The Poznan

• Decision Date: 09 July 1921
• Citation: 276 F. 418
• Parties: THE POZNAN.
• Court: U.S. District Court — Southern District of New York

276 F. 418

THE POZNAN.

United States District Court, S.D. New York.

July 9, 1921

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

This case comes up upon a great number of libels filed by shippers of cargo upon the S. S. Poznan against the ship in rem and the owner and charterer in personam. The ship was owned by the Polish-American Navigation Company, which chartered her to the Acme Operating Company on September 6, 1920, for a round trip, New York to Havana, Cuba, on a time charter government form, at a hire of $67,500 a month, payable in advance. The charter was executed concurrently with another agreement of the same date, which arose from the following circumstances: The Polish-American Company had earlier chartered to the Acme Company two steamers, the Krakow on July 3, 1920, and the Ida, on July 17th. On the 6th of September about $34,000 hire was due on the Krakow, and about $40,000 on the Ida. By the collateral agreement the Acme Company assigned to the Polish-American Company all freights received on the Poznan up to the sum of $275,000 as security for the hire already due and any further hire which should become due on any of the three vessels. Any excess of freights received over $275,000 and up to $350,000 were to be deposited by the Acme Company in a special account in its own name and that of the Polish-American Company as further security. The charter likewise provided that the charterers should issue no line bill of lading for cargo loaded until cash had been paid to the Polish Company, except bills of lading not exceeding $10,000.

The ship received about 13,000 tons of freight, and issued bills of lading, in the charterer's name, most of which were signed by the charterer except a few by the master. The charges were calculated by weight or measurement, with an addition of 90 cents per hundred pounds, the significance of which the parties dispute, the libelants asserting that it was to insure delivery at Havana, while the Polish and Acme Companies declare that it was against possible demurrage in Havana. During all the time of loading the Polish Company had a representative, a clerk, in the Acme office, who checked the bills of lading and saw that all checks received-- the freight being paid in advance-- were at once indorsed over to the owners. In this way some $307,000 of moneys was received, including, however, in that sum, $50,000 of obligations, not cash, from one shipper.

The bills of lading were in usual form, and contained the following provisions relevant in the suit:

8. * * * In case of war, hostilities, civil commotion, disturbance, blockade, or interdict of the port of discharge, warlike or naval operations or demonstrations or ice or closure by ice, or other circumstances (whether existing or anticipated) which in the opinion of the master give rise or are likely to give rise to delay or difficulty in reaching, discharging at or leaving the port of discharge, the master is to be at liberty in his absolute discretion to proceed to and discharge the cargo at such other port or ports as he thinks advisable under the circumstances; and thereupon the cargo shall be at the sole risk and expense of the receivers, and the ship and the ship owner shall be free from all responsibility in respect thereof.'

Finally:

18. * * * Owing to conditions of war or hostilities existing or threatened, this shipment is accepted at the sole risk of the owners thereof of arrest, restraint, capture, seizure, detention or interference of any sort by any power; and the carrier and its representatives are privileged in its or their absolute discretion, if deemed advisable for the protection of the vessel or of any carrier or to avoid loss, damage, expense, delay or other disadvantage, either with or without proceeding to or toward the port of discharge or entering or attempting to enter or discharge the goods there, whether such entry or discharge be permitted or not, to proceed to any other port or ports or return to the port of shipment once or oftener in any order or rotation, retaining the goods on board or discharging the same at risk or expense of the owner thereof at any such port or ports at the first or any subsequent call, and full bill of lading freight, together with extra compensation for additional transportation and all other charges shall be paid by the shipper, consignee and/or assigns and shall be a lien on the goods.'

The ship loaded in the North River at 131st and 133d streets and eventually cleared on October 3d, arriving at Havana on the evening of October 8th. Application for entry at the Custom House was made on the next day, but she could not be entered, because she presented but one sheet of her manifest, which consisted of 70 sheets. The other 69, having been left behind in the hurry of her departure, though at once sent by mail, were not received until November 11th, through some delay in the Cuban Post Office.

