The opinion of the court was delivered by: Parsons, District Judge.
This libel action involves the $500 Limitation of Liability
provision of the Carriage of Goods by Sea Act, 46 U.S.C.A.
§ 1304(5). The Libellant, Atlantic Mutual Insurance Company,
was assurer of the consignee, Societe Belge Reineveld, of
Antwerp, Belgium. The Respondent is the carrier. The goods
consisted of certain ironing machine pads in one package,
stowed on Respondent's vessel for delivery upon arrival at
Antwerp on a day certain. The goods did not arrive as
scheduled. Instead, they were located eight months later in
In the meantime, Libellant assurer had paid the consignees
$1,070 pursuant to the insurance contract between them.
Approximately eighteen months after the contemplated date of
delivery, Respondent delivered the goods to the Libellant. The
Libellant, then in turn, offered the goods to the consignee,
Societe Belge Reineveld, on condition that the latter would
refund the $1,070 that had been paid it, but to this the
consignee refused to agree. Later the consignee agreed with
its assurer to buy from it the goods for $204.66, the alleged
value of the goods to Reineveld at the time it finally
received them, and the loss to Libellant, that is, the
approximate difference between the amount it paid the
consignee for the loss and the amount it received for the
goods in mitigation thereof, $725, became the amount sued on
in this action.
After having stipulated to certain facts, the parties
present the Court here with two questions:
"(1) Is the assurer-libellant entitled to
recover as damages from the carrier-respondent
the loss it experienced, that is, the difference
between the amount it paid the shipper under the
policy of assurance and the amount it received
from the mitigation of loss sale; and
"(2) If Libellant is entitled to recover from
the Respondent, may it recover the full $725 sued
for, or is its recovery limited to the $500 set
out in the Limitation of Liability provision of
the Carriage of Goods by Sea Act, Supra?"
The pertinent provisions of Title 46 U.S.C.A. § 1304, are
"(4) Any deviation in saving or attempting to
save life or property at sea, or any reasonable
deviation shall not be deemed to be an
infringement or breach of this Chapter or of the
contract of carriage, and the carrier shall not
be liable for any loss or damage resulting
therefrom: Provided, however, That if the deviation
is for the purpose of loading or unloading cargo or
passengers it shall, prima facie, be regarded as
Sub-section (5), which reads:
Prior to the passage of this Act in 1936, there was little
doubt that overcarriage beyond and to a different port than
the contracted destination was a material "deviation".
Niles-BementPond Co. v. D/S A/S Balto, 282 F. 235; General
Electric Co. v. Argonaut Steamship Line, Inc., D.C., 7 F. Supp. 710.
And in at least one case decided subsequent to the Act, it
has been recognized that overcarriage is a material deviation.
Shackman v. Cunard White Star, D.C., 31 F. Supp. 948 (1940).
A delay of one and one-half years in delivery is in itself
a material deviation, regardless of the fact of overcarriage.
The Citta Di Messina, 2 Cir., 169 F.472 (1909); The Hermosa,
9 Cir., 57 F.2d 20 (1932). All of these cases indicate that
such material "deviations" constitute fundamental breaches of
the contract of shipment.
There should be no doubt in the instant case that the
overcarriage here, coupled with the one and one-half year
delay in delivery, constitutes indeed an "unreasonable
deviation" justifying rescission of the contract of shipment,
under the law, either before or after the enactment of the
Carriage of Goods by Sea Act. What happened to the goods was,
under the least strict application of the law, an entirely
different venture from that contemplated by the parties.
Respondent here cites Hellyer v. Nippon Yesen Kaisya, D.C.,
130 F. Supp. 209, in support of its contention that mere
non-delivery is not an "unreasonable deviation," and should
not be the basis for contract rescission; but the issue here
was not actually presented in that case. Although Hellyer may
be quoted as stating that "mere non-delivery" is not an
"unreasonable deviation," the issue there was the effect of
"reasonable or unreasonable deviation" upon the determination
of the time of delivery for the purpose of applying the
limitation of action provision of the Carriage of Goods by Sea
Section 1303(6), Title 46 U.S.C.A. § 1303(6) provides that
any action in respect of loss or damages must be brought within
one year from the contemplated date of delivery or from the
date of delivery. The question raised by this provision is not
present in the instant case, for if we assume delivery to the
insurer after payment by the insurer to the shipper of the
loss, to constitute delivery to the consignee under the Act,
this action was brought within one year after delivery. At any
rate, the parties admit that there was no physical loss or
damage to the goods. Hence, 46 U.S.C.A. § 1303(6), does not
apply to the case at bar. United Merchants & Manufacturers,
Inc. v. United States Lines Co., 204 Misc. 989, 126 N.Y.S.2d
560 (1953). In the case before us, we have not only an eighteen
months and an unreasonable delay in delivery, if there was at
law delivery, but also a material overcarriage from ...