# Petition for Writ of Certiorari — Sklut Hide & Furs v. Prudential Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0324%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 824 ## Text i985 In The MAY 28 Supreme Court of the Un ALEXANDER LL. STev ay October Term, 1984 SKLUT HIDE & FUR A DELAWARE CORPORATION, Petitioner, vs. PRUDENTIAL LINES, INC., Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT THOMAS P. HARTNETT Counsel of Record HALLEY & CHALOS Attorneys for Petitioner 300 East 42nd Street New York, New York 10017 (212) 697-8118 2227 tz *NJ (201) 257-6850eNY (212) 840-9494°PA (215) 563-5587 ters.ime. MA (617) 542-1114*DC (202) 783-7288°USA (800) 5 APPEAL US. AS | QUESTIONS PRESENTED 1. Whether this Court should now answer the frequently litigated conundrum as to the definition of a maritime package, in order to promote uniformity and predictability for the maritime industry and the various courts regularly confronting this issue? 2. Whether a Bill of Lading is a contract of adhesion? il THE PARTIES The parties before this Court are those set forth in the caption.’ 1. Pursuant to Rule 28.1 there are no other first generation subsidiaries or affiliates. Accordingly, Petitioner is not a corporate parent. iit TABLE OF CONTENTS Page ee cece ee ended do ssdcbvinsycsens i EE ee i} ee ieee 65a ah ba KSA eA SOA ede ili EE ee ee ee ill ee as has ska kek A REN EO ees | ee aes % ¥ 505-46 se ORR SR ROR SON WRE OO 2 Constitutional and Statutory Provisions Involved ........ 2 ea vk we cde ce sa tee ecine evens ts 3 Argument: A uniform definition of what is a maritime package must Oe Poememmeee OP ths COUrt. .. ww. ccc cece ees 6 a ibaa bee ee wean cvusess 10 TABLE OF CITATIONS Cases Cited: Allied International American Eyle Trucking Corp. v. S.S. Yang Ming, 672 F. 2d 1055 (2d Cir. 1982) ......... 7 iv Contents Page Binladen BSB Landscaping v. M/V Nedlloyd Rotterdam, No. 84-77110, slip opinion (2d Cir. April 3, 1985) Re SE a a ee per SP une ee enter Ea 7 Croft and Scully Inc. v. M/V SKULPTOR VUCHETICH, See Bu ee, Gre Ges Bs TED. Wie ok ae oa eens cc 8 Commonwealth Petrochemical Inc. v. S.S. Puerto Rico, 455 F. Supp. 310 (D. Md. 1978), rev’d on other grounds, 607 F. 2d 322 (4th Cir. 1979)............. 7 Denial of Petition of Dow Chemical for Definition of Maritime Package, Federal Maritime Commission (April Fi NG Ris oA cKa wc escek bes eee bee e eek aeweans « 7 Koppers Co. Inc. v. S.S. DEFIANCE et al, 542 F. Supp. 1356 (D.M.D. 1982), aff’d 704 F. 2d 1309 (4th Cir. DRG GLib hace eene de Guhekerb ed Rika eka OREN 4 Leather’s Best v. S/S Mormaclynx, 451 F. 2d 800 (2d Cir. 4) ee b RNR a's toa tatiiels cela eats eer ok J 7 Mitsubishi International Corp. v. S.S. Palmetto State, 311 F. 2d 382 (2d Cir. 1962), cert denied 373 U.S. 922 Suk G ews ecue cub ia vet eer caw h eens ck ewnddaewes 6, 7 Matter of Norfolk, Baltimore and Carolina Line, 4 2d F. ee, Dae es Ws, Sl eb dnenen bok vasa cues 8, 9 Parnell v. United States Lines, Inc., 263 F. 2d 497 (2d Cir. (1959) cert denied, 359 U.S. 1013 (1959)............ 7 Smithgreyhound v. M/V EURYGENES, 1980 A.M.C. 2270 (SDNY 1980), 666 F. 2d 746 (2d Cir. 1981) ......... 5, 8 Contents Page United States v. Schooner Betsy & Charlotte, 8 US (4 Se Me EE ca yk o bis 6 oe kes ak Views ae ee 6 Statutes Cited: pS a) | er rere rer ere meat Ste ee re re 2 Be Meee OOO 8s kin oe Sa 00 S44 065 5 Os Cee tees caeeene 3, 4 Se es Ie a a a hs eee eee re ewes 6 a ee eres te rerrey yee as ere 6 Rule Cited: eM oo a aa ei o-w le aha e ee eet ask ae ii United States Constitution Cited: United States Constitution, Article III, Section 2........ 2 Other Authority Cited: Gilmore & Black, The Law of Admiralty, (2 ED 1975) APPENDIX - Appendix A—Decision Denying Summary Judgment vi _ Contents Appendix C—Order of Third Circuit ............... Appendix D—Order of Third Circuit ............... Appendix E—Front and Back of Bill of Lading...... No. In The Supreme Court of the United States oo October Term, 1984 SKLUi HIDE & FUR A DELAWARE CORPORATION, Petitioner, VS. PRUDENTIAL LINES, INC. Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Petitioner, Sklut Hide & Fur, respectfully prays that a writ of certiorari issue to review the order of the United States Court of Appeals for the Third Circuit entered in these proceedings. OPINIONS BELOW The District Court’s opinion denying summary judgment was officially reported at 537 F. Supp. 266 (D. Del. 1982) and is annexed hereto as Appendix A. The District Court’s trial opinion was not officially reported and is annexed hereto as Appendix B. The order of the Circuit Court of Appeals was reported at 755 F. 2d 923 (3rd Cir. 1985) and is annexed hereto as Appendix C. The Court of Appeals’ denial of reargument or rehearing en banc is unreported and is annexed hereto as Appendix D. JURISDICTION The order of the Court of Appeals was entered on January 29, 1985. Denial of reargument and rehearing e.. anc was entered on February 26, 1985. A certified copy of the original order of the Court of Appeals was issued in lieu of a formal mandate on March 6, 1985. This petition for certiorari was filed within 90 days from that date. The Court’s jurisdiction is predicated upon 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article III, Section 2, Clause 1 of the United States Constitution provides that: The judicial power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizers of different States, — between citizens of the same State claiming Lands under 3 Grants of different States, and between a State or the Citizens thereof, and foreign States, Citizens or Subjects. Section 1333 of the Judicial Code, 28 U.S.C. §1333, provides that: ‘he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize. STATEMENT OF THE CASE Petitioner Sklut Hide & Fur Company (hereinafter ‘‘Sklut’’) is a Delaware dealer and exporter of cattle hides to Europe and the Far East. On or about March 27, 1980 Sklut entered into a contract of carriage with Prudential Lines, Inc. (hereinafter ‘**PLI’’), an American flag operator of ocean going vessels. PLI contracted to transport 400 bundles of wet, salted cattle hides? on its vessel SS LASH ATLANTICO. Carriage was to be a ‘‘house to house’’ move’ from the Port of New York to the consignee 2. A bundle of hides is traditionally measured as approximately eighteen inches by eight inches bound with thistle. 3. A ‘‘house to house’’ move requires a shipper to pack the container and deliver it to the ocean going carrier at the port of loading for further loading aboard a vessel and shipment to the port of destination. At such a port the (Cont'd) at San Croce Sull Arno, Italy via the Port of Leghorn, Italy. As evidence of the contract of carriage, PLI issued its standard form ocean Bill of Lading. A copy of the front and back of the Bill of Lading is set forth as Appendix ‘‘E’’, which is annexed hereto. In the ‘‘No of PKGS’’ column there was listed the Number **1”’ and partially ‘‘400’’. In the next column ‘‘Description of Packages and Goods’’ on corresponding lines read: ““CONTAINER STC’”’ AND ‘“‘BUNDLE: WET SALTED CATTLE HIDES’’. Sklut paid ocean freight to PLI in the amount of $1,538.57 for transportation from the Port of New York to San Croce Sull Arno. At PLI’s insistence the goods were stuffed into one container and loaded on board the vessel. On or about April 20, 1984 the vessel arrived not at Leghorn but rather at Genoa, Italy. PLI discharged the cargo there and turned it over to its local trucker, Aido Spinelli, S.A. for transportation to San Croce Sull Arno. On June 1, 1980 the goods were stolen, while in Spinelli’s possession. Several days later, the container was found empty. On November 20, 1980 Sklut instituted a civil action in the United States District Court for the District of Delaware. Jurisdiction was predicated in admiralty pursuant to 28 U.S.C. §1333. In its complaint Sklut alleged that PLI breached its contract of carriage because of the nondelivery of the goods. (Cont’d) container is unloaded from the vessel and taken to a container yard where it is picked up by a trucking