Aktieselskabet Fido v. Lloyd Braziliero, 289.

• Decision Date: 19 June 1922
• Docket Number: 289.
• Citation: 283 F. 62
• Parties: AKTIESELSKABET FIDO v. LLOYD BRAZILIERO et al., and six other cases. [1]
• Court: U.S. Court of Appeals — Second Circuit

283 F. 62

AKTIESELSKABET FIDO v. LLOYD BRAZILIERO et al., and six other cases. ^[1]

No. 289.

United States Court of Appeals, Second Circuit.

June 19, 1922

[Copyrighted Material Omitted]

Haight Smith, Griffin & Deming, of New York City (Charles S. Haight and Wharton Poor, both of New York City, of counsel), for appellant Aktieselskabet Fido.

Macklin Brown, Purdy & Van Wyck, of New York City (Pierre M. Brown, of New York City, of counsel), for appellee Knickerbocker Fuel Co.

Burlingham, Veeder, Masten & Fearey, of New York City, for appellees charterers of Tjong and Svalen.

Purrington & McConnell, of New York City, for appellee Lloyd Braziliero.

Herbert Green, of New York City, for appellees Berwin-White Coal Mining Co. and American Coal Exporting Co.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (John M. Woolsey and Delbert M. Tibbetts, both of New York City, of counsel), for appellees Sorenson & Nielson and Chesapeake & Ohio Coal & Coke Co.

John L. Galey, of New York City, for appellee Gano, Moore & Co., Inc.

Macklin, Brown, Purdy & Van Wyck, of New York City, for appellee Knickerbocker Fuel Co.

Henry W. Harden, for appellee New York & Philadelphia Coal & Coke Co.

Blodgett, Jones, Burnham & Bingham, of Boston, Mass., for appellee Pocahontas Fuel Co.

James K. Symmers, of New York City, for appellee Consolidation Coal Co.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge.

These causes arise out of controversies between the libelants, as owners of seven Norwegian steel sailing vessels, and their charterers, together with certain coal companies impleaded by the charterers. The causes were heard together in the court below, and were disposed of in a single opinion. They were argued together in this court, and will be determined here in one opinion.

The libelants are corporations existing under the laws of the kingdom of Norway, and as owners of their respective ships entered into charter parties with the respondents; the libelants agreeing to carry and the respondents agreeing to ship on each of the vessels a full cargo of coal from Hampton Roads, Va., to a designated port in South America. These charter parties were entered into in the summer of 1918, during the European War. At that time the government compelled all shippers of coal from the United States to South America to ship in vessels allocated to them by the United States Shipping Board under a form of charter which it prescribed, and during the period involved herein the shipment and supply of coal at all tidewater points was under the control of the United States Fuel Administration, working through the Tidewater Coal Exchange, and all miners and operators were compelled to consign their coal destined for the seaboard to the Tidewater Coal Exchange, by whose representative it was inspected at each port.

The Exchange originated in July, 1917, and was originally a voluntary organization, brought into existence at the instance of the Council of National Defense, with the co-operation of the railroads and coal operators. But in November, 1917, the United States Fuel Administrator issued an order making it obligatory upon every shipper of bituminous coal for transshipment at any one of the tidewater ports, where the Exchange operated, to consign all shipments of coal to the Exchange. The Exchange was established to expedite the transshipment of coal at tidewater points, and to secure the prompt release of coal cars at the various ports. See In the Matter of Tidewater Coal Exchange, 280 F. 638, decided by this court in February, 1922. All mines from which coal was shipped to tidewater were classified into pools, in accordance with the grade and source of the coal. All coal on its arrival was inspected by the representatives of the Exchange, who rejected any coal that did not come up to the specifications of the pool. The quality and preparation of the coal was a matter entirely under the supervision of the United States Fuel Administration, exercising its functions through the Tidewater Coal Exchange.

