Grammer SS Co. v. James Richardson & Sons

• Decision Date: 18 December 1929
• Citation: 37 F.2d 366
• Parties: GRAMMER S. S. CO. v. JAMES RICHARDSON & SONS, Limited. JAMES RICHARDSON & SONS, Limited, v. GRAMMER S. S. CO.
• Court: U.S. District Court — Western District of New York

37 F.2d 366 (1929)

GRAMMER S. S. CO. v. JAMES RICHARDSON & SONS, Limited.

JAMES RICHARDSON & SONS, Limited, v. GRAMMER S. S. CO.

District Court, W. D. New York.

December 18, 1929.

Brown, Ely & Richards, of Buffalo, N. Y., and Holding, Duncan & Leckie and Goulder, White & Garry, all of Cleveland, Ohio (John B. Richards, David S. Jackson, and W. Alexander Eldridge, all of Buffalo, N. Y., and F. L. Leckie, Arthur E. Petersilge, and Thomas H. Garry, all of Cleveland, Ohio, of counsel), for libelant.

Single & Single, of New York City, and Stanley & Gidley and Sanders, Dudley & Connelly, all of Buffalo, N. Y. (Forrest E. Single, of New York City, of counsel), for respondent.

HAZEL, District Judge.

On December 12, 1927, at 10:20 p. m., the lake freighter J. G. Grammer sailed, under two charters and bills of lading, for the port of Buffalo, from Port Arthur-Ft. William, Ont., with a full cargo of grain, 237,917 bushels, owned by the respondent, James Richardson & Sons, Limited, a Canadian corporation, and arrived at Sault Ste. Marie locks on December 14th, at 10:08 a. m. After passing through, her master saw many vessels, down bound, massed below the locks, and was informed by the government official in charge of channels and regulation of vessels in St. Mary's river, that he was sixteenth in turn, and that the down-bound channel, known as the West Neebish, was blocked by the steamer Eads, which was ice-bound. He was directed to tie up to the pier below the locks, and instructed to await the result of efforts to open the channel then under way by a representative of various owners of vessels also down-bound with grain cargoes. Three days later, on December 17th, libelant and other owners of detained vessels decided that the heavy ice conditions in the down-bound and up-bound channels made it hopeless to proceed further, and orders were given to lay up at the "Soo" with their cargoes for the winter — an order obeyed by the Grammer and her crew dismissed. Thereafter, on April 29, 1928, the Grammer, after her spring outfitting, left the Soo with her grain cargo for her destination, encountered 15 or 20 miles of ice outside of Buffalo, arriving in port on May 6th, five months after loading, and delivered the grain in good condition to Douglass, the consignee's agent.

The libel alleges a breach of contract of carriage arising from respondent's failure to pay the freight specified in the charters, amounting to $13,085.45, with interest. The proofs show that the specified rate of grain transportation, according to the bills of lading, was 5½ cents per bushel, appreciably higher than in the ordinary season of navigation, closing November 30th, and during continuance of normal insurance; that the current rate for grain on the arrival at destination concededly was 3 cents per bushel. The up-bound voyage from Buffalo was delayed two days by inclement weather on Lake Superior, and on arriving at Ft. William her shipping orders required proceeding to six different elevators for lading. At such time ice was forming in the harbor, necessitating the use of tugs for breaking through in going from one elevator to another. There was delay, without fault on the part of the steamship, until December 12th. Neither the charter nor bills of lading specified a time of delivery of the cargo at Buffalo, and the libel alleges that the steamship was delayed en route at Sault Ste. Marie by ice blockades in the channels, which rendered further progress impossible until the ensuing spring, and that because of diligence exercised in prosecuting the down-bound voyage and bona fide efforts to make delivery of the cargo prior to the final close of navigation, the contract of affreightment was performed and libelant is entitled to the freight at the stipulated rate. It is also alleged that, in the event that freight is not recoverable under the contract, libelant is entitled to recover the reasonable value of its services at the amount of $13,085.46.

Respondent's cross-libel alleges that, even though the bills of lading and charters failed to specify the time of delivery of the grain, the various circumstances, to wit, the lateness of the season, the approach of winter, the severe weather, and the character of the cargo, together with the high rate of transportation, clearly implies a condition precedent to earning the increased carrying charge, dependent upon prompt delivery before navigation became impossible. It is denied that libelant used due diligence in prosecuting the voyage, and alleged that in fact the steamship and libelant, her owner, were negligent in failing to use proper steps to proceed through the lower St. Mary's river, there being clear water in the lower channels, and hence must respond in damages.

