The opinion of the court was delivered by: CORCORAN
This consolidated action is in the nature of a libel in admiralty for money due on bills of lading.
The plaintiff Orient Mid-East Lines, Inc. is incorporated under the laws of Panama. At all times pertinent hereto it was the owner of the S.S. ORIENT MERCHANT and the time-charterer of the M.S. OLAU GORM.
The defendants, Cooperative for American Relief Everywhere, Inc. (CARE), Seventh Day Adventist Welfare Service, Inc., Church World Service, Inc., and Lutheran World Relief, Inc., are volunteer relief agencies to which the Commodity Credit Corporation (an agency of the United States) donated agricultural products under authority of 7 U.S.C. § 1431 for shipment abroad.
The United States, defendant-intervenor, entered the case with the consent of all parties as the real party in interest since it is required to pay all freight charges incident to any shipments of agricultural products donated to the defendant volunteer agencies (7 U.S.C. § 1723; 32 C.F.R. 202.2).
In the Fall of 1964 the defendant relief agencies entered into contracts of carriage (bills of lading) with the plaintiff carrier to transport U.S. donated agricultural commodities from Great Lakes ports to points overseas.
The route of ocean going vessels from the Great Lakes to the open sea is, of course, the St. Lawrence Seaway. Due to icing, the Iroquois Lock
of the Seaway was officially closed at midnight December 5, 1964, before the OLAU GORM and the ORIENT MERCHANT could make their way through it.
As a result the two ships were locked in the Lakes and ordered to Toronto for winter berthing.
The plaintiff thereupon, on or about December 9, 1964 telegraphed to the various shippers:
"THIS IS TO ADVISE YOU THAT BECAUSE OF FORCE MAJEURE THE ORIENT MERCHANT AND OLAU GORM ARE UNABLE TO LEAVE THE LAKES AS A CONSEQUENCE OF THE CLOSURE OF THE ST. LAWRENCE SEAWAY. THE VOYAGE HAS THUS BEEN TERMINATED AND THE FREIGHT EARNED. IN ACCORDANCE WITH YOUR REQUEST WE WILL LEAVE THE CARGO ON BOARD THE VESSELS DURING THE WINTER MONTHS. WE SHALL BE GLAD TO DISCUSS WITH YOU THE ADJUSTMENT OF A NEW FREIGHT TO APPLY FOR THE NEW VOYAGE."
The above quoted notice by the plaintiff claiming a right to payment of full freight was founded upon the following pertinent clauses of the bills of lading:
"5. In case of war, hostilities, * * * ice or closure by ice, or the happening of any other matter or event, whether of like nature to those above mentioned or otherwise, whether any of the foregoing are actual or threatened and whether taking place at or near the port of discharge or elsewhere in the course of the voyage and whether or not existing or anticipated before commencement of the voyage, which matters or events, or any of them, in the judgment of the Master or carrier may result in damage to or loss of the vessel * * *, or make it unsafe or imprudent for any reason to proceed on or continue the voyage or enter or discharge cargo at the port of discharge, or give rise to delay or difficulty in reaching, discharging at or leaving the port of discharge, the carrier or Master may * * * (2) whether or not proceeding toward or entering or attempting to enter the port of discharge or reaching or attempting to reach the usual place of discharge therein or attempting to discharge the goods there, discharge the goods into depot, lazaretto, craft, or other place; or (3) proceed to return, directly or indirectly, to or stop at any port or place whatsoever, in or out of the regular route and short of or beyond the port of discharge as the Master or the carrier may consider safe or advisable under the circumstances and discharge the goods, or any part thereof at any such port or place. When the goods are discharged from the ship, as herein provided, they shall be at the risk and expense of the shippers and/or receivers; such discharge shall constitute ...