The New England

• Decision Date: 15 July 1901
• Docket Number: 1,154.
• Citation: 110 F. 415
• Parties: THE NEW ENGLAND.
• Court: U.S. District Court — District of Massachusetts

110 F. 415

THE NEW ENGLAND.

No. 1,154.

United States District Court, D. Massachusetts.

July 15, 1901

Walter C. Cogswell, for libelant.

Thomas J. Gargan and Sewell C. Brackett, for claimant.

LOWELL District Judge.

In this case, the libelant, a passenger, delivered to the Dominion Steamship Company, at its dock in Boston, alongside the steamship New England, a trunk containing suitable wearing apparel for herself only. When she arrived at Liverpool the trunk was not to be found, but several days later was forwarded to the address she had left with the company's agent at Liverpool. At the time she received the trunk its lock had been tampered with, and when that was forced the trunk was found empty. The steamship company, though pressed in correspondence by the libelant, and though challenged in open court, failed to explain the delay in delivery, or to introduce any evidence concerning the treatment of the trunk while detained in its hands. This failure of the libelee to introduce evidence within its sole possession justifies the court in finding that the trunk was broken open and rifled by the company's servants, and that this fact became known to the managers. Whether the conversion occurred in Boston, at sea, or in the British dominions does not appear. The inference regarding the conversion is strengthened by the discourteous letters written by the company's managers in Liverpool to the libelant, a woman traveling alone, when she pressed them with inconvenient questions.

The passenger ticket stated on its face, and above the signature of the company's agent:

'The company will use all reasonable means to insure the ship being sent to sea in a seaworthy state and well found, but is not otherwise liable for loss of, or injury to, the passenger or his luggage, or delay in the voyage, whether arising from act of God, queen's enemies, perils of the sea, rivers, or navigation, barratry or negligence of the company's servants (whether on board the steamer or on shore), defect in the steamer, her machinery, gear, or fittings, or from any other cause of whatsoever nature. The passenger shall not be liable, in respect of his luggage or personal effects, to pay, or to be entitled to receive, any general average contribution. It is further agreed that the company shall not be held liable in excess of fifty dollars for loss or injury to specie, money, jewelry, bullion precious stones, or other valuables (unless they are given to the purser, and a special receipt given therefor), or loss of or injury to baggage, unless the value of the same be declared before shipment, and freight paid accordingly. It is further agreed that passengers shall see that baggage required during the voyage shall be distinctly labeled and, in the event of neglecting so to do, the company shall in no manner be held liable for its loss or delay in delivery. It is further agreed that all questions arising on this contract shall be decided according to English law.'

According to the English law, common carriers may exempt themselves by express contract from responsibility for losses occasioned by the negligence of their servants. By the law of this country, as laid down in the opinions of the supreme court, such an express contract is contrary to public policy, and consequently void. 'It may therefore be assumed that the stipulation now in question (a stipulation similar to that contained in the clause of the ticket first above quoted), though invalid by our law, would be valid according to the law of Great Britain. ' Liverpool & G.W.S. Co. v. Phoenix Ins. Co., 129 U.S. 397, 447, 9 Sup.Ct. 469, 474, 32 L.Ed. 788, 794.

This court has therefore first to determine whether the question of public policy is to be answered according to English opinion or that prevalent in the federal courts. In spite of the clause of the ticket last quoted, Judge Nelson held in this district that the English law did not govern, and that the attempt to exempt the company from liability for the negligence of its servants had failed. The Iowa, 50 F. (C.C.) 561. The matter has not been determined by the supreme court, though discussed by that court more than once. In Liverpool & G.W.S. Co. v. Phoenix Ins. Co., 129 U.S. 397, 9 Sup.Ct. 469, 32 L.Ed. 488, much stress was laid upon the intention of the parties in determining what law was to govern; but on page 462, 129 U.S., page 479, 9 Sup.Ct., and page 799, 32 L.Ed., it was expressly stated that 'the present case does not require us to determine what effect the courts of the United States should give to this contract if it had expressly provided that any question arising under it should be governed by the law of England. In Compania de Navigacion la Flecha v. Brauer, 168 U.S. 104, 118, 18 Sup.Ct. 12, 42 L.Ed. 398, the supreme court again expressly declined to pass on the question, while citing several cases which support Judge Nelson's decision in The Iowa. In Knott v. Worsted Botany Mills, 179 U.S. 69, 21 Sup.Ct. 30, 45 L.Ed. 90, a stipulation that the law of England should govern was held ineffective against the provisions of the Harter act; and in Calderon v. Steamship Co., 170 U.S. 272, 18 Sup.Ct. 588, 42 L.Ed. 1033, the public policy of this country expressed in the Harter act was likened to the general public policy which prevents a carrier from exempting himself from liability for his servant's negligence. In the inferior federal courts the weight of authority is with Judge Nelson. The Iowa was expressly approved in Worsted Mills v. Knott, 27 C.C.A. 326, 82 F. 471, by the circuit court of appeals for the Second circuit. A like provision inserted in a passenger's ticket between Belgium and New York, the steamer being American, was held void by the same court in The Kensington, 36 C.C.A. 533, 94 F. 885. See, also, The Energia (D.C.) 56 F. 602; The Hugo (D.C.) 57 F. 403; The Glenmavis (D.C.) 69 F. 472. The authority of these cases outweighs that of The Oranmore (D.C.) 24 F. 922, which was affirmed in the circuit court, without any statement of reasons, by Judge Bond. 92 F. 396. The opinion of Judge Morris in the last-mentioned case treats the matter as one to be determined by the intention of the parties; but, as was said by Judge Butler in The Glenmavis:

'The intent of the parties in this regard as thus expressed is therefore immaterial. In every instance where the courts have declared such stipulations void, it has, of course, been against the express agreement of the parties. We have determined that such contracts are harmful and wrong; that they tend to encourage negligence, and justify oppression; that they affect injuriously, not only the immediate parties, by the public at large; and that they are therefore unlawful.' 69 F. 476.

It is true that in The Majestic, 9 C.C.A. 616, 60 F. 624, it was held that where the steamer was English, and the contract made in England, the English law governed, and was enforceable in the federal courts, in spite of the public policy of the United States; and this even in the absence of a clause expressly providing for the application of the English law. The supreme court, in reversing the decision of the circuit court of appeals for the Second circuit,...