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Statement of the Case.

CALDERON V. ATLAS STEAMSHIP COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT.

No. 83. Argued March 8, 9, 1898.- Decided April 25, 1898.

The appellant shipped, by a vessel belonging to the appellee, goods under a

bill of lading which contained the following stipulation : In accepting this bill of lading, the shipper, owner and consignee of the goods and the holder of the bill of lading agree to be bound by all of its stipulations, exceptions and conditions as printed on the back hereof, whether written or printed, as fully as if they were all signed by such shipper, owner, consignee or holder.” Of these stipulations and conditions, this court regards only the following as material: “1. It is also mutually agreed that the carrier shall not be liable for gold, silver, bullion, specie, documents, jewellery, pictures, embroideries, works of art, silks; furs, china, porcelain, watches, clocks or for goods of any description which are above the value of $100 per package, unless bills of lading are signed therefor, with the value therein expressed, and a special agreement is made.” “9. Also, in case any part of the goods cannot be found for delivery during the steamer's stay at the port of destination, they are to be forwarded by first opportunity, when found, at the company's expense, the steamer not to be held liable for any claim for delay or otherwise." “14. This agreement is made with reference to, and subject to the provisions of the U. S. carriers' act, approved February 13, 1893.” The goods were not delivered at the port to which they were consigned, and were subsequently lost at sea on another vessel belonging to the appellee, on which they had been placed without the appellant's knowledge. In a suit in admiralty to recover their value, Held, (1) That as the negligence of the company was clearly proven, there can

be no doubt of its liability under the act of February 13, 1893,

c. 105, known as the “ Harter Act;”. (2) That the clanse limiting the amount of the carriers' liability is to be

construed as a statement that the carrier shall not be liable to any amount for goods exceeding $100 per package; and being so interpreted, that it is a clear attempt on the part of the carrier to exonerate itself from all responsibility for goods exceeding the value of $100 per package, and as such is not only prohibited hy the Harter Act, but held to be invalid in a series of cases in this court.

This was a suit instituted in the District Court for the Southern District of New York, in admiralty, by the libel

Statement of the Case.

lant, Calderon, who was at that time consul general for the United States of Colombia at New York, to recover from the respondent, the Atlas Steamship Company, the sum of $5413.18, the value of a consignment of goods shipped from New York to Savanilla by the libellant on the steamer Ailsa, which goods the master failed to deliver at the port of destination, and thereafter brought back to New York, where they were reshipped by the respondent on the steamer Alvo. The goods were lost by the sinking of this ship through a peril of

the sea.

It seems the respondent owned both the Ailsa and the Alvo, and ran them between New York, Kingston, Savanilla, Carthagena and Port Limon, from which last-named port they sailed direct to New York, usually carrying a cargo of fruit. Libellant had frequently shipped goods by this line and over the same route, and on July 19, 1893, about two hours before the Ailsa sailed on its regular voyage from New York, delivered to the company on its pier, under authority of a special permit from the company, the consignment of goods in question, which consisted of twenty-six bales and three crates of duck government uniforms, for transportation to the port of Savanilla, and from thence to Baranquilla in the United States of Colombia. The receipt given by the company to the truckman who delivered the goods stated that they had been received "at the shipper's risk from fire, and subject to the conditions expressed in the company's form of bill of lading."

The bill of lading, subsequently obtained in lieu of the receipt, and a copy of which was sent by mail to the consignee by the same steamer, contained on its face the provision : “And finally, in accepting this bill of lading, the shipper, owner and consignee of the goods, and the holder of the bill of lading, agree to be bound by all of its' stipulations, exceptions and conditions, as printed on the back hereof, whether written or printeil, as fully as if they were signed by such shipper, owner, consignee or holder.”

Of the stipulations, exceptions and conditions printed on the back, only the following are material:

“1. It is also mutually agreed that the carrier shall not be

VOL. CLxx--18

Statement of the Case.

liable for gold, silver, bullion, specie, documents, jewellery, pictures, embroideries, works of art, silks, furs, china, porcelain, watches, clocks or for goods of any description which are, above the value of $100 per package, unless bills of lading are signed therefor, with the value therein expressed, and a special agreement is made.”

“9. Also, in case any part of the goods. cannot be found for delivery during the steamer's stay at the port of destination, they are to be forwarded by the first opportunity, when found, at the company's expense, the steamer not to be held liable for any claim for delay or otherwise.”

