A vessel bound on a voyage from Pensacola to Montevideo with a
cargo of lumber under a charter party, "the dangers of the seas,
fire and navigation always mutually excepted," was abandoned,
justifiably, in consequence of dangers of the seas and was
afterwards picked up by salvors and brought into Boston. The
master, who was at St. John, was notified and claimed the vessel
and cargo from the salvors, stating his intention to repair the
vessel and complete the voyage, to which cargo owners objected,
claiming that the voyage was abandoned and they were entitled to
the cargo and obtained an order for its sale. The circuit court
held that the master should have been allowed to complete the
voyage and earn freight and charged the cargo owners personally
with the net freight.
Held error, and that the abandonment
of the vessel by the master and crew gave the cargo owners the
right to refuse to go on with the voyage and that they were not to
be treated as guilty of breach of contract for preventing the
continuance of the voyage by their refusing to do so and procuring
the sale.
An open cessation of performance with the intent to do no more,
even if justified, excuses the other party from further performance
on his side.
The same principles which apply to the making of a contract
apply to the breach of it, and to nonperformance of the conditions
attached to the other side.
If there is no injustice, it is desirable that the maritime law
of this country and of England should agree.
Page 199 U. S. 120
The facts are stated in the opinion.
Page 199 U. S. 125
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case comes here by certiorari to the circuit Court of
Appeals. The decree in that court was made in a cause in which were
consolidated four suits: a libel for salvage against the Eliza
Lines, her cargo and freight; a libel for possession by the cargo
owners against the cargo; a libel by the master against cargo and
cargo owners for freight and general average, and a libel by a
bottomry lender against the vessel and freight.
The Eliza
Lines, a Norwegian bark, was bound on a voyage from Pensacola
to Montevideo with a cargo of lumber, under a charter party, "the
dangers of the seas, fire, and navigation always mutually
excepted." It was abandoned, justifiably, in consequence of dangers
of the seas, and was afterwards picked up by salvors and brought
into Boston on September 19, 1889. The master was notified by the
owners, and came on from St. John, New Brunswick, arriving on
September 21. The cargo owners
Page 199 U. S. 126
(Ward & Company) and the master both demanded possession of
the cargo from the salvors, but the salvors retained possession,
and filed their libel for salvage on September 26. The next day,
the master filed a claim for ship and cargo, and within an hour,
Ward & Company filed their claim for the cargo, as above
mentioned. On October 5, the vessel was delivered to the master,
and on October 18 the master moved for a delivery of the cargo to
him upon stipulation, in order to resume his voyage, while Ward
& Company moved that the cargo be sold on the ground that its
value was rapidly diminishing by reason of charges and costs. The
former motion was denied and the latter granted on November 16. On
November 27, the master filed his libel for freight and general
average. The circuit court, reversing the decision of the district
court, held that the master should have been allowed to complete
the voyage and earn freight, and charged the cargo owners
personally with the net freight that would have been earned, with
other particulars not necessary to mention. 61 F. 308, 102 F. 184.
The decree was affirmed with a slight variation by the circuit
Court of Appeals. 114 F. 307.
The question is whether the abandonment of the vessel by the
master and crew gave the cargo owners a right to refuse to go on
with the voyage in the circumstances disclosed -- in other words,
whether the cargo owners properly were treated as guilty of a
breach of contract for preventing the continuance of the voyage by
their refusal and by procuring a sale. It will be noticed that the
decree must stand on the ground that the contract was broken by the
cargo owners, and that the shipowners were entitled to recover
under it, although the voyage was not completed. The decree was not
upon a new contract, such as it was attempted to set up in
Hopper v. Burness, 1 C.P.D. 137, or upon the analogy of a
quantum meruit at common law, which was expressly
disavowed. The very foundation of a recovery upon the latter ground
is that the express contract is out of the way, but that a benefit
has been received which ought to be paid for. Therefore, in such a
case, the recovery cannot exceed
Page 199 U. S. 127
the benefit, as often has been explained in the books.
