Companhia De Navegacao Lloyd Brasileiro v. David G. Evans Coffee Co.

BRYAN, Circuit Judge. The owner of the steamship Pelotas appeals from a decree denying its petition for exoneration, or, in the alternative, for limitation of liability, in respect of loss or damage to cargo resulting from the stranding of that ship, and sustaining a claim of the cargo owners, about 40 in number, that, because of unwarranted deviations with its privity and knowledge, the shipowner was liable for the full amount of such loss and damage. The cargo owners, before the petition was filed, had instituted libel suits, both in rem and in personam, claiming possession of such part of the cargo as had been saved, and damages for such parts of it as had been lost or injured. Pursuant to the 51st Admiralty Rule (28 USCA § 723), they filed in this limitation proceeding the claims that with the privity and knowledge of her owner the Pelotas (1) had without lawful excuse deviated from the usual and customary route, and (2) was unseaworthy mainly because she did not have on board a detail chart of the port at the entrance to which the stranding occurred. The District Court, having sustained the claim of deviation, did not consider it necessary to pass upon the claim of unseaworthiness. The Pelotas, 43 F.(2d) 571. The opinion also disposes of a claim for salvage which will not be considered here, since there is no assignment of error relating to it. In support of the assignments of error, two principal contentions are made. The first is that the cargo owners are not entitled to rely on their claims of deviation, because, by filing their libels and claiming possession of such part of the cargo as was delivered and damages for that part which was not delivered, they made an irrevocable election to affirm and enforce the contract of carriage evidenced by the bills of lading. The second is that there was no deviation, because the route taken by the Pelotas was authorized by a clause of the bills of lading. A contention of less consequence, though of considerable importance, is that some of the shippers, among them the largest one, had actual knowledge of an intention on the part of the owner to have the master follow the route that was actually taken, and hence that such shippers and their consignees are in any event estopped to rely on deviation as the basis of their claims for damages. The Pelotas accepted at the Brazilian ports of Santos, Rio de Janeiro, and Victoria approximately 66,000 bags of coffee consigned to merchants at New Orleans. The bills of lading for the coffee declared that the vessel intended to sail for and to transport the coffee to New Orleans, there to be delivered to the order of the consignees. Clause 2, which comes after that declaration, provides: “If through any eventuality caused by heavy weather or any other case of force beyond control, through circumstances arising from the operations'of steamers carrying mail, or through delay of the consignees of the cargo, it should not be possible to effect the discharge of the merchandise at the port of destination and within the time scheduled for the stay of the mail steamer, the Master is authorized to proceed, according to his itinerary and ports of call, the cargo being returned to destination by the same or another steamer, without the shipper or consignee being entitled to any indemnity for the delay. The merchandise that through any circumstance should not be discharged at the port of destination, may be taken to the nearest or another convenient port, and then 'reshipped to the said port, * * * but at the risk of the merchandise, or may be delivered on the return trip of the steamer.” Those bills of lading named no port or destination other than New Orleans. Notwithstanding this, however, and although the major part of the-cargo was coffee, two additional shipments were accepted, one of shoes for transportation to La Guaira, Venezuela, and the other of 200 head of cattle for transportation to Vera Cruz, Mexico. The Pelotas, after leaving Victoria, the last Brazilian port, proceeded first to La Guaira, and after-wards while approaching Vera Cruz at night stranded on a reef, and was so badly damaged that she was unable to proceed further with her. cargo. As a result of the stranding sea water entered the holds of the vessel, rendered a large part of the coffee worthless, and seriously damaged much of the remainder. Such part as was undamaged, or was considered of sufficient value, was transferred from the Pelotas to another vessel and carried to destination. It is undisputed, indeed it is alleged in the petition, that the Pelotas proceeded to La Guaira and to Vera Cruz under her owner's written order. The usual or customary route from