The Turret Crown
| Decision Date | 21 October 1922 |
| Docket Number | 1958. |
| Citation | 284 F. 439 |
| Parties | THE TURRET CROWN. v. COMMONWEALTH S.S. CO., Limited. VULCANITE ROOFING CO., Inc., |
| Court | U.S. Court of Appeals — Fourth Circuit |
Harold V. Amberg, of New York City (D. Roger Englar, of New York City, and Henry H. Little, of Norfolk, Va., on the brief) for appellant.
John M Woolsey, of New York City (Edward R. Baird, Jr., of Norfolk Va., on the brief), for appellee.
Before KNAPP and WOODS, Circuit Judges, and GRONER, District Judge.
This case is here on appeal from a decree of the United States District Court for the Eastern District of Virginia. The action was commenced by a libel in personam filed May 20 1920, to recover damages in the sum of $275,000 sustained by a cargo of roofing material shipped on the steamship Turret Crown, for carriage to Genoa, under bills of lading issued on the 15th day of February, 1918. The Turret Crown sailed from New York for Genoa on February 25, 1918, and, encountering heavy weather, sustained serious damage, necessitating her return to New York, where she arrived and discharged a part of her cargo the latter part of the following March, having previously put into Boston for temporary repairs. Upon completion of repairs, and about July, she resumed her voyage and delivered the cargo, with the exception of certain portions which had been consumed in her efforts to regain port or were too badly damaged for reloading.
On May 3d, while the vessel was still at New York, appellant filed a libel in rem to recover $125,000 as damages alleged to have been sustained by the cargo. The owner of the vessel (appellee) appeared in that proceeding as claimant, filed a stipulation in the sum of $100,000, and the vessel was released from arrest. An opinion dismissing the libel has recently been handed down by Judge Ward. 282 F. 354.
In May, 1920, two years after the original proceedings were begun, this libel was filed. The respondent answered, certain interrogatories were propounded and answered, a replication was filed, and the case was heard in the lower court on a motion to dismiss on the pleadings. The learned judge of the lower court was of opinion that by paragraph 1 of the bill of lading under which the cargo was shipped, exempting the carrier from liability 'for any claim whatsoever unless written notice thereof shall be given to the carrier before removal of the goods from the wharf,' and further providing that 'no suit to recover for loss or damage shall in any event be maintainable against the carrier unless instituted within three months after giving of written notice as above provided,' the suit could not be maintained, and entered a final decree in November, 1921, dismissing the libel with costs. 275 F. 961.
The argument before us for a reversal of the decree of the lower court is based upon the claim that the 'written notice' required by the terms of the bill of lading was in fact given in apt time before the suit hereinbefore referred to was instituted in the New York district, and that the notice thus given was sufficient for all time and for all damage to, or loss of, the merchandise; also, that the restrictive clause upheld by the decision of the lower court, requiring notice and suit within the respective periods mentioned, is invalid because it is neither just nor reasonable, and should not be construed to exempt the carrier from loss arising from its own negligence. A third point, apparently not discussed in the lower court, but seriously urged before us, is that the 'deviation' in the voyage of the vessel, namely, her putting back for repairs and her detention in port until the following July, lost her owners the benefit of the terms of the bill of lading, and that the same no longer apply.
Enough has been already said, perhaps, to show that the libel as filed in the lower court is drawn to cover damage by water and oil occurring on the original voyage. Nothing is alleged tending to show that there is any claim of damage occurring after the repairs were completed and the voyage begun the second time. It will therefore be seen that such damage as a recovery in this action is asked for existed at the time the original libel was filed, but in justification of its failure to include such claim for damages in the then pending action, it is claimed by libelant that the extent of the damage was then unknown and continued so unknown, in the exercise of reasonable diligence, for a further period of more than two years; and it therefore insists that this proceeding is properly supplemental to that begun in the New York district, and that therefore no further or other notice than that originally given is necessary, and equally of course no point can be made as to the delay in beginning the action.
And this brings us to a consideration of the case as made. Admittedly, notice of a claim was given within the requisite time before the suit was instituted in the New York district, and it is also admitted that in the notice so given the damages were estimated at $125,000. The action which was thereafter begun in that district, predicated upon the claim thus made, was undetermined for at least three years, and when finally heard and decided was upon the record as originally made.
No attempt was there made to amend the pleadings or to enlarge the claim of damages up to the time this action was begun. The proceeding in the New York District was neither abated, nor was a nonsuit suffered. It is difficult, therefore, to understand upon what theory the action begun in Virginia can be said to be properly supplemental to and affected by the equities obtaining as to the one in New York. Judge Waddill, who heard this case and decided it in the lower court, gave careful consideration to this aspect of appellant's claim, and rejected it, holding that, so far from the notice in the New York suit being notice in this, the contrary was true, 'as the respondent had the right to suppose that the suit (there) was brought to cover the libelant's damage. ' We think no other conclusion than this possible, and our decision must therefore turn upon the validity and reasonableness of the terms of the bill of lading, and, if valid and reasonable, whether effective or lost as we shall determine the question of deviation.
The restrictive clause in the bill of lading, now invoked by appellee, provided, as we have shown, that the carrier should not be liable for any claim for damage to or loss of cargo unless written notice of the same should be given the carrier before removal of the goods from the wharf, and that no suit should be maintainable unless instituted within three months after the receipt of the written notice. If the question in this case depended upon the reasonableness of the provision requiring notice before removal of the goods from the wharf the position of appellant would be stronger, for we can easily conceive of circumstances in which such a provision would be entirely reasonable, and of others in which it would be equally unreasonable, and it would seem to us that its reasonableness or unreasonableness should be made to depend upon the facts in each particular case. If the damage was open and obvious, or such as in the exercise of ordinary care could be discovered before the removal of the goods from the wharf, undoubtedly it would be the duty of the owner to give immediate notice, where provision for the same had been exacted, and the insistence upon such a provision under such circumstances would not be a hardship of which he could complain. On the other hand, where the character of the damage was such as not to be easily discernible, or where unpacking or inspection was necessary, and this could not be had on the delivery platform of the carrier, such a provision, undoubtedly, would be burdensome, and ought not to be enforced. But, admittedly, no question of this kind can be said to obtain in this case. Here, no notice-- if our view that this is an independent action dependent upon its own facts be correct-- was ever given; and, on the other hand, even if we accept appellant's view that the notice given before the commencement of the New York proceedings applied here, we should be forced to hold that under the circumstances, and in view of the long and unjustifiable lapse of time between that notice and this suit, appellee had an absolute right to rely upon the...
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