Gillis v. Cobe, 177 Mass. 584; Keener, Quasi-Contracts,
Ch. 4.
See Flaherty v. Doane, 1 Lowell 148, 150. In the
case at bar, while the district court allowed freight
pro
rata as a charge on the proceeds of the cargo, the circuit
Court of Appeals held the cargo owners personally for a sum much
exceeding that amount, and therefore much exceeding the benefit
actually received. It will not be necessary to consider the decree
of the district court, since that was not appealed from by the
cargo owners, and we shall not discuss the effect of the judicial
sale, as it is not necessary in the view which we take.
There is no doubt that the English decisions confidently assert
the cargo owner's right to refuse to go on. They may be read in the
reports, and there is no need to do more than to refer to them.
The Arno, 8 Asp.Mar.Cas. 5;
The Leptir, 5
Asp.Mar.Cas. 411;
The Argonaut, Shipping Gazette, Weekly
Summary, Dec. 5, 1884, p. 775;
The Cito, L.R. 7 P.D. 5;
The Kathleen, 4 Ad. & Ec. 269. The only point which
they leave open is whether, if the master should get the abandoned
vessel and cargo back from the salvors before the cargo owners had
declared an election to end the contract, he might in that way
revive his right to finish the voyage. On that point, it is enough
to say here that, if the English rule is right, then, even if there
is any such qualification to it, the exception must depend upon
something more substantial than a few minutes' priority in filing a
libel, when neither master nor cargo owner has possession either of
cargo or ship, as, plainly, neither had in this case.
The right of cargo owners to treat the contract as ended by the
abandonment of the ship was asserted much earlier than the English
cases by Judge Ware in
The Elizabeth & Jane, 1 Ware
41, Fed.Cas. No. 8,321, and earlier still by Mr. Story, before he
became a justice of this Court, in his Edition of Abbott on
Shipping (1810), pp. 338, 512, citing
Dunnett v. Tomhagen,
3 Johns. 154, and
Mason v. The
Blaireau, 2 Cranch 240. We see nothing in
The
Nathaniel Hooper, 3 Sumner 542, sufficient
Page 199 U. S. 128
to prove that he changed his opinion. That case is cited in 3
Kent Comm. 13th ed. 228, along with
Post v. Robertson, 1
Johns. 24, in which, and in
Dunnett v. Tomhagen, supra,
the Supreme Court of New York and Chief Justice Kent took the same
general view, subject to the question whether there might be a
recovery on a
quantum meruit when benefits were accepted
under the contract, in spite of a failure of complete performance.
See Caze v. Baltimore Ins.
Co., 7 Cranch 358,
11 U. S. 362; 3
Kent Comm. 229. Other cases are
Smith v. The Mansanito, 22
Fed.Cas. 594, No. 13,075.
The James Martin, 88 F. 649.
See also 3 Kent Comm. 196. In short, we are aware of no
decision in this country or in England before the present case
which casts any doubt upon the rule.
It was thought by the circuit court and circuit Court of Appeals
that the doctrine so unanimously sanctioned by so many of the most
eminent judges of this country and of England is unjust, and the
case was put of a long voyage nearly completed and the ship and
cargo subsequently brought by salvors intact to the port of
destination. But we are of opinion that there is no injustice in
holding that what excuses the ship excuses the cargo, and that the
rule is in accord with the general principles of contract. Subject
to the question whether the cargo owners broke their contract, it
seems to us more unjust to charge them personally, in favor of
those who failed to complete the voyage as contemplated, with a sum
much exceeding the benefit which the cargo owners received from
what was done. Of course, it is desirable, if there is no
injustice, that the maritime law of this country and of England
should agree.
To begin at a distance, a repudiation of a contract, amounting
to a breach, warrants the other party in going no further in
performance on his side.
Roehm v. Horst, 178 U. S.
1. But the same thing is true of an absolute repudiation
not amounting to a breach.
Frost v. Knight, L.R. 7 Exch.
