THE KRONPRINZESSIN CECILIE, 238 F. 668

DODGE, Circuit Judge. The careful and detailed statement of the material facts involved in these cases which is found in the opinion of the District Court (228 Fed. 946) will render direct reference unnecessary to the evidence in the record, except in a few instances. As to the facts there is little or no controversy. 1. From Bremen, the home port of this German steamship and her ultimate port of destination on the voyage here in question, her owner, a German corporation, sent a wireless message to her master on July 31, 1914, at 2:45 p. m.

This message he. received on board the ship, at sea, at 10 p. m., on the same day, by the ship’s time — 11:45 p. m. by Greenwich time. The message consisted of the peremptory order, “Turn back to New York,” prefaced by the statement, “War has broken out with England, France, Russia.” This statement meant, as is not disputed, and it was understood by the master to mean, that war had actually broken out between Germany and each of the other countries named. Neither at the time it was sent nor at the time it was received was the statement true as to either of said countries.

Not only had no war been declared between Germany and any of them, but no actual state of war existed between Germany and any one of them. It was not until midnight on the same day that Germany notified Russia that she would mobilize unless Russia demobilized within 12 hours, and not until 7 p. m. on the next day that war between Germany and Russia was .declared; nor did that declaration make it certain that France or England would be involved.

When the master received the above message, his ship had considerably more than half completed her voyage from New York towards Plymouth in England and thence to Cherbourg in France, the ports at which delivery of the specie shipments on board her had been undertaken according to the bills of lading given for them at New York on July 27. She was a little more than 1,000 miles from Plymouth, the nearer of the two.

The message was sent and received in a form such as prevented its above meaning from becoming known to any one but the mister, and permitted such meaning to be ascertained by him only through the use of means long before carefully prepared, to be availed of in case the emergency indicated should occur, and kept on board the ship under seal for two'years, the seal to be broken by the master only in case he received a message of the character given this message in its untranslated form. The master obeyed the order to turn back instantly, before revealing the substance of the message to any other person on board.

Nine minutes after its receipt the ship was headed for New York, instead o'f for Plymouth, and the voyage undertaken by the bills of lading had been abandoned. Not until after this had been done did the master inform the subordinate officers and the cabin passengers that he had done it. A master is ordinarily the owner’s representative for the purpose of effecting the safe carriage and delivery undertaken by the ship, and as such a stranger to the cargo.

But circumstances of unexpected emergency may without doubt occur during a voyage, such as will change his ordinary relations towards ship and cargo, and, because a discretion must needs be exercised in order to avert or minimize extraordinary peril, threatening all the interests concerned, will makhim, for the purpose of exercising it, the 'common representative of all said interests alike.

Though a measure adopted by him in the exercise of a discretion so required of him •yrould otherwise be in violation of pending contracts of affreightment, the consent of alb concerned will be implied from the fact that in adopting it he has acted as the representative as much of one interest as of any other, and neither will have the right to complain of it as a breach of contract.

In the opinion of the District Court the turning back of this ship as above was >a discretionary measure taken by the master under circumstances of the kind above referred to, and therefore leaving the owners of these three shipments of specie no right to complain of it as a breach of the contract'to deliver their specie at Plymouth or Cherbourg.

The owner of the ship had the burden of proving circumstances actually existing at the time, sufficient to justify such an exercise of discretion on the master’s part, present to his mind when he turned back, and also an actual exercise of such discretion by him in view thereof. I have been unable to agree with the finding below that this burden was sustained..

As to the circumstances present to the master’s mind, it is not contended that he would have turned back, except for the message received from the owner, and, so far as the message conveyed to him an untrue statement of facts, it can have no weight in this connection. Whether or not actually existing circumstances are shown which would have justified abandonment of the voyage is further considered below. But that any actual exercise of discretion by the master has been shown, in the sense necessary .for the application of the above principles, I am in any case unable to believe.

The owner’s direction to turn the- ship back appears from the evidence to have been a specific and unqualified order, leaving the master no choice but to obey. Whether or not, as between him and the owner, disobedience might have been excused by the presence of circumstances then known to the master, but necessarily unknown to the owner, such as made obedience inexpedient, need not be considered, there being no suggestion that there were any such circumstances. If this was the case, no responsibility for results caused by obedience to the order could fall upon the master.

By assuming to direct from Bremen, as it did, the course which the ship should take, her owner assumed, for itself and its ship, all such responsibility, and lost all right to charge the master with any share thereof. It is said that the owner’s message was not a mere order, but informed the master also of facts for his guidance, indicating that the owner still relied upon his discretion, not expecting unreasoning obedience.

It is said, further, that the master turned back, not only in compliance with the owner’s direction to do so, but in accordance as well with the dictates of his own prudence and sagacity; .i. e., in the exercise of his discretion as master under an emergency. But this requires, in my opinion, a view not justified by the evidence both of the character of the message itself and of the master’s action upon it.

