12 F.2d 721 (9th Cir. 1926), 4748-4750, United States Shipping Board Emergency Fleet Corp. v. Rosenberg Bros. & Co.

Docket Nº:4748-4750.
Citation:12 F.2d 721
Party Name:UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. ROSENBERG BROS. & CO. SAME v. CALIFORNIA WINE ASS'N. SAME v. S. L. JONES & CO.
Case Date:May 10, 1926
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 721

12 F.2d 721 (9th Cir. 1926)

UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION

v.

ROSENBERG BROS. & CO. SAME

v.

CALIFORNIA WINE ASS'N. SAME

v.

S. L. JONES & CO.

Nos. 4748-4750.

United States Court of Appeals, Ninth Circuit.

May 10, 1926

Appeals fro the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge.

Ira S. Lillick and Chalmers G. Graham, both of San Francisco, Cal. (A. M. Boal, F. R. Conway, O. P. M. Brown, and H. F. Birnbaum, all of Washington, D.C., of counsel), for appellant.

J. M. Mannon, Jr., Farnham P. Griffiths, and McCuthen, Olney, Mannon & Greene, all of San Francisco, Cal., for appellees.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge.

These are appeals in admiralty from decrees against the Shipping Board Emergency Fleet Corporation in three cases, consolidated, instituted by the shippers and owners of cargoes lost on the steamship West Aleta of the European Pacific line, operated by the respondents under contract by Williams, Dimond & Co., from ports on the Pacific Coast to ports in the United Kingdom and the continent of Europe. The suits were carried on as between the cargo insurers, who paid the losses in full, and the operators of the ship, who were fully covered by insurance against any damages that might have to be paid for deviation.

Libelants claimed for failure to deliver, caused by deviation from the voyage. Respondents answered that the loss was occasioned by stranding, error in navigation, peril of the sea, and that, under the terms of the contract of carriage and the Harter Act (27 St. 445; Comp. St. Secs. 8029-8035), they were not liable.

The goods were shipped in 1920 at San Francisco under separate bills of lading, some naming Cardiff, Wales, some naming Rotterdam, Holland, as the ports of destination. Taking the bill of lading in one of the cases as an exemplar, it sets forth receipt of the merchandise to be transported by the West Aleta to be carried on said vessel operated by or on account of the United States Shipping Board Emergency Fleet Corporation

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or the United States Shipping Board, 'with leave * * * to touch at any port or ports in any rotation or order in or out of the customary route, and to call at any port or ports more than once, unto the port of Cardiff, and there deliver in like apparent good order and condition at the vessel's tackles under order,' etc. On the face of the bill of lading there was the following clause: 'The vessel shall have liberty to deviate for the purpose of making trial trips and shall pay any reasonable increased cost of cargo insurance, if any, incurred in consequence thereof. ' After a description of the goods there is the following clause: 'It is mutually agreed that the ship shall have liberty * * * to deviate for the purpose of saving life or property. ' And in the conditions included on the reverse side of the bill of lading this clause: 'Also, that if on account of weather, * * * war, or other disturbances * * * or any causes beyond the control of the carrier, it should be considered impracticable or unsafe in the opinion of the master to land the goods at the port to which they are destined, the master is to have the option of landing the goods at any other port which he may consider safe, or retain same on board until the vessel's return trip. * * * '

The ship left San Francisco in January, 1920, and on February 10th sighted Bishop Rocks, a part of the Scilly Islands which mark the entrance to Bristol Channel. She did not proceed directly to Cardiff, but, passing the entrance to the port, proceeded easterly through the Straits of Dover, and on February 11th was abreast of the Hook of Holland at the entrance to the port of Rotterdam. The ship did not go to Rotterdam, but took a course for...

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