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is, 1 thinlt, reasonably'aeeollnied fortlnder all the cirThe situai:ion of the mortgagee cannot thereby, 'have been changed or prejlidiced in the least; nor is it conceiv'ltble that any different action would orcollld have been taken by 'the mortgagee or· the bondholders, had they possessed perfect knowledge of this small lien and of its nonpayment; since the default 'by the steamship company in the payment of interest on the mortgage bonds on the let of January, 1892, some months anterior to the libelant's notice of the average adjustment, though the interest then due was a very large amount, led to no steps whatever by the bondholders or the mortgagee to enforce the mortgage, until after the company's failure. No case has been cited in which the delay under such, circumstances has been held to discharge the lien. Decreefol.' the libelant for $264.80, with interest and costs.

CALDERON v. ATLAS STEAMSHIP CO;, Limited. (Di$trict Court, S. D. New York. December .S, 1894.)
CARRIAGE OF' a,OODS -Ov'ERCARRIAGE - DEVIATION - ' RESHIPMENT AND Loss"PftO'PER DELIVERy"-HARTER AOT-:...BILL OF LADING-STIPULNrION DOES NO'J,'Exc:uS'l1l NEGLIGENOE--LIMITATIOl!i $100 PER PAOKAGE VALID.

The defeI).dant's sUlawerA., wj:lich was accustomed, to touch at several received on board, a few hours before sailports of cailln Ing from New York, 29p,ackages for Savanilla, thes,econd port of call, and they were placed in the bOttom of the last hatch. filled. On arrival at S. other goods were discharged there; :but not the libelant's goods, which were in.advettently omitted, as found on the following day, after the vesto return, 01' possible to forward sel ha4 left S. It nQt, being the goods from the ports" they were 'Qrought back by the saD1evesl:\el to New York, and there immediately reshipped for Savanilla by another steamer, which was totally lost on her way out. Tile bill of lading, by stipulations on the back"referred to in the body, provided that if goods "cannot, be found" during the steamer's stay, they are to be forwarded when found,. at company's expense; also, carrier not liable for "goods of any descdption which are above the value of $100 per package, unless value expressed In agreement made." HM: (1) That the stipulations indorsed, ,so far asreasol)able and valid, were binding on the libelant; (2) that delivery" olthe goods timely delivery; (3) that the provisions of the Harter act (2 Supp. Rev. St. 81) prohibit the insertion in the bill ot lading of any exemption from liability for failure in the "proper delivery" of goods; (4) that the parties cannot evade this act by inserting stipulatlpns deterIUlning what shall, constitute a "proper delivery," any further than shall appear reasonable under the circumstances proved, and no stipulation that shall COVer" negligence either in receiving and stowing the goods, or in making a proper search for them at the port of delivery; (5) that the overcarriage in this case was not , justified by anything in the circumstances, or il1- the 1)ill of lading, but amounted to a deViation in the maritime law, whioh made the carrier liable as Insurer, arid hence liable for a SUbsequent loss> even though by sea perils; . '(6) that the construction of the limitation clause in the bill ot lading was :against liability above $100 per ,package, and as thus construed,itwlls a, .valia limitation.

This Oalderon. against the Atlaa Steamship Oompany, Uwited,to l'ecover damages f(;)r, the nondelivery of a cargo.

CALDERON

v.

ATLAS STEAMSHIp· CO.

875

North, Ward & Wagstaff, for libelant. Wheeler & Cortis,for respondent. BROWN, District Judge. On the 19th of July, 1893, the libelant delivered to the respondent, the owner of the steamships Ailsa and Alvo, in the city of New York, 26 and 3 crates of duck uniforms, to be transported to Baranquilla by way of Savanilla. The goods were taken to the wharf and delivered to tne 13teamer Ailsa a few hours before she sailed. The steamers above named belonged to the Atlas Line, and were accustomed to touch at Southern ports in the following order: Kingston, Savanilla, Carthagena, Port Lemon, and thence back direct to New York. The Ailsa arrived in due course at Savanilla, where she discharged other cargo; but the libelant's goods were overlooked, and the failure to discharge them was :not· discovered until she was well on her way towards Carthagena, the next port, 76 miles distant. Having to take on bananas-perishable cargo-at Port Lemon, the last port, which were in waiting for her regular sailing days, and there being no other means of sending back the goods to Savanilla after the nondelivery was discovered, they were brought back to New York, where the Ailsa arrived on the 16th of August, and immediately reshipped them on board the Alvo, which sailed on the same afternoon, and on her way out foundered at sea in a hurricane, in which ship and cargo were a total loss. The above libel was filed to recover the value of the 29 packages above named, amounting to about $5,600. In the body of the bill of lading was the provision, that the steamer had liberty to call at any other port or ports in any order of rotation, etc., and that the owner and consignee agreed to be bound by "all the stipulations, exceptions and conditions as printed on the back thereof, whether written or printed, as fully as if they wereall signed by the owner, consignee, or holder." On the back were indorsed numerous exceptions, among others, that of perils of the seas, followed by nine numbered clauses, three of which only are material here:
(1) That the "carrier should not be liable · · · for goods of any description which are above the value of $100 per package, unless bills of lading are signed therefor, with the value therein expressed, and a special agreement is made." (9) "Also in case any part of the goods cannot be found for delivery during the steamer's stay at the port of destination, they are to be forwarded by first opportunity when found, at the company's expense; the steamer not to be held liable for any claim for delay or otherwise." Last: "This agreement is made with reference to and subject to the provisions of the U. S. carriers' act, passed February 13, 1893. Prim, Forward & Co., 4-gents.". "[Signedl

