UNITED STATES v. CARGO OF LUMBER ON THE SPRINGFIELD

UNITED STATES v. CARGO OF LUMBER ON THE SPRINGFIELD. Circuit Court of Appeals, Second Circuit. May 4, 1925. No. 325. Shipping <@=>49 (2) — Charter party for lumber, providing that any reduction in conference freight rates on lumber.should apply to charter party, construed. Charter party for carriage of lumber, providing that any reduction in North Atlantic-Pacific West-Bound Conference freight rates on lumber or its products prior to commencement of loading should apply to charter party, held, to mean that lower freight rate fixed by Conference should apply, but not that charter should be Conference charges in other matters, such as amount of loading and discharging per day, on which demurrage depended, exclusion of dispatch money and brokerage. Appeal from the District Court of the United States for the Southern District of New York. Libel by the United States against 2,436,-567 board feet of spruce, fir, and hemlock lumber, etc., cargo lately laden on board the steamship Springfield. Libel dismissed, and the United States appeals. Affirmed. The following is thé opinion of Ward, Circuit Judge, in the court below: “The United States, owner of the steamship Springfield, filed this libel against a cargo of lumber lately laden on board of her to recover freight at the rate of $20 per 1,000 feet board measure for lumber, 70 cents per 100 pounds for sidings, and 75 cents per 100 pounds for shingles under charter party dated September 12, Í921. It is stipulated that the freight calculated on the terms of the charter party is $50,873.11, ascertained as follows: $68,970.55 freight 9,221.66 stevedoring Leaving... $59,748.89 Subtracting 8,013.65 dispatch money Leaves____ $51,735.24 Deducting.. 862.13 brokerage Leaves net. $50,873.11 “The answer of the claimant alleges that on October 3, 192.1, before the cargo was loaded, a special meeting of the North Atlantic-Pacific West-Bound Conference promulgated Circular No. 60, fixing a rate of freight of $17 per 1,000 feet board measurement, which rate was to be substituted for the charter party rate of $20, in accordance with article X of the charter party, which reads: “ ‘X. It is understood and agreed that in ease any reduction shall be made in the so-called Conference freight rates on lumber and/or its products prior to the time vessel commences to load under this charter a corresponding reduction in the freight rates herein stated shall be granted to the charterer by the vessel. * * * ’ “It is further stipulated that freight calculated under the charter party, with this change of freight rate only, would be $42,-712.40, ascertained as follows: $60,706.53 freight 9,221.60 stevedoring Leaving.......... $51,484.87 Less dispatch money earned....... 8,013.65 Leaving.......... $43,471.22 Less brokerage.... 758.82 Or net balance of.. $42,712.40 “The claimant has paid this amount into the registry of the court. “The libelant claims that, if the changed freight rate of $17 for the $20 per 1,000 feet board measure is to be included in the charter party, then all the other provisions of Circular No. 60, such as the amount of loading and discharging per day on which demurrage depends, the exclusion of dispatch money and brokerage, must also be included. It is stipulated that the freight so calculated would be $55,423.20, ascertained as follows : $60,706.53 freight Plus overpayment on stevedoring at loading point of.. 445.30 Leaving ......... $61,151.83 Less stevedoring at Discharge...... 5,728.63 Leaving a net total of ............. $55,423.20 with no brokerage, no demurrage, and no dispatch. “Obviously, if Circular No. 60 is involved, the libelant cannot recover the freight sued for, which is calculated upon the terms of the charter party. But now it contends that reference to the circular discloses an ambiguity which needs explanation, for which reason it examined Mr. Sinclair, who, though not a member of the Conference, presided at the special meeting at which Circular No. 60 was adopted. He testified that the purpose of the circular was to stabilize, as far as possible, freight rates in the lumber trade. One operator might charge $20, another $18, another $17, but no one could determine what the net cost of transportation under a charter party was, without knowing, for instance, the quantity fixed in it for loading and discharging per day upon which demurrage depends. Therefore a rate of freight was named, accompanied by a fixed amount for loading and discharging per day, and other particulars, as, for instance, a maximum amount for stevedoring, if the charterer did it, and the exclusion of any allowance for dispatch or for brokerage. “The charter party in question provided for a larger demurrage rate than did Circular No. 60, and for a less amount of loading and discharging per day; for dispatch and brokerage, which Circular No. 60 excluded ; and a larger allowance to charterers for stevedoring. If the libelant’s contention is correct, the charter would have to be altered in all these particulars — practically rewritten. But I discover no ambiguity to be corrected. The language is perfectly plain that, if the Conference lowered the rate of freight per 3,000 feet board measure, that rate should apply to this particular charter. There is nothing whatever to show that the parties had in mind any scheme for standardizing vates and conditions between the east and west eoasts of the continent, nor, if they did, any evidence of '.their intention to include such a scheme in the charter, nor any ground for extending the plain language of article X to include it. , “The libel is dismissed. Emory R. Buckner, U. S. Atty., of New York City (Charles E. Wythe, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States. Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (L. De Grove Potter, of New York City, of counsel), for appellee. - ; Before ROGERS, HOUGH, and MAN-TON, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Decree affirmed, on tbe opinion in tbe court below.