The
Styria, an Austrian steamship sailing from Trieste
via Sicilian ports to New York, took on board at Port Empedocle,
Sicily, a quantity of sulphur for New York. Before sailing, the
master learned that war had broken out between Spain and the United
States, and as sulphur was an article contraband of war, he had the
sulphur all unloaded and warehoused at Port Empedocle before
sailing. This Court holds that the master of the
Styria
was justified in relanding and warehousing the contraband portion
of the cargo, and that in so doing, he had reasonable regard for
the interests of both ship and cargo.
This Court does not think that, in the subsequent circumstances,
it was the master's duty to reship that cargo, and resume his
voyage with the sulphur on board.
Four libels in admiralty were filed in the District Court of the
United States for the Southern District of New York against the
steamship
Styria, to recover damages for the failure
duly
Page 186 U. S. 2
to deliver at New York different lots of sulphur, owned by the
libellants, shipped on board the
Styria at Port Empedocle,
the port of the Town of Girgenti, in Sicily, April 21-24, 1898, and
shortly afterwards relanded at the port of shipment because it had
become contraband of war. The facts were substantially undisputed,
and were as follows:
The
Styria was an Austrian steamship, owned by the
Austro-Americana Steamship Company, and Burrill & Sons of
Glasgow were her managing agents. She sailed April 16, 1898, with
some cargo, from Trieste via Sicilian ports for New York, and on
April 21 reached Port Empedocle, Sicily, her second loading port.
Her master began at once to load on board the sulphur in question,
and by April 24 it was all on board, bills of lading therefor
(containing the provisions copied in the margin
*) had been signed,
and the vessel cleared from the custom-house, and ready to proceed
on her voyage to Messina and Palermo for a cargo of fruit, and
thence to New York.
In the meantime, unknown to the master, war had broken out
between the United States and Spain. On April 20, Congress passed,
and the President approved, the joint resolution recognizing the
freedom and independence of Cuba, and demanding that the government
of Spain relinquish its authority in the island and withdraw its
land and naval forces. 30 Stat. 738. On the same day, the Spanish
minister in Washington demanded and received his passports. On
April 21, the American
Page 186 U. S. 3
minister at Madrid was informed that the diplomatic relations
between the two governments were broken off, and he left that same
day. On April 22, the first overt act of war, the capture of the
Spanish merchant steamship,
The Buena Ventura, was
committed.
The Buena Ventura, 175 U.
S. 384. On April 25, Congress passed an act declaring
that war had existed since April 21. 30 Stat. 364, c. 189. On April
23, the Queen Regent of Spain issued a decree announcing the
existence of war with the United States; authorizing the Royal
Navy, "in order to capture the enemy's ships, to confiscate the
enemy's merchandise under their own flag, and contraband of war
under any flag," to exercise the right of search on the high seas
and in the territorial waters of the enemy, including, under the
denomination of contraband, "powder, sulphur, saltpetre, dynamite,
and every kind of explosive," and charging the Minister of state
and the Minister of Marine with the fulfillment of this decree.
On April 23, the master of the
Styria received a
telegram from Burrill & Sons, her managing agents, directing
him not to sail until further orders, and on April 25 another
telegram directing him "to discharge whole cargo as quickly as
possible." The master had by this time learned that war existed,
and that sulphur was contraband. He knew that his course would take
him within a few miles of the Spanish coast, in order to sight the
lighthouses, and he had seen in an Italian newspaper that Spanish
men-of-war were looking for contraband goods, and that a sulphur
ship had been taken. In obedience to the instructions from the
managing agents, as well as because he saw in the newspapers that
the sulphur was contraband of war and he considered it unsafe to
carry it, the master began to reland the sulphur at Port Empedocle
on April 27, and had it all unloaded and warehoused by May 7. At
the beginning of the unloading on April 27, he gave notice in
writing to the shippers, and to the consignees named in the bills
of lading, that "on finding risky my passage to New York with the
actual sulphur cargo, for facts of war," he was discharging the
cargo for the account and risk of the shippers,
"under care of the mercantile agent, Mr. William Peirce,
depositing the same in the
Page 186 U. S. 4
warehouses of Mr. Zenobia Urso here, and, if these are not
sufficient, in the warehouses of the British consulate, faculty
which I have in force in the bills of lading."
On the same day he gave notice in writing to the Austrian consul
at Girgenti "that, by order of the representative of my owners, for
facts of war," he was discharging and warehousing the sulphur from
the
Styria, for whom it might concern, and also gave
notice in writing, through the Austrian consul, to the director
general of the customs at Girgenti, that, having loaded the sulphur
on the
Styria,
"and sulphur being declared contraband of war, war actually
existing between Spain and the United States of America, in behalf
of the present laws, I deem it in the interest of all whom it might
concern to discharge the whole sulphur here on receiving the
necessary permit from the customs;"
and asking that duties might be remitted on reshipment. On April
30 and May 2, the shippers of the sulphur protested against the
unloading, and on May 3 and 5, respectively, the master replied
that he,
"in discharging the goods, acted as was his right, and in the
best interest of the goods, which is confirmed by the fact,
published in the papers, and discussed in the Italian Parliament,
that sulphur had been declared contraband of war by one of the
belligerent powers."
And at the conclusion of the unloading, on May 7, the master
gave notice to the shippers that, as soon as they paid the expense
incurred on their account, the sulphur would be delivered to them,
and to the consignees that the sulphur was lying in the warehouses
at Port Empedocle at the risk and expense of whom it might
concern.
