Brief for the US — Alcoa Steamship Co. v. United States

Supreme Court brief1949

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INDEX

e . . :

go Pag-

COONS DIE aa nn ese lon s igen cesancoesacce ns ie Nene ve

Jurisdiction. <<... .---- NT ites a ey re SET ae ees ®.. 1

Question presented. _-__---.- Si Ngee Rep neh ee posits Prcagby 5 se 2

Statute and contract provisions involved... ~~ ~~. iwannween 2

. yeaa sent RPS SESSA Shi Reece wee Boy Tapeh eh S:

Summary of argument-- SEA Va RS iy SR sickest abties Gaik tech we sie 4

Argument: . 3 ear irae

Introductory statement __-": ekg ae tr ee eas 7

E. The standard form of government bill of lading petioles

the payment of unearned freight to‘ocean carriers... - 13

A. The general maritime rule, that freight mustbe = © ~

0 ‘ earned by performance, controls the shipper’s

obligation to pay freight unless avoided by

_ express stipulation.:.. ....520-.....--25.. 17

B. The standard form bill of lading specifically

“ eonditioned petitioner's right to freight upon —-

delivery of the cargo to destination. __.__.- - 24

II... R. S. 3648 clearly prohibits the payment of unearned =

icc freight Sy Gas eee js See 8

Cn ee ee oe cant peg ne see: Panes ‘hose 44

Seeeeile Ao oe ee "ia a whee SERA 45

| CEFAEIONS

Cases: - \ ;

Allanwilde Trenepert Corp. v. Vacuum Oil Co., 248 U. 8. 377_ 20, 22

wis Allison v. Briston Marine Ins. Co., (1876), 1 App. Cas. 209. - 22.

Asfar & Co. ¥. Blundell {1896}, 1. Q. B. 123......... - 18

- Benner vy. Equitable Safety ins. Co., 6 Allen — ) 222... 20, 21

Brittan v..Barnaby, 21 How. 527. ..-..--.. --- Vue oe 18, 20; 24

Byrne v. Schallex (1871],°L. R., 6 Ex. 319. GkbS eo Sees eudee 22.

Cargo ex Argos (1873), L. R. 5 P. C. 134_....------.---- = 18

Gaze & Richdud v - Baltimore Ins. Co., 7-Cranch 358. —.. -- 18

: gent Gracie D., ™ 253 Fed. 182, Affirmed, 248U.8. -.

WE ici. kha ee abe eek a PORN cedawecenss 21

Christie v. Davis Coal eC oke Co., 95 Fed. 835. jweuss 20

, Cléndaniel v. Tuckerman, \7 Barb. (N. Y.) SR : 18

| Clifford v. Merritt-Chayman & Scott Corp., 57 F.2d 1021... 31

* Cuba, The, 6 Fed. Cas.(No. 3468... ....---.----------- a 6

Dakin v. Orley {1864}, 8 L. J., C. P. es

e Up

'862190-—49——-1

t | I

Cases—C ‘ontinued : : Paxe

x ‘De Sola vy. Pomares, 119 Fed. BE eke Cea hc eden 22

Emergency Fleet Corp. v.. Western Union, 275 UU. s. 415.... 38

Floyd Acceptances, The, 7 Wall.666...~..- edad eakae's 40

Gibson-v. Brown, 44 Fed. eo eS OSs ee ane 31

3 Griggs v. Austin, 3 Pick. (Mass.) 20.....:.--.-..--:---. °22

' HineseLumber Co,, Edward'v. Chamberlain, 118 Fed. 716.. 31

p International Paper Co. v. The Graeie D. Chambers, 248 . i.

Fema as BBE oes a eek wena kc Gea nan Sra he te Pe WB Ste 22

. Kimball, The, 3. Wall. 372. 22 32... ea eg me

London Transport Co. v. Trechmann Brothers {1904}, 1 kK. B.

“TRI Sa ARERR I SORE a AAPM NE 9 PESO a pee 20

McClure v. United goes 19 C, Cis SE) ) Fae Aage Rs eh ASS ter 19, 41

M. K. T. R. R. Co. v. United States, 62 C. Cls. 373, certi-

orari denied, “33 U. 8. 725. 4 _ 16,41

Motomar, The, ‘108 F. 2d 758 affirming 29 F. depp. 210.. pie 21

Nathaniel Hooper, The, 17 Feds Cas. 1185, 3 Sumn. 542... 18

Norton-C: rossing Co. v. Martin,.202 Ala. 569. oie os 20

- Poland ¥> The Spartan, 19 Fed. Cas. No. 11246. peGie vase o5 20

ma Portland Flouring Mills Co. v. British & phot gp Marine

‘Ins. Co., 130 Fed. 860, certiorari denied, 195 U.S. 629__ 20

. Price v. Sartshare: ee Ras Pe to eee aueas 31

x ~ Prince, Norman, The, 185 Fed. 169. SE tap se Pe eee aera - 90

“a Queensmore, The, 53 Fed. 1022 ieee ee

Richardson & Sons, James v. 158,200 Bushels of Wheag,

90 F.2d 607.. YS Siete cone ‘20 .

Richardson, Ann D., ‘The, 1 Fed. Ca as. Ne. “410. A NS eh “ 19

Sister, Rita, The, 69 F. Supp. 480 ELSI ADRES Or | |

Standard Varnish Works v. The Bris, 248 U.S. 392.20... 22

Toyo. Kisen Kaisha v. W. R. Grace & Co 53 F. 2d 740,

sertiovrari denied, 973 U. 8. 717... 2. -0n-cca.-c.s.. - 88

United States v. San Franciaco, 310 U.S. 16. eOASIUIRR Ero velt ie 41

United States éx rel. Skinner & Eddy Corp. v.: McCarl, 275

a ER Boake bac ds oh CEs cel enn oo eke eeed bab hai 38

Utah Power & L. Co v. U Inited States, 243 U. ie Wek sae ars 41

Weta Witch, The, 1 Black 408. 2 oss os sk cece sens. 31

Wilbur National Bank v. United States, 294 U. S. 120. .... ee

—_———-Yuma Water Ass'n. v. Schlecht, EE Ets BO cine sn nceh a l

Statutes: i: See

First War Powers Act, 55 Stat. MO kks watcichiwusueen ws 40

SL Moth vc Bc Ohne ean ccaokuawne was. 4,7, 18, 39, 40, 43

Shipping Act of 1 16, 46 U 8. C. 815, 816:

Sec. 17__. ei SE SNP eee Pee eT ag 8 uA

Tucker Act, now y 28 U. 8. Cc. 1346. SY eEA PET eterna eg ees Apcataeles es

ie Rey SS Beem ie Raat diac ates Ao ge wan ne as are a

Se eee II

Miscellaneous: d ;

Angell, Carriers (5th ed. 18%: : -- °

Us awe hkhs cadu ates eee air eee eee

$399, note a. ..--- a ad pian aime ns

3 Comp. Dec. aga gdwns pe aN wi le is ieehinne ieee 8 it

4 Comp. Dec. 544...-:---.-------.-+----- ae sel

24 Comp. Dec. 707. ..-------- eRe napa ait

é Ole Kee O08... -.. 25.2524 e~s Peps eek ga :

8 Comp. Gen. 608......-..-----------=--------*-

8 Comp..Gen. 703... -..-..-----~-+-----------+--->

10 Comp. Gen. 588...°....-- ie ee hie cata aed ace wone

21 Comp. Gen. 909... --...------------------- 12, 18-

Executive Order 9001, 3 C. F. R. Cum. ‘Supp. 1054_.

General Regulations No. 69 of the Comptroller General,

August 24, 1928, 8 Comp. Gen, 695.

General Regulations No, 75 of the Comptroller General,

June 26, 1931, 10 Comp. Gea. 581--.-.---

General Regulations No. 97 of the Comptroller General,

» April 13, 1943, 22 Comp. Gen, 1E2..--...- :

10 Op. A. Te a ees das a maleou ane Wises =

20 Op. A. G, 746... .-.-------.-----

Poor, Charter Parties and Oceus Bills wm} Loding, (3d od.

Robinson, Admiralty, 4 82 (19: 39) -

Serutton, Charter Parties, Art. 139 (5th ed. 1948).

Smith, Mercantile Law, p. 391 (3d ed. 1855) . ei

Treasury Department Circular No. 49, ute 19, 1915,

Digest of Comp. Dec. (1894-1920) p. 2489. .....-.---

Treasury Department Circular No. 62, October. 29, 1907,

14 Comp. Dec, 967. ....-----4----- 2-2 eee ee ee ee tee

19, 41

Ynthe Supreme Gourtof the Wnited States

OcroBeR TERM, 1949

No. 271

ALcoA STEAMSHIP COMPANY, INC., PETITIONER

Vv.

Unirep STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

: BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the United States District

Court for the Southern District of New York

(R. 30-37) is. reported at 80 F. Supp. 158. The

opinion of the United States Court of Appeals.

for the Second Circuit (R. 40-46) is reported at

175 F. 2d 661. |

JURISDICTION

The judgment of the Court of Appeals was

entered’on June 29, 1949 (R. 46). The petition

for a writ of. certiorari was filed on August 16,

1949, and was gre~fed on October 10, 1949

(R. 53). The jurisdiction of this Court rests _

upon 28 U.S. C. 1254 (4). 7

QUESTION PRESENTED

Whether an ocean carrier may compel the

United States to pay full freight to destination

on Government cargo, shipped under the stand-

ard form Government bill of lading, which was

° = -

lost and never’ delivered.

STATUTE AND CONTRACT PROVISIONS INVOLVED |

The statute prohibiting advance of ‘public

money, R. 8. 3648, provides in pertinent part

as follows: | :

No advance of public money shall be

made in any case whatever.. And in all

‘ases of contracts for the performance of

any service, or the delivery of articles of

any deseription; for the use of the United

States, payment shall not exceed the value

of the service rendered, or of the articles

delivered previously to . such payment.