111, 113;
Phillpotts v. Evans, 5 M. & W. 475, 477;
Ballou v. Billings, 136 Mass. 307, 309.
It appears to us, and we shall try to prove, that an
abandonment
Page 199 U. S. 129
of the ship must be regarded as a renunciation of the contract,
even if not a repudiation of its terms as binding. It is an overt
act which is more than an attempt to give up the voyage. It not
merely makes the completion of the voyage so improbable, by reason
of the helplessness in which the ship is left and the intent with
which the act is done, as practically to destroy the value of the
contract to the cargo owner,
see Swift & Co. v. United
States, 196, it is a present failure to do what the contract
requires if the purposes of the contract are to be carried out. The
requirement is shown by the fact that the abandonment would be a
cause of action unless justified. It not only would be a breach of
contract, but no one questions that it would authorize a rescission
of the contract on the other side, which not every breach of
contract does. That it would authorize rescission or refusal to
allow the master to change his mind if the vessel was saved shows
that a continuous intent and effort to go on with the voyage is an
essential condition to the obligation to pay freight. It shows what
needs no illustration -- that the continuous care of the master is
the main object of the cargo owner's interest in the contract. By
the general principles of contract, an open cessation of
performance, with the intent to do no more, even if justified,
excuses the other party from further performance on his side. The
principle is not peculiar to charter parties, it is illustrated in
other parts of the law.
See Roehm v. Horst, 178 U. S.
1.
In the case at bar the vessel was abandoned with the intent not
to return to her or to complete the voyage. This is admitted, if
admission be necessary, by the testimony of the master. Of course,
it is not disputed that the completion of the voyage and delivery
of the cargo are absolute conditions to the undertaking to pay
freight, by the express terms of the contract and the familiar rule
of law. 3 Kent, Comm. 220, 228. The master left ship and cargo to
their fate, and we cannot doubt, although it was denied, that,
after he had done so, if the cargo owners had been the salvors,
they could have treated the voyage as at an end. The ground must be
that the abandonment
Page 199 U. S. 130
was more than an attempt, or a mere offer of rescission, which
might be revoked by the master before acceptance, and that it was
an unequivocal departure from the conditions which the contract
imposed. If the abandonment had been unjustified and a breach of
contract, of course, it would not have ended the contract, but
would have left the choice whether to end it or not to the cargo
owner. If justified, the simplest view would be that it was so
because the contract authorized the master to end it when prevented
from performance by perils of the sea, and that the contract was
ended. But at all events, as control of the ship and voyage was
given up and never regained, the abandonment at least gave an
irrevocable power to the cargo owners to decline to be further
bound.
See, in addition to cases cited above, 3 Kent,
Comm.196. The opposite view must be that the master still is bound
to go on with the voyage notwithstanding his justifiable
abandonment, if a chance should turn up -- a view which leaves his
duties in a very ambiguous shape; or else that the master has the
choice, which gives the election to the party whose act has made
the trouble, as against the party that has done nothing and has had
nothing to say.
If it be true that, if, on the other hand, the master had
rejoined the ship before anyone else had taken possession, or had
got it back from the salvors before the cargo owners had been heard
from, he might have had a right to complete the voyage, the ground
must be that the law would not insist on a technical breach of
condition when there had been no substantial change of
circumstances and no harm done.
The argument on the other side consists largely in the attempt
to treat leaving the ship under stress of perils of the sea as not
distinguishable on principle from being torn bodily away from it by
tempest. This is one of the oldest fallacies of the law. The
difference between the two is the difference between an act and no
act. The distinction is well settled in the parallel instance of
duress by threats, as distinguished from overmastering physical
force applied to a man's body and imparting to it the motion sought
to be attributed to him. In the former case,
Page 199 U. S. 131
there is a choice and therefore an act, no less when the motive
commonly is recognized as very strong or even generally
overpowering, than when it is one which would affect the particular
person only, and not the public at large. It has been held on this
ground that duress created by fear of immediate death did not
excuse a trespass.
