
    Dora Wheeler, App’lt, v. Oceanic Steam Navigation Company (Limited), Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    1. Common carriers—Baggage—Notice must be given to fix liability —Rev. Stat., U. S., § 4281.
    _ Where in an action brought to recover damages for the loss of certain pictures belonging to the plaintiff which had been shipped by one of the-defendant’s steamers as baggage, it was conceded that the plaintiff shipped the paintings without at the time of such lading giving to the defendants or their agents the written notice of the true character and value thereof as required by section 4281 of the Revised Statutes of the United States, Held, that neither the master or owners of the vessel on which the pictures were shipped became liable as carriers in. any form or manner.
    3. Same—When liable as warehouseman.
    In order to hold the carrier to the liability of a warehouseeman the contract of carriage must be completed, the goods transported and have arrived at their place of destination, and for their subsequent loss only-does the liability arise.
    8. Same — When provisions of statute as to notice do not apply — Rev..Stat., U. S., § 4281.
    To take the case out of the provision of section 4281, Rev. Stat.., U. S.,. the articles shipped must he an ordinary and necessary part of the plaintiff’s baggage.
    Appeal from judgment dismissing complaint upon trial at circuit.
    
      H. Aplington, for app’lt; Lawrence Godkin, for resp’t.
   Van Brunt, P. J.

—This action is brought to recover damages for the loss of certain pictures belonging to the plaintiff' which she had shipped by one of the defendant’s steamers at Liverpool as baggage. At the close of the plaintiff’s . case a motion was made to dismiss the complaint upon the ground that under section 4281 of the Revised Statutes of' the United States the defendant was not liable for the loss of the pictures in question in any form or manner, the same having been laden as baggage on the steamer “ Germanic,” without at the time of such lading giving to the master, clerk, agent or owner of such vessel a written notice of the true character and value thereof; that the pictures were not baggage and that the defendant was not liable at common law therefor; and that there was nothing in the pleadings or proof to indicate any liability on the part of the defendant as a warehouseman after the arrival of the steamship.

Were it not for the decision of one department of this court in the case of Golden v. Romer (20 Hun, 438), we should think that the last objection was well taken in that the whole tenor of the complaint shows an intention upon, the part of the pleader to recover against the defendants as common carriers, and not as warehousemen. But in the case cited, a complaint containing similar allegations was 'held to justify a recovery against a carrier who had become a warehouseman. This decision seems to be based upon the cases of Curtis v. Delaware, Lackawanna and Western Railway Co. (74 N. Y.. 116) and Fairfax v. N. Y. C. and H. R. R. R. Co. (73 id., 167).

An examination of those cases, however, discloses the fact that no question of pleading was raised therein, and the only question determined was as to the liability of the ■carrier,' who had performed his contract of carriage .as a warehouseman.

The Statutes of the United States seem, however, to be a perfect bar to the plaintiffs’ right to recover in this action.

The section in question reads as follows: “If any shipper of platina, gold, gold dust, silver, bullion, or other precious metals, coins, jewelry, bills of any bank or public body, ■diamonds, or other precious stones, or any gold or silver in a manufactured or unmanufactured state, watches, clocks, <or time-pieces of any description, trinkets, orders, notes, or securities for payment of money, stamps, maps, writings, title deeds, printings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with any other material, furs, or lace, or any of them, contained in any parcel, or package, or trunk, shall lade the same as freight or baggage, on any vessel, without, at the time of such lading, giving to the master, clerk, agent or owner of such vessel receiving the ■same, a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof, in any form or manner; nor shall any such master or owner be liable for any such goods, beyond the value and according to the character thereof, so notified and entered.”

It is conceded that the plaintiff shipped these paintings without, at the time of such lading, giving to the master, ■clerk, agent or owner of the vessel a written notice of the true character and value thereof, and that therefore the shipment came within the terms of the statute and neither the master nor owner of the vessel became liable as carriers of such pictures in any form or manner. This law was evidently enacted not only for the protection of the carrier, but also for the protection of the government, in order that merchandise should not come into this country without appearing upon the ship’s manifest.

The claim that these articles were to be considered as baggage of the plaintiff because they had been shipped as •such, clearly does not take it out of the provisions of the statute, because the provision is that if any such articles shall be laden either as freight or baggage without giving-the notice, the carrier shall not be liable in any form or manner And although it is argued that the question as to whether these pictures were baggage, should have been left, to the jury under the language used by the court in the case of Curtis v. D. L. & W. R’y Co., above cited, it is clear that no such question could arise. They possessed none of the elements of baggage, and it was not possible that they could have been considered as such. Where there is any dispute in regard to the evidence, and different inferences may be drawn therefrom, undoubtedly the question must be-submitted to the jury, but, where there is no dispute, and but one inference can be drawn as in the case at bar, the.necessity of submitting to a jury does not exist.

The defendants cannot be held as warehousemen, because-the contract with them was as carriers, and it nowhere op~' pears that'that contract had been fulfilled, and their relation to the merchandise in question changed from that of carriers to that of warehousemen. They were liable under their contract of carriage, if at all, and that contract is the one which they have broken, if any. They never assumed to act as warehousemen in respect to this , merchandise, and. nothing was done which imposed upon them that liability. In all the cases cited where the carrier has been held as a. warehouseman, the contract of carriage had been completed.. The goods had been transported, and had arrived at their place of destination, and it was after this that they were-lost, and that liability arose. But in the case at bar there is no evidence that the contract of carriage was ever fulfilled, or that the goods ever arrived, or that the defendants were under any other liability than that of carriers. They have, therefore, a right to avail themselves of the immunity prescribed by the statute in question beause of the manner of the shipment of the merchandise.

Although it is claimed that they may be held liable as. warehousemen for accidents during the time of carriage, it does not seem to us that this can be permitted under the particular language of the statute. They are still carriers, and their liability depends upon the fact of their having entered upon the contract of carriage and taken possession of the goods under that statute. And as the statute has provided that the carrier shall not be liable in any form or manner for a breach of his contract, it is clear that though his. obligation be called by a different name, the statute still applies, as the liability originates, because he has been asked, as carrier, to take possession of the goods in question.

Our attention has been called to the case of Carlson v. The same defendants, not reported, in which the liability of the_ defendant for certain jewelry and silverware which were in the plaintiff’s possession as baggage, the notice required by the statute not having been given, was upheld. This decision, however, does not apply to the case at baiy because it was held in that case that the articles lost were part of the plaintiff’s ordinary baggage; that they were such articles of jewelry and silverware as, under the circumstances, would only be regarded as a proper and legitimate part of her baggage, and that the provisions of the statute did not apply, as it was not intended to apply to-such articles as constituted the necessary baggage of a. traveler.

In the case at bar, as already seen, these pictures could not, under any circumstances, be considered as a part of the-necessary baggage of the plaintiff.

We do not see how, under the statute in question, any 1 lability can be enforced against these defendants for the loss of the merchandise under the circumstances proved by the plaintiff. The judgment should be affirmed, with costs.

Daniels and Brady, JJ., concur.  