* * *

The standard form Government bill of lading

(Form No. 1058, ‘approved August 24, 1928; 8

Comp. Gen. 698) (Ex. 11, R. 72A-72B), standard

form Government voucher (Form No. 1068, ap-

proved June 26, 1931; 10 Comp. Gen. 588) (Ex.

B, R. 74A-74B), ‘and petitioner’s commercial

form ocean bill of lading (Ex. 10, R. 69-71) are

printed in “pertinent part, infra, pp. ee) B,

‘STATEMENT -

This action was brought by petitioner Against

the United States for the recovery, under the

Tucker Act, now 28 U. 8..C. 1346, of $3,520.52

which the recip ate General had collected from

It by offs uction from other monies con-

cededly a petitioner. The facts giving rise to :

the claim of the United States tq collect $3,520.52 - |

from petitioner by deduction are undisputed. _

On or before June 13, 1942, the War Depart- ie

ment shipped a ‘Government cargo of lumber,

under the standard form Government bill of

lading, from Mobile, Alabama, to Port of Spain,

Trinidad, on petitioner’s S. 8. Gunvor (R. 25).

On June 14, 1942, with the Government cargo

aboard, the Gunvor was lost at sea by enemy

action before reaching! its destination (R. 29).

A claim for payment of freight on the lost Gov-

ernment cargo, in the amount of $3, 5H, 8 wns

subsequently presented by petitioner on the’.-pre-

scribed Government freight voucher (Ex. B, R..

74A-74B), and payment was made by the War

Department on or about September 15, 1942 -

(R. 29). Upon audit of the account, thé Comp-’.

troller, General took exception to the payment on

the ground that the freight had not been earned,

and on July 24, 1944, petitioner was advised that

a deduction would be made from an amount other-—

wise due unless the overpayment was refunded

within sixty days (R. 29; Ex. 8, R. 67-68). On

February, 2 2, 1946, refund not having been made

by petitioner »Sollect: on was effected by deduction

(R. 29). |

The District Court for the Southern District of

New York concluded from these facts that peti-

tioner, under the terms of the Government bill

of lading, had earned the freight and that the

sum of $3,520.52 was improperly deducted by

the Comptroller General (R. 30-37). On appeal,

. the Court of Appeals for the Second Cireuit (one

judge disse enting) rev versed, holding that-the stand-

ard form Government bill of lading ‘‘asserted the

privilege of any shipper unded the admiralty -

law that it should not pay for what it does not

: get t’’ (R. 42). 3

SUMMARY OF ARGUMENT (

.This case presents the question whether the

United States is liable for payment of ocean

freight upon, a shipment of Government cargo -

which was lost and never delivered. The primary.

roblem is one of construefing the standard form

sb est bill of lading together with peti-

ti iginer" s commercial form bill of lading, ‘in so far

- it is incorporated therein by reference, as an

‘entire contract of carriage. A further issue is

raised as to whether an agreement to pay freight

to destination on Government cargo not delivered

to destination is prohibited by R. S. 3648.

It is well settled as a matter of general mari-

time law that, absent express agreement to the

contrary, a carrier does not earn and: may not

claim payment of freight until it has delivered

the cargo to destination. Petitioner's essential

contention is that Article 6 of its commercial form

bill of lading, which provides that f reight shall be

due whether or not the cargo is delivered, must

be given full effect unless precisely contravened

by some specific provision designed to meet and

offset it, in the standard form Government bill

of lading. As the basis for this approach to the’

construction of the contract of carriage, petitioner

implies that Article 6 of its bill, of Jadiig

been uniformly embodied in the usual form com-

mercial bill of lading and has been raised to the

status of a general maritime rule. We submit

that, in fact, petitioner’ s assertions as to general

maritime law are supported neither by judicial

precedent nor, in so far as the issue here con-

cerned is concerned, by commercial practice. A

shipper may, as noted by. the court below, insist

upon full performance ofethe transportation serv-

ice as. the condition upon which freight will be

paid.

Analysis of the standard form Government bill

of lading reveals, as the court low held, a

“carefully devised. plan’’ whereby payment of

2190-492 . |

freight is conditioned upon delivery of the cargo

to destination. The obligation to pay freight and

the transportation service which must be per-

formed in order to give rise to that obligation—a

matter as to which*the Government’s require-

ment for uni formity is obvious—is completely |

covered within the four corners of the standard

form Government bill of lading. * Lack of uni-

formity among earriers with respect to the erea-

‘tion of an absolute obligation to pay. freight, in

itself, makes it plain that the Government could |

not have intended indise ‘riminately to incorporate

by reference into its standard form whatever

provision the particular carrier might employ.

The clear meaning of the provisions contained in

the standard form Government bill of lading and -

the obvious fiseal poliey which supports that plain

meaning is backed by more than a, century of

consistent administrative interpretation and

practice. y. i

: II

That the construction herein rial by the

Government of the standard form Government

bill of lading is correet is evidenced by the pro-

visions of R. S. 3648 which, in itself, prohibits

the type of contract which petitioner asserts was

here executed. That -statute provides that

“* * * in all eases of contracts for the per-

formance of any service, * * * for the use

of the United States, payment shall not exceed

the value of .the service rendered * * *,”’

Petitioner insists, by virtue of Article 6 of its

commercial form bill of lading, that ‘‘value,’’

sufficient to support the absolute obligation to

_ pay full freight to destination, has been rendered

upon receipt of the cargo at point of shipment.

However, this Court and lower federal courts, have

upheld such clauses, not on thé theory that. freight

is earned upon receipt of the cargo for shipment

but because the shipper has bargained away its

right to insist upon complete performance of the

contract of carriage. Thus, although there may

be consideration which constitutes ‘value’ suf-

ficient, as 4 matter ofeeontract law, to Susser gae

a stipulation between commercial shippers and

carriers, such consideration is clearly not the

‘‘value of the service rendered”? to the Govern-

ment which is contemplated by R. S. 3648.

ARGUMENT

INTRODUCTORY STATEMENT

Thé question presented in this case is whether |

the United States becomes obligated, under the

standard form Government bill of lading, for

- the payment of ocean freight upon a shipment of

Government cargo as soon as the cargo is re-

ceived at the port of origin by the carrier. The

Government’s position is that freight on Govern-

ment cargo must be earned by delivery to: desti-

nation and that the United States does not and

cannot lawfully obligate itself to pay freight

for a transportation service not performed. ‘Pe-

titioner, on its°own behalf and as representative

of other ocean carriers (Pet. 12), insists that

the Government’s obligatio to pay freight arises

at the port of origin and is absolute without.

regard to subsequent performance of the contract

of carriage by delivery of the cargo to destination.

Petitioner charges theAtovernment with this ab-

solute ‘obligation on the basis of the unearned

_ freight clause in. its commercial form bill of

lading. The position of the respondent is that

the provision thus: invoked is patently incon-

_ sistent with the provisions of the standard form

Government bill of lading, unquestionably the

controlling document. herein, and is necessarily

excluded from -the contract of carriage there-

under. , 3 ‘

The primary problem, then; is one of docu-

mentary construction.’ To reach the result for

i, The petition fax certiorari brought forward.a content ion

_ that the judgment: below was in conflict with the require-

ments placed upon carrier-shipper relationships by Sections

16 and 17 of the Shipping Act of 1916, 46 U.S. C. 815, 816.

This point is not discussed in petitioner’s brief on the merits,

and we assume that it has been abandoned. The contention

was, in any event, entirely without substance. That the Gov-

ernment. is fully empowered to avail itself of privileges

which may not be open to other shippers is evidenced by the

compulsory use of the standard form Government bill of

lading. The Maritime Commission, cWiarged with the power

and duty of exercising the regulatory authority under the

Shipping Act, has never considered that the provisions of

that statute are restrictive of relationships between carriers

which it conteds, petitioner relies heavily upon 7

assertions aX to general commercial practice.

Petitioner states that freight earned ‘‘lost or not

lost’ provisions, identical with the provision upon

which its case rests, are now: in general use in

commercial bills of lading (Pet. 13-14), assert-

ing that there isa ‘** * * well settled commer-

cial 5 spies that freiglit~is earned on shipment

*; BoB GP et. Br, 22): and at hig: 1% %*

* * *

well established or general practice

was incorpotated into the terms of the carrier’s

bill of lading * *’? (Pet. Br. 23).

In addition to silane on this asserted uniform

commercial practice, petitioner, and carriers sup-

porting it by briefs amicus curiae, also state that

a consistent. Government administrative: practice

of long’ standing supports their position. | Peti:

tioner urged, in the court below, that rulings of

the Comptroller General fully sustained its views *

and that such rulings were entitled to substan- .

tial weight in interpretation of the contract in-

~ volved (R. 48). The petition for certiorari and

petitioner’s brief both refer to rulings and letters

of the Comptroller General, and his predecessors,

and the Government as shipper. Finally, the terms and

conditions involved in transportation of Government cargo

_do not fall within the area intended to be covered by the -

' Shipping Act of 1916, namely, the control and regulation of

practices between cominercial shipped and carriers in the

field of competition. It should also be noted that ‘the Ship-

ping Act of 1916 does not impose rate regulation on m carriers.

in foreign commerce such as petitioner. pias .

Je 3%

as ewdencing a governmental recognition of an

obligation to pay tnearned. freight upon receipt.

of Government eargo for shi ipment “at port of

origin (Pet. 21; Pet. Br. 16-19): Support of

- the carriers’ position herein in a uniform Gov-

ernment practice is more boldly claimed in the

briefs amicus filed in support of the petition for

sal gag res Waterman Steamship Company

‘states that for “* * *. many years the Gov-

ernme

such as

has considered that under documents

bere involved it was liable for freight

even though the carries was unable to deliver

the cargo * * -*’' and that “* * * never

before has the Government contended that it was

on any different. footing with respect to liability

for freight>than any private shipper * * *,”

(Waterman Steamship Corporation, ir in sup-

port of petition-as amicus curiae, 5.) The Stock-

ard Steamship Corporation categorically asserts

_ that the obligation to pay freight upon receipt of

the goods by the carrier for shipment accords with —

the ‘long settled. interpretation by the govern-

ment of the applicable provisions of the bill of

‘ene = oe and that the Government’s

-eontention herein is a “sudden and belated re-

versal of position, by the government * * *”

(Stockard Steamship Corporation Br. in support

of petition as amicus curiae, 4,5). Drawing on

these eieerins as to uniform commercial prac-

tice and past governmental policy, it is made to

appear that petitiqner and other ocean carriers,

acting in good faith during the war, found.them- .

selves ‘without protection as to the risk of loss

of freight mpnies:as.a sult of a sudden change

in policy by the Government ( Pet. 18-19; Pet.

