The opinion of the court was delivered by: MCGOHEY
This is a libel for recovery for cargo lost when the West Point stranded May 17, 1946. Most of the claims were dismissed by consent prior to trial, leaving for adjudication only those of libellants New Trading Company (hereafter called New Trading cargo) and The Baker Castor Oil Company (hereafter called Baker cargo).
Libellants claim that respondent became liable as an insurer of their respective cargoes against all risks by reason of unjustifiable deviations prior to the stranding. I disagree.
The West Point was a British steamer of 4,998 gross tons, length over all 415 feet, breadth amidships 53 feet 6 inches. Captain Davies, who was in command, had been her master since March or April, 1938.
The vessel was operated by respondent for the British Ministry of War Transport to which she was under charter from her owners. She loaded cargo in Baltimore and New York and sailed from the latter for Brazilian ports. She arrived at Cabedelo in March, 1946, discharged some cargo and loaded the New Trading cargo for which respondents issued three bills of lading each of which listed New York as the destination and bore the endorsement 'CARGO SHIPPED VIA BAHIA AND MANAOS.'
Each bill also contained the following relevant provisions:
'It is agreed that the custody and carriage of the goods are subject to the following terms which shall govern the relations, whatsoever they may be, between the shipper, consignee, and the Carrier, master and ship in every contingency, wheresoever and whensoever occurring, and also in the event of deviation. * * *
'The legislation enacted in any country to give effect to the provisions of a draft convention promulgated at Brussels in the year 1922 by the International Convention for the Unification of Certain Rules relating to Ocean Bills of Lading (commonly known as 'the Hague Rules') shall be deemed to be incorporated herein when compulsorily applicable to the contract of carriage herein contained, especially including the United States Carriage of Goods by Sea Act, approved April 16, 1936, if this Bill of Lading evidences a contract for the carriage of goods by sea to a port of the United States, 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 thereunder. * * *
'I(B)(1) * * * It is further mutually agreed that as a part of the voyage between the terminii stated in the bill of lading, the ship, either before or after proceeding toward the port of discharge, may proceed to ports in or out of the ordinary route or of the scheduled or advertised itinerary, if any, and in or out of the usual or geographical order, and towards or away from or beyond the port of discharge, the Carrier and ship being authorized as part of the voyage contracted for, to call at any of the said ports in any order whatsoever, including ports beyond the port of discharge, to proceed backwards or forwards, to omit calling at any port, whether scheduled or not, and to call at the same port more than once; the Carrier and the ship are further especially authorized, as part of the voyage hereby contracted for, either with or without the goods on board, and before or after sailing, or at any stage of the voyage, to * * * remain in port, * * *; the matters mentioned as part of the voyage contracted for shall include anything done by the Carrier or the ship for the purposes of this or any prior or subsequent voyage, or for any other purpose whatsoever.
'XII The terms of this bill of lading constitute the contract of carriage and supersede all prior agreements and understandings. The liability of the carrier (unless otherwise previously terminated) shall be restricted, as herein provided, from the receipt of the goods by the carrier under delivered by the carrier to the consignees or Customs, according to the regulations of the port of discharge, irrespective of whether or not the goods are over- or under- carrier or transported by a route or means or in a method not contemplated on shipment nor within any of the liberties contained in this bill of lading.'
On March 31 the West Point sailed 85 miles south from Cabedelo and put in at Recife on April 1. She there discharged cargo which had been carried south from Baltimore and departed on April 15, the delay in departure having been caused by a shortage of lighters available for unloading.
Still sailing south, the vessel put in at Bahia on April 18 after a run of 406- 1/2 miles from Recife. The call at Bahia was for the purpose of completing the discharge of cargo carried on the southbound voyage from the United States and loading northbound cargo. She remained a week at Bahia discharging, bunkering and loading the Baker cargo. No work was done on Good Friday, April 19, a general holiday in the port. Although the evidence is not clear, it appears that at Bahia the West Point began to be operated by respondent under a different charter.
The bill of lading for the Baker cargo listed Bahia as the port of shipment and New York as the destination. No intermediate ports of call were indicated and the bill contained provisions identical with those in the New Trading cargo bills.
Until shortly before leaving Bahia the West Point had been scheduled to sail north and call for cargo at Fortaleza, Tutoya and Maranhao in that order which was their geographical order from south to north. However, on the day she sailed she was directed to call at Tutoya first in order to catch the tides at Tutoya Bay on May 1. She was then to proceed south to Fortaleza and then north to Maranhao, thus passing Tutoya en route.
This was the course she followed. She left Bahia on April 25 and arrived at Tutoya April 30 having passed Recife and Cabedelo en route. After loading cargo she departed Tutoya May 5 and sailed 221 miles south to Fortaleza, arriving there on May 6. Cargo was taken on and on May 12 the West Point sailed for Maranhao where she arrived May 14 after having passed Tutoya en route. Loading took but 1 day and on May 15 she sailed north from Maranhao. The vessel stranded on a reef on May 17 and was lost together with the cargo involved here. The parties have stipulated that the stranding and loss of the West Point did not result from unseaworthiness.
A deviation may be defined as a departure from the course of the voyage designated in the contract of carriage.
Since the New Trading cargo bills of lading which constituted the contract of carriage
specifically designated Bahia as a port of call on the itinerary of ...