“14. This agreement is made with reference to, and subject to the provisions of U. S. carriers' act, approved February 13, 1893."

It appeared from the testimony taken that these goods were the last to be loaded, and that instead of being stowed with other freight for Savanilla, the port of destination, they were placed in another hold of the ship and in the "last tier to come out” of the Carthagena freight. It also appeared that the consignment was not discharged at Savanilla, and that it was not discovered to be on board' until the ship was well on its way to Cartbagena. The ship, however, proceeded on its voyage without attempting to make the delivery of the goods, and upon receiving a cargo of fruit at Port Limon sailed for New York, where the consignment was reshipped, August 16, 1893, on the steamer Alvo. No notice was given to libellant of the return of the goods or of their reshipment. The Alvo was caught in a hurricane and lost at sea with her

entire cargo.

The District Court held that there was a “ failure in the proper delivery” of the goods at Savanilla, but that inasmuch as bills of lading were not signed specially designating the value of each of the twenty-nine packages, as provided by clause one on the back of the bill of lading, the liability of the company was limited to $100 for each of the twentynine packages, or $2900 in all. Calderon v. Atlas Steamship Co., 64 Fed. Rep. 874.

From this decree the libellant alone appealed, and upon the

Opinion of the Court.

hearing the Circuit Court of Appeals for the Second Circuit, by a majority opinion, sustained the decree of the court below. 35 U. S. App. 587.

Mr. J. Langdon Ward for appellant.

Mr. Everett P. Wheeler for appellee.

MR. JUSTICE Brown, after stating the case, delivered the opinion of the court.

Two questions are presented by the record in this case : First, whether the steamsbip company was liable at all under its bill of lading for the non-delivery of the goods at Savanilla; second, whether such liability was limited to the sum of $100 for each package.

1. Both the District Court and the Court of Appeals held the company to be liable under section 1 of the Harter Act, of February 13, 1893, c. 105, 27 Stat. 445, which provides “that it shall not be lawful for the manager, agent, master or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document any clause, covenant or agreement whereby it, he or they shall be relieved from liability for loss or damage arising from negligence, fault or failure in proper loading, stowage, custody, care or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect," and this, notwithstanding the provision in the bill of lading that “in case any part of the goods cannot be found for delivery during the steainer's stay at the port of destination, they are to be forwarded by first opportunity, when found, at the company's expense, the steamer not to be held liable for any claim for delay or otherwise.”

As the company did not appeal from this decree it must be regarded as acquieścing in the justice of such decree to the

Opinion of the Court.

amount therein awarded to the libellant; but as we should not make a further decree against the company for the amount now claimed by the libellant in excess of $100 per package, if we were satisfied that the company was not liable at all, we have thought it best to consider whether the courts below were correct in their construction of the Harter Act.

It may well be questioned whether the provision “that in case any part of the goods cannot be found for delivery during the steamer's stay at the port of destination ” has any application to a case where the goods were not placed in the proper compartment when stowed on board the vessel, and for which it appears no search was made upon the arrival at Savanilla, notwithstanding the fact that a bill of lading had been given for them and their shipment had been entered upon the manifest or other “cargo books” of the steamer. . It appears that after leaving Savanilla the purser discovered that these goods had not been “tallied out” on the cargo books for that port, and he at once made search for them, and found them stowed with the Carthagena cargo.

It was clearly the duty of the master of the vessel before leaving Savanilla to examine the manifests or other memoranda of the vessel to ascertain whether the portion of the cargo consigned to that place had been delivered, and if not, to search for the missing consignment before leaving the port. His failure to do this was obviously a breach of his general obligation to deliver his cargo to its consignee, and it is exceedingly doubtful whether, even in the absence of the Harter Act, the provision in: the bill of lading would have excused him. But as the stipulation in the bill of lading was one which the Harter Act prohibited, it is only necessary to refer to this act to hold the company chargeable with negligence. Regard may doubtless be had to the custom of the port as to what shall be termed a proper delivery with respect to the time and manner of such delivery, but a failure to deliver at all was negligence. No such want of delivery can be excused under the terms either of the first or second section of the Harter Act. Not only was there negligence in failing to examine the ship's papers to ascertain what goods were consigned to Sava

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