Isthmian Steamship Company, a Corporation v. California Spray-Chemical Corporation, a Corporation, 300 F.2d 41

Isthmian Steamship Company, a Corporation v. California Spray-Chemical Corporation, a Corporation

300 F.2d 41

9th Cir.

1962

Check Treatment

*1 41 nell, Cir., 1939, 10 106 the burden F.2d 979. So it more than This is sub. c. For was going also to loss of assets. evidence. Re forward with “ * * * Shapiro Ornish, N.D.Tex.1929, bankrupt risk & now has 37 F.2d 403, Cir., ultimately 5 persuading affirmed 37 F.2d 407. 1 the Court Col- lier, Bankruptcy 14.59, allegations specifications are at 1401. § in a state If the evidence is untrue. Affirmed equilibrium, substantial bankrupt has must denied since the carry proof.” 1 failed to burden his 14.12, Collier, Bankruptcy 1292-93 § figure (footnotes omitted). m- In a

digenous foundering, to a financial “ * * * prima once facie case laboring pears, passes his oar bring

hands and he boat Er- shore.” Federal v. Provision Co. COMPANY, ISTHMIAN STEAMSHIP showsky, Cir., 574, 2 94 F.2d Corporation,Appellant, v. CA Second, the 47 terms of General Order L explicit. ordinarily are Referee IFORNIA SPRAY-CHEMICALCOR findings make, here, as he did “his PORATION, Corporation, Appellee. fact and conclusions of law.” And when No. 16812. judge done, accept “the shall his find- so ings clearly erroneous,” of fact unless Appeals United States Court of U.S.C.A, following 47, 11 Ninth General Order Circuit. Collier, Bankruptcy 2 section 53. 26, 1962. 39.- § Jan. Third, at 1473. we review the action Judge District whose affirmance of brings the application play Referee’s order into stage judicial to this proceeding principles “clearly akin to the concept.

erroneous” Cf. United States Company

v. Twin Cities Power of Geor- gia, Cir., 1958, 5 253 F.2d 197. amply

There was evidence which finding

warranted the Referee’s Bankrupt satisfactorily had not overcome showing. piima Indeed, facie there enough quite to warrant the Ref ^ finding eree s affirmative that the books inadequate

and records were in serious respects, and substantial and that Bankrupt explain had failed to satisfac

torily exceeding the diminution in assets $100,000. equally It is clear that as to sufficiency of the books the Referee light evaluated facts legal standards. See In re Under- hill, Cir., 1936, 258; 2 82 F.2d Nix v. Sternberg, Cir., 1930, 611; 8 38 F.2d In Lewine,

ternational Cir., Shoe Co. v. 517; Marx, Cir., 68 F.2d In Re 335; Leichter, F.2d In Re Cir., 1952,197 955; Hedges F.2d v. Bush- *2 McCutchen, Doyle, Enersen, Brown & MacKey Bryant A. Russell K. Zimmerman, Francisco, Cal., San for

