(dissenting).
I think the judgment should be affirmed.
While the bill of lading gave the carrier broad latitude in respect of the abandonment of the voyage when the carriage of the cargo is likely to be delayed, the clause ought not be construed, as in effect it is here, so as to place the shipper at the mercy of the carrier acting solely in its own interest. Naturally it was to the advantage of the carrier to treat the freight as earned without having transported the cargo. As we said in The Wildwood, 9 Cir., 133 F.2d 765, 767, “Such a clause must be given a reasonable interpretation, and the discretion conferred may not be exercised in an arbitrary or unreasonable manner, nor without substantial grounds, nor will good faith alone suffice.”
Much is said in the majority opinion with regard to the likelihood of submarine attack beyond that - contemplated; and it would seem that my brothers have thought it necessary to bolster the holding by resort to this and other speculations. However, it is clear, as Judge St. Sure found, that appellant based its decision to abandon the voyage primarily if not entirely on the prospect of delay. The decision was made by Mr. Lunny, appellant’s vice-president and director of operations. He testified that it was not known “just how long that vessel would be in repairing, and it was for that reason we abandoned the voyage.” Again, at the close of his direct examination he was asked to state the considerations upon which he acted, and replied: “Based on the fact that at the time the known date when the vessel would be ready to complete her voyage was a matter of considerable conjecture, but to our way of thinking it could well be a matter of months and months, and we then abandoned the voyage.”
It is my understanding that delay, to work a commercial frustration, must be inordinate or unreasonable. Cf. Admiral Shipping Co., Ltd., v. Weidener, Hopkins & Co. [1916], 1 K.B. 429,436. And the reasonableness of the prospective delay should be determined with reference to the provisions of the contract. The bill of lading did not make time of the essence. On the contrary it provided that “Carrier is not and shall not be required to deliver said packages at the port of discharge or port of destination at any particular time, or to meet any particular market, or in time for any particular use.” The carrier in this instance was also the seller. Its reservation of the right *139specified seems to me to imply in the purchaser a correlative right to insist upon delivery notwithstanding delay. Here the purchaser, at the time it protested the abandonment of the voyage, expressed a willingness to accept delayed delivery. At the least, under such circumstances, the shipper ought not to be held liable to pay freight where delivery is not made.
I agree with Judge St. Sure’s finding that as of February 5, 1942, appellant was not in possession of sufficient facts upon which to base a determination that there would be such unreasonable delay in repairing the vessel as to justify an abandonment; The judge was not able to find, nor am I, any showing that the purpose of the contract would be frustrated by an indefinite delay. At that time the repair contract had already been negotiated and the work of repairing was under way. And as appellant’s chief witness, Mr. Lunny, observed: “No one could say what the condition would be at the time the vessel was repaired. She may well have continued her voyage.”
Nor did the condition of the lumber justify the abandonment. Paragraph 3 of the bill of lading provided that “full freight and charges shall be payable, and so paid, on all damaged and unsound goods.” If the lumber deteriorated the loss would be that of the shipper, not of the carrier. In fact, as the trial court pointed out, some of the lumber stood on the docks for more than five months before being sold, and there is nothing in the record to show that it was thereby injured. M!y associates spealc of the fire hazard to ship and crew because some of the cargo had been oil soaked; but that circumstance did not in any wise influence the decision to terminate the voyage. Mr. Lunny does not so much as mention any hazard of that sort to the ship in his exposition of the reasons for his decision. Had it been a factor of any consequence it is inconceivable that this experienced man would overlook it.
A further word in respect of the submarine menace. The situation in that respect is still too fresh in mind to warrant much elaboration. The trial court found that the danger from submarine attack to a vessel bound on an intercoastal voyage existed at the time the Absaroka sailed, and that appellant was aware of that danger at the time of loading. It further found that the carrier on February 5 expected an indefinite delay, hence it was highly speculative what, if any, menace would exist when the voyage was resumed. These findings are amply supported. Mr. Lunny’s testimony indicates that he was fully alive to the submarine campaign in the Atlantic and in the Caribbean against the English and the French prior to our entry into the war. Nor, in view of the surprise attack on Pearl Harbor, was Japanese submarine activity along the coast of such an unforeseeable nature as to warrant the abandonment of a voyage embarked on with the Pearl Harbor attack in mind. Moreover,, since appellant knew that the Atlantic waters, through which the vessel must sail, were infested with submarines, it was hardly in a position to abandon the voyage because, as it turned out, a like menace existed in the Pacific.