The libelant had been accustomed to ship goods previously by the same line in numerous instances, upon bills of lading of the same character. Having delivered the goods to the Ailsa only a few hours before sailing, he did not receive the present bill of lading until after she sailed; but at the time of delivery he received a shipping receipt for the goods stating that they were subject to the conditions pressed in the company's form of bill of lading; and the bill of lading in the usual form as above expressed was afterwards delivered to him. Under such eircnilliltancesjhe mnst be deemed to have had full know)·

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edge of the conditions indorsed on the back of the bill of lading, and referred to in the body of it, and to have acquiesced in and agreed to those conditions, so far as they were lawfully inserted and were legallY¥alid. v. The Majestic, 9 O. O. A. 161, 60 Fed. 624. Thepl'Qvisions of the act of congress of February 13, 1893, known as the "Harter Act," which is the last of the stipulations indorsed, Bupersede all the other provisions that are inconsistent with it, either in theb()dy of the bill of lading or indorsed upon it. ·last cited (2. Supp. Rev. St. c. 105, p. 81) Thept:ovisions of the provide that it "shall not 1;le lawful to insert in any bill of lading any the shall be relieved from liability for loss agreement or damage arising from negligence, fault or failure in the proper loading, stowage, custody, care, or proper delivery of any and aU lawful merchandise or property committed to its or their charge; any in bills of lading or and all ,words or clauses of, such import sbipping receipt\!! shall be null and void and of no effect." If, therefore, the respondents are chargeable with negligence or failure in the proper loading, stowage, or proper delivery of these goods, they are liable for the damages arising therefrom, anything else in the bill of lading, or in the provisions indorsed thereon, to the contrary. It is plain that independently Of the ninth clause indorsed on the bill of lading as above quoted, there was "a failure in the proper delivery" of theiile goods. "Proper delivery" includes a tiIJ;l.ely delivery. It does not permit goods to be carried voluntarily away from the port of destination upon another voyage.. The defense must, therefore, rest on the stipulation of the bill of lading. But the Harter act prohibits the insertion of any stipulation excusing a "failure in proper delivery." The words "proper delivery" as used in the "act cannot mean any kind of a delivery that may be stipulated for, however unreasonable the may be; since that would thwart the very purpose of the first section,of the statute,which was designed to protect shippers I,lgainst the imposition of unreasonable stipulations in bills of lading to the prejudice of theirinterests. It is, perhaps, competent for the p;lrtles to make special provisions as to the :plode of delivery, having reference to the usual ways of business,and the conveniences or necessities of vessels in touching at various ports; and insofar as these, stipulations are,shown by the be reasonable, they may be upheld, as 'defining what a "proper delivery" shall be, and may thus justify what might not otherwise be held to be a proper delivery. Further than this, such stipulations cannot go without subverting the purpose of the act. ' , It is contended for the respondent that the ninth clause is a reasO,nable one" inasmuch .as the necessities of proper stowage and distribution of a mixed cargo for the safety of the ship, and the frequent receipt ofcgoods on the last day of sailing, cause goods to be sometimes stowed as to be naturally overlooked or missed at the different ports of call, ,because they cannot' be found at the timew:hen,they ol1ght to be diseharged; and that the ship, being under the :Jilacessity,of making trips at regular dates, without dalays that wQuld ,be injurious to pecisp.able cargo waiting for it, should 'not a!wlLys,j>e bound to wait fOf;a general overhauling of

CALDERON V. ATLAS STF.AMSHIP 00.