The statement of facts contained in the message, if true, would have of itself required abandonment of the voyage to Plymouth and Cherbourg; and no independent judgment as to its truth by the master was possible. There can be no doubt that the owner meant him to act upon it as if it were true.

Coupled as it was in the message with the unqualified order to turn back, I can see no reason to doubt that the instant obedience given that order by the master was the only course really left open to him, or intended to be left open to him, by the message; there being, as has been stated, no suggestion of any reasons against turning back which the owner could not itself have already considered, and might therefore have demanded an independent judgment on the master’s part. ' That the above was the view taken at the time by the master himself appears from the terms of the first communication from him to the owner aftet July 31; i. e., his report in writing to the owner from-Bar Harbor, dated August 21, 1916.

This was sent 17 days after his arrival there on August 4th, and 2 months before the first of these-libels was filed.

In it, after stating the latitude and longitude reached upon the voyaye from New York at the time the owner’s message of July 31st was received, he said: “Here we received the order to return, which was immediately carried out.” And thereafter, describing his announcement to the passengers, made as soon as the ship was on her course to the westward, he said: “I went down and acquainted them with the fact that war had broken out and that I had received orders from the company to return to New York.” Nowhere in this report is any suggestion found that any alternative to compliance with the order was ever present to the master’s mind.

In the master’s testimony at the trial, given March 31, 1915, which impresses me, as it did the District Court, with its apparent truthfulness, he stated in direct examination that after receipt of the owner’s message “there was only one way to do, to go back to the United States”; and in cross-examination, that as the message read, “War had broken out,” etc., “there was only this way to take.” It is true that he also stated that this seemed to him the best and only course to pursue, aside from the order given in the message, in view of the stock of coal on board, which might not be enough to get him back to New York unless he turned at once.

It is true that he declined to say that the message had relieved him from all further responsibility with respect to the course of the voyage, and did say that it was left in his discretion to do what he chose — “if, for instance, he had not coal enough to return to America.” He admitted, however, that, sufficient fuel being on board, as in fact there was, he had to turn back as ordered.

If there is any sense in which the master’s act in turning back can be called discretionary with him, the above testimony from him seems to forbid any other conclusion than that such discretion as he may have used was directed and controlled by one only of the interests concerned in a degree altogether too great to permit saying that it was discretion exercised by a common representative of all.

Suggestions, or even directions, from owners to their master on a voyage, in an emergency, may not in all cases prevent his determination from being regarded as an exercise of such discretion; but it cannot justly be so regarded when all responsibility for it has been virtually assumed by the owner, as here, and no real scope for choice in the matter left with the master.

If, therefore, the abandonment of the contracts undertaken by these bills of lading can be justified at all, it must be justified as the owner’s act; and the question is whether or not circumstances are shown which excused nonfulfillment on the owner’s part. 2.

The only exception contained in the contracts for delivery of the specie which is relied on for the purpose of exonerating the owner, is the agreement that there shall be no' liability for loss or damage occasioned by “arrest and restraint of princes, rulers, or people.” The shippers of the specie insist on the literal wording, but file construction contended for by the owner, according to which the clause is to have the same effect as if it read, “arrest or restraint,” is regarded as more reasonable and as proper.

There having been no actual arrest or restraint of the kind referred to, the owner’s act in ordering the ship’s return to New York is justifiable, if at all, only by proof that there was at the time ground for apprehending actual arrest or restraint unless she so returned, such as the law of carriage by sea recognizes as the equivalent of actual arrest or restraint. The question is whether or not the requisite proof has been made in this case.

It may be taken for granted that when it has become plainly obvious that continuance of the voyage must necessarily involve arrest or restraint, and can have no other result, such departure from the voyage as is necessary to avoid the danger is not only permissible, but is re.quired of the vessel. She must do what is needful for the purpose of avoiding any actual and presently imminent danger, instead of adhering to a course which can only carry her directly into it. But the evidence here relied on, .as will appear, is far from showing the existence of any such situation.

What is relied on is, at most, the desirability of keeping the ship out of reach of a future, contingent danger. The phrase here in question, or some substantial equivalent thereof, has long been familiar in charter parties, bills of lading, and policies of marine insurance. When “arrest and restraint,” etc., is a risk assumed by a marine policy, there must be proof, in order to justify abandonment to the insurer and maintain thereupon a claim for constructive total loss, that arrest or restraint, etc., was the proximate cause of the abandonment and loss.

The peril must operate upon the subject of insurance directly, not circuitously. If there has not in fact been actual arrest or restraint, etc., a loss because of apprehension thereof is not within the policy, unless the apprehension is shown to have been warranted by actual and immediate danger, apparently inevitable and morally certain. This may be regarded as settled by the decisions both in England and the United States, as is hardly disputed on the owner’s behalf.

