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
MR. JUSTICE SWAYNE stated the case, and delivered the opinion of
the Court.
This is an appeal in admiralty from the decree of the Circuit
Court of the United States for the District of California.
The charter party, which lies at the foundation of the
controversy bears date on the 4th of May, 1866. The parties to it
were Jansen, the claimant, and owner of the ship, and Emerick, the
freighter. Both parties were merchants of San Francisco. The entire
capacity of the ship was engaged to the freighter. He stipulated to
furnish her a cargo of
Page 76 U. S. 168
786 tons of steam coal, and to pay
"for the use of said vessel during the voyage aforesaid, $15 per
ton in United States gold coin, one-half to be paid here to C. J.
Jansen, of San Francisco, two days after the sailing of the vessel,
less two and one-half percent discount for cash, 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 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."
In pursuance of the condition of the charter party, Emerick, on
the 14th of May, 1866, addressed a letter to Swenson, the master,
in which he said:
"I hereby name you the port of Valparaiso, Chili, as the first
port which 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 to take only a part of your
cargo of coal, the entire cargo, or none, and if he desires, to
send you to another port in Chili, Peru, or the Chincha Islands, in
which case you will have to proceed immediately to the port named
by said commanding officer, and there complete your discharge,
these conditions and privileges being part of the charter party. 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."
On the 17th of May, Emerick addressed another letter to the
master in which he gave a copy of the instructions he had received
from Panama, which were as follows:
"On receipt of this letter, if you have not attended to all our
outstanding orders,
Page 76 U. S. 169
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 operation. 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."
He added: "As far as it is in your power, you are requested by
me to follow the above instructions." On the 19th day of May,
Emerick gave the master permission to make the Chincha Islands if
circumstances should be favorable, without, however, prejudicing
his "rights under the charter party, and instructions."
On the 22d of May, the vessel left San Francisco for the port of
Valparaiso. She was freighted according to the charter party. On
the 16th of June following, Jansen said to Emerick by letter of
that date,
"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."
Emerick made no reply. The ship proceeded to the Chincha
Islands, and returned thence to San Francisco. Captain Swenson, in
his protest, says that on the 4th of August he took a pilot on
board and ran in near to the southernmost of those islands, and
"lay in close to the land." He went ashore and learned that the
Spanish fleet had hauled off from the Chilian coast and gone upon
an unknown destination. After diligent inquiry, he became satisfied
that any attempt to find the fleet would be "impracticable and
fruitless." He became satisfied also that it was necessary to
return at once to San Francisco, and took his departure the same
day on his return voyage. He considered his original
Page 76 U. S. 170
voyage broken up by the withdrawal of the Spanish fleet and the
absence from Valparaiso of its commander, the consignee of his
cargo. Upon the return of the vessel, Emerick refused to pay the
balance of the freight money. Jansen thereupon landed and sold the
cargo. Emerick filed this libel, seeking thereby to recover back
the freight money he had paid and the value of the cargo. The owner
proved that at the time the charter party was entered into, war
existed between Spain and Chili; that the cargo was intended for
the admiral of the Spanish fleet, then supposed to be operating
against Valparaiso; that on the 24th of May, the Spanish fleet left
the coast of Chili and went to parts unknown, and did not return
there. He proved by the master the facts stated in his protest, and
further that he was informed at the Chincha Islands of the
bombardment of Callao by the Spanish fleet; that the fleet had been
badly shattered, and had sailed away. The master feared his coal
would be seized at the Chincha Islands if he betrayed the object of
his voyage. The feeling there was very bitter. He believed the coal
would have been instantly seized at Valparaiso.
Thus the case stood upon the proofs. The district court decreed
for the owner. The circuit court decreed against him, and he has
brought the case to this Court for review.
In settling the rights of the parties, the inquiries which
demand our attention are what was the contract between them? Was it
fulfilled by the ship, and if not was the nonfulfillment excused by
fault or waiver on the part of the charterer or by other facts
disclosed in the proofs, so as to entitle the owner to all or any
part of the freight money stipulated for in the charter party?
According to that instrument, the destination of the vessel was
to be fixed by letter before her departure upon her voyage. If it
were Valparaiso, the commanding officer there of the Spanish fleet
was to be the consignee, with the right to direct the ship to
proceed further and deliver all or a part of her cargo elsewhere.
