The Harriman
76 U.S. 161 (1869)

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U.S. Supreme Court

The Harriman, 76 U.S. 9 Wall. 161 161 (1869)

The Harriman

76 U.S. (9 Wall.) 161

Syllabus

Performance of a contract of charter party to proceed to a distant port specified, made during a war and for the obvious purpose of furnishing articles to one of the parties to it, held not dispensed with by the fact, learned in the course of the voyage, that the whole purpose of the voyage was defeated by the changed condition of military operations, the language of the charter party having been absolute in its terms and without provision for any contingency.

During the recent war between Spain and the Republics of Chili and Peru, the Spanish fleet being engaged in active hostilities in the South American waters against the ports of the enemy, required supplies of steam coal, and vessels were taken up on charter in San Francisco to convey cargoes for delivery at sea to the vessels of the fleet in aid of the hostile operations of blockade and bombardment of the Chilian ports.

Among these vessels taken up by persons watching the operations of the Spanish fleet was the ship B. L. Harriman, which was engaged in this service by a charter party, under date of May 4th, 1866, entered into between one C. J. Jansen, her owner, a merchant of San Francisco, and a certain Emeric, as freighter, also a merchant of that city.

The ship engaged her whole capacity to the freighter, and to take no cargo except from him or his agent, he stipulating

Page 76 U. S. 162

to furnish a cargo of 786 tons of steam coal (already laden on board) and to pay

"for the use of said vessel during the voyage aforesaid, $15 per ton, one-half to be paid here to C. J. Jansen of San Francisco, two days after the sailing of the vessel, and the other half to C. J. Jansen, of San Francisco, on receipt of cancelled bill of lading that the coal has been delivered."

The owner stipulated for the freighting and chartering of the vessel

"for a voyage from San Francisco to Cobija, Bolivia, or other ports in the Pacific, the port of discharge to be named before the vessel sails from San Francisco, such instructions to be given by letter in triplicate, which will contain the privilege which is hereby given, that if the vessel proceeds direct by the instructions given to Valparaiso, the commanding officer of the Spanish navy will have the right to receive only a part of the cargo, the whole, or none, and to send her, if he desires, to another port in Chili, Peru, or the Chincha Islands, and in that case, the vessel will immediately proceed to the port which will be named by said commanding officer, and there complete her discharge."

The letter of instructions provided for in the charter party was given by the freighter to the master of the ship, under date of May 14, 1866, and says:

"I hereby name you the port of Valparaiso, Chili, as the first port you have to proceed to on leaving San Francisco, and when there, to report yourself to the commanding officer of the Spanish navy, who will have the right &c."

(pursuing the privilege contained in the charter party).

The instructions proceed:

"I herewith hand you a letter for the commanding officer of the Spanish navy at Valparaiso which contains the bill of lading of your entire cargo of coal, endorsed to his order, a duplicate of this charter party, and of this letter."

On May 17th, 1866, before the ship sailed, the freighter addressed another letter of instructions to the master containing

Page 76 U. S. 163

a copy of some instructions which he had himself received from Panama, and requesting the master to follow them so far as he could. They were thus:

"On receipt of this letter, if you have not attended to all our outstanding orders, you are requested to suspend operations until further ordered, including even the last one thousand tons of coal, for it is more than possible that the naval forces down there will have changed their base of operations. In case, however, you should have taken up a vessel before the present reaches you, then you must instruct the ship to seek after the fleet between the port of Valparaiso and the Chinchas."

On the 19th of May, the freighter gave to the master the liberty to call at the Chincha Islands, if wind and weather or other circumstances favored his making them without prejudicing the freighter's rights under the charter party and instructions. These islands are about 1200 miles north of Valparaiso, to which place, it will be remembered, that by the principal letter of instructions the freighter had directed the master to go.

After the ship sailed, the owner wrote a letter to the freighter, in which he says:

"In your charter of the ship B. L. Harriman, there is no provision made for the possibility of there being nobody to receive her (the ship's cargo) on arrival, nor do I know that the captain of the Harriman had your private instructions on this point. At the time of making the charter, we could hardly contemplate anything of the kind, hence the omission, and wish you will make some provision in the event such should be the case, and instruct me how to act, that I may communicate same to Captain Swenson."

During the period of this transaction, war existed between Spain and Chili. The cargo was intended for the admiral of the Spanish fleet, then supposed to be operating against Valparaiso. The ship sailed from San Francisco May 22, and on May 24 the fleet left the coast of Chili and went to parts unknown, and did not return there. The ship arrived at the Chinchas

Page 76 U. S. 164

August 3, 1866, and was there informed of the bombardment of Callao by the Spanish fleet May 2, that the fleet had been badly shattered and had sailed away; that a regular mail steamer from Valparaiso reported at the Chinchas that all was quiet at Valparaiso and that nothing was known of the fleet. The master also proved that the coal would have been seized at the Chinchas if he had betrayed the objects of the voyage, as the feeling was very bitter, and that he believed the coal would have been instantly seized at Valparaiso.

The ship returned to San Francisco without having ever gone past the Chincha Islands. Being now in San Francisco, the owner offered to deliver the cargo there to the freighter, on payment of freight according to the charter party. Payment of freight was refused by the freighter, and the cargo was demanded by him, which was refused except on payment of freight. The owner sold the cargo, and the freighter libeled the ship for the value of the cargo, and to recover back the amount paid under the charter party at the outset of the voyage, as so much freight paid in advance. The owner justified the sale under his lien for freight, claiming the unpaid charter money and a return freight at the same rate for the home voyage.

The district court sustained the owner's right and lien for the unpaid charter money, but rejected the claim for freight on the return voyage, and, as a result gave a decree against the vessel for the balance of the proceeds in the owner's hands from the sale of the cargo, after satisfying the lien as allowed.

The circuit court rejected the right and lien of the owner to the charter freight, and gave a decree for the proceeds of the cargo, sold, and the charter money paid at the outset of the voyage.

The claimant appealed to this Court.

Page 76 U. S. 167

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