290 F. 358 | 5th Cir. | 1923
Lead Opinion
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. underdeek 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 ail 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
“Neshaminy eighty-eight hundred tons deadweight assigned John A. Merritt & Co., managing agents, management withdrawn from Robert Hasler Co., operation from Lykes stop.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 Westkemey. 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 the agent, under the agency agreement dated March 9, 1920. Prior to May 24, 1920, the Neshaminy was assigned to and under the management and operation of Robert Hasler and Lykes Bros., of New Orleans, La. No evidence adduced showed that any vessel of the appellant had been assigned to the agent when the above-mentioned contract of March 24 was entered into, or that space on any Shipping Board vessel was then available to or subject to be disposed of by the agent. On June 24, 1920, the Neshaminy, after undergoing repairs at Norfolk, arrived at Pensacola for the reception of cargo. Thereupon the goods mentioned in the contract of March 24 were loaded on that vessel for carriage to Liverpool, and on June 30th the master of that vessel signed a bill of lading therefor in the form used by that vessel. That bill of lading provided:
“That the shipowner shall not be held responsible for loss, damage or delay wheresoever occurring, caused directly or indirectly by reasonably unavoidable delay of the vessel to repair or renew hull or machinery.”
By the terms of that instrument the goods shipped were to be transported by the Neshaminy or a following steamer, and the rights were reserved for the vessel to proceed to Liverpool via any other port or ports, in any order or rotation, outwards or forward, whether in or
It does not seem to the writer that the contract sued on is enforceable against the appellant. So far as appears, when that contract was made by the agent on March 24, no Shipping Board vessel had been assigned to the agent or was in its possession or subject to its control. The terms of the subsequently made agency contract do not indicate that the appellant consented to be bound by any engagement for freight space entered into by the agent before that contract was made. The .circumstances of the giving of notice on April 8th of the assignment of the Neshaminy to the agent plainly negative the conclusion that the appellant then understood or contemplated that that action would have the effect of obligating it to have that or another vessel at Pensacola for loading during the first half of April. It seems to the writer that the authority conferred on the agent was not exercisable before any Shipping Board vessel was assigned to it or came under its control, that the engagement sued on was entered into by the agent when it had no power to obligate appellant to have a vessel at Pensacola for loading within a specified time, and that no evidence adduced showed that, by ratification or otherwise, the appellant consented to be bound by such an engagement. But the disposition of the case need not be put on this ground.
An above-quoted provision of the contract sued on had the effect of embodying in that contract all the clauses and conditions in the bill of lading issued by the master of the Neshaminy. That bill of lading provided that the shipowner shall not be held responsible for loss, damage, or delay caused directly or indirectly by reasonably unavoidable delay of the vessel to repair or renew hull or machineiy. There is ground for concluding that, under the state of facts disclosed, that provision stands in the way of the enforcement of the liability asserted. But we think that another consideration requires the conclusion to which the just mentioned one points.
The decree appealed from sustained the claim of the appellee that it was entitled to recover the amount of its loss in consequence of the decline in the market price of the timber and lumber shipped between the date when it would have arrived at Liverpool if a Shipping Board steamer had been at Pensacola for loading during the first half of April, and had promptly taken aboard that timber and lumber and carried it direct to Liverpool, and the date of its actual arrival at that place. We think that above-mentioned provisions of the Neshaminy’s bill of lading plainly show that it was not contemplated that the shipowner was to be liable for loss due to such delay in the arrival of the
It follows that the decree appealed from was erroneous in sustaining appellee’s above-mentioned claim. . That decree is reversed.
Concurrence Opinion
concurs upon the ground that a loss occasioned by a decline in the market value of lumber or timber was not within the contemplation of the parties.