The opinion of the court was delivered by: PALMIERI
On or about May 18, 1953 libelant delivered to the respondent and to the S.S. American Flyer at London, England, his auxiliary sailing yacht Larus and a dinghy, one bundle of masts, and one bundle of spars for delivery at New York. The yacht was shipped on deck in accordance with the terms of a bill of lading issued by respondent to libelant. Stamped across the face of the bill was the following notation:
'On Deck at Shipper's Risk.'
The yacht rested on a cradle which was delivered to respondent by libelant. Two athwartship 4' X 4' shores were placed at each side of the cradle; and the yacht has held in the cradle by means of lashings. The bill listed the gross weight of the shipment as 11 tons.
The S.S. American Flyer arrived at New York, N.Y., on or about May 29, 1953. While the yacht was being unloaded a piece of the ship's tackle broke causing the yacht to fall some 18 inches into the cradle. The amount of damage thus caused to the yacht is in excess of $ 500. (The libelant seeks judgment in the sum of $ 7,788.) The respondent concedes that it is liable for the damage which occurred to the yacht but denies that it is liable for the amount of damages claimed and contends that its liability is limited to $ 500 by the terms of the bill.
Respondent's tariff on yachts at the time was as follows:
Up to 2 tons weight 80--w/m 65--w/m
Over 2 tons and up to 10 tons weight 85--w/m 70--w/m
Over 10 tons and up to 20 tons weight 95--w/m 80--w/m
Over 20 tons weight as per agreement
Freight was originally charged on the basis of 10-20 tons weight at the non-contract rate of 95 sh. per measurement ton, being the dock measurement for the yacht and cradle. Subsequently respondent was informed that the yacht without cradle did not exceed 10 tons and also that the owner was entitled to the contract rate. Therefore, the freight was reassessed giving libelant the benefit of the contract rate and the rate for yachts between two and ten tons weight, namely, 70 sh. per measurement ton, and $ 383.05 was refunded to libelant. Both rates were assessed and calculated for an imaginary rectangular space measured from the bow and the stern of the yacht to the deck of the ship and as wide as the width of the yacht, at 4308 cu. ft., 11 cu. in. A measurement ton is calculated on 40 cu. ft.
The bill contains the following clauses which are pertinent to this action:
'13. The goods may be stowed in poop, forecastle, deckhouse, shelter deck, passenger space, storeroom bunker space or any other covered-in space and when so stowed shall be deemed for all purposes, including General Average, to be stowed under deck.
'In respect of goods carried on deck, and stated herein to be so carried, all risk of loss or damage by perils inherent in or incident to such carriage shall be borne by the shipper and consignee, but in all other respects the custody and carriage of such goods shall be governed by the terms of this bill of lading and the carrier shall have the benefit of all and the same rights, immunities, exceptions and limitations contained in said Carriage of Goods by Sea Act, notwithstanding Sec. 1(c) thereof, or the corresponding provision of any similar Act that may be applicable.'
'23. In the event of any loss, damage or delay to or in connection with goods exceeding in actual value $ 500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, the value of the goods shall be deemed to be $ 500 per package or per customary freight unit, as the case may be, and the carrier's liability, if any, shall be determined on the basis of a value of $ 500 per package or per customary freight unit, unless the nature and a higher value shall be declared by the shipper in writing before shipment and inserted in this bill of lading.
'In the event a higher value is declared by the shipper in writing and inserted in this bill of lading and extra freight paid thereon if required, the carrier's liability, if any, for loss, damage or delay to or in connection with the goods shall be determined on the basis of such declared value and pro rata of such declared value in the case of partial loss or damage, provided such declared value does not exceed the actual value of the goods.
'In the event of any loss, damage or delay to or in connection with the goods of a value of $ 500 or less than $ 500 per package, lawful money of the United States or in case of goods not shipped in packages, per customary shipping freight unit, the carrier's liability, if any shall be limited to the invoice value of the goods unless otherwise stated herein, on which basis the rate of freight is adjusted. It is not intended that such invoice value shall be an agreed valuation and it is agreed that in no event shall this clause operate to increase the extent of the carrier's liability beyond the market value at port of discharge, if that be less than invoice value.
'It is understood that the meaning of the word 'package' includes pieces and all articles of any description except goods shipped in bulk.
'In no event shall the carrier be liable for more than the loss or damage actually sustained. The carrier shall not be liable for any consequential or special damage and shall have the option of replacing any lost goods and of replacing or repairing any damaged goods.'
The facts as above set forth are drawn from a stipulation entered into between the parties. In addition, at the trial, libelant conceded that the yacht was not 'goods shipped in bulk.' Certain other proofs were adduced at the trial but, with one exception mentioned below, I do not find that any facts are relevant to my decision other than those set forth above.
The bill shows that the libelant did not enter thereon a declaration of value for the shipment and the freight was accordingly calculated as set forth above. Respondent's tariff, entered in evidence, provided for an additional freight assessment in the case of goods exceeding in value per package, the value of ...