COMPANIA ANONIMA MARITIMA UNION v. STRACHAN SHIPPING CO., 261 F. 57

WALKER, Circuit Judge (after stating the facts as above).

The action of the court in dismissing the libel is.shown by the opinion rendered to have been the result of the conclusion reached that the libel-ant was deprived of any right to recover for a breach of the above-quoted written clause of the charter party by the provision of the above-quoted printed clause, commonly called the cesser clause, that: “Upon shipment of the cargo and acceptance by the master, and on settlement of dead freight, if any, or of any freight not represented by bills of lading, and of demurrage, if any, at port of lading, charterers shall be deemed to have fulfilled this charter party, and shall be under no liability thereafter, under any provision hereof, for any matters, past or future, or for any loss, damage, or other claim of breach of charter parly.” The cesser clause now in question differs from such clauses involved in reported cases to be referred to in that it expressly provides for the termination of the charterer’s liability: “Upon shipment of the cargo and acceptance by the master, and on settlement of dead freight, if any, or of any freight not represented by bills of lading, and of demurrage, if any, at port of loading” —without the shipowner being given any other means, in lieu of the lien on cargo which it had before, of securing indemnity for breaches of provisions of the charter party which could not be performed, and could not even be entered upon, until after the ship left the loading port.

It is settled that a charter party containing a cesser clause is to be so construed, if possible, as not to have the effect of terminating the charterer’s liability to the shipowner for the breach of a provision which is not left or made enforceable by the shipowner against die cargo, or a person or thing other than the charterer. Crossman v. Burrill, 179 U. S. 100, 21 Sup. Ct. 38, 45 L. Ed. 106. The charter party under consideration in the case cited contained the following: “Vessel to have an absolute lien upon tbe cargo for all freight, dead freight, and demurrage.

Charterers’ responsibility to cease when vessel is loaded and bills of lading are signed.” The bills of lading signed gave no lien for demurrage at the discharging port. It was held that the cesser clause there in question did not, under the circumstances stated, relieve the charterers from liability for the demurrage incurred at the discharging port.

In the opinion in that case it was said: “The charter party, like many mercantile instruments in common use, is drawn up in brief and disjointed sentences, and must be construed according to the intent of the parties as manifested by tbe whole instrument, rather than by the literal meaning of any particular clause, taken by itself.” Following that statement was an approving reference to the decisions in the cases of Clink v. Radford, [1891] 1 Q. B. 625, and Hansen v. Harrold, [1894] 1 Q. B. 612, and the opinion quoted as follows from the opinions rendered in the first mentioned of those two cases: “In Clink v.

Radford, Lord Esher said: ‘In my opinion, the main rule to be derived from the cases as to the

interpretation of the cesser clause in a charter-party is that the court will construe it as inapplicable to the particular breach complained of, if by construing it otherwise the shipowner would be left unprotected in respect of that particular breach, unless the cesser clause is expressed in terms that prohibit' such a conclusion.

In other words, it cannot be assumed that the shipowner, without any mercantile reason, would give up by the cesser clause rights which he had stipulated for in another part of the contract.’ Lord Justice Bowen said: ‘There is no doubt that the parties may, if they choose, so frame the clause as to emancipate the charterer from any specified liability without providing for any terms of compensation to the shipowner; but such a contract would not be one vve should expect to see in a commercial transaction.

The cesser clauses, as they generally come before the courts, are clauses which couple or link the provisions for the cesser of the charterer’s liability with a corresponding creation of a lien. There is a principle of reason which is obvious to commercial minds, and which should be borne in mind in considering a cesser clause so framed, namely, that reasonable persons would regard the lien given as an equivalent for the release of responsibility, which the cesser clause in its earlier

part creates, and one would expect to find the lien commensurate with the release of liability.’ And Lord Justice Fry added: ‘The rule that we are prima facie to apply to the construction of a cesser clause followed by a lien clause appears to me to be well ascertained. That rule seems a most rational one, and it is simply this: That the two are to be read, if possible, as coextensive.

If that were not so, we should have this extraordinary result: There would be a clause in the charter party the breach of which would create a legal liability, there would then be a cesser clause destroying that liability, and there would then come a lien clause which did not recreate that liability in anybody else.’ ” [1891] 1 Q. B. 627, 629, 632.

Under the above-stated rules for construing charter parties, it is questionable whether, in the absence of a circumstance to be mentioned, the literal meaning of the clause providing for a cesser of the charterer’s liability to the shipowner would be followed, when to do so would result, in situations likely to arise, in depriving the shipowner of any benefit from such a provision as the one specifying the time allowed to the charterer for discharging cargo at its destination.

It wpll might be inferred that it was contemplated that the expressed intent of the parties in reference to such a matter as the one dealt with in the last-mentioned provision would prevail over an inconsistent intent expressed by the broad general terms of the charter party’s cesser clause, and that it was not intended that the ship-owner was to relinquish all benefit of the stipulation as to discharging cargo without being compensated in some way for doing so.

