Gans S.S. Line v. Wilhelmsen

• Citation: 275 F. 254
• Decision Date: 29 July 1921
• Docket Number: 177.
• Parties: GANS S.S. LINE v. WILHELMSEN et al. [1] THE THEMIS.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

275 F. 254

GANS S.S. LINE v. WILHELMSEN et al. ^[1]

THE THEMIS.

No. 177.

United States Court of Appeals, Second Circuit.

July 29, 1921

[Copyrighted Material Omitted]

Suit is by Gans Line for breach of a charter party made to it, for Steamship Themis, and by Wilhelmsen as owner. It is now admitted that title to Themis was and is in the respondent corporation (Aktieselskabet), which Wilhelmsen had formed. Apparently for this reason both Wilhelmsen and his company were made respondents as owners. The other respondents were impleaded under the equity of the fifty-ninth rule in admiralty (29 S.Ct. xlvi) for reasons apparent from the facts now to be stated.

In March, 1910, while Themis was still unfinished, and not yet named, she was chartered in such manner as to arrange her employments for the next 10 years. The first charter was to Nova Scotia Company, and the second, made only three days later, to Gans Line. It is agreed that each charterer knew and knew before Themis entered any employment, all about the rights of the other; and we find that the chartered arrangements of the steamship as made in March, 1910, were equivalent to a tripartite agreement, between owner and the two time charterers, by which Nova Scotia Company was to have the steamer for the summer season, and Gans Line for the winter. The seasons were not defined in terms, but the result intended and agreed upon was reached by fixing the times when, or the periods within which Nova Scotia Company should deliver to owners, who would then deliver to Gans Line, which in turn promised redelivery to owners, which would then recommence the cycle by again handing the ship over to Nova Scotia Company.

Accordingly owners agreed to deliver Themis to Nova Scotia Company each year at Wabana (Canada) between April 1 and May 15; and Nova Scotia's counter agreement was to redeliver annually at Philadelphia or Baltimore between the following December 15 and January 5.

Similarly Gans Line was entitled to delivery from owners at Philadelphia or Baltimore, between the same December 15 and January 5; and it agreed to redeliver between March 10 and April 10, at a U.K. port or on the continent of Europe between Bordeaux and Hamburg, Rouen excepted. This bargain gave owners at least 35 days (April 10-May 15) to get Themis from a European port to Wabana, for annual delivery to Nova Scotia Company.

The exception clauses in the first made charter (Nova Scotia's) read as follows: 'That should the steamer meet with any casualty causing her to be withdrawn from Charterers' service temporarily or permanently, all hire paid in advance and not earned, reckoning from the date of such casualty shall be returned to the charterers with interest at 5 per cent. per annum from said date. Owners are also to pay charterers for the value of any of charterers' bunker coals that are consumed while the steamer is off hire, based on the current price of bunker coal trimmed into bunkers at the port steamer is in when off hire, but if steamer is at sea when off hire occurs, then price to be based on current rate at the port steamer is first in after her period off hire. The act of God, the king's enemies, loss or damage from fire on board, in hulk or craft, or on shore, arrest or restraint of princes, rules, and people, collisions, any act, neglect, or default whatsoever of pilot, master or crew in the management or navigation of the ship, and all and every danger and accident of the seas, canals and rivers, and of navigation of whatever nature or kind always excepted. The vessel to have liberty to call at any ports in any order, to sail without pilots, and to tow and assist vessels in distress, and to deviate for the purpose of saving life or property.'

The Nova Scotia charter also contained the usual employment and indemnity paragraph, as follows: 'That the Captain (although appointed by the owners) shall be under the orders and direction of the charterers as regards employment, agency, or other arrangements. Bills of lading are to be signed at any rate of freight the charterers or their agents may direct, without prejudice to this charter, the captain attending daily at the office of the charterers or their agents; the charterers hereby indemnify the owners from all consequences or liabilities that may arise from the captain so doing.'

The substantially cotemporaneous Gans charter contained the following stipulation as to the time allotted to Gans: 'That the said owners agree to let, and the said charterers agree to hire the said steamship from the time of delivery for nine (9) consecutive winter seasons, commencing with 1911, steamer to be placed at the disposal of the charterers at Philadelphia or Baltimore at owner's option upon redelivery by the Nova Scotia Steel & Coal Co., between December 15th and January 5th each season as called for by charter arranged for this steamer between owners and the Nova Scotia Steel & Co. covering nine (9) consecutive Wabana seasons commencing 1911.'