The exportation of sulphur is one of the principal industries of
the Island of Sicily, and immediately after the declaration of war,
Sicilian merchants urged the Italian government to request Spain to
exempt it from the list of contraband. The
Giornale di
Sicilia, a newspaper of Palermo, each issue of which had a
double date, and was read by the master of the
Styria on
the day of its publication, contained, according to the
translations in the record, the following information on the
subject: on April 24-25, 1898, it was stated that the merchants of
Messina had requested their deputy in the Italian Parliament to
Page 186 U. S. 5
urge the government to induce Spain to exclude sulphur from
being considered contraband of war, and that the deputy had been
assured that the Minister for Foreign Affairs would telegraph to
the Italian ambassador in Madrid to obtain what was required from
the Spanish authorities. On April 26-27, it was stated that Spain
included sulphur in the list of contraband of war, and that the
Italian Council of Ministers had decided to induce Spain to revoke
its decision. On April 27-28, it was stated that an Italian deputy
had asked the Minister of Foreign Affairs in Parliament whether
sulphur had been excluded from the list of contraband of war. On
April 29-30, it was stated that the Spanish government had not yet
pronounced itself upon the Italian demand to exclude sulphur from
the list of contraband of war; that the Italian ambassador had been
promised an immediate decision; that the Spanish Minister of Marine
seemed decidedly adverse to the demand; but that it was hoped it
would be conceded. The paper of May 1-2 contained, under date of
May 1, from an anonymous correspondent at Rome, these
statements:
"Although the official advice has not yet arrived, I assure you
absolutely that the Spanish government has determined to exclude
sulphur from the list of contraband of war. The
Popolo
Romano, confirming my information, says that the relative
decree is imminent which has been provoked by the insistence of our
ambassador in Madrid, who obtained from Sagasta that he should
unite the Council of Ministers, in which, notwithstanding the
opposition of the Minister of Marine, the opinion prevailed to
exclude sulphur from contraband. . . . The
Official
Gazette will publish the decision regarding sulphur. Meantime,
the Spanish government has already ordered the commanders of its
ships to allow sulphur to pass free."
The paper of May 3-4 contained, under date of May 3, from its
Roman correspondent, this statement:
"The Department of Foreign Affairs decided not to publish in the
Official Gazette the Spanish government's decision
regarding the exclusion of sulphur from contraband of war. But the
Minister of the Interior sent a circular to all the prefects in
Sicily informing them of the orders relative to the free navigation
of cargoes of sulphur."
The
Giornale di Sicilia of May 5-6, 1898, contained,
under
Page 186 U. S. 6
the heading "Sulphur is not War Contraband," the following:
"From the Minister of Agriculture, Industry, and Commerce, the
following telegram has been sent:"
"Chamber of Commerce, Palermo: I inform the Chamber of Commerce,
for the useful information of merchants, that, by the decree of
April 23d of the Spanish government are considered, as contraband
of war, arms, projectiles, fuses, powder, sulphur, nitre, dynamite,
explosives, uniforms, ornaments, saddles, engines for ships,
derricks, screws, boilers, and all that is necessary for the
construction, repair, and armament of men of war. I would also
state that, in consequence of our request, the Spanish government
has given notice to the commanders of its vessels to let sulphur
pass free. The Minister, Coeco Ortu."
The master also testified that, on the evening of May 7, he saw
a notice from the Austrian consul saying that there had been a
communication from the prefect that it was agreed between Spain and
Italy that the Spanish ships had instructions to let sulphur go
free, but "it was not given officially, only a matter of verbal
arrangement. Of course, the verbal arrangement you can't
believe."
Early in the morning of May 8, the master sailed, without the
sulphur, to Palermo, and thence to Messina, took on board at each
place a cargo of fruit, and on June 3 arrived at New York. Soon
after the arrival there, these libels were filed.
The
Giornale di Sicilia of May 7-8, 1898 (which did not
reach the master before he sailed from Port Empedocle), contained,
under the heading "The Exportation of Sulphur may be continued,"
the following:
"The Prefettura also with its communication confirms to us that
the exportation of sulphur, notwithstanding the Spanish-American
war, may continue. Indeed, the Spanish government has officially
declared, in the circular to the commandants of their ships, that
sulphur is not to be considered as contraband of war. An official
and public declaration is lacking, but there is no doubt that
sulphur will pass freely."
On May 10, 1898, the Foreign Office in London, answering a
telegram from Burrill & Sons, wrote them:
"Spanish government state that decree already issued cannot be
altered, but that,
Page 186 U. S. 7
as temporary measure, Naval Departments have been ordered not to
treat sulphur as contraband of war. They lay stress on the fact
that the measure is temporary only."
It appeared from inquiries made by the Foreign Office in London,
and by the American Embassy in Italy, in June and July, 1898, that
the actual state of facts was as follows: the Spanish Minister for
Foreign Affairs verbally stated to the Italian ambassador at
Madrid, on April 29, 1898, and to the British ambassador at Madrid,
on May 6, 1898, that, while the decree of April 23 could not be
altered, orders would be given to the Naval Departments, as a
temporary measure, not to treat sulphur as contraband of war. On
May 31, 1898, the Spanish Minister, in a note to the British
ambassador at Madrid, stated that the treatment of sulphur as
contraband of war would be temporarily suspended; that the orders
which had been given to that effect would not be revoked without
due notice, and that the eventual revocation of the orders would
not in any case apply to vessels at sea in ignorance of it, while
the necessary time would be given for the execution of pending
contracts. It did not appear that Spain ever made any public
announcement of the modification of her intentions in regard to the
treatment of sulphur, or ever agreed to let sulphur go free
permanently.
