Opinion
Argued May 7, 1930
Decided June 3, 1930
Appeal from the Supreme Court, Appellate Division, First Department.
George de Forest Lord and James S. Hemingway for appellant.
George C. Sprague for Hunt, Hill and Betts, amici curiae. Wilson E. Tipple, Harry D. Thirkield and Adolph Hansen for respondent.
Arthur W. Clement for Bigham, Englar, Jones and Houston, amici curiae.
The bill of lading of a common carrier by water, considered in South Central American Commercial Co. v. Panama R.R. Co. ( 237 N.Y. 287), provided that, in case of a loss occurring through shipment, a notice of claim must be given within sixty days after knowledge of the loss was acquired, and that action must be brought within sixty days thereafter. This court held that bills of lading, whether those of carriers by land or of carriers by water, must be just and reasonable; that, in determining the question of the reasonability of a provision limiting liability in the case of all water shipments, a Federal statute condemning the insertion in bills of lading for all rail, or part rail and part water shipments, of certain limitations upon the right to institute suit, though not strictly applicable, might be considered as furnishing a standard, to which there should be "approximate or reasonable conformity." The statute referred to banned all provisions limiting the institution of actions against the carriers to a shorter period than two years after a loss. By comparison, the sixty and one hundred twenty day provisions then under consideration showed a "flagrant" departure from the statutory standard of reasonability. In this instance, the bill of lading fixes the period of one year as the time within which actions must be brought. The provision does not of itself strike the mind as an unreasonable limitation, nor does it mark so wide a departure from statutory standards for analogous cases, as to seem "flagrant" or shocking. We think the provision has vigor and should be applied.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, and the questions certified answered in the affirmative.
CARDOZO, Ch. J., POUND, CRANE, KELLOGG, O'BRIEN and HUBBS, JJ., concur; LEHMAN, J., not sitting.
Ordered accordingly.