'The carrier shall not be liable for loss or damage occasioned * * * by robbers and/or thieves.'

Again:

When the Poznan arrived in the harbor it was found to be extremely crowded with vessels, and she lay at anchor until November 25th, when by order of the owners she returned with her cargo unbroken to New York. Meanwhile, the master and Mr. Nevelson for the owners, who had arrived at Havana towards the end of October, made various efforts to obtain a berth, the sufficiency of which was a subject of most of the dispute at the hearing. The libelants insist, and the respondents deny, that there were at least four wharves at which she could have berthed, and which for convenience may be called Castellanos, Altares, United States and Cuba, and Paula. It is impossible to set out the evidence upon this issue in any reasonable compass. Nevelson while at Havana also made some inquiry as to the possibility of discharging the ship at other Cuban ports, but concluded that this also was impossible, a conclusion also contested by the libelants. It was at the end of these inquiries, and after he had got back to New York and made some efforts there, that he directed the ship to return.

The crowded condition of the harbor of Havana had existed throughout the summer of 1920, was well known to the Acme Company and the Polish Company, on September 6th, was reflected in the unusually high charge of 90 cents per hundred pounds either for landing or demurrage. The Krakow had left New York in July, and was burned at Havana on October 18th before finishing her discharge. The Ida left later and arrived in August, but could not secure a berth until October 22d. The difficulties of discharge in Havana were, moreover, known. not only to those companies, but generally among shipping people. During the month of September there was some indication that the situation was better, but probably it grew worse in October, though that question is in some dispute. Acting upon his knowledge of this situation in the harbor, Stafford, president of the Acme Company, had entered into a more or less definite agreement with one Guidera for the use of a wharf before the Poznan sailed, which came to nothing. Stafford in addition bought some barges of the Shipping Board which were never delivered, and swore that he had two other barges under charter from another. The Acme agent in Havana was one La Villa, who had for one reason or another allowed the charterers' credit to become bad in Havana by his failure to pay past charges, a failure which undoubtedly increased the ship's difficulties.

On October 10th, the day after the Poznan arrived, the Cuban Republic declared a moratorium on all obligations, including those of the banks, which could thereafter be required to pay but 10 per cent. of their deposits. Its effect upon the discharge of vessels in the harbor is in dispute, the libelants arguing that it had little or no effect, while the respondents insist that they become decidedly worse, owing to the fact that merchants were unwilling or unable to meet their commitments. The official documents show that the discharges became relatively less in October and November than they had been in September, and for the moment anyway it undoubtedly tended to prevent the removal of freight from the bonded warehouses. How long this operated, or how important an influence it was, it is impossible to ascertain.

The Poznan docked in New York on her return on December 2d, and the shippers at once began to file possessory libels for the cargo, as well as the libels in suits for damages. The ship was arrested at once, and under order of court the cargo was taken away by the shippers upon giving stipulations for any damages to the ship. Though the Poznan was therefore in custody of the court, the Acme Company was not by order relieved of the duty to deliver, and proceeded to do so until February 3d, the delay being due to the extreme confusion with which unloading was made. Upon broaching the hatches the cargo was found to have been much more extensively damaged than is usual in such cases, but the details are too complicated to be set forth. Because of this damage and of the stowage as actually observed during discharge the libelants allege negligence and claim damages. The testimony is in dispute. Both on loading and discharge the stevedores pilfered largely, and there was in consequence a substantial shortage in the cargo. This the libelants assert to be due to negligent watching, and make the basis of a claim for damages.

The claims for damages are therefore made up first of the damages for delivery in New York, including: (1) In the case of goods reshipped, (a) the cost of carriage to Havana, (b) the difference in the value of the goods when they finally were discharged at Havana and their value at that port in ...