A vessel which lay alongside the
Styria at Port
Empedocle, loading sulphur, sailed before she did, and arrived at
New York in safety on May 19. Two other vessels laden with sulphur
came safely from the Sicilian port of Licata to the United States
about the same time. And no sulphur ships were taken by Spain
during the war.
Presently after the signing of the Peace Protocol between the
United States and Spain on August 12, 1898, the parties to these
cases stipulated in writing that the steamship company should
forward the sulphur from Port Empedocle by the first available
vessel to New York, and deliver it to the consignees, upon the
terms and for the freight specified in the original bills of
lading; that the sulphur, upon arrival, should be sold at current
market rates, and the proceeds, less charges incurred, be credited
on account of the damages, if any, recovered by the libellants;
that, if the
Styria was justified in relanding and
Page 186 U. S. 8
storing the sulphur as was done, the company should have a lien
upon the sulphur for the charges against it in Sicily, and that, if
it was not so justified, the sulphur should be free from any
charges except freight.
Under this stipulation, the steamship company paid the expenses
of storage in Sicily, and reloaded the sulphur and brought it to
New York in its steamship Abazzia, sailing September 4, and
arriving September 30, and there delivered it to the consignees,
who paid the freight as agreed, and sold the sulphur at the current
market rates. And the company filed cross-libels for the charges in
Sicily.
The district court found for the libellants, holding that the
discharge of the cargo was too hasty and precipitate, and not
justified by the facts of the case, and entered decrees for the
libellants in small amounts and dismissed the cross-libels. 93 F.
474, 95 F. 698.
Both parties appealed to the circuit court of appeals, which
held that the sulphur was rightly discharged, but should have been
reloaded before the
Styria left Port Empedocle, and
entered decrees for the libellants for increased damages, and upon
the cross-libels for the expenses of unloading, warehousing, and
reloading in Sicily. 101 F. 728.
The cases were then brought to this Court by writs of
certiorari, granted on petitions of both parties. 179 U.S. 683, 179
U.S. 685.
Page 186 U. S. 9
MR. JUSTICE SHIRAS delivered the opinion of the Court.
The master of a ship is the person who is entrusted with the
care and management of it, and the great trust reposed in him by
the owners and the great authority which the law has vested in him
require on his part and for his own sake, no less than for the
interest of his employers, the utmost fidelity and attention.
Abbott, Shipping, 7th Am. ed. 167.
It was well said by the district judge in the present case,
that,
"though exceptions . . . noted in the bill of lading contemplate
circumstances of war, and are therefore applicable in the
extraordinary circumstances that arose, still the carrier is not
thereby relieved from the duty of acting with reasonable prudence
for the interests of all concerned. The master, as the agent of all
concerned, is still bound to a prudent regard for the interests of
the cargo, and 'must endeavor to hold the balance evenly' between
ship and cargo when their interests conflict."
"All will agree that the master must act in good faith and
exercise his best discretion for the benefit of all concerned."
New England Insurance
Company v. The Sarah, 13 Pet. 400;
The
Amelie, 6 Wall. 27.
The good faith of the master and his reasonable exercise of
discretion must be considered and determined in the light of the
facts in each particular case. The term
discretion implies
the absence of a hard-and-fast rule. The establishment of a clearly
defined rule of action would be the end of
discretion, and
yet discretion should not be a word for arbitrary will or
inconsiderate action. "Discretion means the equitable decision of
what is just and proper under the circumstances." Bouvier, Law
Dict. "Discretion means the liberty or power of acting without
other control than one's own judgment." Webster's Dict.
Courts, in passing upon such questions, should endeavor to put
themselves in the position of the actors in the transaction, and
not be ready to find that the course actually pursued was
blameworthy because the results were unfortunate; what those
concerned have a right to demand of a master when confronted with
unexpected emergencies is not an infallible, but a deliberate
Page 186 U. S. 10
and considerate, judgment. Mere good faith will not excuse him
if his decision turns out to have been wrong, but the result is not
always a true criterion whether a man pursued a prudent course or
not.
Holladay v.
Kennard, 12 Wall. 254.
Applying these principles to the facts of the present case, we
have to inquire whether the conduct of the master of the
Styria showed a reasonable exercise of judgment, having
regard to the rights of the owners of the vessel and those of the
several owners of cargo.
That the situation was a difficult one is obvious, and is shown
by the fact that the learned judges of the courts below, though
having the advantage of a full disclosure of the facts and of able
discussion by counsel, disagreed on the critical question in the
case -- whether the master was right in deciding that it was his
duty to reland and store the contraband goods.
