Pope & Talbot, Inc. v. Guernsey-Westbrook Co.

This is an appeal from a judgment in a súit at law awarding the appellee damages in the amount of freight moneys deducted by appellant from the proceeds of an agreed sale at Los Angeles, California, by appellant of appellee’s lumber shipped on the appellant’s steamer Absaroka on the abandonment of that vessel’s voyage from St. Helens, Oregon, to Brooklyn, New York.

In the case of Pope & Talbot, Inc. v. Blanchard Lumber Co. of Seattle, 9 Cir., 159 F.2d 134 , we have held justified the abandonment of the voyage after the torpedoing of the vessel on December 24, 1941, by a Japanese submarine off the Port of Wilmington, California, and upheld the withholding of freight moneys from the proceeds of the sale of the Blanchard Lumber Company’s lumber under the “freight earned” clause of the bill of lading in that case.

In the instant case the agreement of the parties is different. The appellee obtained from appellant a C.I.F. contract for the purchase of appellant’s lumber to be carried in appellant’s Absaroka to Brooklyn, New York. The contract of purchase is evidenced by the typed acceptance by appellant of appellee’s order in the following terms:

“Prices as noted above per M’…