110 F. 415 | D. Mass. | 1901
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
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 tbe 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. Phenix 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 Fed. (D. 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. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788, 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
“Th-i 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 exxvress 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, but the public at large; and that they are therefore unlawful.” 69 Fed. 476.
It is true that in The Majestic, 9 C. C. A. 161, 60 Fed. 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, treated the question as an open one by holding that the English and American law was the same when applied to the facts of the particular case. The Majestic, 166 U. S. 375, 17 Sup. Ct. 597, 41 L. Ed. 1039. The supreme court has not decided that the English law ever can be made to govern in an action "brought in a federal court, so as to exempt a carrier from liability for his servant’s negligence, And it has implied the contrary in The Queen of the Pacific, 180 U. S. 49, 56, 57, 21 Sup. Ct. 278, 45 L. Ed. 419. The circuit court of appeals for the Second circuit, which decided Knott v. Botany Mills and The Kensington after deciding The Majestic, did not determine in the earlier case that, if the contract be made in this country, it
■In The Kensington, above cited, it was held that, while a steamship company could not by any device exempt itself from liability for the negligence of its servants, yet it might, without offending the public policy of this country, limit the extent of that liability for injury to the baggage of a second-class passenger by the following clause :
“The shipowner or agent shall not, under any circumstances, be liable for ' any loss or delay of, or injury to, passengers’ baggage carried under this ticket beyond the sum of 250 francs, at which such baggage is hereby valued, unless a bill of lading or receipt be given therefor, and freight paid in advance on the excess value at the rate of one per cent, or its equivalent.” 94 Fed. 886.
The court of appeals held that this limitation of 250 francs was reasonable, even by the law of this country. . It should be noticed that the clause in The Kensington contained an express valuation of the baggage at 250 francs, while no valuation is expressly stated in the ticket here in question. A valuation agreed on by both parties is in some cases taken as a reason for permitting the carrier to limit his liability. “The plaintiffs having represented and agreed that the goods are of a specified value, and having thus obtained the benefit of a diminished rate of transportation, are now estopped to claim, in contradiction of their representation and agreement, that the goods are of a greater value.” Graves v. Railroad Co., 137 Mass. 33, 34, 50 Am. Rep. 282, 283. “There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss.” Hart v. Railroad Co., 112 U. S. 331, 340, 5 Sup. Ct. 151, 155, 28 L. Ed. 717, 721. From the opinion of the circuit court of appeals in The Majestic, however, it appears that the court did not consider a formal valuation to be a necessary element of the carrier’s limited liability. To make a case turn on the presence or absence of the formal words, “at which the baggage is hereby valued,” is to sacrifice substance to form. Eet it be assumed, therefore, that in the case at bar the libelee might have reasonably limited its liability for its servants’ negligence, though it could not have escaped from that liability altogether.
The clause in the case at bar provides, in substance, that a recovery shall be limited to $50, unless extra freight is paid. To be valid, this must be a “reasonable” stipulation. Hart v. Railroad Co.; The Majestic, above cited; Railroad Co. v. Fraloff, 100 U. S. 24,
In The Majestic, 166 U. S. 375, 17 Sup. Ct. 597, 41 L. Ed. 1039, the stipreme court expressed a doubt if a limitation of $50 was reasonable in the case of a first-cabin passenger crossing the Atlantic in a first-class steamer. In The Kensington, above cited, it was held that a limit of $50 was reasonable in the case of a second-cabin passenger crossing the Atlantic in a steamer of a somewhat inferior grade. I believe that 19 adult first-cabin passengers out of 20 who cross the Atlantic by a steamer like the New England carry personal effects of a value greater than $50. Therefore the limit of $50 appears to me unreasonable. That a $100 limit is reasonable in the case of a passenger on a Fall River steamboat, as decided by Judge Brown in The Priscilla (D. C.) 106 Fed. 739, appears to me plain. I hold, therefore, that the contract in the case at bar is governed by the law of the United States, and that by the United States law the exemption from all liability is excluded, and the limitation of liability to $50 is unreasonable. It should be added that in The Majestic, 166 U. S. 375, 17 Sup. Ct. 597, 41 L. Ed. 1039, at page 386, 166 U. S., page 602, 17 Sup. Ct., and page 1043, 41 L. Ed., the supreme court declared its agreement with the following statement made in Henderson v. Stevenson, L. R. 2 H. R. Sc. 470: “When a company desires to impose special and most stringent terms upon its customers, in exoneration of its own liability, there is nothing unreasonable in requiring that those terms shall be distinctly declared and deliberately