Its contention is that a different rule of construction applies in cases arising upon bills of lading, and, in substance, that in such cases apprehension of capture or detention by a hostile power will excuse nondelivery under the exception here relied on, even though no such actual and immediate danger thereof existed, ' provided that the apprehension was on the whole reasonable.

This exception, like the others wherewith it is usually associated in such documents, is a term introduced into the contract by and for the benefit of the carrier, and therefore to be construed most strongly against the carrier, according to well-settled principles. If another of the exceptions commonly accompanying it, viz., “perils of the seas,” means the same, except as regards negligence of master and crew, in a bill of lading as in a marine policy (The G. R. Booth, 171 U. S. 450, 459, 19 Sup. Ct. 9, 43 L. Ed. 234; The Xantho, L. R. 12 App. Cas. 503, 510, 517; Hamilton v.

Pandorf, Id. 518, 526), it is not easy to find sufficient ground for assigning to the words in question, when used in a bill of lading, a meaning broader than that to which their recognized construction, when used in policies of insurance, confines them. Other stipulations found in the same contract may of course enlarge the scope of the carrier’s exemption from liability beyond that permitted by these words alone. But nothing of this kind is found in these bills of lading. No charter party is here involved.

The ship was a common carrier, and by the terms of the bills of lading the full common carrier’s liability for delivery of the specie at the agreed ports had been assumed; qualified only, so far as this case is concerned, by the above exception. There was no stipulation that the agreed ports of delivery should be safe, nor any express reservation of any right to1 deal with the specie otherwise than as promised by the bills of lading if in the master’s judgment they should become unsafe.

There were stipulations of this kind in the contracts under consideration in the cases here most relied on'by the shipowner, viz.: The Styria, 186 U. S. 1, 22 Sup. Ct. 731, 46 L. Ed. 1027; Nobel’s Explosives Co. v. Jenkins, [1896] L. R. 2 Q. B. 326; The Teutonia, L. R. 4 P. C. 171; The Express, L. R. 3 A. & E. 597. No sufficient warrant is found in them for the claim that the recognized construction in insurance cases is inapplicable to the exception relied on in the present case.

That the arrest or restraint which will excuse failure to malee the delivery undertaken by a contract of affreightment unqualified, except as in these bills of lading, must be an actual and operative restraint, and that no merely expected and contingent restraint affords sufficient excuse, has been settled law at least since Atkinson v. Ritchie, 10 East, 530. If, as in that case, an embargo laid by the country of the port where the cargo was to be shipped is relied on, reasonable apprehension that such embargo will be laid does not excuse the carrier, when in fact it was not laid. If, as in Brunner v.

Webster, 5 Com. Cas. 167, sanitary regulations forbidding discharge at the port of delivery are relied on, such regulations must have been in force at the probable time of delivery; a justifiable belief that they would be in force, if mistaken, will not be enough to bring the failure to deliver within the exception. If, as was done in Balfour et al. v.

Portland, etc., Co., 167 Eed. 1010, by the District Court in Oregon, the attending and existing circumstances at the time these contracts of affreightment were made be examined in order to determine the meaning presumably intended by both parties to be put upon this exception, no sufficient reason for making it include a merely apprehended danger of capture or detention not present or imminent can be found.

On July 31, 1914, when the owner abandoned the voyage, there was, no doubt, danger that an actual state of war would arise whose existence would make Plymouth and Cherbourg hostile ports as regarded the vessel. But this was not a danger arising after the voyage had begun; there was danger that just such a war would arise when the bills of lading were given, four days before, on July 27th. That this very danger was then present to the minds of both parties to these contracts of affreightment is not and could not be disputed.

The ship was capable of being used as a vessel of war by the German government, and liable to be taken and used by it as such if within its actual control; a fact which made her more liable than an ordinary German merchant vessel to arrest or capture by either England or France as soon as the apprehended state of war should exist. This fact also must, we think, be regarded as present to the minds of both parties to the above contracts.

Yet the owner of the vessel, with the above situation in view, undertook delivery of the specie at Plymouth and Cherbourg, under contracts which reserved to it no right to abandon or vary the voyage, should those ports become unsafe, but which made it, according to principles long settled and universally understood, insure the delivery as agreed unless “arrest or restraint of princes,” etc., should prevent.

It appears that the specie might at the time have been shipped on British or French vessels from New York for the above ports, as to which said ports would not have become hostile in event of war, and that it was shipped on this German vessel in order to take advantage of her greater speed. I find nothing in any of these circumstances tending to warrant a construction of the exception under consideration in the shipowner’s favor.

Whether the danger of war would increase or diminish during the five or six days necessary to get the specie delivered according to the bills of lading, neither party can be said to have known; but the owner deliberately took the risk that the danger might increase, and cannot, therefore, in justice to the shippers, without proof that the only exception relied on operated to prevent delivery in the accepted meaning of its terms, be permitted to abandon the attempt to deliver without paying such damages as were thereby sustained.

