Citations
- 274 A.D. 164
Full opinion text
Van Voorhis, J.
This is an appeal by defendants from an affirmance by the Appellate Term of a judgment of the City Court of the City of New York awarding to plaintiff the sum of $500 and costs for the loss in transit within the city of New York of ten packages of ladies’ blouses, which defendants received as common carriers by truck from plaintiff, consigned to Grayson’s, 270 West 35th Street, Borough of Manhattan. There is no dispute concerning the loss of these goods, nor concerning defendants’ liability, nor that the value of the goods exceeded the $500 awarded to plaintiff. The issue is solely in respect to the amount of the recovery in view of an alleged contractual limitation of liability, reading as follows: “ In consideration of the rate charged, the shipper agrees that the company shall not be liable for more than $50.00 on any shipment accepted for delivery to one consignee unless a greater value is declared at time of shipment and charge for such greater value paid, or agreed to be paid. Where a greater value is declared the charge will be based at 10c. for each $50.00 of declared value.”
Respondent declared no value in excess of fifty dollars.
The above-quoted clause appeared upon a bill of lading or waybill issued by defendants to plaintiff. Upon this document were listed numerous other shipments besides the one here involved. It was dated May 10,1944. On it appeared two separate items of ten packages each for delivery to Grayson’s. One of these shipments of ten packages was delivered, so that the controversy concerns only the shipment of the other ten.
Plaintiff has recovered $500 on the theory that the fifty dollar maximum applied to each package rather than to the entire shipment of ten packages. It seems to us that this contention is erroneous. The maximum limit of liability was not meant to depend upon how this shipment of merchandise was packed. It was one shipment to one customer of ten parcels, and the limitation of liability was not affected by whether they were wrapped into one bundle or several bundles. Whether it be one or more shipments depends upon the billing, and in this case these packages were billed as one. Therefore, the fifty dollar maximum applies to the whole ten packages.
The term “ shipment ” is closer akin to the idea of a consignment of goods for which a shipping document has been issued, than it is to the kind of property or the manner in which it has been packaged. Thus in Goldenberg v. Cutler (189 App. Div. 489, 490) considering what was meant by the words “ November shipment ”, the court said: “ Shipment means that the goods have been delivered to the carrier and his bill of lading therefor issued.” Funk & Wagnall’s New Standard Dictionary (1935 ed.) defines “shipment” as: “1. The act of shipping anything; as, to contract for the shipment of wheat. 2. That which is shipped; a consignment; as, a shipment of cattle.” The example given of a shipment of cattle, following mention of consignment as a synonym, indicates that each animal was not considered as a separate shipment, but that a consignment of a number of cattle pursuant to one contract or shipping document is deemed to be a shipment. The definition of 1 ‘ consignment ” is as follows: “ 1. The act of consigning something, or that which i's consigned. 2. A written instrument by which something is consigned.”
The circumstance that a transportation charge was made t