Gilbert v. Stone, Aleyn 35, Style, 72;
Scott v. Shepherd, 2 W.Bl. 892, 896.
See Miller v.
Horton, 152 Mass. 540, 547. It has been held that a similar
plea in the case of shipwrecked men at sea did not prevent the
killing of one of them being murder.
Queen v. Dudley, 14
Q.B.D. 273.
See United States v. Holmes, 1 Wall. Jr. 1. It
is clear that a contract induced by such fear is voidable only, not
void, and that the ground of avoidance being like fraud, that the
party has been subjected to an improper motive for action, when
that motive has been created by a stranger, and is unknown to the
party, the contract stands. Keilwey, 154a. pl. 3.
Fairbanks v.
Snow, 145 Mass. 153. So a conveyance induced by duress is
operative until avoided, and cannot be set aside when the property
has passed to a purchaser without notice.
Bainbrigge v.
Browne, 18 Ch.Div. 188, 197; 2 Wms. Vendor & Purch. 767;
Clark v. Pease, 41 N.H. 414. The distinction is as old as
the Roman law.
Tamen coactus volui. D. 4, 2.21, § 5; 1
Windscheid, Pandekten § 80.
The same principles which apply to the making of a contract
apply to the breach of it and to nonperformance of the conditions
attached to performance on the other side. The contract before us
by construction provides that an abandonment of the voyage in
consequence of the perils of the sea shall not be an actionable
breach, but it equally provides that a completion of the voyage
shall be an absolute condition to the right to freight. The same
absoluteness attaches the further condition implied from the first,
that the effort to complete the voyage shall not be given up
voluntarily midway.
The argument urged to the effect that the cargo's liability to
general average created a right to have the voyage finished,
however it might have been otherwise, does not need an extended
Page 199 U. S. 132
answer. The cargo owners had the same right to treat the
contract as ended as against a shipowner who had cut down a mast
that they would have had against one who had made no sacrifice for
the common good. The contract is the supreme source of mutual
rights, and cannot be overridden by the incidents of its
performance.
The case was brought here by the cargo owners to get rid, if
possible, of the personal liability imposed by the circuit court.
As this Court is of opinion that the personal liability should not
have been imposed, no other question needs consideration here.
Decree reversed.
MR. JUSTICE BROWN, with whom were MR. JUSTICE HARLAN, MR.
JUSTICE McKENNA, and MR. JUSTICE DAY, dissenting:
Underlying all the questions connected with the libel of Ward
& Company for the possession of the cargo, and that of
Andreasen, in the nature of a cross-libel against the cargo
in
rem, and against Ward & Company
in personam, for
freight, is the proposition that the abandonment of the vessel by
the master and crew operated as a dissolution of the contract of
affreightment, and authorized Ward & Company to reclaim
possession of the cargo, either freed altogether from any claim for
freight or upon the payment of a
pro rata freight to
Boston.
The general principles applicable to a contract of affreightment
are entirely well settled, but it may not be amiss to restate such
of them as bear upon the effect of an abandonment at sea, and
subsequent rescue of the vessel. The contract is an entire one, and
cannot be apportioned, unless by consent of the parties.
The
Nathaniel Hooper, 3 Sumner 542, 554;
Hunter v.
Prinsep, 10 East 378, 394;
Post v. Robertson, 1
Johns. 24, 26. From the moment the cargo is delivered to the
vessel, each is bound to the other for the performance of the
contract. The shipper cannot recover his cargo except upon the
payment of full freight.
Tindall v. Taylor, 4 Ellis &
Bl. 219. Neither can the vessel demand any portion of the freight
until the cargo is delivered at the port
Page 199 U. S. 133
of destination. If the vessel meet with disaster at sea, and put
into a port of refuge, she is entitled to retain the cargo for a
reasonable time for repairs, or to tranship it to another vessel,
in order that her freight may be earned.
