
    Dora Wheeler, App’lt, v. The Oceanic Steam Navigation Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 13,1893.)
    
    1. Carriers—Limitation of liability—Contract.
    Where a party receives a steamer passage ticket, containing conditions and stipulations relating to the journey, the day before the vessel sails, Held, that the acceptance and use of such ticket constitutes an assent to its terms, although the party may not have read them, as he had ample opportunity to do so before starting.
    
      2. Same- Failure to object.
    The fact that the passenger’s baggage was already on board the vessel is no excuse for a failure to object, if he had any fault to find with the terms of the contract, as the company would have been obliged, in case such objection was made, either to return the baggage or to waive its right to the benefit of the contract terms.
    3. Same.
    The contract in question provided that the company carried passengers’ luggage and goods, for which a bill of lading is not signed, subject to the express stipulation that it is not to be liable for the loss of, or injury to, any articles or property of the description mentioned in the schedule hereto, contained in any parcel or package, when the value of such articles, or property, shall exceed the sum of £10, unless the value thereof was declared at the time of delivery. The schedule included “ pictures.” Plaintiff, with her trunks, delivered a box of portraits enclosed in a whitewood box marked “ studio,” for which no bill of lading was asked and no value thereof was given. Held, that the contract extended and included the box of portraits, and the defendant's liability for a loss thereof was limited to the amount fixed by the contract.
    Appeal by plaintiff from judgment entered on verdict directed by the court in her favor for the sum of $66.
    
      Boudinot Keith, for app’lt; Wheeler, Cortis & Godkin (Everett P. Wheeler, of counsel), for resp’t.
   O’Brien, J.

This action was brought to recover the full value of a case of portraits executed in pastel by plaintiff, and by her delivered at Liverpool to the defendant for transportation to New York, and not accounted for by it. About a week prior to August 26, 1886, the plaintiff’s mother engaged a stateroom for the party, which included, besides the persons, mentioned, another young lady, on the defendant’s steamship Germanic, which was to sail from Liverpool for New York qn the date named. Having previously caused to be shipped by freight from London her three trunks and the box of portraits, the plaintiff herself arrived at Liverpool on August 24th, and inquired at the company’s offices as to whether it had received the articles, describing them, to which she received a negative answer. On the next day, being the one prior to the sailing of the vessel, the plaintiff’s mother having arrived, she and the plaintiff together proceeded to the offices of the company, and upon making a similar inquiry for the packages were informed that they had been received, and that the company had placed them upon the steamer. On this occasion the mother testifies that she informed the agent of the contents of the box; and thereupon she paid the passage money and received a ticket, which embodied a contract, by the terms of which it was held in the court below the plaintiff was bound. By the terms of such ticket it was sought to limit the liability of the company for goods, including baggage, to an amount not exceeding ten pounds.

The two questions which we regard as crucial in determining the rights of the parties are: (1) Did the receipt of the ticket with the terms and conditions printed thereon constitute a contract between the parties? and (2) were the portraits contained in the box included within such contract ? In Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y., 460 ; 51 St. Rep., 269, it was said, page 463, 137 N. Y.:

“ Cases where parties proposing to have articles or property transferred by a common carrier deliberately enter into some necessary contract relating to the transportation differ materially from those cases of travelers who commit their trunks or articles of baggage to an agent of some express or transfer company, and receive at the moment some paper which, as it has been said, amounts simply to a voucher enabling.them to follow and identify their property. The difference is very obvious in the circumstances whicli, in the one case, admit of no negotiation or discussion, while in the other the shipment of the property is a matter of arrangement, with full opportunity for deliberate action.”

