Isthmian Steamship Company, a Corporation v. California Spray-Chemical Corporation, a Corporation

300 F.2d 41 ISTHMIAN STEAMSHIP COMPANY, a Corporation, Appellant, v. CALIFORNIA SPRAY-CHEMICAL CORPORATION, a Corporation, Appellee. No. 16812. United States Court of Appeals Ninth Circuit. Jan. 26, 1962. McCutchen, Doyle, Brown & Enersen, by Russell A. MacKey and Bryant K. Zimmerman, San Francisco, Cal., for appellant. Hall, Henry, Oliver & McReavy, by Lyman Henry and Stephen McReavy San Francisco, Cal., for appellee. Before POPE, BARNES, and HAMLIN, Circuit Judges. 1 On petition for rehearing appellant filed a vigorous and extensive 1 brief. It raises questions regarding all of the main issues which were before the court on the original consideration of the appeal. We granted a rehearing, and the matter was again argued at length, and we again affirm the judgment below. 2 1. Validity of the Lighterage Clauses. 3 This court's opinion rested, essentially, upon the reasoning embodied in the trial court's decision. Both decisions hold that appellant cannot, by contract, avoid liability for negligent injury to cargo when such injury occurs before the cargo is delivered to a fit and proper wharf. This result stems from an application of Section 1 of the Harter Act, 46 U.S.C.…

On petition for rehearing appellant filed a vigorous and extensive 1 brief. *43 It raises questions regarding all of the main issues which were before the court on the original consideration of the appeal. We granted a rehearing, and the matter was again argued at length, and we again affirm the judgment below.

1. Validity of the Lighterage Clauses.

This court’s opinion rested, essentially, upon the reasoning embodied in the trial court’s decision. Both decisions hold that appellant cannot, by contract, avoid liability for negligent injury to cargo when such injury occurs before the cargo is delivered to a fit and proper wharf. This result stems from an application of Section 1 of the Harter Act, 46 U.S.C. § 190 .

The Harter Act was adopted

In pertinent part, Section 1 of the Act provides:

It would seem, then, that any attempt by the carrier to avoid liability for losses arising before delivery must fail. Once proper delivery has been made, however, the carrier’s liability, as far as the Harter Act is concerned, is at an end. It is, therefore essential •, to determine what a proper delivery is, and when such delivery is completed. The court below and this court on appeal held…

(concurring in the result).

While I think the court’s opinion reaches a correct result, I cannot agree with that part of the decision which relies upon the provisions of the Harter Act, 46 U.S.C. § 190 , for the purpose of invalidating the first part of paragraph 15 of the applicable bill of lading. 1

*50 I am unable to discover that any court has ever given to the Harter Act the construction which the majority opinion now proposes to give it. Even if it were true, which I am inclined to doubt, that the maritime law, apart from statute, required delivery to be made upon a wharf, as stated in the “dictum in Tan Hi v. United States”, 94 F.Supp. 432 , I can find nothing in the Harter Act or in the cases which construe it forbidding the parties to agree upon a place of delivery. 2

I am convinced that the appellant is right in its contention that § 1 of the Harter Act does not deal with the scope of the carrier’s obligation as to place of delivery; that the Act does not determine how, when or where the carrier must deliver the cargo but only prevents the carrier from avoiding liability for loss arising from negligence in delivery to such place as the carrier has in fact undertaken…