The Soblomsten,
L.R. 1 Ad. & Ec. 293; 1 Parsons, Shipping 175, 231;
Cargo
ex Galam, Br. & L. 167, 178. If, however, the master of
the vessel is willing to surrender the cargo at an intermediate
port, and the shipper is willing to receive it, he may do so upon
payment of a
pro rata freight. In other words, the parties
may substitute a new contract for the original one. Neither party,
however, can be compelled to this course.
Post v.
Robertson, 1 Johns. 24, 27.
If it be once granted that, in case of shipwreck or other
disaster, the contract of affreightment is not dissolved, and the
authorities on this question, both in this country and in England,
settle this beyond controversy,
Cargo v. Galam, Br. &
L. 167;
Shipton v. Thornton, 9 Ad. & Ellis 314, 335,
it is difficult to see why, on principle, a compulsory abandonment
at sea should work a different result, provided the vessel be
ultimately rescued and taken into port. The abandonment is but a
feature of the disaster, and is no abandonment at all of the ship
and cargo in the sense in which that word is used in the law of
marine insurance, where a vessel, after such disaster, is abandoned
to the underwriters.
Thornely v. Hebson, 2 B. & Ald.
513, 519. In such case the abandonment is a voluntary and complete
surrender of the ship and cargo, and of all right, title, and
interest thereto, and the underwriter becomes the owner, with all
the rights and liabilities incident to such ownership. It is true
it has been held that the underwriter may decline to accept such
abandonment, and may repair the vessel and return it to the owner,
but that does not change the character of the abandonment.
The same may be said of the throwing overboard of portions of a
cargo of perishable articles, on account of rottenness,
putrescence, or threatened danger to the rest of the cargo. But the
case under consideration is more nearly analogous to the jettison
of valuable cargo for the purpose of relieving the ship or
preventing her from drifting ashore. This has never been
Page 199 U. S. 134
supposed to work any change in the ownership or an abandonment
of the property, although it may subject it to the claim of
salvors, who may subsequently rescue it.
The Kathleen,
L.R. 4 Ad. & Ec. 269, 278. The abandonment of the ship and
cargo in this case did not operate as a transfer of the property to
anyone who should rescue it, but was an involuntary abandonment of
the voyage, a relinquishment of any present intention to continue
it, and a flight from the vessel to save the lives of the crew, and
for the purpose of obtaining a supply of fresh water. If the
abandonment have the effect claimed for it, of dissolving the
contract of affreightment, logically it would have that effect from
the moment the master and crew were transferred to the schooner
which took them off; but it will not be doubted that, if, within an
hour, a steam tug had hove in sight and offered to take the
abandoned vessel in tow, the rights of the master and owner would
have remained unimpaired, except for the claim for salvage. In our
view, it would make no difference whether the master had hired a
steam tug to tow her to a place of safety, or whether, after the
master and crew had left her, a vessel had come along, picked her
up, and towed or navigated her to a harbor of refuge. Granting that
the master and crew left her with no intention of returning, such
intention was caused by the belief on his part that she was a total
loss. But if the circumstances were so changed that she did not
become such, we see no reason why he was not entitled to change his
mind in that particular, provided that he acted with sufficient
promptness, and intervening rights had not accrued.
The facts of this case show that, as soon as the master learned
of the rescue of the vessel, he went to Boston, arriving September
21, two days after the bark, went aboard the vessel, announced his
intention of completing the voyage, and, the day after the libel
for salvage was filed, interposed a claim for ship and cargo, in
which he alleged that he was entitled to the possession of the
cargo of hard pine lumber then on board of her, having given bills
of lading for it, and being obliged by the terms of such bills of
lading to deliver said cargo at Montevideo,
Page 199 U. S. 135
in the province of Uruguay. There was manifestly no lack of
diligence here, although the agents of Ward & Company filed a
claim to the cargo later on the same day, and on October 18 filed a
libel for possession, and moved for a sale of the cargo. The
question was thus squarely presented as to which of these parties
was entitled to the cargo, which was manifestly dependent upon the
other question, whether the contract of affreightment was still in
existence. That there was no definite intention of abandoning the
lien of the ship upon the cargo is shown by the fact that, as soon
as the master was informed that the vessel had been rescued, he
took immediate steps to recover possession of the cargo.
