
    (89 Misc. Rep. 472)
    LYNCH et al. v. NEW YORK CENT. & H. R. R. CO.
    (Niagara County Court.
    March, 1915.)
    1. Carriers <@=156—Negligence—Liability oe Carrier—Contract Limitation.
    The language of a contract relieving a carrier from liability for its negligence must be explicit and the intention clear; general words being insufficient.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 697-719; Dec. Dig. <@=156.]
    2. Carriers <@=156—Negligence—Liability—Contract Exemption.
    A stipulation of a shipment contract that the carrier should not be liable for loss, damage, or delay, unless a claim therefor be made in writing within a certain time, was insufficiently explicit to relieve the carrier from liability to claims based on its own negligence.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 697-719; Dec. Dig. <@=156.]
    3. Commerce <@=S—Interstate Shipments—Contract—What Law Governs.
    Since the Carmack amendment to the Hepburn Interstate Commerce Act (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat 593 [U. S.
    <@s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Comp. St. 1913, § 8592]) places the subject of a common carrier’s liability for loss or damage to an interstate shipment under federal control, the validity of any stipulation of a contract for an interstate shipment is a federal question, to be determined by the federal and state courts under the general common law as pronounced by the federal courts.
    [Ed. Note.—For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. @=>8.]
    4. Commerce @=>33—“Interstate Commerce.”
    A shipment from one point in a state to another point in the same state is interstate commerce, where the goods in transit pass through another state.
    [Ed. Note—For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. @=>33.
    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    5. Commerce @=>33—Shipment—Intrastate Contract.
    A contract for the shipment of fruit is an intrastate contract, where it contemplates a route wholly within the state.
    [Ed. Note.—For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. @=>33.]
    6. Carriers @=>156—Damage to Shipment—Contract Limitation op Liability—Waiver.
    An intrastate shipment contract provided for re-icing of perishable fruit at points within the state, and that the carrier should not be liable on claims for loss, damage, or delay, unless they were presented in writing within a specified time. The carrier, by deviating from the agreed route, converted the shipment into an interstate shipment, and loss resulted from its failure to properly re-ice the fruit. Held, that by such deviation from the agreed route the carrier became an insurer, and could not avail itself of the exception in the contract, though such exception would have been valid as applied to an interstate shipment.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 697-719; Dec. Dig. @=>156.]
    7. Carriers @=>159—Shipment Contract—Presentation op Claim—Waiver oE Condition.
    Where the carrier’s attorney, without objection, accepted notice of the shipper’s claim for damage, at a place which was neither the point of origin nor the point of destination, the carrier waived its right to require a more strict compliance with a stipulation of the shipment contract providing that written claim for damages should be made at the point of origin or point of destination. ■
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 668-671, 699-703%, 711-714, 718, 718%; Dec. Dig. @=>159.]
    3—.Vm- Other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Action by Dennis E. Lynch and another against the New York Central & Hudson River Railroad Company. Verdict for plaintiff and defendant moves for new trial.
    Motion denied.
    S. Wallace Dempsey, of Niagara Falls, for plaintiffs.
    Lester F. Gilbert, of Buffalo, for defendant.
   FISH, J.

There are six separate causes of action alleged in the complaint, five of which are to recover damages to shipments of peaches and plums transported by the defendant as a common carrier from Appleton, N. Y., to Desbrosses Street station, New York City, arising from improper refrigeration of cars in which the same were .carried. The plaintiffs base their right of recovery upon the negligence of the. defendant in furnishing cars improperly iced, and in improperly re-icing the cars while in transit; also upon a deviation from the agreed route. Each cause of action involves a separate shipment, and there was a car load of fruit in each shipment. A bill of lading in each instance was delivered by the carrier to and accepted by the shipper, and each bill of lading provided for the carriage of the fruit covered thereby from Appleton, N. Y., to Desbrosses Street station, New York City, and each contained various exceptions, and also the following stipulation:

“Claims for loss, damage, or delay must be made in writing to the carrier at • the point of delivery or at the point of origin within four months after delivery of the property, or in case of failure to make delivery then within four months after a reasonable time for delivery has elapsed. Unless claims are •so made the carrier shall not be liable.”

