The West Cawthon , 281 F. 894 ( 1922 )

ROSE, District Judge.

The libelant seeks to recover damages for misdelivery and for nondelivery of a consignment of bag rice shipped upon the steamship West Cawthon from the Orient to Havana. When the ship reached Cienfuegos, Cuba, at which she arrived in regular course before going to Havana, her master learned that the congestion in the harbor of the latter place was so great, and the available discharging and warehousing facilities were so limited, that it would not be possible, under the existing port regulations, for perhaps months, either to deliver the rice or to get out of the harbor. The evidence shows that he was right, and has convinced me that no prudent consignee would have wanted the attempt to have been made. The master accordingly discharged the rice at Cienfuegos, and in so doing he showed good judgment.

[1] The claimant relies upon various provisions of the bill of lading, which it contends confer upon the master discretion to discharge at another port than that of agreed destination. It is unnecessary to consider whether this contention is or is not well founded, for the evidence abundantly shows that the delivery at Cienfuegos, instead of Havana, caused no legal damage to the libelant, as the rice could have been sold for as much or more at Cienfuegos as it would have brought at Havana.

[2] The libelant cannot recover for the loss of profit he would have made from a sale which he had negotiated to some one who rightfully or wrongfully subsequently refused to take the rice because the ship1 had not delivered it to Havana. The libelant could easily have had it, taken by rail to that place at a date earlier than by any possibility, under, the conditions prevailing in the port, it could have been delivered there from a ship in that harbor.

[3] A number of the bags of rice were never delivered anywhere. They were lost by the ship, and the contention is made on its behalf that the libelant cannot recover for their value, because it did net put in a claim for them in the time limited within the bill of lading. The fact is, however, that the delivery was never made at the port at which it should have been, and that, before it was ever delivered anywhere, the ship itself, or some one on its behalf, notified the libelant that the bags in question were lost.

Under the very peculiar circumstances of this case, the ship must be held for their value; but that is all for which it is answerable.