Calderon v. Atlas Steamship Company

This was a suit instituted in the district court for the Southern district of New York, in admiralty, by the libelant, Calderon, who was at that time consul general for the United States of Columbia at New York, to recover from the respondent, the Atlas Steamship Company, the sum of $5,413.18, the value of a consignment of goods shipped from New York to Savanilla by the libelant 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, Carthegena, and Port Limon, from which last-named port they sailed direct to New York, usually carrying a cargo of fruit. Libelant 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 26 bales and 3 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 o 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 printed, 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 liable for gold, silver, bullion, specie, documents, jewelry, 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 provision of United States 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 Carthegena 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 Carthegena. 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 libelant 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 1 on the back of the bill of lading, the liability of the company was limited to $100 for each of the twenty-nine packages, or $2,900 in all. 64 Fed. 874.

From this decree the libelant alone appealed, and upon the 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, 16 C. C. A. 332, and 69 Fed. 574.

J. Langdon Ward, for appellant.

Everett P. Wheeler, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.