Brazilian ports to New Orleans is by Point Galera, Trinidad, through the Caribbean Sea, north of the Island of Jamaica, by the Grand Cayman to a point off Cape San Antonio, Cuba, in the Yucatan Channel,, and then direct to the mouth of the Mississippi river. Prior to the beginning of this voyage none of appellant's vessels had ever called at La Guaira or Vera Cruz while en route to New Orleans. Out of a total of 155 ships entering New Orleans from Brazilian ports [77] during the three-year period immediately preceding the stranding of the Pelotas, not one had put in either at La Guaira or Vera Cruz. The Pelotas left the customary route to New Orleans at Point Galera, skirted the northern coast of Venezuela to La Guaira, and, after traveling an extra distance of 100 miles, returned to the customary route near the Island of Jamaica and proceeded on that route to Grand Cayman, where it again turned off, passed through the Yucatan Channel, and proceeded to the point where it stranded at the entrance to the harbor of Vera Cruz. The distance from Cape San Antonio around by Vera Cruz is longer by nearly 900 miles than the direct route to New Orleans. No shipper under these hills of lading consigned the coffee to himself; but in every instance the consignment was to an American buyer. As soon as they received their bills of lading, the shippers attached them to drafts on the buyers, and received the amounts of the drafts upon letters of credit. There is no evidence that any consignee or his assignee had actual knowledge of the route to he taken by the Pelotas. Some of the shippers testified, over objection of the cargo owners, that before or at the time they accepted the bills of lading they knew it was the intention of the master or owner of the Pelotas to call at La Guaira and Vera Cruz on the way to New Orleans. Appellant attempted to i) rove that the largest shipper, who received bills of lading calling for 25,000 bags of coffee, was the agent of the eonsign.ee and knew that the Pelotas intended to call at Vera Cruz, but there was no attempt to prove that shipper’s knowledge that the ship also intended to call at La Guaira. The witness Benn, who gave testimony to this effect, admitted that he himself had no knowledge on the subject, but was merely repeating what he had been told by some one else. A shipowner cannot claim limitation of liability if he orders his ship to deviate. 46 USCA § 183. Por the purposes of this case deviation may be defined to be “a voluntary departure, without necessity or reasonable cause, from the regular and usual course.” Hostetter v. Park, 337 U. S. 30, 40, 11 S. Ct. 1, 4, 34 L. Ed. 568 ; Constable v. National Steamship Co., 154 U. S. 51, 66, 14 S. Ct. 1062, 38 L. Ed. 903. A bill of lading which does not permit liberty of deviation, as these bills of lading do not, implies that the carrier will take the goods to destination by the usual and customary route; and so it need not expressly declare what the route is. Leduc v. Ward, 20 Q. B. 475; Smith v. U. S. Shipping Board (D. C.) 2 F.(2d) 390; The Frederick Luckenbach (D. C.) 15 F.(2d) 241; Carver on Carriage of Goods by Sea § 285. It is not open to serious question, indeed it is in effect admitted, that the Pelotas departed from the regular route of ships proceeding on voyages from the Brazilian ports to New Orleans, and that she was guilty of wrongful deviations unless the bills of lading held by appellees gave permission to call at the ports of La Guaira and Vera Cruz. Appellees, the cargo owners, were not precluded from claiming deviations by reason of the fact that they had claimed possession of the coffee that was delivered at destination and had filed libels seeking recovery of damages sustained by them because of coffee lost or destroyed or damaged. They had the right to accept the goods or such part of them as could be delivered, and hold the ship and the owner of it who had ordered .a deviation responsible for breach of contract. The Delaware, 14 Wall. 579, 605, 20 L. Ed. 779; The Willdomino, 272 U. S. 718, 725, 47 S. Ct. 261, 71 L. Ed. 491. Of course they could not repudiate the contract and sue for conversion, and at the same time cling to the contract and insist upon performance of it. Nor have they attempted to do so; they have elected to affirm the contract and claim damages for its breach. Upon the exercise by appellees of their right to sue on the contract, the shipowner, having ordered the deviation, and therefore not being entitled to claim limitation of liability, became liable as an insurer; and so it becomes immaterial to inquire whether the goods were lost or damaged because of the unseaworthiness of the ship, errors of, navigation, perils of the sea, or other exceptions from liability declared in the bills of lading. Leduc v. Ward, supra, at page 484 of 20 Q. B. ; The Citta Di Messina (D. C.) 169 F. 472; The Sarnia (C. C. A.) 278 P. 459, 464. We do not understand The Henry W. Cramp (D. C.) 6 F.