c33:No. 44

MACK, Circuit Judge
(dissenting). In Calderon v. Atlas Steamship Co., 170 U. S. 272, 18 Sup. Ct. 588, 42 L. Ed. 1033, the Supreme Court, reversing this court (69 Fed. 574, 16 C. C. A. 332), which, with Judge Wallace dissenting, had' affirmed Judge Addison Brown’s decision (64 Fed. 874), held the clause of the bill of lading there in question void because it interpreted the language as an exemption from all liability for property over $100 in value, not as a valuation of the property at $100 for the purposes of the transportation and of the freight charges. In all of the courts the law was deemed settled that such an exemption clause would be invalid as a limitation-of liability. The necessity of determining whether it was an exemption or a valuation clause — and it was on the interpretation that the members of this court differed— resulted from the implied assumption that a valuation clause would have been valid even in a deviation case. The validity of the valuation clause was not thus assumed without argument; the briefs filed in this court discuss the very question. The case is therefore at least persuasive that a valuation clause which, as distinguished from an exemption clause, has been upheld as valid in the federal courts, at least since Hart v. Pennsylvania R. R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717, measures the amount of recovery even in a deviation case.
In the paragraph following the language quoted in the opinion of my Brethren from D’Utassy v. Barrett, 219 N. Y. 420, 114 N. E. 786, 5 A. L. R. 979, the court says:
“The distinction must be borne in mind between a limitation oí liability and an agreed valuation in case of liability. When it is urged that the limitation of value should not be applied to any case of theft by the carrier’s employees, for the reason that the company is liable for such acts as if the company had been the thief, * * * the argument loses sight of this distinction. * * * The liability may exist and the valuation of the shipment in case of liability may be agreed upon when the rates for transportation are based on the valuation of the goods entrusted to the carrier. * * * While the rule should not be extended to permit a carrier to realize a profit by converting valuable shipments, such conversions are so unusual as to be almost negligible. It would be unjust and contrary to the policy of the law to permit the agreed valuation to be overthrown for the purpose of enabling the shipper to obtain a recovery in excess thereof in a suit for loss or damage on any theory of trover or conversion for loss of goods by wrongful deliveries or acts of employees for their own benefit, based, not on the wrongful misconduct of the carrier as such, but on the act of the employee.”
In that case, as in Moore v. Duncan (6th C. C. A.) 237 Fed. 780, 150 C. C. A. 534 (Adams Express Co. v. Berry & Whitmore Co., 35 App. D. C. 208, 31 L. R. A. [N. S.] 309, contra), a valuation clause was upheld, even when the loss resulted from theft by the carrier’s employees. It does not follow, however, that the valuation clause would serve to limit liability in all cases. It. would be clearly against public policy to enrich the carrier thus to limit its liability and thereby to enrich itself, by an actual taking and. retention of goods, as distinguished from a conversion due to negligent deviation, or from an imputed conversion due to the acts of employees for their own personal enrichment.
It is unnecessary in this case to consider the effect: of a deviation ordered or directed with “privity or knowledge” of the owner, and not merely of the servants, including therein even the master of a vessel, or whether the liability is increased, if such a deviation be for the very purpose of enrichment by actually converting the goods to such owner’s use. Even assuming- — though without assenting thereto — that an improper shipment on deck is equivalent to a deviation, clearly in the case at bar there was no conversion with knowledge or privity of the shipowner, or for its enrichment. For while evidence of a contemporaneous oral consent to shipment on deck of goods which, but for consent, the carrier would be obligated, under a clean bill of lading, to carry under deck, is held in The Delaware, 14 Wall. 579, 20 L. Ed. 779, not admissible to vary even this implied obligation, it would seem clearly admissible on the question of the carrier’s intent thereby actually to convert the goods and thus to enrich itself.
In this case, as I interpret Judge Hough’s opinion- — contrary to the views of my Brethren — he has found that there was such oral consent by the shipper. He says:
“Tlie motors were only deck-laden because of and after an agreement on the part of Spiero [slijpper’s representative.! that they would be insured against sea peril as deckladen- — the charterers paying the extra premium.”
The testimony clearly shows that no bill or request for such extra premium was ever sent to the charterers. There is a liability to the holder of the bill of lading for the breach of the implied under-deck shipment obligation. It is immaterial whether this breach be called a deviation, or treated as analogous to a deviation, or not. The liability is that of an insurer in so far as the loss or damage resulted from this breach; that is, the benefit of the exceptions, in the bill of lading, to such liability is lost.
But the question remains: Inability for what and in what sum? In my judgment’, Judge Hough has given the correct answer in the circumstances of this case of a breach not by or with the privity or knowledge of the owner and/or for his personal gain — liability only for the agreed value of the goods as stated in the bill of lading.

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