Pope & Talbot, Inc. v. Blanchard Lumber Co. of Seattle

Pope & Talbot, Inc. appeal from a decree in admiralty awarding appellee damages in the amount of freight withheld by appellant upon an agreed sale of appellee’s lumber at the port of Los Angeles, California, where appellant’s steamer Absaroka, carrying the lumber, took refuge after being torpedoed by a Japanese submarine.

Appellant was carrying the lumber on -a bill of lading having a freight earned *135 clause like that in the case of Pope & Talbot, Inc., v. Guernsey-Westbrook Company, 9 Cir., 159 F.2d 139 . Appellee contends, as was contended in the Guernsey-Westbrook case, that the clause applies only to the freight which the carrier had declared due on the receipt of the goods. For the reasons stated in the companion case, we hold that the freight to be deemed earned “ship or goods lost or not lost” clause applies to freight other than so declared due.

The remaining question in this admiralty appeal is whether the appellant carrier has lost its right to its earned freight because of its abandonment of the voyage at the port of Los Angeles where the Absaroka sought refuge after her injury. While in the trial de novo of an admiralty appeal we pay due regard to the findings of…

(dissenting).

I think the judgment should be affirmed.

While the bill of lading gave the carrier broad latitude in respect of the abandonment of the voyage when the carriage of the cargo is likely to be delayed, the clause ought not be construed, as in effect it is here, so as to place the shipper at the mercy of the carrier acting solely in its own interest. Naturally it was to the advantage of the carrier to treat the freight as earned without having transported the cargo. As we said in The Wildwood, 9 Cir., 133 F.2d 765, 767 , “Such a clause must be given a reasonable interpretation, and the discretion conferred may not be exercised in an arbitrary or unreasonable manner, nor without substantial grounds, nor will good faith alone suffice.”

Much is said in the majority opinion with regard to the likelihood of submarine attack beyond that - contemplated; and it would seem that my brothers have thought it necessary to bolster the holding by resort to this and other speculations. However, it is clear, as Judge St. Sure found, that appellant based its decision to abandon the voyage primarily if not entirely on the prospect of delay. The decision was made by Mr. Lunny, appellant’s…