The Kensington

• Decision Date: 25 May 1899
• Docket Number: 147.
• Citation: 94 F. 885
• Court: U.S. Court of Appeals — Second Circuit
• Parties: THE KENSINGTON.

94 F. 885

THE KENSINGTON.

No. 147.

United States Court of Appeals, Second Circuit.

May 25, 1899

H. W Ward, for claimants.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

On December 2, 1897, the libelants, citizens of the United States, and residents of New Jersey, being at the time in Paris, France, purchased of an agent of the claimant, a New Jersey corporation, a ticket for their passage, from Antwerp to New York by the British steamer Kensington, of the Red Star Line. They proceeded to Antwerp where on December 10th they paid the balance of the purchase money, delivered their trunks to the vessel, and received a baggage check stating that said trunks were shipped 'subject to the conditions contained in the company's ticket and bill of lading. ' The ticket, which is dated December 2, 1897, begins with a recital of the names of the passengers, and numbers of staterooms and berths, and states that it 'is good for second-cabin passage of the persons named in the margin * * * by the British steamship Kensington from Antwerp on the 11th of December, * * * unless prevented from unforseen circumstances, with 20 cubic feet of personal baggage for each adult passenger free of charge, excess being charged for at the rate of 125 francs per cubic foot. ' Immediately succeeding is the caption, 'Notice to Passengers,' and these words, 'It is a condition upon which this ticket is granted, and is mutually agreed for the consideration aforesaid, that'-- Here, as the district judge finds, follow 10 paragraphs in type somewhat smaller than the preceding type, but perfectly clear and legible stating numerous conditions. The whole concludes with the clause: 'All questions arising hereunder are to be settled according to Belgian law, with reference to which this contract is made. ' Then follows the signature, 'John Macklin, for General European Agents. ' The relevant conditions included in the above-mentioned 10 paragraphs are these:

'(c) The shipowner or agent are not under any circumstances liable for loss, death, injury, or delay to the passenger or his baggage arising from the act of God, the public enemies, fire, robbers, thieves of whatever kind, whether on board the steamer or not, perils of the seas, rivers, or navigation, accidents to or of machinery, boilers, or steam collisions, strikes, arrests or restraint of princes, courts of law, rulers, or people, or from any act, negligent or default of the shipowner's servants, whether on board the steamer or not, or on board any other vessel belonging to the shipowner. * * * The shipowner will use all reasonable means to send the steamer to sea in a seaworthy state, and well found, but does not warrant her seaworthiness. (d) The shipowner or agent shall not under any circumstances be liable for any loss or delay or of injury to passengers' baggage carried under this ticket beyond the sum of 250 francs, at which such baggage is hereby valued, unless a bill of lading or receipt be given therefor, and freight paid in advance on the excess value at the rate of one per cent., or its equivalent, in which case the shipowner shall only be responsible according to the terms of the shipowner's form of cargo bill of lading in use from the port of departure.'

When their baggage was delivered to the company at Antwerp, on December 10th, no statement was made of its value, and no freight was paid on its excess over 250 francs. The trunks were stowed in the after part of what is known as 'No. 2 Upper Steerage Deck.' Upon the arrival of the steamer in New York, it was discovered that the libelants' trunks and baggage of other passengers, which, with some crates of china, had been stowed there, had been broken to pieces, and...