The Blandon

• Decision Date: 16 March 1922
• Citation: 287 F. 722
• Parties: THE BLANDON.
• Court: U.S. District Court — Southern District of New York

287 F. 722

THE BLANDON.

United States District Court, S.D. New York.

March 16, 1922

Supplemental Opinion March 30, 1922.

Herbert Green, of New York City, for libelant.

Robert S. Erskine, of New York City, for claimant.

Horace Gray, of New York City, for The Blandon.

LEARNED HAND, District Judge.

This ship left New York on May 11, 1919, bound for Philadelphia to complete her loading. There she remained till May 19th when she returned to New York and continued loading till May 26th. Eventually she cleared from New York May 31st, but upon putting out she found herself in unseaworthy condition from bad stowage and leaky boilers, and put back on June 1st for repairs and to retrim the ship. She remained in New York making repairs and retrimming, till June 15th, when she finally cleared for Valencia, where she arrived on July 5 1919. The libel is in rem, and was filed on May 6, 1919. It charges that the Triangle Steamship Company for the vessel had agreed to sail direct for Valencia and to stow the cargo in the 'tween-decks; that it was proposed to sail to Philadelphia and Norfolk to complete the lading. The charge of bad stowage was withdrawn, and the libelant therefore rests on the claim of deviation.

The libelant proved an oral contract with the Triangle Steamship Company to carry a cargo of nitrates on the Blandon, which should leave no later than May 5th, so as to fulfill certain contracts made by the libelant for their sale before the end of May. Upon this contract a decree might go against the Triangle Steamship Company in personam, except that that company was not named as a party respondent, and, being in bankruptcy anyway, any claim against it should be filed with the referee. This is a libel against the ship, of which the Triangle Steamship Company was a time charterer from the United States Shipping Board Emergency Fleet Corporation. The oral contract of the charterer in such a case does not bind the ship. The Owego, 270 F. 967 (C.C.A. 2d). The only contract which does is the bill of lading of its master, or of some other duly authorized agent of the owner.

In the case at bar the master did not sign, but the time charterer, and although it was held in The Esrom (C.C.A.) 272 F. 266, at page 271, that in such case the ship is not bound for a delay before breaking ground, it was specifically said that the master must be held to ratify all bills of lading once he sets sail. Indeed, this is a necessary conclusion, because the master must know at that time, if he has not himself signed any bills of lading, that the charterer has done so, and to sail is to accept those outstanding. Besides, were it not so, there would be no means of ascertaining the measure of the ship's acknowledged obligation. The Esrom, supra, was a case involving a voyage charter, and, as Judge Manton held, it was possible in such a case to look to the charter for the ship's duty. But this is not possible in a time charter, where the destination is not described. Nor is it possible to look to the maritime law for a definition of the cargo's maritime 'privilege,' though its incidents may be fixed by the law itself. Whatever, therefore, may be the rule before the ship breaks ground, it seems to me clear that thereafter the bill of lading, though signed by the charterer only, is the measure of the ship's duty and the cargo's 'privilege.'

Now, the ship has the right to a reasonable time to lade, and it does not follow that this time was up when she cleared for Philadelphia. In so clearing, however, she committed a deviation for which she must show some excuse. Even though she had more time in which to lift a full cargo, she had no right to pick it up along the coast, now here, now there. The voyage to Philadelphia was therefore a clean breach, and must be excused.

Excuse is offered in the twenty-second article of the bill of lading, which reads as follows:

'22. In view of war conditions, vessel has liberty to proceed via any route to destination, and to deviate in the course of the voyage or to remain in port, as master may deem best in his judgment. Owing to conditions of war, or hostilities existing or threatened, this shipment is to be accepted at the sole risk of the owners thereof, of arrest, restraint, capture, seizure, detention, or interference of any sort, by any power; and the carrier and its representatives are privileged in its or their absolute discretion, if deemed advisable for the protection of the vessel or any cargo, or to avoid loss, damage, or delay, expense, or other disadvantage of danger, either with or without proceeding to or toward the port of discharge, or entering or attempting to enter or discharge the goods there, and whether such entry or discharge be permitted or not, to proceed to any other port or ports, or return to the port of shipment, once or oftener, in any order or rotation, retaining the goods on board or discharging the same at risk and expense of the owners thereof at any such port or ports at the first or any subsequent call, and full bill of lading freight, together with extra compensation for additional transportation and all other charges shall be paid by the shipper, consignee, and/or assigns, and shall be a lien on the goods.'

It is clear that only the first sentence of this is applicable, as to which it is also clear that the excuse extends only to deviations occasioned by war conditions. The trip to Philadelphia was in no sense one of these; it was to complete the lading of a cargo which should have been laden in New York and within a reasonable time. The master had, indeed, the widest discretion to deviate for any reason connected with the war; but a clause like this, among the many hidden upon the back of a bill of lading, will not be an excuse for deliberate deviations not arising from the conditions, to which only it was meant to apply.

I hold, therefore, that the Blandon committed a breach of the bill of lading by a deviation on May 11, 1919, for which she is liable in rem. The damages for that breach will be such as the libelant has suffered from the failure to perform the bill of lading, not the oral contract with the Triangle Steamship Company. Had she fulfilled her contract, she would have sailed direct to Valencia at the end of a reasonable time to lift her cargo at New York. This date the commissioner will find on the assumption that the cargo was ready to lift, because the shipper is not to be bound to an indefinite delay while the charterer looks about to gather his cargo. The time of the voyage I take at 20 days, and thus the time of her arrival at Valencia can be estimated, had she not deviated. Nor can any allowance be made for the time at which she was refitting and retrimming in New York That was consumed because she was not seaworthy, because of the condition of her boilers, and because the stowage had been improper. The stowage not only put her by the head, but broke her steering gear. It was not done with due diligence. The shipper was entitled to a seaworthy ship, and cannot be charged with the delays necessary to make her so.

The damages will therefore be the difference in market price between the nitrates at the putative date of arrival and on July 5, 1919, when she in fact delivered them. In ascertaining these damages, the commissioner will not only disregard the date fixed in the oral contract with the Triangle Steamship Company, but any special damages arising from the libelant's failure to perform...