Hersfield v. Adams , 19 Barb. 577 ( 1855 )

Morris, J.

The defendants in this case, not being owners of, or interested in, the vessels and boats in which these trunks were to be conveyed between New York and San Francisco, were not common carriers, and are not liable as such. The defendants are bailees jar hire to receive these trunks at, and to forward them from and to, place to place, to destination, by the ordinary and approved means of conveyance, and had a legal right to define the extent of their liability. By the contract in this case, the defendants obligated themselves to deliver the trunks and contents specified to Mr. Burnett at San Francisco. They were not to be liable “ for any loss or damage arising from dangers of the ocean or river navigation, leakage, fire, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of the defendants, their agents or servants.” In this case it is established that up to the time when Captain Angels and his crew recovered the trunks from the sunken flat-boat and placed them upon the bank of the river Chagres, there had been no fraud or gross negligence by the defendants or their agents; consequently the defendants are not liable for any damage that had occurred up to that period. The only remaining question is whether, according to the spirit and letter of the defendants’ agreement with the plaintiffs under the facts proved, they or their agents were guilty of gross negligence in not delivering the trunks and contents in their damaged condition to Mr. Burnett, at San Francisco.

The defendants’ contract must be construed with reference to the rights and obligations of other persons engaged in the transportation of these trunks to and with the plaintiffs. Capt. Angels of the flat-boat on the river Chagres, was a common carrier, and during the time he was in possession of the goods was responsible to the plaintiffs to the full value of the trunks and contents, $2025.09, for the faithful performance of his duty, and as an insurer, and for all his legal liability as common carrier; and he had a right, for the purpose of saving himself harmless of legal responsibility, to do with these trunks and contents whatever the law under similar circumstances authorized common carriers to do; and the defendants under the authority con-, tained in their agreement had no power to prevent him. In addition to this, the defendants and their agents had no knowledge of what Capt. Angels was doing. The first information they received upon that subject was after he had sold the trunks and goods. The defendants, therefore, have not been guilty of negligence.

[New York Special Term, February 12, 1855.

Morris, Justice.]

There must.be judgment for the plaintiffs for $507.75, being the amount for which the defendants offered that the plaintiffs might take judgment, (and which offer must control,) with costs to the defendants, since the offer of judgment.

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