An actual state of war, arising either before or after the voyage contracted for has begun, whereby ship or cargo1 are rendered liable to capture and condemnation, may justify abandonment of the voyage in order to avoid such capture, when reasonable grounds for apprehending actual capture are shown. Delivery at a port of destination which such actual state of war has made a hostile port so far as the vessel is concerned, would in such a case be excused. The German Code, in articles 629, 634, a part of the law of the flag for the purposes of this case, has/express provisions to this effect.

Actual war, indeed, so coming into existence,- makes it the ship’s duty to her own Sovereign not to enter a hostile port. Atkinson v. Ritchie, 10 East, 530, 533, 534; British, etc., Co. v. Sanday, etc., Co., App. Cas. 1916, 650. But no- case is found in which, there being no actual state of war, abandonment of a contract like this has been excused under the exception here relied on, because of mere apprehension that actual war might exist before delivery according to the contract could be made.

If, in the case of an actual state of war, arising after the voyage has begun, the ship or cargo might, under some circumstances, be put in immediate actual danger of capture from the moment in which the state of war became existent, so as to make it proper to say that reasonable ground for apprehending immediate war, was, for practical purposes, equally reasonable ground for apprehending immediate actual arrest or restraint by capture, no situation of .this kind, sufficient to bring the owner’s abandonment of the voyage within the exception relied on, seems to me proved in the present case.

Unless something had happened to delay the ship, such as is not shown to have ever happened on any of her numerous prior voyages to the same ports, the specie to be delivered at Plymouth would probably have been delivered there by 1 a. m. on August 3, 1914, and that for delivery at Cherbourg, by 8 a. m. on the same day. It is to be noticed that the season of the year was that at which delay by weather conditions was least to be expected.

The discharging facilities kept ready at both ports had enabled the ship, upon all but one of 13 trips preceding this, as appears from her log, to leave Plymouth within an hour from her arrival; and the same is true as to Cherbourg. Her longest stop at Plymouth had been 78 minutes; at Cherbourg, 66 minutes. Tenders controlled by her owner were 'regularly found awaiting her arrival, into which passengers, mails, and specie were discharged alongside. She did not go to a dock at either port.

Plymouth did not become a hostile'port, as regarded the steamship, until August 4th, at 11 p. m., when England declared war with Germany. Cherbourg did not become a hostile port until 6:45 p. m., on August 3d, when Germany declared war with France. It is true that Germany had declared war with Russia at 7:10 p. m., on August 1st, at which time the ship would still have been 30 hours distant from Plymouth; but it can hardly be claimed that a state of war with Russia only exposed the ship to any immediate risk of capture.

And after landing the Cherbourg specie as above, 11 hours before any war with France arose, another 23 hours’ run at her usual speed between those ports would have brought her to Bremen, her home port, by 7 a. m., on August 4th. The evidence shows no reason for apprehending detention at Cherbourg before 8 a. m., on August 3d, nor until after 6:45 p. m., on that day. Nor is any reason shown for apprehending capture on the way from Plymouth to Cherbourg and thence to Bremen. English men-of-war only could have interfered with the ship, and she would have been at Bremen before any state of war with England existed.

German vessels are shown to have used English ports and coast waters unmolested during the whole of August 4th. Germany’s refusal to give the requested assurance regarding Belgium, the determining cause of England’s participation in the war, did not become a certainty before the last hours of that day.

So far, therefore, from proving actual and immediate danger of war simultaneously involving actual and immediate danger of capture or detention on July 31st, when the ship turned back, the evidence shows that this specie could probably have been delivered as agreed before any actual war began or any immediate danger of capture or detention arose. The carrier’s abandonment of the voyage deprived the shippers of the specie of all chance of having it so delivered.

Thereby the carrier took the risk that the actual course of events might fail, as it did, to show actual and immediate danger threatening the ship, either at the time or before she could have made delivery. The carrier’s act cannot be justified, as in The Styria, 186 U. S. 1, 22 Sup. Ct. 731, 46 L. Ed. 1027; Nobel’s Explosives Co. v. Jenkins, [1896] L. R. 2 Q. B. 326, “apart from the terms of the bill of lading” —on the ground that the master’s “duty to take reasonable care of the goods intrusted to him”, required it.

Eor that purpose discretionary action by the master would be necessary, which, as above held, is not shown. Nor does the evidence show that regard for the safety of the specie entered into the owner’s determination to abandon the voyage. No reason appears for apprehending that capture or detention of the ship would, under the circumstances, have involved loss to the owners of the specie. The ship’s value was considerably greater than the value of the specie, or the entire cargo on board.

It was far more important to the owner of the ship than to the owners of the specie that she should avoid capture or detention by England, France, or Russia.

The evidence shows also that the order to turn this ship back to New York, instead of being a single order given with particular reference to this ship, or her cargo, or her relations thereto, was only one of many other like orders similarly transmitted during the same day to all steamships at sea belonging to the same owner, and then on voyages tending to bring them, if continued, within regions where, in case of actual war between Germany and the other countries named, their capture or detention might become possible.