The American cases upon the effect of abandonment of a vessel at
sea upon the contract of affreightment are not of any great value,
as the subject is not fully discussed in any of them, and the
question was not presented in the aspect in which it is before us
in this case. In
The Elizabeth and Jane, 1 Ware 41, the
petition was for wages, which were denied upon the ground that the
vessel had been abandoned and no freight had been earned. The case
of
The Nathaniel Hooper, 3 Sumner 542, is still more
indefinite in its treatment of the subject herein involved. So, in
the case of
Dunnett v. Tomhagen, 3 Johns. 154, wages were
denied to the seamen because no freight was earned on the homeward
voyage, no part of the cargo being delivered by the ship.
In
Post v. Robertson, 1 Johns. 24, the vessel was
abandoned after performing three-fourths of her homeward voyage,
was rescued by salvors, and brought into port, where the cargo was
sold and the proceeds paid to the salvors and owners. It was held
that this was not such a delivery of the cargo as would entitle the
shipowners to maintain an action on the charter party for full
freight. The case turned largely upon the form of action --
covenant -- and the court was inclined to the opinion that an
action might have lain for a
quantum meruit.
In none of these cases was the question discussed as to the
power of the master to reclaim possession of the cargo at the
Page 199 U. S. 136
port of refuge in order to earn his freight, it being seemingly
assumed that the wreck and abandonment of the vessel had dissolved
all contracts, and especially that of the seamen, who attempted to
enforce their lien upon the cargo before freight had been earned by
its delivery at the port of destination.
It may be frankly admitted that the English cases lay down the
rule that the abandonment of the vessel puts an end to the contract
of affreightment, or at least it gives the owner of the cargo an
option to do so. The case of
The Kathleen, L.R. 4 Ad.
& Ec. 269, is the earliest upon the subject, and asserts a
principle which has been followed in the subsequent English cases.
The
Kathleen had left Charleston with a cargo of cotton
bound for Bremen, and when in the English channel suffered a
collision with another vessel, for which the
Kathleen was
in nowise to blame. On the following day, she was abandoned by her
crew, and rescued by salvors, taken to Dover, and sued for salvage.
The owners of the
Kathleen applied for leave to bond the
cargo in the salvage suits in order that they might carry the same
to its destination. The court ordered the cargo sold on the ground
that it was deteriorating fast through the damage sustained by salt
water. A suit for freight was subsequently instituted by the owners
of the vessel. Sir Robert Phillimore held that the original
contract between the owners of the ship and cargo was at an end,
and that no freight was due, and, in answer to the claim of
pro
rata freight, observed that the title to such
pro
rata freight must arise out of a new contract with the
shipowner, to which both parties assent, and as neither party
assented,
pro rata freight was not due. In view of the
fact that at least seven-eighths of the voyage had been performed,
that the collision which put an end to the voyage was not in
anywise the fault of the
Kathleen, that she was taken into
a port in the immediate neighborhood, and that the vessel stood
ready to take the cargo on to Bremen and earn her freight -- we are
not favorably impressed with the natural justice of a decision
which denied even
pro rata freight to the master.
The case of
The Cito, L.R. 7 P.D. 5, was much like that
of
The
Page 199 U. S. 137
Kathleen, which was followed by the Court of Appeals in
an opinion by Lord Justice Brett, subsequently Lord Esher. The
Cito, on a voyage from Wilmington to Rotterdam with a
cargo of resin in barrels was, owing to the peril of the sea,
abandoned by her crew off the American coast. She was subsequently
picked up and navigated to Plymouth, and there arrested for
salvage. The court declined to hold that a mere abandonment at sea
put an end to a contract of affreightment, since the abandonment
might be wrongful, and in such a case the owner of the cargo might
sue the ship upon its contract; but it held that the abandonment
was so far binding upon the shipowner as to allow the cargo owner
to treat such contract as abandoned. The court also held that the
court below was right in ordering the cargo to be delivered to the
owners upon their giving bail for salvage. Some stress was laid
upon the fact that, before the shipowners sought the possession of
the cargo, the cargo owners had intervened and applied for it.
