The opinion of the court was delivered by: FORMAN
On October 31, 1945, libelant, United States of America, through the War Shipping Administration by Tankers Company, Inc., entered into a tanker charter party with the respondent, The Atlantic Refining Company, a corporation having its office and place of business in Newark, New Jersey, wherein, among other things, it was agreed in Part I of said charter party that the libelant's vessel the S.S. Quemada Lake should transport the respondent's cargo of crude oil to be loaded at one or more of the U.S. Gulf Coast ports and discharged at one or more of the Atlantic Coast ports. The freight rate was to be according to the War Shipping Administration maximum and surcharge as of completion of loading.
Under the heading 'Special Provisions' the charter party contained the following:
'2. The vessel shall load and discharge at any safe place or wharf, or alongside vessels or lighters reachable on her arrival, which shall be designated and procured by the Charterer, provided that the vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer. The Charterer shall have the right of shifting the vessel at ports of loading and/or discharge from one safe berth to another on payment of all towage and pilotage shifting to the next berth, charges for running lines on arrival at and leaving that berth, wharfage and dockage charges at that berth, additional agency charges and expenses, customs overtime and fees, and any other extra port charges or port expenses incurred by reason of using more than one berth. Time consumed on account of shifting shall count as used laytime except as otherwise provided in W.S.A. Rate Orders and Rate Advices.
'Hours for loading and discharging and demurrage rate per hour shall be in accordance with the published War Shipping Administration terms and rate applicable on this size vessel as on the date of loading.'
In Part II of the said charter party, among others, the following provisions appear:
'1(a).- The Vessel, classed as aforesaid and to be so maintained during the currency of this Charter, shall with all convenient dispatch, proceed as ordered to Loading Port or so near thereunto as she may safely get (always afloat), and being tight, staunch and strong, and having all pipes, pumps and heater coils in good working order, and being in every respect fitted for the voyage, so far as the foregoing conditions can be attained by the exercise of due diligence, perils of the sea and any other cause of whatsoever kind beyond the Owner's control excepted, that shall load (always afloat) from the factors of the Charterer a full and complete cargo of Petroleum and/or its products in bulk, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, stores and furniture (sufficient space to be left in the expansion tanks to provide for the expansion of the cargo), and being so loaded shall forthwith proceed, as ordered on signing Bills of Lading, to Discharging Port, or so near thereunto as she may safely get (always afloat), and deliver said cargo. The freight shall be at and after the rate stipulated in Part I hereof, based on intake quantity as shown on the Inspector's Certificate of Inspection, the services of the Petroleum Inspector to be arranged and paid for by the Charterer who shall furnish the Owner's Agent with a copy of the Inspector's Certificate. No deduction of freight shall be made for water and/or sediment contained in the Oil.
'4. Notice of Readiness.- The Master or his representative shall give the Charterer or his agent at the ports of loading and discharge notice in writing during the ordinary business hours that the Vessel to load or discharge cargo, berth or no berth, and lay time shall commence upon the expiration of six (6) hours after receipt of such notice, or upon the Vessel's arrival in berth (i.e., finished mooring when at a sealoading or discharging terminal, and all fast when loading or discharging alongside a wharf), whichever first occurs; provided, however, that where because of routing instructions or other orders of the Owner over which the Charterer has no control, delay is caused to the Vessel for more than six (6) hours after notice of readiness is given, in waiting turn to load or discharge, lay time shall not commence until Vessel is berthed.
'5. Hours for Loading and Discharging.- Such number of running hours as are stipulated in Part I hereof shall be allowed the Charterer as lay time for loading and discharging cargo, but if the Vessel's condition or facilities do not admit of loading and discharging in the time allowed, then the additional time necessary therefor shall be included in lay time. If regulations of the Owner or port authorities prohibit loading or discharging of the cargo at night, time so lost shall not count as usual lay time, if the Charterer, Shipper or Consignee prohibits loading or discharging at night, time so lost shall count as used lay time.
10. Demurrage.- Charterer shall pay demurrage per running hour and pro rata for a part thereof stipulated in Part I for all time that loading and discharging and used lay time as elsewhere herein provided exceeds the allowed lay time herein specified. If, however, demurrage shall be incurred at ports of loading and/or discharge because of fire or explosion in or about the plant, or because of breakdown of machinery of the Charterer, shipper or consignee of the cargo, the rate of demurrage shall be reduced to one-half of the rate stipulated in Part I hereof per running hour and pro rata of such reduced rate for part of an hour for demurrage so incurred.
'20(a). Act of God, etc.- The Vessel, her Master and Owner shall not, unless otherwise in this Charter expressly provided, be responsible for any loss or damage, or delay or failure in performing hereunder, arising or resulting from- any act, neglect, default or barratry of the Master, pilot, mariners or other servants of the Owner in the navigation or management of the Vessel; fire, unless caused by the personal design or neglect of the Owner; collision, stranding, or peril, danger or accident of the sea or other navigable waters, saving or attempting to save life or property; wastage in weight or bulk, or any other loss or damage arising from inherent defects, quality or vice of the cargo; any act or commission of the Charterer or Owner, Shipper or Consignee of the cargo, their agents or representatives; insufficiency of packing or inadequacy of marks, explosion, burning of boilers, breakage of shafts, or any latent deface in hull, equipment or machinery, unseaworthiness of the Vessel unless caused by want of due diligence on the part of the Owner to make the Vessel seaworthy or to have her properly manned, equipped and supplied, or from any other cause of whatsoever kind arising without the actual fault or privity of the Owner. And neither the Vessel, her Master or Owner, nor the Charterer, shall, unless otherwise in this Charter expressly provided, be responsible for any loss or 'damage or failure in performing hereunder, arising or resulting from:- Act of God, act of war, act of public enemies, pirates or assailing thieves, arrest or restraint of princes, rulers of people, or seizure under legal process provided bond is promptly furnished to release the Vessel or cargo; strike or lockout, or stoppage of restraint of labor from whatever cause, either partial or general; or riot or civil commotion.'
Rate Order No. 394 of the War Shipping Administration, approved October 12, 1945, governed rates, lay time and demurrage and in so far as this suit is concerned the following provision is pertinent:
'Time allowed for loading and discharging, 72 hours.
'Demurrage rates per hour: Vessels of 8,999 D.W.T. or less, $ 50.00; * * * vessels of 14,000 ...