But the contention urged in behalf of the appellee that, in the circumstances disclosed, the printed cesser clause has the effect of depriving the appellant, the shipowner, of any remedy at all for a breach of the above-quoted written provision of the charter party cannot be sustained without a disregard of the well-settled rule that, if there is repugnancy between the printed and written provisions of a contract, the writing will prevail, on the ground that presumably it expresses the specific and paramount intention of the parties. Thomas v. Taggart, 209 U. S. 385, 28 Sup. Ct. 519, 52 L. Ed. 845; Hagan v.

Scottish Ins. Co., 186 U. S. 423, 22 Sup. Ct. 862, 46 L. Ed. 1229. The last-cited case involved a marine insurance policy made out by using a blank printed form and adding provisions in writing.

It was said in the opinion in that case: “Courts will not endeavor To limit wbat would otherwise be the meaning and effect of the written language, by resorting to some printed provision in the policy, which, if applied, would change such meaning and render the written portion substantially useless and without application.” If the cesser clause now in question is given the effect of terminating all liability of the charterer “upon shipment of the cargo and acceptance by the master, and on settlement of dead freight, if any, or of any freight not represented by bills of lading, and of demurrage, if any, at port of- loading,” the result would be, on the happening at the port of loading of things which well might be expected to happen, to make the written clause specifying the time allowed for discharging cargo at Genoa a promise which the charterer with impunity could fail or refuse to comply with; the shipowner being left without any remedy for the breach.

The incorporation of the cesser clause in the printed charter party form was unaccompanied by any intention to affect the charterer’s liability for a breach of a provision specifying the time allowed for discharging cargo, as the latter provision was not part of the printed form, but was added in writing, it cannot be supposed that the parties contemplated that that provision could be breached wrongfully without any enforceable liability to the shipowner being incurred.

Nor can it be supposed that the provision would have been inserted, if the parties had had it in mind that the shipowner would be deprived of the benefit of it upon the happening at the port of loading of the things to which the terms of the printed cesser clause give the effect of terminating all liability of the charterer under the charter party, without there being any substitution of liability and without the shipowner being compensated for the loss of the benefit of the written provision.

So to suppose would involve the conclusion or assumption that the parties in writing inserted a provision, a breach of which would create a legal liability in favor of the shipowner against the charterer, and intended that, under a printed provision of the contract, all liability of the charterer for the breach would he destroyed by the happening at the port of loading of things such as might be expected to happen there in the ordinary course of events, and the happening of which would have no relation to or bearing upon the matter dealt with in the written provision.

If controlling effect is given to the cesser clause, the written provision is reudeied substantially useless, in a situation which the parties must have contemplated as likely to arise. Under the circumstances disclosed effect cannot be given to both the written provision in question and the printed cesser clause. The two provisions are repugnant, if the latter is given the literal meaning expressed by its words. That being so. the written provision prevails.

The obligation imposed on the charterer by the written provision that the cargo be discharged within the time stated was not affected by the provision which gave the charterer the right of nominating a stevedore for discharging the cargo at a port of discharge, the stevedore so nominated to be employed and paid by the shipowner.

When under a charier party it is incumbent on the charterer to pro vide a berth for the ship at the port of discharge, and to discharge the cargo within a stated time, and delay in discharging cargo is due to the charterer’s breach of those obligations, a detention of the vessel due to such causes is made none the less chargeable against the charterer by the fact that the shipowner employs and pays the stevedore nominated by the charterer for discharging cargo.

The fact that the master employs and pays the stevedore nominated by the charterer does not stand in the way of delays in getting the vessel berthed and in discharging the cargo being chargeable against the charterer.

Possible controversy as to what is a reasonable time for discharging cargo is avoided by specifying the number of days allowed the charterer for discharging. i The averments of the libel show that the charterer was at fault in delaying to provide a berth for the ship at Genoa, and in taking greatly more time than was allowed for discharging cargo shipped to that port, and that the detention of the ship thereby caused resulted in financial loss to the libelant.

If the libel’s averments of damage were not sufficiently definite to disclose how the loss alleged was caused by the breach of duty complained of, as suggested in grounds of exception which were not ruled on, the defect was one which was curable by amendment. Where the averments of a libel in admiralty show, with reasonable certainty, the. existence of a legal duty owing to the libelant, a default therein, and consequent injury, it should not be dismissed on the ground that it does not disclose a cause of action.

Loss of profits, or of the use of a ship, caused by its detention at the port of discharge, due to the fault of the charterer, gives a right of action to the shipowner. The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937; The El Monte, 252 Fed. 59, 164 C. C. A. 171. As the averments of the libel here in question show the existence of such a cause of action in the libelant, it was not subject to be dismissed on the ground on which it was dismissed, without an opportunity being given to cure amendable defects it may have had. From what has been said, it follows that the decree appealed from was erroneous.

That decree is reversed.