A. Salomon, Inc. v. Compagnie Generale Transatlantique

• Decision Date: 13 February 1929
• Citation: 32 F.2d 283
• Parties: A. SALOMON, Inc., v. COMPAGNIE GÉNÉRALE TRANSATLANTIQUE. WOOD & SELICK v. SAME.
• Court: U.S. District Court — Southern District of New York

32 F.2d 283 (1929)

A. SALOMON, Inc., v. COMPAGNIE GÉNÉRALE TRANSATLANTIQUE.

WOOD & SELICK v. SAME.

District Court, S. D. New York.

February 13, 1929.

Bigham, Englar & Jones, H. N. Longley, and E. G. B. Fox, all of New York City, for libelants.

Joseph P. Nolan and Edward J. Garity, both of New York City, for respondent.

BONDY, District Judge.

The above-entitled suits brought to recover damage to merchandise by sea water were tried together. The bills of lading in both contained the same terms and conditions. They were issued in France, in the French language, by the respondent, Compagnie Générale Transatlantique, for shipments in French vessels from ports in France, and were transferred to libelants for value. They provided that all litigations arising out of the interpretation or execution of the contract or bill of lading shall be judged according to the French law at the tribunal of the place indicated in the bills of lading.

The respondent contends that the contracts of carriage are governed by French law, and that under the French law all rights of libelants for damages to the goods were extinguished one year after the arrival of the ships, and that, inasmuch as these suits were not brought within that year, the libels should be dismissed.

An expert called by the respondent testified that the French Civil Code, by section 5, article 1234, provides that obligations are extinguished by prescription; that section 433 of the French Code of Commerce, which is contained in the chapter dealing with prescription, provides that all claims for the delivery of goods, or for damages for valid losses or delay in the carriage of them, shall be prescribed one year after the ship's arrival, and that other sections of the Code deal with procedure; and that, therefore, failure to bring the suit within the statutory period, not only barred the remedy, but extinguished all rights under the contracts.

In standard text-books the words "sont prescrite" of section 433 are translated into "are barred," not into "are extinguished." See Commercial Laws of the World, § 433.

The bills of lading do not expressly provide that rights thereunder shall be extinguished, or suits thereunder barred, unless action is brought within a fixed time, nor do they set forth or refer to any of the provisions of the French law relied on by the respondent. On the contrary, they expressly state that litigation arising out of the interpretation or execution of the bills of lading shall be judged according to French law. Whether a remedy is barred or a right extinguished one year after the arrival of a ship has nothing whatsoever to do with the interpretation or execution of a bill of lading.

"It may be stated that as the law of prescription of a particular...