As heretofore stated, the
Styria was an Austrian
steamship, owned by the Austro-Americana Steamship Company, and
Burrill & Sons of Glasgow were her managing agents. She sailed
April 16, 1898, with some cargo, from Trieste via Sicilian ports
for New York, and on April 21 reached Port Empedocle, Sicily, her
second loading port. Her master began at once to load on board
different lots of sulphur owned by the libellants, and by April 24
it was all on board, bills of lading therefor had been signed, and
the vessel cleared from the customhouse, and was ready to proceed
on her voyage to Messina and Palermo for additional cargo of fruit,
and thence to New York. On April 27, the master, having learned
that war between Spain and the United States had broken out and
being aware that sulphur was a contraband article, began to reland
the sulphur at Port Empedocle, and had it all unloaded and
warehoused by May 7. He gave notice in writing to the shippers and
to the consignees named in the bills of lading that, "on finding
risky my passage to New York with the actual sulphur cargo for
facts of war," he was discharging that portion of his cargo. On the
same day, he gave notice in writing to the Austrian consul at
Girgenti "that, by order of the representative of my owners, for
facts of war," he was discharging and warehousing the sulphur from
the
Styria, for whom it might concern, and
Page 186 U. S. 11
also gave notice in writing, through the Austrian consul, to the
director general of the customs at Girgenti that, having loaded the
sulphur on the
Styria,
"and sulphur being declared contraband of war, war actually
existing between Spain and the United States of America, in behalf
of the present laws, I deem it in the interest of all whom it might
concern to discharge the whole sulphur here on receiving the
necessary permit from the customs,"
and asking that duties might be remitted on reshipment. On April
30 and May 2, the shippers of the sulphur protested against the
unloading, and on May 3 and 5, respectively, the master replied
that he,
"in discharging the goods, acted as was his right, and in the
best interest of the goods -- which is confirmed by the fact,
published in the papers, and discussed in the Italian Parliament,
that sulphur had been declared contraband of war by one of the
belligerent powers."
And at the conclusion of the unloading, on May 7, the master
gave notice to the shippers that, as soon as they paid the expense
incurred on their account, the sulphur would be delivered to them,
and to the consignees that the sulphur was lying in the warehouses
at Port Empedocle at the risk and expense of whom it might
concern.
As both the district court and the circuit court of appeals held
that, within the provisions of the bills of lading, the master had
the right to decide on the course to pursue, whether to discharge
the sulphur, or to refuse to sail until there was some reasonable
assurance of safety, or to immediately proceed on his voyage, it is
unnecessary for us to discuss the meaning of the bills of lading in
that regard, but only to determine whether the decision of the
master to discharge charge and warehouse the goods was a reasonable
exercise of the discretion vested in him.
The learned judge of the district court held that, while the
bills of lading contemplated circumstances of war, and were
therefore applicable, yet that the master's right under them could
not be exercised without waiting a reasonable time to see whether
the danger of continuing the voyage with the sulphur might not be
removed by negotiation between the Italian and Spanish governments.
He thus expressed himself:
Page 186 U. S. 12
"The sulphur being generally regarded as contraband of war, and
also within the express terms of the Spanish proclamation, a voyage
through the Mediterranean, past the coast of Spain and through the
Straits of Gibraltar, would presumably be pecuniarily dangerous to
the cargo, even though the vessel, as a neutral, might not be
liable to condemnation as prize. In case of seizure, however, the
shipowner would suffer from the considerable delay incident to the
seizure, though she were ultimately released. Except, therefore,
for the negotiations immediately entered on for procuring an
exception of sulphur from contraband, I have no doubt that it would
have been both the right and the duty of the master, for the
interests of the cargo as well as of the ship, to refuse to sail
with this cargo after clearing on April 24, until there was some
reasonable assurance of safety.
See The San Roman, L.R. 3
Adm. & Eccl. 583, when there was a delay of three months. The
discharge and storage of the cargo, however, was an act necessarily
involving considerable expense to the shipper or consignee, and
before imposing such an expense upon the cargo, the master, in my
judgment, was bound, in view of the daily reports of current
negotiations and the expectations of the exception of sulphur, to
wait a reasonable period for satisfactory assurances in that
regard. . . . I must find, therefore, that the ship was not
justified by clauses (a) and (b) of the bill of lading . . . in
discharging and storing the cargo on account of the shippers, as
she did, between April 27th and May 7th; that, by the 10th of May,
there was reasonable assurance that it would be safe to go on with
the voyage, and that this was not an unreasonable time for the ship
to wait under the facts and circumstances currently known in Sicily
at that time."
93 F. 474, 95 F. 698.
The circuit court of appeals book a different view of the duty
of the master to suspend his voyage and await the uncertain results
of the rumored negotiations, and held that he had a right to unload
the cargo of sulphur when he did. The following quotations
sufficiently show the reasoning of the court:
"It seems manifest that, upon the outbreak of war, a voyage with
contraband on board to the port of one of the belligerents
Page 186 U. S. 13
might fairly be regarded as a risky piece of business. The
suggestion made upon the argument that the naval power of Spain was
not such as would induce a 'man of ordinary courage, judgment, and
experience' to hesitate to proceed is of no weight. We may not
attribute to the captain of the
Styria knowledge gained
after the event, and indeed this Court is not advised of any
historical facts which would warrant the conclusion that it was not
entirely within the power of Spain, during the first few months of
the war, to arrest and search every vessel westward bound through
the Straits of Gibraltar and picking her way along by the
lighthouses on the Spanish coast. . . . We do not find it necessary
to discuss this branch of the case, because we find in clause (a)
abundant authority for a refusal to carry forward the sulphur while
such a condition of affairs existed as that already described as
being generally known to exist when the discharge began on April
27. There is no logical difference between a restraint of princes
and rulers exercised by a cruiser, with power to visit, search, and
seize, lying two leagues off Port Empedocle, and that exercised by
a half dozen cruisers patrolling a narrow strait through which, if
the voyage be made, the vessel must pass. Under such circumstances,
the owner of contraband cargo (loaded as this was before war broke
out) could with reason insist that it would be gross negligence on
the part of the ship to bring his cargo forward. Moreover, it would
certainly be unreasonable to require the ship to remain in port
with the contraband cargo on board until the war should cease -- a
period of months, possibly years. The owners of other cargo not
contraband have rights as much, if not more, entitled to
consideration than those of the owners who have been unfortunate
enough to ship the cargo which has produced the risk. . . .
