244 U. S. Argument for the Guaranty Trust Co. of New York. America is clear that a defense, based on an exception of "arrest and restraint of princes" where there is no actual arrest, must establish a danger of capture that was imminent, apparently remediless and morally certain. Craig v. United Insurance Co., 6 Johns. 226; Corp v. United Insurance Co., 8 Johns. 277; Oliver v. Maryland Insurance Co., 7 Cranch, 487; Smith v. Universal Insurance Co., 6 Wheat. 176; Richardson v. Maine Ins. Co., 6 Massachusetts, 102. While these cases arose under policies of insurance, the clause of restraint of princes received the same construction that would be given to it in a charter party or bill of lading. The Xantho (1887), L. R., 12 App. Cas. 503; Hamilton v. Pandorf (1887), L. R., 12 App. Cas. 518; The G. R. Booth, 171 U. S. 450. In case of a deviation to avoid an arrest the shipper must be able to recover his loss either from his insurer, on the ground that the certainty of arrest which is thus avoided is equivalent to an actual arrest within the meaning of his policy, or from the carrier on the ground that the danger was so remote and uncertain that the deviation was not justified. 1 Parson's Ship. and Adm., p. 172. The law in England on the subject accords completely with the decisions in our courts. Hadkinson v. Robinson, 3 Bos. & Pul. 388; Forster v. Christie, 11 East, 205; Atkinson v. Ritchie, 10 East, 530; Nickels v. London & Provincial Marine & General Insurance Co., 6 Com. Cases, 15; Kacianoff v. China Traders Insurance Co. (1914), 3 K. B. 1121; Becker v. London Assurance Corporation (1915), 3 K. B. 410, affirmed (1916), 2 K. B. 156; Mitsui v. Watts, Watts & Co. (1916), 2 K. B. 826, affirmed by House of Lords March 16, 1917. The directors were not justified in speculating on the future and assuming that war would break out. Janson v. Driefontein (1902), A. C. 484, 497, 498; People v. McLeod, 25 Wend. 483. Argument for the Guaranty Trust Co. of New York. 244 U. S. In making this shipment on a German rather than a British steamer it cannot be said that the libelant assumed any risk other than in accordance with the terms of the bill of lading. It must be inferred that both parties expected that the contract would be completely carried out unless in the happening of contingencies mentioned in the bill of lading that might prevent performance. It is not to be presumed, in the absence of all evidence, that either France or England would have committed the hostile act of attempting to arrest and detain this German vessel before a state of war between them and the German Empire existed. Prinz Adalbert, the Kronprinzessin Cecilie, 1916, 32 Times L. R. 378. The liability of the petitioner is to be determined by the posture of affairs that existed. The Savona (1900), Prob. 252, 259. The claimant has been unable to produce any proof that the vessel could not have completed the voyage without the intervention of any excepted peril. On the contrary there is no reason on this record to doubt that if the steamer had proceeded on her voyage, she would have reached Plymouth, discharged her cargo, and left in safety. The abandonment of the voyage would not have been justified if it resulted from an exercise of the master's discretion. If the master can be considered as having exercised any discretion or concurred in judgment with what the owners ordered, it could only be on the assumption that the facts given to him by the owners, in their message, were true. They deliberately told the master a falsehood because they did not dare to rely on his discretion if they told him the truth. The owners' hands are not clean in the matter and they should not be permitted to gain any benefit from their own wrong. King v. Delaware Insurance Co., 6 Cranch, 74. The owner cannot justify its order by assuming there was a shortage of coal. The duty of supplying the vessel with a sufficient 244 U. S. Argument for the Guaranty Trust Co. of New York. quantity of coal for the expected contingencies of the voyage in all its stages was on the shipowner. The Vortigern (1899), Prob. 140; Thin v. Richards (1892), 2 Q. B. 141; McIver v. Tate Steamers (1903), 1 K. B.