162 F. 256 | 9th Cir. | 1908
(after stating the facts as above). Error is assigned to the finding of the District Court that there was a deviation from the voyage which was described in the shipping articles. The shipping articles described the voyage as “from the port of Seattle to Shanghai, China, and such other ports and places in any part of the world as the master may direct, and back to a final port of discharge in the United States, on Puget Sound.” To comply with these articles, the vessel, after leaving the port of departure, was bound to proceed directly by the ordinary route to Shanghai, and to touch at no intermediate port, unless the exigencies of the voyage required that she enter the same for coal, supplies, repairs, or other like reasons. Under those articles the vessel was not permitted to touch at any other or intermediate port for discharge of cargo before going to Shanghai. Deviation, as applied to the rights of seamen, is analogous to deviation, in its application to marine insurance, although there may he deviations which would discharge underwriters that would not discharge seamen. In either case it is a voluntary departure, without necessity or reasonable
The appellant argues that, because the shipping articles permitted the vessel, after going to Shanghai, to visit other ports, their proper construction would permit the visiting of other ports on the way to Shanghai; but such is not the law. Such articles have always been construed as requiring the vessel to visit the designated ports in the order named therein. United States v. Matthews, 2 Sumn. 470, Fed. Cas. No. 15,742; The Ship Moslem, Olc. 298, Fed. Cas. No. 9,875; Weiberg et al. v. The St. Oloff, 2 Pet. Adm. 428, Fed. Cas. No. 17,357; Anon., Fed. Cas. No. 449. Not only was there deviation, but the crew were taken upon a voyage of a totally different nature from that for which they had shipped, and involving perils which were not incident to the voyage described in the articles. They were carried in the winter time far out of the usual course of a voyage to Shanghai, into a northern sea, full of ice, on a ship insufficiently supplied with provisions and fuel for their comfort, where they were subjected to hardships and perils not contemplated in the shipping articles, and were subject to capture and detention.
It is contended, however, that, if it should be found that there was deviation, the appellant is not liable, because the appellees knew that the vessel was to go to Vladivostok, and they consented to such a course. It would be enough to say, in answer to this, that tfye shipping articles cannot thus be varied by parol. It is the intention of the statute that the articles shall express the true nature of the voyage, and it is contrary to its policy to permit a variation of the articles by evidence of a verbal agreement made at the time when they were signed. Thompson et al. v. The Oakland, Fed. Cas. No. 13,971; The Triton, 1 Blatchf. & H. 282, Fed. Cas. No. 14,181. But the District Court found that this contention was not sustained by the preponderance of the evidence, and we find in the evidence no ground to question that conclusion. The appellant points to the clause in the articles which provides:
“Should vessel not return to United States, passage and wages of crew to be paid back to Seattle.”
It is said that this was inserted in the articles because the appellees insisted upon it, and that this is strong proof that they knew where they were going. The appellant refers to the testimony of the appellee Raymond to show that he so understood the purport of that clause. His testimony, however, is not susceptible of that construction. He testified to a conversation with the chief engineer, shortly before the articles were signed, in which he said to that officer, “It is reported that you people are going to run the blockade,” and the engineer answered,
•‘We are not going to Vladivostok. We are going direct to Shanghai, and return. * * * The ship is going to Shanghai. There she will be sold to the Russians, and they will offer a big amount of money to stay upon the ship.”
This would show that the clause so referred to in the shipping articles was inserted in view of a contemplated sale of the ship at Shanghai, and not with reference to the contingency of her capture in attempting to run the blockade. The evidence as a whole justifies the conclusion that the appellant carefully guarded the secret that the vessel was going to Vladivostok. Her clearance and health certificate, when leaving Seattle, were obtained under the pretense that she was bound for Shanghai. The portion of the freight hill on which the port of destination was entered was tom off. A false entry was made that the ship was bound for Shanghai in the ship’s journal, in the deck journal, and in the engineer’s journal. When the vessel was captured, there is evidence that the captain attempted to conceal the freight bill. The testimony of the first assistant engineer was that the chief engineer informed him that they were to go through Ra Perouse Strait, between Saghalin Island and Yezo Island, during the night, and that they were to be prepared to put out all the lights on the ship. The instruction given by the captain to the second mate after leaving Dutch Harbor was to head the log book “from Seattle to Shanghai, by way of Dutch Harbor.” All these items of the evidence tend to show an intention to conceal the destination of the vessel and to deceive the appellees.
The appellant contends that there is no proof in the record that the appellees sustained damages, or damages in the amounts allowed by the District Court. There can be no doubt that during the period of their detention in the ice in the Okhotsk Sea the appellees experienced serious bodily and mental suffering. Tor 41 days they were surrounded by the ice. The weather was extremely cold, and there was insufficient fuel. Some of the men had their feet frozen. The vessel was often in imminent danger of destruction from the crushing force of the masses of ice, which was jammed against her on all sides. Sleep was often made impossible from the noise of the chafing of the ice cakes. The crew, including the captain, were in constant fear of being crushed. After they had been 22 days in this position, the appellee Raymond volunteered to go ashore for the purpose of reaching a telegraph station, in order to inform the owners of the perilous situation of the vessel and advise his family that he was still alive. From his story, which is briefly and modestly told, it is evident that the venture was an exceedingly difficult and dangerous one, and that he endured great suffering from cold and hunger. He went 18 miles over the ice to the shore. The ice was extremely rough in places; in other places it was broken. Nine times he testified he broke through to his arms, and was obliged to proceed with blistered and freezing feet and frozen clothing, which cracked and broke. The appellee Moritz had his feet frozen, and according to his testimony thereafter suffered severely from inflammatory rheumatism, induced by the extreme cold to which he was subjected. He showed that he had paid out the sum of $450
The decree is affirmed.