(2d) 900, relied on by appellant, to announce a different rule; but, if it does, it was reversed in so far as it held that suit on the contract waived a 'deviation, Id. (C. C. A.) 20 F.(2d) 320, and is, in our opinion, contrary to the great weight of authority. In Sidney Bluinenthal & Co. v. United States (D. C.) 21 F.(2d) 798, also relied on by appellant, it is said, it is true, that the effect of deviation is to abrogate the contract and give the shipper an action for conversion, but it is also said that after deviation the shipper has the option to- hold to the contract or to regard it as abrogated. In support of its second main contention, that the Pelotas did not deviate but fol [78] lowed the route declared in the bills of lading, appellant relies solely on clause 2, above quoted, concerning the master’s authority to proceed with the voyage “according to his itinerary and ports of call.” The argument is that the owner’s written order to call at the ports of La Guaira and Vera Cruz was incorporated in the bills of lading by reference, with the result that constructive notice was given of the voyage intended to be undertaken. The bills of lading in the first place the port of destination, and then after-wards in clause 2 provided that, if by reason of heavy weather oiy other enumerated causes it should be impossible to discharge cargo at the port of destination, the master should be authorized to proceed according to his itinerary and ports of call. It seems clear to us that, until the ship arrived at the first port of destination named in the bills of lading, the question of the authority of the master to proceed to other ports could not arise. As in this ease New Orleans wasnamed the only port of destination thus named, the ship was bound to proceed there, and the master was without authority to go to any other port for the purpose of delivering cargo until after it had become impossible by reason of one or more of the enumerated causes to discharge cargo at New Orleans. In our opinion clause 2 refers to the port of destination, the itinerary, and the ports of call shown by the bills of lading themselves, and not to some or any other port of destination or call, or itinerary designated in orders issued by the owner. To give that clause the construction contended for by appellant would be to authorize the shipowner to order any deviation at will so long as he did it in writing, and would deprive the holder of a bill of lading or owner of cargo of the undoubted right to insist that the' vessel proceed according to contract to the port of destination. Such a construction is clearly untenable. None of the shippers agreed even orally that the Pelotas should call at La Guaira or Vera Cruz. It is only claimed by appellant that some of them before the bills of lading were issued had knowledge of an intention on the part of the master or the shipowner to deliver cargo at those ports. If positive agreements had been made for such deliveries, clearly proof of them would have been inadmissible under the parol evidence rule. The Delaware, supra. If such an agreement is only implied by knowledge on the theory that silence gives consent, proof of such knowledge would not make out a stronger case than proof of a positive agreement. In the one ease as in the other, the undertaking is at last to vary a written instrument by parol. I Greenleaf, § 275; 4 Wigmore, § 2471. In Sproat v. Donnell, 26 Me. 187, 45 Am. Dec. 103, knowledge of the shipper that his goods Were stowed on deck was held inadmissible to contradict a clean bill of lading, the legal import of which was that the goods would be stowed underdeck; and this ruling was cited with apparent approval by the Supreme Court in The Delaware, supra. The rule which permits evidence of the facts and circumstances under which a contract that is ambiguous was entered into is not applicable here, because these bills of lading under any view are not ambiguous. As in our opinion the evidence offered for the purpose of showing that some of the shippers had knowledge of the intention of the Pelotas to call at La Guaira or Vera Cruz was inadmissible even against them, it becomes unnecessary to inquire whether such knowledge as the shippers had- could be imputed to the holders of order bills of lading. For the reason that, in our view, the Pelotas was guilty of the deviations claimed by the appellees, we consider it unnecessary in advance of a decision by the District Judge to pass upon the question of unseaworthiness. The decree is affirmed.