-362; Greenock S. S. Co. v. Maritime Ins. Co. (1903), 2 K. B. 657. The possibility of increased political tension must have been in the owners' minds when the vessel sailed, and they were bound to supply sufficient coal to meet such expected contingencies. The master had no general discretion to deviate from the voyage except under the compulsion to avoid an excepted peril, imminent, pressing and which had begun to operate. Morrison v. Shaw S. & A. Co. (1916), 1 K. B. 747, 758; 1 Parson's Ship. & Adm., p. 21; The Julia Blake, 107 U. S. 418, 427, 428; Blackenhagen v. London Assurance Co., 1 Camp. 454. His action was not for or in the interest of the shippers. It was not for the success of the voyage but for the sake of the ship. Nobel's Explosives Co. v. Jenkins, supra, and The Styria, supra, do not apply. The master had no general discretion to violate the contract for the sake of other goods and passengers. The case is not one in which the doctrines of general average could have application. It is a necessary inference from The Julia Blake, supra, and other recent authorities that the ordinary authority of a master has lessened very much in recent years. The telegraph has enabled the owner to perform much of the master's work in foreign ports. The system of printed bills of lading, and the extensive development of regular lines of steamers, with their accompanying agents and branches abroad, have converted the master into little more than the chief navigator of the ship. The master had no right to disobey the owners' orders. Codwise v. Hacker, 1 Caines, 526; Robinson v. Hinckley, 2 Paine, 547, 20 Fed. Cas. 1013; The Roebuck, 1 Asp. Mar. Law Cas., N. S. 387. The telegram received by the master on the night of August 1, 1914, twenty-four hours after the steamer had turned back towards New York, purporting to be signed "Country's Naval Office," could not be used to justify the wrongful deviation made twenty-four hours earlier, even if it had been pleaded or properly proved. If the abandonment was not due, in a legal sense, to an arrest and restraint of princes, it constituted a wrongful deviation, and all clauses in the bills of lading that may have been designed to bar or limit any of the libelant's claims for damages were thereby nullified. Mr. James M. Beck, with whom Mr. Carl A. Mead and Mr. Edward E. Blodgett were on the brief, for the National City Bank of New York. MR. JUSTICE HOLMES delivered the opinion of the court. This writ was granted to review two decrees that reversed decrees of the District Court dismissing libels against the Steamship Kronprinzessin Cecilie. 238 Fed. Rep. 668. 228 Fed. Rep. 946, 965. The libels alleged breaches of contract by the steamship in turning back from her voyage from New York and failing to transport kegs of gold to their destinations, Plymouth and Cherbourg, on the eve of the outbreak of the present war. The question is whether the turning back was justified by the facts that we shall state. The Kronprinzessin Cecilie was a German steamship owned by the claimant, a German corporation. On July 27, 1914, she received the gold in New York for the above destinations, giving bills of lading in American form, referring to the Harter Act, and, we assume, governed by our law in respect of the justification set up. Early on July 28 she sailed for Bremerhaven, Germany, via the mentioned ports, having on board 1892 persons, of whom 667 were Germans, passengers and crew; 406, Austrians; 151, Russians; 8, Bulgars; 7, Serbs; 1, Roumanian; 14, English; 7, French; 354, Americans; and two or three from Italy, Belgium, Holland, &c. She continued on her voyage until about 11.05 P. M., Greenwich time, July 31, when she turned back; being then in 46° 46′ N. latitude and 30° 21′ W. longitude from Greenwich and distant from Plymouth about 1070 nautical miles. At that moment the master knew that war had been declared by Austria against Servia, (July 28,) that Germany had declined a proposal by Sir Edward Grey for a conference of Ambassadors in London; that orders had been issued for the German fleet to concentrate in home waters; that British battle squadrons were ready for service; that Germany had sent an ultimatum to Russia, and that business was practically suspended on the London Stock Exchange. He had proceeded about as far as he could with coal enough to return if that should prove needful, and was of opinion that the proper course was to turn back. He reached Bar Harbor,. Maine, on August 4, avoiding New York on account of supposed danger from British cruisers, and returned the gold to the parties entitled to the same. On July 31 the German Emperor declared a state of war, and the directors of the company at Bremen, knowing that that had been or forthwith would be declared, sent a wireless message to the master: "War has broken out with England, France and Russia. Return to New York." Thereupon he turned back. The probability was that the steamship, if not interfered with or prevented by accident or unfavorable weather, would have reached Plymouth between 11 P. M. August 2, and 1 A. M. August 3, and would have delivered the gold destined for England to be forwarded to London by 6 A. M., August 3. On August first at 9.40 P. M., before the earliest moment for probably reaching Plymouth, had the voyage kept on, the master received a wireless message from the German Imperial |