LACOMBE, Circuit Judge. It is not disputed that the particular case was lost through some negligence of the carrier's employés, and the defense advanced is partial only; it being insisted that by reason of the provisions of the bill of lading the damages should have been limited to $100 which amount respondent tendered in settlement of the claim. The provision of the bill of lading relied upon is as follows: "Not accountable for any sum exceeding $100 per package for goods of whatever description, nor for any amount in respect of gold, silver, bullion, specie, jewelry, precious stones or metals, paintings, statuary, or any other valuable goods of whatever description, unless the value of such be herein expressed and freight as may be agreed paid thereon." The libelant contends that this clause, so far as it relates to the limitation to $100 per package, is invalid in case of loss by negligence of respondent. The question thus presented as to the right of a common carrier to avail of such a clause in a bill of lading when the loss has occurred through its negligence is one which has been frequently before the courts and has been discussed in many opinions which are by no means harmonious. It will not be necessary to review these decisions, nor to discuss the subject at length, because, on the facts in this case, the principles laid down by the Supreme Court indicate the conclusion which should be reached in a federal court. The general rule that a carrier cannot by any stipulation or agreement with a shipper relieve itself from the obligation to respond in full damages for any loss resulting from its negligence was qualified in Hart v. Penn. R. R., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717. In that case plaintiff sought to recover nearly $20,000 for the death of one and injuries to four other valuable race horses and to some other property. Defendant admitted liability to the amount of $1,200 -stock and contents in one car-but insisted that no more could be recovered by reason of the terms of the bill of lading, which plaintiff had signed. That document receipted for five horses "for transportation, upon the following terms and conditions, which are admitted and accepted by me [the shipper] as just and reasonable: First. To pay all freight thereon to said company at the rate of ninety-four cents for 100 lbs. weight * ** on the condition that the carrier assumes a liability on the stock to the extent of the following valuation: If horses or mules, not exceeding $200 each. If cattle or cows, not exceeding $75 each. If fat hogs or fat calves, not exceeding $15 each. If sheep, lambs, stock, hogs, or stock calves, not exceeding $5 each. If a chartered car, on the stock and contents in same $1,200 for the car load." The trial court charged the jury that: "It is competent for a shipper, by entering into a written contract, to stipulate the value of his property and to limit the amount of his recovery in case it is lost. This is the plain agreement, that the recovery shall not exceed the sum of $200 each for the horses, or $1,200 for a car load." The verdict was for $1,200-the car load limitation. In affirming the judgment the Supreme Court said: "It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and especially in the absence of any evidence to the contrary, that, as the rate of freight expressed is stated to be on the condition that the defendant assumes a liability to the extent of the agreed valuation named, the rate of freight is graduated by the valuation. * The 175 F.-35 presumption is conclusive that, if the liability had been assumed on a valuation as great as that now alleged, a higher rate of freight would have been charged. The rate of freight is indissolubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was because it was a rate measured by the valuation expressed. If the valuation was fixed at that expressed, when the real value was larger, it was because the rate of freight named was measured by the low valuation. * * It is further contended by the plaintiff that the defendant was forbidden, by public policy, to fix a limit for its liability for a loss by negligence at an amount less than the actual loss by such negligence. As a minor propositon, a distinction is sought to be drawn between a case where the shipper, on requirement, states the value of the property and a rate of freight is fixed accordingly, and the present case. It is said that, while in the former case the shipper may be confined to the value he so fixed, in the event of loss by negligence, the same rule does not apply to a case where the valuation inserted in the contract is not a valuation previously named by the shipper. [In the Hart Case the valuation of $200 per horse and $1,200 per car load had not been named by the shipper. They were inserted by the carrier in its live stock bills of lading, arbitrarily so far as the record shows.] But we see no reason for this distinction. The valuation named was the ‘agreed valuation,' the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation and was fixed on condition that such was the valuation and that the liability should go to that extent and no further." The