
    Chaim Lechowitzer, Resp’t, v. The Hamburg American Packet Company, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed May, 1894.)
    
    1. Oakmeii—Exemption.
    The contract for carriage is consummated when the passenger pays, and the carrier accepts, the fare.
    2. Same.
    Where no terms of acceptance are then agreed upon, the law prescribes the conditions of carriage.
    3. Same.
    Any subsequent assent, even though express, to a limitation of liability is without consideration and, therefore, nugatory.
    Appeal from judgment of general term', city court, affirming judgment on verdict.
    The opinion states the case.
    
      Everett P. Wheeler, for app’lt; Nicholas Aleinihoff, for resp’t.
    
      
       Affirming, 57 St. Rep. 862.
    
   Pryor, J.

7A judgment for the plaintiff, in an action for loss of baggage, against an ocean carrier, is challenged on appeal for alleged errors of the court in the charge, in the refusal to dismiss the complaint, and in the exclusion of evidence. ■

1. It is insisted that the action miscarried for failure of proof that the contract of transportation was by the defendant company; but if sc, then because no evidence was adduced of negligence on the part of the defendant.

Defendant’s contention, urged, however, obliquely rather than explicitly, is that 'the steamer Sorrento, on which plaintiff came passenger, was of the Union Line, and not in the service of the defendant company. But, the evidence for plaintiff was ample to justify the conclusion that the Sorrento was in the employ of the defendant, either alone or in association with the other company ; or else, that at all events the defendants had engaged for the carriage of the plaintiff, no matter by whose steamer. And, now, upon this point, did the defendant meet the plaintiff’s proof ? By the statement of its clerk—its solitary witness—that “ the Sorrento is not one of those vessels that belong to the defendant company only ; ”—a plain intimation that the defendant had an interest in the Sorrento, and an equally distinct implication that though the Sorrento did not “ belong ” to the defendant, yet, nevertheless, it was carrying for the defendant.

If the Sorrento were not in the service of the defendant, or if the defendant did not contract for the carriage of plaintiff, clear and conclusive proof of these facts was necessarily within the power of the defendant; and failure to produce such proof reinforced plaintiff’s evidence by an obvious and persuasive presumption.

Upon evidence susceptible of diverse inferences, the learned trial judge instructed the jury that “if you believe the steamer which carried this baggage was not the property of the defendant, and that the defendant had no connection with it, the plaintiff cannot recover.” On the issue so presented the jury found for the plaintiff, and we are concluded by their verdict.

Similarly, on the question of defendant’s negligence, we are satisfied that the evidence is sufficient to sustain the fact. But, though otherwise, the liability of the defendant still remains. For the obligation of a common carrier by the sea is as insurer against all casualities except by the act of Grod or the public enemy, 2 Kent Com., 599-600; Wheeler v. O. S. N. Co., 125 N. Y. 155, 160; 34 St. Rep. 866, and “the burden of showing delivery of baggage to the passenger is upon the defendant.” Matteson v. R. R. Co., 76 N. Y. 381; Tarbell v. Shipping Co., 110 N. Y 170; 17 St. Rep. 153; Isaacson v. R. R. Co., 94 N. Y. 278. Immediately on landing, and persistently afterward, the plaintiff demanded delivery of his baggage, but without effect. The responsibility of the defendant is clear and incontestable. It was not error, therefore, to deny a dismissal of the complaint.

2. It is urged, furthermore, that the learned Judge erred in excluding evidence that the Sorrento was not the property of the defendant. That may be, and yet the steamer might have been in the service of the defendant and the identical vessel on which it undertook to carry the plaintiff. But the defendant’s objection is 'avoided by a a still more decisive answer, namely, that the evidence, the supposed rejection of which is the subject of criticism, was received and from the very witness by whom it was offered, who said : “The Sorrento is not one of those vessels that belong to the defendant company only.”

3. To diminish the amount of recovery defendant introduced a ticket, claimed to have been given to plaintiff, containing the clause that “the indemnity for lost baggage will in no case exceed fifty dollars.” Upon this the court charged that, to bind the plaintiff,the provision must have been assented to by him; that “the mere fact of the paper not having been read to him would not exempt him from the terms of the contract; ” that “ if by any means he assented to its terms he would bo bound by it equally as if he had read it.” To the instructions the defendant excepts; but we are of the opinion that if not correct, it is at least as favorable to defendant as consists with legal principle.

The paper relied on as limiting defendant’s liability was not given to him when and where he paid for his passage, but days afterward when he was already at sea on the steamer, and powerless to repudiate the pretended contract. When a party has no freedom to reject a proposed stipulation, because then unable to reinstate himself—here to reclaim his baggage and decline the-carriage by the defendant—an inference of his assent to the stipulation would be simply preposterous. His proceeding on the voyage and suffering his baggage to remain with the-carriers were-compulsory, and can, therefore, imply no assent to terms of transportation then for the first time communicated to him, Smith v. Brady, 17 N. Y. 173, 187 189. Further argument in support of the proposition would be an affront to common sense: a judicial decision in negation of the proposition would be a mockery of justice.

Though altogether unnecessary, it may be added that the contract for plaintiff’s carriage was consummated when he paid and the defendant accepted the money for his passage; that no terms-of conveyance being then agreed, the law prescribed the conditions of plaintiff’s carriage; and that his first assent, even though express, to the limitation of liability claimed by defendant, would have been nugatory, because without consideration. The defendant was already bound to carry the plaintiff; and an agreement to do what one is already under legal obligations to do can be no consideration for a counter engagement, Bishop on Contracts, § 48 ; Tilden v. Mayor, 56 Barb. 340.

The law,» no less than the justice, of the case is with the plaintiff.

Judgment affirmed, with costs.

Daly, C. J., and Bischoff, J., concur.  