Circuit Court of Appeals, Second Circuit.
*544 Lord, Day & Lord, of New York City (Franklin Grady, of New York City, of counsel), for plaintiff in error.
Louis Boehm, of New York City (Samuel Zeiger, of New York City, of counsel), for defendant in error.
Before HOUGH, MANTON, and HAND, Circuit Judges.
HAND, Circuit Judge (after stating the facts as above).
In The Persiana, 185 F. 396, 107 Cow. C. A. 416, we held that a notation of damage upon the ship's receipt signed by the consignee was not enough to satisfy a clause which read that the ship should not be liable "for any damages to any goods, notice of which is not given before the removal of the goods." That was a far stronger case for the consignee than that at bar, because the bill of lading did not require, as here, that a claim should be made, but only notice of the damages themselves. The San Guglielmo, 249 F. 588, 161 Cow. C. A. 514, was very nearly on all fours. There the bill of lading read that the ship should not be liable "for any claim, however arising, of which notice is not given before removal." We held insufficient under that clause evidence that the consignees had called the captain's and dock superintendent's attention to the fact that the goods were damaged. In The St. Hubert, 107 F. 727, 46 Cow. C. A. 603 (C. C. A. 3), the drayman had the damage noted on the receipt which he gave, but it was held insufficient under a clause like that at bar. The Westminster, 127 F. 680, 62 Cow. C. A. 406 (C. C. A. 3), is to be distinguished, in that while the damage was apparent no notice of it was given. Under such circumstances there was, of course, no possibility of spelling out a claim for damages. *545 The upshot of these cases is that notice that the goods have been damaged is not notice of a claim for recoupment. The result is perhaps a narrow interpretation, and has not been established in this circuit without strong opposition. Its existence is, however, unquestioned, and it seems to us undesirable by nice distinctions to invite perpetual litigation in its application. There can, indeed, be no doubt that it is one thing to advise a ship of the fact that she has discharged damaged goods and another that you mean to hold her for the loss. The two may shade into each other, but they are quite distinct. We may concede that notice of damage ordinarily presupposes that the consignee is contemplating a claim, but it is not equivalent even to an assertion that he will make one in the future; certainly it is not a claim in præsenti. He may conclude that he has no rights against the ship under the bill of lading, or that, if he has, it is not worth his while to press them. A protest is not a claim.
In the case at bar the plaintiff did not do more than protest and reserve his rights. It is true that he did more than in The San Guglielmo or The Persiana in this: That not only did he call the attention of the ship's agents to the damage, and have it noted on the receipts, but he took an agreed tally. But all of this did not go beyond showing that he was preparing for a claim, which he might or might not finally decide to present. It is impossible even to know whether he then intended to make one; but, if it were possible, that would not be enough. The phrase calls for more. A ship is not bound by inference to gather the consignee's purposes; there must be language showing an intention to make the claim. While it need not be written or formal, it must advise the ship unequivocally that she is to be held. We can find nothing in the facts we have recited on which a jury could say that this had been done.
Since there must be a new trial, we add the following directions for its conduct: The plaintiff may recover for all marble not removed before the claim for damages of September 18, 1919. Whether the slabs left in the lighter were removed, we do not now decide. The same evidence will support a second verdict of negligence in the discharge. The phrase "invoice value" means the amounts written into the invoices taken as of the time of shipment, and it means nothing more. It differs from "invoice price" only in the fact that the terms of sale may require discounts from the prices to arrive at present value. Arthur v. Goddard, 96 U.S. 145, 24 L. Ed. 814. Duties cannot be included; the clause was general, applying to losses at sea, as well as to damage to goods unladen. It must have a single meaning. It is true that in Pierce v. So. Pac. Ry. Co., 120 Cal. 156, 47 P. 874, 52 P. 302, 40 L. R. A. 350, freight was added, in the case of a similar provision; but we are not advised for what reason. When freight is prepaid, it becomes part of the value; but we think it impossible to regard it as part of the "invoice value," and to allow it seems to us to ignore the language used.
Judgment reversed, and new trial ordered.