court discusses many authorities, stating that the decisions in this country are at variance. It decides that it is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier; that the limitation as to value has no tendency to exempt from liability for negligence; that it does not induce want of care, but exacts from the carrier the measure of care due to the value agreed on, and the carrier is bound to respond in that value for negligence. "The compensation for carriage," says the court, "is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. * * A contract of the kind, signed by the shipper [and] fairly made, agreeing on the valuation of the property carried, with the 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, will be upheld as * * * proper and lawful." This case, Hart v. Pennsylvania, has been frequently referred to in subsequent decisions; but our attention has been called to none in which the Supreme Court has in any way modified the conclusions therein expressed. Libelant cites Calderon v. Atlas Steamship Co., 170 U. S. 273, 18 Sup. Ct. 588, 42 L. Ed. 1033. In that case the clause in the bill of lading read as follows: "It is also mutually agreed that the carrier shall not be liable for gold, silver, * * * 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." It was held by a majority of this court that this clause should be construed as requiring the carrier to pay up to the limit ($100 per package) when no value was expressed, under the rule that a document of this sort, susceptible of two constructions when prepared by one party, should be construed in favor of the other party. But the Supreme Court held that the language was not susceptible of two constructions, that there was no ambiguity about it, and that it provided that, where the goods were over the value stated and there was no prior declaration of value, with special agreement, the carrier should pay nothing in case of loss. Such a provision was manifestly void, but in so holding the Supreme Court did not at all qualify its earlier decision in Hart v. Pennsylvania R. R. Indeed, it reaffirmed it, stating that in the Hart Case and in other decisions, which it cited, 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 means of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives," etc. The provision in the bill of lading in the case at bar is very different. The carrier assumed liability for the amount named upon agreement to pay the freight specified, and accords to the shipper the right to have his goods carried and accounted for at their full value, provided he will state that value in advance and agree to pay freight at a rate proportionate thereto. Such an agreement is fair and reasonable, because it enables the carrier to ascertain in advance what risk of loss he runs in undertaking the transportation, so that, if he chooses to do so, he can protect himself by effecting a sufficient amount of insurance and also by exercising greater care in handling the more valuable packages. It is sought to distinguish the case at bar from the Hart Case on the theory that there has been no agreed valuation, but the amount has been fixed arbitrarily by the carrier without reference to the real value. But in the Hart Case the amount, per horse and per car load, was fixed arbitrarily by the carrier in its general form of live stock bill of lading. The shipper in that case signed the bill of lading, but that circumstance merely made it easier to prove that he was fully informed as to its terms. Here there can be no claim of ignorance, or of failure to observe obscure notices, because the printed form itself was the one generally used by libelant's agents, their firm name was printed on its face, and, as the District Judge found, "they were not imposed upon by a contract with which they were unfamiliar." In the Hart Case the court said: "The plaintiff did not, in the course of the trial, or by any requests to instruct the jury, or by any exception to the charge, raise the point that he did not fully understand the terms of the bill of lading, or that he was induced to sign it by any fraud or under any misapprehension. On the contrary, he offered and read in evidence the bill of lading, as evidence of the contract on which he sued." We have the same situation here. The only difference is the absence of plaintiff's signature from the bill of lading. But in the quotation supra from the Calderon Case it is indicated that agreements as to valuation may be effected by "specific regulations brought distinctly to the notice of * * * the shipper"; and in Cau v. Texas & Pacific Railway Co., 194 U. S. 431, 24 Sup. Ct. 663, 48 L. Ed. 1053, it is held that: 66 The carrier may modify his responsibility by agreement with shipper. A bill of lading limiting liability constitutes such contract and knowledge of its contents by the shipper will be presumed." Reference may also be had to the decision of this court in Bachman v. Clyde Steamship Co., 152 Fed. 405, 81 C. C. A. 529. The decree is reversed, with costs, and cause remanded, with instructions to enter a decree in conformity with this opinion. In re CARGO OF 3,408 TONS OF POCAHONTAS COAL. † In re CARGO OF 3,639 TONS OF POCAHONTAS COAL SHIPPING (§ 172*) — DEMURRAGE CONSTRUCTION OF BILLS OF LADING-SUBORDINATION TO USAGES AND NECESSITIES OF Port. The rights of schooners carrying cargoes of coal consigned generally to Portland, Me., under bills of lading of the new form providing that they should have precedence in discharging over all vessels arriving after them, explain with reference to whatever usages and necessities exist at that port, and with reference to the facilities there for discharging coal cargoes. [Ed. Note. For other cases, see Shipping, Cent. Dig. § 569; Dec. Dig. § 172.