THE FRAMLINGTON COURT

• Decision Date: 12 February 1934
• Docket Number: No. 7022.,7022.
• Citation: 69 F.2d 300
• Parties: THE FRAMLINGTON COURT. NEWFOUNDLAND EXPORT & SHIPPING CO., Limited, et al. v. UNITED BRITISH S. S. CO., Limited.
• Court: U.S. Court of Appeals — Fifth Circuit

69 F.2d 300 (1934)

THE FRAMLINGTON COURT NEWFOUNDLAND EXPORT & SHIPPING CO., Limited, et al. v. UNITED BRITISH S. S. CO., Limited.

No. 7022.

Circuit Court of Appeals, Fifth Circuit.

February 12, 1934.

COPYRIGHT MATERIAL OMITTED

H. C. Hughes, of Galveston, Tex., and Henry N. Longley, of New York City, for appellants.

J. Newton Rayzor, of Houston, Tex., and Charles R. Hickox, of New York City, for appellee.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

FOSTER, Circuit Judge.

Appellant, the Newfoundland Export & Shipping Company, Limited, through Wilkens & Biehl, disponents, chartered the steamship Framlington Court, of 2,989 tons net register, owned by appellee, the United States British Steamship Company, Limited, to carry a full cargo of newsprint paper in rolls from Corner Brook, Newfoundland, to Mobile, Ala., and Houston, Tex. The vessel loaded a full cargo of 7,596 rolls at Corner Brook and departed from that port, without taking a local pilot, at 8:45 p. m. on October 9, 1928. One hour and a half later, on her way to sea, she stranded on Woods Island, in Bay of Islands, about 12½ miles from Corner Brook. Part of her cargo was jettisoned, and part was damaged by water, in relieving her of the strand and subsequently making necessary repairs. After considerable delay, the ship delivered what remained of the cargo, some in a damaged condition, at Mobile and Houston. A libel was filed in rem against the ship by appellant, on behalf of itself and various consignees of the cargo; the vessel was seized and released on bond.

The libel was brought on the contract, and simply alleged receipt of the cargo in good condition by the vessel and short delivery with damage to the remainder. Appellee filed answer, admitting receipt in good condition, damage, and short delivery of the cargo, but denied liability on the following grounds: That it had used due diligence to furnish a seaworthy vessel in all respects properly manned and equipped, and that she was in fact seaworthy; that the loss and damage to cargo was caused by stranding due to faults and errors in the management and navigation of the vessel by the master, officers, and crew; that it was relieved of liability for loss of cargo caused by stranding by an exception in the charter; that by another clause in the charter the ship had liberty to sail without a pilot. It was stipulated that the loss and damage of the cargo was caused by the stranding. Appellant contended that the stranding was caused by the unseaworthiness of the vessel at the inception of the voyage, as she was not properly manned without a local pilot on board to take her to sea. The District Court found that the master was competent to take the ship to sea and a local pilot was not necessary; that the ship was seaworthy and the stranding was caused by faults of navigation on the part of the master. A decree was entered dismissing the libel with costs. This appeal followed.

At the outset, without filing a motion to dismiss, appellee contends that the appeal should be dismissed for want of jurisdiction because no citation of appeal was served on the surety on a release bond for the vessel. Reliance is had on the case of Elliot v. Lombard (C. C. A.) 66 F.(2d) 662, recently decided by this court. In that case we concluded that a decree entered against appellant, who was claimant, and against the surety on a release bond, was a joint judgment. As the appeal was taken by the principal alone, with no severance or summons to the surety, we held the appeal should be dismissed. That case is not in point nor are other decisions to the same effect. It appears in this case that the appeal was taken during the term by both libelant and the surety on a cost bond, proper security was given, service was accepted, and citation waived by counsel of record for the claimant. The only purpose of citation on appeal is to give the appellee notice in time to present his defenses. If the surety were to be considered a necessary party, the failure to serve it with citation would not divest this court of jurisdiction, and we could now have service made on such terms as might be just. Dayton v. Lash, 94 U. S. 112, 24 L. Ed. 33; Rector v. Alcorn (C. C. A.) 204 F. 748. But we do not think the surety on the release bond was a necessary party. The liability of the surety was contingent on a decree against the principal. As yet there is no such judgment. The surety was not a party of record in the lower court, and no judgment, either joint or several, was entered for or against it. The contention is entirely without merit. Payne v. Niles, 20 How. 219, 15 L. Ed. 895.

