Austrian Union S. S. Co. of Trieste v. Calafiore, 194 F. 377

194 F. 377 | 5th Cir. | 1912

PARDEE, Circuit Judge

(after stating the facts as above). “The first thing which is always settled between a shipowner and a shipper of goods is the voyage.” Lord Esher, in Margretson v. Glynn, 1 L. R. (Q. B. Div. 1892).

The reservation in the bill of lading on which the claimant relies to relieve-itself from liability for delay and detention at Tampa must be construed with reference to the' voyage in contemplation of the shipowner and the shippers at the time the bill of lading was issued, and therefore be restricted in allowing deviation to the business and necessities of the ship pertaining to that voyage. See Swift v. Furness, Withy & Co. (D. C.) 87 Fed. 345; Liverpool Steamship Co. v. Phœnix Ins. Co., 129 U. S. 441, 9 Sup. Ct. 469, 32 L. Ed. 788; Pacific Coast Co. v. Yukori Independent Transport Co., 155 Fed. 35, 83 C. C. A. 625; Leduc v. Wood, 20 Q. B. D. 482; Glynn v. Margretson (Appeal Cases) L. R. 1893, p. 355.

In all the cases cited, stress is laid upon the voyage in contemplation, and in Scrutton on Charter Parties (Ed. 1910) 235, note, it is said:

“All these clauses must be construed in the light of the commercial adventure undertaken by the shipowner. Thus, a clause giving leave ‘to call at any ports’ will only allow a shipowner to call at ports which will be passed in the ordinary course of the named voyage in their geographical order'; the words ‘in any order’ will allow the shipowner to depart from geographic order; but, even when there are general words giving liberty to call at ports outside the geographic voyage, these will be cut down by the special description of the voyage undertaken to ports in the course of that voyage.” (The underscoring is mine.)

The voyage in this particular case, as stated in the bill of lading, was from Palermo to New Orleans. Tampa was a port near to the route and to be passed in the voyage contemplated. Under the reservation in the bill of láding, the ship probably had a right to stop at that port “for the purpose of receiving or delivering coals, cargo or passengers or for any other purpose,” all in case the saíne was proper and necessary to that voyage. See Amsinck v. Insurance Co., 129 Mass. 185, 186. The ship did stop at Tampa, not for the purposes of the voyage, but for the purpose of another voyage to be undertaken after New Orleans should be reached. This stoppage and the delay resulting was unquestionably beyond the contemplation of the shippers at the time the bill of lading was signed. Such delay and detention undoubtedly caused the damage the lemons suffered through heat and lack of ventilation, and some of the damage to the boxes of lemons was undoubtedly caused by phosphate dust resulting from loading-phosphate.

The method of ascertaining the damages in the court below was by taking the evidence with regard to a quasi arbitration, in which both the ship and the shippers were represented, and which resulted in an estimate of 75 cents loss on each box of lemons contained in.the cargo.

This average loss is fairly sustained by the evidence. Libelant’s witnesses establish it and claimant’s witness Richards, who examined the cargo, testified as an expert that “the lemons ran between 20 and 30 per cent, damage; it might have been 20 and 25.” Twenty-five per cent, damage of lemons worth $3 per box would amount to 75 cents per box. The damage from phosphate dust may have been slight, but it must be conceded that where it settled on the boxes of lemons it had to be .removed before sale. The contention that no allowance was made for normal damages is not sustainable under the evidence.

Thd decree oí the District Court was correct under the facts developed on the evidence, and it is affirmed.