By the charterer's letter of the 14th
Page 76 U. S. 171
of May, Valparaiso was designated as the port to which she was
first to proceed.
This destination was not subsequently changed either in fact or
according to the understanding of the parties. Emerick's letter to
the master of the 17th of June, requested him to search for the
Spanish fleet between Valparaiso and the Chincha Islands, but it
gave no intimation of a purpose or willingness that he should
abandon the voyage to Valparaiso, as originally prescribed, and
certainly no authority to that effect.
The charterer's letter of the 19th of May, authorizing the
master to make the Chincha Islands, expressly reserved his rights
"under the charter party and instructions."
Jansen's letter of the 16th of June admits that the vessel had
sailed for Valparaiso and asks instructions as to the disposition
of the cargo if the Spanish commander should have left there before
her arrival. The master states in his protest that his destination,
upon leaving San Francisco, was Valparaiso. He went no further than
the Chincha Islands, which were short of that point about twelve
hundred miles. He made no search for the fleet between the two
points, and gave no reason for breaking up the voyage and not
proceeding to the port of delivery but the probable absence of the
consignee and the peril there to ship and cargo.
The existence of the war was known to both parties when the
contract was entered into. The owner made no provision against any
contingency. His engagement was simple, direct, and unconditional
that the vessel should proceed to Valparaiso. The presence or
absence of the consignee was immaterial. If absent, it was the
right and duty of the master to place the cargo in store. [
Footnote 1] The contract was not
fulfilled. For this the shipper is in nowise responsible. Such are
the relations of the parties.
The contract of affreightment is governed by the same principles
as other special contracts. There are none to which these
principles are more stringently applied. The
Page 76 U. S. 172
contract is an entirety, and where there has been no complete
fulfillment on one side and no fault or waiver on the other, no
freight money can be recovered. Mr. Justice Story says this is the
result of all the cases. [
Footnote
2]
In
Paradine v. Jane, [
Footnote 3] the court said:
"When the party by his own contract creates a duty or charge
upon himself he is bound to make it good if he may notwithstanding
any accident by inevitable necessity, because he might have guarded
against it by his contract."
Such has always been the rule of the common law. If a lessee
covenant to repair, and the house is burned down, he is bound to
rebuild. If a party covenant to build a bridge and keep it in
repair for a specified time, and it be swept away by an
extraordinary flood before the time expires, he must replace it. A
party agreed to secure in England for another the exclusive right
to make, use, and vend in the Canadas a machine covered by a patent
from the United States. It was found that this could only be done
by an act of the British Parliament. As such a grant, however
improbable, was not impossible, it was held that the case was
within the rule laid down in
Paradine v. Jane, and that
the covenantor was liable for the breach of his agreement.
[
Footnote 4] If a condition be
to do a thing which is impossible, as to go from London to Rome in
three hours, it is void, but if it be to do a thing which is only
improbable or absurd, or that a thing shall happen which is beyond
the reach of human power, as that it will rain tomorrow, the
contract will be upheld and enforced. [
Footnote 5]
The principle deducible from the authorities is that if what is
agreed to be done is possible and lawful, it must be done.
[
Footnote 6] Difficulty or
improbability of accomplishing the undertaking will not avail the
defendant. It must be shown that the thing cannot by any means be
effected. Nothing short of this will excuse nonperformance.
[
Footnote 7] The answer to
Page 76 U. S. 173
the objection of hardship in all such cases is that it might
have been guarded against by a proper stipulation. It is the
province of courts to enforce contracts -- not to make or modify
them. When there is neither fraud, accident, nor mistake, the
exercise of dispensing power is not a judicial function.
A charterer agreed to load a ship at Liebeau with barley. The
ship went there to receive the cargo. The factors of the shippers
informed the master that the Russian government had forbidden the
exportation of barley, and that no loading could be furnished. The
ship returned in ballast. The charterer was sued for the breach of
the contract. Lord Kenyon said:
"I am decidedly against the defendant upon the point of law. It
is said in Coke Littleton (1), that if a man be bound in an
obligation to A., conditioned to enfeoff B., a stranger, and B.
refuses, the obligation is forfeited, for the obligor has taken
upon himself to make the feoffment. The reason of this is clear. If
a man undertake what he cannot perform, he shall answer for it to
the person with whom he undertakes.