Br. 23; Stockard Br. amifus, 4). ae

No part of the pictyire thus created can sur- |

vive close serutiny., First, as we shall show in® C

detail, there is no uniform commercial practice ~

' which would lead to the result: for which peti-

tioner here contends. The general maritime rule,

Qthat freight must be earned by delivery, remains

intact and can only be avoideg~by the use of |

specific stipulations, wesigned by ocean carriers

for that purpose. : Many carriers use stipulations

comparable to the provision upon which petitioner

relies, making freight absolutely payable whether

the payment is prepaid or collect at destination

and whether or not any part of the transportation ~

service has been performed. But an equally re-—

spectable number of carriers’ bills of lading

provide only for the retention of prepaid ea

whether vessel or goods be “‘lost or not: lost,’’

‘provision which obviously could not qualify a

carrier as plaintiff in this suit” —

Nor is there justification for the carriers’ claim

that they were surprised and left without protec-

tion by a sudden change in a previously consistent

administrative practice. The accusation of un-

3 * Prepayment of freight is prohibited by the provisions

of the standard form Government bill of lading and by

R. S. 3648.

fairness leveled at the Government is based on an

alleged reliance, apparently reached independ-

ently by all water carriers of Government cargo,

on two isolated decisions, one in, 1918 and the

. other in 1942, by the Government’s accounting

officers which fall far short of putting at rest

the question here in issue.’ No basis for the

alleged reliance exists. For over a’ hundred

yéars, the consistent administrative practice has

been in full accord with the Government’s posi-

tion in thig ease. This Court may well notice that .

the each of Government property has ‘been a

distinct and well understood category of trans

portation since the beginning of the ‘Republic;

and that the terms and conditions which control

such carriage, and the presentation and settlement

of claims thereunder, form a familiar and continu-

‘ous item in the business of every carrier. In

fact, the absence of the asserted reliance i is. shown

by the fact, noted by Judge Learned Hand in

the court below. (R. 41), that the petitioner

made specific inquiry of the Comptroller General —

* The decision of the Comptroller General of the Treasury

upon which petitioner mainly relies, 24 Comp. Dec. 707, was

issued in 1918. Even if this decision supported petitioner's

position herein, it can hardly be viewed as controlling on the

point here involved in the ligat of other decisions of the

Comptroller General. Cf. Appendix B, separately printed.

er The second decision relied upon to illustrate a continuous ad-

ministrative practice which misled petitioner is that found in

21 Comp. Gen. 909, an opinion rendered on April 7, 1942.

It can hardly, ‘be assumed that this opinion was available to

petitioner as a basis for action in connection with the ship-

* eC cg £>

13 OSes nae oa

on the. point in issue, more tha a. year before

the loss here involved occurred... The € omp-

troller’s reply. clearly ‘put petitioner on notice

that no such reliance as that here asserted was ,

warranted. See Appendix B, p. 136.\

We submit that a construction of the pertine nt

language of the documents involved in this case,

even without reference to the background of.

the phrasing employed, clearly shows that freight

to destination is not earned by a carrier until the —

contract efrarriage is performed by delivery of

the shipment to destination. Reading the: docu-

-ments in the light of their background, there can

be no doubt that the result reached by the court

below Was correct. Finally, we submit ‘that the

result below must be deemed compelled by the

provisions of R: S. 3648.

THE STANDWRD’FORM-GOVERNMENT BILL OF LADING

* _PRECLUDES THE PAYMENT OF UNEARNED FREIGHT |

TO OCEAN CARRIERS ;

The issue of construction presented by this

‘ase centers on the readirig of the standard

form Government bill of lading together with

peitioner’s commercial bill of lading, in so far as.

it is incorporated therein by reference, as an

ment in this case. In point of fact, neither decision sup-

ports the position of the petitioners. See infra, pp. A=,

Bee, 27> 34, | .

* Appendix B hereto is printed under separate cover.

862199—49-—-8

° 4

“4

entire contract of carriage. Concededly, peti-

tioner’s: comniercial form bill of lading contains

a provision wWhich:purports to entitle it to re tain

or recover freight, whether prepaid or eolleet at.

destination, although the transportation service

is not performed. Essentially, petitioner’s posi-.

tion is that this clause must be given full effect

* Sunless precisely contravened by some specific

provision, designed to meet. and. offset it, in the

~ Stand: ird form Government hill of lading. As the:

bavisefor this approach to the construction of the

contract of carri: ge, petitioner asserts that there

hat 44 well establishedor~general prac-

tice” that. freighf be deemed earned on shipment,

veSsel or goods Jost or not lost, which has been

uniformly embodied in the usual form corimer-

cial Dill of Jading (Pet. Br. 23). And see’ also

~ Briefs as. amicus curiae, Waterman Steariship

Corporation, pp. “4,3 »; Stockard Steamship Corpo-

ration, pp. 2, 3, 4,5. In effect, petitioner seeks

to raise the stipulation contained in its com-

mercial form bill of lading to the dignity of a

‘Segal rule’”. (Pet. Br. 19) and thus to throw on.

seu nment the burden of showing an express.

rerting’ this “legal rule.’ We

stint that the Approach stigiested. by petitionér

‘is Incorrect aud without basis i in general maritime

a Sa one ee |

ATnquestionably, the standard form Govern-

iit bill of lading is the controlling. document

/ herein, All shipments 6f Government property

‘156

are required to be made subject to the provisions

of the standard form -bill which defines and

limits the obligations of the Government under

the contract-of carriage.’ For obvious consider-

5 By Gener “al Regul: ations preseribed and published by the

( ‘omptroller General, and his predecessors, all shipments of

Giovernment property are made subject to the provisions of

a set of standard forms. In part, this set’ comprises a bill

of lading, memoranduna bill of lading, shipping order, and

voucher. See Treasury Department Circular No, 62, October

29, 1907, 14 Comp. Dec. 967; Treasury Department Cireuiar

No..49, June 19, 1915, Digest of Comp. Dee. (1894-1920), p.°

2480; General Regulations No. 69 of the Comptroller Gen-

eral, August 24, 1928, 8 Comp. Gen..695 ; General Regulations

No. 75 of the Comptroller General, June 26, 1933, 10 Comp. .

Gen. 581; General Regulations No. #7 of the Comptroller -

General, April 13, 1943, 22 C omp. Gen. 1172. The bill of

lading set consists of the eriginal bill of Jading, ¢ ontaining

the description of the articles comprising the shipment, evi-

dence of delivery, and the ferms and conditions of the con-

tract of transportation, together with the memor andum copy

or copies, to be retained for administrative purposes, and the

_ shipping order, to be retained bythe carrier. When the bill

of lading forms have beer completed by the consignor, the

property listed therein consigned to the carrier for shipment,

and the of riginal bill receipted by the agent of the carrier,

the consignor then transmits the original bill to the consignee,

. 80 that it may be in Kis petoneston uyon arrival of the prop-

erty and be promptly receipted and surrendered by him to

the last carrier. When the shipping-order_has been other: other- _

‘wise completed, it is signed by the Consignor‘and delivered to

the initial carrier at the time the shipment i is made and the bill

of lading receipted by the initial carrier’s agent. As pro-

vided in Condition 1 of the bill of lading, payment for trans- -

portation is made to the carrier upon the standard form

voucher, accompanied by the bill of lading properly accom-

plished. If the bill of lacing has been lost orslestroyed, pay-

ment is made upon submission o/ a standard form ¢ ‘ertificate

in lieu of lost bill of lading. © i aa

“16

ations of cofivenience, however, provision is made

for the incorporation, by reference into the Govy-

ronment form of such proVisions of carriers’

forms as are not inconsistent with thé. provisions

of the Government form.” Cf. WM. A. T7R. RL

Co. v. United States, 62 C. Cls. 373, certiorari

denied, 273.U. 8. 725. Carriers’ bills retleet 3

incorporate many details ee on the needs of

particular trades and voyages. The incorpora-

tion of these many and varied factors, embodied

in clauses Which reflect the physical operating

experience of éarriers, provides the Government

with a ready method of rounding ‘out the details

of its contract of carriage. . In addition, elauses

protecting the carrier egainst cargo liability for

—merine peril, the restraint of princes, ete., are

brought into the contract.

In sharp contrast to the incorporation of such

features i is the carrier’s eonteftion in this cise a

‘to the controlling natuvé of its commercial lois

clause. First, the one thing specifically, covered

within the four corners of the Government

standard form bill is the subject of payment. and

the’ conditions on which payment will be made.

Th Se provisions donot relate merely to methods

‘time of payment. Examined Apecifisally, the -

‘Condition 2 states: “Unless otherwise specifically pro-

vided or otherwise stated hereon, this bill of lading is subject

to the same rules and, conditions as govern commercial ship-

ments on the usual forms prov ided therefor by the carrier”

(R. 72B).

