'rHE BADJI·.
459
filed claims under the forty-third rule against the proceeds iIi the registry, which have been allowed to the extent of about $900.. As between the libelant and this defendant, the earnings of the vessel constituted the fund primarily liable for the payment of these liens j and if any of her earnings remain in this defendant's hands unaccounted for, the libelant has a right to have these liens to the amouut of $900 paid out of such earnings by the defendant before the proceeds of the vessel in the registry are charged with these liens; and if the defendant will not pay these liens out of these earnings, the primary fund applicable thereto, then the libelant has a clear and undoubted equity to have these liens charged upon the defendant's share of the proceeds of the vessel in the registry, before his own share is burdened with themjat least, to the amount of these earnequitable right can thus be enings in the defendant's hands. lorced and satisfied, and a decree "according to· law and justice" would seem to require this to be done. In the language of WARE, J., in the case of The Larch, 3 Ware, 33, the vessel "would only be liable for the balance of the liens after appropriating the funds in his possession arising from her earnings j for it was his duty to appropriate to the vessel." And so it is the duty of this these before defendant, before making any claim to the proceeds of this vessel, and suffering these liens to be charged wholly upon the vessel,. to appropriate to the payment of them any balance of earnings in his hands. Justice, under the forty-third rule, demands that this should be required of him now, and an account of these earnings must be taken in order to ascertain how much of these liens is to be wholly charged on this defendant's share of the fund in the registry. It is in the common course of the admiralty tf) recognize the equitable to their rights of the parties before it; to marshal liens priorities; and to distribute any funds in its possession so as to satisfy the equitable rights of the parties before .jt, without turning them over to further suits in other tribunals. Ben. Adm. Pro § 560; The Eleanora, 17 Blatchf. 88, 105; In re Wright, 16 REP. 482 j Macl. Shipp. 706,707. The report of the commissioner as to the claims of the varions petitioners is sustained, and the exceptions overruled.
1'mn
lIADJI.
(Dutrlet (JO'U'I't,8. D. N6tlJ York. BILL OF' LADING - COMMON CARRmR8 VALUE OF' GoODS.
November 1,,1883.,
PARTIAL LIMITATION' OF' LIABILITY-
A stipulation in a bill of lading that" in case of 1088, damage,or non-deliverv the ship-owner shall not be liable for more than the invoice value of the goods i, is valid lis a reasonable regulation prOViding a rule of damages in case of competent to the parties to adopt, and convenient and politic in practice fo; the speedy settlemtmt of losses and the suppression of litigation. '
4:60
FEDBRAL REPORTEB.
In Admiralty. Sidney Chubb, for libelant. Butler, Stillman .:t Hubbard, for claimant. BROWN, J. Under a decree of this court adjudging the libelant tntitled to damages for injuries to 14 cases of goods shipped on the Hadji from New York to St. Thomas, West Indies, for negligence in the construction or repair of her ballast tanks, (16 FED. REP. 861,) the damages have been adjusted by the commissioner upon the basis of six and one-half cents per yard as the market value of the goods at St. Thomas, if uninjured. Exceptions have been filed to this finding, grounded upon the provisions of the bill of lading, which, besides undertaking to exempt the ship from losses through negligence, contained a clause in these words: "In case of damage, loss, or nondelivery, the ship-owners are not to be liable for more than the invoice value of the· goods." The invoice value was five cents per yard instead of six and one-half. The latter price has been allowed by way of damages, on the ground that where the injuries were caused by the fault or negligencEl of the vessel or her owners, any limitation upon the recovery of full damages is invalid. The case of The Hin-doo, 1 FED. RE;P. 627, which is referred to a.a authority for this view, does not seem to me to meet the present eaSEl. An examination of the record in this court shows that the limitation of liability ill the case of The Hindoo was fixed by a printed form of the bill of lading at £100; the value of the goods lilhipped was very much greater; and the clause of limit'Jtion was a general one, applicable to .all shipments and all goods, without any reference either to the cost or value or amount of goods shipped. The limitation to £100 was, therefore, manifestly as arbitrary and. as unreasonable as a general exemption from all liability would have been, and justly held, therefore, to be within the principles laid down in Railroad Co. v. Lockwooa,, 17 Wall. 857, and in Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174. Those cases, however, expressly recognize the lawfulness of stipulations for limitation of liability whioh are just and reasonable, and it is for the court to determine whether any particular limitation is just and reasonable, and oonsistent with the rights of the community and sound policy. . In the case of Express Co. v. Caldwell, 21 Wall. 264, STRONG, J., says, (page 266:) "It is undoubtedly true that special contracts with their employers, limiting their liability, are recognized as valid, if iQthe judgment of the courts they are just and reasonable, if they are not in conflict with sound legal policy, * * * and even when such a stipulation has been obtained, the court must be a.ble. tq see that it is not unreasonaMe." Again be ,says, (page 267:) !tiS now 'the la.w that the responsibility of a common carder may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as U
'IRE JUDJI.
461
the law can recognize as reasonable, and not inconsistent with sound pUblic policy."