There was also written on each bill of lading:

“Re-ice at Kendall and Karner.”

Kendall is about 30 miles east of Appleton on the route to New York City, and Karner is about midway between Albany and Schenectady on the main line of the defendant. Each of the cars was re-iced at Kendall as directed, and then transported to Frankfort, N. Y., about 10 miles east of Utica and on the West Shore division of the defendant. Each shipment was there re-iced, and thence moved over the West Shore division to Weehawken and forwarded to destination. Karner is about 60 miles east of Frankfort, and the cars were not taken by way of Karner, and of course not re-iced there. The route from Karner to destination was over the main line of the defendant and wholly within New York state. The peaches and plums on arrival at destination had deteriorated and commenced to decay, owing, as plaintiffs claim, to improper refrigeration of the cars, due to the negligence of the defendant, and the plaintiffs have recovered a substantial verdict for their damages. The defendant’s agent at Desbrosses Street station was immediately verbally notified of the bad condition of the fruit on arrival, and defendant’s agent at Appleton, N. Y., was within four months likewise verbally notified. There was no written claim for such loss or damage made in writing to the defendant at the point of delivery or at the point of origin within four months after delivery of the property.

The rule of the common law is that a carrier is an insurer of the goods intrusted to him for transportation, except as against the act of God and the public enemy. This rule arose because the shipper surrendered control and dominion over the property, and on account of the difficulty in proving the negligence of the carrier; but early in England stipulations in contracts of affreightment were made relieving the carrier from this strict liability, and these stipulations were held good by the courts, provided they did not relieve the carrier from liability for his own negligence; and generally in this country it is the law that the carrier can by contract limit his common-law liability, except for negligence. In this state, however, it is the law that a carrier could relieve himself from liability even for his own negligence (Nelson v. Hudson R. R. R. Co., 48 N. Y. 498 ; 6 Cyc. 388, and cases therein cited); but such contracts are not favored, and in order to relieve the earlier from liability for his own negligence the language must be explicit and the intention clear. General words will not suffice. Nicholas v. N. Y. C. & H. R. R. R. Co., 89 N. Y. 370; Jennings v. Grand Trunk R. Co., 127 N. Y. 438, 28 N. E. 394; Brewster v. N. Y. C. & H. R. R. R. Co., 145 App. Div. 51, 129 N. Y. Supp. 368.

Consequently, where general words are used, such as are above quoted, it is the law, at least in this department, that the stipulation does not apply to claims based upon the negligence of the carrier. Richardson v. N. Y. C. & H. R. R. R. Co., 122 App. Div. 122, 106 N. Y. Supp. 702. In the Richardson Case the court said:

“It seems to be settled in this court that such a condition as the one in question does not apply to and will not relieve a common carrier from responsibility for negligence.”

The condition there in question was that the claim for damages should be presented in writing promptly, and, if delayed more than 30 days after delivery or time for delivery, that there should be no liability.

In the federal courts, however, it is well settled that a contract by a common carrier relieving him from liability for his negligence is against public policy and void (Cau v. Texas & P. R. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. [N. S.] 257); but, on the other hand, stipulations requiring claims to be presented within a certain time are held by the federal courts not contracts against negligence, but conditions precedent to suit affecting, not the carrier’s liability, but the shipper’s remedy, and when the time is reasonable such stipulations are held by the federal courts to be valid and binding (Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; The St. Hubert [D. C.] 102 Fed. 362; Metropolitan T. Co. v. Toledo, St. L. & K. C. R. Co. [C. C.] 107 Fed. 629; The Westminster, 127 Fed. 680, 62 C. C. A. 406; The Arctic Bird [D. C.] 109 Fed. 167; Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690). And such is the general rule in this country. Houtz v. Union P. R. Co., 17 L. R. A. (N. S.) 628, note; 5 Am. & Eng. Enc. of Law (2d Ed.) 321.

