#### Pardee *vs.*Drew.

The owners of steam boats are liable, as *common*carriers, for the *baggage*of passengers: but to subject them to damages for the loss thereof, it must strictly be baggage, i. e. such articles of necessity and personal convenience as are usually carried by travelers. *It*was *accordingly held*in this case, in which a trunk containing valuable merchandise and nothing else, was taken on board a steamboat and deposited with the ordinary baggage and lost, that the carrier was not liable.

This was an *action on the case,*tried at the Delaware circuit in June, 1840, before the Hon John P. Cushman, one of the circuit judges.

*351The suit was brought against the defendant as a *common carrier*for the less of a trunk and its contents. The defendant was the managing owner of the steamboat *títica,*used in the transportation of passengers and their baggage between the cities of *New-York*and *Albany,*and the intermediate landing places on the Hudson river. The plaintiff took his passage at New-York for *Oatskill,*and brought on board with him a trunk which was deposited among the baggage of the passengers, and *lost*before the arrival of the boat at Catskill. The plaintiff was a merchant, residing at *Delhi,*in the county of Delaware, and had been in New-York purchasing goods; and on the day he took his passage on board the *Utica,*he had sent off to the *freight steam boats*two boxes of goods to be transported to Catskill. He *had made purchases of silks and [ *460 ] other fine goods, of the value of about $300, which he packed in the trunk which was lost, and which contained nothing else. On this evdence the counsel for the defendant moved for a *nonsuit,*on the grounds : 1st. That the defendant was not liable for the trunk and its contents, as the baggage of a passenger, the same not, in fact, being baggage ; and 2d. That he was not liable for the same as *freight,*the trunk with its contents not being shipped as freight. The judge refused to *nonsuit*the plaintiff, and charged the jury that the trunk with its contents might be deemed the baggage of the plaintiff, if there was no fraud or concealment of its contents: and if they should find that the plaintiff was a passenger on board the boat at the time of the loss, and that the trunk was put on board and received by the agents of the defendant, without any inquiry as to its contents, or representation by the plaintiff, the defendant would be liable for the same as the baggage of the plaintiff, though no notice was given of the contents of the trunk : to which charge the counsel for the defendant excepted. The jury found a verdict for the plaintiff, with $318.11 damages. The defendant moved for a new trial.

*P. A.*Cowdrey, for the defendant.

*A. J. Parker,*for the plaintiff.

*By the Qourt,*

Nelson, C. J.

The principle of the case of *The Orange County Bank,*v. Brown, 9 *Wendell,*85,1 think decisive against the plaintiff here. That case was very fully argued before us, and the law of it deliberately settled. There the traveller’s trunk contained $11,250 in money, and the plaintiff sought to recover it as part of the baggage lost. We held it did not fall within the commonly received import of that term, and that the attempt to carry it free of reward, under the cover of baggage, was an imposition upon the carriers.

In delivering the opinion of the court, I there adverted to the doc*352trine first held by the courts, that the proprietors-of stage coach- [ *461 ] es were not liable for the traveller’s baggage, unless a *distinct price had been paid, on the ground that the carrier is liable only in respect to his reward, and that the compensation should be in proportion to the risk; that latterly a reasonable amount of baggage, by common usage, was deemed to be included in the fare of the passenger : but that the courts should not allow this custom to be abused, and, under pretence of baggage, include articles not within the scope of the term or intent of the parties ; thereby defrauding the carrier of his just- compensation, besides subjecting him to unknown hazards.

How the contents of the trunk in question has no more necessary connection with the baggage or luggage which it is customary to allow passengers to carry for the journey, than the money in the case of the Orange County Bank. They consist wholly of merchandise not distinguishable from the two boxes of goods sent at the same time to the freight boat, to be transported in the ordinary way. The trunk did not contain an article for the personal convenience of the traveller; and was packed and put on board the defendant’s boat, confessedly for a totally different purpose, namely, to get a speedy conveyance of the goods to his store in Delhi.

It was also observed, in the case above referred to, that if the amount of money in the trunk was not fairly included in the term *baggage,*as used in the connection there found, the conduct of the traveller was a virtual concealment of the sum: his representation of the trunk and the contents as baggage, jn the customary sense, was unfair and calculated to impose on the captain; which of itself would exonerate the defendants. The cases illustrating this principle where there referred to, pp. 116,118. In *Gibbon*v. *Paynter,*4 *Burr.*2298, an hundred pounds in gold was packed in an old nail bag, which was stuffed with straw to give it a mean appearance. The court held the plaintiff guilty of imposition upon the carrier ; that he meant to cheat him of his hire. Aston, J. said it was money sent under concealment of its being money ; that the true principle of a carrier being answerable is his reward, &c. See also *Batson v. Donavan,*4 *Barn. & Ald.*340.

[ *462 ] *The principle applies fully to the case before us. I would not say the plaintiff intended to impose upon the defendant, and under the cover of baggage obtain the transportation of merchandise free of expense: this is not material. It is sufficient that such is the practical effect of his conduct. Heither the captain or any of the hands on board the boat, could have suspected that it was a box of costly merchandise, requiring extraordinary attention and care. They could regard it only as the ordinary baggage trunk of the traveller, containing the usual personal conveniences belonging to him in that character, falling within the customary *353fare, and to be stowed away in the place where such articles are usually de posited. The defendant is thus doubly wronged : 1st, deprived of his just reward for carrying the goods; ánd, 2d, prevented from exercising proper precaution against the dangers to which the property may be exposed. Cowen, J. dissented.

New trial granted.