The appellant shipped, by a vessel belonging to the appellee,
goods under a bill of lading which contained the following
stipulation:
"In accepting this bill of lading, the shipper, owner, and
consignee of the goods and the holder of the bill of lading agree
to be bound by all of its stipulations, exceptions and conditions
as printed on the back hereof, whether written or printed, as fully
as if they were all signed by such shipper, owner, consignee, or
holder."
Of these stipulations and conditions, this Court regards only
the following as material:
"1. It is also mutually agreed that the carrier shall not be
liable for gold, silver, bullion, specie, documents, jewelry,
pictures, embroideries, works of art, silks, furs, china,
porcelain, watches, clocks or 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."
"14. This agreement is made with reference to, and subject to
the provisions of the U.S. Carriers' Act, approved February 13,
1893."
The goods were not delivered at the port to which they were
consigned, and were subsequently lost at sea on another vessel
belonging to the appellee, on which they had been placed without
the appellant's knowledge. In a suit in admiralty to recover their
value,
held:
(1) That as the negligence of the company was clearly proven,
there can be no doubt of its liability under the Act of February
13, 1893, c. 105, known as the " Harter Act."
(2) That the clause limiting the amount of the carriers'
liability is to be construed as a statement that the carrier shall
not be liable to any amount for goods exceeding $100 per package,
and being so interpreted, that it is a clear attempt on the part of
the carrier to exonerate itself from all responsibility for goods
exceeding the value of $100 per package, and as such is not only
prohibited by the Harter Act, but held to be invalid in a series of
cases in this Court.
This was a suit instituted in the District Court for the
Southern District of New York, in admiralty, by the libelant,
Page 170 U. S. 273
Calderon, who was at that time consul general for the United
States of Columbia at New York, to recover from the respondent, the
Atlas Steamship Company, the sum of $5,413.18, the value of a
consignment of goods shipped from New York to Savanilla by the
libelant on the steamer
Ailsa, which goods the master
failed to deliver at the port of destination, and thereafter
brought back to New York, where they were reshipped by the
respondent on the steamer
Alvo. The goods were lost by the
sinking of this ship through a peril of the sea.
It seems the respondent owned both the
Ailsa and the
Alvo, and ran them between New York, Kingston, Savanilla,
Carthegena, and Port Limon, from which last-named port they sailed
direct to New York, usually carrying a cargo of fruit. Libelant had
frequently shipped goods by this line and over the same route, and
on July 19, 1893, about two hours before the
Ailsa sailed
on its regular voyage from New York, delivered to the company on
its pier, under authority of a special permit from the company, the
consignment of goods in question, which consisted of twenty-six
bales and three crates of duck government uniforms, for
transportation to the port of Savanilla, and from thence to
Baranquilla, in the United States of Colombia. The receipt given by
the company to the truckman who delivered the goods stated that
they had been received "at the shipper's risk from fire, and
subject to the conditions expressed in the company's form of bill
of lading."
The bill of lading, subsequently obtained in lieu of the
receipt, and a copy of which was sent by mail to the consignee by
the same steamer, contained on its face the provision:
"And finally, in accepting this bill of lading, the shipper,
owner, and consignee of the goods, and the holder of the bill of
lading agree to be bound by all of its stipulations, exceptions,
and conditions, as printed on the back hereof, whether written or
printed, as fully as if they were signed by such shipper, owner,
consignee, or holder."
Of the stipulations, exceptions, and conditions printed on the
back, only the following are material:
"1. It is also mutually agreed that the carrier shall not be
Page 170 U. S. 274
liable for gold, silver, bullion, specie, documents, jewelry,
pictures, embroideries, works of art, silks, furs, china,
porcelain, watches, clocks, or 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 the first opportunity, when found at the
company's expense, the steamer not to be held liable for any claim
for delay or otherwise."
"14. This agreement is made with reference to, and subject to,
the provision of United States Carriers' Act, approved February 13,
1893."
It appeared from the testimony taken that these goods were the
last to be loaded, and that, instead of being stowed with other
freight for Savanilla, the port of destination, they were placed in
another hold of the ship and in the "last tier to come out" of the
Carthegena freight. It also appeared that the consignment was not
discharged at Savanilla, and that it was not discovered to be on
board until the ship was well on its way to Carthegena. The ship,
however, proceeded on its voyage without attempting to make the
delivery of the goods, and upon receiving a cargo of fruit at Port
Limon sailed for New York, where the consignment was reshipped
August 16, 1893, on the steamer
Alvo. No notice was given
to libelant of the return of the goods or of their reshipment. The
Alvo was caught in a hurricane and lost at sea with her
entire cargo.