Inasmuch as the master, where the contract was made in time of
peace, could properly decline to carry forward a cargo which by the
subsequent breaking out of war had become contraband, we fail to
see why he should not have the right to land such contraband cargo,
with all proper precautions as to safekeeping, thus leaving his
ship free to discharge its obligations to innocent cargo without
risk or delay by reason of an actual arrest, which would be caused
only by the presence
Page 186 U. S. 14
of such contraband cargo. The ship made no contract to carry
contraband of war to the port of a belligerent, and should not be
held to the obligations of a contract into which she has never
entered. We understand that the district court reached this same
conclusion, but found the ship in fault because she did not wait a
reasonable period to see if there might not be some reasonable
assurance of safety, and held that 'the commencement of the
discharge on the 27th was too hasty and precipitate.' This brings
us to the next branch of the case."
"When two nations formally proclaim the existence of a state of
war between themselves with all the solemnity observed in this
instance, it would seem to be going too far to say that parties
whose contracts are affected thereby should wait some indefinite
time, which a court shall find reasonable, in a vague expectation
that the belligerents may think better of it and make peace. A
situation is quite conceivable where delay might fairly be
required. Thus, the minister of one power or the other might demand
his passports, or the day named in an ultimatum might pass without
compliance with its requirements, or a squadron of the war vessels
of one power might impress seamen from the deck of the war vessel
of another power, as the
Carnaticand her consorts did with
the
Baltimore in 1798, or the war vessel of one power
encountering the war vessel of another upon the high seas might
pour broadside after broadside into her, as the
Leopard
did with the
Chesapeake in 1807 -- any one of which acts
would seem to import the imminence, if not the actual existence, of
war, and yet might fall short of being such authoritative evidence
of a state of belligerency as would justify a master in treating
any part of his cargo as being thereby made contraband. But the
situation shown here was a very different one. Both nations had
united in proclaiming to the whole world that they were at war, and
we know of no reason why the master of any vessel of a neutral
nation was bound to wait twenty-four hours, or twenty-four days, or
twenty-four weeks, to see if the two belligerents would not settle
their differences."
"As soon as he learned that war was declared, the master knew
that the cargo he had taken on board at Port Empedocle was
contraband. 'I knew,' says he, 'that sulphur is to make
gunpowder.
Page 186 U. S. 15
Everybody knows that. . . . I thought it must be contraband.' We
should have some doubts as to the efficiency of a master for
international commerce who did not know that sulphur was contraband
of war. It certainly should be a safe assumption for the master of
a neutral vessel to make that he cannot carry such cargo to the
ports of one belligerent without risking its seizure by the other,
and, in the absence of special circumstances, there would seem to
be no necessity to wait for further assurance in that regard. In
the case at bar, however, there were special circumstances which
will be next considered."
"The exportation of sulphur is one of the greatest industries of
the island of Sicily, and the Italian government was naturally
solicitous that the trade in sulphur with the United States should
not be interfered with. It now appears in the record, by reports
obtained from diplomatic sources, that, shortly after the
proclamation of the Queen Regent, negotiations were opened by the
Italian government to secure a modification of its provisions so
that sulphur should not be considered contraband of war. The
Spanish government declined to alter the decree, but on April 29 at
Madrid, the Spanish Minister for Foreign Affairs 'verbally'
[
sic: orally?] stated to the Italian ambassador that
orders would be given to the Naval Departments, as a temporary
measure, not to treat sulphur as contraband of war. The same
statement was made by the Spanish Minister for Foreign Affairs to
the British ambassador on May 6. On May 31, the same Minister
stated in an official note to both the Italian and the British
ambassadors that the treatment by Spain of sulphur as contraband of
war would be temporarily suspended, and that the order which had
been given to that effect would not be revoked without due
notice."