877

cargo not destined for the port of call, but should have the privilege in such cases of forwarding the goods afterwards when found, at its own expense. Conceding the reasonableness and validity of the stipulation in the present case, it manifestly must be applied with strictness as against the carrier. It cannot be sustained as a defense where the failure to find and deliver the goods has resulted from any negligence in the stowage or care of the goods with reference to the con· venient finding and delivery of them at the port of call; or where there has been any remiSSll\;SS in such search for the goods as is practicable at the time; and the burden of showing diligence in these respects is upon the carrier. The respondent's evidence in the present case, wholly fails to meet these requirements. If, as one witness states, the goods were placed at the bottom of No. 3 hold, with goods for Carthagena stowed above them, that was negligence in stowage of Savanilla cargo, unless it was designed to discharge all the goods in ::No. 3 hold at that port. There is, moreover, no evidence of any endeavor whatsoever to find the goods at Savanilla. The limitation of the ninth clause, viz. "if the goods cannot be found," is certainly not a meaningless provision. It is of the very essenc'e of any reasonableness in that stipulation, that all reasonable efforts shall be made to find the goods, as well as to avoid burying them at the port of shipment in places where they cannot, or are not likely, to be found. Here there is no evidence of care in either respect. The failure to deliver the goods does not seem to have been even noticed until the vessel had left Savanilla and was well on her way to Carthagena. The inference, therefore, is that the cause of the overcarriage was mere inattention in stowing or in discharging. I must find, therefore, that there was a "failure in the proper delivery" of the goods at Savanilla, not excused by anytbing in the testimony, or in the bill of lading. As the respondent fails to justify its carriage of the goods beyond their destination, the case as respects these goods becomes one of deviation. The vessel, it is true, did not herself depart from her course, or delay her contemplated voyage; but she continued the carriage of these particular goods upon the high seas long beyond what the contract allowed, exposing them to three times the sea perils contemplated, and in the end shipped them upon another vessel from the original port of departure, whereby they were lost through sea perils. It is urged that the final loss of the goods was by a hurricane, an extraordinary sea peril, which was an accidental result, and not .a proximate or natural result, of the overcarriage. The cases of Railroad Co. v. Reeves, 10 Wall. 176; The R. D. Bibber, 8 U. S. App. 42, 2 C. C. A. 50, and 50_ Fed. 841; Denny v. Railroad Co., 13 Gray, 481; Hoadley v. Transit Co., 115 Mass. 304; Railroad Co. v. Burrows, 33 Mich. 6,-are cited in support of this contention. None of these cases, however, are cases of voluntary or negligent deviation in the carriage of goods by sea. In marine transportation it is'well settled that any unauthorized overcarriage of goods, or a shipment

878
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insul'anceis thereby avoided, and he has no opportunity to protect himself by the ordinary security of marine insurance·· · These more emphatically in this case than in ,0rdina,1'11Casesof deviatiOOl.' For these goods were brought back of startilDig;no notice was given to the shipper; he was igl.lOrant of the facts, and the opportunity was not given him to insure !that might have been given. . The cases above cited have never been applied, so farras i1 know, to cases of maritime deviation. I must,Jtherefore,hoIa the respondent liable as insurer. 1 Pars. Shipp; &p 'Adw. 171, riote;;Abdmany cases there cited; Ellis v. Turner, 8 Term R. 531; Trott v. Wood; 1 Gall. 443, Fed. Oas. No. 14,190;, tBWiJin' v. Jr. 229, Fed. Oatil. No. 1,152; The Boi1dentown,40 Fed,·682,689. It isturther contended tlllil:t under the first clause of the bilI of lading, il:hEdibelant's recovery cannot. exceed $100 per package, as thev:alue was not made known, nor any agreement made for the paymemlrof freight at an extra rate. The validity of stipulations of this character has been repeatedly upheld by the supreme court (RaiJ.roadiGo. Vo Fraloff, 100"U. S. 24, 27; Hart v. Railroad 00., 112 U. S. 331va Sup. Ot. v. Dinsmore, 70 N. Y. 410; Baldwin v.Literpool, 74:N. Y; 12i); and recently in the cour.t of appeals of·this·circuit in Potterv-TheMajestic,'9 0.0. A. 161, 60 Fed. 624, 630. !tis urged that effectiought not to be,given to this/stipulation, because literally lI!ead it pl'ovjdesthat the carrier shall Mt.be liable for anythingl:ttthis case ;andtbaHhisis so unreasonable that thestipulation shouldbe:allowedrno. effect at alL I do not think that constructionwnstb.edntention.of the stipulation, or that it, is a reas()uable c()ns,ttuction of it.; Literally, the. goods which are above $100· in thepaclo:age maybe excluded. f['omconsideration,and only those which amount to $100 be regarded. That, I thinlr, is the fair inteij.:tion; of the clause in question; and as the decisions cited sustain. it as 1;llus construed, ,I Jnust hold ·accordingly, and allow a decree for thelibelantfor;$2,9(10, for the 29 packages, wUh interest and costs. '
THE G. R. BOOTH. AMERICAN. SUGAR-ItEFINiING CO. v. THE G. R. BOOTH.

rieo1' !ltable"ti,s insurer'ibothflfor violation oftM contract,:and be-

by another vessel than that contracted for, renders the cal'-

(District Court. S. D. New York. November 23. 1894.)
OF S',l'OWAGE BUFFI-

',While tIre steamsnlpG'.,n. ·B.was discharging, an explosion of detonatQrs ctLnse:(1,a bole in tM'!$hjpwhlch letin water 'Wbich extended to handJed .lit!! ,'ordinary'mel'c1i:andise, .and 1:)elieved. to be Held: (l)'Thatthlldamage havlng)arisen prtmarUy from sea water. the burden Of ,prop!, :W1Ul'OU the libelant to show negligence In the defendant; (2) detonators. as ordinary merchandise being pl'oved to Qe