M.A. Quina Export Co. v. Seebold, 569.

• Decision Date: 08 April 1922
• Docket Number: 569.
• Citation: 280 F. 147
• Parties: M. A. QUINA EXPORT CO. v. SEEBOLD.
• Court: U.S. District Court — Southern District of Florida

280 F. 147

M. A. QUINA EXPORT CO. v. SEEBOLD.

No. 569.

United States District Court, S.D. Florida.

April 8, 1922

James F. Glen, of Tampa, Fla., for libelant.

Whitaker Himes & Whitaker, of Tampa, Fla., for respondent.

CALL District Judge.

In this cause libel was filed June 19, 1918, claiming damages for breach of a charter party between libelant and the shipowner, dated 16th of February, 1916, whereby the Maria Lorenza, of 299 tons register, after discharging cargo with which she was then loading at Bilboa for Lisbon, should proceed in ballast to a gulf port, subsequently designated as Pensacola, to load for libelant 'deals and/or boards' at . . . 23. 15s. per ton St. Petersburg standard hundred and, being loaded, shall therewith proceed to any port in the United Kingdom not east of Southampton.

The respondent answered on July 2, 1917, and subsequently on May 20, 1921, filed an amended answer by consent of parties, in which the defenses set up in the original answer were to some extent set out more fully. As I understand the matter, the defense is based upon the declaration by Germany of unrestricted submarine warfare against the English, French and Italian ports, defining a zone of the sea in which any vessel, neutral or otherwise, would be sunk without warning.

The charter party provided that, should the vessel not be at the port of loading on or before June 15, 1916, the charterer should have the option of canceling the charter. January 24, 1917, the time was extended to April 15th following. After the promulgation by Germany of the unrestricted submarine warfare, notice of which was given January 31, 1917, to take effect February 1st following, the respondent refused to have his vessel proceed to Pensacola to load, but sent her to Tampa to load a cargo for him bound to a Spanish port. The charter party contains the following:

'The act of God, restraints of princes and rulers, the king's enemies, fires, floods, frost, droughts, strikes, combinations, or extraordinary occurrence beyond control of either party, * * * mutually excepted, including negligence clause as attached.'

The clause attached is as follows:

'The act of God, perils of the sea, fire, barratry of the master or crew, enemies, pirates, thieves, arrests and restraints of princes, rulers, and people, collision, stranding and other accidents of navigation excepted, even when occasioned by negligence, default or error in judgment of the pilot, master, mariners, or other servants of the shipowner.'

In 1915 the German government published its list of contraband goods, declaring that articles and materials susceptible of use in war as well as for purposes of peace should be considered contraband of war, under the name of conditional contraband; the twentieth item being all kinds of lumber, rough or treated, etc. In 1916 an additional list was promulgated, in which lumber was again included under the eleventh item. In this paper a hostile port is to be presumed: (a) If goods are destined to be delivered in a hostile port; (b) if the ship is to call at a hostile port.

The respondent claims he was justified in not sending his ship to Pensacola to load because first, there was a restraint of rulers; second, there was an extraordinary occurrence beyond the control of either party; and third, because the contract was frustrated.

The libelant insists that respondent was not excused, because he...