The owner’s evident object was, not to avoid actual immediate danger of capture or detention then threatening these ships, but to keep them all as far removed as possible from any and all such regions of possible future danger. This may well have been the course most for the owner’s advantage. But, under the contracts here sued on, it cannot justly be held that the circumstances proved entitled her owner to divert this steamship from the voyage undertaken as above, without incurring any liability to the owners of the specie for their loss thereby caused.

We know nothing more at present as to the amount of their loss than that it was substantial. Whatever they may prove their respective losses to have been, I consider the libelants in Nos. 1196 and 1199 entitled to recover against the steamship. In regard to the cases Nos. 1197 and 1198, wherein the libelants were passengers, no reason is found for disturbing the result below.

Not only did the contracts with these libelants permit to the ship a far-greater liberty to change or abandon the voyage than was permitted by the bills of lading, but they expressly required written notice of any damage claim, with full particulars, within 10 days after landing from the steamship, and it is admitted that no such notice was- ever given. The libelant in 1197 accepted the return of his passage money; the libelant in 1198 accepted instead passage paid for by the claimant in another vessel. BINGHAM, Circuit Judge.

In Nos. 1196 and 1199, I am of the opinion that the decrees of the District Court should be reversed. The facts are substantially the same in the,two cases; the only difference being that in the Guaranty Trust Company Case the consignment of gold was to be delivered at Plymouth for transportation by rail to Condon, while in that, of the National City Bank there were two consignments of gold, one to be delivered at Plymouth for transportation to London, and the other at Cherbourg for transportation to Paris.

In the opinion of the District Court the claimant was held to be excused from performing its contracts of carriage upon the ground that the telegram received by -the master on the evening of July 31, 1914, from the managing directors of the claimant, saying, “War has broken out with England, France and Russia.

Return to New York,” stated facts constituting an exigency which authorized him to exercise the discretion vested in the master of a ship by the maritime law, and that, in turning back to America and abandoning the venture, he exercised his discretion and acted within this implied power; that the managing directors of the claimant,, when they said in the telegram that war had broken out with England, France and Russia, in substance stated the truth regarding the political situation as it then existed in Europe; and that the claimant could avail itself of the master’s exercise of discretion based on that information as a justification for its failure to perform the contracts.

Counsel for the claimant contend (1) that the foregoing ground upon which the decision of the District Court proceeded and upon which the decrees in these cases were based, is right; (2) that if the master did not act in pursuance of his implied authority, but abandoned the venture because the claimant, through its managing directors, ordered him to return to America, nevertheless, in view of the threatened danger of war, the claimant was justified in so ordering the ship back to America; and (3) that the claimant can justify its failure to perform its contracts under the exception contained in the bills of lading relating to “restraint of princes, rulers or people”; that, although war had not been declared and- did not exist, the threatened danger of war was the equivalent of a declaration of war, or of authorized acts of war, and operated directly as a restraint of princes.

It does not seem to me that any of these propositions are right as applied to the facts in these cases. I. The ship took on board the consignments of gold on the 27th of July, 1914, and set sail at about 1 o’clock on the morning of the following day. At that time England, France, Russia, and Germany were at peace, although there was threatened danger of war.

Whether on that day the claimant apprehended that the war clouds were probably clearing, or that in the event of hostilities the ship would make her trip before war broke out, is of little importance. * Knowing that these countries were at peace, but that there was threatened danger of war, it made the contracts and took on board the shipments of gold for delivery at Plymouth and Cherbourg.And the evidence discloses that while the master may have had some anxiety after he set sail, and down to the evening of the 31st of July, as to the real .condition of the political situation in Europe, he, nevertheless, proceeded at the rate of about 22 y2 knots an hour, making the usual time, without taking any precaution with reference to the outbreak of war until the night of the 31st of July,, at about 10:09 o’clock, ship’s time, when he received the telegram above set forth, and immediately turned his ship about for America.

Having turned about, he then took such precautions as he thought necessary to avoid detection by painting his smokestacks, dispensing with sidelights, and darkening the portholes and cabin windows. It is evident from this that the immediate change in the course of the ship, resulting in the abandonment of the venture, was due to the receipt of the telegram on the night of July 31st.

That the master, upon receiving the telegram, acted on the idea that he was relieved from exercising his discretion as to the course the ship should take, .if he had coal enough to obey the order to return to America, is clearly shown in his answers to the following questions: “Q. Assuming that you had enough fuel to make the voyage, you had to make the voyage that you were ordered to make, had you not? A. Yes, sir. “Q. And that was to turn back to America? A.

Yes, sir.” And to preclude the necessity of any 'exercise of discretion by the master, even as to the supply of coal, the managing directors, before they sent the telegram, had the location of the ship and the amount of coal on board computed, and knew that the ship had sufficient coal for the return trip.