company for delivery to the ultimate consignee. See Koppers Co. Inc. v. S. S. DEFIANCE, et al, 542 F. Supp. 1356 (D.Md.) , aff'd, 704 F. 2d 1309 (4th Cir. 1983). On November 23, 1981 PLI moved for summary judgment dismissing the complaint pursuant to Clause 2 of its Bill of Lading. The District Court Judge denied PLI’s motion. This decision denying summary judgment is annexed hereto as Appendix ‘‘A’’ On September 20, 1983 a trial was held. On December 23, 1983 the District Court issued a memorandum opinion, which is annexed hereto as Appendix ‘‘B’’. The District Court held PLI liable to Sklut for the nondelivery of the cargo. However it found that, as the loss had occurred subsequent to discharge from the vessel, any type of package analysis would not apply. Instead, the District Court claimed that the loss would be limited to $500, since the parties had apparently contracted to this in Paragraph 17 of PLI’s preprinted form. The Court did concede that, had the loss occurred prior to discharge, a package analysis, as set forth in Smithgrevyhound v. M/V EUR YGENES, 666 F . 2d 746 (2d Cir. 1981), would have applied and would have given Sklut its requested ad damnum. Notwithstanding this fact, the Court refused to use any type of package analysis and awarded Sklut only $500 plus interest from the date of loss. Sklut then appealed to the United States Court of Appeals for the Third Circuit. PLI also crossappealed. On January 29, 1985 the Third Circuit issued a memorandum order, affirming the various decisions and final judgment of the Disirict Court. Sklut then moved for rehearing or reargument en banc. On February 26, 1985 the Third Circuit denied both requests. Sklut now petitions this Court for a writ of certiorari. ARGUMENT A UNIFORM DEFINITION OF WHAT IS A MARITIME PACKAGE MUST BE FORMULATED BY THIS COURT. Since the earliest days of this Republic and because of the constitutional grant of maritime jurisdiction to the federal judiciary, Article If] courts have been given broad powers to determine maritime issues. United States v. Schooner Betsy & Charlotte, 8 U.S. (4 Cranch) 443 (1808). Furthermore, the international scope of maritime transactions has necessitated concerted judicial attempts for uniformity and predictability in maritime affairs. Perhaps no other issue in contemporary maritime law has generated so much writing, be it adversarial, judicial or scholarly, than that ‘‘troublesome conundrum ‘when is a package not a package?’ ’’ Mitsubshi International Corp. v. S.S. PALMETTO STATE, 311 F. 2d 382, 383 (2d Cir. 1962), cert. denied, 373 U.S. 922 (1963). At the core of the problem lies 46 U.S.C. §1300, ef seq., Carriage of Goods by Sea Act (hereinafter ‘“COGSA’’), and most especially §1304 (5), the so called ‘“‘package limitation’’.* Judicial decisions, both on the trial and appellate level, have frequently heen gnostic in their quest to answer this maritime variation of the Sphinx’ legendary riddle. They have furthermore become almost hermeneutical in their analysis of the statutory basis of the ‘‘package limitation’”’ in the hope of gleaning ‘‘what 4. When COGSA was enacted in 1936, it reflected the conventional value of a package shipped at that time. Consequently, even for moves not totally covered by COGSA, carriers generally inserted the $500 package limitation into their Bills of Lading. However, with the advent of containerization and the internationalization of commerce, this figure has become hopelessly unrealistic and nugatory in value. See Gilmore & Black, The Law of Admiralty (2d Ed. 1975). a a Congress would have thought about a subject about which it never thought or could have thought’’. Commonwealth Petrochemicals Inc. v. SS Puerto Rico, 455 F. Supp. 310, 313 (D. Md. 1978), rev’d on other grounds, 607 F. 2d 322 (4th Cir. 1979). Even requests to the Executive Branch to fashion a proper formulary have also come to nought. See Denial of Petition of Dow Chemical for definition of package, Federal Maritime Commission, (April 5, 1985). To complicate this