"Not being in telephonic communication with the chancellery of
the embassy at Madrid, the master of the
Styria was not
advised of these transactions at the moment they occurred, and his
conduct is to be judged not in the light of exact knowledge
acquired after the event, but by such information as may have been
available for him at the time and place. As we have seen, he knew
certainly on April 27, and probably on April 26,
Page 186 U. S. 16
that war had been declared, and that his sulphur cargo was
contraband; that he was therefore entitled to land and store it,
thus leaving his ship free to carry out her obligations to the rest
of the cargo. On April 25 the
Giornale di Sicilia, a
newspaper published at Palermo, and which the captain saw from day
to day, stated that Messina merchants had asked their Parliamentary
deputy to urge the government to cooperate to exclude brimstone
from being considered contraband. From day to day thereafter, the
paper was filled with reports and rumors as to the progress of this
movement to secure exemption. But down to the 6th of May, not one
of these reports bore the stamp of authority, and no one vouched
for their accuracy. The statements in the clippings from the
newspaper which have been printed in the record are merely the
expression of the beliefs and expectations of its correspondents in
Rome, or elsewhere, furnishing copy to a paper published in a
community where an intense interest was felt in having sulphur
exempted. There was no reason why it should be exempted. It is a
variety of merchandise such as always has been contraband. Its
exportation to the United States might well be considered an 'aid'
to Spain's enemy. No one appears to have suggested that the United
States concede the same exemption. On the one hand, it might be
urged that it would please the government and people of Italy to
grant the request, but, on the other hand, in the case of
merchandise so highly contraband, neither the Italian government
nor people could justly take offense if Spain should insist on
exercising the rights which international law accords to every
belligerent. Enlightened by the information now made known, we can
see that the hopeful prognostications of the writers for the
Journal of Sicily were well founded, but there was nothing
to give any such assurance at the time they appeared. We should
hesitate to hold that it was the duty of a master under similar
circumstances to delay action on the expectation that a belligerent
would voluntarily abandon one of its weapons, on no better
assurance that such action would be taken than the statements of
anonymous and irresponsible contributors to a newspaper published
in a community which is extremely solicitous that such action be
taken."
101 F. 728.
Page 186 U. S. 17
We concur in these views of the circuit court of appeals, and in
the conclusion thereby reached, that the master of the
Styria was justified in relanding and warehousing the
contraband portion of his cargo, and that, in so doing, he had
reasonable regard for the interests of both ship and cargo.
Several leading authorities are cited on this branch of the case
in the brief for the
Styria, and which we shall briefly
notice.
Geipel v. Smith, L.R. 7 Q.B. 404, was a case where the
defendants had agreed to load a cargo of coal in England and sail
to Hamburg. After the charter party had been made, war broke out
between France and Germany, and the port of Hamburg was blockaded
by the French fleet. The defendants refused to carry out the
charter party, relying on an exception of restraints of princes and
rulers. It was held that they were justified in their refusal. And
as to the contention that the defendants were bound to be in
readiness to carry the cargo as soon as the blockade should be
raised, Cockburn, C.J., observed:
"But it would be monstrous to say that in such case the parties
must wait -- for the obligation must be mutual, till the restraint
be taken off -- the shipper with cargo which might be perishable or
its market value destroyed -- the shipowner with his ship lying
idle, possibly rotting;"
and Lush, J., said:
"A State of war must be presumed to be likely to continue so
long and so to disturb the commerce of merchants as to defeat and
destroy the object of a commercial adventure like this."
In
Nobel's Explosives Co. v. Jenkins, L.R. 1896, 2 Q.B.
326, the plaintiff's goods, which were dynamite and contraband of
war, had been placed upon a general ship of the defendant for
carriage from London to Yokahama, a bill of lading containing
similar clauses with those in the case of the
Styria. The
ship also contained noncontraband goods belonging to other
shippers. In the course of the voyage, she arrived at Hong Kong,
and while there, war was declared between China and Japan. There
were at the time Chinese war vessels in and around the port of Hong
Kong, and it was found that, if the master had attempted to sail
thence with the plaintiff's goods on board, there would have been
danger of their being seized and confiscated. The master
Page 186 U. S. 18
cabled to his owners for advice, and they instructed him to land
the cargo at Hong Kong. This was done. The plaintiffs forwarded the
dynamite by another steamer several months later, and then brought
an action to recover from the defendants the amount of freight
which they had to pay for so forwarding, and also for the other
expenses for relanding and reshipping the cargo at Hong Kong. The
opinion of the court, delivered by Mathew, J., is so pertinent to
our case that we extract a considerable portion of it:
"The main ground of defense was the exception in the bill of
lading of 'restraint of princes, rulers, or people.' A large body
of evidence was laid before me to show that if the vessel sailed
with the goods on board, she would, in all probability, be stopped
and searched. It was certain in that case that the goods would have
been confiscated, and quite uncertain what course the captors would
take with the ship and the rest of the cargo. I am satisfied that,
if the master had continued the voyage with the goods on board, he
would have been acting recklessly. It was argued for the plaintiffs
that the clause did not apply unless there was a direct and
specific action upon the goods by sovereign authority. It was said
that the fear of seizure, however well founded, was not a
restraint, and that something in the nature of a seizure was
necessary. But this argument is disposed of by the cases of
Geipel v. Smith, L.R. 7 Q.B. 404, and
Rodoconachi v.
Elliott, L.R. 9 C.P. 518. The goods were as effectually
stopped at Hong Kong as if there had been an express order from the
Chinese government that contraband of war should be landed. The
analogy of a restraint by a blockade or embargo seems to me
sufficiently close. The warships of the Chinese government were in
such a position as to render the sailing of the steamer with
contraband of war on board a matter of great danger, though she
might have got away safely. The restraint was not temporary, as was
contended by the plaintiff's counsel. There was no reason to expect
that the obstacle in the way of the vessel could be removed in any
reasonable time. I find that the captain, in refusing to carry the
goods farther, acted reasonably and prudently, and that the
delivery of the goods at Yokahama was prevented by restraint of
princes and rulers within the meaning of the exception. . . . "
Page 186 U. S. 19
"But, apart from the terms of the bill of lading, it seems to me
that the conduct of the captain would be justified by reference to
the duty imposed upon him to take reasonable care of the goods
entrusted to him. Whether he has discharged that duty must depend
upon the circumstances of each case, and here, if the goods had
been carried forward, there was every reason to believe that the
ship would be detained and the goods of the plaintiffs confiscated.