appellant. Hall, Henry, McReavy, by Oliver & Henry Lyman Stephen McReavy Francisco, Cal., appellee. San POPE, BARNES, Before and HAM- Judges. LIN, Circuit rehearing petition On vigorous filed a and extensive1 brief. petition rehearing Appellant’s reargument 1. filed this case was a longer pages opening appeal. than its eleven brief In addition to the seventeen cases closing appellant’s original brief combined. which were cited in frequency increasing opening brief, thirty With counsel seem and the additional confusing petition reply brief, the function of a in his seventeen additional rehearing rehearing itself, petition were cited on the cases for rehear- hearing petition ing. 627, particularly a'sec- See Cal.L.Rev. petition appeal. rehearing p. ond made, been regarding Once all questions raises It liability, however, as far the carrier’s before which were main issues concerned, at an end. the Harter Act is original consideration (cid:127), is, determine rehearing, therefore essential granted peal. We *3 delivery is, proper when such length, what argued again at matter was completed. court below The judgment again below. affirm appeal and this court on held Lighterage Validity of the 1. general by proper delivery, as defined Clauses. cargo law, occurred when maritime rested, essential- This court’s deposited proper upon was a fit and reasoning ly, upon embodied there wharf. contends decisions Both decision. trial court’s no was or maritime rule common law contract, by cannot, hold that quiring such and chides negligent injury liability avoid discovering rely- court for rule such a cargo injury before occurs such ing upon a dictum in Hi v. United Tan prop- cargo a fit is delivered to States, N.D.Cal.1950, F.Supp. 432. 94 an from This result stems er wharf. true cite and this court did Act, 1 of plication of Section rely upon Hi, Tan but Tan Hi in turn 190. 46 U.S.C. § upon only cases, relies numerous one adopted Harter Act was The by appel-' which is cited or discussed “ * * * remedy which abuses lant. These cases establish the existence through the efforts had arisen (maritime) of a common law engaged shipowners car- in common part deposit on the of the carrier to or riage unreasonably their ob- limit goods “land” the on a wharf. As stat goods. ligations Sec- as carriers Mary Washington, ed in The 16 Fed. 190, (46 1 and 2 U.S.C.A. §§ tions page 1006, 9,229, duty Cas. No. “The 191) them- forbid them to relieve of a carrier water is not fulfilled responsibilities from certain selves transportation port port. from The public calling, even to their incident by goods delivered, must be or at least shippers with contract * * Eddy, landed And in The * * (Koppers Connecticut 1886, 481, 495, 495, 481, 5 Wall. 72 U.S. McWilliams Co. v. James Coke 486, 18 L.Ed. it was said: “Where the 1937, Line, 89 F.2d 865 2 Cir. Blue carry port is to contract water from 866.) at port goods an actual part, pertinent 1 Section of the Act In possession into the of the owner or con provides: signee, warehouse, or at his is not re lawful “It not be shall quired in order to the carrier agent, master, manager, or owner liability. He from his deliver them * * * * * any to insert in vessel (Emphasis on the . wharf * * * lading any any bill of added.) Titania, 2 1904, The Cir. 131 agreement covenant, clause, 230, 229, the court F. noted that: “In whereby he, it, shall be re- delivery, order to make a valid which re liability for loss or dam- lieved from age liability, from lieves the it is nec arising negligence, fault goods essary question show that the * * loading, proper stow- or failure landed were wharf age, custody, care or deliv- added.) (Emphasis See also Vose v. Al * * Any ery and all words page len, 17,006; 28 Fed.Cas. 1283 No. import inserted clauses Illinois, page 259, 29 Fed.Cas. No. * * * shall be null bills Grafton, 17,185; 10 page Fed.Cas. void effect.” 