The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a hearing on exceptions to the amended libel herein.
Respondent has excepted to the whole of the amended libel, and also specifically to articles fourth, fifth, eighth, ninth, and tenth thereof.
The amended libel alleges in substance as follows:
(1) On December 1, 1933, libelant delivered to respondent at New York certain merchandise and respondent issued its bill of lading agreeing to transport said merchandise to Antwerp, Belgium, on the steamship Jean Jadot, to be delivered to shipper's order, notify Melorad, Geneva. A copy of the bill of lading is annexed to the amended libel.
(2) Thereafter libelant drew a draft for the purchase price on Melorad, and caused said draft to be forwarded, with the bill of lading indorsed, to a bank, with instructions to surrender said bill only on payment of the draft.
(3) After arrival of the vessel at Antwerp, respondent, through officers who charged it with privity and knowledge, wrongfully delivered the goods to another carrier for transportation to Geneva, where they were seized by the public authorities at the instance of some owner of patent rights. Thereafter the overcarriage was ratified by the responsible officers of the respondent.
(4) Thereafter libelant tendered to respondent the bill of lading, but respondent was unable to return goods, and respondent has failed and refused to deliver them to libelant. It was alleged that the facts set forth constitute a deviation which deprives respondent of the benefit of the provisions of article 16 of the bill of lading.
(5) It is alleged in article ninth that under the laws of Belgium as well as the United States of America libelant was excused from complying with clause 16 of the bill of lading.
(6) It is further alleged that in any event the respondent has waived compliance with the aforesaid provisions of the bill of lading.
(7) Lastly, it is alleged that in any event claim and suit were brought within a reasonable time.
The principal question here presented is whether there was a deviation vitiating the contract of carriage.
The steamship company by its bill of lading agreed to carry the merchandise by the steamship Jean Jadot to Antwerp, Belgium, shipper's order, notify Melorad, Geneva, Switzerland.
The merchandise was carried by the steamship Jean Jadot to Antwerp, Belgium, and there discharged by the ship, but, instead of delivering the merchandise at Antwerp to the holder of the bill of lading, on a surrender thereof, the respondent turned the merchandise over ...