In the words of Willes, J., in
Notara v. Henderson, L.R. 7
Q.B. 225, at p. 237,"
"a fair allowance ought to be made for the difficulties in which
the master may be involved. . . . The place, the season, the
opportunity and means at hand, the interests of other persons
concerned in the adventure and whom it might be unfair to delay for
the sake of the part of the cargo in peril -- in short, all
circumstances affecting risk, trouble, delay, and inconvenience
must be taken into account."
"I am of opinion that the course taken by the captain in landing
the goods and landing them in safe custody was a proper discharge
of his duty. It was said that the master was not an agent for the
shippers, because they had protested against the discharge of the
goods. But even if this information had reached the captain, it
would not have divested him of his original authority and
discretion as agent in any emergency for the owners of the ship and
the other owners of the cargo."
A suggestion of the district judge, and repeated in the argument
for the libellants, to the effect that the master was guided in his
action in discharging the contraband cargo by a telegram from
Burrill & Sons, the managing agents in London, rather than by
his own judgment on all the circumstances known to him at the time;
that, if he had been left to exercise his own judgment, he would
not have discharged the cargo, especially not at the time he did,
does not appear to us to be supported by the testimony of the
captain, which is the only evidence on the subject. It is true that
he did state that he acted under instructions of the agents, but he
also said, in reply to questions put on cross-examination, as
follows:
"Now, captain, you say that you put this brimstone ashore on
instructions of the managing owners? Answer. Yes, and also because
I knew that the war was there, and I acted on the
Page 186 U. S. 20
bill of lading clause. Question. You have testified, haven't
you, that all this you did by orders? Answer. No. The principal
reason was because I was ordered; and, secondly, that I had the
bill of lading clause that fully authorized me when I deemed it not
safe to proceed with the cargo that was declared contraband of
war."
Without transcribing all of the master's testimony, but having
read and weighed it, we are of opinion that it clearly shows that,
while he carried out the instructions of the agents, his judgment,
on the facts confronting him, was that it was not safe for him to
proceed with the contraband cargo, nor proper to await indefinitely
for the uncertain results pending negotiations between Italy and
Spain. His conduct, as we have already said, had due regard to the
interests of all concerned in the ship and in the cargo, both that
which was contraband and that which was not so. So far as the
shipowners were concerned, he had the approval of the managing
agents; so far as the shippers and consignees were concerned, he
acted upon his own judgment, exercised, apparently in good faith,
on their behalf. In the case of
Nobel's Explosives Co. v.
Jenkins, just cited, the same facts appeared -- namely that
the master consulted the owners of the ship before he acted, but
also acted in reference to the duty imposed upon him to take
reasonable care of the goods entrusted to him. The master, in
either case, would have acted imprudently if he had not secured the
approval of the shipowners, if it were possible to get it before
the emergency was over, and that all that can be said is that there
was a concurrence of judgment between the ship agents and the
master as to what was the proper course to pursue.
But, while we concur with the conclusion of the circuit court of
appeals that the master acted discreetly in landing and storing the
contraband portion of the cargo when and as he did, we cannot
accept the other conclusion of that court that, in the subsequent
circumstances, it was the master's duty to reship the cargo and
resume his voyage with the sulphur on board. Indeed, the facts and
reasoning which brought the court to its first seem to us to be
quite inconsistent with its latter conclusion. In its opinion,
heretofore quoted, the court said that it
Page 186 U. S. 21
was not the duty of the master
"to delay action on the expectation that a belligerent would
voluntarily abandon one of its weapons on no better assurance that
such action would be taken than the statements of anonymous and
irresponsible contributors to a newspaper published in a community
which is extremely solicitous that such action be taken."
Yet the court thought that, on May 6, the situation had changed,
and that the publication in a newspaper, purporting to be from the
Italian Minister of Agriculture, Industry, and Commerce, that the
Spanish government had given notice to the commanders of its
vessels to let sulphur pass free was an official declaration, upon
the strength of which the master ought to have reshipped the
sulphur. That publication, under the date of May 5 and 6, was as
follows:
"Chamber of Commerce, Palermo: I inform the Chamber of Commerce,
for the useful information of merchants that by the decree of April
23 of the Spanish government are considered as contraband of war
arms, projectiles, fuses, powder, sulphur. . . . I could also state
that, in consequence of our request, the Spanish government has
given notice to the commanders of its vessels to let sulphur go
free."
The publication of May 7 and 8 was as follows:
"The Prefettura, also, with its communication confirms to us
that the exportation of sulphur, notwithstanding the
Spanish-American war, may continue. Indeed, the Spanish government
has officially declared in the circular to the commandants of their
ships, that sulphur is not to be considered as contraband of war.
An official and public declaration is lacking, but there is no
doubt that sulphur will pass freely."
It must be observed that these assurances did not come from any
Spanish, but from Italian, sources. It was for the interest of the
Italians to continue to export sulphur, and to give the impression
that it could be done with security to the carrying vessels, and
all statements from Italian sources must be weighed with reference
to that fact. In the meantime, on May 7, the
Styria had
sailed, and the master testified that, when he was clearing the
ship to leave on the 7th of May, that he saw a notice from the
consul to say that there was a communication from the prefect that
it was agreed between Italy and Spain that
Page 186 U. S. 22
sulphur would not be taken, that Spanish vessels had
instructions to let it go free, saying:
"It was not given officially only a matter of verbal
arrangement. Of course, the verbal arrangement you cannot believe.
