The opinion of the court was delivered by: BRYAN
FREDERICK van PELT BRYAN, District Judge:
These three consolidated actions were tried before me without a jury.
Two of the actions arise out of two shipments of fertilizer from United States ports to Indian ports, for agencies of the Indian Government, aboard two vessels owned by plaintiff, Hellenic Lines, Ltd. (Hellenic). The third arises out of two similar shipments of fertilizer and one of rice aboard three other vessels owned by Hellenic.
Hellenic, a Greek corporation, which operated these vessels in the liner trade between the United States and India, seeks damages for detention of its vessels and lighterage charges in Indian ports. Defendant is the Director General of the India Supply Mission for and on behalf of the Union of India. All of the shipments involved were made pursuant to contracts of affreightment negotiated and made in the United States and under negotiable bills of lading issued by the carrier on sailings from Louisiana, Texas and Virginia ports.
A. Hellenic Torch. By a contract of affreightment dated December 26, 1963, Hellenic, as carrier, contracted to transport 5,000 metric tons of ammonium sulphate for the Indian Ministry of Transportation and Communications from the United States to India. The 4,929.3 long ton shipment was loaded aboard the S.S. Hellenic Torch (Torch) on January 19, 1964 at Galveston, Texas, destined for Bombay, and a bill of lading designating the Regional Director (Food) as consignee was issued bearing that date.
The Torch was a general liner ship with cargo consigned to a number of consignees at various ports. The ammonium sulphate shipment was stowed in the Torch's lower hold beneath other general cargo of other shippers and consignees. The vessel sailed from Galveston and eventually reached Bombay, on April 16, 1964. Plaintiff's agents in Bombay, Shaw Wallace & Co. Ltd. (Shaw), requested the Bombay Port Trust (Trust), an autonomous body which operates and controls the Port of Bombay, to allot a berth so that the vessel could be discharged. The Trust advised Shaw that because of port congestion no berth was then available for the Torch and that the vessel would have to remain at anchorage and await its turn to be berthed. The congestion was caused by go-slow tactics of the Bombay dock laborers, which had held up the unloading of fertilizer and other types of cargo in the port.
On arrival, the Torch, through Shaw, had tendered a notice of readiness to discharge to the consignee. This was rejected by the consignee on the ground that the Torch was a general liner ship on full berth terms and that, as receivers of the cargo, the consignee was responsible only for taking delivery from a shoreside berth, pier or quay. Thereafter, Hellenic's agents requested the consignee to provide lighters to receive the fertilizer cargo while the Torch was at anchorage. The agents also requested the consignee to nominate an alternative port to which the Torch could proceed for discharge. These requests were also refused.
While the vessel was anchored, awaiting a berth, she began to load from barges cargo of other Bombay shippers. This continued for several days until April 24th when the Torch was allotted a berth. She continued loading other cargo while in berth for several days until April 28th and then returned to anchorage.
On May 27, 1964 discharge of the fertilizer cargo was begun into lighters while the vessel was still at anchorage, and this discharge continued on May 29th and 30th.
On June 1, 1964 a berth was again allotted by the Trust. The Torch berthed and commenced discharge. She completed discharge of all cargo consigned for Bombay, including the fertilizer shipment, on June 7th and sailed from Bombay on June 8th.
B. Hellenic Star. By a contract of affreightment dated March 10, 1964, Hellenic, as carrier, contracted with India Supply Mission, as shipper, to transport 2,000 tons of ammonium sulphate to Bombay. The terms were the same as those of the Torch contract. The shipment was loaded aboard the S.S. Hellenic Star (Star) at Houston, Texas, on April 15, 1964 and on-board bills of lading were issued bearing that date.