That, and cases therein referred to, are authority for the view that one who receives a ticket with a contract written thereon would, under the former circumstances, be held to have entered into and assented' to the terms of the contract, though he failed or neglected to read the same, while under the latter, where opportunity for negotiation or discussion was not present, one who received a ticket or receipt for baggage which contained a contract would not be bound by the terms thereof, unless the same were brought home to the person sought to be bound. The question now presented is: Under which of these two classes is the present case to be assigned ? While a person undertaking a voyage •across the ocean may not in every instance proceed with the same deliberation as one who desires to ship goods, it is still true that he proceeds, with respect to making arrangements for such a journey, with much more deliberation than usually attends the •committing of himself or property to a common carrier upon the beginning or ending of a journey by land. As said in Steers v. Liverpool, etc. Steamship Co., 57 N. Y., 5: “Looking to the course of business, the court may take notice that an engagement for a voyage across the ocean is a matter of more deliberation and attention than buying a railroad ticket or taking an express company’s receipt for the baggage or for freight. There is, therefore, no room in such a case for the suggestion that the party is surprised into a contract, when he supposes himself only to be taking a token indicative of his right.”

Although the circumstance as to whether the transaction is one merely of affreightment, or the purchase of a ticket upon a railroad, or the delivery of one’s baggage to an express company, or the procuring of passage across the ocean, has a bearing and will shed light upon the question of whether a contract was or was not entered into, it will in each case have to be determined upon the surrounding facts and circumstances. Instances could be cited where the usual presumption that might arise in favor of or against the making of a contract limiting the liability of a •common carrier would be entirely rebutted or destroyed by the other attending circumstances. So, here, the question is whether, by reason of the acceptance and use of the passage ticket, the plaintiff is to be held to have assented to its terms. The statement contained in the case of Fonseca v. Cunard Steamship Co., 153 Mass., 555, we think is equally good law in this state. As therein said : “ It has often been decided that one who accepts a contract and proceeds to avail himself of its provisions is bound by the stipulations and conditions expressed in it, whether he reads them or not. This rule is as applicable to contracts for the carriage of persons or property as to contracts of any other kind.”

Here, as in that case, the precise question is: “ Whether the contract ticket was of such a kind that the passenger taking it should have understood that it was a contract containing stipulations which should determine the rights of the parties in reference to his carriage. If so, he would be expected to read it, and, if he failed to do so, he is bound by its stipulations. It covered with print and writing the greater part of two large.quarto pages¡ and bore the signature of the defendant company, affixed by its agent, with a blank space for the signature of the passenger. The fact that it was not signed by the plaintiff is immaterial. It contained elaborate provisions in regard to the rights of the passenger on the voyage. * * * ]STo one who could read could glance at it without’seeing that it undertook expressly to prescribe the particulars which should govern the conduct of the parties until the passenger reached the port of destination. In that particular it was entirely unlike the pasteboard tickets which are commonly sold to passengers on railroads. In reference to this question the same rules of law apply to a contract to carry a passenger as to a contract for the transportation of goods. There is no reason why a consignor who is bound by the provisions of a bill of lading, which he accepts without reading, should not be equally bound by the terms of a contract in similar form to receive and transport him as a passenger.

It is conceded that the plaintiff’s mother, if not the plaintiff herself, had been accustomed to cross the ocean, and in respect to this special voyage that they had arranged for and secured their passage at least a week ahead, and that the contract ticket was received by them a day before the vessel sailed. This contract ticket is quite a large and formidable looking paper, and in large display type states that it is “ Cabin Passenger’s Contract Ticket,” so that one receiving and looking at it could not fail to observe that it contained conditions and stipulations relating to her journey across the ocean. The failure of the plaintiff or her mother, who acted in conjunction with her, in not reading it, where, as here, the opportunity was present, would seemingly be immaterial. A reasonable time was afforded prior to the sailing of the vessel, and if any fault was to be found with the passenger contract, the plaintiff or her mother should have made it known before leaving Liverpool. It is suggested that it would then have been of no avail to protest, as the property was on board the ship, and it would have been impracticable to return it to the plaintiff before sailing. This fact, however, we do not think is an excuse for the plaintiff’s silence or acquiescence, if she had fault to find with the terms of the contract. In other words, had she demurred or objected, the obligation would have been upon defendant to return her property, or, failing to return it, not to have had the benefit of the terms of the contract ticket. The failure, then, to object, under the circumstances as they are made to appear in this case, must, we think, be held to be an assent by plaintiff to the terms and conditions of the contract ticket.

