97 F. Supp. 853 | D. Del. | 1951
This is a review of the decision and conclusions of the Referee in bankruptcy acting as Special Master with respect to a claim for $12,834.85 in an Arrangement Proceeding of the Debtor. The facts were stipulated between the parties. On January 24, 1947, Bullock’s, Inc., the claimant (hereinafter referred to as Bullock’s), delivered in New York to Debtor, California Eastern Airways, Inc., a Delaware corporation (hereinafter referred to as California Eastern) three shipments of merchandise to be carried by California Eastern to Los Angel-as, California, where Bullock’s operates a store. The merchandise consisted of 137 cartons, weighing about 2,343 pounds, of clothing and millinery in good order and condition. California Eastern was a nonscheduled cargo air carrier engaged in in
After Debtor came under the jurisdiction of this court in Arrangement Proceedings under the provisions of Chapter XI of the Bankruptcy Act
Claimant has filed exceptions to Conclusions of Law Nos. “3”, “5”, “7”, “8” and' “9”. For purposes of logical presentation,, these exceptions were argued by counsel-' somewhat out of chronological order and' will be discussed in that fashion.
1. Claimant asserts Conclusion of Law-No. “5” is contrary to the evidence and the-
I agree with the implied holding of the Special Master that Debtor in admitting •“liability” was, merely stating that it was, .by the terms of the contract of November 25, 1946, liable to pay to Bullock’s the sum of 500 per pound for any loss suffered by Bullock’s in the absence of any greater value declared by Bullock’s and absent any proof of negligence of Debtor.
That this is the correct interpretation of Debtor’s words is manifestly seen when it is asked, “on what basis did Debtor decide it was liable in the amount of $1,171.50?” The total weight of Bullock’s entire shipment was 2,343 pounds. When the total weight is multiplied by 500 per pound (the contractual amount of liability which must be used since Bullock’s did not declare any excess value), the result is the sum of $1,171.50, the exact figure set forth by Debtor in stipulation No. “XII”. In fact, only part of the 2,343 pounds was jettisoned. The 777 pounds actually lost, multiplied by 500, i. e., $388.-50, is the proper amount which Bullock’s is entitled to recover under its contract with California Eastern. The fact Debtor mistakenly computed its contractual liability on the basis of a loss of the entire shipment did not bar it from bringing forward to the Special Master’s attention the actual fact that only 777 pounds of Bullock’s property was lost. Bullock’s assertion now that it relied on Debtor’s words as disposing once and for all of the issues of negligence and liability, is without merit for Debtor’s admission of its contractual liability was not in any sense a legal admission of negligence on its part.
If Bullock’s desired to be covered for any loss in excess of 500 per pound in a situation such as this, where there is no evidence the carrier-debtor was negligent, Bullock’s could have declared the excess value and paid for such protection according to the terms of the November 25, 1946 agreement. , Bullock’s apparently decided such additional protection was unnecessary. Accordingly, it is bound by the terms of its contract.
2. The second point of Bullock’s position is that assuming arguendo the 500 per pound limitation is applicable, the minimum liability of Debtor is $1,171.50 rather than the $388.50 found by the Special Master. Bullock’s, in excepting to Conclusions of Law Nos, “3”, “7”, “8” and “9”, seeks to draw a distinction between the “amount” of the carrier’s liability and the “fact” of liability. Bullock’s point is that the 500 per pound valuation provision in paragraph No. “5” of the agreement
Bullock’s contention that it is entitled to at least $1,171.50 calls for discussion of paragraph “9” of the contract.
3. I conclude the contract of November 25, 1946, between Bullock’s and Debtor is free from doubt or ambiguity. The report of Stewart Lynch, Esq., Special Master, as to the claim under review will be adopted; all objections thereto are overruled; and the recommendation of the Special Master that the claim of Bullock’s be allowed in the sum of $388.50, less the set-off of $127.-40 for freight charges admitted to be owing by Bullock’s to Debtor, is affirmed.
. 11 U.S.C.A. ch. XI, §§ 701-799.
. Stipulation, No. XII.
. Conclusion of Law No. “1”.
. Conclusion of Law No. “2”.
. Conclusion of Law No. “3”.
. Conclusion of Law No. “4”.
. Conclusion of Law No. “5”.
. Conclusion of Law No. “6”.
. Conclusion of Law No. “7”.
. Conclusion of Law No. “8”.
. Conclusion of Law No. “9”.
. Stipulation, No. XII, see n. 2, supra.
. “5. With respect to non-perishable cargo only, the Carrier has provided insurance against all risks of physical
“The insurance provided shall not exceed $50.00 for any one shipment of 100 pounds or less, or 500 per pound, gross weight, for any shipment in excess of 100 pounds, unless a greater value is declared, paid for and stated on the Airbill. In no case, however, shall this insurance exceed the actual value of the shipment.
“If a value is declared in excess of the released valuation as stated above, such excess value will be charged for at the rate of 100 per $100.00 declared value.”
. “9. The Carrier will hold the Shipper harmless against public liability and property damage claims of third parties resulting from the operation of the aircraft by the Carrier, provided that the Shipper promptly notify the Carrier of all such claims made against the Shipper, and, in the event of an accident involving the aircraft or its cargo, will also hold the Shipper harmless against loss or damage to the extent of the Carrier’s liability therefor up to the actual value of the cargo, but not to exceed $100,000 per plane load; but in any event the Carrier shall not be liable for any loss, damage or delay other than directly attributed to negligence on the part of the Carrier except as provided in Paragraph 5 above. The Carrier, if requested, shall furnish the Shipper with a copy of insurance policies or certificates which shall be satisfactory to the Shipper in all respects.”
. The situation in Taccetta v. Chauncey Rice & Rogovin, Inc., D.C.S.D.N.Y., 75 P.Supp. 373, cited by Bullock’s, is not applicable to the case at bar unless it be first assumed that Debtor was negligent. That is not the case, here, in fact or ia law.