The opinion of the court was delivered by: BYERS
In the first cause, libelant, described as chartered owner (to be called owner) of the Norwegian S.S. MARPESIA, sues to recover additional freight moneys from respondent under a voyage charter or contract of affreightment from Mobile, Alabama, to Georgetown, British Guiana, dated April 30, 1942, concerning a voyage as to which the ship was expected to be ready on May 3, 1942.
The second cause is asserted in a cross-libel filed by respondent to recover an alleged overpayment of freight moneys in connection with the same voyage, and unliquidated damages; the cross-libel was filed when it became known to proctors that such affirmative claims are available in the Admiralty only as an offset.
It was stated at the hearing that the United States appears for the respondent by virtue of a cost-plus contract which it had with the latter, but there is nothing of record on the subject.
The facts are not in dispute; are stipulated in part, and may be summarized thus:
The voyage charter provided a lump sum freight payment for the carriage of a cargo of cement from Mobile to Georgetown, and lay days were stipulated; loading and discharge were to be within a total of eight running days, and demurrage was at a stipulated rate, under conditions not requiring recital. The following provisions are to be noticed:
'12. The rate of freight or lump sum freight charge hereinbefore provided is calculated on the basis of a port to port voyage of 12 running days, commencing from time of Vessel's normal readiness to sail from loading port until time of arrival at port of discharge, and it is hereby mutually agreed that for all time consumed by the Vessel on such voyage in excess of 13 running days the Charterer shall pay Owner $ 875 United States Currency per day or pro rata for part of a day; it being understood, however, that any delay to Vessel or loss of time during the period provided for above caused by deficiency of men or stores, breakdown, damages to or defect in hull, machinery or equipment, fire, grounding, detention by average accidents to ship or cargo, or by any other cause preventing the full working of the Vessel for which the Owner is responsible or caused by damages resulting from enemy action against the Vessel, shall be excepted.'
'17. The Vessel shall have the liberty to sail with or without pilots, to tow and to be towed, to assist vessels in distress, and to deviate for the purpose of saving life and property. The Vessel to have the privilege of bunkering before and/or after loading, also enroute. Should the Vessel put into a port of distress, or be under average, Vessel shall be consigned to an agent designated by Charterer, Owner paying said agent the customary fee for attending to the Vessel's business.'
'21. The Vessel to have liberty to comply with any orders or directions as to departure, arrival, routes, ports of call, stoppages, destination, delivery or in any other wise whatsoever given by the Government of the nation under whose flag the Vessel sails or any other Government or any person (or body) acting or purporting to act with the authority of such Government or by any committee or person having under the terms of the war risk insurance on the Vessel the right to give any such orders or directions.
'If in compliance with the provisions of this clause anything is done or is not done, such not to be deemed a deviation.'
'22. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936 (46 U.S.C.A. § 1300 et seq.), which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. If any term of this bill of lading be repugnant to said Act to any extent, such term shall be void to that extent, but no further.'
'23. This Agreement is subject to approval of the United States Maritime Commission and any conditions imposed by said Commission pursuant to the Ship Warrants Act (Public Law 173, 77th Congress) (50 U.S.C.A.Appendix, § 1281 et seq.).'
The ship arrived in Mobile on Saturday, May 2, 1942; started loading this cargo on the following Monday, May 4th, and completed the operation on May 5th at 2:10 P.M. She was seaworthy in all physical respects, but lacked a chief engineer who had been taken ill and removed to a hospital on May 2nd.
The master promptly telephoned to the Norwegian Consul in Mobile, and a shipping office in New Orleans, in an effort to procure a chief engineer of Norwegian certification as required by the registration of the ship. These efforts were unsuccessful, and he then telephoned or telegraphed to the Norwegian Shipping and Trade Mission in New York, and through that agency a qualified chief engineer was found in Baltimore, who traveled by plane to Mobile where he arrived on the morning of May 8th.
Application for naval clearance at Mobile was granted on May 7th at 4:30 P.M., and a half hour later was rescinded as to this and all other vessels then in port, because of the presence of enemy submarines in the Gulf of Mexico.
This restriction was removed and all vessels in that port were permitted to sail on May 13th at 11:40 A.M., at which hour ...