7 F.2d 893 (N.D.Cal. 1925), 17692, Rosenberg Bros. & Co. v. United States Shipping Board Emergency Fleet Corp.

Docket Nº:17692, 17693, 18046.
Citation:7 F.2d 893
Case Date:September 23, 1925
Court:United States District Courts, 9th Circuit, Northern District of California

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7 F.2d 893 (N.D.Cal. 1925)








Nos. 17692, 17693, 18046.

United States District Court, N.D. California, Southern Division.

September 23, 1925

J. M. Mannon, Jr., Farnham P. Griffiths, and McCutchen, Olney, Mannon & Greene, all of San Francisco, Cal., for libelants.

Ira S. Lillick and Chalmers G. Graham, both of San Francisco, Cal., for respondent.

KERRIGAN, District Judge.

These three cases, tried together, are suits brought in the names of the shippers and owners of cargo lost on the steamship West Aleta, when that vessel stranded on Terschelling Island, more than five years ago.

The West Aleta left San Francisco with a full cargo on January 6, 1920. Libelants' shipments were destined for Cardiff, Wales, and Rotterdam, Holland, and consisted of rice, nutmegs, and 15,000 barrels of wine and brandy. Bills of lading were issued in the usual form, in one case naming San Francisco as the port of departure and Cardiff as that of destination, and in the other cases San Francisco and Rotterdam as such respective ports. In none of them was any reference made to Hamburg, Germany; but, inasmuch as each of the libelants had actual knowledge that the vessel intended to call there.

In each case the opening clause of the bill of lading reads as follows: 'Received in apparent good order and condition * * * at San Francisco, * * * to be transported by ship West Aleta, * * * 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 (Rotterdam). * * * '

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Stamped on the face of the instrument is a clause reserving liberty to deviate for trial trips, and in its main body a clause has been inserted to permit deviations 'for the purpose of saving life or property. ' No other provision is made for deviation from the direct route between San Francisco and the destination named, which in each case, as stated, was Rotterdam or Cardiff.

For reasons of her own, not amounting to necessity, after proceeding safely through the Panama Canal, and across the Caribbean Sea and the Atlantic Ocean to the entrance to Bristol Channel, on which Cardiff is situated, the West Aleta proceeded through the Straits of Dover into the North Sea. After passing the entrance to Rotterdam Harbor, when about 100 miles beyond that point, she stranded on Terschelling Island, and with her cargo became a total loss. Admittedly, she was on her way to Hamburg, a port 750 miles beyond Cardiff and 250 miles beyond Rotterdam, intending to visit those three ports in the reverse of their geographical order.

At the time of the wreck the North Sea at the mouth of the Elbe was still dangerous for navigation, because of the presence of floating mines. The captain of the West Aleta appears to have lost his vessel in an endeavor to avoid areas containing such mines, and to have been guilty of faulty navigation in doing so. For this, of course, no claim can be made; but for his failure to discharge the Cardiff and Rotterdam cargoes before passing those ports libelants seek to recover their values, relying on the familiar doctrine of deviation to create an absolute liability in their favor.

It is clear that such a liability must be established if a recovery is to be allowed, for the real parties in interest herein are cargo insurers, who have made full payment of losses under their policies, and now stand subrogated to the claims of the insured. Each of the bills of lading contains a 'benefit of insurance' clause in favor of respondent. Before, however, it can avail itself of this defense, it has cast upon it the burden of explaining the deviation above described from the natural, direct, and ordinary route.

Respondent's first contention is that under the 'liberty to call' or 'deviation' clause above set forth, the West Aleta had a right to make the voyage which she was pursuing at the time of her loss. While it is true that the right of deviation given by this clause is very broad, it nevertheless is not unlimited. The law has in fact, attached to it a fixed and certain meaning, older than the oldest American court of admiralty, which limits its application to ports substantially on the course of the voyage described, between its termini and before the port of destination.

Regarding the rule as settled by earlier cases, more than a century ago Lord Mansfield held a general leave 'to touch and stay at any ports and places whatsoever, without being deemed a deviation,' must be confined to ports 'in the course of the voyage' to the destination named in a policy of insurance. 'Though at the trial I was struck with the largeness of these words,' said that eminent judge, 'as giving liberty to the ship to go any where she pleases, to any island, in any course, it must be confined to the voyage insured; that is, to some port in the course of the voyage to (the ports of destination); otherwise, I do not see where the voyage is to end. They might make it last two years, * * * and the larger the words are the more necessary is this construction, else the ship might trade and barter without any termination. ' Gardner v. Senhouse, 3 Taunt. 16, 128 Eng.Repr. 7,.

I have been referred to no case in this country which impairs the force of this reasoning. It was accepted in Smith v. United States Shipping Board Emergency Fleet Corporation (D.C.) 2 F. (2d) 390, and appears to me to be supported by an almost unbroken line of American decisions. Ardan S.S. Co. v. Theband (D.C.) 35 F. 620; Hurlbut v. Turnure (D.C.) 76 F. 587, affirmed in (C.C.A. 2) 81 F. 208, 26 C.C.A. 335; Swift & Co. v. Furness, Withy & Co. (D.C.) 87 F. 345; The Blandon (D.C.) 287 F. 722; The Willdomino (C.C.A.) 300 F. 5.

In Austrian Union S.S. Co. v. Calafiore (C.C.A.5) 194 F. 377, 114 C.C.A. 295, a vessel on a voyage from Palermo, Italy, to New Orleans, stopped en route at Tampa, Fla., to take on cargo for the return voyage. As a result of the delay libelant's cargo of lemons was damaged. A cause in the bill of lading gave the carrier 'liberty * * * to proceed to and stay at any ports or places whatsoever (although in a direction contrary to, or out of, or beyond, the route to said port of discharge), once or oftener, in any order, backwards or forwards, for the purpose of receiving and for delivering coals, cargo, or passengers, or for any other purpose; and all such ports * * * shall be deemed within the intended voyage. ' A

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broader right of deviation can scarcely be conceived; yet it was held, and I think rightly, that the ship had not stopped at Tampa for the purposes of the voyage, but for those of another voyage, to be undertaken after New Orleans was reached, that such action was unquestionably beyond the contemplation of the shippers at the time the bill of lading was signed, and that the carrier therefore was liable, although, as it will be observed, Tampa was on the course of the voyage named in the bill of lading. This is perhaps the extreme example of Lord Mansfield's rule of construction that 'the larger the words are the more necessary' does strict construction become. Gardner v. Senhouse, supra.

In the present case respondent's testimony indicates that the principal reason why the West Aleta was ordered to take the course which she followed was convenience of the vessel in loading her return cargo.

Smith v. United States Shipping Board Emergency Fleet Corporation, supra, is very much in point here, because it involved claims for the loss of other cargo on the same ship and voyage which gave rise to these suits. The only distinction to be made is that there all of the cargo was shipped to Rotterdam; whereas, in the cases at bar, the greater part of it (in point of value) was destined for Cardiff, and the deviation attempted was greater by 1,000 miles than in that case. Judge Augustus Hand concluded there that 'the permission 'to touch at any port or ports in any rotation or order, in or out of the customary route,' related to stopping in ports on the way to Rotterdam, either in or out of the geographical order.'

This, counsel argue, absolutely disregards the phrase 'out of the customary route,' because without the use of these words a ship might touch at any such port, and such a construction...

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