APPEAL from the Circuit Court for the District of California, the case being thus:
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 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 14th, 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 hard 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, indorsed 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 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 22d, and on May 24th the fleet left the coast of Chili, and went to parts unknown, and did not return there. The ship arrived at the Chinchas August 3d, 1866, and was there informed of the bombardment of Callao by the Spanish fleet, May 2d, 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 charterparty. 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 libelled 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.
Mr. Evarts, for the appellant:
The real freighter, acting through the agency of the libellant, a San Francisco merchant, was obviously the admiral of the Spanish fleet, and to him the cargo was consigned, the bill of lading indorsed, and to him the ship was required to report, and his instructions the master was required to obey. The whole object of the voyage and the whole motive of the affreightment, were the supply of coal to the Spanish fleet, for use therein, in aid and support of its hostile operations against the Chilian seaports. This service of the ship not only made the cargo, by its destination, contraband of war and lawful prize to the Spaniard's enemy, but exposed the ship itself, thus made a guilty tender of the Spanish maritime hostilities, to lawful capture and condemnation. These considerations determine the destination of the voyage as the Spanish fleet off the coast of Chili, and limit the purpose and the significance of any reference to Valparaiso, the Chinchas, or the other geographical or commercial points, to an ascertainment of the situs of the fleet, within the reciprocal engagements of the charter-party. The ports or commerce of the Spaniard's enemy were not only wholly foreign to the purpose and the terms of the projected voyage, but the nature of the enterprise and the interests of owner and freighter alike, excluded such ports and commerce as an alternative resort, or even a possible refuge, unless from otherwise inevitable shipwreck. By the very necessity of the reciprocal engagements, therefore, upon which the project of the voyage rested, the situs of the Spanish fleet, as the terminus of the voyage, and the presence of the consignee, the admiral, to receive the deposit of the cargo and liberate the ship from its transported burden, was within the obligations of the freighter, and clear of any responsibility or venture of the owner. The charter-party, the contemporaneous instructions, and the last advices from the Spanish fleet, communicated to the master by the freighter, admit of but one interpretation. The Spanish fleet was to receive the cargo at Valparaiso, and the admiral, within certain limits, was to direct its deposit or distribution. By the advices communicated by the letter of the freighter to the master, under date of May 17th, an indulgence rather than a right was suggested, that, contingently, the presence of the Spanish fleet between Valparaiso and the Chincha Islands should be a sufficient compliance with its obligations in respect of the geographical terminus of the voyage.
The ship sailed upon and completed the voyage, bringing itself within the waters contemplated as the situs of the Spanish fleet for the reception of the cargo. She held the cargo merely for delivery, and nothing but the absence of the stipulated depositary and consignee prevented the delivery. Within two days after the ship sailed from San Francisco (May 24th), the Spanish fleet voluntarily withdrew from the South American waters, and never returned. Thus, by this voluntary act of the freighter's principal and stipulated consignee, the delivery of the cargo was prevented, its deposit rendered impossible, and the ship's master made the freighter's agent, by necessity, for the preservation of the cargo. The master of the ship, observing all the obligations of his new and compulsory duty, by prudent counsels and prompt action, extricated the cargo from the destruction to which the consignee had abandoned it, and the ship itself from the peril to which the consignee's desertion of his obligations had exposed it.
The decree of the Circuit Court should be, therefore, reversed, and the decree of the District Court either affirmed or modified, according as the judgment of this court shall be on the question of the earning of freight on the return voyage.
Mr. B. R. Curtis, contra, contended that whatever expectations the parties might have had, the contract was an absolute contract to proceed to Valparaiso, unless otherwise directed by the Spanish admiral while on the voyage to that port; that the meaning of the contract was not to be influenced by the result of the war in Chili; that the parties not having had an ex post facto experience, the contract was not to be interpreted by ex post facto discoveries; that the contract had not been performed, inasmuch as the ship proceeded but to the Chinchas, twelve hundred miles short of the proper port, and then, not having found the Spanish fleet, immediately broke up the voyage and began her return voyage to San Francisco; that the charterer had in no manner waived performance, nor prevented it by any fault of omission or commission; that as a necessary deduction from the foregoing premises no freight had been earned, and that the owner, Jansen, must account for the full value of the cargo, and refund the half freight paid in advance. 
The learned counsel further argued, that it was a proposition too clear for denial, and one which had been lately strongly applied in this court,  that where a party undertakes positively to perform a certain act for a certain stipulated compensation, he cannot claim the compensation, however difficult or impossible performance may be, so long as the act remains unperformed, unless, indeed, the non-performance is owing to the fault or omission of the other contracting party; that when a ship was chartered for a port known to be blockaded, or for a port which was subsequently put under blockade, the risk or impossibility of entry could never be urged on behalf of the ship as entitling her to freight, as if the voyage had been performed, and that the same rule was applied against charterers. 
Mr. Justice SWAYNE stated the case, and delivered the opinion of the court.
^1 Portland Bank v. Stubbs, 6 Massachusetts, 426; Benner v. Equitable Co., 6 Allen, 222; Chase v. Alliance Co., 9 Id. 311.
^2 Dermot v. Jones, 2 Wallace, 1.
^3 Scott v. Libby, 2 Johnson, 340; Burrill v. Cleeman, 17 Id. 72; Bright v. Page, 3 Bosanquet & Puller, 296, note; Barber v. Hodgson, 3 Maule & Selwyn, 267; Hadley v. Clarke, 8 Term, 265; Atkinson v. Ritchie, 10 East, 530; Vlierbloom v. Chapman, 13 Meeson & Welsby, 230.
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