The seven ships involved in the cases now before the court are the Fjong, Svalen, Baunen, Clyde, Trio, Dvergso, and Songvig. The ships were chartered by various charterers to carry cargoes of coal from Hampton Roads to Rio de Janeiro, in Brazil, or to Rio Montevideo, in Uruguay, or to Buenos Aires, in the Argentine Republic, one port only, as ordered on signing bills of lading. The several charters were all in the same form, each being headed 'U.S.S.B. (United States Shipping Board) Form Charter (under Norwegian Sailing Vessel Agreement). ' They contained the anomalous provision that the charterer should furnish ballast, or a part cargo of coal, as stiffening, to enable the vessels to proceed from their inward ports of discharge under previous charters. The relevant clauses of the charter party are:

'(2) If vessel is required to shift from her last port or berth of discharge in the United States to another port or berth to load, charterers shall furnish sufficient cargo or ballast for stiffening to enable vessel to shift ports or berths safely. Charterers to pay cost of towage, but time for shifting ports not to count as lay days. If ballast is furnished for stiffening to enable vessel to shift ports or berth safely, all cost, including loading and discharging, to be paid by charterers and time to count as lay days, just as if cargo was used for stiffening. Stiffening to be supplied when and where required or lay days to count. Master to give 48 hours' notice of readiness.'

'(5) Cargo to be delivered to vessel, loaded and stowed free of expense to vessel, and to be discharged by charterers or their agents at their expense. Master to give free use of vessel's winches, donkey boiler, and such tackle as may be on board. Vessel to be free of all lighterage.

'(6) It is agreed that lay days for loading and discharging shall be as follows (if not sooner dispatched): Commencing from the time vessel reaches loading or discharging port or dock, or berth, if available and master has filed written notice to that effect, and all customs formalities have been complied with. In the event of berth for loading or discharging not being available, lay days to count from the time captain gives notice of readiness to proceed to loading or discharging berth; vessel being duly entered and all other customs formalities complied with.

'(7) Cargo to be loaded at the average rate of not less than 250 tons per running day, Sundays and holidays excepted, and to be discharged at the average rate of not less than 250 tons per running day, Sundays and holidays excepted, time reversible; i.e., any time saved at loading port to apply at port of discharge. Charterers to have the privilege of working vessel on Sundays and holidays, if they so desire, provided they pay all extra expenses and overtime actually incurred by working cargo in connection with ship and cargo. Sundays and holidays so used not to count as lay days.

'(8) And for each and every day's detention by default of said party of the second part or agents twenty cents per ton, U.S. gold, of vessel's agreed deadweight capacity, and pro rata for part of a day, shall be paid by said party of the second part, or agents, to the party of the first part, or agents, payable day by day as earned. * * * '

An examination of the charter party shows that the charterers had the option of furnishing either sufficient cargo or ballast for stiffening to enable vessel to shift ports, or berths, safely. They all elected to furnish cargo for stiffening purposes, presumably to avoid the expense of furnishing ballast. All the vessels, with the exception of the Clyde, having arrived in New York, their inward port of discharge under their previous charters, arrangements were made with reputable coal dealers at New York for a certain amount of bituminous steam coal to be delivered to them at New York, to be used as stiffening for sailing vessels on voyages to South American ports. The loading of the stiffening was from lighters, which were put alongside the vessels by the charterers. The loading of the vessels with stiffening was necessary, as it is agreed that the vessels could not have stood up without either cargo or ballast in their holds. In the case of the Clyde the loading of the stiffening was done at Baltimore in September; the vessel having been tendered at that port.

The vessels, having taken on board the amount of coal stiffening they required, were towed to Hampton Roads by tugs furnished by the charterers, where the loading of the coal cargo, which they were to carry to South America, was to be effected either at Norfolk or at Newport News; these being two great coal ports of the United States, lying close together at the mouth of the James river on Chesapeake Bay, Hampton Roads being the name of a channel in that bay. The loading of the Songvig was done at Newport News, but the other six were loaded at Norfolk. The method of loading at both places was substantially the same; the vessels being brought alongside certain coal piers, from which the coal was dumped into the vessels through chutes.

On the arrival of the vessels at Hampton Roads, the loading berths were occupied by other vessels having precedence in accordance with the rules of the port, and they had to await their turn. After their arrival at Hampton Roads, and while the vessels were waiting their turn to be loaded, it was discovered that the coal stiffening which they had on board had become so heated as to make it unsafe to load the balance of the coal cargoes and for the vessels to proceed on their voyage. The stiffening was accordingly discharged from the vessels and entire new cargoes were loaded, and the...