place our judgment, which must have been the same had no usage been proved. The defendants, as carriers, never had charge of the plaintiff ?s trunk, and are not responsible for its loss.

The verdict for the plaintiff must be set aside, and a verdict and judgment thereon be entered for the defendants, with costs.  