5,656 page No. aff’d. 10 Fed.Cas. 5,655 seem, then, Parsons, and 2 attempt No. On It would Cont racts, pp. 5 ed. to avoid 190-193. We loss- also arising quot- dictum in Tan Hi before note fail. es Norjac length, freight approval, ed L.Ed. 412. The in- basic rate Trading Thorden, unloading. Corp. v. The Mathilda cludes the cost of Under Indeed, E.D.Pa.1959, F.Supp. case, Alexandria, facts of this the car- obliga- general rier hired a ing. carrier’s maritime contractor to unload- do the deposit tion not That contractor in this case also segregate wharf, operated duty a fit Its consignee’s goods general Storage Egyptian deliver from the Petroleum consignee Company agent give Egyptian notice and to for the cus- Titania, g., (See paid of their toms arrival. e. authorities. The carrier then, stevedoring 229.) is, put 2 Cir. F. There onto *4 lighters. strong consignee support the by The for existence of was notified requir- carrier, prior “common law” or rule maritime to arrival at Alex- ing delivery bill andria : to a unless the wharf lading specified Appel- of elsewhere. congestion “In view of the exist- lant’s rule assertion that this was ing present petroleum at urged by appellee and not briefed was quays, materially impossible it is patently is v. incorrect.2 See Calderon your cargo deliver hours 48 after Co., .1898, 272, 18 S. Atlas S. 170 U.S. discharge. would, We therefore 588, 1033, S.Ct. 42 The Dela- L.Ed. preciate arrange you it if could 516, ware, 1896, 459, 161 16 S.Ct. U.S. your lighter ready upon have own 522-523, 40 L.Ed. 771. delivery vessel’s arrival to take of * * * consignment. giving Failing pro In effect to the arrangements lading, above, to make of a bill visions the conditions obliged charge you would be and circumstances which the evidence lighters proves hire parties were known to the 48 after ship’s discharge.” by making (Em- contemplated hours it, them in are phasis added.) (Exhibits F.) E to be taken into consideration. Pacific Independent Transp. Coast Co. v. Yukon provided by No such was Co., 1907, 29; Cir. F. W. R. Grace consignee. lading provided The bill of Inc., Co., & Co. v. Frank Waterhouse & (in paragraph 15): 264 F. Cir. 422. We believe lighter “If the carrier elects to parties here the ligation understood that the ob goods lighters op- in or with craft created between them by it, erated or controlled the car- receipt to the wharf. No was rier shall have the benefit all the by nor obtained asked terms bill of this with re- lighterman. But when the spect lighterage, to such lighters goods customs, left the a re ship- collect the cost thereof from by ceipt was then obtained the carrier. consignee.” per (Emphasis add- lighter Again, sank, it was ed.) carrier who was notified of the loss. Interrog. 18(a) (1).) (Answer, in An Thus the carrier contracted under the made, spection of the was assumption lighters that there could be prior respondent, both to and immedi used to effect which would be following loading ately lighter, operated or controlled breaking after loose and first and discharge delivery. charge prior fact, Quay (Ans. “onto 58.” to In consignee forty-eight made until terrog. 16.) deposit by ship’s hours after tackle charge Any onto the every Admittedly carrier is re freight charged cargo “swallowed” in the rate sponsible place. the carrier for from the vessel a safe at Alexan- Tangier, 1859, 23 How. 64 U.S. dria. Appellee’s Brief, pp. 8-10. See

