THE SAN GIUSEPPE

• Decision Date: 29 August 1941
• Docket Number: No. 4809.,4809.
• Citation: 122 F.2d 579
• Parties: THE SAN GIUSEPPE. M. COOK & SON, Ltd., et al. v. SAGLIETTO.
• Court: U.S. Court of Appeals — Fourth Circuit

122 F.2d 579 (1941)

THE SAN GIUSEPPE M. COOK & SON, Ltd., et al. v. SAGLIETTO.

No. 4809.

Circuit Court of Appeals, Fourth Circuit.

August 29, 1941.

Braden Vandeventer, of Norfolk, Va., and Eberhard P. Deutsch, of New Orleans, La. (Vandeventer & Black, of Norfolk, Va., Deutsch and Kerrigan, of New Orleans, La., and Eugene W. Ong, of New York City, on the brief), for appellants.

Leon T. Seawell, of Norfolk, Va. (Hughes, Little & Seawell, of Norfolk, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

These are cross appeals in a suit in admiralty brought by British cargo owners against the Italian vessel San Giuseppe which arrived at the port of Norfolk, Va., on June 8, 1940, with cargo destined for London, England, and was interned at Norfolk as the result of the war between Great Britain and Italy, which began June 10th. The suit was for possession of the cargo and for damages sustained as the result of the necessity of transshipment. Decree was entered directing the delivery of the cargo to the owners but absolving the vessel from the damages claimed. The cargo owners appeal from that portion of the decree refusing them damages, contending that the vessel was guilty of deviation in putting into the port of Norfolk and was consequently liable as an insurer for damages sustained by the cargo. The vessel appeals from that portion of the decree charging her with the expense of unloading at Norfolk, contending that under the provisions of the bills of lading this was an expense to be borne by the cargo owners.

The San Giuseppe was an Italian steamship under time charter to the Continental Grain Company and sublet under a voyage charter to the Gans Steamship Line of New York. The voyage charter provided that she should have liberty to coal at Norfolk and Newport News. Early in June she took on a cargo of timber, staves, turpentine and tar at New Orleans, La. and Panama City, Fla., for delivery in London, England, and collected freight thereon in excess of $200,000. The master, in giving notice of readiness to load to the agents of the voyage charterer, had advised that he would call at Norfolk for bunkers, as he had been instructed to do by the time charterers. He left New Orleans with only 617 tons of bunkers aboard and had been instructed to have 600 tons when leaving Norfolk for the voyage across the ocean. He issued bills of lading in the name of the vessel covering the cargo and providing that same was to be transported by the vessel to London "with liberty to call at any port or ports, in or out of the customary order, to receive or discharge coal, cargo, passengers, or for any other purpose". Because of war conditions, it was necessary for vessels bound for England to stop at some Atlantic port for sailing orders for the crossing of the ocean, as these were secret orders, were changed every three or four days and could not be communicated to the vessel at sea. While the vessel was at New Orleans, the master was notified by the British Consul there to get his sailing orders for crossing the Atlantic from the British Consul at Norfolk.

On June 8th, the San Giuseppe entered the port of Norfolk for bunkers and sailing orders. The master applied to the charterer's agent for bunkers but did not take them on, as he was directed by the charterer's agent to see the Italian consular agent at Norfolk, and was directed by the latter to remain in port until further orders. On June 10th he received a radio message from the Italian government advising of Italy's entrance into the war and directing all Italian merchant vessels to seek the nearest neutral port and remain there. He consequently remained in Norfolk. If he had not put into Norfolk but had followed the direct route from the Gulf ports to London, he would have been 740 miles off shore at the time of the receipt of the radio message from the Italian government. Had he been in this position, it would have been his duty to turn about and make for the port of Norfolk, and he testifies that this is what he would have done.

