Brief for the Respondent in Opposition — Calderon v. Atlas SS Co.

aes a Kee. 16, Ke

Supreme Court of the alnited States.

CLIMACO CALDERON,

Libellant-Appellant,

vs. \ v ‘

THe ATLAS STEAMSHIP COMPANY

(Limited),

Respondent- Appellee.

Brief for Respondent in Opposition to

Motion for Certiorari.

Statement.

The libel alleges (p. 2, fol. 7) the delivery of twenty-

seven bales and three crates of duck uniforms to the

Atlas S. S. Co., and that libellant ‘‘ received therefor

three pills of lading, receipts and contracts, all of

like tenor and date, whereof a copy is hereto annexed,

marked A.”’

The bill of lading was put in evidence by libellant

(p. 14, fol. 55).

The steamer sailed July 19, 1893 (p. 33, fol. 129). The

goods were delivered between eleven and twelve o’ clock

ofthat day. They arrived too late to be put with the

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other Savanilla cargo. ‘‘It was just the last minute.

* * * They were the last goods put in”’ (p. 35, fols.

137-140).

On the delivery of the goods a receipt for them was

given ‘‘subject to the conditions expressed in the com-

pany’s form of bill of lading” (p. 43, fol. 169). Libel-

lant received the bills of lading ‘‘not later than one

o'clock, and forwarded them by the same steamer’? (p.

34, fol. 133).

Libellant had shipped goods, at least, ten times on

similar bills of lading (pp. 21, 22, fols. 84, 85).

The Atlas steamers had been running on the same

route to Carthagena and Savanilla, and on the same

schedule for about three years (p. 21, fol. 82). The

usual conrse of that route was ‘‘ first to Kingston, then

to Savanilla, then.to Carthagena and Port Limon, and

then back to New York direct”’ (p. 21, fols. 81, 82; p.

15, fol. 59). On that route the steamers carry cargo,

passengers, specie and mails (p. 21, fol. 82).

The mistake in not delivering the cases of uniforms

at Savanilla was not discovered until the steamer had

left that port, and about an hour before the discharge

of Carthagena cargo (p. 16, fol. 62 ; p. 18, fol. 71 and 72;

p 19, fol. 74). The cause of the mistake was that the

eases had been ‘‘ stowed amongst the Carthagena cargo”’

(p. 16, fol. 63; p. 18, fol. 71).

The cargo could not be landed at Carthagena because

the law there does not allow the landing of cargo not on

the manifests, and it was impracticable to forward the

goods from there (pp. 16, 17, fols. 64, 65). The steamer

could not return to Savanilla, because she was ‘‘ timed

to be at Limon at a certain day to take up a perishable

cargo that was waiting ”’ (p. 17, fol. 66).

The steamers have regular sailing days from these

different ports. The return cargo at that season from

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Port Limon is bananas, and punctuality in sailing on

the schedule time is, therefore, essential (p. 25, fols.

98, 99).

POINTS.

First.

The case is not one in which, under the well settled

practice of this Court, a certiorari should issue. The

rule on this subject is clearly stated in American Con-

struction Co, vs. Jacksonville, &c., Railway Co., 148

U. S., 372. At page 382 the Court say :

“The Act has uniformly been so construed and ap-

plied by this Court as to promote its general purpose

of lessening the burden of litigation in this Jourt,

transferring the appellate jurisdiction in large classes

of cases to the Cirenit Court of Appeals, and making

the judgment of that Court final. except in extraordi-

nary cases.”’

The case at bar is not extraordinary. It involves a

controversy between a shipper and a carrier as to the

latter’s liability for loss of cargo. Such suits are fre-

quent. They mainly involve, as does this, either the

application of well settled rules of law or questions of

fact. They arise frequently ; but no more frequently

than all questions under bills of lading, negotiable

paper and other commercial contracts. In short, every

argument that can be presented for a review on certio-

rari of the decision in this case.would apply to all ques-

tions arising under such contracts. In one sense they

are important. Congress endeavored to provide at the

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beginning of the Government one central tribunal which

should, in the last resort, decide them all. So many

‘ases, however, arose in which the exercise of this juris-

diction was invoked, that it broke’"down under its own

weight, and therefore the act of March 3, 1891, Chapter

517, was passed. Of this Act this Court say :

American Construction Co, os, Jacksonville, &e., Rail-

way Co., 148 U. S., 372, 382.

* The primary object of this Act, well known as a

matter of public history, manifest on the face of the

act, and judicially dec lared in the leading cases under

it, was to relieve this Court of the ov erburden of eases

and controversies, arising from the rapid growth of the

country, and the steady increase of litigation ; and, for

the accomplishment of this object, to transfer a large

part of its appellate jurisdiction to the Cireuit Courts of

Appeals thereby established in each judicial circuit, and

to distribute between this Court and those, according to

the scheme of the Act, the entire appellate jurisdiction

from the Circuit and District oe of the United

States. MeLish es. Roff, 141 U. S., 661, 666, 894; Re

Lau Ow Bew, 141, U. 8., 583 and 14a U. S., 47.

Second.

The case in the Court below turned wholly upon the

construction of varticular clauses in a bill of lading.

No general question of law was involved.

It is well settled that a clause in a bill of lading,

age, is valid.

Hart vs. Pennsylvania R. R., 112 U.S,

331.

limiting the amount of the recovery to $100 per pack-

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At page 340, the Court say:

“There is no justice in allowing the shipper to be

paid a large value for an article whieh he has induced

the carrier to take, at a low rate of freight, on the as.

sertion and agreement that its valne is a less sum than

that claimed after a loss. It is just to hold the shipper

to his agreement, fairly made, as to value, even where

the loss or injury has oceurred through the negligence

of the carrier. The effect of the agreement is to cheapen

the freight and secure the carriage, if there is no loss ;

and the effect of disregarding the agreement, after a loss,

is to expose the carrier to a greater risk than the parties

intended he should assume. The agreement as to value

in this case stands as if the carrier had asked the value

of the horses, and had been told by the plaintiff the

sum inserted in the contract.’

In this case there was no definite valuation of the

horses in question. The clause in controversy read :

‘The carrier assumes a liability on the stock to the

extent of the following agreed valuation :

** If horses or mules, not exceeding $200 each.”

This could not be called a valuation of a particular

horse. It fixed nothing but the limit of liability. The

carrier could have proved that the animal was worth

less than the amount stated,

Muser vs. Holland, 17 Blateh., 412.

_ At p. 414 Mr. Justice WaLnacer says:

‘The right of a carrier to exact fair information as to

the value of property confided to his care has always

been recognized. He has the right to insist that his

compensation be measured by his risk, and, obviously,

the degree of care which he will exercise will measur-

ably depend upon the extent of the responsibility he

may incur, While itis not primarily the duty of’ the

shipper to inform the carrier of the nature or value of

the contents of the parcel sent, the carrier has the right

to make inquiry and receive a true answer: and any

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concealment on the part of the shipper, intended to mis-

lead the carrier as to the character or value of the

property, and which does mislead, is a fraud, which

absolves the carrier from responsibility.”

To the same effect are :

Ernest vs. Express Co., 1 Woods, 573.

Hopkins vs. Westcott, 6 Blatch., 64.

Kidd vs. Greenwich Ins. Co., 35 Fed. Rep.,

351.

The Bermuda, 29 Fed. Rep., 399.

Aff'g S. C., 27 lbid, 476.

The Denmark, 27 bid, 141.

Green vs. Boston & Lowell R. R., 128

Mass., 221.

The validity of a similar clause in a telegraph blank

yas sustained in Primrose vs. Penn. R. R., 154 U.S.,

1. At p. 15 the Hart case is quoted and approved.

The validity of a similar limitation in contracts for

the carriage of passengers and their baggage is equally

well settled.

Railroad Co. vs. Fraloff, 100 U. S., 24, 27.

There is no distinction on principle between these

cases and the one at bar. They all rest on the solid

foundation of allowing parties either by contract or

notice to define the limit of an undefined liability.

Market valne is always an uncertain quantity. The

place of ascertainment is often in donbt, and it must

always rest on evidence as to quality, which the ship-

per alone can give; and which ordinarily the carrier

cannot refute.

The passage money of the passenger is freight, and

subject to the same rules as money paid for carrying

cargo.

The Main, 152 U. S., 122.

These baggage cases are therefore in point.

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Third.

It is equally well settled that the clauses printed

on the back of the bill of lading in this case form a

part of it, because they are, by express language, in-

corporated in it and are signed by the agents for re-

spondent.

Petition for Certiorari, p. 2; Record p. 5,

fol. 20 ; p. 10, fol. 39.

1. It is not to be supposed that the Courts intend to

apply to ecarrier’s contracts any different rule from that

applicable to other contracts, so far as the question of

what is to be treated as part of the contract is con-

cerned.

It was formerly the practice not to inelude in the

body of the mortgage the defeasance clause. The

mortgage was an absolute deed with a defeasance en-

dorsed upon it. No one would contend that in such

case the defeasance, although endorsed, or contained

in a separate instrument, would not be a part of the

contract.

Harrison vs. Trustees, 12 Mass., 463.

Morgan’s Assignee vs. Shinn, 15 Wall., 103.

Bell vs. Bruen, 1 How., 169, 183.

1 Greenl. Evid., Sect. 283.

So, if words expressing a delivery in escrow were en-

dorsed upon a deed delivered with it, or embraced in

another paper, can there be a doubt they would qualify

the delivery ?

Stanton vs. Miller, 58 N. Y., 192, 203.

County of Calhoun os. American Emigrant

Co., 93 U.S., 124.

If the carrier delivers to the shipper an instrument

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which is evidently intended as a whole, and which is

obviously not a mere receipt, but is intended to embody

a statement of the entire terms of the contract, it seems

irrelevant to the inquiry as to what the contract is,

whether a particular clause is printed on the back or

on the face.

The libellant cites expressions of Mr. Justice Davis

in Railroad Co. rs. Manufacturing Co., 16 Wall., 318,

to the effect that certain endorsements upon a carrier’s

receipt were not to be regarded. In that case the

character of the instrument delivered by the carrier to

the shipper was essentially different from that in this.

It was a mere receipt, and not a contract. There was

nothing in its character to indicate that the matter

printed upon the back was an intrinsic part of the

contract. Judge Davis draws special attention to the

fact that it was not signed by the carrier, and calls it a

mere notice.

In any case, that decision must be considered as over-

ruled by this Court, in

Myrick vs. Michigan Central R. R. Co.,

107 U. §., 102.

In this case the paper delivered to the shipper was a

mere receipt for cattle ‘‘for transportation by the

Michigan Central Railroad Company, to the warehouse

at ’ On the margin was the fol-

lowing :

‘This receipt can be exchanged for through bill of

lading.

Notice.—See rules of transportation on the back

hereof.”’

On the back of the receipt the rules were printed,

one of which (the 11th) contained a stipulation,

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‘*The Company will not be liable or responsible for

any loss, damage or injury to the property after the

same shall have been sent from any warehouse or

station of the Company.”’

At page 108 the Court say:

“Though this rule brought to knowledge of the ship-

per might not limit the liability imposed by a specific

through contract, yet it would tend to rebut any infer-

ence of such a contract from the receipt of goods

marked for a place beyond the road of the company.”

The decision was followed and approved in

North Penn. R. R. vs. Commercial Bank,

123 U. S., 727.

This was a case arising upon the same bill of lading.

but against a different carrier. In both cases the Court.

held that the carrier receiving the freight was not

liable, but that the carrier at the terminus of the ronte

was liable for non-delivery of the cattle. It is true that

the Court also beld that this would be the rule of law

in the absence of any contract. But in determining

what the contract between the parties actually was, the

Court dves consider and give weight to this endorse-

ment upon the receipt for the cattle, and treat it as re-

butting the inference from other language, upon the

face of the contract itself. That is all we ask the Court

to do in this case.

2. The bill of lading was issued after goods were

shipped, but the shipping receipt expressed that the

goods were received on the terms stated in the bill of

lading. This of itself was sufficient to constitute a con-

tract to carry on these terms.

Wilde vs. Merchants Desp. Trans. Co., 47

Towa, 272.

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But this question does not arise in the case at bar.

No issue is made by the pleadings on the acceptance

of the bill of lading. It is alleged in the libel and was

proved by the libellant. The contention in his brief,

that there was no express evidence of his assent, is,

therefore unwarranted by the pleadings, and cannot be

made here.

3. Libellant cites expressions in the opinion in

Ayres vs. Western R. R., to the effect that ‘an ex-

plicit agreement” on the part of the sbipper must be

proved. This decision is not controlling here.

(a.) This ease was decided solely on the authority of

Railroad Company es. Manufacturing Co, That de-

cision has since been limited as before shown, and never

applied to limitations of amount.

(2.) The admission in the libel, and the statement in

the shipping receipt that the goods were received sub-

ject to the conditions in the bill of lading, distinguish

that case from the one at the bar.

Fourth.

It is equally well settled that a bill of lading de-

livered to the shipper expresses the contract between

the parties, and that its terms are binding on both the

shipper and the carrier, and that its acceptance by

the shipper is conclusive evidence of his agreement to

its terms.

York Co. vs. Central R. R., 3 Wall., 107.

In this case it was proved (p. 108) ‘‘ that the cotton

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was shipped on the steamer before the bills of lading

were signed ; that the shipper had not examined the

bills; that his attention was not called to the fire

clause, and that his firm had no authority to ship for

their principals with that exemption.’’ It was also

argued that there was no consideration for the exemp-

tion. But the Court overruled all the objections, and

held that the plaintiff, who was the owner of the

goods, was bound by the exemption in the bill of lad-

ing.

Evidence of express assent by the shipper to the

terms of the bill of lading is unnecessary. In the case

at bar, Calderon does not testify that he did not read

it, or did not know its terms. But if he had so testified,

he would equally be bound by the contract.

York Co. xs. Central R. R., 3 Wall., 107,

Kirkland rs. Dinsmore, 62 N, Say Fan,

Farnham es. Camden and Amboy R. R.,

55 Penn., 53.

Belger vs. Dinsmore, 51 N. Y., 166.

Grace vs. Adams, 100 Mass., 505,

The Judges of the Court below did not differ as to

any of the questions which have thus far been dis-

cussed. Judge Wallace's dissent was wholly on the

construction of a particular clause in the bill of lading.

Fifth.

A mere question of the construction of a particular

clause in a bill of lading is not one of gravity or im-

portance. The terms of those instruments vary. They

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are the subject of frequent discussion in commercial

circles and are often changed. The fact that Judge

Wallace dissented in the case at bar will lead to a

change of the language of the clause in question.

If, however, the Court should consider this point on

the present motion, we submit that the decision below

was right.

Appellant argues that the clause in question means

that the carrier should not be liable in any amount for

a package worth over $100 ‘ unless bills of lading are

signed therefor, with the value therein expressed, and

a special agreement is made.”’

1. If the clause did mean this it would still be valid.

This was expressly adjudged by Mr. Justice Blatch-

ford, in the Second Circuit, on appeal, and has twice

been held in the District Court for the Southern Dis-

trict.

The Bermuda, 29 Fed. Rep., 399.

Aff'g S. C., 27 Ibid, 476.

The Denmark, 27 / did, 141.

2. But we cannot admit that the clause is open to the

construction contended for. It provides that ‘‘the car-

rier shall not be liable for gold * *, or for goods of

any description, which are above the value of $100 per

package, unless,”’ ete.

If gold, which is exempted by name, were put in the

same package with other articles. no one would claim

that the others were exempt. The gold only would be

excluded. So when goods making the value over $100

are packed with goods of that value, the latter are not

exempt. The former are.

Where goods are exempted by description, that de-

scription is exempt. When they are exempted by value,

all over the value specified, are exempt. But how can

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it be said that the -parties intended to exempt goods

which were worth less than the specified value 4

The decree below charged the appellee with no liabil-

ity for any goods in each package which were ‘* above

the value of $100 per package.”

Sixth.

Harter Act,

The Carriers’ Act of February 13, 1893, known as the

Harter Act (27 Stat., 505), does not affect the validity of

stipulations limiting the amount of recovery, or making

it the duty of shippers to disclose the value, or character

of goods. The object of all such clauses is to compel

fairness on the part of the shipper. The ‘ Carrier's re-

ward ought to be proportionable to the risk.”’

Gibbon os. Paynton, 4 Burr., 2298; cited

and approved,

Hart os. Penn. R. R. Co., 112 U. S., 331,

341.

The amount of this reward is not touched by the

Harter Act, and, therefore, the amount of the recovery

is not.

That Act was passed in order to establish beyond

controversy the validity of certain clauses in bills of

lading, and the invalidity of others. On these points

there was a distressing conflict of authority which is

now ended. There is nothing in its language or its

history which tends to show that it was intended to

abrogate the reasonable limitation of the amount of lia-

bility, in proportion to the risk and the reward.

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EL EER LIAS IRS NEN ARINC eS

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Nothing can illustrate this proposition better than the

Hart case. For the same Court which, in Railroad Co,

vs. Lockwood, held a stipulation to be void which alto-

gether exempted the carrier from liability for the negli-

gence of his servants, in the Hart case sustained the

validity of a limitation as to amount, although the loss

in that case was caused by negligeuce.

Seventh.

Deviation.

The appellant argues that the clause in question does

not apply to the case at bar, because the loss occurred

after the steamer left Savanilla. To this we reply:

1. The recovery 1s not for a loss incurred by deviation,

but for negligence in not making more thorough search

for the goods at Savanilla.

Clause 9, of the bill of lading, allows goods to be

over-carried. It was inserted with reference to the

usual course of business to which reference has been

had.

The necessities of proper stowage and distribution of

a mixed cargo, and the frequent receipt of goods on the

last day of sailing, cause goods to be sometimes neces-

sarily so stowed as to be naturally overlooked or missed

at the different ports of call. The ship being under the

necessity of delivering mailsand passengers with punctu-

ality and despateh, and of avoiding delays that would

be destructive to cargoes of perishable fruit, cannot

overhaul all its cargo at every port of call.

All carrier's contracts are made with reference to the

usage of the trade as to stowage.

Baxter es. Leland, | Abb. Adm., 348,

The Colonel Ledyard, 1 Sprague, 530.

Barber vrs. Brace, 3 Conn., 9, 13.

BREET EPS SENIOR LEE LENORE IIE IETS ———

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This is admitted in

The Delaware, 14 Wall., 579, 598, 606.

Usage in reference to the manner of delivery is bind-

ing upon both parties.

Richmond vs. Union Steamboat Co., 87

N. Y., 240.

Homesly vs. Elias, 66 N. C., 330.

Adams Ex. Co. vs. Darnell, 31 Ind., 20.

Salter es. Kirkbride, 4 N. J. Law Rep.,

223, 229.

MecMasters vs. Penn. R. R., 69 Penn., 374.

The Tybee, 1 Woods, 358.

Hooper vs. Chicago & N. W. R. Co., 27

Wis., 81.

Whitehouse es. Halstead, 90 Ill., 95.

It is also binding when it relates to the method of

transportation.

Robertson vs. Nat. S. S. Co., 139 N. Y.,

416.

In the case at bar, this usage explains clause 9, and

shows that it was intended to allow just what happened

here. The learned District Judge held that this clause

did not constitute a defense because of the carrier's

failure to prove diligence in searching for the goods at

Savanilla. Assuming, for the argument, that this is a

sufficient reply, it still proves that the recovery is be-

cause of the negligence and not because of the devia-

tion.

2. The authorities as to recovery by the shipper,

where there has been a deviation (with one exception,

to be considered hereafter), do not touch the effect of

clauses limiting the amount of recovery. They do not,

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on principle. The reason of the decisions on the latter

clauses, stated under the Second Point, are equally ap-

“plicable to a loss from deviation. If the appellee had

been notified of the actual value of these uniforms, it

would have bestowed more care upon the search at Sa-

vanilla. All care involves expense, and for expense

there should be a proportionate reward.

3. The only case cited for libellant on this point is

Ellis es. Turner, 8 Term Rep., 531.

To this there are several replies :

a. The English cases on carriers decided during the

last century, have been so modified by the recent de-

cisions that they cannot be cited as authority.

b. In that case there was an express agreement to de-

liver at the first port of call, and an express and wilful

refusal to deliver there. On these two grounds the de-

cision is based.

c. In that case there was no written contract, but only

a posted notice, never seen by plaintiff.

4. The argument was much pressed in the Court be-

low, that the effect of the deviation was to vitiate the

insurance. This, however, would depend upon the form

of the policy. If libellant had insured the goods ‘* with

all liberties as per bill of lading,’”’ the goods would have

been covered notwithstanding the failure to deliver them

at Savanilla. This is not an uncommon form of insur-

ance. There are numerous routes in which it is of great

importance to the carrier to permit what this bill of lad-

ing permits, and it is a very simple matter for the ship-

per to obtain insurance policies, covering such contin-

gencies, as will under these circumstances occasionally

arise.

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5. In the present case, especially, the limitation was

reasonable. The ultimate cause of the loss was that the

goods were offered for carriage, too late for proper

stowage.

Eighth.

The motion for a certiorari should be denied.

, Everett P. WHEELER,

Proctor and Advocate for Respondent.

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