Pacific Coast Co. v. Yukon Independent Transp. Co.

• Decision Date: 06 May 1907
• Docket Number: 1,377.
• Citation: 155 F. 29
• Parties: PACIFIC COAST CO. et al. v. YUKON INDEPENDENT TRANSP. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

155 F. 29

PACIFIC COAST CO. et al. v. YUKON INDEPENDENT TRANSP. CO.

No. 1,377.

United States Court of Appeals, Ninth Circuit.

May 6, 1907

The appellee caused the steamship Senator to be libeled because of the breach of a maritime contract for the carriage of goods upon the steamship Senator from Seattle, consigned to the steamer Monarch at St. Michaels, at the mouth of the Yukon river. The goods consisted of a large quantity of merchandise, including perishable articles. The contract was made after negotiations between the representatives of the appellee and the appellants, with the understanding that the goods were intended for early sale in the Yukon river markets, and that the delivery was to be made as soon as the Senator should arrive at St. Michaels, or as soon as navigation was open in that harbor. The shipments were made about the end of May, 1901, and the voyage was the first of the season. It was known by the contracting parties that uncertainty existed as to whether the harbor of St. Michaels would be free of ice on the steamship's arrival, and that usually the harbor was not accessible before about the 1st of July. The Senator, on her way to St. Michaels, arrived at Nome on June 16th. After discharging two-thirds of her cargo at that port, she proceeded with the remainder, which was the merchandise consigned to the Monarch, and arrived off Golovin Bay on the morning of June 20th. Golovin Bay was found to be filled with ice, and, after cruising up and down off the face of the ice and making attempts to force a passage through it to St. Michaels, the Senator on the morning of the 21st returned to Nome, and there her master offered to a representative of the appellee to make delivery at ship's tackle. This offer was declined. The Senator then left Nome for Seattle, and reached that port on July 3d. On July 7th she departed from Seattle on a second voyage, having the appellee's cargo still on board. She went to Nome and thence to St. Michaels, where she discharged the cargo to the steamer Monarch on July 19th. The ice had left the St Michaels Harbor about July 1st, and, if the Senator had remained off that port on her first voyage until July 2d, she could then have entered the harbor and discharged the cargo. The suit was brought to recover damages for loss on the goods and delay to the steamer Monarch. The District Court held that the Senator, by returning to Seattle without making delivery on the first voyage, made a breach of the contract of affreightment, and held the appellants liable to damages in the sum of $12,119.75, of which $4,119.75 was for loss on the goods, and $8,000 was for the delay of the steamer Monarch. The bills of lading contain the following provisions:

'Shipped by . . . per Pacific Coast Steamship Co. (hereinafter called carrier), to be forwarded per Steamer Senator or per some other of the carrier's steamers, or per some other steamer or steamers in the employ of said carrier, the articles or property enumerated hereon in apparent good order, except when otherwise noted, the value, weight quantity, quality and condition of contents being unknown to said carrier, to be forwarded with as reasonable dispatch as the general business of the carrier will permit, and delivered at vessel's tackle at the port, place or landing of St. Michaels in like apparent good order (but with the option to the master to carry the property on deck, to deviate and to lighter, surf, transship, land and reship the said property or any thereof and to stop and land and receive passengers and freight at intermediate ports or places).'

'The property shall be received by the consignees thereof at the vessel's tackle immediately on arrival of the vessel at the port or place of delivery, without regard to weather; if the consignee is not on hand to receipt the property as discharged, then the carrier may deliver it to the wharfinger, or other party or person believed by said carrier to be responsible, and who will take charge of said property and pay freight on same, or the same may be kept on board or landed and stored in hulks, or put in lighters by the carrier, at the expense and risk of the owner, shipper or consignee, and at his or their risk of any nature whatever.'

'And further, that in case the vessel should be prevented by stress of weather or other cause from entering the port or place of delivery, or from discharging the whole or any part of her cargo there, the said property may, at the option of the master or agent, be conveyed upon said vessel to the nearest or other port, and thence returned to the port of delivery by the same or other vessel, subject to all the provisions of this contract in regard to the original voyage and at the risk of the owner, shipper or consignee of said property.'

