111 COMPAGNIE DE COMMERCE ET DE NAVIGATION D'EXTREME ORIENT vs. THE HAMBURG AMERIKA PACKETFACHT ACTIEN GESELLSCHAFT By Kylie Dado Topic: Topic: Freight Freight (Disclaimer: Difcult case Tried my hardest to understand it Included only those necessary to the topic) PARTIES: This is an action by the PLAINTIFF, corporation corporation organized organized in France, with a branch in Saigon, against DEFENDANT, DEFENDANT, organiz organized ed in Gerany Gerany,, with a principa principa!! o"ce in #ab$rg #ab$rg,, Gerany Gerany,, and represent represented ed in %ani!a %ani!a by &ehn, &ehn, %eyer %eyer ' (opany) FACTS: De*endant chartered and hired $nto the p!ainti+ the steaship or esse! ca!!ed the Sambia *or Sambia *or the p$rpose o* carrying a *$!! cargo o* rice, rice bran and cargo ea! rom the port o Saigon to the port o Dunkirk and amburg , ia S$ez (ana!, $pon the ters and conditions set *orth and contained in the written charter party ade and e-ec$ted between the said parties) (Shi!"#$% & D$$#)#*+ C)%,! !"#$% & P-)i#*i/ There were r$ors o* ipending ipending war between Gerany and France and other nations o* E$rope) The aster o* the steaship was to!d to ta.e re*$ge at a ne$tra! port /beca$se Saigon was a French port0) P!ainti+ as.ed *or cop$!sory detention o* its esse! to preent its property *ro !eaing Saigon) #oweer, the Goernor o* Saigon re*$sed to iss$e an order beca$se he had not been o"cia!!y noti1ed o* the dec!aration o* the war) The steaship sai!ed *ro Saigon, and was bo$nd *or %ani!a, beca$se it was iss$ed a bi!! o* hea!th by the 2S cons$! in Saigon) Saigon) The steashi steaship p stayed stayed contin$o$s! contin$o$s!y y in %ani!a and where where it contend contends s it wi!! be compelled to stay until the !ar ceases) ceases) No attept was ade on the part o* the de*endants to trans*er and de!ier the cargo to the destinations as stip$!ated in the charter party) &ehn, &ehn, %eyer %eyer ' (opany (opany o+ered to p$rcha p$rchase se the cargo *ro the p!ainti+ p!ainti+,, b$t the !atter !atter neer neer receie receied d the cab!e essages so they neer answered) answered) 3hen a s$rey was done on the ship, it was *o$nd that the cargo cargo was in*ested with beet!es, so &ehn, %eyer ' (opany as.ed *or co$rt a$thority to se!! the cargo and the ba!ance to be d$ped at sea) The proceeds o* the sa!e were deposited in the co$rt, waiting *or orders as to what to do with it) &ehn, %eyer ' (opany wrote the p!ainti+ again in*oring the !atter o* the disposition which it ade $pon the cargo) P!ainti+ answered that it was sti!! sti!! waiting waiting *or orders orders as to what to do) Now, Now, the p!ainti+ p!ainti+ wants wants a!! the proceeds proceeds o* the sa!e to be gien to the /as daages *or the de*endants4 *ai!$re to de!ier the cargo to the destinations D$n.ir. and #ab$rg0, while defendants contended that they have a lien on the proceeds of the sale (amount due to them because of the upkeep and maintenance of the ship crew and for commissions for the sale of the cargo). T(: T(: In *aor o* the p!ainti+s) p!ainti+s) De*endants appea!ed, and ade the *o!!owing assignent o* errors: 5) (o$rt (o$rt had no 6$ris 6$risdic dictio tion n 7) Fear o* capt$ capt$re re was not *orce *orce a6e$ a6e$re re 8) De*endant De*endant is !iab!e !iab!e *or daages daages *or non9de!iery non9de!iery o* cargo, cargo, and the the a!$e o* o* the award award o* daages0 daages0 n appea!, the p!ainti+s a!so contended that the co$rt erred in not giing the *$!! a!