other good reasons he headed for New York, where he arrived on October 5, having been out twenty-four days. Repairs were undertaken at once, the cargo remaining on board meanwhile.

The argument of counsel upon the elements of the questions [385] is quite extensive, ranging through all of the ways in which contracts can be dissolved or their performance excused by the agreement of the parties or prevented by some supervening cause independent of the

We do not think it is necessary to follow the argument through that range. It may be brought to the narrower compass of the charter party and the bills of lading.

"On September 28, while the vessel was at sea, the government decided to refuse clearance thereafter to any sail-parties and dominating their convention. ing vessel bound for the war zone. The master did not know of this condition until the vessel returned to New York; he received no information from the shore after September 11. The repairs being finished, the vessel attempted to resume her voyage, but clearance [384] was refused and none could be obtained in spite of her efforts to induce the government to modify its stand. Toward the end of October the shippers were notified by the carrier to unload their goods, and this they did, but under protest and reserving their rights. Afterwards the oil was forwarded by steamship, but at a higher rate of freight and under other charges. What became of the nails after they were unloaded does not appear.

The physical events and what they determined are certified. First, there was the storm, compelling the return of the ship to New York to avert greater disaster; then the action of the government precluding a second departure. Does the contract of the parties provide for such situation and take care of it, and assign its consequences? The charter party provides, as we have seen, that "freight to be prepaid net on signing bills of lading .. Freight earned, retained, and irrevocable, vessel lost or not lost." And it is provided that this provision is, with other provisions, "to be embodied" in the bill of lading. They seem neces

"The vessel declined to refund the freight to either shipper, and the libels were filed to recover not only the prepaid freight but also damages for fail-sarily, therefore, deliberately adopted to ure to carry. On each libel the district court entered a decree for the prepaid freight alone, refusing recovery for the other damages."

Upon these facts the circuit court of appeals have certified four questions, two in each libel, as follows:

"1. Was the adventure frustrated, and was the contract evidenced by the charter party and by the bill of lading issued to the Oil Company dissolved, so as to relieve the carrier from further obligation to carry the oil?

"2. Whatever answer may be given to the first question, did the contract thus evidenced justify the carrier under the facts stated in refusing to refund the prepaid freight?

"3. Was the adventure frustrated, and was the contract evidenced by the bill of lading issued to Pidwell dissolved, so as to relieve the carrier from further obligation to carry the nails?

"4. Whatever answer may be given to the third question, did the contract thus evidenced justify the carrier under the facts stated in refusing to refund the prepaid freight?"

A copy of the charter party and copies of the bills of lading are attached to the certificate and also the official bulletin refusing clearance to "sailing vessels destined to proceed through the war zone."

be the measure of the rights and obligations of shipper and carrier. Let us repeat: the explicit declaration is"Freight to be prepaid net on signing bills of lading

Freight earned, retained, and irrevocable, vessel lost or not lost." The provision was not idle or accidental. It is easy to make a charge of injustice against it if we con sider only the defeat of the voyage and the noncarriage of the cargo. But there are opposing considerations. There were expected hazards and contingencies in the adventure and we must presume that the contract was framed in foresight of both and in provision for both. We cannot step in with another and different accommodation. It is urged, however, that there is no provision in the contract (charter party and bill of lading) of the Oil Company excepting "restraints of princes, rulers, and peoples," and that, therefore, the carrier was [386] not relieved from its obligation by the refusal of clearance to sailing vessels. And it is further urged that such embargo was at most but a temporary impediment and the cargo should have been retained until the impediment was removed, or transported in a vessel not subject to it. We cannot concur in either contention. The duration was of indefinite extent. Necessarily, the embargo would be continued as long as the cause

of its imposition, that is, the subma- by the owners of a sailing vessel upon the rine menace, and that, as far as then frustration of the adventure by the Fedcould be inferred, would be the dura- eral government's embargo on sailing vestion of the war, of which there could be sels bound for the war zone, because of which such vessel never broke ground for no estimate or reliable speculation. The the voyage, where the bill of lading concondition was, therefore, so far perma- tains provisions "restraints of princes and nent as naturally and justifiably to de- rulers excepted" and "freight for the said termine business judgment and action goods to be prepaid in full without disdepending upon it. The Kronprinzessin count retained and irrevocably ship and/or, Cecilie (North German Lloyd v. Guar- cargo lost or not lost." anty Trust Co.) 244 U. S. 12, 61 L. ed. 960, 37 Sup. Ct. Rep. 490.