'The carrier shall not be required to deliver the property at the port of delivery at any specific or particular time, or to meet any particular market.'

'If in the judgment of the master of carrier's steamer it shall be impracticable or unsafe to land this freight at Nome on account of ice or weather, carrier may return same at owner's risk. On freight so returned same charges to be paid as if landed at Nome, but with no additional freight charge for returning to Seattle.'

The evidence showed that the negotiations for the shipment of the cargo commenced as early as May 12, 1901. H. V. V. Bean manager of the appellee, called on C. W. Miller, assistant general agent of the Pacific Coast Steamship Company at Seattle, and asked for freight rates for the first voyage of the Senator to St. Michaels, and informed him that, if the goods were taken, delivery must be made on the first voyage, as it was desired to reach the early market on the Yukon river. Mr. Miller replied that the ice might not be out of the St. Michaels Harbor when the steamer arrived, to which Mr. Bean replied that he wanted it understood that delivery must be made at St. Michaels on that voyage, and that otherwise the goods would not be shipped. After that conversation there were others, in which Mr. Miller was informed that the goods were largely perishable, and that the steamer Monarch was to come down the Yukon river to receive them at St. Michaels. He finally sent word to an agent of the appellee that he would take the goods and make delivery on the first trip of the Senator. It was arranged that Geo. R. Fisher, a representative of the appellee, should accompany the vessel to direct the delivery. After the vessel had arrived off the port of St. Michaels, and had remained there about thirty hours, the master told Fisher that he did not know how long he might have to wait, that he could not afford to remain there, and that he would have to take the goods back, but he offered to remain there two days if the appellee would pay the sum of $500 a day for the time of such delay. This Fisher declined, and he demanded delivery at St. Michaels. The evidence was that there was no danger or difficulty in remaining there if a good lookout were kept. The master testified that to remain outside the ice, but in the vicinity would not have subjected the ship to any particular danger, but it would have subjected her to a great deal of detention. The testimony was that on returning to Nome, on June 21st, the master, after consulting the appellant's agent there, offered to make delivery of the cargo at ship's tackle at that port, the appellee to pay lighterage charges and cost of transportation of the cargo thence to St. Michaels. This was refused.

Samuel H. Piles, James B. Howe, and Charles H. Farrell, for appellants.

Richard A. Ballinger, James T. Ronald, Alfred Battle, Albert J. Tennant, and Ira A. Campbell, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

GILBERT Circuit Judge, after stating the case as above, .

It is assigned that the District Court erred in not dismissing the libel for the failure of the appellee to present its claim within the 10-day period prescribed in the bills of lading, and for its failure to begin the suit within 60 days thereafter, as required by the bills of lading. The bills of lading provided that:

'All claims for damages to or loss of any property to be presented to the carrier within ten days from the date of notice thereof (the arrival of the vessel at port or place of discharge or the knowledge of stranding or loss of vessel to be deemed notice), and that after sixty days from such date no action, suit or proceeding in any court of justice shall be brought for any damage to or loss of said property; and that failure to present such claim within said ten days, or to bring suit within said sixty days, shall be deemed a conclusive bar and release of all right to recover against the vessel or its master, said carrier or any of the stockholders thereof, for any loss or damage.'

The binding force of such a stipulation is recognized by the courts, provided that thereby a reasonable time is given to comply with its conditions. The Queen of the Pacific, 180 U.S. 49, 21 Sup.Ct. 278, 45 L.Ed. 419; Ward v. Mo. Pac. Ry. Co., 158 Mo. 226, 58 S.W. 28; Soper v. Pontiac, etc., R. Co., 113 Mich. 443, 71 N.W. 853. In the case of The Queen of the Pacific, the court said:

'It is unnecessary to say that if, under the circumstances of a particular case, the stipulation were unreasonable or worked a manifest injustice to the libelants, we should not give it effect.'

In the Westminster (D.C.) 102 F. 366, it was said that the purpose of the claim of loss is to notify the carrier that the goods have been injured, and that it is charged with liability therefor. The evidence is that when the master of the Senator and the agent of the appellants at Nome decided to abandon the first voyage, and return to...