Government standard form bill. makes it per-

fectly plain that payment is completely condi- .

tioned on . of performance. Any provision

in a earrier’s conanercial form bill of lading

which would vary the basie consideration on

which payment will be made by the Government

is necessarily inconsistent with the standard

form bill, the ‘basic document in‘ the contract of

carriage. (See Point Is BB, infra, pp. 24-°9B)

‘Secondly, petitioner’s allegations concerning

- general maritime Jaw and the incidence in com-

mercial bills of lading of the freight clause em-

ployed in petitioner's bill are completely errone-

ous and misleading and afford ‘no basis for

construing, thy Zontract of carriage as including

petitioner's freight clause. Since petitioner’s

ease is bottomed upon these erroneous allegations

as to general maritime law and usage, it is neces-

- sary, prior to a detailed examination of the con-.

tract, to state correctly the general maritime law

which- would . be applicable in the absence of

express agreement between the parties,

A. THE axinnst. MA ARITIME RU LE, THAT FREIGHT MUST BE

EARNED BY FORMANCE, CONTROLS THE SHIPPER’ S OBLIGA~

a ' TiON TO PAY FREIGHT UNLESS AVOIDED BY EXPRESS STIPULATION

In both England ‘and this country, it has long.

been well Se ttled that, absent agreement to the con-

trary, the carrier does not earn and may not -

claim payment of freight until it has delivered the

* goods to destination.’ Brittan ‘y. Barnaby, 21

How. 527, 533;.Caze & Richaud vy. Baltimore Ins.

Co., 7 Cranch 358: The Cuba, 6 Fed. Cas. No. 3458

(D. Me.) ; Dakin v. Oxley [1864], 33 L. J., C. P.

115, 119; Asfar d& Co. v, Blundell [1896], 1 Q. B.

193: Angell, Carriers, § 399 (Sth ed. 1877) ; Serut-

ton, Charter Partics, Art. 139 (15th ed. 1948) ;

Robinson, Admiralty, § 82 (1939). ‘*N or,’’ as the

, court below obsetves, “is this result unjust to, or -

Of course, the = has always been that freight is earned |

if the carrier is ready to deliver but the consignee is unable

Or unwilling to receive. In The Nathaniel Hooper, 17 Fed.

Cas. 1185, 1190 (C. C. D. Mass.), 3 Sumn. 52, 555, the

Court said: “The whole ‘of the cases, .in Which the full

freight is upon the ordinary princrples of commercial law

due, notwithstanding the non-arvival of the goods at the

port of destination, may be reduced to the single-statement,

that the non-arriyal has been occasioned by no default or

inability of the carrier ship, but has been occasioned by the}

default. or waiver of the merchant- -shipper:” See Clen-

niel v. Tuckerman, 17 Barb. (N. Y.) 184, where carrier

was ready to déliver cargo but consignee was not ready to

receive it and. while waiting to discharge ‘cargo the vessel

was capsized by a freshet'and the cargo lost. . Held, freight

earned, ‘See Cargo ex Argos (1873], L. R. 5 P.C. 134; Poor,

Charter Parties and Oce an Bills vf Lading, § 108 (3d ed.

1948). ; |

The Comptroller General’ s decision of 1942, 21 Comp. Gen.

909, upon which the petitioner relies (Pet. Br. 17), is con-

sistent with this principle, but it is certainly no authority for

_*the proposition that the Gove ment, asa shipper, i is liable

' for freight on cargo which‘he carrier was never ready to

deliver. The narrow deeision in that opinion was that sub-

stitute evidence could be furnished by a ca rier to show that

“the contract of carriage had been completed to port of desti-_

eo ‘

| sy

- “Cls-473-31867,-—

i9 ®&

hard upon, the petitioner [carrier]. The law

throws upon all carriers the risk of performance,

> for performance is a condition upon the shipper’s

promise to pay,-just:as performance is always ¢

condition upon payment in any contract of serv-

ice.”’ (Rs 42.) In The Ann D. Richardson, 1

Fed. Cas. No. 410 (S. D. N. Y.), the court stated

the basis for the general rule (p. 953): ‘The

delivery of the cargo at the port: of destination:

is considered a condition precedent to the right

2 ~ 8 ° ' »

oa * ee?

to freight * -” See The Norman Prince,

nation but that conditions at that point prevented the carrier

froin obtaining the necessary receipts upon delivery. In so

far as the issue here is concerned, we submit that the’'Comp-

troller General's decision of 1942 fully supports the Govern-

ment’s position, That decision expressly adhered to the gen-

eral rule that “delivery of the cargo at the port of destination

is.a condition jrecedent to the rightto freight” (p. 912), but

held (p.-913) that “the difficulty here is not that these par-

tictilar shipments were not transported to destinatidn but

rather that due to conditions of war prevailing in the Philip-

pine Islands and Guam, it is not possible to establish of record

that said shipments were received by the consignee from the’

carrier at destination. In view of the known conditions in

said islands, as commonly reported in public dispatches, any

failure to transfer the goods t0, or to take recéipt from, the

_ consignee upon the discharge of cargo at destipation at any

time since the early part.of December 1941, reasonabl y may be

assumed to be due to the inability of the consignee to receive

_ rather than'to any failure of the carrier to deliver, and so

wonld:- not defeat the right of the carrier to freight charges.”

The decision thus contemplates merely excusing the carrier

from obtaining, the certificate and not: from’ carrying the

roods to destination. Cfe McClure v. United States, 19 C.

£ is .

-°.

o+%

o°

_ strictly speaking, can only be payment

“aes “ed. 169,171 (S. D. Ala. 7} This general

“rule of the law merchant may be varied by ex-

press agreeinent, suffici ently elear as to leave no

doubt with regard.to the intention of the parties

‘in framing the contract of affreight ient.-. Brit-

tan Vv. Barnaby, 21 How. at 536; Christie v. Davis

| ‘Coal d Coke. Co., 95 Fed. 835, 839 (8. D. N. Y.);

The Norman Prince, supra; London Transport

Co. v. Trechmann Brothers [1904], 1 K. B. 635;

Angell, Carriers, § 399, note (a); Benner v.

Equitable Safety Tis. Co., 6 Allen (Mass.) 222,

224; Norton-Crossing Co. v. Martin, 202 Ala. 569,

- 81 So, 71. Where such an express agreement is

made, it does not work any change in the-basie

concept as to the earning of freight. etc

‘or the

conveyance of cargo to destination, Poland Vv.

The Spartan, 19 Fed. Cas. No. 11246: (D.. Me.) 3 _

see Brittany. Barnaby, 21 How. -527, 533;

Smith, Mercantile Lau, p. 391 (8d ed. 1855) ;

Angell, Carriers, § 399) (Sth ed. 1877). Car- .

riers’ stipulations in avoidance of the gen-

eeral rule are enforeed only ‘as’ bargains be-

tween the parties and without relation to per-

formance of the Wiggin service. Port-

land Flouring Mills Co, . British & Fereign

Marine Ins. Co., 130 Fed. ne 864 (C. A. 9), cer-

-tiorari denied, 195 WU. S.-629; The QYucensmore,

53 Fed, 1022 (C. A. A; Jame 8 Richaydson d Sons

21 a /

vy. 158,200 Busheis of Wheat, 90 F.2d 607 —

(C. A..2)!- | |

The current vitality of this basic ele is dem- ©

_ onstrated by a_recent. decision of the Court_of —

Appeals for the Second Cireuit which’ held that,

in the absence of an express stipulation, a carrier

eould lay no'claim to freight when it had not

performed the contract of carriage. The Moto-

‘mar, 108 F. 2d 755 ee A. 2), affirming 29 F.

_ Supp. 210 (S. D. N. Y.). Thus, contrary to

petitioner’s. cee i the widespread use ~of

~ such stipulations has effeet ed no change in. the —

underlying law. :

In point of fact. carriers’ stipulations concern-

ing the obligation to pax, freight when cargo is

not delivered do not display the uniformity which

petitioner—assumes. Such stipulations may be~

®JIn The Gracie re hambers, 2 253 Fed. 182, 184 (C. A. 2),

. the court said:

The District J udge thssiglit that if the ship had broken

" ground—e. g.. if she had sailed a mile—the prepaid

freight [with a “ship lost or not lost” provision] might

be retained. Clearly if could not be retained for that

son, because under our law it is not earned until de-

livery of thecargo. Only the clause in the bili of lading

_ . could authorize the retention. : 5

This was specifically affirmed by this Court acs U. S. 387,“

‘392. It and Allanwilde Transport Curp.v.Vacwum O11 Co,

248 U-S. Sa7, stand for the proposition that agreements-as to é

- retention of freight contrary to the general ‘rule will be

_ enforced, even though in actuality the freight has not been

earned. See Benner v- Equitable Safety Ins. Co_6& Aven

(Mass, ) 222, 224.

86219049

divided into two main type{ The first type, and:

by far the older, guarantees to an ocean carrier

the right to retain “prepaid freight, vessel or

_goods Jost or not lost.’ it is this: typeof n-_

earned freight stipulation which has received the.

greatest amount of judicial scrutiny, See, C. Oss

‘Allanwilde Transport’ Corp. -v. Vacuum Oil

(0. 248°U. S. 377; International Paper Co. Vv.

The Gracie D, Chambers, 248 U.S. 387; Standard

Varnish Works v. The Bris, 248 U..S. 392." 7 he

second type, comparable to that of the peti-

_— bill of lading, gives to the carrier an

absolute, right to freight at some point at the out-

set of the venture, whether freight be prepaid or

* Historically, the length and difficulty of voyages, the lack

of a carrier’s agent at port of destination, and other com-

parable factors, gave rise toa practice »mong carriers of bar-

gaining with shippers for prepaid freight. By English law,

such prepaid freight could not be reqvered by the shipper —

where the ship. through no fault on sown part. had been

prevented from completing the voyage (Burne v. Schiller,

fisv)] L. R.6 Ex. 319; Alison v. Beiston Marine Ins. Co.,

[iste , Pf App. Cas. 209)> a rule appa sntly intended as an

inducement to shipowners to undertake the perilous run to

India. See Robinson, Admiralty, § 82 ( 1939). The Amer-

iean rule is squarely to the contrary. repaid freight, in the

absence of special agreement, is required to be reftinded to

the shipper if the goods were not carried and deliveved.

The Nimball, ¥ Wall. 30, 44; Griggs v. Austin, 3 Pick.

