Libelant seeks to recover freight charges in the sum of $17,557.89, claimed to be due for a shipment of. nitrate of soda b.y respondent on one of libelant’s vessels from the ports of Antofagasta and Iquique, Chile, during the month of March, 1921, destined for Honolulu. The ship and cargo were destroyed by fire at sea.

In the early part of January, 1921, the agent of respondent in San Francisco contracted for the sale of' some nitrate in Honolulu, and, in order to arrange for the transportation thereof from Chile to Honolulu, entered into negotiations with libelant’s San Francisco offiee relative to the shipment of this nitrate on one of libelant’s vessels. As a result of these negotiations a special freighting agreement was entered into, evidenced by the following letter:

Thereupon respondent’s. San Francisco agent notified its Valparaiso office of this agreement in the following letters:

The letters of respondent’s .agent contain the only notice or advice the .Valparaiso office of respondent ever had relative to the transaction. The instructions received with reference to freight were: “In making up Bs/L we would ask you to kindly omit freight therefrom, and just let the same carry the clause ‘freight as agreed.’ ” With these instructions before him, the Valparaiso agent, in March, 1921, accepted two printed forms of bills of lading with the typewritten insertion in the margin, in one case, “Freight as per agreement,” and, in the other, “Freight as agreed.” .

Libelant rests its whole case upon the bills of lading, and particularly upon the printed clause contained therein reading: “Said freight to be. considered earned, lost or not lost.” It is argued that this printed clause is a term of the contract of affreightment, binding upon respondent because of the .acceptance of the bills of lading by respondent’s agent in Valparaiso. It will be noted, in this connection, however, that the bills of lading omit freight rates, but contain the typewritten words in the margin thereof, “Freight as per agreement,” and “Freight as agreed,” in accordance with the written instructions above mentioned, and there is no doubt but that said typewritten words refer to the special agreement of affreightment entered into between the parties in San Francisco.

I am in accord with the contention of respondent, which is that the verbal agreement entered into and the letter confirming same written in San Francisco prior to the shipments of the nitrate from the Chilean ports constitute the agreement of affreightment, and that the bills of lading were merely receipts for the freight, given subsequently, and therefore, under the circumstances, are no part of the contract of affreightment. See Northern Pacific Rv: Co. v. American Trading Co., 195 U. S. 439 , 25 S. Ct. 84 , 49 L. Ed. 269 ; The Arctic Bird (D. C.) 109 F. 167 .

The libel will be dismissed.