In the case of
The Leptir, 5 Asp.M.L.C. 411, the
salving vessel took off the crew of the vessel in distress, refused
to allow her own crew to return, and the two vessels were navigated
into a port of refuge. It was held that there was no abandonment,
that the case of the
Cito did not apply, and the court
decreed for a
pro rata freight.
In
The Argonaut, unreported but published in the
Shipping Gazette of December 5, 1884, a vessel on a voyage from
Halifax to Liverpool was abandoned by her crew and picked up by
salvors off the English coast. On being taken to Plymouth, the
owners demanded the cargo, but the court ordered it carried to
Liverpool, where it obtained a higher price than the owner could
have gotten for it at Plymouth. It seems to have been carried in
the ship by her own crew from Plymouth to Liverpool. The admiralty
court allowed a
quantum meruit freight, but its decree was
reversed by the Court of Appeals, which held that the ship was
entitled to nothing.
The prior cases were, however, pushed to their logical
conclusion in that of
The Arno, decided by the Court of
Appeals,
Page 199 U. S. 138
8 Asp. M.L.. 5. The vessel, while on a voyage from New York to
Liverpool, was, owing to stress of weather, abandoned at sea on
March 31, and three days thereafter was picked up by a salvage
crew, and taken to Liverpool, her port of destination. The
admiralty court held that, although the cargo was delivered by the
vessel on which it had been originally shipped at the port of
destination, the act of abandoning her so clearly indicated the
intention of the master not to carry out the contract as to entitle
the owners of the cargo to treat that act as putting an end to it.
It was held that no freight was recoverable. It appeared that, on
April 11, as soon as the owner of the
Arno heard of the
abandonment, he made an arrangement with the salvors, sent a tug to
meet the vessel, which returned with her to Liverpool on April 25.
It was intimated that if, before notice to the shipowner of the
election of the cargo owner to treat the contract as at an end, he
had been able to resume possession of the ship and cargo, he might
perhaps have been able to annul the abandonment; but, not having
done so, the cargo owner had a right to treat the abandonment as a
dissolution of the contract. The judgment was affirmed by the Court
of Appeals. It is true that, in this case, the cargo was not
delivered at the port of destination by the crew of the ship, but
by the salvor's crew. It was, however delivered by the ship
herself, and we see no reason why the salvor's crew might not have
been treated as the agent of the ship in that particular; but the
court held to the hard and fast rule of the
Cito, that the
abandonment of a ship
ipso facto put an end to the
contract of affreightment, notwithstanding the fact that the cargo
was delivered by the same ship and at the port of destination.
Under such circumstances the denial of all freight seems to have
worked a great hardship.
Although the House of Lords has not yet spoken upon the subject,
these cases must be regarded as settling the English rule that a
compulsory abandonment of a vessel at sea puts an end to the
contract of affreightment, and disentitles her owners to recover
any portion of her freight, notwithstanding that she
Page 199 U. S. 139
and her cargo may be picked up by salvors, and taken into an
intermediate port, or even to the port of discharge.