The ship arrived in Bar Harbor on August 4th, and, after the master had landed his passengers, discharged the gold, taken on board a supply of coal, and discharged the balance of his cargo, which took until the 21st of August, he on that date made a written report to his company at Bremen, in which he stated in detail what occurred on the trip from the time the ship left New York until it peached Bar Harbor. In this report, among other things, he said: “On July 28, at 3 a. m., we passed Ambrose Channel Lightship, steamed eastward on the prescribed course, up to July 31, 46° 46' N, 30° 21' W.

Here we received tlie order to return, which was immediately carried out.

While the ship was still in the act of turning, I directed that the passengers of the first and second cabin be requested to repair to the smoking room, and when the ship was on the course to westward, I went down’ and acquainted them with the fact that war had broken out and that I had received orders from my company to return to New York.” This is not the language of one in authority, stating action taken by him in the exercise of his discretion, but of a subordinate, informing his superior that he has received his order, and carried it out.

It is a frank statement, free from equivocation, and in no way misleading. It was not formulated to meet a legal position, for these suits had not then been brought, and plainly states the truth — that he had received the order and obeyed it. When the master had under consideration a matter of importance concerning the voyage as to which he'had not received special directions, and requiring the exercise of his discretion, it was his custom to proceed in a deliberate and formal manner by calling his officers in ship’s council.

This he did on the evening preceding the receipt of the telegram, when he decided to continue on his voyage to Plymouth; and again, on August 3d, when an exchange of signs between the cruiser Essex and the station at Halifax was overheard, and he decided to run for the port of Bar Harbor rather than to New York.

In the report to his company he alludes to this, and says: “As signs from tbe,Essex were not very strong, and sbe might be watching the port of New York just as well as the port of Boston, I called, my officers for ship’s council, in which it was decided to run into the port of Bar Harbor.” And again, in his testimony, in speaking of this matter, he said: “I called my officers together, and said to the chief officer and to the second officer, who were there, ‘Gentlemen, we are hearing these wireless signs getting nearer; they may be before New York Harbor; they may be before Boston Harbor; I think it is advisable that we should go out of the way and turn up north, and go to Bar Harbor, which is a path which is not trodden so much by steamers of our size and kind.’ ” From these circumstances, and others presented in the case, the reasonable inference is that his course of conduct on the evening of the 31st of July in turning back to America was not due to the exercise of discretion on his part, but was due directly to the order of his superior and in obedience thereto.

II. If, however, it could properly be found that the master acted upon the information contained in the telegram, exercised his discre-tipn and determined to return to America, the claimant cannot avail itself of his decision as a defense to these actions. The information which the managing directors gave was false. War had not broken out, but it was purposely stated that it had to control the exercise of the master’s discretion, if he wished to exercise it, and did not at once follow their peremptory order.

To permit the claimant to avail itself of the master’s decision .obtained under such circumstances would be the equivalent of according to one the protection of a judgment which he had procured through fraud. That such was the purpose of the managing directors in sending the telegram is plainly deducible from the evidence presented by the record.

From this it appears that, at the time the message was sent, and at the time it was received, war had not been declared and had not broken out between England, France, Russia, and Germany, or between any two of those nations; that at 2:45 o’clock in the afternoon of July 31st, when the telegram was sent, the managing directors had simply received information, that the German emperor was to issue a proclamation declaring a state of war, which would have the effect of putting Germany on a war footing, but would “not amount to a declaration of war against or actual hostilities with any other nation.” Their information amounted to nothing more than that a decree of a state of martial law for Germany was about to be issued.

It further appears that the managing directors, in the stipulation filed by the claimant in these cases as evidence, stated that this decree was “the immediate reason for the recall of the Cecilie”; that all other political advices and facts which they had, without knowledge that the government was to declare a. state of war, would not have caused them to take immediate action in regard to their vessels; that “this decree of a state of war alone .can be designated as a decisive fact inducing us to recall the Cecilie”; and that the reason why they stated in their telegram to the master that war had broken out, instead of stating the facts as they existed, was that they deemed “every other information in regard to the political situation, every statement that was not absolutely clear and comprehensive in regard thereto, as inadvisable, and could only lead to misunderstanding and unsafe resolutions,” and that the wording of their telegram “occurred purposely in the form that we reported the war as already having broken out, and has nothing to do with the wording of our telegram code.” The conclusion is irresistible that the telegram was primarily an order, and the information it gave as to the political situation was purposely false, and so framed that the master would be compelled to obey the order, whether he wished to exercise his discretion or not.

It is useless to discuss the question whether, if the managing directors had stated in the message the true condition as to the political situation, an exigency would have been presented which would have authorized the master to exercise his discretion, for the true situation was not presented to him, and, if it had been and he had been permitted to exercise his discretion, it is entirely problematical what course - of action he would have pursued. III.