[For other cases, see Shipping, IV. c. 1, in Di

gest Sup. Ct. 1908.]

[No. 479.]

There is no imputation of bad faith. The carrier demonstrated an appreciation of its obligations and undertook Argued December 12 and 13, 1918. their discharge. It was stopped, first by storm, and then prevented by the in

terdiction of the government. In neither

situation was it inactive. It quickly repaired the effects of the former and protested against the latter, joining with the shipper in an earnest effort for its relaxation. It gave up only when the impediment was found to be insurmount

able.

The answer to the other contention is that the contract regarded the Allanwilde, a sailing ship, not some other kind

of ship or means. The Tornado (Ellis

v. Atlantic Mut. Ins. Co.) 108 U. S. 342, 27 L. ed. 747, 2 Sup. Ct. Rep. 746; The Kronprinzessin Cecilie, supra.

The bill of lading in No. 450 is even more circumstantial. It provided that "full freight to destination, whether intended to be prepaid or collect at destination 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 refund in whole or in part (if paid), goods or vessel lost or not lost, or if the voyage be broken up." And there is exemption [387] from liability "for any loss, damage, delay or default .. by arrest or restraint of government, princes, rulers, or peoples;

The questions certified are therefore answered in the affirmative. So ordered.

Ν

cided January 13, 1919.

De

ON WRIT OF CERTIORARI to the

United States Circuit Court of Appeals for the Second Circuit to review a decree which reversed a decree of the District Court for the Southern District of New York in favor of libellant in a suit in admiralty to recover prepaid freight under a contract for carriage by prevented by the government's embargo. water, the performance of which was

Affirmed.

See same case below, 253 Fed. 182.

The facts are stated in the opinion.

Mr. William C. Cannon argued the cause, and, with Mr. R. L. von Bernuth, filed a brief for petitioner:

Petitioner is entitled to recover the prepaid freight:

(a) Because there is no inception of the earning of freight until the ship breaks ground for the voyage.

Gilchrist Transp. Co. v. Boston Ins. Co. 139 C. C. A. 246, 223 Fed. 716; Wood v. Hubbard, 10 C. C. A. 623, 17 U. S. App. 632, 62 Fed. 753; The Tornado (Ellis v. Atlantic Mut. Ins. Co.) 108 U. S. 342, 27 L. ed. 747, 2 Sup. Ct. Rep. 746; Curling v. Long, 1 Bos. & P. 634, 126 Eng. Reprint, 1104, 1 Revised Rep. 747.

(b) Because the same rule applies to prepaid freight in the absence of a clearly expressed contract to the contrary.

Burn Line v. United States & A. S. S. Co. 89 C. C. A. 278, 162 Fed. 298; The Kimball (Duncan v. Kimball) 3 Wall. 37, 45, 18 L. ed. 50, 54; De Sola v. Pomares, 119 Fed. 373; Watson v. Duykinck, 3 Johns. 335; Mitsui v. St. Paul F. & M.

Note. On the rights of party to a contract the performance of which is interfered with or prevented by war conditions or acts of government in the prosecution of war-see note to Allan wilde Transport Corp. v. Vacuum Oil Co. 3

Shipping frustrated adventure
bargo retention of freight.
The prepaid freight may be retained' A.L.R. 21.