The district court held that there was a "failure in the proper
delivery" of the goods at Savanilla, but that inasmuch as bills of
lading were not signed specially designating the value of each of
the twenty-nine packages, as provided by clause one on the back of
the bill of lading, the liability of the company was limited to
$100 for each of the twenty-nine packages, or $2,900 in all. 64 F.
874.
From this decree the libelant alone appealed, and upon the
Page 170 U. S. 275
hearing the Circuit Court of Appeals for the Second Circuit, by
a majority opinion, sustained the decree of the court below. 69 F.
574.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Two questions are presented by the record in this case: first,
whether the steamship company was liable at all under its bill of
lading for the nondelivery of the goods at Savanilla; second,
whether such liability was limited to the sum of $100 for each
package.
1. Both the district court and the court of appeals held the
company to be liable under section 1 of the Harter Act of February
13, 1893, c. 105, 27 Stat. 445, which provides
"that it shall not be lawful for the manager, agent, master or
owner of any vessel transporting merchandise or property from or
between ports of the United States and foreign ports to insert in
any bill of lading or shipping document any clause, covenant or
agreement whereby it, he, or they shall be relieved from liability
for loss or damage arising from negligence, fault, or failure in
proper loading, stowage, custody, care or proper delivery of any
and all lawful merchandise or property committed to its or their
charge. Any and all words or clauses of such import inserted in
bills of lading or shipping receipts shall be null and void and of
no effect,"
and this notwithstanding the provision in the bill of lading
that
"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."
As the company did not appeal from this decree, it must be
regarded as acquiescing in the justice of such decree to the
Page 170 U. S. 276
amount therein awarded to the libelant, but as we should not
make a further decree against the company for the amount now
claimed by the libelant in excess of $100 per package if we were
satisfied that the company was not liable at all, we have thought
it best to consider whether the courts below were correct in their
construction of the Harter Act.
It may well be questioned whether the provision "that in case
any part of the goods cannot be found for delivery during the
steamer's stay at the port of destination" has any application to a
case where the goods were not placed in the proper compartment when
stowed on board the vessel, and for which it appears no search was
made upon the arrival at Savanilla, notwithstanding the fact that a
bill of lading had been given for them and their shipment had been
entered upon the manifest or other "cargo books" of the steamer. It
appears that, after leaving Savanilla the purser discovered that
these goods had not been "tallied out" on the cargo books for that
port, and he at once made search for them, and found them stowed
with the Carthegena cargo.
It was clearly the duty of the master of the vessel before
leaving Savanilla to examine the manifests or other memoranda of
the vessel to ascertain whether the portion of the cargo consigned
to that place had been delivered, and, if not, to search for the
missing consignment before leaving the port. His failure to do this
was obviously a breach of his general obligation to deliver his
cargo to its consignee, and it is exceedingly doubtful whether,
even in the absence of the Harter Act, the provision in the bill of
lading would have excused him. But as the stipulation in the bill
of lading was one which the Harter Act prohibited, it is only
necessary to refer to this act to hold the company chargeable with
negligence. Regard may doubtless be had to the custom of the port
as to what shall be termed a proper delivery with respect to the
time and manner of such delivery, but a failure to deliver at all
was negligence. No such want of delivery can be excused under the
terms of either the first or second section of the Harter Act. Not
only was there negligence in failing to examine the ship's papers
to ascertain what goods were consigned to Savanilla,
Page 170 U. S. 277
but there was also negligence in stowing such goods under that
portion of the cargo destined for Carthegena, and thus concealing
them from observation. If these goods were the last received by the
vessel before her departure from New York, they would naturally
have occupied a position which would have called attention to them
upon arrival at the first port of destination, but they were so
concealed beneath the goods consigned to another port that they
were not discovered until after the vessel had left Savanilla.
The words "cannot be found" would seem to apply to a case where
the goods had been misplaced, and an effort had been made to find
them which had proven unsuccessful, and not to a case where no
attempt whatever was made to deliver them. But, however this may
be, we are clearly of Opinion that the provisions of section one of
the Harter Act supersede and override this stipulation in the bill
of lading, particularly as it is expressly provided that the
agreement was "made with reference to, and subject to, the
provisions of the United States Carriers' Act, approved February
13, 1893" (Harter Act). The first section of the act is cited
above, but the second section further provides
"that it shall not be lawful for any vessel transporting
merchandise or property from or between ports of the United States
of America and foreign ports, her owner, master, agent, or manager,
to insert in any bill of lading or shipping document any covenant
or agreement . . . whereby the obligations of the master, officers,
agents, or servants to carefully handle and stow her cargo and to
care for and properly deliver the same shall in anywise be
lessened, weakened or avoided."
