Pope & Talbot v. Guernsey-Westbrook Co.
| Citation | 159 F.2d 139 |
| Decision Date | 08 January 1947 |
| Docket Number | No. 11320.,11320. |
| Parties | POPE & TALBOT, Inc., v. GUERNSEY-WESTBROOK CO. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Lillick, Geary, Olson & Charles, Ira S. Lillick, Gilbert C. Wheat and Edward D. Ranson, all of San Francisco, Cal., for appellant.
Farnham P. Griffiths, Charles E. Finney, Martha T. Naylor, and McCutchen, Thomas, Matthew, Griffiths & Greene, all of San Francisco, Cal., for appellee.
Before DENMAN, HEALY and ORR, Circuit Judges.
This is an appeal from a judgment in a suit at law awarding the appellee damages in the amount of freight moneys deducted by appellant from the proceeds of an agreed sale at Los Angeles, California, by appellant of appellee's lumber shipped on the appellant's steamer Absaroka on the abandonment of that vessel's voyage from St. Helens, Oregon, to Brooklyn, New York.
In the case of Pope & Talbot, Inc. v. Blanchard Lumber Co. of Seattle, 9 Cir., 159 F.2d 134, we have held justified the abandonment of the voyage after the torpedoing of the vessel on December 24, 1941, by a Japanese submarine off the Port of Wilmington, California, and upheld the withholding of freight moneys from the proceeds of the sale of the Blanchard Lumber Company's lumber under the "freight earned" clause of the bill of lading in that case.
In the instant case the agreement of the parties is different. The appellee obtained from appellant a C.I.F. contract for the purchase of appellant's lumber to be carried in appellant's Absaroka to Brooklyn, New York. The contract of purchase is evidenced by the typed acceptance by appellant of appellee's order in the following terms:
"Prices as noted above per M' B.M.C. I.F. end of ship's slings Brooklyn, N. Y. terms: Ocean freight net cash on arrival of steamer: Balance 98% sight draft with documents attached including negotiable Bill of Lading to Order of Marine Midland Trust Co. of New York."
On the reverse side of the Acceptance are printed "Terms and Conditions of Sale," A-G. E provides:
F is as follows:
By the last clause of the Acceptance is incorporated in the contract the following freight earned clause of the bills of lading: "Full freight to destination * * * are due and payable to the Carrier at its option upon receipt of the Goods by the latter; and the same * * * shall be deemed fully earned and due and payable to the Carrier at any stage, before or after loading of the service hereunder, without deduction (if unpaid) or refund in whole or in part (if paid) Goods or Vessel lost or not lost * * *"
Appellee claims that the provision of the last clause that the freight is "due and payable to the Carrier at its option upon receipt of the Goods by the latter" limits the remaining freight earned provisions to the case where the...
To continue reading
Request your trial
-
Schirmer Stevedoring Co., Ltd. v. Seaboard Stevedoring Corp.
...does not make the freight "due" on loading, if another time for payment is specified in the contract. (cf. Pope & Talbot v. Guernsey-Westbrook Co., 9 Cir., 1947, 159 F.2d 139; Toyo Kisen Kaisha v. W. R. Grace & Co., 9 Cir., 1931, 53 F.2d 740). Financiera cites two cases for the proposition ......
-
Marine Chartering Co. v. Schirmer Stevedoring Co.
...of loading, and thus no freight was payable by the plaintiff under the voyage charter of February 19, 1959. Pope & Talbot v. Guernsey-Westbrook Co., 9 Cir., 1947, 159 F.2d 139; Toyo Kisen Kaisha v. W. R. Grace & Co., 9 Cir., 1931, 53 F.2d The absence of freights due under the voyage charter......
-
WEYERHAEUSER SALES COMPANY v. The Cynthia Olson
...the shippers, should control since the clause was framed by the carrier alone and solely for its own benefit. Pope & Talbot v. Guernsey-Westbrook Co., 9 Cir., 1947, 159 F.2d 139. Particularly is this so in this cause, since the admitted timely filing of a claim by Schaecker-Kux Lumber Co. a......
-
Pope & Talbot v. Blanchard Lumber Co.
...was carrying the lumber on a bill of lading having a freight earned clause like that in the case of Pope & Talbot, Inc., v. Guernsey-Westbrook Company, 9 Cir., 159 F.2d 139. Appellee contends, as was contended in the Guernsey-Westbrook case, that the clause applies only to the freight which......