Ins. Co. 120 C. C. A. 280, 202 Fed. 26; | & E. Spring Co. v. Knowlton, 103 U. S. National Steam Nav. Co. v. Internation- 49, 26 L. ed. 347; Taylor v. Bowers, L. al Paper Co. 154 C. C. A. 563, 241 Fed.

862.

(c) Because the provisions of this bill of lading cannot be construed to be such a contract.

The Kimball (Duncan v. Kimball) 3 Wall. 37, 18 L. ed. 50; National Steam Nav. Co. v. International Paper Co. 154 C. C. A. 563, 241 Fed. 861; The Queensmore, 4 C. C. A. 157, 8 U. S. App. 287, 53 Fed. 1022; Christie v. Davis Coal & Coke Co. 95 Fed. 837; Ocean S. S. Co. v. United States Steel Products Co. 152 C. C. A. 609, 239 Fed. 823; The Allanwilde, 247 Fed. 236.

The exception in the bill of lading relating to the restraints of rulers and princes does not apply:

(a) Because the clause only exempts the ship from liability for failure to carry, and does not relate to freight

moneys.

Jackson v. Union Marine Ins. Co. L. R. 10 C. P. 125, 44 L. J. C. P. N. S. 27, 31 L. T. N. S. 789, 23 Week. Rep. 169, 2 Asp. Mar. L. Cas. 435, 6 Eng. Rul. Cas. 650; Kelly v. Johnson, 3 Wash. C. C. 45, Fed. Cas. No. 7,672.

(b) Because there was a commercial frustration of the enterprise before the freight was paid or payable, and the petitioner is entitled to restitution.

Geipel v. Smith, L. R. 7 Q. B. 404, 41 L. J. Q. B. N. S. 153, 26 L. T. N. S. 361, 20 Week. Rep. 332, 1 Asp. Mar. L. Cas. 268; The Kronprinzessin v. Cecilie (North German Lloyd v. Guaranty Trust Co.) 244 U. S. 12, 61 L. ed. 960, 37 Sup. Ct. Rep. 490; The Styria v. Morgan, 186 U. S. 12, 46 L. ed. 1034, 22 Sup. Ct. Rep. 731; Admiral Shipping Co. v. Weidner [1917] 1 K. B. 222, 115 L. T. N. S. 814, 33 Times L. R. 71, 61 Sol. Jo. 85, 22 Com. Cas. 154; Countess of Warwick S. S. Co. v. Le Nickel Société Anonyme [1918] 1 K. B. 372, 8 B. R. C. 546, 87 L. J. K. B. N. S. 309, 23 Com. Cas. 231, 118 L. T. N. S. 196; Horlock v. Beal [1916] 1 A. C. 486, 85 L. J. K. B. N. S. 602, 114 L. T. N. S. 193, 32 Times L. R. 251, 60 Sol. Jo. 236, 21 Com. Cas. 201; Atlantic Fruit Co. v. Solari, 238 Fed. 217; Jackson

V.

Union Marine Ins. Co. L. R. 10 C. P. 125, 44 L. J. C. P. N. S. 27, 31 L. T. N. S. 789, 23 Week. Rep. 169, 2❘ Asp. Mar. L. Cas. 435, 6 Eng. Rul. Cas. 650; Embiricos v. Reid [1914] 3 K. B. 45, 83 L. J. K. B. N. S. 1348, 111 L. T. N. S. 291, 30 Times L. R. 451, 19 Com. Cas. 263; Card v. Hine, 39 Fed. 818; Congress

R. 1 Q. B. Div. 300, 46 L. J. Q. B. N. S. 39, 34 L. T. N. S. 938, 24 Week. Rep. 499; Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 151, 43 L. ed. 108, 114, 18 Sup. Ct. Rep. 808; Harriman v. Northern Securities Co. 197 U. S. 244, 296, 49 L. ed. 739, 763, 25 Sup. Ct. Rep. 493; Cleveland, C. C. & St. L. R. Co. v. Hirsch, 123 C. C. A. 145, 204 Fed. 849.