It is to be noticed that, by the first section, the carrier
shall not be "relieved from liability" for loss or damage arising
from negligence in the proper stowage or proper delivery of the
goods, while by the second section the carrier shall not insert any
covenant or agreement in the bill of lading whereby the obligations
of the carrier to carefully stow and properly deliver the cargo
shall be "lessened, weakened, or avoided." These two sections, in
their general purport, so far as respects the care and delivery of
the cargo, are not essentially different,
Page 170 U. S. 278
although it is possible that a somewhat ampler measure of
liability was intended under the second section, which denounces
any covenant whereby the obligations of the ship to properly
deliver the cargo shall in any wise be lessened, weakened, or
avoided. As the negligence of the respondent in this connection was
clearly proven, there can be no doubt of its liability under either
of these sections of the Harter Act.
2. The alleged limitation of respondent's liability to the sum
of $100 per package depends upon that clause of the bill of lading
which declares
"that the carrier shall not be liable for gold, silver, bullion,
specie, documents, jewelry, pictures, embroideries, works of art,
silks, furs, china, porcelain, watches, clocks, or 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."
Respondent insists that the words of this clause, "which are
above the value of $100 per package," should be read as limiting
its liability to $100 per package, and should be construed as if
the words used were "beyond the sum or value of $100 per package."
The courts below agreed in putting this interpretation upon it.
Acting upon this view, it was held that the liability of the
respondent was limited to $100 per package, following in this
particular the rulings of this Court in
Railroad Company v.
Fraloff, 100 U. S. 24,
100 U. S. 27,
and
Hart v. Pennsylvania Railroad, 112 U.
S. 331, and the principle announced in
Magnin v.
Dinsmore, 56 N.Y. 168; 62 N.Y. 35; 70 N.Y. 410;
Westcott
v. Fargo, 61 N.Y. 542, and
Graves v. Lake Shore &
Mich. Southern Railroad, 137 Mass. 33. In this last case, the
rule obtaining in this Court is adopted to its full extent by the
Supreme Judicial Court of Massachusetts. In these cases, it was
held to be competent for carriers of passengers or goods, by
specific regulations brought distinctly to the notice of the
passenger or shipper, to agree upon the valuation of the property
carried, with a rate of freight based on the condition that the
carrier assumes liability only to the extent of the agreed
valuation, even in case of loss or damage by the negligence of the
carrier, and that such contracts will be upheld as a lawful method
of securing
Page 170 U. S. 279
a due proportion between the amount for which the carrier may be
responsible and the freight he receives, and of protecting himself
against extravagant and fanciful valuations.
See also Ballou v.
Earle, 17 R.I. 441;
Richmond & Danville Railroad v.
Payne, 86 Va. 481;
J. J. Douglas Company v. Minnesota
Transportation Co., 62 Minn. 288.
We are, however, not content with the construction put upon the
contract by the courts below. Whether the limitation of liability
to goods above the value of $100 per package applies to "gold,
silver, bullion, specie, documents, jewelry, pictures,
embroideries, works of art, silks, furs, china, porcelain, watches,
clocks," as well as to goods of other descriptions, may admit of
some doubt, in view of the fact that, by Rev.Stat. § 4281, the
vessel and her owners would not be liable for such articles at all
unless specifically mentioned at a valuation agreed upon. This
stipulation in the bill of lading, having been inserted by the
shipowner for its own benefit, could scarcely have been intended to
enlarge its statutory liability, and the more reasonable
interpretation would seem to be that the company was not intended
to be held liable at all for these articles. But whether this be so
or not, the stipulation may be read as if those words were omitted
-- namely, that the carrier shall not be liable for goods of any
description "which are above the value of $100 per package." The
plain and unequivocal meaning of these words is that the carrier
shall not be liable to any amount for goods exceeding in value $100
per package. It is true that contracts for the carriage of goods by
water, as well as by land, frequently contain a provision limiting
the liability of the carrier to a certain amount, usually $100 per
package, and it was apparently in view of this custom that the
courts below gave a like interpretation to the words of this
stipulation. But this certainly does violence to its language. If
it had been intended to so limit the respondent's liability, it
would have been easy to say so, and the very fact that different
language was used from that ordinarily employed indicates a desire
on the part of the carrier to limit his liability to goods which
are of less value than $100 per package. It is possible that the
draughtsman of this bill of
Page 170 U. S. 280
lading may have had the more common limitation in his mind, and
may have intended that the carrier should incur a liability upon
all goods to the extent of $100 per package, but he certainly was
unfortunate in the language he chose for that purpose. If, as we
have already intimated, the carrier intended to exempt itself from
all liability for the articles specifically mentioned in this
clause, it is scarcely to be supposed that it intended to make
itself liable to the amount of $100 for goods of other
descriptions, which were above that value per package. It was
probably intended that the carrier should incur no liability
whatever for the value of the articles specifically mentioned, as
well as for all other goods exceeding the value of $100 per
package, while it remained liable to the full amount for goods of
other descriptions which were of less value.
