Pannell v. The SS American Flyer
| Decision Date | 20 December 1957 |
| Citation | 157 F. Supp. 422 |
| Parties | Peter PANNELL, Libelant, v. THE S.S. AMERICAN FLYER, her engines, boilers, tackle, etc., and United States Lines Co., Respondent. |
| Court | U.S. District Court — Southern District of New York |
Hill, Rivkins, Middleton, Louis & Warburton, New York City, for libelant, David L. Maloof, New York City, of counsel.
Kirlin, Campbell & Keating, New York City, for respondent, L. De Grove Potter and Richard H. Sommer, New York City, of counsel.
On or about May 18, 1953 libelant delivered to the respondent and to the S. S. American Flyer at London, England, his auxiliary sailing yacht Larus and a dinghy, one bundle of masts, and one bundle of spars for delivery at New York. The yacht was shipped on deck in accordance with the terms of a bill of lading issued by respondent to libelant. Stamped across the face of the bill was the following notation:
"On Deck at Shipper's Risk."
The yacht rested on a cradle which was delivered to respondent by libelant. Two athwartship 4" × 4" shores were placed at each side of the cradle; and the yacht has held in the cradle by means of lashings. The bill listed the gross weight of the shipment as 11 tons.
The S.S. American Flyer arrived at New York, N. Y., on or about May 29, 1953. While the yacht was being unloaded a piece of the ship's tackle broke causing the yacht to fall some 18 inches into the cradle. The amount of damage thus caused to the yacht is in excess of $500. (The libelant seeks judgment in the sum of $7,788.) The respondent concedes that it is liable for the damage which occurred to the yacht but denies that it is liable for the amount of damages claimed and contends that its liability is limited to $500 by the terms of the bill.
Respondent's tariff on yachts at the time was as follows:
Non-Contract Contract
Up to 2 tons weight 80/-w/m 65/-w/m
Over 2 tons and up to 10 tons weight 85/-w/m 70/-w/m
Over 10 tons and up to 20 tons weight 95/-w/m 80/-w/m
Over 20 tons weight as per agreement
Freight was originally charged on the basis of 10-20 tons weight at the non-contract rate of 95 sh. per measurement ton, being the dock measurement for the yacht and cradle. Subsequently respondent was informed that the yacht without cradle did not exceed 10 tons and also that the owner was entitled to the contract rate. Therefore, the freight was reassessed giving libelant the benefit of the contract rate and the rate for yachts between two and ten tons weight, namely, 70 sh. per measurement ton, and $383.05 was refunded to libelant. Both rates were assessed and calculated for an imaginary rectangular space measured from the bow and the stern of the yacht to the deck of the ship and as wide as the width of the yacht, at 4308 cu. ft., 11 cu. in. A measurement ton is calculated on 40 cu. ft.
The bill contains the following clauses which are pertinent to this action:
The facts as above set forth are drawn from a stipulation entered into between the parties. In addition, at the trial, libelant conceded that the yacht was not "goods shipped in bulk." Certain other proofs were adduced at the trial but, with one exception mentioned below, I do not find that any facts are relevant to my decision other than those set forth above.
The bill shows that the libelant did not enter thereon a declaration of value for the shipment and the freight was accordingly calculated as set forth above. Respondent's tariff, entered in evidence, provided for an additional freight assessment in the case of goods exceeding in value £100 per package, the value of which is declared in writing prior to shipment and inserted in the bill of lading.
Respondent, therefore, while admitting liability for the damage to libelant's yacht, claims that libelant's failure to declare a value for his yacht1 limits respondent's liability to $500 under clause 23 of the bill, quoted above. This contention is bottomed on a finding that the yacht is a "package" within the meaning of clause 23. Libelant, however, will recover the full measure of the damages he seeks (assuming proof of the quantum of damages upon a reference) if the yacht is "goods not shipped in packages." For, in that case, clause 23 of the bill limits respondent's liability to $500 per customary freight unit. The customary freight unit is the "unit upon which the charge for freight is computed." Petition of Isbrandtsen Co., 2 Cir., 1953, 201 F.2d 281, 286. Since the freight charge was computed on a unit of 40 cubic feet and the shipment contained over 100 such units, the limitation of liability will be set, under libelant's theory, at over $50,000, more than enough to allow libelant to recover the damages he here seeks.
The issue in this case, accordingly, is not whether libelant, having secured the cheaper freight rate by not declaring the value of his yacht, may now be heard to claim that the respondent's liability is not limited. Cf. Pan-Am Trade & Credit Corp. v. The Campfire, 2 Cir., 156 F.2d 603, 605, certiorari denied, 1946, 329 U.S. 774, 67 S.Ct. 194, 91 L.Ed. 666. The issue is simply the measure of respondent's limited liability.
The Carriage of Goods by Sea Act, 49 Stat. 1207 (1936), 46 U.S.C.A. §§ 1300-1315, does not regulate the carriage of "cargo which by the contract of carriage is stated as being carried on deck and is so carried." 49 Stat. 1208 (1936), 46 U.S.C. § 1301(c). Accordingly, that Act had no application ex proprio vigore, to the instant shipment.
Turning to the bill itself, then, we find "on deck" shipments to be regulated by Clause 13. That clause, quoted above, provides, in pertinent part, that the "custody and carriage of such goods shall be governed by the terms of this bill of lading and the carrier shall have the benefit of all and the same * * * limitations contained in said Carriage of Goods by Sea Act, notwithstanding Sec. 1(c) thereof * *." The incorporation of the Carriage of Goods by Sea Act in a bill to cover shipments not otherwise regulated by that Act, is permissible. Waterman S.S. Corp. v. United States Smelting, Refining & Mining Co., 5 Cir., 155 F.2d 687, 691, certiorari denied 1946, 329 U.S. 761, 67 S.Ct. 115, 91 L.Ed. 656; Petition of Isbrandtsen Co., 2 Cir., 1953, 201 F.2d 281, 285. Applying general contract interpretation principles, the particular reference to the Act as containing the measure of respondent's limited liability overrides the general reference to the bill as a whole for determining matters of "custody and carriage," if the Act and the bill contain different limitations.
The Act contains the following provision regarding limitation of the carrier's liability:
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