quagmire, courts like the District Court in the instant action have also had to deal with permutations where COGSA does not apply ex propio vigore and where two different and contradictory results may arise, depending on the situs of the loss and its relative proximity to the vessel. Pannell v. United States Lines, Inc., 263 F. 2d 497 (2d Cir. 1959), cert. denied, 359 U.S. 1013 (1959). Thus, due to lack of ultimate judicial guidance from this Court, courts nationwide have literally struggled to formulate a hard and fast test in order to ascertain what is a maritime package. Is it solely the container as defined, for example, in PLI’s Clause 17, or is it, as was asserted by Sklut at the trial and appellate levels, the contents of the container? The most common and widely recognized standard has been set forth by the Second Circuit. Starting with Leather’s Best v. S/S Mormaclynx, 451 F. 2d 800, 815 (2d Cir. 1971) through Mitsui, supra, and Allied International American Eagle Trucking Corp. v. SS Yang Ming, 672 F. 2d 1055 (2d Cir 1982) to the recently decided Binladen BSB Landscaping v. M/V Nedlloyd Rotterdam, No. 84-7710 (2d Cir. April 3, 1985), the Second Circuit has attempted to offer practical guidelines to deal with the package quandry. As noted in Bin/aden, supra, slip opinion at 2993-2996, four criteria have been and should be used by the judicial forum in determining what is a package. The touchstone should be a review of the contractural agreement between the parties, as set forth in the Bill of Lading. Jd. at 2994. The second element should be an analysis of the preparation of the cargo for transportation. Id. at 2995. The third should be a judicial refusal to accept the container as the sole package if the contents and the number of packages or units are disclosed on the face of the Bill of Lading. Id. Finally, there should be a tacit judicial classification that goods, not separatelv packaged, should be classified as goods not shipped in packages, for which the $500 limit would be per ‘‘customary freight unit’’. Jd. at 2996. Outside the Second Circuit other courts, usually on the trial level, have used other tests for package determination. The most notable was set forth in Matter of Norfolk, Baltimore & Carolina Line, 478 F. Supp. 383 (E.D. Va. 1979). See also, Croft & Scully Co. v. M/V SKULPTOR VUCHETICH, 508 F. Supp. 670 (S.D. Tx. 1981). But see, Smithgreyhound v. M/V EURYGENES, 1980 A.M.C. 2270 (SDNY 1980). In NBC, supra at 392, the trial judge set forth the following twelve criteria that should assist the trier of fact in any package analysis. (1) Whether the carrier actually possesses superior bargaining strength sufficient to coerce the shipper’s agreement to an adhesion contract; 2) Whether the parties treated the container as a single unit in their negotiations, on the document of contract, and in determining the shipping rate; (3) Whether the shipper, or at least one other than the carrier, chose to ship the goods in container; (4) Whether the shipper or carrier procured the container; ee (5) Whether the goods were delivered to the carrier previously loaded into the container; (6) Whether the goods were loaded by the shipper or by the carrier; (7) Whether the carrier actually observed the contents of the container before it was sealed for shipment; (8) Whether the container was loaded with the shipper’s goods only, and not those of any other shipper; (9) Whether the markings on the container provided a complete and accurate indication of the contents and their value; (10) Whether the bill of lading contained any declaration of the nature of the container’s contents and their value; (1!) Whether the bill of lading provided the shipper with an adequate opportunity to declare the value of the container and its contents, and to obtain financial protection for any excess value; (12) Whether the shipper took advantage of this opportunity. NBC, supra at 392. A comparison of the holdings in this litigation, when scrutinized under the various tests discussed supra, evidences