As the abandonment of the venture by the ship’s return to America was due to the peremptory order contained in the telegram, we will consider the question whether the claimant, apart from the exceptions contained in the contracts, can justify its conduct in ordering the ship to return to America because of the threatened danger of war. In Atkinson v. Ritchie, 10 East, 530, this question was considered. In that case the action was assumpsit for breach of an agreement in not loading a complete cargo of hemp.

Ritchie, the master and owner of the ship Adelphi, chartered her to Atkinson, a London merchant, agreeing to proceed to St. Petersburg and there load from the factors of Atkinson a complete cargo of clean hemp and 80 tons of iron for ballast, not exceeding what she could reasonably stow, and, being „so loaded, to proceed to Woolwich and London and deliver the same on being paid the freight, “restraint of princes and rulers during said voyage always excepted.” The ship arrived at Cronstadt, the port of St.

Petersburg, on the 16th of September, 1807, where Ritchie proceeded to take on cargo under the charter party, and continued’loading with all due diligence until the 25th of that month.

He had then taken on board between 70 and 80 tons of iron, a sufficient quantity for ballast. “On the 25th of September there was a general rumor of an embargo being intended to be laid by the Russian government on all British vessels, and there was every appearance that it would take place immediately; but it did not in fact take place then, nor until six weeks afterwards.” But on the 25th, the British consul, expecting that the embargo might take place immediately, caused a letter of advice to this effect to- be written to Ritchie, in consequence of which he gave instructions to leave off screwing down any more hemp — which was the usual mode of loading — and to fill the ship as fast as possible by hand, and the work continued by hand until 6 o’clock that night, when she was filled, as far as could be done, in that manner. Ón the evening of the 25th the ship sailed with a cargo of about half what she could have carried, although there was at the time hemp ready to be loaded which would have completed loading her. “Ritchie acted bona fide and as an honest man under the existing circumstances, and there was a reasonable and well-grounded apprehension for Ms acting as he did; and he brought home as complete a cargo as he could under the circumstances.” The Adelphi arrived in London, delivered her cargo there to Atkinson, who refused to pay the freight, as a little more than a moiety of the quantity of hemp stipulated for by the charter party was brought.

On behalf of the master of the ship it was contended that “an exigency had arisen, and it was a paramount duty of the master, imposed upon him by layr, to act for the benefit and safety of the .ship, the crew and the cargo, and, still more, for the state to which he belonged, and that the reasonable apprehension of danger created the exigency, and that'the master was in duty bound to do the best he could for all concerned, to preserve his ship for the state, as well as for the individuals concerned, to prevent them from falling into the hands of the enemy; and this was evidently a hostile embargo.”, In delivering the opinion of the court, Lord Ellenborough answered this contention as follows : “The parties are the merchant freighter on the one hand, and the master on the other; each contracting for himself with the other, as principals.

Under such circumstances, any constructive agency on the part of the defendant, in his character of master, for the plaintiff, as the freighter of the goods, is wholly out of the question. Their relative claims upon, and duties in respect of, each other are conclusively fixed and defined by the terms of their own written contract.

No exception (of a private nature at least) which is not contained in the contract itself can be engrafted upon it by implication, as an excuse for its nonperformance.” This case clearly shows that the claimant, being one of the principals to the contract of carriage, had no discretionary authority vested in it by which it could justify an abandonment of its contract obligations, in case of the threatened danger of war, even though it honestly believed that the threatened danger presented a.n exigency, and that it must justify its conduct in abandoning its contracts, if at all, under the exceptions contained therein. ’ IV.

The question remains whether the contracts of shipment as expressed in the bills of lading contain exceptions which would excuse the claimant from the performance of the contracts. The exceptions in the bills of lading upon which counsel for the claimant rely — the two contracts being alike so far as this matter is concerned — are those relating to the “restraint of princes, rulers, or people.” Ford Wrenbury, delivering an opinion in the House of Lords, in the case of British & Foreign Marine Insurance Co., Ltd., v. Samuel Sanday & Co., L. R. [1916] A.

C. 650, 671, in discussing the meaning of the words, “restraint of kings, princes, and people,” in a policy of insurance, and what would constitute such a restraint, said: “A declaration of war by the sovereign is a political or executive act, done by virtue of his prerogative, which creates a state of war. A state of war is a lawful state, and is one in which every subject of his majesty becomes an enemy of the nation against which war is declared. The declaration of war amounts to an order to every subject of the crown to conduct himself in such way as he is bound to conduct himself in a state of war.

It is an order to every militant subject to fight as he shall be directed, and an order to every civilian subject to cease to trade with the enemy. * * * ‘A declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy’s country, and that such intercourse, except with the license of the crown, is illegal.” In that case it was held that the declaration of war between England and Germany on the 4th of August, 1914, rendered trading by an English ship at a German port illegal, and would render the master of the ship with a cargo destined for such port subject to arrest and his ship and cargo subject to confiscation; that the declaration of war by the sovereign, being a political or executive act, operated directly upon the master, ship and cargo and constituted a restraint of kings, princes, and people within the meaning of the policy of insurance, although they were not subjected to actual or physical restraint.