- {Mass.) 20x De Sola v. Pomares, 119 Fed. 373 (S. DN.Y.) 2

’ Poor, Charter Purties and Ocean Bil}: of Lading, § 109 (3d

ed. 1948), : 7 e

bythe Court of Appeals for the Second Circuit related only

to the esrrier’s right to retain or recover prepaid freight,

collect at destination: Petitioner insists, without |

| mention: of the above described variations, that

the clause contained in its bill of lading repre- :

sents a—long.-established_and_ uniform _ practice °

3 among ocean ‘carriers. Such has not been and 1S

not the ease. An examination of certified bills

of lading on file with the Division of Regula-—

tion, United” States Slaritime Conimnission, re-

-veals that a large number of ecean carriers still

limit their unearned ‘freight clause to the pre-

paid freight situation; and that a number of the

carriers” bills of lading, whieh are now like the

-petitioner’s, wéve*amended. in. 1936 and later to

remove the limitation.” In view of the’ obvious

need for uniformity in determining the nature

of the -basie service .(i. ¢., whether delivery of

eargo at destination or mere acceptance of cargo

at port of origin) for which the Government's

standard fotm bill of lading is intended to» obli-

gate the Goverment to pay, this variation in

commercial practice sefrously weakens the peti-

tiener’s contention that the Government's stand-

ard form is intended to incorporate by reference -

——_———— 45

i See Appendix A, infra, pp.a@eeT. . The certified bills of

lading examined include those contemporary with that used

sy petitioner, Significantly, a member of petitioner's own

[Aupings conference of three carriers (Leeward & Windward

£ Jands Conference), the Bermuda & West Indies Steamship

Lid. (R. 60), employed, at the time in question, only

she prepid freight ctanse —Phe Betiniede- Welt fadies

, Steamship Co. is listed in Appendix A as Furness West In-

dies Beh © :

“

“ s

the carrier’s unearned freight clayse, whatever

it may be.” And zee infra, pp. 3

®. THE STANDARD FORM BIBL OF LADING SPECIFICALLY CONDI-

TIONED ‘PETITIONER'S RIGHT TO FREIG HT UPON DELIVERY OF

| THE CARGO TO DESTINATION — eter

* 1. From the foregoing . paragraphs, it is

apparent that the Government cannot be liable

for freight in the instant situation unless it has

expressly so stipulated. But no such stipula-

tion can be read into the Government’s standard

form bill of lading, which embodies the agree-

* Moreover, even if the petitioner's assertions as to uni= .

form practic e among ocean carriers were more accurate than

_ they are, and if this “uniform practice” oéuld be supposed

to have changed the established rule of admiralty, it would

still.be necessary to point out that generalizations based on’

* commercial pracfice_are-not-always helpful where the con-

’ struction of government forms is concerned. The situation

of the Government differs in a number of significant respects

from that of private commercial shippefs. Thus. as Judge

Learned, Hand pointed out in the court below (R. 43), a

probable reason for the,prevalence of the clause which re-

vers® the rule of admiralty and throws the risk upon the

, shipper is simply the carrier's superior bargaining position.

But, vix a-vis the Government, the carriers could normally

exercise no stich cofapulsion, for the bargaining position of 7

the Government is obvieusly much stronger than that of any

private shipper. Axain, Jadge Hand pointed out, the com-

mercial shippers may accept the carriers’ Sick because, in

their case, the burden is distributed by insurance; but the

United States must be a self-insurer in the absence of express

‘ statutory authority, In-short, the considerations upoy which

: the petitioner predicates its implication that the’rule of

——— Brittan v. Barnaby, 21 How, 527, supra, is no longer law,

have but little application-to situations in which the Gov-

ernment is the shipper.

ment between the parties. That the Government

bill of lading, on the contrary, constitutes a

“carefully devised plan”’ whereby payment of

freight is conditioned on performance of the

contract of earriage and the submission of proof

of such performance as pointed out by. the court *

below. (R. 42) is clearly established by the ‘steps

which it requires the carrier to take in order to

obtain payment. Condition 1 of the Government

~~ standard form provides (R. 72B): | wa

7 no case

_ Prepayment of charges shall i

-be demanded’ by carrier, nor shall collee-

tion be made from consignee. On pres- .

ntation to the office indicated on the face

~ hereof of this bill of lading, properly

accomplished, attached_to freigit voucher

_ prepared on’ the authorized Government

Wa payment will be made to. the

ast carrier unless otherwise specifically _

stipulated. :

2 a>

Thus, payment is made by the Government, not

through its agents. or empjoyees acting as

shippers or consignees, but only through the _

usual channels by which all payments for serv-

ices to the. Government are made, designated

disbursing officers. Payment by such officers is

conditioned on the presentation of a bill of lad-_

ing, ‘‘properly : accomplished, ’? together with a

freight voucher on the authorized form.” U ntil

*® Since nepunnat of Government freight i is conditioned on

the presentation of a’ properly -executed standard form

freight voucher as well as an oe aes bil-of lading,

po > -. F

y, ~ oe

y % A

cS)

such presentation, no obligation to pay can arise.

This condition precedent is evidenced by the

rama A antegrated provisions of both standard

forrns.* ,

__Tustruction 2S of the Goverpment_ standard _

fori bill of inding (R. 72B) provides that—

yi The consignee on reveipt of

the. Sa will sign the consignee’s

certifies tte on the original bill of lading

there goes nierit to petitioner's suggestion that the

_ terms on Wh‘ ch the Government agrees to pay freight should

be decided without referegge ‘to the freight voucher (Pet.

Br. 25). Thic Court mighPWell take notice that such freight

vouchers are fully as familiar to’carriers as is the standard

form Government bill of lading and that carriers contract

with reference to the execution of all documents necessary

to receive payment for the performance Of transportation

service, particularly since they are specifically notified at the

Outset, by Condition 1, of the standard form bill of lading,

that the freight voucher forms a necessary ingredient in the

proof upon which payment will be based. *

'* In its brief amicus curiae (p. 7), the Waterman Steam-

ship Corporation asserts that the only pertinent clauses of”

the standard form bill . e those labeled “Conditions” and

that clauses labeled “Instructions” and “Administrative Di-

rections” form no part of the contract of carriage. Water-. .

man thereby overlook« Condition 2 of the standard form

which incerporates into the contract the provisions of the

carrier’s usual bill “unless otherwise specifically provided or-

otherwise stated | hereo...” The plain import of that¢ondi-

tion is to make all the. language contained on the reverse of

the standard form a part of the contraet of ca rriage. Unless

it be thought that Condition 2 is redundant in employing the

phraseology “otherwise provided or otherwise stated,” it is

clear that referencé is had by “otherwise provided” to the

Monditions and by “otherwisé stated” to the Instructions

and Administrative Directions. ye

ares 27

and surrender the bill of leding to the last

earrier. The bill of lading. then becomes

_the evidence upon which settlement for

the service will be made. * * *

The certification required of the. consignee for

the ‘‘proper aceothplishment”’ of the Dill of lad-

ing is entitled ‘Certificate of Delivery’ (R.

72A) and certifies that—

I have this day received from (ame of

transportation company) at (actual point —

of delivery by carrier) the public prop-—

erty deseribed-in this bill of lading, in

apparent good order and condition, except

as noted on the reverse hereof.

In aceordanee with Condition 1, the “properly

accomplished”’ bill of lading, when presented for

payment, must be aceompanied by the. preseribed

standard fornr~ Government freight veucher.

This voucher provides (R. 74B): : |

6. Payment for transportation charge

-will be-made only for the- quantity of

stores delivered at destination * * *.

These instructions demonstrate that there is no

ambiguity as to what is meant by “properly ‘ac-

-eomplished”’; *° the consignee is not authorized to

—

* Petitioner’s reference (Pet. Br. 13-14) to the meaning

of the word “accomplished,” in connection with bills of lad-

ing in common maritime usage, is without relevance here.

The problem here is whether the standard form bill of lading

has been “properly” accomplished. “Proper” accomplish-

ment can only result from satisfaction of the various steps

and conditions required in the standard form documents set

out above. -

endorse and warviolioe ‘the bill af lading —

révelving the goods. Only a bill so teceipted *

is a “‘properly. accomplished ” * bill of lading, the

only kind on whith the paying officer may pay.

freight—and then “only for’ the quantity of

stores delivered at - destination.” We submit

that it4a- completely clear, fromy the procedure

specifies lly set out in the standard form Govern-

ment bill of lading and freight voucher, that the

Government, undertakes to pay freight only for -

comple ted. t ‘anspor tation ‘service and that? the

se Government standard ‘contract for such service _

specifically so provides. | Sy ares

. Bearing out and. Strengthening this interpreta-

tion are the provisions of Instructions 4 and 5

of the’ standard. form bill, telating to lost or

destroyed bills of. lading. Insti ruction 4 - 738)

‘states that—> :

oe ae case the bill of lading has

been lost. or destroyed, the carrier shall be °

furnished by the consignee with a *Certi-

ficate in heu of Jost bill of lading,’’ on

the standard fofm prescribed therefor

[Standard Form No. 1061, August 24,

1928, 8 Comp. Gen. 703] which, when

finally consummated by acknowledgment

% Herein ~ the consignee’ s Certificate of: Delivery was

merely endorsed “S, S. GUNVOR has been lost due to enemy’ -

action” “For the Acting District Engineer eevee illegi-.

ble] Superintendent, August 8, 1942" (Ex. 11; R. 72A).

Such an endorsement is intended for the subsequent use, as

in this case, of the disbursing ‘and accounting officers of the

Covernment (R. 65).

ae 3° ;

- of the ‘Certificate and Waiver by tr Ans-

portation companys’ r shall ac company the

bill for services submitted by the car-’

A | : ne

Like the standard’ form bill 0 lading, the Certifi-

‘ate in lieu. of lost bill of kiding bears: on its

face a Cerfificate of Consignee which must be :

‘properly accomplished’ * prior to presentation

with the standard <form voucher for payment

(Condition 1 of Standard Form No. 1061).