The court below found "that in the shipping trade it has been considered over a long period of time to be a usual and reasonable practice of coal burning vessels similarly situated on voyages from Gulf ports to the United Kingdom or continental European ports to call at Norfolk for bunkers". This was supported by the testimony of a large number of witnesses who were shown to have knowledge of the customs and practices of the trade. It was shown that more vessels coal at Norfolk and Newport News than at any other port on the Atlantic or Gulf coasts of the United States, that coal of superior quality is obtained there, that the price is much lower than at Gulf ports, and that from 1,800 to 2,000 ships a year call there for bunkers. The witness Meyer, president of Gans Steamship Line, the voyage charterer, testified that it was customary for vessels of his company to bunker at Norfolk on such voyages, that this practice had been followed by this vessel on two voyages immediately prior to this, and that marine insurers, who charge an additional premium for extra calls, make no such charge for a bunkering call at Norfolk. The witness Hasler of Norfolk who was arranging to bunker the vessel testified: "It is nothing unusual for a steamer loading general cargo in the Gulf and proceeding to the United Kingdom to call in at Hampton Roads on the homeward voyage to replenish her bunkers. That has been in vogue, to my knowledge, for the last thirty years, anyway". The vessel's master, Captain Saglietto, testified that the twenty ships of his company's fleet, of which he is senior officer, bunker at Norfolk on all voyages from the Gulf to the United Kingdom or continental Europe. Sperling, an officer of Continental Grain, time charters of the vessel, testified: "The custom is usually to bunker at Hampton Roads after loading at the Gulf". "Yes, over a period of six years (period of witness' employment by Continental Grain) say about 90 per cent of our coal-burning vessels loading in the Gulf for either United Kingdom or the Continent bunkered at Norfolk". Stevenson, president of Bulk Carriers Corporation and of Ocean Freighting and Brokerage Corporation, testified: "It has been quite the recognized custom for vessels loading in the Gulf bound for the United Kingdom to go via Hampton Roads for bunkers, * * *. I consider it a reasonable practice". The substance of the above testimony was reiterated by Schulze, president of Richard Meyer Company, Havens, an officer of the Strong Shipping Company, Gavigan, president of Funch Edye & Company, and Salzmann, employed by the latter company in charge of its Gulf to Scandanavia operations.

There was no testimony in contradiction of the above, except that the cargo owners introduced a list showing that only a little over 11 per cent of coal-burning vessels bound from Gulf ports for ports in the United Kingdom stopped at Norfolk for bunkers during the five and a half year period preceding the voyage in question. This list, however, did not show the vessels which put into Norfolk for some other purpose as well as for bunkers nor did it show vessels bound for continental ports which bunkered there, or which of the vessels came to the Gulf ports with sufficient bunkers for a return voyage, a frequent practice prior to the war on the part of vessels from European ports making a voyage and return to ports of the Gulf.

The bills of lading provided that the prepaid freight "shall be deemed fully and irrevocably earned upon receipt of the goods by the carrier". They contained the usual "restraint of princes" provision and a war risk clause quoting a provision of the time charter to the effect that, if the vessel were prohibited from going to the port of discharge by the government of her flag, she should discharge the cargo at any other port covered by the charter party as ordered by the charterers and be entitled to freight as if she had discharged at the port to which she had been originally ordered. The cargo owners do not controvert that the effect of these protective clauses, if applicable, is to exonerate the vessel from liability for the damages claimed by them; but their contention is that the protective clauses are not applicable because, they argue, in calling at Norfolk the vessel was guilty of unreasonable deviation, the effect of which was to displace the protective clauses and render her liable for the damage sustained by the cargo owners, irrespective of whether there was or was not causal connection between deviation and loss. The court below held that the call at Norfolk was a reasonable deviation and that the vessel did not thereby forfeit the protection of the contract of carriage. It held, also, that a further reason for denying damages was the lack of causal connection between the alleged deviation and the loss.

We agree with the court below that there was no unreasonable deviation on the part of the vessel. Whether the Carriage of Goods by Sea Act, 46 U.S.C.A. § 1304(4) has enlarged the scope of permissible departure from the course of the voyage, we need not stop to inquire. Prior to the passage of the act, a deviation was defined as a "voluntary departure without necessity or reasonable cause from the regular and usual course of the voyage". 1 Bouv. Law Dict., Rawle's Third Revision, p. 860; Hostetter v. Park, 137 U.S. 30, 40, 11 S.Ct. 1, 34 L.Ed. 568; Constable v. National Steamship Co. 154 U.S. 51, 66, 14 S.Ct. 1062, 38 L.Ed. 903. A departure from the regular course of the voyage through necessity or for reasonable cause was not, under the prior maritime law, a deviation forfeiting insurance or rendering the vessel an insurer; and, for the purposes of this case, we may assume that the words "reasonable deviation" as contained in the statute confer no greater liberty upon the vessel than she had under the rule of the maritime law prior...