W. R. Grace & Co. v. Frank Waterhouse & Co.

264 F. 422 | 9th Cir. | 1920

GILBERT, Circuit Judge

(after stating the facts as above). The appellant contends that under the bills of lading it was the appellee’s duty to carry the goods in the Kaifuku Marti directly to San Erancisco. and that the discharge, detention, and transshipment thereof at Seattle constituted deviation and an abandonment of the contract, making the appellee the insurer of the safety of the goods. The cause was tried, in the comt below upon a stipulation of the facts. It was stipulated that the appellee was operating the steamship under charter between ports in the Orient and ports on Puget Sound; that it did not operate vessels from ports in the Orient to San Erancisco, but that goods received by it at ports in the Orient destined for San Erancisco were carried to the port of Seattle, and from there transshipped and forwarded to San Erancisco by other vessels; that San Erancisco was not a port of call for the Kaifuku Maru; that the consignor, at the time it delivered the goods to the appellee and received the bills of lading, knew that the steamship was sailing from Hong Kong to Seattle, and that Seattle was the final port of call on said voyage; that the vessel sailed direct to Seattle, and arrived there in due course; that the goods were thereupon discharged and placed in a warehouse for forwarding to destination; and that the delay in transshipment was wholly caused by a strike of .stevedores at the port of Seattle. In the stipulation it was agreed “that the court may render its decision upon the facts herein stipulated.” The court below found from the stipulated facts that the appellant knew that the appellee was operating the steamship from Hong Kong to Seattle, that the appellee exercised reasonable care and prudence in transshipping the goods at Seattle, and that the appellant was advised of the arrival of the goods at Seattle and itself endeavored to find some means of forwarding the same.

[1] The appellant insists that the matter in controversy here must be determined solely by the terms of the contract, and that the stipulated facts, which took the place of evidence in the court below, are incompetent to vary the terms of the contract. Conceding this to be so, it is also true that the stipulated fácts, which are not inconsistent with the terms of the bill of lading, may be adverted to, to make clear what is not clear in the contract, and to advise the court of the circumstances attending the execution thereof. The stipulated facts make it certain that San Francisco was “beyond a port of call” in the sense in which those words are used in the alternate clause of the bills of lading.

[2, 3] We think it is clear that that clause gave the carrier the privilege on arriving at Seattle to deliver the goods to another carrier “to be transported unto the port of San Francisco,” and that condition II on the back of the bills of lading authorized the carrier to “land” the goods for the purpose of transshipment. We are unable to assent to the appellant’s construction that the alternative clause refers only to delivery “there” — i. e., San Francisco — or that at the utmost the contract gave the appellee no more than the right to deliver the goods “at vessel’s tackles” to another carrier en route to San Francisco.

[4] Bills of lading “are to be construed in the light of the nature and details of the adventure contemplated by the parties to them.” Scrutton, Charter Parties and Bills of Lading, p. 10.

“Tlie construction is to be made on a consideration of the whole instrument, and not on one or more clauses detached from the others; and therefore, where two clauses apparently repugnant may be reconciled by any reasonable construction, as by regarding one as a qualification of the other, that construction must be given because it cannot be assumed that the parties intended to insert inconsistent provisions.” 4 R. C. L. 12.

In Pacific Coast Co. v. Yukon Independent Transp. Co., 155 Fed. 29, 83 C. C. A. 625, this court held that, in giving effect to the provisions of a bill of lading, the conditions and circumstances which the evidence proves were known to the parties and contemplated by them in making it are to be taken into consideration.

The decree is affirmed.