that both the Trial Court and the Third Circuit opted for a simplistic answer to the question as to what was the maritime package here. Furthermore, the Third Circuit, unlike other Circuit Courts of 10 Apneal, has never directly confronted the issue of package definition. This is true, even though the Third Circuit includes the major Ports of New Jersey, Philadelphia, Wilmington and others of lesser size. Sklut contends that the Third Circuit deliberately refrained from answering the package question and, by so doing, tacitly accepted the clearly erroneous holding of the Trial Court. Judgment of only $500 was erroneously awarded by reliance upon invocation of the microscopic, preprinted, and adhesive language of PLI’s Clause 17. Sklut believes that this false conclusion was primarily based upon the uncertain state of, and confusion over, package analysis. Accordingly, petitioner respectfully requests that this Court finally intervene, put to rest this long standing dispute and give authoritative guidance to the maritime industry and to the federal judiciary who have both struggled over this matter. CONCLUSION For the foregoing reasons, a writ of certiorari should be issued to review the judgment of the United States Court of Appeals for the Third Circuit. Respectfully submitted, THOMAS P. HARTNETT Counsel of Record HALLEY & CHALOS Attorneys for Petitioner la APPENDIX A — DECISION DENYING SUMMARY JUDGMENT SKLUT HIDE AND FURS, a Delaware corporation, Plaintiff, PRUDENTIAL LINES, INC., a Delaware corporation, Defendant Civ. A. No. 80-552 United States District Court, D. Delaware. April 2, 1982 Shipper brought action in admiralty for loss of cargo carried in Ocean transportation from United States to Italy by carrier. On carrier’s motion for summary judgment, the District Court, Steel, Senior District Judge, held that: (1) bill of lading exculpatory clause was null and void under Harter Act, and (2) shipper’s written notice of loss or damage was timely. Motion denied. 1. Shipping key 140(1) Although Carriage of Goods by Sea Act provided that its terms would not prevent carrier or shipper from entering into agreement as to liability for loss of or damage to goods prior to loading on and subsequent to discharge from ship, where it 2a Appendix A also provided that it was not to be construed as superseding any other law relating to liabilities of ship after time when goods are discharged from ship, COGSA was enacted in 1936, and Harter Act, which was enacted in 1893, made null and void exculpatory words or clauses in bills of lading purporting to relieve vessel owner of liability for loss or damages for failing to make proper delivery of property transported, COGSA could not be applied to render enforceable exculpatory clause in bill of lading. Carriage of Goods by Sea Act, §§ 7, 12, 46 U.S.C.A. §§ 1307, 1311; Harter Act, § 1, 46 U.S.C.A. § 190. 2. Shipping key 140(1) Under Harter Act, exculpatory clause of bill of lading between shipper and carrier was null and void and of no effect insofar as it purported to relieve carrier from responsibility for loss to shipper’s cargo prior to delivery to cargo destination. Harter Act, § 1, 46 U.S.C.A. § 190. 3. Shipping key 142 Although shipper’s goods were stolen from possession of inland carrier on or about June 2, 1980, before delivery to cargo destination, shipper was officially informed by carrier on Jenc 4, 1980, that container was stolen, and shipper’s written notice of loss or damage was allegedly not received by carrier until June 9, 1980, such notice was timely where, under bill of lading, three- day notice requirement had application only if loss was not apparent, theft was obviously apparent inasmuch as shipper was officially informed by carrier that container was stolen, and, under the circumstances, it would be inequitable to bar shipper’s claim. 