The exceptions of the Gans charter are these, viz: 'That should the vessel be lost, freight paid in advance and not earned (reckoning from the date of her last being heard from) shall be returned to the charterers. The act of God, enemies, fire, restraint of princes, rulers, and the people, and all dangers and accidents of the seas, river, machinery, boilers, steam navigation and errors of navigation, throughout this charter party, always mutually excepted.'

The employment of Themis, as above outlined, continued (so far as shown) without difficulties or disagreements until the summer season of 1915, when the Nova Scotia Company, being in possession of the steamer, subchartered her (as it had right to do, and at a profit of over . . . 5000 a month) to Barber & Co. for eight months from April 28, 1915. This subcharter therefore expired December 28th, but by a special clause it was agreed that Barber was to redeliver at a port north of Hatteras, 'not later than January 1, 1916. ' It is proved that Barber & Co. contemporaneously knew of the other chartered engagements of Themis; and it is obvious that this firmly fixed redelivery date enabled Nova Scotia Company to ensure the handing over of the steamer to the Gans Line by January 5, 1916.

The Barber subcharter contained the following exceptions: 'The act of God, the king's enemies, loss or damage from fire on board, in hulk or craft, or on shore, arrest or restraint of princes, rulers and people, collisions, any act, neglect, or default whatsoever of pilot, master or crew in the management or navigation of the ship, and all and every danger and accident of the seas, canals, and rivers, and of navigation of whatever nature or kind always mutually excepted.'

The employment and indemnity paragraph of the subcharter was identical with that above quoted from owners charter to Nova Scotia Co.

In August, 1915, Barber & Co. advertised Themis as about to sail in their 'Australian Line,' and took on general cargo for New Zealand and several ports in Australia. To shippers they issued bills of lading signed by them 'for the master,' which bills reserved to the carrier the fullest possible rights of transhipping by any vessel or line, and to delay, deviate, or overcarry. Freight was to be prepaid, and deemed earned on shipment, 'Ship lost or not lost,' and among the exceptions was the same form of words as to dangers and accidents of canals, found in Barber's subcharter, and Nova Scotia's charter.

It was intended to make the Australian voyage from New York, by the only route possible if the steamer was to be 'north of Hatteras' on January 1, 1916, viz. the Panama Canal.

As soon as Themis was advertised to sail as above, and early in September, Gans Line protested to owners that the voyage could not be accomplished within chartered limits; owners passed the protest on to Nova Scotia Company, who repeated it to Barber ten days before the steamer sailed. The latter promptly replied in writing, 'We fully expect to get this steamer back in the time limits of the charter.'

Themis sailed with a general cargo on September 12th, arrived at Colon on the 21st, and found the canal closed by slides on the east bank. Then followed the great Culebra slide on the west bank, which produced on October 4th an official notice that the canal would remain closed indefinitely. It was not again opened to commerce until long after January 1, 1916.

Shortly after January 5, 1916, this libel was filed, claiming damages for nondelivery of Themis under the charter party to Gans Line above described. The owners brought in Nova Scotia Company, alleging that corporation as responsible for such nondelivery, and obliged to indemnify the owners for any liability to Gans Line.

The Nova Scotia Company similarly petitioned against Barber & Co., whose pleaded defense is that the Themis 'was bound to transport (her) cargo in accordance with bills of lading issued therefor,' and that this had been done 'with the utmost diligence and despatch,' and the steamer delivered 'as promptly as possible after the closing of the Panama Canal,' a misfortune resulting from the slides above referred to which were both acts of God, and a danger and accident of canals.

After prolonged trial the District Court held (The Themis, 244 F 545) the owners liable under their contract to Gans Line, and Barber & Co. not excused by any exception in their charter party for so appropriating the Themis beyond their own chartered period, while Nova Scotia was responsible to owners for the subcharterers' dereliction. The damages therefore (assessed at $508,727.42) were ordered paid by Barber & Co., any unpaid balance to be discharged by Nova Scotia Company, and any sum not paid by the impleaded respondents to be settled by the...