Standard Electrica, S.A. v. Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft, Defendant-Appellee,and Columbus Lines, Inc.
375 F.2d 943
2d Cir.
1967
Check Treatment

*1 A., ELECTRICA, STANDARD S. Plaintiff-Appellant,

HAMBURG SUDAMERIKANISCHE

DAMPFSCHIFFFAHRTS-GESELL SCHAFT, Defendant-Appellee, Inc., Lines,

Columbus Defendant. Docket 30855.

No. Appeals

United States Court of Circuit.

Second

Argued 8, 1966. Dec. April

Decided

Eeinberg, Judge, Circuit dissented. *2 City Seymour package, “palletized” Simon, York and the form New (Richard City, Graham, York on in which those cartons were received T. New ought regarded plaintiff-appellant. shipment brief), as for the for nothing than aid for more a mechanical (R. Poor, City York Wharton New delivery. Judge however, held, McLean Bauer, and Glenn Peter J. Zambito that each constituted Haight Havens, Poor New Gardner & meaning the Act. within the of § City, brief), for defendant- York on the previously paid theAs defendant had appellee. $3,500, libellant for each $500 LUMBARD, Judge, together missing pallets, and Before Chief in seven with Judges. FEINBERG, terest, and Circuit and HAYS libellant’s motion was denied agree the libel was Judge We with dismissed. ruling McLean’s and affirm LUMBARD, Judge: Chief judgment below. S.A., Eléctrica, Libellant Standard parties stipulated The that all of the judgment appeals from a entered pallets up by were made I. Judge McLean in the Southern District Export Corporation, T. T. in the fol- August York, 25, 1966, of New de- on lowing manner: nying summary for libellant’s motion judgment pursuant to made Rule 58 of plat- As a base there was a wooden Admiralty Rules of the United measuring length form in and 39" Supreme dismissing Court, States and 33" width constructed two floors complaint seeking $13,300 from apart 4" 2" about x nailed three defendant-appellee, Hamburg Suda- stringers. platform 4" On this were Dampfschifffahrts-Gesell- merikanische sehaft, placed corrugated six car- fibreboard damages as tons, containing each 40 T.V. Tuners. 1,680 shipped loss of television tuners The cartons were in three stacked from New York Rio de The Janeiro.1 tiers of tier two cartons each. Each shipment “pal- entire lets,” consisted nine completely platform. covered the containing each six car- cardboard dimensions of each of the cartons tons of 40 tuners. Seven of the nine long, were: 19 inches inches 33% ap- delivered, were never and high. wide and inches Each car- 12% pellee liability; has conceded its the on- weighed pounds ton with TV40 ly question amount of that liabili- packed top Tuners Over the inside. ty. tier of these cartons was fitted parties agree pro approximately wooden deck inch% Carriage thick, visions of length of Goods Sea width and as same (hereinafter COGSA) platform Act applicable, upon of 1936 are which the cartons recovery placed. top and limit were of the “$500 per package.” prevent Section wooden deck was car- U.S.C. other 1304(5).2 go appeal, straps cutting The sole as issue into below, top is the of the the straps word two Four metal cartons. purposes of that limita inch wide fitted over were % It top tion. deck, libellant’s contention of the wooden down qualifies cardboard carton sides of the cartons and underneath complaint against States, goods shipped The libel and defend- or in case of Lines, Inc., packages, customary freight unit, per ant Columbus was dismissed on or parties. equivalent consent of all in other cur- that sum rency, the nature and value of unless such 1304(5): goods 2. 46 U.S.C. § “Neither the car- have declared been ship any shipment rier nor the shall in event be or in the bill before inserted any damage declaration, lading. become liable for loss to or This if embodied transportation prima lading, in connection with the bill facie shall be goods exceeding evidence, in an amount conclusive on shall money lawful the United carrier.” Act, English platform overlapping Act where their tightly together ends fastened similar. No doubt draft- straps with metal ers had mind fair- seals. Two of these a unit that would be lengthwise ly size,3 predictable ran ran uniform two cross- together provide wise. When one that bound would a common sense straps easily metal the dimensions of each standard so that could *3 pallet length, were 39" in in ascertain 33" width the time of contract when height. gross weight needed, place and 42" in the was pallet upon risk was 380 lbs. of additional loss one or the litiga- other, pains and thus avoid When COGSA in was enacted tion. 1936, had it as its central Few, any, if in 1936 could have fore contracts, pro avoidance of adhesion change optimum viding seen the in the size of protection against shipper for the shipping units that has arisen as the inequality bargaining power. See technological result of advances Black, Admiralty Gilmore & 125-126 industry. transportation par (1957); As both Caterpillar Overseas, S.A. v. recognize, ties is now common for Expeditor, (2 S.S. 722 cargo to 1963); receive from their Cir. Flying Clipper, Jones shippers palletized form or “con F.Supp. 116 (S.D.N.Y. 388-389 1953). tainerized” form. In instances an some 4(5) provided Section that may uncoupled entire trailer from its be may carrier not reduce its maximum lia pier placed tractor-truck on bility and per package below unit. exception aboard the carrier.4 With the 1303(8). See also 46 U.S.C. At § Judge opinion below, F. McLean’s 262 time, same upon shipper cast Supp. (S.D.N.Y.1966), possibly 343 declaring the burden of the nature and Purveyors, United Inc. Motor Vessel goods, value of paying higher (S.D.Fla. Yorker, F.Supp. New 250 102 tariff, necessary, if if he im wished to 1965), yet pose-a court has considered how liability upon the carrier. liability the limitation of is to con be Caterpillar See Americas Co. v. S.S. light technological strued this Roads, Sea F.Supp. (S.D.Fla. 231 change. 1964), 'd, (5 aff 1966); 364 F.2d 829 Cir. Morrisey also Faith, v. S.S. A. & J. principal Libellant’s contention that F.Supp. (N.D.Ohio 1965). pallet merely a mechanical device determining In meaning “pack- conjunction is to used in be with a age,” we are meaning- without machinery aid of forklift and other in order to legislative history. ful Only gen- loading. certain facilitate Certain benefits will eral observations made as to the accrue to the carrier use why “package” reason pallets, damage namely, was selected as less appropriate an upon unit long run, which the limi- less labor cost over the as the tation of placed was in our result decrease individual 3. English suggests One old Large ships ships ease the con- 4. container and trailer trary, Whaite being v. The Lancashire & York- are built in order to accommodate Railway Co., shire special cargo. See, g., L.R. Ex. such e. N. Y. large open top wagon where Times, January 8, (advertise- was held § 13 package: to be a ment). “It acceptance would be absurd to of such say waggon large that a gives exciting possibili- was too to be rise to other package; plainly, ties, size loading cannot be a cri- such as the of vessels Cleasby, concurring. terion.” B. ports” by sky-crane helicopters. See also “inland Fargo, Reid v. See, g., Times, January e. N. Y. (1916) specifi- 60 L.Ed. p. 29, Economies, which was cols. cally Hearings realized, referred only Before will serve foster Commerce, Committee on United use of units. Senate, Cong., Sess., States 74th 1st relating Carriage Bill of Goods Sea, May 10, 1935, pp. 38, 39. understanding handling required for items of a lesser had same as to what argue that these char- size. Libellant does constitutes a and those normally performed are functions not acterizations further reflect given general, suggests packaging usage term the custom and disregard pallet and that we should Each trade. had pur- physical look to the cardboard boxes for characteristics of a poses support of clearly of the limitation. In put up and transportation.” “bundle argues contention, Dictionary libellant Black, this Law (4th remedial statute and should COGSA a ed. interpreted broadly Secondly, statutory rights provi- shippers; up the to make chose carrier who not the setting lia- forth a limitation of sions apparently for the pallet, into a cartons strictly bility so as should be construed greater convenience reasons of questionable to decide all cases favor *4 handling. safety The number non-applicability that a its ship from separate received stringent package provides a much more purpos is considered is what ago. years than it limitation did 30 case, lading. in this As of the bill es change optimum Since the size of apt to not cartons of inner the number reasonably shipping not unit could have any of the mentioned in foreseen, argues, rule been he we should prepared time of con at documents casing merely the outer a me- that parties, neces and courts Yet the tract. sarily, package. chanical device and not a rely upon documents see, loss, num- Libellant’s contention overlooks for information the event First, ber of it does not take factors. e.g., Supply Over Mission v. S.S. India (S.D. into parties 536, account the characterizations of F.Supp. Joyce, 538 246 seas receipt, therein, themselves. dock N.Y.1965), cited and cases lading, letter bill of and libellant’s claim the num that immaterial would seem parties regarded pal all indicated that each cartons within ber of individual package. as the dock might On work let have been visible receipt Shipping the “Marks and Numbers” were pier. Anticosti men on Cf. given “No. 1 Amand [1959] Co. v. Viateur St. “1/9 Pkgs.” pallets.” as “9 from Lloyd’s Rep. (Supreme The invoice Court 352 Canada). to the libellant described the goods as follows: Thirdly, take into account it does not provides 4(5) specifically the fact that § packages:

“Numbers on the 1/9 option, can ob- that his Quantity: 9 declaring simply tain full complaining libellant sent [*] After [*] *» letter to “only loss was 2 appellee’s packages discovered agent bill of “outdated” limitation. the nature lading, tariff, and, if value of thereby necessary, paying goods in the avoid discharged” shipment “pack 9 Lastly, out of “a the word since packages.” age” fairly Inasmuch are not as made as we includes the parties up shipment case, faced with a attempted do not case where the have in this we package important to define drafters the word deem it agreement might precise their manner that foreseen this have might repugnant e.g., provi Act, see, application that this to the at the time years ago, see, Co., thirty Pannell v. Lines 263 sion enacted United States Cir.) 519, 497, (2 (dictum), e.g., Bowlby, F.2d 498 F.2d 522- cert. Cain 114 v. denied, 1013, (10 pas 1151, 359 79 If U.S. S.Ct. 3 523 Cir. sage (1959), statutory L.Ed.2d 1037 we think such of time this applica inadequate characterizations are entitled to con has become weight parties inequitable, in that must come siderable each tion a revision

947 Cir.), 774, from S.Ct. Congress, not come cert. denied 329 U.S. 67 should (1946). ma 666 This the L.Ed. the courts. jority Therefore, concedes. one would any other decision mindful that We are think that in a close case section confusion as contribute to would consistently would be construed “package” as of the word interest. —to see, e.g., discussion used case; is, course, ma This a close Corp. prior Int’l cases in Mitsubishi jority opinion professes to no con find 382, 94 State, F.2d S.S. Palmetto trolling meaningful legis precedent or 1962), (2 de cert. A.L.R.2d 1412 Cir. history defining “package.” I do lative L. nied, U.S. suggest ap the definition or its (1963); Co. v. Ed.2d 422 Gulf Italia plication particular simple facts are Inc., Export Lines, 263 F.2d American again matters. “the Once' we have (dissenting opinion), (2 Cir.) troublesome When is conundrum: denied, 902, 79 cert. S.Ct. package In not a ?” Mitsubishi place 3 L.Ed.2d 1254 and would Corp. State, ternational Palmetto S.S. looking upon the carrier the burden of (2d 1962), cert. Cir. beyond the information bill denied, 373 U.S. S.Ct. lading beyond packing to in outer (1963). precisely, L.Ed.2d 422 More vestigate shipment. the contents of each question pack here the claimed Only pre given a more age was the under section meaning, con dictable will *5 (5) sixty forty pound carton with —each cerned know when there is a need to packed inside, “pallet” TV tuners or each place the risk of loss on one loading strapped plat of six cartons on a accordingly adequately or the other to top, open form with a board on against insure it. plainly exposing sides the cartons? Ob Affirmed. viously, reasonable men can differ as to “pallet” literally pack whether is (dissent- Judge FEINBERG, Circuit age; being so, suggest I ing): policy clear of the statute should be de consignee Appellant never received controlling prece cisive unless there is ap- $16,800, 1,680 tuners worth TV contrary. dent to the I do read the the loss. pellee liable for concedes majority opinion suggesting liability to However, appellee limits there is. Therefore, appellant $3,500. has been 384, this Mitsubishi, F.2d In at 311 $13,300, it has lost denied finding “pack emphasized court rea- For insufficient no fault of its own. age” (steel) was there the article approves majority opinion this sons the “completely in a box enclosed wooden disregards inequitable result prepared shipment.” Italia In Gulf 4(5) strong policy section behind Lines, Inc., Export American Co. v. COGSA. (2d denied, Cir.), F.2d cert. 4(5) en- The of section when 3 L.Ed.2d 79 S.Ct. cargo point in- (1959), to acted 1936 was made the same this court appellant. (“Plainly finding package. Prior to that like