THE MAINE

• Decision Date: 08 April 1924
• Parties: THE MAINE. ITALIAN GOVERNMENT COMMISSION v. GREEN STAR S. S. CORPORATION.
• Court: U.S. District Court — Southern District of New York

8 F.2d 291 (1924)

THE MAINE.

ITALIAN GOVERNMENT COMMISSION v. GREEN STAR S. S. CORPORATION.

District Court, S. D. New York.

April 8, 1924.

Loomis & Ruebush, of New York City, for libelant.

Bigham, Englar & Jones, T. Catesby Jones, and Charles F. Quantrell, all of New York City, for claimant.

GODDARD, District Judge.

The libel in this case sets forth that the libelant, an agency of the Italian government, on May 29, 1920, entered into a charter party with the Green Star Steamship Corporation, owner of the steamship Maine, whereby it was agreed as follows: That the Maine should load at Galveston, Tex., a complete and full cargo of wheat to be furnished by the Italian government, and then should proceed to a port on the West Coast of Italy; that on the 26th day of June, 1920, the Wheat Export Company, Inc., shipped on board the Maine, then lying at Galveston, and bound for Gibraltar, a full cargo of wheat consisting of 301,000 bushels, freight to be prepaid, at $24 per long ton; that on June 1, 1920, bills of lading were indorsed by the Wheat Export Company, Inc., to the libelant; that on June 26, 1920, the Maine sailed from Galveston for a safe port on the West Coast of Italy, and that the Maine wrongfully and contrary to and in violation of the provisions of the charter party, deviated from her voyage and proceeded to the port of New York, where she arrived on or before July 4, 1920, where she was delayed for a long period; that "the delay thus following such deviation has caused severe damage to the libelant. After arriving in the port of New York, and on or about July 4, 1920, the said vessel was in collision with another vessel, viz. the American steamship Corona, as a result of which great damage was suffered by the libelant's said cargo"; that "the damage resulting to the libelants from the said collision and from the said delay amounts, as nearly as the same can now be estimated, to $100,000." A claim was filed to the Maine by the Green Star Steamship Corporation, and a stipulation for value was filed for the sum of $100,000; this stipulation was signed by the Green Star Steamship Corporation and the Maryland Casualty Company, and is in the usual form of an admiralty stipulation.

An answer was filed by the Green Star Steamship Corporation as owner of the vessel, and admitting that it entered into a contract of charter party with the Italian Government Commission, and that, between the 23d and 26th days of June, 1920, 301,000 bushels of wheat were placed on board the steamship Maine, then lying at the port of Galveston; that bills of lading, in the form used by the regular steamers plying from Galveston, were issued for said wheat; that the freight was prepaid. It admits that on the 26th day of June, 1920, the Maine sailed from Galveston bound for Gilbraltar, but put into the port of New York on July 4th, for the purpose of getting fuel oil, and, while the Maine was in New York, she was run into by the steamer Corona, as a result of which the Maine sustained serious damage, which caused her to remain in the port of New York for a long period of time repairing.

Claimant set up a separate defense, stating that the owners used due diligence for making the Maine seaworthy before she sailed from the port of Galveston, and that she was in fact seaworthy when she sailed, and that, if the libelant sustained any damage, such damage was due to the fault of those in charge of the steamship Maine and in respect of her navigation. Claimant also set up the following terms of the charter party:

"That the carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the peril of the seas or other waters, * * * by collision, stranding, or other accidents of navigation of whatsoever kind, even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowner, 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 also mutually agreed that this contract shall be completed by the signing of bills of lading on the same form as in use by regular steamers from loading port to port of destination; or, if port of destination be one to which there is no regular line steamers from loading port, this contract shall be completed by the signing of bills of lading in the form customary for such voyages for grain cargo, which bills of lading shall, however, contain the following clauses."

That the bills of lading contained the following clauses:

"It is also mutually agreed that the ship shall have liberty to sail without pilots, to tow and assist vessels in distress, to deviate for the purpose of saving life or property; that the carrier shall have liberty to convey goods in lighters to and from the ship at the risk of the owners of the goods, to call at any port or ports in any order, to land and receive goods, coal, passengers, or for any other purpose. * * *"

The principal questions to be determined are: Whether there was a deviation, and, if so, was there an unjustified deviation?

The claimant has established no general usage or custom for steamers bound from Galveston to the Mediterranean to call at New York. On the contrary, it appears from evidence that such was not the custom. The shipowner, in entering upon a contract of carriage, impliedly warrants, among other things, that his vessel will not deviate unless compelled to do so by necessity. The Sarnia (C. C. A.) 278 F. 459, 463; The Ile de Sumatra (D. C.) 286 F. 437, 438, 1923 A. M. C. 33; Constable v. National Steamship Co., 154 U. S. 51, 66, 14 S. Ct. 1062, 38 L. Ed. 903; The Citta di Messina (D. C.) 169 F. 472, 475; Scrutton on Charter Parties (9th Ed.) 85, at 263; Carver on Carriage of Goods by Sea (6th Ed.) 393.

If there was a deviation, and it was not justified, its effect is to displace the contract made between the charterer and the vessel owner. The Sarnia (C. C. A.) 278 F. 459, 463; The Ile de Sumatra (D. C.) 286 F. 437, 439, 1923 A. M. C. 33; Thorley v. Orchis Steamship Co., 1907 1 K. B. (C. A.) 660, 669.

The contention made by the vessel owner is that the contract of affreightment gave the Maine the liberty to deviate from the customary and usual route allowed by vessels in proceeding from Galveston to the West Coast of Italy, and to call at the port of New York. The charter party contains no such provision, but the language relied on by claimant is found in clause 3 of the bills of lading:

(1) "Liberty to call at any port or ports, for coal, etc."

Further, that it is agreed:

(2) "That the ship shall have liberty * * * to deviate for the purpose of saving life or property," and

(3) "To call at any port or ports, in any order, to land and receive goods, passengers, or for any other purpose."

The second paragraph is really not involved, for it could hardly be contended that the Maine deviated to New York to "save life or property." It seems obvious that it was intended to distinguish between "to call" and "to deviate," and that the shipowner, in drafting the bill of lading, intended the word "deviate" to mean a deviation of...