Proper accomplishment is had when. the con-"

signee affirms that (8 Comp. Gen. 703)—

oe hereby certify to the receipt of the

above-described property, except as noted

on the reverse hereof, and that the original

bill of lading indicated has not been re-

ceived, nor can it be located.

The procedure to be followed in the event of a

lost bill.of lading is further amp lifie d in Instrue-

tion 5 of the standard form bill (R. 72B), whieh

provides that—

To insure prompt glover: of . property,

in the absence of a bill of lading, the con-

signee should give to the carrier a ‘‘Tem-

porary Receipt,’’ executed on the prescribed

: form [Standard Form No. 1060, August

~~ “P24°7928, 8 Comp. Gen. 703] for the prop-

erty actually delivered. On the recovery

of the bill of lading, or when the certificate

provided for above shall have been given,

a statement will be indorsed on said bill

of lading or certificate of the fact of the

delivery as per said temporary receipt

* * -* and both papers attached and

forwarded with the. claim for payment

thereon. [Emphasis added.]_ . :

The duties of the consignee’ and the rights of the

carrier are thus plainly defined. As in the case

where the bill of lading is not lost or destroyed,

* the consignee is-to acknowledge receipt only of

the goods actually received.. When so receipted

and attached to the standard form voucher, pay-

ment is then made ‘only for the quantity of

" stores delivered at destination.” Bes o

Thus, each and every provision of the standard

forms specifically | conditions the right to freight

upon delivery of the cargo to destination. In

other words, the Government undertakes to pay

freight only for cargo actually delivered to des-

tinatien. Where, as here, no cargo is* thus

delivered, no obligation to pay freight arises.

The complete interdependence between perform-

ance of service and obligation to pay is further

demonstrated by those provisions of the standard”

form bill which define the Government’s obliga-

tion to pay freight on cargo which is partially lost

-or delivered in a damaged condition. In cases of

short delivery, freight is paid only up to “the

extent of the transportation service rendered. 4

Comp. Gen, 562; 3 Comp. Dee. 221; 4:Comp. Dec.

544. Instruction 6 of the standard form bill

of lading provides (R. 72B):

e 5

In casé of Toss or damage to property

while in the possession of the carrier, such

loss or damage shall, when practicable, be

noted on the bill of lading or certificate

in lieu thereof, as the case may be, before

its accomplishment. All practicable ‘steps

shall be taken at that time to-determine

‘the loss or damage and the ‘liability there-

for and to collect and transmit to the

proper officer, without delay, all evidence

as to the same. Should the loss-or damage

not be discovered until after the bill of

lading or certificate has been. a¢complished,

the ‘proper officer shall be notified as soon

as the loss or damage is discovered, and

the agent of the carrier advised immedi-

ately of such loss or. damage extending

privilege of examination .of shipment.”

The prescribed report of loss, damage or shrink-

Instruction 6 is but a lost or damaged deficiency pro-

vision, and serves a two-fold purpose. It is inserted with a

view to the established right of the shipper to deduct from

the freight charges damage to the cargo due to the negli-

gence of the carrier. See The Water Witch, 1 Black 494;

The Rita Sister, 6 F. Supp. 480 (E."D. Pa.) ; Clifford v.

Merritt-Chapman & Scott Corp., 57 F. 2d 1021, 1024 (C. A.

5). Secondly, it recognizes and incorporates the doctrine of

part payment whereby, in spite of the fact that a portion of

the cargo has been lost, the carrier is entitled to freight on the

goods actually delivered. See Edward Hines Lumber Co.

vy. Chamberlain, 118 Fed. 716 (C. A. 7): Gibson v. Brown,

44 Fed. 98 (S. DON. Y.); Price v. Hartshorn, 44 N.Y. 94.

Clearly such a provision does not envisage payment of full

freight in spite‘of partial delivery but “shows that freight

was to be allowed on that which was received.” /’rice v.

Hartshorn, supra, at LOL.

age set forth on the reverse of the standard form

bill of lading (R. 72B), notifies the carrier that

the ‘shipment was received in condition shown

below and that claim is made for the value of

such loss; damage, or shrinkage, as _indicated.”’

After <aece: iplishment, the standard form bill is

attached to the standard form voucher which |

declares that (R. 74B)— :

ee 6. Payment for transportation charge

will be made only ‘for the quantity of

stores delivered at destination, * * *

Loss or damage for which a carrier is.

responsible will be deducted in’ making

settlements for the services. - : :

The standard form bill and voucher, thus read

together, plainly embody the Government. policy

_that freight-will be-paid-onty for transportation

services-actually rendered.”

* The dissenting opinion below of Judge Augustus Hand,

in holding that Condition 1 and Instruction 2 of the standard

form bill are not inconsistent with the provision of Article 6

of the petitioner's commercial form bill of lading that freight

shall be due even though cargo be lost, is grounded mainly —

upon an erroneous reading of Instruction 6. The opinion

states ‘Nor do I see that the provisions of Condition 1 or

Instruction 2 control’the case.at bar. * * * Condition

1 and Instruction 2 relate only to the mode of settlement when

the freight has been delivered. Instruction 6 apparently

deals with a case where there has been partial delivery, and

seems to involve the assumption that there may be instances.

where there is a partial loss for which freight charges may be

collected under the terms of the commercial bill of lading.

Tnstruction 6 does no more than require a notation of such a

partial loss on the government bill of lading and contains

nothing to indicate that such partial loss would prevent the

¢ ne

> *

‘Under the terms of the Government’s standard

form (Condition 2) the provisions of a carrier’s

. ° g . ; ° 2

commercial form are applicable only in so far

as not‘otherwise specifically provided or other-

wise stated’** in the Government form. The fore-

“ going paragraphs make it plain that Article 6 of

‘ Condition 1 of the standard form Government -

the petitioner’s commercial form provision enti-—

tling it to freight even though it has lost the cargo

which was to be delivered, cannot be reconciled -

with the ‘‘carefully devised-plan”’ of the Govern-—

ment form of eontract and so -eannot form a

part of that contract. As we have demonstrated,

the above described provisions of the Government

bill of lading specifically “exclude the incorpera-

tion of any prevision that it freight hight be earned -

other than by performance of the transportation

service,

Moreover, we -believe that the first naitowie of.

bil in itself specifically prohibits the applica-

bility of petitioner's Article 6, particularly if the

provision-in petitioner’s bill be read with the

same literalness - which petitioner advocates i“

connection with the Government standard form.

bill of lading from being ‘properly accomplished.” ” (R.44.)

Since the standard form voucher specifically provides, in

accordance with long established Government practice, that

a proportional reduction of freight is made for short de-

livery, it is apparent that Judge Hand’s — as to the

, meaning of Instruction 6 is incorrect.

1* A close reading of petitioner’s Article 6 is warranted by

the rules in decided cases, supra, p. 19., that stipulations in

lace = 3

Since 1915, Condition 1 of the Government stand-

ard form has Specifically prohibited both prepay-

ment and paym nt nd consignee at destination.

Article 6 of petitioner’s commercial form, making

freight due and payable though unearned, ap-

plies in terms only to shipments on which freight

is either prepaid or payable by consignee at desti-

nation. No-provision is made therein for any

other type of shipment.” 3

Since there can be no payment of freight on

Government shipments either at point of origin

. or by the consignee, petitioner’s stipulation as to

unearned freight tails té avoid its general —

time law obligation — in connection with—Govern

ment cargo.

2. The inappropriateness of the language of pe-

titioner’s Article 6 in connection with Government

shipments evidences its basic inappositeness for

use in connection with Government form con-

avoidance of the shipownier’s obligation to perform in order

to earn freight, must be precise to be given effect.

*” Article 6 provides in pertinent part that—,

- Full freight to destination, whether intended to be

ebrutiet or collected at destination, * * * are due

and payable * * * asseonasthe Goods are received

for purposes of transportation; and the same * * *

shall be deemed fully earned and due and payable to the

Carrier at any stage, before or,after loading, of the

service hereunder without deduction (if unpaid) or re-

fund in whole or in part (if paid). Goods or Vessel lost .

or not lost, or if the voyage be woken up; * * *

and the Carrier shall have a lien on the Goods therefor

* * * | Full freight shall be payable on damaged

tracts of carriage.” Petitioner’s ynearned

freight @ause_arose from and is designed to meet

the relationship between commercial shippers and

earriers. And the justification which petitioner

offers in support of. the clause consists entirely

of eeconomie considerations which have little or

no application to the Gov ernment (Pt. Br. : 25).

And see fn. 12, supra, p. 28. On the other

hand, it is clear that, if there is any matter on

which a standard form Government bill of lading

ought to receive uniform interpretation, it is on*

the nature of the service which a carrier must

perform in order to qualify for payment. At_

the present time, petitioner’ s contention, that the

Government is obligated to pay for a service not

performed by virtue of its unearned freight

clause; would result in eomplete lack of uniform-

itv. Carriers performing services for the Gov-

ernment comparable to that of petitioner, who

employ. only the ‘prepaid’? form of unearned

freight clause, would entirfly lack standing

claimants for unearned freight, since freight on

1 Apparently recognizing the conflict between the Gov-

ernment. standard — commercial form bill of lad-

ing with regard to the issue herein, Waterman goes so far as

to suggest. that the Government form is a mere “makeshift”

and the Government in reality has no proper form for ocean

transportation, 7. e., one which would give adequate recogni-

tion to carriers’ peculiar customs including, of course, the -

right ‘to unearned freight (Waterman, brief amicus, 8).

Waterman does admit that the Government standard form is}, oe

and always has been required for ocean shipments of Gov-

ernment cargo (Waterman, brief amicus, 4). NS

“Government shipments can’ never be. prepaid.

