Baldwin Shipping Co. v. Southern Pac. Co.

GILBERT, Circuit Judge (after stating the facts as above). We think it clear that the agreement between the appellant and the appellee was one of agency. In the libel it was alleged that the appellee agreed with the appellant “to reserve space for the transportation of, and to transport or cause to be transported from San Francisco, California, to Japan, 2,000 tons of pig iron” at $15 per ton, etc., and the breach of ilie agreement was alleged to be the fact that the appellee— “did not reserve steamer space for said commodity, or any part thereof. * " * But appellee failed, neglected, and refused to accept said commodity or any part • thereof, for transportation, or to transport said commodity, or to cause to be transported, or to furnish or supply steamer space for the transportation thereof.” The nature of the agreement is further indicated by the letter of the appellee to the appellant of June 22: “We have hooked for your account 2,000 tona of pig iron and steel articles,” etc. It was shown by the evidence that the appellee had solicitors in various cities in the eastern part of the United States, who made the round of firms who were known to be shipping to the west coast either domestic or foreign business, for the purpose of soliciting the routing of the business over the appellee’s line, and that with respect to export business those solicitors would wire to the general freig'ht office at San Francisco to obtain ocean space, and the ocean rate for a given quantity of tonnage that might be offered to them, whereupon the appellee would make inquiries of various steamship companies and ascertain whether they could book the shipments, and, if so, for what clearance and at what rate. That information would be wired back to the appellee’s commercial agent in the east, and if the space and rate was accepted a confirmation would he sent to the appellee at San Francisco, and the appellee would exchange a confirmation with the steamship company accordingly. It was shown, also, that in the spring and summer of 1917 space was very difficult to secure on vessels for exportation to China and Japan ; that it was the policy of the appellee to book such space directly with the steamers, if possible, but that conditions at that time were such that it was often impossible to secure space for large tonnage, and it was necessary to book it through brokers; that C. R. Haley & Co., of San Francisco, were in the freight brokerage business, and were booking rates for shipments from San Francisco to China and Japan; and that the freight in question was booked through that firm, for the reason that their rate was the cheapest, they agreeing to furnish transpor *350 tation at $15 per ton, while,the steamship companies were asking $20 per ton. The evidence indicates, also, that the appellant had made effort on its own behalf to get space and had failed, and for that reason it had applied to the appellee. All the facts point to the conclusion that the appellee was an agent for the appellant in endeavoring to facilitate the transshipment of goods from San Francisco, and that in good faith it carried out the agreement which is charged in the libel, an agreement to reserve steamer space for transportation of goods from San Francisco to Japan, and that in good faith it made an agreement with a broker at a rate lower than that demanded by the steamship companies. From the allegations of-the libel it is evident that the damages which are sought to be recovered here are the difference between the rate of $15 per ton, and the rate which the steamship companies were at that time demanding. But the appellant urges that the agreement was not one of agency, for the reason that the appellee refused to disclose to the appellant the steamship or steamship line with which it had booked the freight. The evidence, however, clearly shows that the appellee never refused to disclose any information which it possessed. Not being able to engage space directly with any steamship or steamship company, it did as it had done before, engaged space through a firm of brokers. The appellant suggests that the brokers were irresponsible, but there is nothing in the evidence to support the suggestion, other than the mere fact that the brokers failed to perform their contract. The appellee was never able to ascertain through C. R. Haley & Co. the name of any steamship or steamship line on which the goods were intended to be shipped. For that reason it was unable to give further information to the appellant. The appellant was furnished with a copy of the letter of the appellee to C. R. Haley & Co., of date June 28, 1917, in which it said: “Please book for the Southern Pacific 2,500 tons pig iron and steel articles for August and December, clearance to Kobe and Yokohama, at $15.” The appellant made no objection to the appellee’s action in so booking the freight, and we think the appellant was clearly chargeable with notice that the same course was pursued by the appellee in booking the shipments which are the subject of the second and third causes of libel. We are unable to see that at any time in the conduct of the appellee there was denial of an agent’s duty to a principal. Taking this view of the nature of the agreement, we find it unnecessary to consider the other ground on which the court below denied liability. The judgment is affirmed. <g^a>For other cases sue samo topic & KUY-NTJMBUR. in all Key-Numbered Digests & Indexes