Mr. Robinson Leech argued the cause, and, with Mr. Charles Burlingham, filed a brief for respondent:

The bill of lading having been delivered, the goods shipped thereunder having been received by the vessel and the freight paid, this must be accepted

as the contract.

German Lloyd v. Guaranty Trust Co.) The Kronprinzessin v. Cecilie (North 244 U. S. 12, 61 L. ed. 960, 37 Sup. Ct. Mut. Ins. Co.) 108 U. S. 342, 27 L. ed. Rep. 490; The Tornado (Ellis v. Atlantic 747, 2 Sup. Ct. Rep. 746; Bulkley v. Naumkeag Steam Cotton Co. 24 How. 386, 16 L. ed. 599.

The terms of the bill of lading became effective at the time the cargo was

shipped, and were in effect at all times up to the date when the vessel abandoned the voyage and delivered back her cargo. Blowers v. One Wire Rope Cable, 19 Fed. 446; Bulkley v. Naumkeag Steam Cotton Co. 24 How. 386, 16 L. ed. 599; The Bird of Paradise, 5 Wall. 545, 18 L. ed. 662; The Buckingham, 129 Fed. 976; The Saturnus, 250 Fed. 407; Pearce v. The Thomas Newtown, 41 Fed. 106; The Pokanoket, 161 Fed. 383, affirmed in 24 L.R.A. (N.S.) 569, 96 C. C. A. 383, 172 Fed. 321; Insurance Co. of N. A. v. North German Lloyd Co. 106 Fed. 973, affirmed in 49 C. C. A. 1, 110 Fed. 420; The Oregon, Deady, 179, Fed. Cas. No. 10,553.

There is no ambiguity, the freight being paid and retained in accordance with the clearly expressed intentions of the parties.

Mehrbach v. Liverpool & G. W. Steam Co. 12 Fed. 78, affirmed in 18 Fed. 192; Watson v. Duykinek, 3 Johns. 335; The Kimball (Duncan v. Kimball) 3 Wall. 37, 18 L. ed. 50; Ogden v. New York Mut. Ins. Co. 35 N. Y. 418; Great Indian Peninsular R. Co. v. Turnbull, 53 L. T. N. S. 325, 1 Cab. & E. 595, 33 Week. Rep. 874, 5 Asp. Mar. L. Cas. 465; Richard v. The Gracie D. Chambers (E. D. N. Y.; unreported); New York & C. Mail

The Tornado (Ellis v. Atlantic Mut. Ins. Co.) 108 U. S. 342, 27 L. ed. 747, 2 Sup. Ct. Rep. 746; Semmes v. Hartford Ins. Co. (Semmes v. Hartford City F. Ins. Co.) 13 Wall. 158, 20 L. ed. 490; Tweddie Trading Co. v. James P. McDonnell Co. 114 Fed. 985; United States v. Dietrich, 126 Fed. 671; Esposito v. Bowden, 7 El. & Bl. 763, 119 Eng. Reprint, 'Freight for the said goods to be 1430, 27 L. J. Q. B. N. S. 17, 3 Jur. N. S. prepaid in full without discount re1209, 5 Week. Rep. 732; Brown v. De-tained and irrevocably ship and/or cargo lano, 12 Mass. 370; Lorillard v. Palmer, lost or not lost.'" 15 Johns. 14, 16 Johns. 348; Odlin v. Insurance Co. of Pa. 2 Wash. C. C. 312, Fed. Cas. No. 10,433; 9 Cyc. 630.

primary question is, as there, the suffi-
ciency of the clauses in the bill of lading
as a defense. In those cases we decided
that the bill of lading expressed the con-
tract of the parties and hence deter-
mined their rights and liabilities. [392]
And it is the safer reliance, the ac-
commodation of all the circumstances
that induced it. It was for the par-
ties to consider them, and to accept
their estimate is not to do injus-
tice, but accord to each the due of the
law, determined by their own judgment
and convention, which represented, we
may suppose, what there was of advan-
tage or disadvantage as well in the rates Argued December 13, 1918.
as in the risks.

donment of the voyage at a port of distress
or elsewhere, and that in case the ship shall
be prevented from reaching her destination
by war or the hostile act of any power the
stacle be removed, or discharge the goods
master may wait until the impeding ob-
into any depot, or at any convenient port,
or bring her cargo back to port of ship-
ment, where the ship's responsibility shall
cease, and that the carrier is absolved from
loss by arrest and restraint of princes,
rulers, or people.