* Demurrage, see notes to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.] Appeals from the District Court of the United States for the District of Maine. Suits in admiralty by Alexander Ross, in behalf of himself and as agent of the owners of the schooner Helen W. Martin, against a cargo of 3,408 tons of Pocahontas coal, and by John G. Crowley, for himself and as agent for the owners of the schooner Van Allen's Boughton, against a cargo of 3,639 tons of Pocahontas coal; Samuel D. Warren & Co., claimants. Decrees for libelants, and claimants appeal. Reversed. For opinion below, see 165 Fed. 722. Edward F. McClennen (William M. Bradley and Brandeis, Dunbar & Nutter on the brief), for appellants. Benjamin Thompson (Edward S. Dodge, on the brief), for appellees. Before COLT, PUTNAM, and LOWELL, Circuit Judges. PUTNAM, Circuit Judge. These appeals relate to two cargoes of coal shipped to Portland, Me., consigned to the appellants, S. D. Warren & Co. There are no further details as to the place of consignment. The cargoes are to be taken, therefore, as consigned generally to the port of Portland, in which port are all the places of discharge of coal by water named in this litigation, and other places. S. D. Warren & For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ↑ Rehearing denied March 4, 1910. Co. had no place of discharge owned by them or under their special control. The cargoes were intended for shipment by rail to their mills, a few miles in the interior, at Yarmouth, which were directly reached by the Grand Trunk Railway only. Therefore it was quite desirable that the coal should be discharged at some place fitted by the Grand Trunk Railway for receiving it, of which there were several where it was physically possible that it should be so received for shipment over its rails. S. D. Warren & Co., through their agent, expressly directed one cargo to report to the Grand Trunk Railway. The other one was at first reported to the Maine Central Railroad Company, which refused to receive it; and afterwards it was received by the Grand Trunk Railway, although the record shows no express directions of S. D. Warren & Co. therefor. No question, however, seems to be raised, or could perhaps be raised, making any distinction between the two cargoes on this account. As to both of them, S. D. Warren & Co. apparently make the same claim, which we will take up later, that they had no control over the wharves of the Grand Trunk Railway. The bills of lading are what are called "new form." They were considered by us in Evans v. Blair, 114 Fed. 616, 52 C. C. A. 396, decided on March 4, 1902. It is enough for the present to say generally of this class of bills of lading that they contain, first, an allowance of a specific number of lay days, with, second, a provision that, notwithstanding that allowance, the vessel shall have her turn; and this provision made to operate so that, even if the vessel is discharged within the lay days expressly allowed, but fails to have her turn, the consignee may be "penalized" to a certain extent. It is on the latter that the libelants rely. Evans v. Blair has a broad outlook, and lays down certain principles on which S. D. Warren & Co. rely, and which are applicable generally to bills of lading which do not contain some specific provision to the contrary. By virtue thereof it was shown that it sometimes happens that, when the consignee has several places of discharge, the vessel may be compelled for reasonable business conditions to unload at one selected by him, although it would be possible to give her an earlier berth at another. In this connection, reference was made in Evans v. Blair to an observation by Lord Esher that the power given charterers to select a berth is for "business reasons"; and it was also pointed out that the option cannot be exercised arbitrarily. The foregoing are the leading principles of law to be applied to the facts in this case. The special paragraph in question here is aside from the ordinary relations between vessels and their consignees; its purpose being as described in the opinion of the learned Judge of the District Court in these cases. Ross v. Cargo of 3,408 Tons of Pocahontas Coal, 1651 Fed. 722. We said of it in Continental Coal Company v. Bowne, 115 Fed. 945, 946, 53 C. C. A. 427, 428, decided by us on April 24, 1902, as follows: "This clause is in the nature of a penalty, so that it ought not to be imposed unless the case comes clearly within the purpose which it intended to accomplish. That is the preventing of unjust discrimination." |