of plaintiff's loss, then defendant would not be relieved of liability by the Act of God. In order to rebut the presumption of negligence on its part, defendant introduced evidence that the flooding of its Edgewater warehouse could not have reasonably been guarded against or anticipated. The testimony was that during the seven years defendant occupied the warehouse prior to 'Donna', the river tide had never risen to the level of the warehouse floor; that 'Donna' was the first hurricane to pass within 50 miles of New York in those seven years; that no sufficient warning was given by the Weather Bureau concerning the high tides; that even if defendant had adequate warning, it could not have moved plaintiff's merchandise in time because of the lack of available storage space and the total volume of other merchandise on the floor; and that increasing the dunnage would have been futile because of the height attained by the flood water in the building.
On the other hand, there was testimony, favorable to plaintiff, that as much as 70% Of the first floor of the Edgewater warehouse was, at normal high tide, three to four feet above the water of the Hudson River; that defendant should not have stored goods over the river without making an investigation of the tides in the area during storms; that such an investigation would have disclosed that on a number of occasions prior to 'Donna', the waters of the Hudson must have risen to or above the level of the warehouse floor; that defendant received adequate warning, a day or two before, that a hurricane was moving up the Atlantic Coast; that defendant should have been aware of Weather Bureau Reports from New York City, about twelve hours before the full force of the hurricane struck Edgewater, concerning the approach of the storm and the forecasted high tides; that defendant took no precautions to protect the goods in the warehouse from flood damage either before or after it learned of the approaching hurricane; and that the use of additional dunnage by the defendant would have mitigated or avoided the loss, but was not attempted.
Upon considering all the evidence presented in this case, the Court finds as a fact that defendant was negligent in storing plaintiff's goods in its Edgewater warehouse without taking sufficient precautions to insure that high tides caused by a severe storm such as Hurricane Donna would not result in the flooding of its warehouse. The Court also finds that, despite the fact that 'Donna' qualifies as an Act of God, defendant's negligence was a substantial factor and cause of the damage to plaintiff's merchandise. In view of these findings, the Court need not consider the other contentions made by the parties on the issue of liability.
On the question of damages, plaintiff has presented evidence that the replacement value of the damaged goods was $ 41,434.13. In addition, plaintiff adds freight and labor charges, and deducts salvage value, resulting in a total claim of $ 40,622.17. Defendant contends that its liability, if any, is limited under section 10(f) of the warehouse receipt, to $ 26,271.00, which is derived from the base storage rate of.$ 0.7 per cwt. and the weight of 75,060 lbs. listed on defendant's delivery order for the 1688 damaged cartons 'returned for salvage' (500 X $ .07 X 750.6).
Plaintiff argues that the limitation of liability in section 10(f) is not binding on it for the reason that said section was not specifically called to plaintiff's attention by defendant. See Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 396-397, 161 A.2d 69, 75 A.L.R.2d 1 (1960). However, Henningsen and the cases cited therein deal with situations where the seller has an unfair bargaining advantage over the buyer. Such cases have no application where both parties are business corporations, engaged in a commercial relationship with one another over an extended period of time, and where the contract fairly spells out the limitation of liability and contains a provision for extra charges if an excess value is declared. Such a reasonable contractual limitation of warehouseman's liability is not invalid under New Jersey law, in the absence of fraud or a violation of public policy. See Henningsen v. Bloomfield Motors, Inc., supra; Silvestri v. South Orange Storage Corp., 14 N.J.Super. 205, 81 A.2d 502 (1951); N.J.S.A. 12A:7-204(2), 12A:2-719(3). Therefore, the Court finds that defendant's liability in this case is limited to $ 26,271.00.
This opinion shall constitute findings of fact and conclusions of law under Rule 52(a) of the Federal Rules of Civil Procedure.
Judgment will be entered for plaintiff for $ 26,271.00 plus interest. Submit order.