AR language ery, upon forty-eight relied and the urges pure appellant dictum. charge” obiter part tariff— “no hour rule maritime this court accept which that statement. and we Exhibit is, the court below relied we continue printed in only part of Exhibit strong authority believe, supported by 13) (p. appeal transcript on of record by any quay carriage which is not diminished author- from one lates ity argument presented appellant. dis- her effected the steamer “where charge,” quays. provision That to other point again At this would applicable. is not here position insist that his has been mis- represented. by point is, His as evidenced rehearing appel- petition for On the heading argument page of his great places on a case reliance lant eight petition rehearing, many (with others) appear general recognized maritime law & Co. opening R. brief: W. Grace lighterage agreements and that there- Co., Inc., supra. & v. Frank Waterhouse fore the require common did law goods con- That involved the signed delivery. wharf suggested, Thus it is California, Francisco, to San “proper delivery” referred Seattle, Washington, were where *5 permits agreements Harter Act delayed by and dam- a stevedore’s strike provide lighters delivery to as well aged. parties The knew there had delivery to a wharf. transshipment, Fran- a because San such port ves- not a call for the cisco was But the Harter Act be Egypt, Alexandria, interpreted light San sel. Francisco, unlike in law common “beyond port was, by was not a as it agreements unmodified the transshipment, permitted. call.” there no seen, Here was which it As we have on-carriage contemplated re- very no purpose of the Harter — Act was quired beyond port prevent The to avoiding call. the carrier from its — port Alexandria, responsibilities by call here was common law the de carriage which, farther, securing “agreements” con- and vice of which in by templated parties exculpatory both contract. cluded clauses. To define the common imposed law standards Appellant authority which cites some the Harter Act reference to con suggests that in- the carrier was not tractual modifications which the common variably required to deliver to a wharf. permitted, destroy obviously law would Tangier (Rich- it is Thus stated in The say the permits To Act. that the Harter Act Goddard), ardson v. 23 How. “agree” parties U.S. L.Ed. that the carrier delivery per because the common law “is not bound to deliver at warehouse “agreements,” mitted perpetu such is to consignee; duty it is the sought ate eradicate; evil which the Act consignee goods receive the out of viz. the cession “contract” ship (Id. 39.) p. This wharf.” rights which would exist. otherwise when, dictum, however, does not tell us brings consignee is, may us to what our where or how the be quired goods opinion, point ship.” pe main “receive out in its rehearing. Appellant phrase merely tition for Indeed the mean contends that consignee (at 32-37) might pp. 24-27 and in some Section instances delivery directly of the Harter Act does not deal off with the take ship scope of the carrier’s docked to de it has at a wharf. Act, nothing appellant asserts, There is liver. in that to in- whether, general dicate a determine when or where carrier under cargo. maritime must deliver the law and in the the carrier absence of a agreement avoiding special only prevents the carrier from could terminate his arising obligation by negligence liability depositing from for loss delivery, has, fact, when the ease deals cargo. requirements proper of a deliver wharf deliv- undertaken contention, supersedes Acceptance Act, we such a Harter the Har- but Act, during believe, applicable pe- and ter Act weakens the is still following discharge purpose. spirit riod runs counter de- before may livery. If, delivery” provides however, “proper the carrier The Act liability completed due for loss is not relieve itself of as soon as the leaves negligence ship’s custody, tackle care and is received delivery cargo. proper lighterman, have provisions As the Harter Act seen, accomplished proper is can operative. never become logically placed position wharf. asserts when the on a fit is that this in- ; discharge which correct In the it instant maintains that caused the loss occurred often “at occur in- same before If, delivery' stant, accomplished. proper different [that] involve then, obligations (Petition, p. clause involved bill functions.” 16.) Appellant points harm- out, example, here is sufficient save less, will circumvent- if Act have been were to deliver to “wrong party,” ed. carrier will. have inserted it would be liable for * * * * * whereby “improper delivery.” hand, “clause it [was] On the other * * * directly consignee, relieved from for loss delivered arising negligence, fault, there proper or failure would immedi- * * * ately care, custody, upon discharge de- time without ** livery period operate. for the Harter toAct say appel- accept appellant’s do Let We not intend to us contention position unreasonably lant’s assumed that often occur *6 entirely simultaneously plausible merit. It is without that Act Harter argue appellant operate its for that period since then does not over of its operative ended contract with time but does have effect with undertaking transportation respect responsibility as as soon to the function and cargo deposited “delivery.” been the lighters, had of But even this limited any injury scope not for it is liable for Harter Act not ex- does which occurred after such appellant’s ist the instant under difficulty theory. appellant’s position in- with this It is that all terpretation obligations that the Harter Act seems of its terminated it contemplate liability lighterman a carrier which transferred the to the delivery” lighterman up “proper continues until its of choice. If the there- regardless effected, consignee, been of when the after not deliver to the transport wrongfully par- carrier’s the but delivers to another ty, appellant’s ceases. is the office of the Act that is none of affair. lading nullify any Appellant has, thus, successfully bill of clauses which con- destroy liability. diminish