This being so, the remaining question is whether it limited the liability of the defendant with respect to the portraits which were contained in the box, and which were lost. Upon this trial, as upon the former, it was made to appear that, in addition to the- ordinary baggage contained in trunks, plaintiff delivered for transportation, as stated, a package of valuable portraits. In the words of Judge Finch upon the former appeal in this case, 125 N. Y., 155 ; 34 St. Rep., 866:

“ These were contained in a box of whitewood with iron hinges and corner clasps, and closed by a lock. The package itself, besides the address, was marked 1 Studio,’ and its appearance unmistakably indicated something other than and different from the ordinary baggage of a traveler. There was no attempt to deceive the defendant as to its true character, or by artifice or misrepresentation to make it appear to be personal baggage, or shield it, as such, from proper freight charges. It was not entered upon the bill of lading with notice of its character and value, or in any manner whatever, but was put in the hold of the vessel for transportation to New York.”

By the contract ticket it was provided: “ That the company-carries passengers’ luggage and goods, for which a bill of lading is not signed, subject to the express stipulation that it is not to be liable for the loss of, or injury to, any article or articles, or property, of the descriptions mentioned in the schedule hereto, contained in any parcel or package, when the value of such article or articles, or property, shall exceed the sum of ¿£10, unless at the time of the delivery thereof to the company the value thereof shall have been declared by the person or persons sending or delivering the same. * "* * ”

It will thus be seen by the terms of the contract that the limited liability of the company is not confined simply to baggage, but is sought to be extended to “any article or articles, or property, of the descriptions mentioned in the schedule,” which schedule enumerates, among other things, “ pictures.” The appellant’s contention is that this language would only refer to articles mentioned in the schedule which were packed with baggage, and the knowledge of which was kept from the company, and would not include portraits or pictures packed in a case, as here, and which it is claimed must necessarily have been received as freight, and for which, as such, defendant would be liable. We do not think this position is tenable. This property was delivered at the same time as the trunks, and is by a particular description referred to in the contract ticket; and where, as here, no bill of lading was taken out or asked for, and the value thereof was not stated, but the company was left to infer from the manner in which it was received that it was to be carried in the same way as any other property which á passenger might seek to bring with him, we think it would be extending the liability of the defendant beyond the terms of the express contract entered into between the parties to assume that it was a separate and independent contract under which the defendant unconditionally received the package as freight, and for which, as such, it would be liable. In other words, whether the property was what might, strictly speaking, be called “baggage,” or “freight,” and whether received as one or the other by the defendant, cannot be a controlling circumstance in a case where there is a contract which by its terms covered such property. In Stoneman v. Erie Railway Co., 52 N. Y., 433, Judge Peckham, writing the opinion, says:

“1 think it is safe to say that if the carrier knew or had notice of the character of the goods taken as baggage, and still undertook to transport them, he is liable for their loss, although they are not traveler’s baggage.”

We think it to be equally a sound proposition that it was entirely competent for the defendant to carry the package containing the portraits, though, from the way in which they were boxed, it had knowledge that such package was not, strictly speaking, baggage, and to contract -with the person owning such property as to the terms, conditions or limitations under "which it would transport the same. We think the evidence shows that there was no intention of separating this property from the baggage, or, on the part of the plaintiff, of placing any other or different responsibility upon the defendant from that assumed by it in carrying the trunks. But, on the -contrary, the evidence is susceptible of but one conclusion, viz,, that the trunks and the package containing the portraits, as well as their own' transportation or passage, were intended by the parties to be, and were, the subject of a single contract. It will thus be seen that we have reached the conclusions, with respect to both questions, that there was a contract entered into between the parties, which, by its terms; extended to and included the portraits, and under which the liability of the defendant was limited; and upon such conclusion it follows that the case was correctly disposed of by the judge at circuit, and that the judgment should be affirmed, with costs to the respondent.

Follett and Parker, JJ., concur.  