terests time, seagoing shipped package, able to carriers had been tractor was not cargo liability covering portions limit their loss of unless of certain insignificant ‘package’ See Jones v. amounts. of it make it a the mean within Flying Clipper, F.Supp. 386, ing normally Act.”) 388 & ex of the I would Raising (S.D.N.Y.1953). pect package completely the min- n. 10 en at least to goods question. Here, imum limitation close the $500 package very completely conces- was a substantial in car enclosed tuners by cargo obviously pack sion interests. See carton tons —each Corp. age. Strapping together Pan-Am Trade & Credit six cartons on a (2d platform top prevent Campfire, 605-606 “to with a board straps calling other and the [four carton is not a unit metal] and— cutting top plainly into the two cartons” these cartons “inner car- visible did not pack- make a six out tons”—that the cartons were not cartons, ages. since the also en- also 49 made a See U.S.C. § prob- part closed on the sides. I realize that COGSA U.S.C. § lems Trading will remain on to deal with how discussed in American Co. future, e.g., (2d other Harry Culbreath, 187 F.2d 310 “fishyback” suggest trailers. I that we Cir. they arise, decide such cases when em- Third, majority implies that this phasizing now the minimum re- shipper could have obtained full quirements package. of a by declaring the nature and value of majority has the reasons None of goods and, necessary, paying given support adequate unfair pack- tariff. But if each carton was First, characterization result here. age, there would be no occasion for a parties to a of the transaction special higher charge, declaration at a Caterpillar adhesion, see contract of since each carton was than worth less Overseas, Expeditor, F. S.A. v. S.S. Thus, finding significance in fail- $500. Cir.), denied, (2d Am cert. 2d merely begs question ure to declare Caterpillar Export Lines, erican Inc. v. “package.” of how to construe the word S.A., Overseas, 375 U.S. Fourth, majority that the concedes should not 11 L.Ed.2d 272 $500 have be- controlling. section Cf. inadequate application come and its in- 1303(8); COGSA, G. Gil 46 U.S.C. § equitable, but asserts that revision must Admiralty Black, 167 n. 156 more & C. Congress, come from adequate not the In- courts. case, (1957). Moreover, in this whether become; technological has to be did consider purchas- advancement and decline ambiguous statutory packages ing value of the dollar have combined agent best; e.g., appellee’s re own reduce the of the minimum *6 ferred to “the loss of 42 cartons.” Congress gave to car- majority points Second, opinion go interests. But I do not understand shipper, apparently for rea- out that the why inequity. we should add to the safety, sons of convenience congressional call for revision up the cartons the carrier chose to make sound, the meantime we should pallet. irrele- This would seem into a existing .construe statutory term as opinion carriers concedes that vant. The applied to the facts before in con- us pallets; in- also benefit from the use of legislative sonance with purpose. deed, “ex- it refers to other footnote judicial That ought function we not abdi- citing possibilities” cate. units, presumably desirable to justi- Finally, majority’s result is Attaching shippers. as well as to giving pre- “package” more fied as significance party loaded to which meaning. I what dictable am not sure majority vessel, on board the “certain” definition of units re- the number of considers crucial sug- majority upon, but I relies equates ceived from the gest that, any event, certainty arguing packages, with the number of legislative expense policy equity that “the number of inner cartons undesirable and often turns out * * * apt to be mentioned ephemeral. * * This, documents course, that a assumes the conclusions I would reverse. Stipulation, ¶5.