As we have shown above, there are a respectable

number of such carriers. Moreover, if peti-

_oner’s contentidu be accepted, it would i ~ieally

follow that the natyre of the Government’s obli-

gation to ;..y could. be varied, at will, by the

carriers. We submit that it cannot be supposed -

hat the standard form Government bill of lading

was intended to leave the most basic question of

the contract of carriage, the nature of the service

for which payment was to be made, to the incor-

- poration by reference into the standard form of

an easily changeable provision-in ¢arriers’ com-

mercial form bills of lading.

3. Petitioner, and earriers supporting it by

briefs amicus curiae, assert that a consistent Gov-

_ernment administrative practice of long standing

" supports their position. Petitioner urged, in the

court below, that Comptroller General rulings

fully sustained its views and that such: rulings

were entitled to substantial weight in the inter-

pretation of the contract of carriage. (R. 48).

The petition for certiorari and the petitioner’s

brief both refer to rulings and letters of the

Comptroller General, and his predecessors, as .

evidencing a governmental recognition of an obli-

gation to pay unearned freight upon receipt of

Government cargo for shipment at point of origin

(Pet. 21; Pet. Br.-16-19). The Waterman Steam-

ship Company states that for “* * * many

years the Government has considered that under

37 :

documents such as here involved it was li-

able: for freight even though the carrier was

unable to deliver the cargo * * *" and usec

*# * .* never before has the Government con-

tended that it was on any different footing with

respect to liability for freight than any private

shipper * * *.’?. Waterman Steamship Cor-

- poration, Br. in support of Petition as amicus

curiae, 5. Similar statements, are made in the

cp as amicus curiae, p. 4. The Stockard

teamship Chonosation eitenoet ‘ally asserts that

i obligation to pay freight upon receipt of the

goods by the carrier for shipment accords with

the ‘‘* * * long-settled interpretation by the

‘government of the applicable provisions of the

bill of lading,’ that “‘The government thus

adopted and acted upon over a period of many

vears an interpretation directly opposed to that

for which it now contends,’ and that acéordingly

“The harsh results to the steamship companies

when they: contracted in reliance on the accepted

interpretation impose on the government a heavy

burden of proof to justify its sudden and_ be-

lated reversal of ° position.’’ Stockard Steam-

ship Corporation, Brief as amicus curiae, 3, 4.

These statements are simply untrue. At our

~ request, the Comptroller General’s office has made

as careful:a study as was possible in the time

available. A report on that study with : support- .

ing. references and attachments is attached, hereto

as Appendix B.” Such report, a fair and eare-

ful statement with regard to inte retatiof and

application of the Goyernment standard form

bill of lading in relation to the issue here raised,

demonstri ates a consistent administrative prac-

tice in support of the position which the Gov-.

ernment urges herein. Moreover, the report

demonstrates that there is no basis whatsoever

for the contention by petitioner and its. sup-

*2 Particular mention should be made here of the decision

of the-Comptroller of the Treasury reported in 24 Comp.

Dec. 707. The heavy reliance w hich petitioner, and the car-

‘Tiers supporting petitioner, place upon, the opinion: is in no

way justified. The contract of carriage there involved was

not the Government standard form contract... The Govern-

ment form bills of lading which covered’ the freight charges

there involved had been changed so as to relieve the carrier

of any responsibility for condition or contents of cargo on

delivery and further specifically provided that freight was—

to be prepaid. Stamped on the Government form w as ° ‘Not

responsible for condition or contents on deliv ery” and

“freight prepaid.” The special contract. thus formed was

ontrolling as to the intent of the parties. Cf, sy Kisen

Kaisha v; W. R. Grace & Co., 53 F. 2a 740 (C. » 9). cer-

tiorart denied, 2138 U. S.717. . A

This deviation from the Givens normal atte

may be accounted for by the fact that the carriage concerned

in 24 Comp. ‘Dee, 707 was performed by a vessel operated for

the United States Shipping Board Emergency Fleet Cor-

poration. While, in 1918, caution was exercised in dealing

with certain aspects of the function of the corporate entity

created by the Government to handle World. War I shipping,

there-is no doubt that the. Fleet Corporation was a govern-

- mental agency: C ompare United States ex rel. Skinner &

Eddy Corp. v. McCarl, 275 U. S..1, with Emergency Fleet -

Corp. v. Western Union, 275 UaS. 415.. Accordingly. thie

opinion in 24 Comp. Dec. 707 was concerned with freight

porters herein that they were caught by surprise

and unprotected by a sudden change im the Gov-

ernment’s policy and position, On the contrary,

the report indicates, what, might have been ex-

pected, the carriers’ complete familiarity with

the terms and conditions of Government -trans-

portation under standard form bills and a more

or less continuous effort to w ork a change in the

Governnient’s position. :

B.S. 3648 CLEARLY PROHIBITS THE PAYMENT OF

As a simple matter of contract interpretation,

petitioner’s claim’ fails. In addition, and _—

frem the question of contractual intent,” ws

earnings by the Government as a carrier, and interdepart-

mental accounting. Similarly. in World War II, the. Gov- .

ernment became, of necessity, the priticipal earrier. In con-

- nection with this function, the Comptroller General author-

ized, in May 1944, the use by the War Shipping Administra-

tion of a special form of bill of lading, the “War Shiplading,”

for use by the-Government in the transportation of its own

property. Payment tothe War Shipping Administration by | -

other Government departments under the “War Shiplad-

ing” was again merely a matter of intergovernmental ac-

counting. Petitioner’s unexplained quotations (Pet. Br. 18)

from the Comptroller General’s authorizatron of May 11,

1944, to the War Shipping Administration, are taken out of »

context and are misleading. See :.vpendix B, p. 185.

2 We do not mean to infer that the standard form Govern-

ment bill of lading does not reflect the legislative mandate of!

R. S. 3648. Recoznition of this appears throughout the rul-

ings of thé Government's officers. See Appendix B, pp. 7, 9,

11, 13-14, 18, 26-28. es

| 40

plain that petitioner's claim i in 1 this suit is barred’

by R. 8. 3648, supra, p. 2. R. 8. 3648 provides

that ‘“** * * no advance of publig¢ money shall

bf made in any cake *” *7? unless otherwise

permitted by | aw and that ** * * in all eases

of- contracts for the performance of any serviee

* * * payment shall not exceed ‘the value of

the” service rendered * °* *.” This statute, en-

acted by Congress ‘in 1823; is in full foree and

effect today and furnishes a basic control over the

expenditure of public monies.” This Court, has

long recognized that R. S. 3648 prohibits the

expenditure. of public monies’ before the actua®

_perforthance of the service,‘a prohibition which

“also forbids Government officers. to contract for

such payment, The Foz yd Acceptances, ‘T Wall.

666, 683, 10 Op. A. G. 288, 301. The statutory

touchstone is not benefit to the Government but

completion of: the performance of the service for

* Specific statutory authority is required to avoid the pro-

hibition of R.S. 3648. See annotations (cross references) in

31 U.S.C. A. 529. The need for such superseding statutory

authority was forcefully illustrated during Werld War. II,

as to the point here in issue, by the issuance of Circular No. 7.

by the Chief of Transportation, War Department, January

22, 1943, directing transportation officérs, pursuant to atithor-

ity contained in Executive Order 9001, 3 C. F.R. Cum. Supp.

10)4, to place on Government bills of lading, covering ship-

nh nts on vessels of foreign registry, a notation reciting

“ocean freight charges hereon stated are now due and pay-

able, cargo being aboard vessel for shipment to consignee”

and making reference to Executive Order 9001. Appendix

B, pp. 25, 203. Said Executive order was issued pursuant to

anthority of the First War Powers Act, 55 Stat. 839.

of full freight to destination would not

which the Government’ contracted. McClure V.

United States, 19 C. Cls. 173,181; 21 Comp.

Gen. 909.

In other-@words, no Goveinment officer has

" power. to enter a contract with petitioner which

would sanction payment for a service not: ren-

dered.” Recognizing the limitation on its ¢@n-

3 —

tract of carriage, petitioner asserts that payment

t $e * *

exceed the value of the service contracted for:

*.* s*” (Pet. Br. 26; see also Waterman

Steamship Corporation, Br. as amicus curiae, 15 D).

~The Government contends that it ean be obliged -

to pay full freig tht to destination only where

Government cargo is carried to destination, and

that any other view of its-obligation is in viola-

_ tion of R. S. 3648. M. KT. R. R. Co. v. United

States, 62 “C. Cls. 378, 316-378, certiorari denied,

273 U.S. (257

* The brief amicus filed by Waterman deeliwbiin Corpora-

tion completely misapprehends the Government’s position on

this point (brief as amicus curiae, 13-15). os

*In The Floyd Acceptances, supra, at L682, this Court

specifically noted “* * * the limitations which it [R.S

3648] imposes upon “all officers of the government.” The

United States can neither be bound nor estopped by unauthor-.

ized contracts entered into,by its agents or ne a Wil-

bur National Bank v. U 'nited States, 294 US. 120, 123-124;

Utah Power & L. Co. v. United States, 243 U.S S. 389, 408-409 ;

Yuma Water Assn. v. Schlecht; 262 U. 8.138, 144; U ‘ited

States v. San Francisco, 310 U.S. 16, 31-32.

7 The M. KH. 7. case involved a claim by the carrier that a

limitation provision contained in its ordinary commercial

bill of lading was incorporated by reference into the Gov-

oni

49 eS

In insisting that full freight to destination is

‘the value of the service contracted for and that

‘such freight is earned by the carrier on ‘receipt

of the goods for shipment, the carriers. herein

pervert the underlying general maritime Yaw. ' As

we have shown, supra, PP. 17-28, freight can only

be payment for the conveyagce of cargo to des-

tinatifn. Although _earriers may stipulate that

“freight” may~be retained or recovered though

cargo is not delivered to destination, such pay- .

ment is not strictly speaking, ‘‘freight.’’ This

Court, and lower federal courts, have specifically

recognized that carriers do not earn,‘‘freight”’

upon receipt of the cargo for shipment. Suh

stipulations are valid and enforceable, not ber

cause the contract of service has been performed

but because the shipper has bargained away it:

right to insist upon . complete — performance.