3a Appendix A Kester I. H. Crosse, Wilmington, Del., for plaintiff. Thomas Herlihy, III, of Herlihy, Herlihy & Harker, Wilmington, Del., for defendant; Douglas H. Riblet, of Rawle & Henderson, Philadelphia, Pa., of counsel. STEEL, Senior District Judge. Plaintiff, Sklut Hide and Furs (‘‘Sklut’’) has brought this action in admiralty for the loss of cargo carried in ocean transportation from the United States to Italy. Jurisdiction is based upon 28 U.S.C. § 1333. Now before the Court is the motion of the defendant, Prudential Lines, Inc. (‘‘Prudential’’) for summary judgment pursuant to Fed.R.Civ. P. 56(b). On March 27, 1980, plaintiff and defendant entered into a contract of carriage, Bill of Lading No. 1001, for the transportation of a container of 400 wet salted cattle hides aboard the SS Lash Atlantico, an oceangoing vessel owned by Prudential. The bill of lading stated that the ‘‘port or place of loading’’ was New York, the ‘‘port or place of discharge’’ was Leghorn, and bore the following legend: “CLEAN ON BOARD—FREIGHT PREPAID BEYOND CHARGES TO SAN CROCE SULL ARNO PREPAID HOUSE TO HOUSE CONTAINER SERVICE”’ Plaintiff paid defendant a total of $1,538.57, which included prepaid freight for house to house container service between New York and San Croce Sull Arno. 4a Appendix A In due course the container was loaded on the SS Lash Atlantico and was later discharged at Genoa, Italy.' Why the discharge was in Genoa and not Leghorn as required by the bill of lading is not explained. After its arrival in Genoa the container was delivered to an inland carrier for transportation to Leghorn where it was to be forwarded to San Croce Sull Arno. The hides never reached their intended destination because on or about June 2, 1980, the container and its contents were stolen from the inland carrier after their arrival in Leghorn. Aldo Spinnelli was the inland trucker engaged by the defendant to complete the overland portion of the contract of carriage. Plaintiff did not employ him or designate him as his agent or servant in connection with the shipment. The defendant bases its motion for summary judgment on two provisions in the contract of carriage set forth in the bill of lading. Prudential points to Clause 10 in which, it contends, Sklut agreed that Prudential would not be responsible for any loss or damage to Sklut’s cargo which occurred while the cargo was not in the actual physical custody, control or possession of Prudential. Defendant argues that this provision is enforceable under the United States Carriage of Goods by Sea: Act, 46 U.S.C. § 1300 et seq. In addition, Prudential argues that Sklut did not provide notice of the loss or claim in writing within three days of its occurrence as required by Clause 19 of the bill of lading. 1. The :ffidavit of Joseph C. Benedetti, Secretary of Prudential, relates that the container was discharged in Genoa on May 28, 1980. In contrast, the affidavit of Morton Sklut, President of Sklut Hide, affirms that he was advised by his agent in Italy on May 25, 1980, that the Lash Atlantico actually had arrived in Italy on or about April 30, 1980. This factual disparity is immaterial to the Court’s decision. Sa Appendix A Clause iO of the bill of lading provides as follows: 10. TRANSSHIPMENT: Whenever the carrier or the Master may deem it advisable or in any case where the goods are consigned to a point where the vessel is not expected to discharge, the carrier or Master may, without notice, forward the whole or any part of the goods, before or after loading at the original or any intermediate port of shipment, or at any other place or places, even though outside the scope of the voyage or the route to or beyond the port of discharge or the destination of the goods, by any vessel, vessels or other means of transportation by water, land or air, or by any such means, whether operated by the carrier or by others and whether departing or arriving, or scheduled to depart or arrive before or after the ship expected to be used for transportation of the goods. The carrier, in making any arrangements for transshipment by any means of transportation not operated by it, shall be deemed the forwarding agent of the shipper and consignee