The cases we are considering differ widely from the one passed upon by the House of Lords, for here, at the time the ship turned back for America and abandoned the voyage contracted for, the sovereign powers of Germany, England, and France had not declared war, the voyage was not illegal, and there was no sovereign act in existence which operated or could operate as a restraint within the meaning of the clause, “restraint of princes, rulers, or people,” either directly or indirectly.

No case has come under my observation where it has been held that there was a restraint.of princes within the meaning of the clause in the absence of

an act of a sovereign power or state rendering the venture unlawful; or, if the sovereign act was that of a foreign power or state, so that the venture was lawful, unless the circumstances disclosed physical restraint due to that sovereign act of a direct and operative nature. Where the venture is rendered illegal by a declaration of war, the legal restraint operates directly and immediately upon the master, ship, and cargo, and makes his dealing or attempting to deal with the enemy unlawful. British & Foreign Marine Insurance Company, Ltd., v. Sanday & Company, supra.

Whereas, if the venture is lawful (the ship and cargo being that of a neutral power), and the port of destination is blockaded, or the cargo is contraband and destined for a belligerent port, it must appear that restraint of a physical nature was operative to come within the meaning of the clause. Nobles Explosives Co. v. Jenkins, [1896] L. R. 2 Q. B. 326; Rodoconachi et al. v. Elliott, L. R. 9 Common Pleas Cas. 518; The Styria, 186 U. S. 1, 22 Sup. Ct. 731, 46 L. Ed. 1027; Balfour, Gutherie & Co. v. Portland & Asiatic S. S. Co. (D. C.) 167 Fed. 1010.

And that if it appears the abandonment of the venture was to avoid encountering a future peril to which the ship or cargo might become subjected, the necessary restraint, within the meaning of the clause, would be wanting. Atkinson v. Ritchie, supra; Mitsui & Co. v. Watts, Watts & Co., 15 Law Times Reports, issued April 15, 1916; Hadkinson v. Robinson, 3 Bos. & P. 388; Kacianoff v. China Traders Insurance Co., [1913] 3 K. B. 407. Here there' was no declaration of war or authorized acts of war involving the nations in question at the time the ship abandoned her contract.

The venture was legal, not illegal, and her return to America was not due to any restraint of a sovereign act, legal or physical, but was to avoid a supposed future peril to which she might become subjected. . In Nos. 1197 and 1198, the actions brought by Charles Rantoul, Jr., and Maurice Hanssens, passengers on the steamship Cecilie, to recover-for failure to transport them from New York to Cherbourg and Plymouth, respectively,' I agree with the conclusions reached in the opinion of the District Court, but not for the reasons there given.

The tickets issued to these passengers contained the following provision: “No claims under this ticket shall be enforceable against the shipowner or its property or the agent or passage broker, unless notice thereof in writing, with full particulars of the claim, be delivered to the shipowner or agent within five days after the passenger shall be landed from the transatlantic ocean steamer at the termination of her voyage, or, in case of the voyage being abandoned or broken up, within ten days thereafter.” And the claimant in its answer sets forth this provision of the contracts and alleges that no such notices were given within either of the periods so specified.

As the voyage was abandoned or broken up by the ship’s return to America, it became incumbent upon the libelants, m order to recover damages for breach of their contracts, to prove that notices of their claims were given within the time specified in the stipulation above referred to. This they not only failed to do, but admitted that no notices were given.

The libelants seek to avoid the effect of this stipulation on the ground that the ship, by deviating or abandoning its voyage, displaced the contracts and thereafter made the carrier an insurer against all .loss and deprived it of the benefit of the conditions contained in the contracts; and, in support of their contention, they refer to certain cases in which the carrier was held liable for loss or damage to goods occurring during or after a deviation had talcen place. Morrison v. Shaw, S. & A. Co., Ltd., [1916] 1 K. B. 747; Brunner v. Webster, 5 Commercial Cases, 167.

These cases do not seem to me to be in point. There the plaintiff was not suing on the contract of carriage, but upon the common-law obligation of the defendants for loss of or damage to goods occurring after thb voyage had been abandoned; while here each libelant is suing upon the contract and must take it with all the stipulations which it contains.

A majority of the court concurring, it is ordered, adjudged, and decreed as follows: In Nos. 1196 and 1199 the decrees of the District Court are reversed, and the cases are remanded tojhat court, with directions to enter in each an interlocutory decree for the libelants, and for further proceedings thereon in accordance with law, and the appellants recover their costs of appeal.

In Nos. 1197 and 1198 the decrees of the District Court are affirmed, and the appellee recovers its costs of appeal «gs^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes <©3^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes