Kuhnhold v. Compagnie Generale Transatlantique

• Decision Date: 27 February 1918
• Citation: 251 F. 387
• Parties: KUHNHOLD v. COMPAGNIE GENERALE TRANSATLANTIQUE.
• Court: U.S. District Court — Southern District of New York

251 F. 387

KUHNHOLD v. COMPAGNIE GENERALE TRANSATLANTIQUE.

United States District Court, S.D. New York.

February 27, 1918

Theodore L. Bailey and Oscar S. Blinn, both of New York City, for libelant.

Joseph P. Nolan, of New York City, for respondent.

MAYER District Judge.

There is no dispute as to the essential facts; the parties having stipulated in respect thereof.

On or about September 17, 1915, at Bordeaux, France, the Gruen Watch Manufacturing Company delivered to respondent (hereinafter called French Line), for shipment to New York, nine cases of goods, for which one bill of lading was given. The shipment was made through the American Express Company, and consigned to D. Gruen & Sons of Cincinnati, Ohio. All of the nine cases were delivered ex steamship Espagne at New York, on or about October 4, 1915, but one of the cases (marked 274) was delivered short a certain part of the goods (watches and watch cases) which had been originally shipped in said case at Bordeaux. The actual invoice value of the missing goods was $826.60, but the invoice value was not stated in the bill of lading. It is also stipulated between the parties that the full invoice value of all the goods contained in case marked 274 at the time of shipment was 13,478.50 francs, or approximately the equivalent of $2,695.70. At the time of the trial the parties did not know the invoice value of the remaining eight cases shipped under the same bill of lading but agreed that they would stipulate as to such value in the event that the court should so construe the bill of lading as to make the value of these eight cases relevant and necessary to the ascertainment of damages.

D Gruen & Sons of Cincinnati, Ohio, assigned their claim to libelant. In the bill of lading delivered by the French Line appears the following:

'Art. 11. In case of losses or irregularity in the delivery, for which they would be responsible, from any cause or at any place whatever, the captain and the company can only be held to reimburse for each package lost, the intrinsic value at the loading port, calculated on the presentation of the original invoice, or upon the declaration on the bill of lading, without any profit, damages, commission, interest, etc. In default of declaration of value on the bill of lading, it shall not be allowed in any case more than one franc per cubic decimeter or per kilo., at the choice of the company, nor more than 1,000 francs per package. In case of damage or shortages for which they may be responsible, the captain and the company can only be held to pay an indemnity calculated pro rata on the sum to be paid in case of loss, according to the foregoing various stipulations.'

The expression 'it shall not be allowed,' if properly and freely translated, means 'there shall not be allowed.' It is also provided, under rule 5 of the bill of lading, that:

'The ship is not responsible for gold, silver, precious metals, cash, titles, jewelry, works of art and similar articles of value, unless there be signed a regular bill of lading with express indication of the value of the said articles.'

Article 18 provides:

'All litigation arising from the interpretation of the execution of the present bill of lading shall be judged according to French law and by the court of the place indicated on the bill of lading, which court the shippers and the claimants formally declare they accept as competent.'

1. The provision under article 18, by which the Bordeaux court is made the sole forum, must be construed as void in this jurisdiction. Gough v. Hamburg, etc., Co. (D.C.) 158 F. 174; United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co. (D.C.) 222 F. 1006.

2. Whether the bill of lading under article 18 should be construed in accordance with the French law need not be discussed, because no testimony was introduced as to the French law and the proposition has now become elementary that the burden of proving the law of a foreign jurisdiction is upon him who asserts or relies upon it.

3. The French Line seeks to escape liability upon the ground that the shipment was one of jewelry, and therefore the French Line is excused, under the provisions of rule 5 of the bill of lading and section 4281 of the Revised Statutes (Comp. St. 1916, Sec. 8019). The bill of lading clearly described this package as 'caisse mouvements et boites moutres.' It is thus entirely clear that the nature of the contents of the package was made known, and, as the French Line insists that in law there is an agreement as to value, all of the requirements of rule 5 were conformed with. In any event, it is now settled that section 4281 is to be construed so as to relieve the carrier only of its liability as a common carrier, and not of any liability as a bailee. Wheeler v. Oceanic Steam Navigation Co., 125 N.Y. 155, 26 N.E. 248, 21 Am.St.Rep. 729; Mallory S.S. Co. v. Bahn (Tex. Civ. App.) 154 S.W. 282; La Bourgogne, 144 F. 781, at page 786, 75 C.C.A. 647, affirmed in 210 U.S. 95, 28 Sup.Ct. 664, 52 L.Ed. 973.

As under this head the liability of the French Line would be that of a bailee, libelant must recover because the bailee has not only not accounted for the loss, but has, in effect, affirmatively conceded that the loss was occasioned by its own fault.

4. The foregoing having been disposed of, there is now to be considered the important question in the case. Libelant attacks as void the provision of the bill of lading limiting the liability, while the French Line insists that the limitation is valid and fully within recognized authority.

It will be noted that in the first part of article 11 provision is made for those cases where the original invoice or the bill of lading declares the value. Then follow the clauses relating to those cases where value is not declared. In the latter event, the company has the choice of determining whether to allow the valuation per standard of measurement or per standard of weight, providing, however, that in no instance shall the damage exceed 1,000 francs per package.

The language is simple and clear. It is entirely within the power of the shipper to declare value, and, in such event, in case of loss, the intrinsic value at the loading port is allowed. If the shipper, however, fails to declare value, and thus leaves the carrier entirely in the dark, in that regard, the shipper is fully informed by the bill of lading what the maximum allowance for loss will be, with the reservation to the carrier at its option to make good either at so much per measurement or so much per weight; the assumption being, of...