The Star was also a general liner vessel, with cargo consigned to a number of consignees at various ports. She arrived at Bombay on June 24, 1964, after calling at other ports. Shaw, Hellenic's agent, attempted to obtain a berth for the Star from the Trust and also hired stevedores for the discharge of the ammonium sulphate shipment. However, no berth was allotted for the Star, apparently owing to the same congestion prevalent when the Torch arrived, and the Star remained at anchor awaiting a berth until July 3, 1964. Shaw requested that defendant provide lighters to receive the fertilizer and this request was refused by the defendant on the same grounds as it asserted in the case of the Torch.
On July 3, the Star berthed at Victoria Dock, Bombay, and discharged general cargo but did not discharge any of the ammonium sulphate shipment. She sailed for Cochin and other ports on her itinerary
on July 4, to discharge and load other cargo not connected with defendant.
Prior to sailing from Bombay, defendant agreed to accept delivery of the fertilizer shipment at the Port of Calcutta, to which the Star was to sail with other cargo, at no extra cost to the Government of India. Hellenic reserved its right to claim for any detention of the vessel at Bombay.
The Star arrived at Sandheads, a deep water anchorage off the Port of Calcutta, on August 13, 1964, after making the other stops on its itinerary. She berthed in the Port of Calcutta on August 18 to discharge both general cargo and defendant's fertilizer. Discharge of the fertilizer was completed on August 29, 1964.
After memorandum copies of the Star bills had been released, but before the original bills were exchanged for an outstanding negotiable mate's receipt, Hellenic added typewritten language to the face of the three originals of the bills of lading. The bills were dated and appear to have been issued on April 15, 1964, one day before the Torch arrived at Bombay, and the added language was apparently typed on the Star bills after the Torch had arrived there and Hellenic was fully aware of the congestion at that port.
C. Hellenic Wave, Hellenic Glory and Hellenic Sailor. Pursuant to a contract of affreightment dated November 19, 1963, and a bill of lading dated December 27, 1963, approximately 4,328 long tons of rice were shipped aboard plaintiff's S.S. Hellenic Wave (Wave), from Lake Charles, Louisiana, to Bombay. Under a contract of affreightment dated December 11, 1963 and a bill of lading dated January 6, 1964, 20,000 bags of nitrophosphate were shipped aboard the S.S. Hellenic Glory (Glory), from Norfolk, Virginia, to Bombay. Under a contract of affreightment dated October 15, 1963 and a bill of lading dated November 1, 1963, 56,000 bags of rice were shipped aboard the S.S. Hellenic Sailor (Sailor) from Houston, Texas to Bombay, India.
The terms of these three shipments, all for India Supply Mission as shipper, were identical and the same as the Torch and Star shipments. The vessels, upon arrival at Bombay, discharged by lighter.
Conditions at the Ports of Discharge
The Port of Bombay, including the Harbor and the adjoining estates, is operated and controlled by the Trust, an independent, autonomous body. It is not under the control of the defendant. Berths in the Port are allotted by the Trust. Cargo is customarily discharged into the custody of the Trust.
It is customary for liner ships carrying commodities of the type involved here, discharging at the Port of Bombay, to discharge at a shoreside berth, dock or quay. Fertilizer cargo is not customarily discharged into lighters.
When the Torch and the Star arrived at Bombay and while these vessels were awaiting allotment of berths by the Trust, a work slowdown by the general laborers in the Port area of Bombay was in progress. It is clear that this slowdown resulted in considerable port congestion, particularly with respect to fertilizer and feed grain cargoes. There is no evidence in the record that the slowdown was the result of any fault on the part of the defendant, nor did the defendant have any control over it. The delay of the Bombay Trust in allotting berths to the Torch and to the Star for the discharge of fertilizer cargo was the result of the port congestion caused by the slowdown.
In Calcutta, the Calcutta Port Commissioners, through their Docks Manager, arrange for the berthing of vessels according to the priority of arrival at Sandheads, a deep water anchorage off the Port, taking into account the nature of the cargo and other factors. Thus, order of arrival at Sandheads is not the sole determinant of the order of berth allocation.
The Terms of the Freight Contracts and the ...