In several decisions of the federal courts in this and other circuits, the stipulations of express companies limiting their responsibility to a. fixed sum, unless a larger value of the goods was disclosed, have been held to be reasonable and sustained as valid, as in effect fixing by agreement the value of the goods. Hopkins v. Westcott, 6 BIatch£. 64; Muser v. Amer. Exp. 00.1 FED. REP. 382; Mather v. Amer. Exp. Co. 2 FED. REP. 49. So various stipulations in bills of lading, or iD carrier's receipts, have long been held competent, in case of loss or damage, to change the burden of proof from the carrier and throw it upon the shipper, to enable the latter to recover, (Clark v. Barnwell, 12 How. 272; Transp. CO. Y. Downer, 11 Wall. 129; Wertheimer v. Pennsylvania R. Co. 1 FED. REP. 232;) and in the case of Exp. Co. v. CaldweU, 21 Wall. 264. above referred to, a stipulation requiring all claims for damage or loss to be made within 90 days, was upheld as a reasonable limitation. Lewis v. Great Western. etc., Co. 5 Hurl. & N. 867. In stipulating, as in this bill of .lading. that in case of loss or d'amage the liability of the ship-owners should not extend beyond theinvoice value ofthe goods, the parties have in effect agreed 11pon the value of the goods for the purpose of adjusting any loss that ,might arise; they have provided a rule of damages for themselves, to the effect that the owner should, be indemnified for the actual cost of his goods, but should not claim any expected profits in a foreign market. There appears to me to be nothing so unreasonable Or impolitic in this stipulation. 0/.' rule ofda:mages, as to warrant the court in holding it void. In principle, it falls within the above cited of which it is competent for the parties to make. It has nothing analogous, 8,S it seelDS tome, to those stipnlll.tions which provide for a total exemption of a. carrierfrolD. liabilityfor his' own negligence, which the supreme in Railroad CO. Lockwood, and in other cases, ha,ve condemned.' ' ,.;,,'" ... The foundation of the rule in the cases last referred . by STRONG, J., (93 U. S. 183) to be "that it tendstotpe.greatef's,q9urity of consignors, who always deal with such cai'riersat 'il, disadviutage; it tends to induce greater care and watchfulness inthosetowbom ano'Wtler intrusts his goods, and by whomalolie can or be exercised. Any contract thatwithdraws'a moti've that makes a failure to bestow upon the duty assumed extreme vigiconlance and caution more probable, takes away the signors, and makes common carriers more luirillia;ble...·'" In '$ atipulation which subjects the carrier to liability for aU' atitttabeost or outlay, and in effect'merelyex.cep.ts etpected pro1itB, there, is, no lack .of induoement in the carrier, to the 'utmost <iare and diligence'; nor can the ..additional lia.bility for expected. profits, of the value in a foreign market,be deemed to add, substantially to the
'462
FEDERAL REPORTER.
motives already existing as a guaranty for the full performance of a carrier's duty. are, moreover, speoial reasons of convenience and policy why thIS measure of damages may well be adopted between the parties and sustained by the court. In case of loss or injury it avoids controversyas to the value in foreign and distant countries, often a matter difficult to ascertain with any ,aocuracy, and uncertain and unsatisfactory on the proofs. The invoice value, as the limit of liability, renders the a.scertainment and adjustment of the damages comparatively easy, and tends materially to check the litigious prosecution of exaggerated claims of damage which this court has been often called on to rebuke. , Where such a stipulation is deliberately entered into, as evidenced by the bill of lading and the shipment of goods under it, I think it should, therefore, be sustained as one which is reasonable and competent for the parties to make, and in no degree incompatible with jhe principle of the decisions above referred to. The charge of the circuit judge in Hart v. Pennsylvania R. 00. 7 FED. REP. 630, is direotly in point, sustaining the validity of such a stipulation as the ,present, and, as it seems to me, should be followed. This exception is therefore allowed, and the amount due should be adjusted acoordinalv.
THlil
VENTURE.
(District Court, W. D. Pennsylvania. May
Term, 1883.)
of water, to avoid the delay ofawll.iting her,turn through the locks at one of the dams, passed over the dam sMely, but struck her tow against a bridge-pier a short distance below, and sunk one of her barges. Held, that the tow-boat was answerable. 3. SAME-SUIT 1N REX SY BAILEEs. The bailees of lIo barge injured by the negllgence of a tow-boat may sue the wrong-doing vessel in rem In admiralty, and recover the full damages for the , injurY.' In Admiralty. KrtO:'Nt Reed, for libelants. ThonifU' Lazear, for respondents. ACHESOKjJ. On the momingot February 5, 1883,'the, tow-boai Ventul'e',was descending the Monongahela. river, ha.ving in tow two barges, one on either side of her, andr;lhree fltitson the head of the barges, all 10aded with coal; the w:dth of the tow at the head being
2. SAME-Tow-BoAT HELD ANSWERABLE FOR INJURY TO Tow. A tow-boat descending the Monongahela river, at a high stage
