United States Shipping Board Emergency Fleet Corp. v. Pensacola Lumber & Timber Co.

• Decision Date: 13 June 1923
• Docket Number: 4050.
• Citation: 290 F. 358
• Parties: UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. PENSACOLA LUMBER & TIMBER CO.
• Court: U.S. Court of Appeals — Fifth Circuit

290 F. 358

UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION v. PENSACOLA LUMBER & TIMBER CO.

No. 4050.

United States Court of Appeals, Fifth Circuit.

June 13, 1923

Fred Cubberly, U.S. Atty., of Gainesville, Fla., and G. E Hoffman, Asst. U.S. atty., of Pensacola, Fla. (J. Frank Staley, Sp. Asst. Atty. Gen., Fred Cubberly, U.S. Atty., of Gainesville, Fla., and George Earl Hoffman, Asst. U.S. Atty of Pensacola, Fla., on the brief), for appellant.

Francis B. Carter, of Pensacola, Fla. (Carter & Yonge, of Pensacola Fla., on the brief), for appellee.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

By the libel in this case the appellant, United States Shipping Board Emergency Fleet Corporation, was charged with liability for the alleged breach of an alleged written contract made on March 24, 1920, between appellee and appellant, 'by its duly authorized agents, John A. Merritt & Co.,' which stipulated as follows:

'We confirm engagement today of 600,000 superficial feet sawn p.p. timber and/or lumber per S.S. first class U.S. Shipping Board steamer for Pensacola to Liverpool, England, at forty ($40.00) dollars per thousand su. ft. underdeck prepaid delivery as required by steamer first half April loading.'

That instrument contained the following provisions:

'This contract is made upon the express condition that it is subject to all the clauses and conditions in the ocean bill of lading used by the particular vessel on which the goods go forward, which bill of lading is made a part of this contract and copy of same will be furnished on application. * * * Steamer has privilege of forwarding to destination via other ports in America or Europe. * * * '

The alleged breach complained of was a failure to comply with the engagement for freight space on a Shipping Board steamer during the first half of April; the alleged agents not having furnished a vessel for that purpose until June 26, 1920. The answer to the libel put in issue its allegations to the effect that John A. Merritt & Co. (herein referred to as the agent), were agents of the appellants, having authority to bind it by the above-quoted contract, and on other grounds denied the asserted liability. The evidence showed the following: On February 20, 1920, appellant by telegram to the agent assigned to the latter 'Pensacola Liverpool berth.' On March 9, 1920, appellant by written instrument appointed the agent its agent 'for the management, operation, and conduct of the business of such vessels as it has assigned and may assign to the agent for such purposes. ' That instrument contains provisions to the effect that the agent shall be subject to the orders of appellant as to all matters affecting the use of the vessels, when the appellant deems the exercise of such power to be in the public interest, and that the agent agrees to issue, or cause to be issued, to shippers the customary charter parties, freight contracts, and bills of lading, except as otherwise prescribed by appellant, and shall exercise reasonable care to see that such bills of lading, when not prescribed by appellant, shall contain all exemptions and stipulations usual in the particular trade or service in which the vessel may be engaged. Appellant's representative at Pensacola, in a communication to the agent, dated April 8, 1920, quoted the following telegram received by such representative from Mr. Keene, an official of appellant:

'Neshaminy eighty-eight hundred tons deadweight assigned John A. Merritt & Co., managing agents, management withdrawn from Robert Hasler Co., operation from Lykes stop. As information vessel sailed Sherness Norfolk March 21st, now assisting disabled steamer Westkerney. Have radioed master on completion assistance Westkerney proceed Gulf, if in ballast and sufficient fuel aboard if insufficient fuel vessel will proceed Jacksonville and bunker there for Pensacola.'

On May 24, 1920, the Neshaminy was delivered to and received by...