United States Shipping Board EF Corp. v. Rosenberg Bros. & Co.

Citation12 F.2d 721
Decision Date14 June 1926
Docket NumberNo. 4748-4750.,4748-4750.
PartiesUNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. ROSENBERG BROS. & CO. SAME v. CALIFORNIA WINE ASS'N. SAME v. S. L. JONES & CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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 McCutchen, 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. §§ 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 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 Hamburg, Germany. The master, apprehensive because of mines planted in the North Sea during the World War, changed his course on February 11th, and on the 12th, believing he was safely out of the mine fields, headed east for what he took to be Nordeney light ship. Immediately after the last change of course the ship struck a sand ridge which extended from the westerly end of Terschelling Island, and soon broke in two.

For more than a month prior to the sailing of the ship the European Pacific line advertised the West Aleta for "Hamburg, Rotterdam, and Cardiff" in the Guide, a shipping paper of San Francisco. One insurance policy was issued to the California Wine Association, covering wine to Cardiff and wine and liquor to Rotterdam on the West Aleta, "* * * via Panama Canal to Rotterdam and Cardiff." The policy had a clause, "held covered at a premium to be arranged in case of deviation or change of voyage, or of any omission or error in the description of the interest, vessel, or voyage."

Using the Cardiff receipt and bill of lading as comprehending the several cases, we have an original contract on a voyage from San Francisco, port of shipment, to Cardiff, port of destination, with leave to the ship to touch at any ports in any rotation or order, in or out of the customary route, and to call at any port or ports more than once.

An interpretation of the contract solely by legal import and construction of the words used, is that the voyage was to Cardiff, with the privilege of going to other ports in or out of order between the termini, in prosecuting the real objects of the adventure intended by the parties. We cannot regard the language of the liberty to call clause, permitting the ship to call at any ports in any order in or out of the customary route, as extensive enough to embrace in the voyage to Cardiff permission to go 750 miles beyond Cardiff and to call at Hamburg and then return to Cardiff. Gawdner v. Senhouse, 128 En. R. 7. Established rules of construction of policies are that the right of liberty to call is to be availed of as subordinate to the principle that the port or ports which the assured may visit shall be only those which are properly in the course of the voyage described, and in pursuance of the general purposes of the adventure embraced within the termini named in the policies. Glynn v. Margetson, 1 Q. B. 337; Id., 1893 L. R. 351. The Supreme Court of Massachusetts in Seccomb et al. v. Provincial Insurance Co., 10 Allen (92 Mass.) 305, said: "The only safe rule of construction is that which confines the meaning of a clause in a voyage policy giving liberty to touch at different ports to a permission to visit those only which are within the scope of the voyage insured." The scope of the voyage may include ports not exactly in the ordinary track of the specific voyage, but not those far outside or beyond the ordinary track. The Wells City (D. C.) 57 F. 317, affirmed 61 F. 857, 10 C. C. A. 123. Bringing the principle to the immediate case, the ports to which the West Aleta could go were those which, in a business sense, would be passed in the usual course of the voyage from San Francisco to Cardiff. A few of the many well-considered cases are Leduc v. Ward, 20 Q. B. D. (1888); U. S. Shipping Board v. Bunge & Bern, 41 T. L. R. 73; Davis v. Garrett, 130 E. R. 1456; Ardan S. S. Co. v. Theband (D. C.) 35 F. 620. But nothing in the bill of lading justifies the view that a voyage to Hamburg was the adventure in contemplation. Smith v. U. S. Shipping Board, etc. (D. C.) 2 F.(2d) 390.

There is strength too, in the reasoning of the court in United States Shipping Board v. Bunge & Bern, supra, that the general liberty to deviate for the purpose of saving life and property gives some indications pointing to the view that the parties meant to give to their language a limited sense. In emergent circumstances, to save life or property, the ship could deviate without any restriction. Having such a clause under examination, the English Court of Appeals, speaking by Lord Bankes in United States Shipping Board v. Bunge & Bern, supra, said: "It appears to me that the clause itself contains indications which, in my opinion, point to the conclusion that the parties intentionally used the language they did in its limited conventional sense. A distinction is drawn between calling at a port for bunkering or supplies and deviating generally; the right to deviate without any restriction is conferred for the purpose of saving life or property. To obtain bunkers or supplies the liberty is confined to the right `to call at any port or ports in any order.' There seems to me to be reason in...

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    ...did not turn on whether the goods were insured. See Friedell, supra at 1545 n. 45 (citing United States Shipping Bd. Emergency Fleet Corp. v. Rosenberg Bros. & Co., 12 F.2d 721, 723 (9th Cir.1926), rev'd on other grounds 276 U.S. 202, 48 S.Ct. 256, 72 L.Ed. 531 (1928); The Citta Di Messina,......
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