(dissenting).
The bill of lading issued by Alcoa Steamship Company, Inc., clearly provided for the payment of freight whether or not the vessel was lost. Such a provision now general in commercial bills of lading must govern “unless otherwise specifically provided or otherwise stated” in the govern-*664merit bill of lading. In other words, the company bill of lading should prevail unless clauses in the bill of lading prepared by the government, and therefore to be construed against it in resolving any ambiguities, “specifically” have provided otherwise. I do not think that the clauses in the government bill of lading have “specifically” provided otherwise. At best, they seem ambiguous and in fact to fall short of any clear provision that in terms relieves the government from the precise exemptions in the carrier’s bill of lading.
I cannot see that the general maritime rule that freight is not earned until cargo is delivered has anything to do with such a situation as we have here. That rule does not apply to cases where there is an agreement to the contrary. Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U.S. 377, 39 S.Ct. 147, 63 L.Ed. 312, 3 A.L.R. 15; International Paper Co. v. The Grade D. Chambers, 248 U.S. 387, 39 S.Ct. 149, 63 L.Ed. 318. Nor do I see that the provisions of Condition 1 or Instruction 2 control the case at bar. Instruction 6 says that: “In case of loss 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.” 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. Instruction 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 bill of lading from being “properly accomplished.”
I am not convinced that there was no reason for the provision in Condition 2 that “prepayment of charges shall in no case be demanded by carrier, nor shall collection be made from consignee,” unless it was intended that freight charges were never to become due except in the event of the successful completion of the voyage. The government may have had financial reasons-for barring prepayment of charges and for only allowing collection from itself rather than from the consignee, and I see no reason for supposing that it was indifferent to-the financial benefits it might obtain through-a delay in payment. The agreement that freight charges were to be paid only after-delivery in cases where the voyage had been* successfully accomplished did not in terms-affect the substantive right of the carrier to earn and ultimately to receive the freight, and related only to time of payment. It is-true that the clause presupposes the loss-of the carrier’s lien because the latter was bound to deliver the cargo, in the absence-of excusable loss, and to look only to the-government for payment. But the loss of a lien was quite unimportant when the government was the obligor.
For the foregoing reasons, I think Condition 1 and Instruction 2 were insufficient to-override the plain provision of the commercial bill of lading.
Moreover, only two months before the-shipment in the case at bar the Comptroller General made a ruling regarding a shipment by the United States to the Philippines-which apparently arrived shortly before the-Japanese took possession, where the government and commercial bills of.lading were-identical with those we have under consideration. The Secretary of the Navy hadl asked for instructions from the Comptroller General as to whether he should pay the-freight where the vessel had reached the-Philippines, but there was no proof that, the cargo had been received by the consignee or that the latter had receipted for it upon the bill of lading. The -instructions-of the Comptroller to the Secretary were-as follows: “ * * * you are advised that this office will not be required to object, to the payment, otherwise proper of carriers’ bills for transportation charges on¡ shipments to the Phillippine Islands or Guam in instances where the original bill! of lading or other form of receipt showing-delivery to the consignee cannot be obtained, if a satisfactory showing be made of' facts or circumstances reasonably establishing the carriers’ inability, by reason of" war, to effect delivery and obtain a receipt from the consignee, where the claim in each> *665instance is supported by a memorandum ■copy or shipping order copy of the bill of lading showing the material shipped and corresponding in pertinent detail with the memorandum copy duly signed by the carrier’s agent and retained administratively as contemplated in the instructions on the reverse of the original bill of lading. * * *” [21 Comp.Gen. 909, 913.]
Even though we do not regard the above ruling as controlling our interpretation of the bill of lading in the present case, it at least shows that the meaning of the government bill of lading was sufficiently doubtful to lead the Comptroller to treat the_ provisions of Condition 1 and Instruction 2 as subject to exceptions and defenses where delivery could not be completed owing to war conditions.
For the above reasons, I think the decision of the court below was right and should be affirmed.