298 F. 443 | 9th Cir. | 1924
On August 26, 1918, the libelee entered into three contracts of affreightment with the appellants for the transportation of 12,000 bales of cotton from San Erancisco to Japan—4,000 bales on the steamer Willis, leaving San Francisco October 25, 1918; 4,000 bales on the steamer Kawi, leaving San Erancisco on November 1,1918; and 4,000 bales on the steamer Tjisalak, leaving San Francisco on December 10, 1918. No part of the cotton was transported, except 650 bales carried by the steamer Kawi, leaving San Erancisco December 4, 1918. The present libel was filed in personam, to recover damages for the breach of these several contracts. The court below entered a decree in favor of the appellee for the sum of $37,443.69, made up of the following items: (D Demurrage charges, $9,431; (2) interest on the value of the cotton during the period of delay in shipment, at the rate of 6 per cent, per annum, $18,860.19; (3) additional freight charges incurred by the appellee in transporting a portion of the cotton by another carrier, $1,188.92; (4) interest on these several items at the rate of 6 per cent, per annum to the date of the decree. The appellants have appealed from the entire decree, and the appellee has appealed from the refusal of the court below to compute and award interest at the rate of 7 per cent, per annum, the rate fixed by law in the state of California, instead of at 6 per cent, per annum, the supposed admiralty rate.
At the time these several contracts were entered into the appellants were operating a fleet of steamers between the port of San Francisco and ports of Japan and the Netherlands East Indies. On July 9, 1918, bjr direction of the consul general of the Netherlands, freight loaded on steamers leaving United States ports for the Netherlands East Indies and flying the Netherlands flag was classified, until further orders, as follows: (1) Supplies for the Netherlands East Indian government. (2) Essentials destined to the Netherlands East Indian government, to be indicated on an official list to be furnished later. (3) Nonessentials for the Netherlands colonies. (4) Freight for other ports. The Netherlands steamship companies were required to give preference to the freight as above classified. On August 26, by the same authority, one half the tonnage of the steamships Willis and Kawi and the entire tonnage of the Tjisalak was released from the obligations thus imposed, but the latter vessel was required to accept spot freight offered for Netherlands East Indian ports in preference to other ports. This obligation, however, did not require the reservation of space, if the spot freight was not promptly forthcoming.
The appellants contend that the contracts of affreightment contained the usual restraint of princes clause and that by reason of this clause and the restraints imposed by the government of the Netherlands there was no breach of contract, and consequently no liability on their part. The contracts themselves do not contain the restraint of
Nor was there any error in the measure of damages adopted by the court below, except as to the rate of interest, to be considered later. The parties stipulated that the market value of cotton in Texas and Louisiana, where purchased, between September 1, 1918, and April 1, 1919, was at least equal to the purchase price paid by the libelee, and that the market value in San Francisco and Japan during the same period was at least equal to the purchase price in Texas and Louisiana, with freight added. By reason of this stipulation, the appellants contend that the libelee might have sold the cotton, at any time, without loss, that it was its duty to do so, and that therefore nominal damages is the outside limit of recovery. This contention cannot be' sustained, especially in view of the following finding of the court below.
“The evidence, however, is conclusive to my mind that the libelant was induced to hold the cotton here ready for shipment upon the representations of the respondents that they would be able to ship it on vessels presently leaving this port and vessels of the same line.”
Under such circumstances, the right to recover demurrage, interest on the value of the goods during the period of delay, and additional charges for transportation through another carrier is fully supported by the authorities. Sutherland on Damages (4th Ed.) § 903; Carver on Carriage of Goods by Sea, §§ 723, 724; 10 C. J. 72, 313; Houston & T. C. Ry. Co. v. Jackson, 62 Tex. 209; Texas Central R. Co. v. Hannay-Frerichs & Co., 104 Tex. 603, 142 S. W. 1163; The Oregon, 55 Fed. 666, 5 C. C. A. 229.
Regardless of the diversity of opinion that may exist elsewhere, the rule is settled in this circuit that, in actions such as this, courts of
As thus modified, the decree is affirmed, and the case is remanded to the court below, with instructions to modify its decree in accordance herewith.