236 FRANKFURTER, J., dissenting. The judge's function and responsibility become otherwise once the legislature has formulated public policy. Courts are then no longer at large. They must carry out the defined policy and disregard their own determination of what the public good demands. See Twin City Co. v. Harding Glass Co., 283 U. S. 353, 357. By the Harter Act, Congress supplanted the judicial view of public policy with its own ideas. The legislation, as is so often the case, represents a compromise among competing interests. The carriers were relieved of their judicially imposed insurers' liability. In return they were required to forego the possibility of avoiding by contract certain specified. obligations. Finally, if those obligations were in fact performed, recovery against the carrier for damages to cargo due to faulty navigation was altogether disallowed. This provision, embodied in § 3 of the Harter Act,* necessarily expressed a rejection of the judicially conceived premise as to public policy which was the foundation of the decisions which antedated legislation, namely, that liability for negligent navigation was a necessary spur to the carrier's exercise of care. Since that premise has been discarded by Congress, no justification remains for us to revive it as a basis for striking down the agreement here in question. "The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before." John 3 This proviso was eliminated by the Carriage of Goods by Sea Act of 1936, 49 Stat. 1207, 1210, 46 U. S. C. § 1304. 427 Stat. 445. FRANKFURTER, J., dissenting. 343 U.S. son v. United States, 163 F. 30, 32 (per Holmes, J.); see Landis, Statutes and the Sources of Law, in Harvard Legal Essays, 213. To be sure, the Harter Act did not in terms prescribe that the carrier should have recovery over against cargo for the amount of its liability to a non-carrying ship, attributable to payments made by the non-carrier for damage to cargo in a collision for which both vessels were to blame. Hence we held in The Chattahoochee, 173 U.S. 540, that no such recovery was available to a carrier by mere force of the Act. Similarly, and in the same period shortly after the passage of the Harter Act, we held that, since the Act did not specify that the carrier should participate in a general average when the peril to which it related was the result of the carrier's faulty navigation, no such participation could be had if the carrier had not stipulated for it. The Irrawaddy, 171 U. S. 187. But when a carrier did contract for such participation, the force of the Harter Act required this Court to sustain the stipulation. The Jason, 225 U. S. 32. "Instead of merely sanctioning covenants and agreements limiting [the shipowner's] liability, Congress went further and rendered such agreements unnecessary by repealing the liability itself, declaring that if the shipowner should exercise due diligence to make the vessel in all respects seaworthy, and properly manned, equipped and supplied, neither the ves 5 The general average is a doctrine of maritime law which provides that where a portion of ship or cargo is sacrificed to save the residue from peril of shipwreck, each owner of property saved contributes in proportion to the value of that property to make up the loss of those whose property has been sacrificed for the common benefit. It was characteristic of Dean James Barr Ames's power of fertile generalization to find in the maritime doctrine of general aver manifestation of the more comprehensive quasi-r against unjust enrichment. 236 FRANKFURTER, J., dissenting. sel, her owner or owners, etc., should be responsible for damage or loss resulting from faults or errors in navigation or in the management of the vessel, etc., etc. The antithesis is worth noting. Congress says to the shipowner-'In certain respects you shall not be relieved from the responsibilities incident to your public occupation as a common carrier, although the cargo owners agree that you shall be relieved; in certain other respects (provided you fulfill conditions specified) you shall be relieved from responsibility, even without a stipulation from the owners of cargo.'" The Jason, supra, at 50-51. "In our opinion, so far as the Harter Act has relieved the shipowner from responsibility for the negligence of his master and crew, it is no longer against the policy of the law for him to contract with the cargo-owners for a participation in general average contribution growing out of such negligence; Id., at 55. The present case bears exactly the same relation to The Chattahoochee that The Jason bore to The Irrawaddy. To revive notions of public policy which Congress rejected in 1893, disregards the appropriate considerations that governed application of the Harter Act in the earlier decisions. To derive from a statute, which relieves a Reliance by the Court on The Kensington, 183 U. S. 263, is surely misplaced, and the quotation from it must be put in its setting. That was a case in which recovery was sought for damage to a passenger's baggage, although the ticket contained a stipulation against the carrier's liability. The Court noted that the Harter Act immunity from liability for negligence applied only to vessels "when engaged in the classes of carriage coming within the terms of the statute." Id., at 268. Without deciding whether passengers' baggage was such a class of carriage, the Court struck down the stipulation on the ground that, if the Harter Act applied, the agreement was void as violative of the Act in that it sought immunity for negligent 343 U.S. FRANKFURTER, J., dissenting. ship entirely of liability to cargo when the ship is wholly to blame for the loss, an implied restriction against a voluntary arrangement for relief from liability when the ship is only half to blame, is surely an odd use to which to put such a statute. When this Court does fashion a rule of public policy it ought to be less perverse and illogical than that in its operation. It is suggested, however, that the real meaning of the Harter Act is that carriers are remitted to Congress for whatever immunities they were to be granted. That is a most doctrinaire view to take of the legislation, and The Jason, supra, disposes of the notion. What Congress did was to legislate generally about the relations between carrier and cargo in seagoing commerce. Generally, but not comprehensively as though it formulated a maritime code excluding all consensual arrangements within the stowage, specifically forbidden by the Act; if the carriage of passengers' baggage was not among the classes exempted from liability by the Act, then of course, the cases voiding such stipulations with respect to baggage retained their force. Certainly a decision affirming the continued applicability of these cases as to baggage, goods for which Congress has not withdrawn carrier liability for negligence, and in any event not for negligent stowage, is totally inapposite to the question whether pre-existing case law should be applied to cargo, where Congress has granted the carrier immunity from such liability. But even if it did not, the argument appears to be drawn from the blue. It would have basis in reality if Congress had, by the Harter Act, carved an exception from a pre-existing rule outlawing all agreements between shipper and carrier regarding liability. The general prohibition would continue in force because the Harter Act would have been a defined, limited qualification. But there was no such rule, either judge-made or statutory. Congress had taken no action. And this Court did not outlaw such agreements generally. It struck down specific agreements for specific reasons grounded in its view of public policy. That premise of policy was denied validity by the Harter Act. It smacks of the fanciful to suggest that what Congress really did was to raise a proviso to an existing absolute rule based on that premise. 236 FRANKFURTER, J., dissenting. industry. That legislation "indicate[s] or require[s] as its justification a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind." Johnson v. United States, supra, at 32. We should heed the admonition of Mr. Justice Holmes "that courts in dealing with statutes sometimes have been too slow to recognize that statutes even when in terms covering only particular cases may imply a policy different from that of the common law, and therefore may exclude a reference to the common law for the purpose of limiting their scope." Panama R. Co. v. Rock, 266 U. S. 209, 215-216 (Holmes, J., with Taft, C. J., McKenna and Brandeis, JJ., dissenting). This is such a statute. I would recognize that the Congressional pronouncement of public policy-when it exempted carriers from liability for faulty navigation-precludes our striking down the clause here in issue. |