or Since tracted in such manner as to avoid only provide liability delivery. issue not improper the clauses in for for all Not lighterage, only during appellant period” also relieve there “time negligence during liability for from lighterage, operate, which the Harter can Act there they pro- run responsibility” counter to the is also no “function upon the Harter operate. visions of Act. The clauses Act can We are, therefore, purpose invalid insofar as think it clear lighterage purport appellant liability to relieve of clauses in issue here is to at- negligence during light- tempt responsibility due to for losses to avoid carrier for erage. delivery. improper But the Harter Act all attempts. makes unlawful such appellee contended As and as this pointed opinion, out in Appellant its' appel- further attacks the court's position scope holding’ appli- lant’s leaves no opinion claus- Carriage “entirely cation Act. The void.” es contends large of Goods Sea Act in measure the clauses are valid to the extent then, short, pp. (Petition, this court did not ren- they are reasonable that 20-24), appellant der the broad decision which claus- without that even arrange apparently authority thinks it rendered. The court es, appellant had 30-32). say prohibited did on-earriage that a carrier is (pp. necessary securing lighterage agreements peti portion of say agreements it did not that such are misreading upon a is based tion unlawful or invalid. It said did opinion, for the court court’s agree- exculpatory provisions of such invalid purport hold the clauses given ments are void and can be no ef- opinion did entirety. court’s their fect whatsoever—-for such is the com- believe, appellant seems hold, as mand of the Harter Act. for author contract a carrier cannot There is one other consideration cargo at lightering arrange ity importance. Appellant points out that only that expense; held shipper’s it it would not be liable the bill of relieve itself cannot a carrier Egyptian had called for to the lightering during occurring Stevedoring Shipping Company, delivery. To any time before Perhaps on-carrier. is so and it clarify and make this fact interesting point. Appellant raises an agreed suggest opin certain, more stevedore, not to deliver to the adding should amended ion port but to deliver of Alexandria. of” exculpatory provisions “the words By general applicability broad clause 42 on line “think” the word after right reserved all of F.2d, word after page 489 delivering responsibility page 491 of “entirely” 19 on line pres on-carrier its choice. The hereby are opinion. amendments Such ence of this standardized clause in the represent agree made. contract does not an ment shipper. between and the intimated that This court clauses simply unilaterally It is a condition im lieving liability during a carrier posed shipper; necessary lighterage, might, conceivably, scholars, in the words some it is an under held valid the Harter Act.- *7 contract,” “adhesion viz. a contract “in point. point- not decide the But it did party’s participation which one consists the clauses involved here ed out that (Ehrenzweig, of his mere ‘adherence’.” necessary limited to on-car- were Adhesion Contracts in Conflict of riage, exculpatory that since Laws, 1072, 1075; 53 Colum.L.Rev. see written, provisions, as are void under Dessler, Adhesion, also Contracts of 43 Act, simply be Harter cannot already 629.) have Colum.L.Rev. We conceivably applied a case where a adopted the Harter Act seen that might exculpatory apply. clause valid just agree prevent use of such false “Any clear on this: Harter Act is The * * ments which make “freedom of contract” ** * import of such clauses an illusion. null and void and no effect.” be shall carrier, by exculpatory provisions In the instant Thus, invalid lading contract, of such an adhesion could use has bill of be in “you shipper, will authorize given result is said no effect. This lighterage obtain & us to whenever we R. Grace Co. v. Frank with W. war much, Co., Inc., supra, it desirable.” This & deem have or Tat- Waterhouse seen, does not conflict with the Harter Kabushiki Kaisha v. Rob- Kisen summa opinion 1929, Cir., Co., the court’s does 9 not tam- 31 F.2d 401. Act Dollar ert portion lighterage per this with these cases dealt with ex- Neither Then, says, “fur- culpatory clauses that were conflict clauses. way thermore, responsi- Act, we shall in Harter for neither case your goods cargo occurring happens injury what dur- be- ble with dealt language lighterage.” ing delivery. is the fore opinion 272, 1851, Barnwell, which the court in its held to Clark v. 12 How. spirit very violative if not the let- 53 U.S. decided L.Ed. long adopted ter Act. before the Harter Act was is, therefore, here. of no relevance 2. Failure has, Appellant then, Show Carrier to establish failed Negligence. exculpatory provision un- that an —void der the Harter Act—nevertheless Appellant continues to maintain that vitality sufficient to shift the burden the bill of clauses are sufficient proof. point position The court’s on this proof shift burden of force the by logic stands its unrefuted shipper prove negligence. And such authority. negligence, appellant claims, has not been But shown. does not meet the that, pointed But the court out argument court, advanced and the event, neg- proof there was affirmative authority which he cites not under- does ligence, appellee so that had the even position. mine the court’s proof point, burden of on this trial Bellingham, might Cir. 57 F.2d court’s decision still be sustained. 