The plaintiffs claim that these five shipments were each intrastate commerce and that the rule laid down in the Richardson Case applies, while the defendant claims that they are interstate commerce and that the rule of the federal courts applies to the stipulation in question. There can be no doubt that Congress has by the Carmack amendment to the Hepburn Act (Interstate Commerce Act, § 20) taken possession •of the subject of the liability of a common carrier for loss or damage to an interstate shipment and that the validity of any stipulation in a contract for an interstate shipment is a federal question to be determined by the federal and .state courts under the general common law as pronounced by the federal courts. Chicago, B. & Q. R. Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323; Missouri, K. & T. R. Co. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377.

While there was some dispute in the lower federal courts as to whether a shipment from one point in a state to another point in the same state where the goods in transit passed through another state was interstate or intrastate commerce, it is now settled by the highest federal court that such a shipment thus moved is interstate commerce (Hanley v. Kansas C. S. R. Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333; 28 L. R. A. [N. S.] 985, note), and as the goods in question on their way to destination passed through' a part of the state of New Jersey, the commerce in question was interstate and the stipulation above quoted is valid, if the contract is in force.

The contract, however, is not in force because of a deviation from the agreed route. The contract as made by the consignor was an intrastate contract; it contemplated a route wholly within the„ state of New York. The provision was to re-ice at Karner, and the route from Karner to destination by the defendant’s roads is wholly within New York; but whether this contract as originally made related to interstate or intrastate commerce is of no moment, because it is no longer the contract of the parties. The contract provided for re-icing at Karner, instead the cars were deviated to the West Shore division and re-iced at Frankfort about 60 miles west of Karner. The provisions in a contract of affreightment for the re-icing of- perishable fruit, and naming the points at which such re-icing is to take place, are very substantial and important provisions of such contract. Where there is a deviation from the agreed route, the carrier becomes an insurer, and cannot avail himself of any exceptions in the contract. Maghee v. Camden & Amboy R. R. Co., 45 N. Y. 514, 6 Am. Rep. 124; Johnson v. N. Y. C. R. R. Co., 33 N. Y. 610, 88 Am. Dec. 416; Green-Wheeler Shoe Co. v. Chicago, R. I. & P. R. Co., 130 Iowa, 123, 106 N. W. 498, 5 L. R. A. (N. S.) 885, 8 Ann. Cas. 45. In the Maghee Case the court said:

“When a carrier accepts goods to' he carried with a direction on the part of the owner, to carry them in a particular way, or by a specified route, he is bound to obey such direction; and if he attempts to perform his contract in a manner different from his undertaking, he becomes an insurer, and cannot avail himself of any exceptions in the contract.”

The deviation here destroyed the entire contract, including the above-quoted provision. McKahan v. American Ex. Co., 209 Mass. 270, 95 N. E. 785, 39 L. R. A. (N. S.) 1046, Ann. Cas. 1912B, 612; Thorley v. O. S. S. Co. [1907] 1 K. B. 660; Kish v. Taylor [1911] 1 K. B. 625; I. G. v. Macandrew & Co. [1909] 2 K. B. 360; Balian & Sons v. Joly, Victoria & Co., 6 T. L. R. 345. In Pavitt v. Lehigh Valley R. R. Co., 153 Pa. 302, 25 Atl. 1107, it was held that a deviation did not destroy a stipulation in a bill of lading requiring a claim to be made within a specified time; but this decision was undoubtedly based upon an early English case (Davis v. Garrett, 6 Bing. 716) in which there was an indication that such stipulation was not destroyed by the deviation. However, it is now well settled in England, as appears from the above-cited case, that a deviation destroys the entire contract, and in the McKahan Case, supra, after referring to the Pavitt Case, the court . said:

“But we are of opinion that the principle put forward by Lord Esher in Balian v. Joly, Victoria & Co. is the true one, and that the effect of a deviation is to do away with the express contract altogether—at least at the 'election of the shipper. In other words the breach of the express contract of shipment (which takes place when there is a deviation from route or departure from mode, method, or manner of transportation) is such a breach on the part of the carrier that the shipper can rescind the express contract of shipment.”

