Atlantic Mutual Insurance Co. v. Poseidon Schiffahrt, 13826
| Decision Date | 12 March 1963 |
| Docket Number | No. 13826,13827.,13826 |
| Citation | 1963 AMC 665,313 F.2d 872 |
| Parties | ATLANTIC MUTUAL INSURANCE COMPANY, Libellant-Appellant, v. POSEIDON SCHIFFAHRT, G.m.b.H., Respondent-Appellee. ATLANTIC MUTUAL INSURANCE COMPANY, Libellant-Appellee, v. POSEIDON SCHIFFAHRT, G.m.b.H., Respondent-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William F. Andersen, Heineke, Conklin & Schrader, Chicago, Ill., for libellant Atlantic Mut. Ins. Co.
Warren A. Jackman, Bradley, Pipin, Vetter & Eaton, Chicago, Ill., for respondent Poseidon Schiffahrt.
Before HASTINGS, Chief Judge, CASTLE and MAJOR, Circuit Judges.
This is an action in admiralty to recover damages for breach of contract for the carriage of cargo between Chicago, Illinois and Antwerp, Belgium. The case was submitted to the district court on a stipulation of facts. The district court in its memorandum opinion and order held that libellant, Atlantic Mutual Insurance Company, should recover damages; that overcarriage of the goods to Hamburg, Germany and delay of a year and a half in making delivery at Antwerp was an unreasonable deviation; and that libellant's recovery was limited to $500 pursuant to the package limitation of § 4(5) of the Carriage of Goods by Sea Act, Title 46, U.S.C.A. § 1304(5).
Libellant appealed, claiming the district court erred in limiting its recovery to $500. Respondent, Poseidon Schiffahrt, G. m. b. H., cross appealed, claiming libellant had failed to properly prove any damages.
About November 17, 1957, at Chicago, Illinois, Resillo Company delivered one carton containing ironing machine pads to respondent for transportation to Antwerp, Belgium on board respondent's vessel, SS Herman Schulte. The goods were consigned to order of shipper and had been sold by shipper to consignee, Societe Belge Reineveld of Brussels, Belgium. The bill of lading did not contain an excess valuation pursuant to 46 U.S.C.A. § 1304(5).
The carton was not delivered to consignee upon arrival of the SS Herman Schulte at Antwerp about December 14, 1957. Instead, it was located eight months later in Hamburg, Germany.
In the meantime, libellant had paid consignee $1,070 for its loss pursuant to the insurance contract between them.
On June 16, 1959, approximately eighteen months after the contemplated date of delivery, respondent delivered the goods to libellant. Libellant then offered the goods to consignee on condition that the latter would refund the $1,070 that had been paid it, but consignee refused.
After making efforts without success to find other purchasers, libellant sold the ironing machine pads to consignee for the net sum of $204.66. It was stipulated by the parties that this was the highest bid received from consignee.
The amount sought by libellant in this action, $725, represents the approximate difference between the amount it paid consignee for the loss and the amount libellant received from consignee in mitigation.
We must first determine whether the district court was correct in holding that respondent was guilty of an unreasonable deviation.
Section 4(4) of the Carriage of Goods by Sea Act (herein called the Act), 46 U.S.C.A. § 1304(4) provides:
"Any deviation in saving or attempting to save life or property at sea, or any reasonable deviation shall not be deemed to be an infringement or breach of this chapter or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom: Provided, however, That if the deviation is for the purpose of loading or unloading cargo or passengers it shall, prima facie, be regarded as unreasonable."
This section contains the only reference to "deviation" found in the Act. It does not define "unreasonable" deviation nor does it declare what the legal effect of an unreasonable deviation shall be. It is our opinion that by this section Congress recognized the doctrine of deviation as it had developed in maritime law but chose to make the carrier liable only for an unreasonable deviation.
We agree with the district court's analysis of the law on this point. In its memorandum opinion it stated:
As a result of the rescission of the contract of carriage arising out of the unreasonable deviation, the contract is treated as not having existed, and the liability of the carrier becomes that of an insurer. S. S. Willdomino v. Citro Chemical Co., 272 U.S. 718 47 S.Ct. 261, 71 L.Ed. 491 (1927).
The district court held, however, that respondent's liability was limited...
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