1015, by dictum, conceded, as this court part, the court relied the infer support appellant’s po- contains some “unexplained” ence be drawn from the not, however, sition. The case sinking lighter. com- Appellant now appellant. mand a decision in favor of permissi- contends that no inference is sinking clause there in issue does not “explained,” even ble because the is purport ability to relieve the li- carrier from assertion conflict direct negligence prior delivery. appellant’s previous contention that cargo was, fact, Furthermore the proof de- there is “no lighter breaking cause fit and livered to a only sinking.” (Re- wharf adrift damage occurring issue concerned ply Brief, p. 15.) point need not be delivery. respect after such damage With to that labored, however, since the burden of had the burden proof point is sufficient to sustain the negligence. proving carrier The Harter original decision. Act was not involved nor could it have argument try renews its been since cape carrier did not to es- charged liability damage occurring amount be- management” delivery. ed “errors in wharf for which fore If it liable. seeks to establish Iciar, Cir., The Monte 167 F.2d exemption support appellant's position. does not again clauses, basis isit *8 attempt exculpate The carrier did not to provisions met of Section 1 of from itself gardless before re- Appellant claims, Harter Act. the ever, how negligence. of its own The bill (46 that Section of Act itself lading provision making of the carrier 192) provides exemp U.S.C. § an responsible leakage, breakage, “not tion. Section save (of spigoting” barrels) wine did not navigation regard harmless ing errors of purport save the to carrier harmless vessel, but it does not in terms negligently damage caused of the lighters, language apply (re to and its types lading enumerated. The bill of ferring transportation to the of mer paral- involved in this clauses case would any port”) “to or from chandise indi Iciar, if, involved lel the clauses in Monte that is cates not included. example, purported for appellant to relieve nothing is There indicate that Section responsibility of “for loss except coextensive with Section 1 * * damage (Em- appellant’s bald assertion that such is added.) phasis clause, unlike the 17). (Reply Brief, p. case Iciar, purports in The Monte clause negligence responsibility Furthermore, agree appellee avoid we removing cargo quay therefore runs afoul of the Harter Act. from a and lighter unseaworthy Party Interest 3. The Real into an placing it management, but error of an is not opening brief, appellant In its cargo. The of in the care argued proved appellee it had not cargo may been reloading have not of cargo. con self be the owner of the consti- negligently performed it did but only permissible infer tended that negligent act. a tute cargo passed title ence was that relying shipment on Cali at the of time agrees, the- its under Appellant even Code, 1739(4). fornia Civil But § an had ory that the court, applicability of pointed out lighter was to see 1739(4) depends upon of the terms § reasonably purpose for which fit evidence. not contract which were cargo placed have the was intended—to it originally shipper the own Since the was upon it. nothing was and since er sinking prima a established The fact change fact, it put in evidence to The dis- unseaworthiness. facie case of (in must as be assumed fact could court found: trict judgment sume)- support —- —in lighter her loose from “The broke tht owner of was still the during moorings has storm cargo. proved other had ex- been so have not been shown to certainly wise, not established had and it traordinary properly invoking cause 1739(4) as to any ground § * * * loose. moored craft to break ap position. The fact that support of its show [Respondent failed allege own to be the pellee itself did not it to defect which caused require this does not er discovered argument could have been sink appellant’s on accept inspection.” appel too late for now It is this issue. offering evidence affirmative lant Furthermore, pointed out, as the court ownership time of at the a transfer shipment exemption management for errors of 46). p. (Petition, only ship’s extends of inspection errors mas- to overcome the Appellant’s failure ter or crew and the theory unneces- “ownership” makes performed was the carrier’s long argument sary its consider agent (Ans. Interrog. 35). Appel- theory. also failure This same “trust” inspector lant now tells us that the (appellee’s issue fourth disposes agent; appellee not the carrier’s claim). give Since of its notice failure answering its brief had asserted that the interest, party in the real appellee was inspector agent (p. 24), terms under the it was forthrightly deny does not no- comply with the bill reply this assertion in brief. It as- provision. tice serted that the master and crew had original opin- Upon modification management” not “surrendered their judg- specified, the as hereinabove ion appeal with “an owner to resume is affirmed. below ment (Reply 17.) Brief, p. control himself.” An appel- uncontroverted statement in an *9 Judge POPE, (concurring Circuit may lee’s brief be taken as true. 5 C.J.S. result). the Appeal 1345, p. and Error 394. If § opinion I think the court’s While reach- pellant dispute inspector’s wanted to the result, agree I cannot a correct es with agency status, it should have done so part of the decision which up- that relies sooner the case. provisions Act, of the the Harter on management” purpose argu- the Thus the “error in U.S.C. invalidat- § ing part paragraph ment must fall on first either or the of the both of the grounds lading.1 originally upon. applicable relied bill of Paragraph entirety discretion, may 15 in its of its or Ms at reads as fol exercise any time, customary master, : “15. The lows carrier or whether or not and the any majority’s undertaking discover that scribe to the I unable to am given the “spirit Harter Act extend the the Act reference to its has ever majority opinion purpose”. the which construction give it were if proposes it. Even now It seems to me that the Harter Act doubt, that true, inclined I am which merely agreements relieving avoids the statute, re- apart law, from maritime the carrier from and similar wharf, upon a delivery made quired duty including improper breaches of load- v.Hi Tan “dictum in the as stated ing, delivery, my mind, etc. the idea To 432, I can F.Supp. States”, 94 United delivery of failure to make con- the inor nothing Act Harter the find *10 consignee, ques- the cost thereof from collect or at his warehouse. No consignee.” presented as that tion such our case was there involved. Its reference to the sup- solely question

