where one bill of lading incorporated a second bill of lading by reference, and only second bill of lading contained COGSA-style limitation provision, held that first bill of lading gave required notice of “fair opportunity” to declare higher value
How later courts described this case
- where one bill of lading incorporated a second bill of lading by reference, and only second bill of lading contained COGSA-style limitation provision, held that first bill of lading gave required notice of “fair opportunity” to declare higher value
- applying the fair opportunity doctrine even though the freight contract had been "separately negotiated”
- fact that the value agreed upon was only a fraction of the actual value of the commodity does not by itself invalidate limitation clause
- uncrated locomotive not COGSA "package"
Written by the judges who cited it.
The opinion
*287 CLARK, Circuit Judge
(concurring in the result).
I agree fully in the decision that the carrier is not exonerated from liability under the Fire Statute, but have much more doubt as to the limitation of its loss to' $500 per locomotive. The opinion suggests, but does not fully develop, the gerry-built structure of reasoning necessary to find this limitation in a shipment initiated over the telephone and confirmed by brief letters, finally arrived at by a process of double incorporation by reference to the government bill of lading and thence — rejecting an unauthorized bill issued by the carrier’s Bremen agent — to the Isbrandtsen bill itself. Various defenses to this limitation are suggested or raised; some of them, such as the unusual (to say the least) form of customary freight unit, cf. our discussion in Stirnimann v. The San Diego, 2 Cir., 148 F.2d 141 , may well give pause. But I have decided to pass these to get to the point I regard as most crucial, namely, whether there was properly available a tariff at higher rate so that the shipper could secure a higher valuation to provide a legal basis for the limitation.
That there was no existing tariff of this nature on locomotives from Bremen to Korea is conceded by all; and Isbrandtscn’s vice-president so testified. This telephonic agreement was an ad hoc bargain, made for a particular unusual shipment for which there was no regular tariff. The real question is whether the various clauses quoted in the text of the opinion placed on the shipper the burden of asking and securing an ad hoc quotation of a higher rate had it been interested. Does the limitation apply until the shipper shows that the carrier refused to bargain at all on any other basis? Or is it invalid unless the carrier shows that it had offered the shipper some definite alternative? When the original judicial restrictions on attempts at limitation of liability were developed, I do not believe there is much doubt but that the carrier would have had the laboring oar in a case like this. Union Pac. R. Co. v. Burke, 255 U.S. 317, 323 , 41 S.Ct. 283 , 65 L.Ed. 656 ; Transmarine Corp. v. Charles H. Levitt & Co., 2 Cir., 25 F.2d 275, 279 . And the recent case of United States v. Atlantic Mut. Ins. Co., 343 U.S. 236 , 72 S.Ct. 666 , affirming United States v. Farr Sugar Corp., 2 Cir., 191 F.2d 370 , while not on all fours, shows that some vestiges of the older concepts still remain. But there is no doubt of the trend of legislation and of precedent to foster and support our merchant marine. Even though at times this has gone to unusual lengths, who, remembering our dependence on shipping in the World Wars, can dare question its wisdom? And so I have decided to yield to the judgment of my brothers and go along, albeit with some lingering doubts, in the view that this $100,000 in freight charges was collectible at a total risk of only $5,000.