The carrier, haying broken in a material part one of the covenants in an express contract to be performed on its part, cannot in reason or justice call upon a shipper to perform his covenants contained in the same contract. It is elementary that a party to a contract cannot repudiate burdensome covenants therein and at the same time enforce beneficial ones. It would be manifestly unjust to permit a carrier to make a contract for an intrastate shipment to be construed by the courts in accordance with the laws of the state, and then by his own default and wrong to convert such a contract into a contract involving an interstate shipment to be construed and its validity to be determined by the courts in accordance with the law as pronounced by the federal courts. In Kish v. Taylor, supra, the court said:

“The shipowner by his own default has substituted a different voyage from that to which the special contract refers, and he cannot claim that contractual exceptions or obligations that relate to the one should be deemed to be transferred to the other.”

The other cause of action involves the shipment of a car load of apples from Holley, N. Y., to Barclay street, New York City, shipped on the 22d day of November, 1913, and arriving at Barclay street on December 2d of the same year, and is to recover damages on account of the negligent delay of the defendant. On this shipment a bill of lading was delivered to and accepted by the shipper which contained a stipulation similar to the stipulation above quoted, but in which there was no provision for re-icing. The negligence of the defendant and the amount of the damages on this car were stipulated, leaving the sole question at issue as to whether the stipulation in'question was valid or not, and as to whether the same had been complied with. The usual route from Holley, N. Y., to Barclay street is wholly within the state of New York, and, inasmuch as this was intrastate commerce, the rule laid down in the Richardson Case above quoted applies, and the stipulation in question does not relieve the defendant from its negligence.

There was presented within the four-months period specified in the stipulation a written claim for damages to an attorney for the defendant. This written claim was presented in the office of the plaintiffs’ attorney at Lockport, N. Y., and was accepted by the attorney for the defendant and was a written claim for damages to the six shipments in question, with each shipment separately stated, and the defendant’s agent at Barclay street was also verbally notified of the damage to the sixth shipment shortly after its arrival at destination. The object of stipulations of this character is to give the carrier reasonable notice in order that he may have an opportunity to protect himself against fraudulent claims. 17 L. R. A. (N. S.) 628, note. The stipulation in question provided that the written claim should be made at the point of origin or at point of destination; but if the defendant was going to insist upon a strict compliance with the terms of the stipulation its attorney should not have accepted the notice of claim presented to him at Loclcport, and if the same had not been accepted then a strict compliance with the stipulation could have been made. Indeed, the plaintiffs were lulled into security by the failure of the defendant to object to the manner and place of the making of the written claim, and in my opinion there was a sufficient compliance with the stipulation in question and a waiver by the defendant of a more strict compliance therewith. 6 Cyc. 509; Falkenberg v. Erie R. Co., 28 Misc. Rep. 165, 59 N. Y. Supp. 44; Marrus v. N. H. S. Co., 30 Misc. Rep. 421, 62 N. Y. Supp. 474; Atchison, T. & S. F. R. Co. v. Temple, 47 Kan. 7, 27 Pac. 98, 13 L. R. A. 362; Hinkle v. Southern R. Co., 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685; Eckert v. Penna. R. R. Co., 211 Pa. 276, 60 Atl. 781, 107 Am. St. Rep. 571.

Motion for new trial denied, with $10 costs.

Motion denied, with $10 costs.  