The answer to the cross-libel denies any asserted understanding between the parties as to time of delivery prior to laying up for the season, and states that failure to continue the voyage was due to an act of God, from which the steamer was absolved from liability by the Water Carriage of Goods Act of the Dominion of Canada, the country where the shipment began and where the charter party was entered into, and further that the delay was due to causes for which libelant was not responsible.

There was considerable testimony taken at the trial on both sides, and it was disclosed in argument that there were other libels pending in this court by vessel owners, who also laid up their vessels at the Soo, owing to the ice blockades, and which were sailing under similar charters and bills of lading. It is elicited that the Grammer proceeded down-bound immediately after loading at Ft. William, and, after passing through the locks at Sault Ste. Marie, the situation lower down, as to further progress, had become intensely critical, because of the severe cold weather and frozen channels. It is claimed that great efforts were being made to open the channels by men experienced in lake navigation, and in opening blockades from the accumulation of ice and snow oftentimes prevalent in the locality on the approach of winter; that under the directions of combined owners of the detained vessels, who were anxiously desirous of relieving their ships and continuing to their respective destinations, three powerful harbor tugs and a powerful ice-wrecking vessel, The Favorite, were hired by various vessel owners, including libelant, to break through the frozen channels in the expectancy of making paths for clearance; that in both channels — one down-bound and the other up-bound, the West Neebish and Middle Neebish, respectively — the work of testing, ice-breaking, and channeling paths was in progress during a period of four days, involving the expenditure of a large amount of money by the interested vessel owners, but that on December 17th, when efforts and exertions proved unavailing, it was reluctantly concluded by the experienced men in control to abandon further attempts, owing to the fear that the tugs used in the operations, regardless of their high power, would become helplessly ice-bound and unable to return to their base. No grain-carrying vessel passed down the regular down-bound channel after December 11th. The Harmonic, however, a passenger vessel of high power, passed down the up-bound channel, but reference to her will be made at another place. In all, 29 steam vessels, including the Grammer — 22 carrying grain — were laid up below the locks in consequence of the freezing of the channels and failure to open them.

Was there a breach of the charters, as distinguished from the bills of lading? The contract of carriage, in my opinion, constituted the written charters, including the bills of lading, since reference was therein made to the contract. The charters were entered into, I find, on December 5 and 9, 1927, respectively, at Winnipeg, and provided for the transportation. They specified the time of lading and rate of freight without naming any time of actual carriage or delivery, while the bills of lading, eight in number, prepared by the Lake Shippers' Association, on instructions from respondent's agent, dated at Port Arthur, December 9, 1927, referred to the charters and shipment of the grain aboard the Grammer, now in Port Arthur and bound for Buffalo, delivery to Douglass, agent, rate of freight as per agreement, and shipment subject to terms of Water Carriage of Goods Act. Since neither the charters nor bills of lading specified time of delivery of the grain, I think the general rule in admiralty applies, to wit, in the performance of the contract in a reasonable manner and the prosecution of her voyage to the port of delivery, before earning the stipulated freight, the carrier was required to use due diligence to foresee and anticipate the customary weather conditions at the Soo in early December, and make efficient effort to overcome any obstructions to her arrival within a reasonable time. Resort to extraordinary means to keep the ice and sleet from forming a barrier or blockade, as distinguished from diligent effort to progress the voyage when confronted with difficulty, was not required.

It is often difficult to determine the measure of reasonable diligence or reasonable time of delivery, since shipments by water are controlled by conditions relating to accidents of one kind or another, storms, collisions, etc., and in inland waters, especially on the Great Lakes, blockades of ice in harbors and channels forming in the month of December, which may or may not be breakable by the use of instrumentalities or the power of the vessel for continuance of the trip. Although carriers ordinarily insure the safety of the goods transported, and are liable to the shipper for damage sustained, unless delivery is prevented by vis major, or public enemy, or by an act of the shipper, they do not generally guarantee the time of the arrival of the vessel at her port of destination.

The contract of carriage with which we are dealing was...