United States Willow Furniture Co. v. La Compagnie Générale Transatlantique, 271 F. 184

United States Willow Furniture Co. v. La Compagnie Générale Transatlantique

271 F. 184 | 2d Cir. | 1921

HOUGH, Circuit Judge

(after stating the facts as above). In the view taken of the eleventh article of respondent’s bill of lading the court below followed Kuhnhold v. Compagnie Genérale, supra, and we agree that that case was properly decided, at least in so far as it affects the present litigation. The questions now in controversy did not, however, arise in the litigation referred to.

[1] As to the contention, that the trial judge erred in not sending the case to a commissioner for any purpose, we overrule it. The'commissioner is an officer of the court, whose services may be availed of or dispensed with at the option of the court itself. There is no legal obligation on the admiralty tribunal to send any part of a case to a commissioner. We may add that it is clear in this case that all the facts necessary for computation of damages were either' agreed upon or proven without contradiction, while, as for the law of Prance, the timé to prove that was at the trial; nor do we see that any contested question here existed that could be ruled by French law.

*186[2] The principle upon which damages were assessed was as follows : Inasmuch as no value had been declared, and no bundle of willow was worth as much as 1,000 francs the libelant should recover the value_at the port of shipment (Bordeaux), less what the injured*goods-realized in New York. As by the stipulation above quoted the invoice value of the injured-willow was $6,223.61, without any charges whatever added thereto, this figure was the starting point of computation in exact accordance with the eleventh article of the bill of lading. The effect of the bill of lading was to exclude from recovery expenses, charges, and insurance which ordinarily in cases of total loss are recoverable. The Umbria, 59 Fed. 489, 8 C. C. A. 194, the reversal of which case in 166 U. S. 405, 17 Sup. Ct. 610, 41 L. Ed. 1053, does not affect this ruling.

Thus, owing to the low value of each package of willow, this case is one where, by agreement embodied in the bill of lading, the basis of settlement is invoice value, and it follows that the rule of damages is as stated in Pearse v. Quebec S. S. Co. (D. C.) 24 Fed. 285, and The Oneida, 128 Fed. 687, 63 C. C. A. 239, viz. libelant was entitled to recover invoice value plus freight, minus the net proceeds of the damaged-goods. In theory, therefore, the ocean freight should have been added to the invoice value; in practice, of course, it made no difference whether it was so added or subtracted from the proceeds of the injured willow.

[3, 4] But in subtracting from such proceeds the customs duties we think error was committed. The market value of any imported goods, injured or uninjured, at the port of destination, is presumed to include that enhancement of money value occasioned by the imposition of duties; and when such duty-paid goods are sold the price obtained is by the customs duties so much the greater. The matter is one of common practice, but was in effect passed on in The Eroe, 9 Ben. 191, Fed. Cas. No. 4,521, affirmed 17 Blatchf. 16, Fed. Cas. No. 4,522, where the cargo owner was not required to. account for any refund of duties obtained by him in respect of the damaged goods for injury to which he sued. The expense of trucking the willow and the charges of the auctioneer or salesman were, of course, allowable in arriving at the net proceeds of such sale.

[5] Appellee insists, on this new trial, that interest should have been allowed on its recovery. The case is one for breach of contract, even though that breach may have been, in and of itself, a tort, and we perceive no reason why interest should be denied. Indeed, the apostles contain no record of any denial; the matter seems to have been overlooked by the trial judge. On claims of this nature rulings in favor of interest have, we think, been uniform, though "the date of accrual has not always been the same. In The Eroe, supra, Judge Blatchford held that interest ran “from the date of the arrival of tire vessel.” It is more usual to allow interest (which in the admiralty is always discretionary) from the date of the liquidation of the damages, as was evidently done in the Pearse Case, supra—the damages being liqui*187dated by the sale of the damaged goods. It follows that libelant’s recovery should be stated thus:

Invoice value.......................................... $6,223.00

Ocean freight.......................................... 798.49

- $7,020.10

Proceeds of sale....................................... $1,184.41

Decs truckage and sales expense........................ 345.42

- 838.99

libelant’s recovery............................... $6,181.11

—with interest from date of conclusion of sale of damaged goods, viz. April 16, 1918.

[0] Tlie assignments of error relating to the translation of damages expressed in francs at the “rate of exchange which existed at the time of shipment of the goods” we are not able to consider. We have above quoted from the agreed statement of facts exactly what the parties stipulated as' the invoice value of the damaged willow; behind that we cannot go, but may add that there is nothing in the apostles to show at what rate of exchange, or as of what time, any such transference of francs was calculated. As the appellee has received some benefit from this appeal without itself having appealed, there will be no costs of this court. The disposition of costs in the District Court is left to the District Judge.

Decree reversed, and cause remanded for further proceedings not inconsistent with this opinion.