Smith, Kirkpatrick & Co. v. Colombian SS Co., 8087.
| Decision Date | 04 March 1937 |
| Docket Number | No. 8087.,8087. |
| Parties | SMITH, KIRKPATRICK & CO. v. COLOMBIAN S. S. CO., Inc., et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Chalmers G. Graham, of San Francisco, Cal., and Wm. A. Van Siclen, of Ancon, Canal Zone, for appellant.
Geo. H. Terriberry and Benjamin W. Yancey, both of New Orleans, La., and John O. Collins, of Ancon, Canal Zone, for appellees.
Before FOSTER and SIBLEY, Circuit Judges, and HOLLAND, District Judge.
This is an appeal from a decree sustaining exceptions to a libel in admiralty and dismissing the suit.
The suit was brought by Smith, Kirkpatrick & Co., hereafter referred to as libelant in rem, against the steamship Haiti and in personam against her owner, Colombian Steamship Company, Inc., hereafter referred to as respondent. In substance, the material allegations of the libel are these:
On April 26, 1934, 250 bags of clean coffee were shipped from Puerto Colombia, Colombia, on the steamship Haiti, destined to San Francisco, Cal. A through bill of lading covering the entire voyage was issued by respondent, by which the coffee was consigned "to the order of the First National Bank of Boston, notify Smith, Kirkpatrick & Co., New York." The bill of lading contained provisions allowing transhipment at Cristobal, C. Z. Stamped on the bill of lading, as part of the contract, was the clause: "Forwarding beyond Cristobal in connection with the United Fruit Co." Contrary to the agreement the coffee was transhipped at Cristobal on the steamship Absaroka, owned and operated by McCormick Steamship Company, and not on board one of the steamers of the United Fruit Company or in connection therewith, and this was an improper deviation of the voyage, contrary to the agreement between the parties. Libelant became the owner of the coffee before it reached San Francisco. It was not there delivered in the same good condition as received by the Haiti and as delivered to the Absaroka, but was delivered at San Francisco in a damaged and improper condition, causing loss and damage to libelant in the sum of approximately $2,000, no part of which sum has been paid to libelant by respondent.
Respondent excepted to the libel on the following grounds: That a copy of the bill of lading was not attached to the libel; that the libel did not allege a contractual relation between libelant and respondent; that it contained no allegation whereby respondent could measure the alleged damages or determine the nature of the damage; that the alleged transfer of the cargo at Cristobal under the contract found in the bill of lading was not a deviation in the legal sense of that term; that claim was not made in writing within ten days after delivery of the coffee and action was not begun until six months after the delivery of the goods, both as required by the contract found in the bill of lading.
A photostatic copy of the bill of lading has been sent up in the original, by order of the District Court. It does not appear from the record by whom it was introduced, but we must assume that it was before the court when the exceptions were passed upon. We are not favored by an opinion of the District Court nor does the record contain findings of facts and conclusions of law as required by Admiralty Rule 46½ (28 U.S.C.A. following section 723). However, we gather from the briefs and argument of counsel that the exceptions were sustained solely on the ground that the transhipment at Cristobal was not a deviation.
As used in admiralty, primarily, the term "deviation" means an unjustified turning aside of the vessel from her customary or agreed route. But it also has come to mean any departure from the terms of the contract of carriage, in the course of the voyage, from which loss or damage to cargo results. In other words, a "deviation" from the agreement. This is well illustrated by the case of St. Johns N. F. Shipping Corp. v. S. A. Companhia Geral Com. do Rio de Janeiro, 263 U.S. 119, 44 S.Ct. 30, 68 L.Ed. 201, in which the storing of cargo on deck, which was jettisoned, when it should have been stored in the hold, where it would have been safe, was expressly called a deviation. See also Carver on Carriage of Goods by Sea (6th Ed.) §§...
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