194 F. 377 (5th Cir. 1912), 2,234., Austrian Union S.S. Co. of Trieste, Austria v. Calafiore

• Docket Nº: 2,234.
• Citation: 194 F. 377
• Party Name: AUSTRIAN UNION S.S. CO. OF TRIESTE, AUSTRIA, et al. v. CALAFIORE et al.
• Case Date: February 13, 1912
• Court: United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 377

194 F. 377 (5th Cir. 1912)

AUSTRIAN UNION S.S. CO. OF TRIESTE, AUSTRIA, et al.

v.

CALAFIORE et al.

No. 2,234.

United States Court of Appeals, Fifth Circuit.

February 13, 1912

George Denegre, J. P. Blair, and Victor Leovy, for appellants.

J. D. Rouse, Wm. Grant, and W. B. Grant, for appellees.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE, Circuit Judge (after stating the facts as above).

'The first thing which is always settled between a shipowner and a shipper of goods is the voyage. ' Lord Esher, in Margretson v. Glynn, 1 L.R. (Q.B. Div. 1892).

The reservation in the bill of lading on which the claimant relies to relieve itself from liability for delay and detention at Tampa must be construed with reference to the voyage in contemplation of the shipowner and the shippers at the time the bill of lading was issued, and therefore be restricted in allowing deviation to the business and necessities of the ship pertaining to that voyage. See Swift v. Furness, Withy & Co. (D.C.) 87 F. 345; Liverpool Steamship Co. v. Phoenix Ins. Co., 129 U.S. 441, 9 Sup.Ct. 469, 32 L.Ed. 788; Pacific Coast Co. v. Yukon Independent Transport Co., 155 F. 35, 83 C.C.A. 625; Le duc v. Wood, 20 Q.B.D. 482; Glynn v. Margretson (Appeal Cases) L.R. 1893, p. 355.

In all the cases cited, stress is laid upon the voyage in contemplation, and in Scrutton on Charter Parties (Ed. 1910) 235, note, it is said:

'All these clauses must be construed in the light of the commercial adventure undertaken by the shipowner. Thus, a clause giving leave 'to call at any ports' will only allow a shipowner to call at ports which will be passed in the ordinary course of the

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named voyage in their geographical order; the words 'in any order' will allow the shipowner to depart from geographic order; but, even when there are general words giving liberty to call at ports outside the geographic voyage, these will be cut down by the special description of the voyage undertaken to ports in the course of that voyage. ' (The underscoring is mine.)

The voyage in this particular case, as stated in the bill of lading, was from Palermo to New Orleans. Tampa was a port near to the

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route and to be passed in the voyage contemplated.

Under the reservation in the bill of lading, the ship probably had a right to stop at that port 'for the...