Smith v. United States Shipping Board Emergency Fleet Corp.

• Decision Date: 10 July 1924
• Citation: 2 F.2d 390
• Parties: SMITH v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION. CATZ AMERICAN SHIPPING CO. v. SAME.
• Court: U.S. District Court — Southern District of New York

2 F.2d 390 (1924)

SMITH v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

CATZ AMERICAN SHIPPING CO. v. SAME.

District Court, S. D. New York.

July 10, 1924.

Barry, Wainwright, Thacher & Symmers, of New York City (John C. Prizer, of New York City, of counsel), for libelants.

Burlingham, Veeder, Masten & Fearey, of New York City (Ray Rood Allen, Glenn R. Snider, and William J. Dean, all of New York City, of counsel), for respondent.

AUGUSTUS N. HAND, District Judge.

These are libels brought in personam against the Emergency Fleet Corporation for damages to cargo arising from an alleged deviation of the steamship West Aleta. The vessel stranded upon the coast of Holland on or about February 12, 1920, after she had passed the port of Rotterdam, to which the goods were consigned. The cargo shipped by Jacob Telfair Smith was bean oil, alleged to have been of the value of $155,000, and the cargo shipped by Catz American Company, Inc., was rice and nutmegs, of the value of $34,000.

The bill of lading covering the goods of each libelant allowed the vessel "to touch at any port or ports in any rotation or order in or out of the customary route and to call at any port or ports more than once unto the port of Rotterdam." The goods were shipped from ports on the Pacific in Washington or San Francisco, and there is no question that the vessel proceeded pursuant to the instructions of the respondent's operators and managers, passed through the English Channel by the entrance to Rotterdam, and proceeded on with the intention of going to Hamburg, and of subsequently returning to Rotterdam after discharging cargo at Hamburg.

There was a dispute in the testimony as to whether the voyage beyond Rotterdam to Hamburg, at the mouth of the Elbe, was less safe on account of floating mines than the prior part of the voyage. But the high insurance rates charged for shipments of goods to Hamburg indicate that there was at least thought to be serious danger from mines on a voyage between Rotterdam and Hamburg. Moreover, the extended route would increase the risk, even though there was as much danger between Dover and Rotterdam as between Rotterdam and Hamburg, simply because the risk would be prolonged.

There was evidence that the ship was advertised in the San Francisco Guide as destined for "Hamburg, Rotterdam, and Cardiff," in that order, and in the Seattle Index the advertisement gave the order as "Cardiff, Rotterdam, and Hamburg." The goods of the Catz American Company were shipped at San Francisco, and those of Jacob Telfair Smith at Seattle. It was proved that the usual course of a large number of vessels managed at this time by Williams, Dimond & Co. was to go first to Hamburg, and proceed thence to Rotterdam. One of the reasons for doing this was that the vessels did not wish to shop at Rotterdam twice, and the east-bound cargo for Rotterdam was likely to be much smaller than the west-bound cargo, so that, if the vessel was heavily laden, such cargo as might be discharged at Rotterdam would not leave room enough on the ship for the merchandise that was to be taken back on the westward voyage. Another reason for proceeding first to Hamburg was that the Hamburg cargo was stowed on top, whereas wine, brandy, and bean oil, for Rotterdam and Cardiff, were stowed in the vessel's lower holds.

The bill of lading contained the usual exceptions that the carrier should "not be liable for loss or damage occasioned by causes beyond its control, or by the perils of the seas or other waters, * * * stranding, or other accidents of navigation of whatsoever kind. * * *"

The libelants insist that the exceptions in the bill of lading were nullified by a deviation of the West Aleta. To this the respondent answers: (a) That the West Aleta did not deviate; (b) that in any event the United States Shipping Board Emergency Fleet Corporation is not liable, because the bills of lading were not signed by the Fleet Corporation, but by Williams, Dimond & Co., agents, which firm the respondent says was a subagent of the Emergency Fleet Corporation, which merely acted as agent for the United States; (c) because the libelants are not proceeding under the Act of March 9, 1920 (Comp. St. Ann. Supp. 1923, §§ 1251¼-1251¼l), which furnishes the exclusive remedy in admiralty for causes of action arising out of the operation of government vessels.

The respondent bases its contention that the West Aleta did not deviate upon the provision in the bill of lading. It says that the voyage was not a voyage to Rotterdam, but a voyage to Hamburg, with broad permission under the terms of the bill of lading "to touch at any port or ports in any rotation or order in or out of the customary route and to call at any port or ports more than once unto the port of Rotterdam. * * *"

After giving this matter the fullest consideration, I am convinced that under both British and American authorities there was a deviation. I think the permission in the bill of lading related to ports in the course of the voyage. That voyage, whatever the master, under instructions from his principals, had determined upon before breaking ground, was the voyage contracted for in the bill of lading. Any other construction would render cargoes subject to all kinds of hazards, which the shippers could not foresee and could not be expected to insure against. The record here shows that the insurance of the cargo for a voyage to Hamburg would have been considerably greater than simply to Rotterdam. The permission "to touch at any port or ports in any rotation or order in or out of the customary route" related to stopping in ports on the way to...