Whatever -the consideration may be for such

bargain, it is not performance. Although such

consideration may constitute “value” sufficient,

_ as a matter of contract Jaw, to uphold such a ~

stipulation between commercial shippers and car-

riers, it is clearly not the ‘‘value of the service

~ ernment standard form bill and that the Government claim

ugainst it was therefore barred. it should be noted that the

shipmerft involved was under the 1915 standard form bill

which did not contain the specific provision (Instruction 7)

as to periods of limitation on claims against.carriers whith

Sine in the form here involved,

g - ‘ =

43 9

rendered’? to. the Government which is . con-

templated by R. S. 3648. a ae

At bottom, peétitioner’s w hole case rests upon

_a plea that this Court read into the blunt pro-

‘tective language employed by Congress in 1823,

> and savant | thereafter varied, elusive notions. of

‘consideration developed long after the enactment — 7

of R. S, 3648. ‘Neither in the field of ocean

transportation nor in other fields in which the

Government contracts, can the meaning of ‘value

of the service rendered’” be satisfied by an arti-

ficial stipulation which would permit the expend-

iture of public money for something other than

performance. The Gévernment’s “needs and

poliey are uniform in all fields, and to basis

exists for Placing ocean carriers -in a preferred

status. It is inconceivable that the Government:

could be absolutely obligated, by a stipulation, .

to pay the full price for a battleship ora build-

ing upon the laying of | the keel or-the digging

of the foundation, regardless of “the subsequent

inability, without regard to fault, _of the contrac-

tor to complete performance.*~. $a ae

. ™ Finality of Bifigation on the part of the Government is

the essence of petitioner’s contentions. Opinions of the At-.

torney General referred. te. by, Waterman Steamship Corpo-

ration as amicus cureae” (Br. 15), are irrelevant on this

score: In neither opinion is it indicated that the Govern-

raent could be cofapelled. by contract, to pay for a service

not rendered. Cf. 20 Op. A. G. 746. Ye

- CONCLUSION |

For the reasons set forth above, it is respect-

fully submitted that the judgment below. should

be affirmed. igs ae ae

Priv By Pertanan

Nother Ge neral.

a % G. Monison,

- Assistant Attorney General.

oe ‘JoserH W. Bisnor,

Special Assistant to the Attorney ‘General.

7 SAMUEL D. SLADE, ..,

. Bexsawin Forman,

Ricuarp P. Wieviams TIT,

° Be “Attorneys.

NoveMBER, 1949.

A PPE} ‘DIX A

By order of December 6, 1935, the Secretary

of Commerce directed all, water carriers engaged

in the foreign commerce of the United States,

who desired to obtain the protection of Clause 14

of Part II ef the uniform through export. bill

of lading form prescribed by the Interstate

Commerce’ Commission; to file with the Division

of Regulation of the United States Shipping

Board Bureau of the Department of Commerce

certified eopies of port bill-of lading forms used

in connection with the uniform through export

bill of lading. The order provided that such

file shall -be, subject to imspection at all reason-

able times by any. person upon request. The

following tabulation of freight clauses of export

bills of lading used by water carriers. is based

on that file, now maintained’ by the Division of

Regulation of the United States Maritime Com-

mission. In general, water carriers utilize one

of two standard form freight clauses. That

most commonly employed states that full freight,

whether stated or intended to be prepaid or col-

lected at destination, is deemed earned on receipt

of the goods by the carrier, vessel] or goods lost -

or not lost (column 2). The alternate form pro-_

vides merely that prepaid freight (or freight

stated or intended to be prepaid) is deemed

earned on receipt of the goods by the carrier, |

vessA or goods lost or not lost (column 3).

Where a carrier has employed both freight

; 4)

clauses, the symbol ‘‘X*’ denotes the form cur-

rently filed with the Division of Regulation of

the Maritime Commission and fhe date of the

superseded form is given in the adjoining

column. gt

Collect and pronaic

Conte pace x ’ oe “oy Abt ivy

: prin ae Waal lie came a

ihe TE CCN iio ik i cewicnneamcuncaidacdass 1 xX

Aluminum Line (Aleova SS Co.) 000 Le x | _

American Caribbean Line, Inc. _.. Cheers We patie j x ES

SEY TEND MMO Bio in co ahs Sune Slcclcweewesace ; ¥ l,j h

America France Line CCA CRS Ay Tee MEER a gs Kakneen x "i A

American Gulf Orient Line...... 0... °.. | : | x

American Hampton Roads Line x

American Pioneer Line: |

Atlantic ports to Australia j x | 1935

Ath. .J¢ ports to Far East... Feaany x ees

Atlantic ports to India... _. Gens coekaitesnasenal = | 1835

American President Line. ..,..-....-..4.....- ee | » -

American Republics Line . itlaecdsplaia ac sV aah eauieaaces x tape

Fe SEFC CAE OTTO LM et |

American South African Line, Inc. ahs guest nkbas x

American Trading & Shipping Company... aes I

American West African Line ae . i

MAS Bk Soha biig hn aca danikas nny ic ? cies x

Baltimore Cuba Line LISD A ar aI : et | ee Se oe

‘Baltimor’ Insular Line, {ne...... ................... EB ae fours, Stale

Baltimoré Mail Steamship Company . ENE Repo eee te et COPS x i 1964

parte Stennett Si Ine > EI CEG apne oie Ne : t x

SI niece tnt hsnsincosecasocwensecs SB batniainiis -achanks x er

Bernstein, Arnold Litle..........._._.. Di EI PALA x eR

Black Diamond Lines ; phan diet ete x 1646 |

Bristol City Line of Steamships, Ltd. = 1936 .

eS EERE TERN OEE EE eee

CIN SI atdntacbinwebbaecasncisatuDectbacesohes nici rica x ss

Castle Line... .! Pianta i iacae

Compania Espanola De Navegacion, Maritima 8. ry x oar

Chilean North American Line. __. Nelaltaitat Suit dew haath ode Api ie x

Clan Line Steamers, Ltd. Noo ooo ia: ae,

Commonwealth & Dominion Line, Ltd)... b 4 hae}

ee een Bi Chie Wis Stee x 2299 pyar

Compania Transatlantica __.. palate awe: senate aia x OAS .

“Coaulich” Societa Triestina Di Navigazione- rei Bro tebe Be |

CO TB iki ek ie beaten PPC, Cah Aaa EPEC FO Re Tate ey eed >:

Cunard White Star, Ltd.:

Atlantic ports to England................. babe pidntenday ja coor x 1938

ania Ee banciagie [o--ee-eniee poe.

Dixie Mediterranean Line . picts dou akbus uae RES Cain: Oe ter x.

Fast Asiatic Company, Ltd... RE ER PAE NE an PO ae ealeni pide a x

Elder Demster Lines, Ltd_. ee ei tS RS SON ET eS awaneatontia

Ellermans Wilson Line, Ltd... SS AE OER BAT

} The bill of lading of Commonwealth & Dominion Line, Lid., provides that freight must

be prepaid, or in the alternative, that the consignee pay a penalty of 10% of the freight charge. :

Neither provision could be applicable ander the standard form Government bill.

& t

a ‘ Beandinsvian American Line:

~ Hamburg American m

Fern Line. __.. x 2 ; Nomen inics aes

Franco-fberian Line.

Furness Bermuda Line...

Furness Pacific Line...

Fucness Red Cross Line...

Furness Warren Line __.,.

Furness West Indies Line

Gareta Line.............

Gdynia-Anerica Line

Grace Line:

United States to West Coast of South America

United States to West Coast of South America and Mexico

Gulfstates Steamship Company

Gulf West Mediterranean Line. _ ?

Harrison Line ..__- : keiebaieds

Holland America Line: i=

Atlantic ports to Holland... , of Rina Cemer ae

Gulf ports to Holland. : ; ,

Houston Lines. . :

Italia Line. . : Fuicghinig iad

“Interocean Steamship: c orporation datas ;

Java-New York Line . :

Navagarione Liberia Triestins.

North German Lloyd. : |

Gui porte to Germany. Earn OR CREEP MFM onewaalcg

ORS ESE SSS Ea ee ee gee ee ae ES

Cust (pasate Congeny, Ln Sia bck dealin dic nate dike Wncie cesta ail

Royal Netherlands Steamship Company... its

North Atantle ports to Scandinavia, SES ey RE Sot ee ae

ci PONT SETS SR ev a ee a {

aaa ee 7 anes

Collect and

Prepaid

prepaid freight

—

ee ee en ene

A a

ARAAAERA

‘Collect and |

. prepaid

freight

—

Prepaid

freight

South Atlantic Mail Line...............-- Na ac olitecohtany

beeen Pune er in ree a oer ee Oe oo is

- Standard Fruit & Steamship Company. -........-..-...-...-..---.|-

_ States Steamship Company ..-........-.-.

Strachen Shipping Company Re Gs a nee cag OE nin waa eae

Swedish’ American Line _._..- cas euee tc

Union-Castle Mail 3S Co., Ltd. at nion Clan Line) .. yaswjede aero

Union Ocean Transport Co., Ltd. Feet

Union Steaniship Company ‘of New Zealand, ‘Ltd. Sa RI ae

United States Lines: :

. New York to Continental Europe.................--.----.----

INOW TOCk SO Ngee on on cto Sat adenae ere ad

United States Navigation Company, Inc_..-...-.....-....-.---..-

Western Canada Steamship Company, Ltd. _-.. 0-2-2... ..- ake

Wilhelmsen Line:

Gulf & Atlantic ports to Brazil. -

Wilhelmsen Line/Swedish American Line:

~~ Guif & Atlantic ports to Prance..

Gulf & Atlantic ports to Poland..................-----------

Qulf & Atlantic ports to Scandinavia Be Sip aids Linn ih opuaeune Seb sca

Yankee Line. .

Yucatan Line. Ulett a cee

U.S. GOVERNMENT PRINTING OFFICE: 1949

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.