It is true that, in cases of ambiguity in contracts as well as
in statutes, courts will lean towards the presumed intention of the
parties or the legislature, and will so construe such contract or
statute as to effectuate such intention; but where the language is
clear and explicit, there is no call for construction, and this
principle does not apply. Parties are presumed to know the force
and effect of the language in which they have chosen to embody
their contracts, and to refuse to give effect to such language
might result in artfully misleading others who had relied upon the
words being used in their ordinary sense. In construing contracts,
words are to receive their plain and literal meaning, even though
the intention of the party drawing the contract may have been
different from that expressed. A party to a contract is responsible
for ambiguity in his own expressions, and has no right to induce
another to contract with him on the supposition that his words mean
one thing while he hopes the court will adopt a construction by
which they would mean another thing more to his advantage. Clark,
Contracts, p. 593.
It was said of penal statutes by Mr. Chief Justice Marshall in
United States v.
Wiltberger, 5 Wheat. 76,
18 U. S. 95,
that
"the intention of the legislature is to be collected from the
words they employ. Where there is no ambiguity in the words,
Page 170 U. S. 281
there is no room for construction. The case must be a strong one
indeed which would justify a court in departing from the plain
meaning of words, especially in a penal act, in search of an
intention which the words themselves did not suggest. To determine
that a case is within the intention of a statute, its language must
authorize us to say so."
Similar language was used by Mr. Justice Swayne in
United States v.
Hartwell, 6 Wall. 385,
73 U. S.
396:
"If the language be clear, it is conclusive. There can be no
construction where there is nothing to construe. The words must not
be narrowed to the exclusion of what the legislature intended to
embrace; but that intention must be gathered from the words, and
they must be such as to leave no room for a reasonable doubt upon
the subject. It must not be defeated by a forced and overstrict
construction. The rule does not exclude the application of common
sense to the terms made use of in the act in order to avoid an
absurdity, which the legislature ought not to be presumed to have
intended. When the words are general, and include various classes
of persons, there is no authority which would justify a court in
restricting them to one class and excluding others where the
purpose of the statute is alike applicable to all."
See also Endlich on the Interpretation of Statutes,
§ 4.
In this case, the contract is one prepared by the respondent
itself for the general purposes of its business. With every
opportunity for a choice of language, it used a form of expression
which clearly indicated a desire to exempt itself altogether from
liability for goods exceeding $100 in value per package, and it has
no right to complain if the courts hold it to have intended what it
so plainly expressed. If the language had been ambiguous, we might
have given it the construction contended for, which probably
conforms more nearly to the clause ordinarily inserted in such
cases, but such language is too clear to admit of a doubt of the
real meaning. The clause in question seems to have been taken from
the English carriers' act, 11 Geo. IV and 1 Wm. IV, c. 68, which
received a construction similar to that we have given to it in
Morritt v. Northeastern Railway Co., 1 Q.B.D. 302.
Page 170 U. S. 282
Under this interpretation, there is a clear attempt on the part
of the carrier to exonerate itself from all responsibility for
goods exceeding the value of $100 per package. Such exemption is
not only prohibited by the Harter Act, but is held to be invalid in
a series of cases in this Court, culminating in
Chicago,
Milwaukee &c. Railway v. Solan, 169 U.
S. 133,
169 U. S. 135,
wherein it was said that
"any contract by which a common carrier of goods or passengers
undertakes to exempt himself from all responsibility for loss or
damage arising from the negligence of himself or servants is void
as against public policy, as attempting to put off the essential
duties resting upon every public carrier by virtue of his
employment, and as tending to defeat the fundamental principle upon
which the law of common carriers was established."
The difficulty is not removed by the fact that the carrier may
render itself liable for these goods, if "bills of lading are
signed therefor, with the value therein expressed and a special
agreement is made." This would enable the carrier to do as was done
in this case -- give a bill of lading in which no value was
expressed, under which it would not be liable at all for the safe
transportation and proper delivery of the property. This would be
in direct contravention of the Harter Act. Indeed, we understand it
to be practically conceded that under the construction we have
given to this clause of the contract, the exemption would be
unreasonable and invalid.
The decree of the district court is therefore reversed, and
the case remanded to that court, with directions to assess the
value of the libelant's goods and to enter a decree in conformity
with the opinion of this Court.
MR. JUSTICE WHITE concurred. MR. JUSTICE BREWER dissented.