$e o* daages) ISSUES: 5) "#$ the master o Sambia% !hen he &ed rom the port o Saigon and took reuge in the port o 'anila% had reasonable grounds to apprehend that his essel !as in danger o seiure or capture by the public enemies o the &ag under !hich he sailed 2. W/N defendant is entitled to freight *** 8) "#$ the claim o the deendant or general aerage can be sustained SC: 5) 0ES 5) 0ES I* it was his d$ty to reain in the port o* Saigon $nder the circ$stances e-isting at the tie when he cop!eted the !oading o* the esse!, in the hope that he wo$!d be granted a !aissezpasser or sa*econd$ct by the French a$thorities, it is ani*est that his ;ight s$b6ected the ship and her owners to !iabi!ity *or the res$!tant daages s$+ered by the cargo) I*, on the other hand, the aster had reasonab!e gro$nd to be!iee that by reaining in the port o* Saigon he wo$!d e-pose the esse! to a rea!, and not a ere!y iaginary danger o* seiz$re by the French a$thorities *ro which he co$!d sec$re her by ta.ing re*$ge in the port o* %ani!a, his ;ight $st be he!d to hae been 6$sti1ed by the necessity $nder which he was p!aced to e!ect that co$rse which wo$!d sec$re the esse! *ro danger o* seiz$re by a p$b!ic eney o* the co$ntry $nder whose ;ag she sai!ed< and the shipowner $st be he!d to be re!ieed *ro !iabi!ity *or the deiation *ro the ro$te prescribe prescribed d in the charter charter party and the res$!ta res$!tant nt daages daages to the cargo, $nder the genera! genera! proision proisions s o* aritie !aw
*etitioner+s ,ontention: haing in ind accepted princip!es o* p$b!ic internationa! !aw, the estab!ished practice o* nations, and the e-press ters o* the Si-th #ag$e (onention /5=>?0, the aster sho$!d hae con1dent!y re!ied $pon the French a$thorities at Saigon to perit hi to sai! to his port o* destination $nder a !aissezpasser or sa*econd$ct, which wo$!d hae sec$red both the esse! and her cargo *ro a!! danger o* capt$re by any o* the be!!igerents) Deendant+s Deense: in the !ight o* the dee!opents o* the present war, the aster was *$!!y 6$sti1ed in dec!ining to !eae his esse! in a sit$ation in which it wo$!d be e-posed to danger o* seiz$re by the French a$thorities, sho$!d they re*$se to be bo$nd by the a!!eged r$!e o* internationa! !aw !aid down by opposing co$nse!) The (o$rt conc!$ded that $nder the circ$stances s$rro$nding the ;ight o* the Sabia *ro the port o* Saigon, her aster had no s$ch ass$rances, $nder any we!!sett!ed and $niersa!!y accepted r$!e o* p$b!ic internationa! !aw, as to the i$nity o* his esse! *ro seiz$re by the French a$thorities, as wo$!d 6$sti*y $s in ho!ding that it was his d$ty to reain in the port o* Saigon in the hope that he wo$!d be a!!owed to sai! *or the port o* destination designated in the contract o* a+reightent with a !aissezpasser or sa*econd$ct which wo$!d sec$re the sa*ety o* his esse! and cargo en ro$te) It is tr$e that soon a*ter the o$tbrea. o* the war, the @ep$b!ic o* France a$thorized and directed the grant o* sa*e cond$cts to eney erchant esse!s in its harbors, $nder certain reasonab!e reg$!ations and restrictions< so that it wo$!d appear that had the aster o* the Sabia awaited the iss$ance o* s$ch a sa*e cond$ct, he ight hae been enab!ed to cop!y with the ters o* his contract o* a+reightent) &$t $nti! s$ch action had been ta.en, the Sabia was e-posed to the ris. o* seiz$re in the eent that the French goernent sho$!d dec!ine to con*or to the practice< and in the absence o* any ass$rance in that regard $pon which the aster co$!d con1dent!y re!y, his d$ty to his owner and to his esse!s ;ag 6$sti1ed hi in ;eeing *ro the danger o* seiz$re in the port o* an eney to the abso!$te sec$rity o* a ne$tra! port) The danger *ro which the aster o* the Sabia ;ed was a rea! and not ere!y an iaginary one as co$nse! *or the shipper contends) Seiz$re at the hands o* an Beney o* the Cing,B tho$gh not ineitab!e, was a possib!e o$tcoe o* a *ai!$re to !eae the port o* Saigon< and we cannot say that $nder the conditions e-isting at the tie when the aster e!ected to ;ee *ro that port, there were no gro$nds *or a Breasonab!e apprehension o* dangerB *ro seiz$re by the French a$thorities, and there*ore no necessity *or ;ight) There can be and there is no $estion as to the necessity, arising o$t o* the presence o* eney cr$isers on the high seas which cope!!ed the Sabia, once she had !e*t the port o* Saigon, to ta.e re*$ge in the port o* %ani!a and to stay there inde1nite!y pending the o$tcoe o* the war) 3e conc!$de, there*ore, that the deiation o* the Sabia *ro the ro$te prescribed in her charter party, and the s$bse$ent abandonent by the aster o* the oyage contep!ated in the contract o* a+reightent, $st be he!d to hae been 6$sti1ed by the necessity $nder which he was p!aced to e!ect that co$rse which wo$!d reoe and presere the esse! *ro danger o* seiz$re by the p$b!ic eneies o* the ;ag $nder which she sai!ed< and that neither the esse! nor her owners are !iab!e *or the res$!tant daages s$+ered by the owner o* the cargo) •
