United States v. Fisher Flouring Mills Co.

• Decision Date: 08 February 1924
• Docket Number: 6442.
• Court: U.S. District Court — Western District of Washington
• Parties: UNITED STATES v. FISHER FLOURING MILLS CO. et al.

295 F. 691

UNITED STATES v. FISHER FLOURING MILLS CO. et al.

No. 6442.

United States District Court, W.D. Washington, Northern Division.

February 8, 1924

Thos P. Revelle, U.S. Atty., of Seattle, Wash., MacCormac Snow, of Portland, Or., and Charles E. Allen, of Seattle, Wash., for plaintiff.

Hastings & Stedman, of Seattle, Wash., for defendants.

CUSHMAN District Judge.

The complaint herein alleges that in 1920, at Seattle, a Fleet Corporation vessel was chartered by the Corporation to the defendants, Fisher Flouring Mills and the White-Dulany Company, for the carriage of grain to Europe, at the rate of $20 per ton; that after the loading of the vessel a bill of lading was issued, covering the shipment, at the recited rate of $18 a ton; that the agent of the Fleet Corporation and these two defendants undertook to arbitrate the question of the proper freight rate; that the arbitrators found the proper rate to be $20 a ton, and found defendants liable therefor; that the defendants thereafter brought suit in the state court against the Fleet Corporation and its agent, to enjoin the collection upon the arrival of the vessel at Antwerp of any amount in excess of the $18 rate, in which suit a bond was given by the plaintiffs therein and the bonding company, defendants in the present suit; that by the bond the obligors bound themselves to save harmless the obligees in the event it should be adjudged the restraining order was improperly issued, and that they would pay and discharge any judgment adjudged against plaintiffs, together with costs; that because of the restraining order the collection of the $20 rate was prevented, and the cargo delivered to representatives of the defendants in the present suit at Antwerp. The suit was removed to this court, and upon motion of plaintiffs thereafter dismissed; they at the same time filing a 'declaration respecting bond' to the effect that the bond was given to fully indemnify each of the defendants in that suit in the event it was adjudged that the restraining order was improperly issued.

The cause of action upon the bond has been assigned to the United States, the plaintiff herein. Defendants have answered alleging that the charter party was amended, changing the loading date, authorizing collect freight, and granting rates as at the time of loading; that, the vessel not being delivered according to the terms of the charter party defendants canceled their agreement, notifying the Shipping Board and its agent, from whom the charter had been received; that without defendants' consent thereafter a substituted vessel was berthed at the dock named in the charter party; that at that time the prevailing rate for freight was $18 a ton; that the defendants refused to allow the vessel to be loaded; that it was then agreed between the defendants and the Shipping Board that the rate should be $18, and a bill of lading to that effect was issued; that the same was an order bill of lading, and the master had no right to demand a greater rate than $18, and that no loss was occasioned by reason of the restraining order. To this defense the plaintiff has demurred.

As between the vessel owner and the charterer, the general rule is that, when the terms of the charter differ from those of the bill of lading, the charter party controls, and the bill of lading will, as between them, be treated as a receipt for the cargo delivered on board under the terms of the charter party. Citation of authority is not deemed necessary. An examination of the cases so holding shows, however, that the decisions were made upon evidence taken, and not upon exception or demurrer, and further shows such decisions to have been in cases where the terms of the bill of lading, an...