rejecting district court’s finding that plaintiff “was, from experience, familiar with [defendant’s] bill of lading” and that its agent “was, or should have been, because it dealt with [defendant], infers too much”
How later courts described this case
- rejecting district court’s finding that plaintiff “was, from experience, familiar with [defendant’s] bill of lading” and that its agent “was, or should have been, because it dealt with [defendant], infers too much”
- holding invalid a clause which gave carrier option to carry goods above deck, thus exempting it from COGSA, but did not disclose how the option would be exercised
- refusing to enforce a clause that shifted the burden of proof from the carrier to the shipper
- unauthorized on deck stowage of goods renders $500 per package limitation inapplicable
Written by the judges who cited it.
The opinion
HAYS, Circuit Judge
(dissenting):
I.
It is unlikely that, except for the district judge, who in the course of his careful opinion never once mentioned COGSA, anyone will be more astonished at the majority opinion in this case than the appellant who in a forty-nine page brief addressed two pages to. an almost 'pro forma argument on COGSA.
I suppose that nobody would deny that a carrier and a shipper can agree that cargo is to be stowed on deck. Not only has some cargo always been carried in this way, see Davidson v. Flood Bros., 30 F.2d 279 (9th Cir.), cert. denied, 279 U.S. 853 , 49 S.Ct. 348 , 73 L.Ed. 996 (1929); The Peter Helms, 24 F.Supp. 461 (W.D.Wash.1938); American Tobacco Co. v. The Katingo Hadjipatera, 81 F.Supp. 438 (S.D.N.Y.1948), modified, 194 F.2d 449 (2d Cir. 1951), cert. denied, 343 U.S. 978 , 72 S.Ct. 1076 , 96 L.Ed. 1370 (1952) ; Givaudan Delawanna v. The Blijdendijk, 91 F.Supp. 663 (S.D.N.Y.1950), but the district judge in the present case said that if a finding were required he would “tend to the view that defendant * * * established that in recent years there has been a growing practice of stowage of containerized cargo on weather decks. * * * »
COGSA itself recognizes that the contract of carriage can properly provide that cargo is to be carried on deck ( 46 U.S.C. § 1301 (c) (1964)).
The only issue in this case is the simple question of whether the shipper agreed that the carrier could, if it so chose, stow the cargo on deck. 1
From the majority opinion one might gather that devilishly clever Chinese carriers were dealing with the unworldly professors who write the articles for the Encyclopaedia. In fact not only does the Encyclopaedia Brittanica, Inc. regularly ship books to all parts of the world, but in the present instance it hired an agent, the sole business of which consists of assembling and shipping cargo and which conducts this business everyday with many different shipping lines. Moreover, whatever the need for protection of small, individual shippers from being forced into “contracts of adhesion” by large carriers, one might well question whether carriers may seek to curry favor with shipping agents such as we have here who conduct a large business in assembling cargo from many shippers for carriage in containers.
The shipper was made aware of the existence of the regular bill of lading by the reference in the short form bill of lading which was delivered to it. It was the duty of the shipper’s agent as an ordinary prudent businessman regularly engaged in the shipping business to examine the conditions under which the carrier accepted the cargo for shipment. If the shipping agent chose to ship the cargo without knowing anything whatever about the terms and conditions of the contract of carriage (as it now declares it did) it cannot now complain that that contract was not to its liking. Nor can the Encyclopaedia Brittanica, Inc. recover on the ground that its agent accepted a contract without knowing its terms.
The shipping agent was, of course, familiar with the almost universal practice of delivering the bill of lading after receipt of the goods.