I2. doubt whether the cases cited in wharf had to do really port freight. of this dictum hold. so For of the lien for instance, Eddy, in The 5 Wall.

5J regard I to mistake would it be a Egyptian the Storage Petroleum Com- pany now hold and thus us to undertake to by to be received there that com- precedent proposition that pany agent set for the a as for the Customs Authori- here, “lighterage clauses” the so-called April 2, 1952, ties and company on including I paragraph invalid. are Egyptian acknowledged Customs agree prepared this time to at ceipt am not packages appel- of the from the appellant’s conten- rejection of the a Trading to agent, lant’s American-Eastern agree to de- parties could that the Shipping tion Company. and just point of a wharf some short at liver quotes opinion from the letter stipu- attempt long to do as not so appellant written behalf of liable be not carrier should late consignee suggesting that latter the point. delivery at lighter arrange its own could to have agreement to particular an ease In this stating ready to receive upon lighter not and aon make appellant would be not done reasonable, and appear be would wharf charge obliged appellee with the be undertaking make such master’s the lighters hours of hire of the after of the abuse not an would discharge. ship’s the 15, for in clause mentioned discretion sufficiently circumstances of these All lighterage ab- where case this suggested that, in the demonstrate opinion, any necessary. find solutely I cannot lighter elected the what held ever which decision lighters or craft or with “in the respect opinion with proposed in the This is it”. operated or controlled lighter- invalidating a Act the Harter to age it was the fact confirmed further as this. clause such ship which the master the However, I am in accord with those lighters prior to inspect the undertook opinion note portions which tha-t of the loading following immediately the and under the circumstances lighter had lighter, the and after particular appel- the made this Inspec- during storm. loose broken under- did in truth and fact lant not mooring lines made of tion was also privileges or its dis- exercise take mooring. loading and after purportedly reserved it cretion My is that this own conclusion case paragraph of 15. As the clause first present situation where notes, receipts were taken obliged pass upon question are lighterman appellant from validity part paragraph the first discharged shipments onto the were appellant the reason that the did 15 for bills of cov- The order any privileges, to utilize undertake ering shipment were rights purportedly reserved discretion appellant at that surrendered to the paragraph. in that follows that to it time. appellant’s attempted defense under appears from the It also record that paragraph 15 fail because of a lighters procured at Alexandria were appellant to establish that failure lighterage per- services were pur- do what this clause undertake following formed manner: Ameri- portedly authorized. The result of all Trading Shipping can-Eastern pany, Com- operating those was that represented which agents appellant, were its re- Alexandria, requested Egyptian Ste- sponsibility follows from a loss under vedoring Shipping Company, an in- speak circumstances for them- contractor, dependent perform ground ste- selves. affirmance of vedoring judgment services. It re- court’s trial seems to be so quested Sons, E. Barber operators & prefer of plain I would to leave such debata- lighter, lighter. furnish the question The ble as the effect of the Harter Egyptian Regulations Customs required Act on these clauses for decision at shipment quay landed on necessary time when was to reach it. notes commissions or omissions forbidding the construe cases general ordi- nature of the use failure to delivery.2 agree upon place of parties nary majority opinion care. The seems appellant is the say delivery” that I am convinced “proper to livery de- that means right 1 of the that in its contention § aon wharf. scope the not deal with Harter Act does any I opinion cannot find in the an- place of as to carrier’s of the delivery; appellant’s position swer to the that there deter- that the Act does pow- upon is no limitation in the the Act how, the carrier when or where mine stipu- parties er of the to contract or only prevents deliver the but delivery made, provid- late where is to be avoiding liability for from the carrier ing attempted stipulation there is arising negligence in loss negligent or be made in a place has in fact the carrier to such enough improper Clearly the manner. cargo. the undertaken to deliver may agree parties shall whether rejects the con- court’s Rotterdam, Liverpool or be made at or ground just mentioned on the tention They might stipulate Calais. that cer- accept the “weakens Harter that Act, goods tain were to be delivered to an- spirit and counter to its and runs ship at sea. And no other conceivable my purpose.” It is view agreeing prevent judged their reason would purposes must be Act and its language Act; might I not sub- the do onto made any lighter goods notice, question without 18 L.Ed. the sole U.S. ship part thereof, shipowner to or from the was whether and re- had making expense goods. goods shipped of the risk arrangements tained a lien on secure lighterage freight. payment or use of of the The master had craft, goods upon wharf, he con- the carrier or master shall noti- unloaded agent solely fying consignees consignment sidered any consignee responsi- ready payment and without be delivered bility they freight, pay freight shall not whatsoever. refused to damage responsible goods expense loss or would be stored at their lighter goods appellants pay while on such or craft and risk. “The refused to custody lightermen freight, who or in the and the master declined independent possession goods. part contrac- shall be considered He including, limitation, tors, discharged wharf, gave but without re- of, condition, sponsibility consignees, for the choice notice to the due manning lighter pay freight, claiming of such seaworthiness fused they right, by usages or craft. had goods port, If carrier elects to to remove the to their store for lighters operated inspection, paying freight.” (p. with or craft in or without by it, court, sustaining shipown- 496) controlled shall have lien, merely of all benefit the terms of this bill er’s claim of held that he was respect possession to such to deliver