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. NO he claim advanced on behalf of the shipowner for freights is wholly without merit. !nder the terms of the contract of a"reightment# the amount of the freight was made payable on delivery of the cargo at the designated port of destination. $t is clear then# that under the terms of that instrument freight never became payable. %arrying the cargo from &aigon to ' anila was not even a partial performance of a contract to carry it from &aigon to urope and even it if could be treated as such# the shipowner would have no claim for freight# in the absence of any agreement# epress or implied# to make payment for a partial performance of the contract. Sho$!d the aster re!in$ish the attept either to carry on the goods in his own ship or to send the to their destination in another ship, he wi!! thereby who!!y abandon any c!ai *or *reight in respect to the, $n!ess it has been ade payab!e in adance, or irrespectie o* de!iery) 3here *reight is on!y payab!e on de!iery, no part is earned $nti! it is earned cop!ete!y) So that whether the abandonent o* the oyage be d$e to inabi!ity, or preention o* the ship, or to the necessity o* se!!ing the goods, either to raise *$nds *or the ships repairs or their owners interest, the shipowner !oses the who!e *reight) n the other hand, i* the cargo be accepted at the port o* re*$ge $nder an agreeent that de!iery there sha!! be treated as a per*orance by the shipowner o* his contract< or i* the owner o* the goods, by any act or de*a$!t, preents the shipowner *ro carrying the on to their destination, the who!e o* the *reight becoes at once payab!e) A!so soeties the shipowner becoes entit!ed, by agreeent, on de!iery at a port o* re*$ge, to *reight in proportion to the part o* the oyage which has been accop!ished) This s$b6ect wi!! be disc$ssed ore *$!!y herea*ter) #ere it is eno$gh to say that no agreeent o* this .ind can arise, by ip!ication, $n!ess the cargo owner has consented to accept the goods $nder circ$stances which !e*t hi an option to hae the carried on to their destination by the shipowner, in his own or soe other esse!) 3here the esse! has been abandoned at sea by the aster and crew, witho$t any intention o* ret$rning to her, the *reighter is entit!ed to treat the contract as abandoned< so that i* she be bro$ght into port by sa!ors, he ay c!ai the goods witho$t becoing !iab!e to pay *reight) 2. NO
The c!ai o* the shipowner *or genera! aerage cannot be s$stained $nder the proisions o* the or.Antwerp @$!es o* 5=>, by re*erence to which, it was e-press!y stip$!ated in the charter party, a!! s$ch $estions sho$!d be sett!ed, @$!es and I, which treat o* BE-penses at Port o* @e*$ge, etc),B and B3ages and %aintenance o* (rew in Port o* @e*$ge, etc),B proide *or genera! aerage B3hen a ship sha!! hae entered a port or p!ace o* re*$ge, or sha!! hae ret$rned to her port or p!ace o* !oading, in conse$ence o* accident, sacri1ce, or other e-traordinary circ$stances which render that necessary *or the coon sa*ety ) ) )
S( conc!$ded that $ch o* the 6$dgent entered in the co$rt be!ow as proides *or the de!iery to the p!ainti+ in this action o* the s$ o* P57,=??)?5, the net proceeds o* the sa!e o* the cargo o* rice aboard the Sabia, which has been deposited s$b6ect to the order o* the co$rt be!ow, !ess any coissions to which the c!er. o* that co$rt ay be !aw*$!!y entit!ed at the date o* payent, sho$!d be a"red< b$t that so $ch o* the 6$dgent as proides, *or the recoery o* daages in the s$ o* PJ>,5K)87, sho$!d be reersed
