The opinion of the court was delivered by: FORMAN
This is a suit in admiralty brought by the American Foreign Steamship Corporation, as chartered owner of the steamships Oscar Chappell and Walker D. Hines, to enforce a maritime lien for freight in the amount of $ 162,000 against a cargo of approximately 9,000 tons of manganese ore carried by these vessels in the period from February to April of 1947. The cargo was attached at Hoboken, New Jersey, under process of this court, and was released on stipulation for value filed by the claimant of the cargo, Union Carbide and Carbon Corporation. The suit is in rem against the cargo, and also names as respondents, Union Carbide as owner of the cargo, Lavino Shipping Company as agent of the charterer of the vessels, and E. J. Lavino & Company, the consignee in a bill of lading issued February 18, 1947. The Union Carbide filed a cross-libel against libelant claiming damages occasioned by the attachment of the cargo, and alleging that the demand for freight, in the amount of $ 162,000, was arbitrary, excessive and illegal. On June 7, 1948, subsequent to the filing of this libel, a consent decree on stipulation was entered and the sum of $ 53,215.66 was paid on account of freight due. At the trial it was agreed that proof of amounts claimed be reserved pending the determination on the merits of the issues here involved.
There is little dispute as to the actual facts, most of which were either stipulated or established by undisputed testimony at the trial.
On December 16, 1946 the libelant, American Foreign Steamship Corporation, entered into a voyage charter of the steamship Oscar Chappell, with G. T. Symons & Co., Ltd., London, as agents for the African Manganese Company, Ltd., who was the charterer. Under the terms of the charter the vessel would carry a cargo of 8100 to 9900 tons of ore from Takoradi, Africa, to a port north of Cape Hatteras or Mobile, Alabama, for an agreed freight of $ 9 per ton delivered weight, less any advances, which although payable upon delivery of the cargo, was considered 'earned on shipment'. The charter also provided that the cargo should be loaded at the expense of the charterer and discharged at the expense of the vessel, for the payment of commissions aggregating 6 1/4 % and for the payment of dispatch monies for the time saved in loading and discharging. In addition, the charter contained in clause (v) a liberties clause which reads as follows:
'In any situation whatsoever and wheresoever occurring * * * which in the judgment of the carrier or master is likely to give rise to risk of * * detention, damages, delay or disadvantage to or loss of the ship or any part of her cargo, or to make it unsafe, imprudent, or unlawful for any reason to commence or proceed on or to continue the voyage * * * the ship may proceed * * * to or stop at any such port or place whatsoever as the master of the carrier may consider safe or advisable under the circumstances, and discharge the goods, or any part thereof, at any such port or place; * * * or the carrier or the master may discharge and forward the goods by any means at the risk and expense of the goods. The carrier or the master is not required to give notice of discharge of the goods or the forwarding thereof as herein provided. When the goods are discharged from the ship, as herein provided, they shall be at their own risk and expense; such discharge shall constitute complete delivery and performance under this contract and the carrier shall be free from any further responsibility. For any services rendered to the goods as herein provided the carrier shall be entitled to a reasonable extra compensation.'
On February 19, 1947 the Chappell, having reported to Takoradi in accordance with said charter, completed loading approximately 9,000 tons of manganese ore and sailed on that day bound for Mobile, Alabama. Prior to sailing the master of the Chappell issued a bill of lading for the cargo in accordance with the charter.
'Forepeak, Nos 1 & 2 Port, No 3 Port and starboard, Void tank Port, Nos 4 & 5 Port, and no 6 tanks were all flooded. Remaining tanks No 2 Starboard, Void tank Starboard, Nos 4 & 5 Starboard were dry.
'Bilges were practically dry and soundings show no increase in water in any part except No 1 Starboard which showed an increase of 4 inches in three days.
'After Peak tank is full of fresh water and not damaged. Several indents and holes in Forepeak and No 1 Tank. From after part No 1 tank to engine room tank, strake next to keel, plate was split and set up approximately Nine inches. From engine room tank to No 6 several small holes and indents. Abaft No 6 all clear. This was all on port side. Centre line division was damaged in No 3 tank flooding starboard side.
'Owing to the lack of facilities to discharge part cargo of 9000 tons Manganese Ore, or to effect repairs in Freetown, it is recommended that temporary Certificate of Seaworthiness be issued for vessel to proceed to Dakar for further examination and drydocking if necessary.'
On February 24, 1947 the Chappell proceeded to Dakar, Africa, where a drydock was located and where ultimate decision regarding necessary repairs and possible lightening of the ship by removal of some cargo could be made. It arrived at Dakar on February 26th.
The drydock at Dakar was then unavailable and would not be available until March 22d or the 25th. It was further understood that the ship would not be accepted into the drydock until it unloaded at least 4,000 tons of its cargo. Faced with the necessity of making a determination regarding the disposition of the cargo and repairs required to be made to the vessel extensive correspondence primarily in the form of cables were exchanged between the libelant, its agents, agents representing the ship, the cargo, the hull underwriters and the general average adjusters.
These parties were further confronted with insurance complications primarily arising out of the general average agreement. Efforts were made to discharge the cargo ashore but the storage facilities then available at Dakar were extremely limited and negotiations to store the cargo, pending completion of repairs, at a coaling company the then only considered available place, were unsuccessful.
Various proposals as to possible transshipment or partial transshipment of the Chappell cargo to the Hines and abandonment of the Chappell voyage were under contemplation by the libelant and its agents but due to general average complications no definitive abandonment of the Chappell voyage was effected.
After a considerable exchange of cables between agents of the various interests involved, a special meeting in London attended by representatives of the cargo underwriters and American and English hull underwriters, was held on March 21, 1947, at which there was proposed a special average agreement as a means of alleviating the problems arising as a result of the accident to the Chappell. With a slight modification, the final agreement thereon was reached on March 25, 1947. The terms and conditions of this special average agreement are embodied in three letters exchanged between Bennett & Co. and Salvage Association, two dated March 21, 1947 and one dated March 25, 1947, and may be summarized as follows:
'1. That the entire cargo of the Oscar Chappell be transshipped to the Walker D. Hines at Dakar and be carried to destination in that vessel ...