Opinion
June, 1915.
Isidore Finkler, for appellant.
Convers Kirlin (Charles T. Cowenhoven, Jr., and Robert S. Erskine, of counsel), for respondent.
In this action upon a bill of lading dated June 2, 1914, to recover damages for failure to deliver 100 boxes of lemons shipped at Palermo, Sicily, to the plaintiff at New York, the court dismissed the complaint on the ground that the plaintiff had failed to prove compliance with the contract of carriage.
Clause 24 of the bill of lading in so far as material is as follows: "Notice of any claim arising under this bill of lading must be given by the consignee to the steamer's agent at the port of destination within 48 hours after the landing of, or failure to deliver, goods, and the claim to be preferred within 90 days from the date hereof at the offices of the owner of the steamer."
The vessel was discharged of her cargo July 4, 1914, and the plaintiff testified that on or about June 27, 1914, he notified the "foreman at the dock" of the loss of the property. This testimony, however, is vague and indefinite and entitled to little if any weight. On or about July twenty-second, within the ninety-day period prescribed by the bill of lading, the plaintiff preferred a claim for the loss of the lemons in accordance with the bill of lading.
Most if not all of the cases cited by the respondent in support of the judgment are cases of damage or of loss and damage to goods. The importance and reasonableness of timely notice of damage to goods is at once apparent, for it gives the carrier an opportunity to examine them so as to explain or meet any charge of neglect or breach of contract which may be made by the consignee. Where there is a total failure to deliver, however, as in this case, although it is desirable that early notice be given the carrier, there is no such necessity for prompt notice as in cases of damage. Here, as before stated, the plaintiff complied with the terms of the contract requiring a claim to be preferred within ninety days of the date of the bill of lading. Did he fail to observe the requirement that notice of any claim must be given "within 48 hours after the landing of, or failure to deliver, goods?"
As the defendant does not claim that the goods were landed, the plaintiff, assuming the stipulation to be reasonable, was only bound to give the notice within forty-eight hours after the failure to deliver. The ship was discharged of her cargo July fourth; but as the carrier had a reasonable time within which to make delivery the failure to deliver down to July fourth was not necessarily a breach of the contract in that respect. Further, under the contract the defendant had the right to carry the lemons in the Manchester Merchant, the vessel named therein, or in the "following steamship or any other of the same line;" so that in the event of shipment and delivery by the following steamship that fact would seem to be a defense to a claim for failure to deliver.
Under the circumstances of this case we are of opinion that the claim given July twenty-second, within ninety days of the date of the bill of lading, not only answered the requirements of the contract as a claim preferred against the defendant, but that it was also sufficient notice of the loss of the property; that the plaintiff established a prima facie case, and that it was error to dismiss the complaint.
BIJUR and PAGE, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.