. . . On the 7th, in the evening, about eight o'clock, and I
already had my clearances."
And he further testified, in reply to a question by libellant's
counsel, as follows:
"Question. But the day before you sailed, on the 7th, you did
read in the papers that the governments had come to an agreement --
to an understanding?"
"Answer. Yes -- not to an understanding, not to a safe
understanding, but a temporary understanding, you know."
"Question. To the effect that sulphur temporarily would not be
treated as contraband of war?"
"Answer. Yes."
"Question. In spite of the previous proclamation, was it
not?"
"Answer. Yes, but the papers said, not officially confirmed, you
see. That meant, of course, they could withdraw it at any
moment."
"Question. The newspapers in which you read about these things,
were what papers?"
"Answer. I could not tell you. I believe the Sicilian Courier; I
don't know; something like that; the paper published in Palermo --
the largest paper published in Palermo."
From this it appears that, when the
Styria sailed on
the evening of May 7 the only information that the captain had was
that the newspapers said that a temporary verbal arrangement had
been made between Italy and Spain that sulphur might go free, but
that the captain's opinion was that a mere verbal arrangement could
not be relied on, and that the statements contained in the
newspapers could be withdrawn at any moment.
Giving to the evidence every reasonable intendment, it falls far
short, in our opinion, of making it the master's duty to change his
arrangements to sail on the evening of the 7th of May. The Spanish
proclamation of April 23, declaring sulphur to be contraband, had
not been withdrawn, and it is evident that the master had no right,
in justice to the other cargo owners, to make a longer delay. A
perishable cargo of fruit was awaiting the vessel at Palermo, and
no one could foretell what the result of the negotiations would be.
The master and the ship cannot reasonably be charged with knowledge
of subsequent events. And when they are examined they do not
show
Page 186 U. S. 23
that, within a reasonable period, any change in affairs was
disclosed that would have made it safe beyond question to have
sailed with the contraband cargo on board. It was not until May 10
that the British government, replying to Burrill & Sons'
previous application for information, telegraphed that orders had
been given not to treat sulphur for the present as contraband of
war. And by telegram of that date it was further stated that the
Spanish government states that "decree already issued cannot be
altered," but that, as "temporary measure," naval departments have
been ordered not to treat sulphur as contraband of war, "but they
lay stress on the fact that the measure is temporary only."
Moreover, it does not appear when such orders were actually
given, nor that they had been transmitted to war vessels which had
sailed, under the directions of the proclamation of April 23,
before such alleged orders were given. It was not until May 31 that
the Spanish minister stated, in a note to the English ambassador at
Madrid, that the treatment by Spain of sulphur as contraband of war
would be temporarily suspended and that the order which had been
given to that effect would not be revoked without due notice. It
does not appear that any formal agreement was ever made between
Spain and Italy, or any other government, that the proclamation of
April 23 declaring sulphur contraband of war was withdrawn. And it
is mere matter of conjecture whether, if the
Styria had
sailed even as late as May 10 with sulphur on board, and had been
arrested by a Spanish war vessel which had not received orders
countermanding the proclamation, the sulphur would not have been
confiscated by a Spanish prize court. In any event, there was the
liability of such an arrest and of the incident delay to both
vessel and cargo.
Without protracting the discussion, we are of the opinion that
the master was justified in landing and storing the cargo that had
become contraband by reason of the outbreak of the war between
Spain and the United States, and by the Spanish proclamation of
April 23; that, having acted reasonably with due regard to the
interest of all concerned in so doing, it was not made his duty, by
the facts brought to his notice, to reship the sulphur on the
Styria and further delay his voyage.
Page 186 U. S. 24
The sulphur was subsequently, in pursuance of an agreement in
writing, after the signing of the peace protocol between the United
States and Spain, forwarded on the steamship
Abbazia,
belonging to the owners of the
Styria, to the port of New
York. Several questions arose in the courts below under the terms
of that agreement and chiefly having reference to the measure of
damages in case that the vessel was held liable. But as, for the
reasons given, we hold that the vessel was not liable, those
questions do not call for our consideration.
The decrees of the district court and of the circuit court
of appeals sustaining the libels of the respective libellants are
hereby reversed, the decrees of the circuit court of appeals
reversing the decrees of the district court dismissing the
respective cross-libels are hereby affirmed, and the causes are
remanded to the district court with directions to take further
proceedings in conformity with the opinion of this Court.
* To be delivered at the port of New York, "restraints of
princes and rulers or people" and other specified perils
"excepted; with liberty (in event of steamer putting back to
this, or into any other port, or otherwise being prevented from any
cause from commencing or proceeding in the ordinary course of her
voyage) to ship or transship the goods by any other steamer."
"In case of blockade or interdict of the port of discharge, or
if, without such blockade or interdict, the master shall consider
it unsafe, for any reason, to enter or discharge cargo there, he is
to have option of landing the goods at any other port which he may
consider safe at shipper's risk and expense, and on the goods being
placed in charge of any mercantile agent or of British consul, and
a letter being put into the post office, addressed to the shipper
and consignee, if named, stating the landing and with whom
deposited, the goods to be at the shipper's risk and expense, and
the master and owners discharged from all responsibility."