“It is true that the bill of lading is generally not issued until after the *20 contract has been made; both parties, however, undoubtedly contemplate the issuance of a bill of lading, and the courts have found little difficulty in holding that the terms of the bill of lading constitute a part of. the contract.” Poor, Charter Parties and Ocean Bills of Lading § 59, at 134-135 (5th ed. 1968); see Luckenbach S. S. Co. v. American Mills Co., 24 F.2d 704 (5th Cir. 1928); Dietrich v. United States Shipping Board Emergency Fleet Corp., 9 F.2d 733, 740-741 (2d Cir. 1925), cert. denied, 278 U.S. 647 , 49 S.Ct. 82 , 73 L.Ed. 560 (1928).
If the agent had been interested in the terms of the contract, it could have requested a copy of the form in advance of delivery. If it was not interested the shipper cannot now complain of those terms.
II.
In any event, the shipper’s recovery should be limited to $500 per package pursuant to Section 4(5) of COGSA ( 46 U.S.C. § 1304 (5) (1964)). Atlantic Mutual Insurance Co. v. Poseiden Schiffahrt G.m.b.H., 313 F.2d 872 (7th Cir.), cert. denied, 375 U.S. 819 , 84 S.Ct. 56 , 11 L. Ed.2d 53 (1963). By its express terms, that section applies “in any event.”
Perhaps if the stowage of the cargo on deck had constituted a breach of the contract of carriage, its provisions would be inapplicable. But it seems highly unlikely that without including some more specific statutory direction the draftsman of COGSA intended that a breach of contract should relieve the carrier and the shipper of their rights and duties under the Act. The provisions of COGSA apply independently of any contract. See Benedict, 1 The Law of American Admiralty 291 n. 35 (Knauth ed. 1940). Indeed, it is generally accepted that COGSA modified the doctrine of deviation in maritime law at least to the extent that insurer’s liability attaches only when the damage is causally related to the unreasonable deviation. See Searoad Shipping Co. v. E. I. du Pont de Nemours and Co., Inc., 361 F.2d 833, 835-836 (5th Cir.), cert. denied, 385 U.S. 973 , 87 S.Ct. 511 , 17 L.Ed.2d 436 (1966); Gilmore and Black, The Law of Admiralty §§ 3-40 and 3-41 (1957). It is difficult to understand how the majority opinion can take the position that it is so important to protect an experienced shipper from losing the benefits of COGSA by agreeing to on deck stowage and yet can adopt the view that a breach of the contract of carriage nullifies the carefully balanced provisions of the Act.
Furthermore, it seems to me that each container as a unit is the package to which the $500 limitation should be applied. In Standard Electrica, S. A. v. Hamburg Sudamerikanische, Etc., 375 F.2d 943 (2d Cir.), cert. denied, 389 U.S. 831 , 88 S.Ct. 97 , 19 L.Ed.2d 89 (1967), this court held that the per package limitation applied to each of nine pallets, each containing six cardboard cartons of 40 television tuners and fastened with metal straps. In reaching this decision, the court relied on the characterizations of the parties, including document descriptions, the fact that it was the shipper who made up the cartons into a pallet for convenience and safety in handling, and the fact that the shipper had the option under section 4(5) to obtain full coverage by declaring the value of the goods and paying a higher tariff.
Here the containers were delivered to the carrier by the shipper’s agent already packed with the individual carton of encyclopedias. On the bill of lading delivered to the agent by the carrier upon receipt of the containers, the “No. of Pkgs.” and the “Description of Packages and Goods” were given as, e. g., “(1) One metal container No. UCC-5330 said to contain: 536 ctns. bound books.” The shipper made no objection to this description. I would thus hold that the parties intended each individual container to be considered as the functional packing unit, that considering the containers as the packages promotes uniformity and predictability, and, accordingly, that the $500 per package limitation applies to the containers.
. The majority seeks to make much of a clause in the bill of lading which purports in certain cases to shift the burden of proof, claiming that the clause is ineffective by reason of contrary provision in COGSA. But, even assuming the majority is right as to the clause they question, the whole issue is totally irrelevant, since in the present case there is no issue of burden of proof. Surely the presence of a single clause that may be repugnant to COGSA does not serve to invalidate the entire bill of lading.