43 F.2d 941 (2nd Cir. 1930), 390, Wood & Selick, Inc. v. Compagnie Generale Transatlantique

Docket Nº:390, 391.
Citation:43 F.2d 941
Party Name:WOOD & SELICK, Inc. v. COMPAGNIE GENERALE TRANSATLANTIQUE. A. SALOMON, Inc., v. SAME.
Case Date:August 04, 1930
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 941

43 F.2d 941 (2nd Cir. 1930)

WOOD & SELICK, Inc.

v.

COMPAGNIE GENERALE TRANSATLANTIQUE.

A. SALOMON, Inc.,

v.

SAME.

Nos. 390, 391.

United States Court of Appeals, Second Circuit.

August 4, 1930

Edward J. Garity, Joseph P. Nolan, and Frank T. Hendl, all of New York City, for appellant.

Henry N. Longley, Bigham, Englar, Jones & Houston, and Ezra G. Benedict Fox, all of New York City, for appellees.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

These two appeals involve only the question of the statute of limitations. The libels were filed for damage to certain consignments of goods, shipped on the respondent's vessels under bills of lading, issued in France, and containing the following clause (Rule 18): 'All litigations arising out of interpretation of execution of this contract of bill of lading shall be judged according to the French law at the Tribunal of the place indicated in the bill of lading, and the owners of the ship and claimants formally declare to accept its competency. ' The bills further provided: 'disputes resulting from the interpretation or execution of this bill of lading shall be submitted to the court provided for in Rule 18 of the Commerce Court of the Seine.'

The respondent proved the French law by its relevant sections, and by a competent ?french

Page 942

lawyer, and maintained that under it the limitation of one year was made a condition of the obligation, in the sense that the lapse of that period extinguished the right. Hence it argued that the local statute did not apply as part of the lex fori, and that as the libels had not been filed within a year, though within the time allowed by the local law, the suits must fail. The following sections of the French Codes are pertinent. Section 433 of the Commercial Code, which is under the title, 'Prescription,' provides: 'The following are barred by prescription. All claims for delivery of goods, or for damages for average losses, or delay in the carriage of them, one year after the ship's arrival. ' This is all that there is in the Commercial Code, but the Civil Code under chapter five, which concerns the 'discharge' (extinguishment), 'of obligations,' provides, section 1234: 'Obligations are discharged' (s'eteignent), 'by payment (or performance)-- by novation-- by voluntary release-- by set-off-- by merger-- by loss of the subject matter-- by being void or by rescission-- by the effect of a condition in avoidance, which has been explained in the preceding chapter; by prescription which will form the subject of a special title. ' The only evidence in the record of that special title is the following two sections: Section 2220, 'The right of prescription may not be waived' (renonce), 'beforehand; prescription which has been already acquired may be waived'; section 2223, 'Judges may not of their own motion base their decisions upon grounds which depend upon prescription.'

The testimony of the expert was exceedingly confusing, not due to any fault of his, but inevitable because of the attempt to import into the French law the refined notion which pervades our own, of a right barred of remedy, but still existing in nubibus. He based his opinion upon the reasoning that since section 1234 of the Civil Code provides the 'prescription' shall extinguish or discharge obligations, and since section 433 of the Commercial Code establishes a prescriptive period of one year for suits like those at bar, it follows that the French law extinguished these obligations. When faced with the sections from the Civil Code dealing with prescription, he became however less clear. It was apparent that time alone did not for all purposes extinguish the obligation, for the defendant must claim the defense, and might renounce it by his conduct after the prescription was complete. Without in any sense meaning to question his competence, in the upshot his testimony does not materially help us. Each party relies upon a part here and a part there; we shall not cite it, nor indeed need we consider it, for it seems in the end to leave the interpretation of the Codes much as it would be on the words themselves.

We may at the start lay aside the clauses in the bills of lading, which apparently were intended to confine any litigation ever the contracts to a French court. The respondent does not pretend that, so construed, these would be valid, and it is of course well settled that they would not. Mutual Reserve Fund v. Cleveland Woolen Mills, 82 F. 508 (C.C.A. 6); Nashua River Paper Co. v. Hammermill, 223 Mass. 8, 111 N.E. 678, L.R.A. 1916D, 691; Benson v. Eastern Building & Loan Ass'n, 174 N.Y. 83, 66 N.E. 627; U.S. Asphalt Co. v. Trinidad, etc., Co. (D.C.) 222 F. 1006; Kuhnhold v. Compagnie Generale Trans. (D.C. 251 F. 387; Williston, Sec. 1725. If they were not so intended, but only meant to stipulate that the obligations of the contract were to be interpreted and executed according to French law, they did not incorporate the French law of prescription. 'Interpretation' certainly cannot be stretched so far, and 'execution' will serve no better. Its natural meaning is 'performance,' including excuses for performance; it would wrench...

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