The issues presented require construction of the charter and a somewhat lengthy review of the evidence for their decision. As the testimony was all taken by deposition, out of the presence of the court, in reviewing the facts we are not embarrassed by the presumption usually indulged in favor of the conclusions of the trial court where he has seen and heard the witnesses. Fortunately there is not much conflict in the evidence as to most of the material facts.

So far as necessary to quote, the charter contained the following clauses:

"It is this day mutually agreed * * * That the said steamship, being tight, staunch and strong, and in every way fitted for the voyage, with liberty to take outward cargo for owners benefit, shall with all convenient speed sail and proceed to Corner Brook, Newfoundland * * * and there load a full and complete cargo of newsprint paper in rolls, quantity in master's option, etc; * * *

"It is also mutually agreed that the Carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the seas or other waters, by fire from any cause or wheresoever occurring, by barratry of the master or crew, by enemies, pirates or robbers, by arrest and restraint of Princes, Rulers or People, by explosion, bursting of boilers, breakage of shafts or any latent defect in hull, machinery or appurtenances, by collisions, stranding or other accidents of navigation of whatsoever kind (even when occasioned by negligence, default or error in judgment of the pilot, master, mariners or other servants of the ship owner, not resulting, however, in any case from want of due diligence by the owners of the ship or any of them, or by the Ship's Husband or Manager).

"It is mutually agreed that this contract is subject to all the terms and provisions of, and all the exemptions from liability contained in the Act of Congress of the United States, approved on the 13th day of February, 1893, and entitled `An Act Relating to Navigation of Vessels,' etc.

"The steamer has liberty to call at any port in any order, to sail without pilots, to tow and assist vessels in all situations, and to deviate for the purpose of saving life and property. * * *"

All the above-quoted provisions of the charter appear in the printed form used in drafting it, which indicates they are customary and intended to govern usual conditions. In construing the charter it will be helpful to refer to certain general principles. At common law the liability of a common carrier is that of an insurer. And there is an implied warranty of seaworthiness in all contracts of carriage by water, whether the ship be a private or a common carrier. Before the passage of the Act of February 13, 1893, known as the Harter Act (46 USCA § 190 et seq.), common carriers by sea could not by any form of contract exempt themselves from liability for negligence of their servants. Knott v. Botany Worsted Mills, 179 U. S. 69, 21 S.Ct. 30, 45 L. Ed. 90. This was not so as to private carriers, and almost any exception could be incorporated in the agreement. The Framlington Court was a private carrier, a bailee for hire, as the charter was merely a contract of affreightment and not a demise of the ship. The master and crew remained in the service of the owner and were charged with full responsibility as to her management and navigation. A charter must be construed according to the intent of the parties as manifested by the whole instrument rather than by the literal meaning of any particular clause taken by itself. Crossman v. Burrill, 179 U. S. 100, 21 S. Ct. 38, 45 L. Ed. 106. The warranty of seaworthiness is not only implied but is express in the charter under consideration. It is a feature most important to the interests of the shippers. Any exception in the charter in favor of the shipowner is to be most strongly construed against him, especially if it tends to weaken the warranty of seaworthiness. The Caledonia, 157 U. S. 124, 15 S. Ct. 537, 39 L. Ed. 644; Compania de Nav. La. Flecha v. Brauer, 168 U. S. 104, 18 S. Ct. 12, 42 L. Ed. 398. The Harter Act is a very comprehensive statute dealing with relations between vessel and shipper, and has been on the books for over 40 years. It has been frequently interpreted by the courts, and its meaning is well known in the shipping trade. Having incorporated the Harter Act by reference in the charter, the parties are bound to take it with its burdens as well as its benefits and it is controlling. Under the provisions of the act the shipowner is not liable for losses caused by faults or errors of navigation if he has used due diligence to make the ship seaworthy, but, if the loss occurs through the unseaworthiness of the ship, as distinguished from an error of navigation or management, in the absence of a valid special contract, he is not relieved of the absolute warranty of seaworthiness at the inception of the voyage. There is no material difference between the exemption from liability for stranding written into the charter and the provisions of the Harter Act. Under either clause, by necessary implication, the ship is liable if the owner has failed to use due diligence to make her seaworthy. But the clause giving liberty to sail without pilots is entirely inconsistent with the warranty of seaworthiness, and the obligation to...