That the soundness of this doctrine has not been accepted
without challenge is evident not only from certain expressions by
some of the English writers, but notably by Dr. Wendt, in his work
on Maritime Legislation, wherein he speaks of the Cito as having
caused much surprise among those interested in maritime commerce,
and comments upon it as follows (3d edition, page 629):
"So long as this
Cito decision stands it gives the
cargo owner the full option to take advantage of the common
misfortune for the purpose of evading the contract entered into by
him. This, I confidently assert, is opposed to every principle of
law and justice. A contract, by the law of every civilized country,
holds good until both parties to it, of their own free will, agree
that it shall not be carried out. Now, how can the abandonment of a
ship in such a case as the
Cito be taken to be an
expression of an agreement on the part of the owners of the vessel
to cancel the contract? The action of the crew in leaving a vessel
to save their lives is not an act of will at all; they have to
desert their vessel under the pressure of a
vis major. How
can this be taken to show an agreement on the part of the shipowner
to abandon his part of the contract? He has no power to exercise
any option at all. If when the vessel is recovered and the owner
again requires [acquires?] the power to exercise his will in the
matter, he then elects not to carry out his contract, and the cargo
owner agrees, well and good; the contract is put an end to by
mutual consent. To assume, however, such consent on the part of one
of the contracting parties from an action forced on his servants by
a power which cannot be resisted, seems to me to be a doctrine
utterly opposed to common sense."
The ruling of the English courts that even a delivery of the
cargo at the port of destination does not entitle the shipowners to
any freight whatever seems a somewhat startling innovation upon the
ancient rule of the admiralty, that a loss occasioned
Page 199 U. S. 140
by a peril of the sea shall be borne as a common burden, and
shared proportionately by the ship, cargo, and freight, as well as
a departure from the general rule that neither party can put an end
to a contract without the assent of the other.
We consider the sounder doctrine to be that the compulsory
abandonment of a ship at sea should be treated merely as a
relinquishment of the voyage and of any present intention to
continue it; but that, if the vessel be subsequently rescued and
taken into an intermediate port, the master retains the same right
given to him by an ordinary disaster at sea, unattended by an
abandonment, to resume possession of the ship and cargo, subject,
of course, to the claim of salvors, and carry the latter forward to
its destination, provided he act with promptness and before any
intervening rights had accrued.
The opinion of the court assumes that the abandonment of the
vessel was a repudiation and a rescission of the contract of
affreightment, when in fact it was involuntary, designed only to
save the lives of the crew, and had as little effect upon the
contract as if the vessel had met with a disaster not involving an
abandonment, and put into a port of safety for repairs. It
apparently ignores the principle that, to constitute a rescission,
there must be the same intent to rescind as there was originally to
contract, and that the intent to rescind should not be inferred
without some act which points unmistakably to that conclusion.
There is no more reason for holding that the abandonment of the
ship was a rescission of the contract of affreightment than that
such abandonment was a renunciation of all the owner's title to the
ship in case she were subsequently rescued. Whether, if Ward &
Company had insisted upon the ship carrying out her contract, they
might, in case of refusal, have had a cause of action, it is
unnecessary to consider. In view of the severity of the storm, and
of the danger of remaining on board, the effect of her abandonment
on the contract probably never entered the mind of the master. Such
abandonment was not a failure to perform the contract in any
particular, since it was the result of an overwhelming necessity;
and, if the vessel were
Page 199 U. S. 141
rescued, the master might repair and continue the voyage, or
tranship the cargo to another vessel after the extent of the damage
had been ascertained. He might indeed have supposed that the ship
was irretrievably lost; but both parties took the chance of its
being rescued and taken to a port of safety, when the question
would then arise whether prudence required her to be repaired, or
the cargo transhipped.
In such case, the same question arises as if the ship had met
with a disaster, and been navigated into a port by her own crew. We
think it makes no difference in principle whether a tug is hired by
the master to take his ship into port, or a tug in the employment
of another person comes along and picks her up. If the cargo owner
had himself rescued the vessel, he might doubtless have declared
the contract rescinded, but it is quite otherwise if the vessel be
rescued by her own master and crew, or be taken in tow by a third
party.
Applying the doctrine of the opinion, it would follow (and such
are the English cases of
The Kathleen and
The
Arno) that, if the vessel be abandoned near her port of
destination, and towed into such port by a salving tug, she loses
her whole freight, and cannot even recover on a
quantum
meruit, though the whole voyage be performed.
This conclusion seems so irreconcilable with natural justice
that we are constrained to dissent.