without any responsibility whatsoever. The oncarriage shall be subject to the terms of the oncarrier’s current form of bill of lading or other contract, whether issued or not, even though such terms may include a lower valuation of the goods or lower limitation of liability or otherwise be less favorable to the shipper or consignee than the terms of this bill of lading. Pending or during transshipment, the goods may be stored ashore or afloat at their risk and expense. When this bill of lading is issued as a through bill of lading, the cargo described shall be considered to be ‘in transit’ from the place of original departure or a point where the transportation begins to the place of final destination, and all arrangements made for land, water or air transportation of said goods before, or after, 6a Appendix A the described ocean transportation carried out by Prudential Lines, Inc., have been, or will be, made solely as agents for the shipper/consignee and subject to all of the terms and conditions 8 of the originating, connecting or final carrier’s bill of lading or other transit document without any responsibility for performance thereunder being assumed by Prudential Lines, Inc. and without enlargement or extension of the responsibility or liabililty on its part to the goods as defined in this bill of lading. It is also expressly understood and agreed that Prudential Lines, Inc. will not be responsible with respect to said goods while they are not in its actual physical custody, control or possessio: Section 7 of COGSA, 46 U.S.C.A. § 1307, provides: § 1307. Agreement as io liability prior to loading or after discharge. Nothing contained in this chapter shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which ’ the goods were carried by sea. Apr. 16, 1936, c. 229, § 7, 49 Stat. 1212. [1] Standing alone Section 7 would authorize the exculpatory provisions in Clause 10 of the bill of lading. Section 7 must read, however, in the light of Section 12 of Cogsa, 46 U.S.C.A. § 1311, which provides: 2 ee ee ee ee ee ee 7a Appendix A § J311. Liabilities before loading and after discharge; effec. on other laws Nothing in this chapter shall be construed as superseding any part of sections 190 to 196 of this title, or of any other law which would be applicable in the absence of this chapter, insofar as they relate to the duties, responsibilities, and liabilities of the ship or carrier prior to the time when the goods are loaded on or after the time they are discharged from the ship. April 16, 1936, c. 229, § 12, 49 Stat. 1212. This latter provision makes clear that the terms of Section 7 must yield to the extent it is inconsistent with ‘‘any other law relating to the duties, responsibilities and liabilities of the ship after the time when they are discharged from the ship.”’ COGSA was enacted in 1936. Section 1 of the Harter Act, 46 U.S.C. § 190, has been the law since it was enacted in 1893. It makes null and void and of no effect all words or clauses in a bill of lading which purport to relieve an owner of any vessel transporting property between ports of the United States and foreign ports from liability for loss or damages for failing to make proper delivery of property committed to its charge. 46 U.S.C.A. § 190 reads: § 190. Stipulations relieving from liability for negligence It shall not be lawful for the manager, agent, master, or owner of any vessel transporting 8a Appendix A 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 4 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. Feb. 13, 1893, c. 105, § 1, 27 Stat. 445. Accordingly, COGSA is without application in this case since it is inconsistent with Section 1 of the Harter Act. {2] Two decisions, Isthmian Steamship Co. v. California Spray-Chemical Corp., 290 F.2d 486 (1961), on reargument, 300 F.2d 41 (9th Cir. 1962); and Caterpillar Overseas, S.A. v. S.S. Expeditor, 318 F.2d 720 (2d Cir. 1963), are especially relevant to an interpretation of the Harter Act. 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