Smith v. United States Shipping Board Emergency Fleet Corp.

• Citation: 26 F.2d 337
• Decision Date: 14 May 1928
• Docket Number: No. 3,4.,3
• Parties: SMITH v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION. CATZ AMERICAN SHIPPING CO., Inc., v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

26 F.2d 337 (1928)

SMITH v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION.

CATZ AMERICAN SHIPPING CO., Inc., v. SAME.

Nos. 3, 4.

Circuit Court of Appeals, Second Circuit.

May 14, 1928.

Emory R. Buckner and Charles H. Tuttle, U. S. Attys., both of New York City (Arthur M. Boal, of Washington, D. C., and Walter Schaffner and Harold F. Birnbaum, both of New York City, of counsel), for appellant.

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

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

The steamship West Aleta was owned by the United States and was operated by the Emergency Fleet Corporation. Her fatal voyage commenced at Seattle, Wash., on December 19, 1919. She stopped at San Francisco, Cal., to take on additional cargo, whence she sailed on January 6, 1920, carrying cargo destined for Hamburg, Rotterdam, and Cardiff.

The Smith libel involves a quantity of bean oil shipped by the American Express Company at Seattle for carriage to Rotterdam. After loss of this cargo the owner assigned its claim against respondent to the libelant, Jacob Telfair Smith. The other suit involves a cargo of rice and nutmegs belonging to Catz American Shipping Company, Inc., which was taken on board at San Francisco and was consigned to libelant for delivery at Rotterdam. Both shippers received bills of lading, the material provisions of which will be mentioned hereafter.

On sailing from San Francisco the master of the West Aleta received orders to proceed to Hamburg as the first port of discharge, thence to Rotterdam as the second port of discharge, and finally to Cardiff. He proceeded in accordance with these orders, passed through the English Channel, and, passing by the entrance to the port of Rotterdam, proceeded toward Hamburg. When about 100 miles beyond the entrance to Rotterdam, the vessel stranded during a strong northwest gale on Terschelling Island, off the coast of Holland.

The bills 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. * * *" These exceptions were held to be nullified by the deviation of the vessel in passing beyond Rotterdam. Smith v. United States Shipping Board E. F. Corp. (D. C.) 2 F.(2d) 390.

The principal question upon this appeal is whether the West Aleta deviated, with respect to Rotterdam cargo, in passing by Rotterdam for Hamburg, intending to discharge the Rotterdam cargo on her return. The ship relies upon the liberties clause of the bill of lading: "Received * * * to be transported by the ship West Aleta, now at or to arrive at the port of shipment, to be carried upon said vessel, * * * with leave * * * 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."

It is clear from the authorities that clauses permitting deviation from the usual route of navigation have always been construed strictly and with reference to the particular voyage contracted for. See Scrutton on Charter Parties (12th Ed.) 297; 1 Arnould on Marine Insurance (11th Ed.) 575. The early case of Gairdner v. Senhouse, 3 Taunt. 16, construed the clause "to touch and stay at any ports and places whatsoever," but this was confined to the voyage insured, and was held not to justify a departure from the ordinary route. Later came Leduc v. Ward, 20 Q. B. D. 475, involving "with liberty to call at any ports in any order," and this likewise was limited to ports substantially on the course of the voyage. Glynn v. Margetson 1893 A. C. 351, applied the same canon of construction to "any port or ports, in any rotation." Such clauses relieve the ship of putting into ports along the customary route in their geographical order; but they do not permit a departure from that route. There are sound business reasons for limiting the general words of the liberty-to-call privilege to what is fairly applicable to the voyage agreed upon, and those reasons are well stated by Lord Justice Bowen in the case last cited, reported in 1892 1 Q. B. 337, 342. The American cases are in accord with the British. Ardan S. S. Co. v. Theband, 35 F. 620 (D. C.); The Wells City, 61 F. 857, 858 (C. C. A. 2); Joyce on Insurance (2d Ed.), § 2396.

Finding that the "rotation" clause had been thus limited, shipowners sought greater latitude by adding "in or out of the customary route." This, of course, accomplishes something, and in The Blandon, 287 F. 722 (D. C.), was held to excuse a deviation to Philadelphia on a voyage from New York to Valencia. But this clause, like all the others, must, we think, be read as ancillary to the purposes of the voyage contracted for. It allows a ship to depart to some extent from the customary route between the termini of the voyage, but to allow her to pass the very terminus ad quem, and proceed to a port 250 miles beyond, would contradict the governing object of the contract, namely, the prosecution of the named voyage. Clearly, there must be some limit, or the voyage has no meaning, and the risk becomes indefinite. Persons dealing with the bill of lading, or insuring the cargo, do not expect the vessel to pass beyond the port of destination, and the liberty of doing so should not be read into the contract, unless granted in the clearest language. Where it has been expressly provided that the ship may go beyond, this has been allowed. The Emelia S. De Perez, 287 F. 361 (D. C.), affirmed 288 F. 1019 (C. C. A. 2). But no case, so far as we are informed, supports appellant's contention that the clause in question should be given an equally broad meaning.

On the contrary, the authorities sustain the decision of the District Court. United States Shipping Board E. F. Corp. v. Rosenberg Bros. & Co., 12 F.(2d) 721 (C. C. A. 9), is a holding on similar bills of lading issued for this very voyage. The Blandon, supra, is substantially in accord in holding that the return of that vessel from Philadelphia to New York, the port of departure, was an unauthorized deviation. The Willdomino, 300 F. 5 (C. C. A. 3), affirmed 272 U. S. 718, 47 S. Ct. 261, 71 L. Ed. 491, held that a departure to North Sidney, Nova Scotia, was not within the clause when the voyage was...