I am always desirous to
apply the settled principles of the law to the regulation of
commercial dealings. [
Footnote
8]"
A charterer covenanted to freight a ship at Gibraltar with a
homeward cargo. A pestilent disease broke out there, and all public
intercourse was forbidden by law. The cargo could not have been put
on board without danger to all concerned of contracting and
communicating the disorder. Lord Ellenborough said:
"If in consequence of events which happen at a foreign port the
freighter is prevented from furnishing a loading there, which he
has contracted to furnish, the contract is neither dissolved nor is
he excused for not performing it, but must answer in damages.
[
Footnote 9]"
An owner, by a charter party, agreed that his ship should
proceed from Liverpool to Terceira and deliver her cargo. Terceira
was under blockade, and both parties knew it. There was no
intention to break the blockade. The ship
Page 76 U. S. 174
did not go. The owner was held liable. The rule laid down in
Paradine v. Jane was cited and approved. [
Footnote 10]
A ship was chartered to proceed from Charleston to Rotterdam.
She went to London, and the master learned that if she proceeded to
Rotterdam she would be liable to seizure there and on the way, and
to confiscation, under a decree of the Emperor Napoleon for having
touched at a British port. The master refused to proceed, and
landed the cargo. Lord Ellenborough said: "Freight could only be
earned by performing the terms of the charter party." The goods
"were brought here, instead of being conveyed to their port of
destination." [
Footnote 11]
This case, in its essential points, is strikingly like the one
under consideration.
In
Lorillard v. Palmer, [
Footnote 12] the vessel sailed on a voyage from Richmond
to New York. Finding the Chesapeake Bay blockaded so that it was
impossible to proceed without capture, she returned to Richmond. It
was held that the shipper was entitled to receive back his goods
without paying any freight.
A ship was chartered for a voyage from the City of New York to
the City of St. Domingo. The later was found to be blockaded. The
ship was turned away by a blockading vessel, and returned to New
York. It was held that the charter party was dissolved, "and all
claim to freight under it gone." The court said: "Nor is this a
case for
pro rata freight. Here was no acceptance of the
cargo at an intermediate port." It was added that the owner of the
ship may make himself liable for freight by accepting the goods
short of the port of destination upon the grounds of an implied
contract resulting from the partial transportation of the goods and
the benefit received.
"But when the cargo, as in the present case, is brought back to
the port of lading, no such presumption can arise. No benefit has
accrued to the owner, nor has he done any act from which an implied
contract to pay any freight can be raised. [
Footnote 13] "
Page 76 U. S. 175
There is nothing in the record to excuse the conduct of the
vessel or to entitle the owner to any part of the stipulated
compensation.
It is unnecessary to pursue the subject further. We think the
decree of the circuit court was in all things correct, and it
is
Affirmed.
[
Footnote 1]
Fisk v. Newton, 1 Denio 45.
[
Footnote 2]
The Nathaniel Hooper, 3 Sumner 555.
[
Footnote 3]
Alleyn 26.
[
Footnote 4]
Beebe v. Johnson, 19 Vendell 500.
[
Footnote 5]
Comyn's Digest 96; Rolle 420, l. 20.
[
Footnote 6]
Touteng v. Hubbard, 3 Bosanquet & Puller 300.
[
Footnote 7]
2 Parsons on Contracts 672;
Beebe v. Johnson, 19
Wendell 500.
[
Footnote 8]
Blight v. Page, 3 Bosanquet & Puller 295.
[
Footnote 9]
Barker v. Hodgson, 3 Maule & Selwyn 271.
[
Footnote 10]
Mederos v. Hill, 8 Bingham 235.
[
Footnote 11]
Osgood v. Groning, 2 Campbell, 466.
[
Footnote 12]
15 Johnson 14.
[
Footnote 13]
Scott v. Libby, 2 Johnson 336;
see also Abbot
on Shipping 596;
Smith v. Wilson, ib., 267, 469;
Lidard v. Lopez, ib., 453;
Benner v. Equitable Ins.
Co., 6 Allen 222;
Chase v. Alliance Ins. Co., 9
id. 311;
Atkinson v. Richey, 10 East 531;
Vliebroom v. Chapman, 13 Meeson & Welsby 230.