It is asserted, however, that the ves

[For other cases, see Shipping, IV. c, 1, in Di

gest Sup. Ct. 1908.]

[No. 745.]

uary 13, 1919.

Decided Jan

ON A CERTIFICATE from the United

sel in this case did not break ground,
and that this fact distinguishes the case
from Nos. 449 and 450. The fact does
not deflect the principle of those cases.
It was not made to depend upon the fact
of breaking ground, but upon the bills
of lading, which provided for the pay-
ment of freight upon the shipment of
the goods, and the right to retain it
though the goods were not carried, their
carriage being prevented by causes be-swered in the affirmative.
yond the control of the carrier.

States Circuit Court of Appeals for the Second Circuit presenting the question whether a carrier by water may retain prepaid freight where the adventure was frustrated by the refusal of the Federal government to issue an export license, without which the war vessels of the European allies would not permit the vessel to proceed to destination. An

Therefore, upon the authority of those cases, the judgment of the Circuit Court of Appeals in this case is affirmed. So ordered.

Shipping

frustrated adventure - refusal of export license.

A vessel owner may retain the prepaid freight where the adventure is frustrated by the refusal of the Federal government to issue an export license, without which the war vessels of the European allies will not permit the vessel to proceed to destination, where the bill of lading provides that prepaid freight is to be considered as earned upon shipment of the goods and is to be retained by the vessel owner, vessel or cargo lost or not lost, or if there is a forced interruption or aban

Note. On the rights of party to a contract the performance of which is interfered with or prevented by war conditions or acts of government in the prosecution of war-see note to Allanwilde Transport Corp. v. Vacuum Oil Co. 3 A.L.R. 21.

The facts are stated in the opinion.

Mr. Clarence Bishop Smith argued the cause, and, with Mr. Charles S. Haight, filed a brief for the Steamship Bris:

The shipper cannot recover the freight which he has paid because the contract between the parties authorizes its retention.

The Gracie D. Chambers, C. C. A. 253 Fed. 182; A. Coker & Co. v. Limerick S. S. Co. 118 L. T. N. S. 726; Portland Flouring Mills Co. v. British & F. M. Ins. Co. 65 C. C. A. 344, 130 Fed. 860, 195 U. S. 629, 49 L. ed. 352, 25 Sup. Ct. Rep. 787; Pacific Coast Co. v. Reynolds, 52 C. C. A. 497, 114 Fed. 877; The Queensmore, 4 C. C. A. 157, 8 U. S. App. 287, 53 Fed. 1022; Burn Line v. United States & A. S. S. Co. 89 C. C. A. 278, 162 Fed. 298; The Appam, 243 Fed. 230; National Steam Nav. Co. v. International Paper Co. 154 C. C. A. 563, 241 Fed. 861; Parsons, Shipping, 210-214; 7 Am. & Eng. Enc. Law, 2d ed. 246; Watson v. Duykinck, 3 Johns. 335; The Kimball (Duncan v. Kimball) 3 Wall. 37, 18 L. ed. 50; Ogden v. New York Mut. Ins.

Co. 35 N. Y. 420.

The appellant's contention that the contract became illegal or dissolved by the act of the government, and that consequently the shipper can recover the freight, is unsound.

Horlock v. Beal [1916] 1 A. C. 486, 85 L. J. K. B. N. S. 602, 32 Times L. R.