Sec. 817. (§ 458.) Same subject-Acceptance of proceeds of sale made without consultation with owner not an acceptance of the goods. When in the absence of the owner, and without consultation with him, the goods have been sold by the carrier at the place of detention, and the proceeds have been accepted by the owner, the receipt of such proceeds is not equivalent to an acceptance of the goods at the intermediate place of disaster, and does not estop him from disputing the claim of the carrier to freight. And if it should appear that the sale was made without authority, the carrier will be allowed no compensation whatever for the service actually performed; as, for instance, if the goods have been sold on account of the unfitness of the vessel, which had been disabled by a storm, to carry them further; or under the decree of a court, which was subsequently reversed as erroneous; or by a person who assumed to act for the owner, but really had no authority.10 Sec. 818. ($459.) Same subject-How when transportation to destination impossible. These cases, however, as was said in Vlierboom v. Chapman,11 furnish no authority in cases in which the sales of the property were rightfully made; but the law was ruled the same way in that case, notwithstanding the validity of the sale was admitted. After stating the general rule, that in order to justify a claim to pro rata freight there must be a voluntary acceptance of the goods at the intermediate port in such a mode as to raise a fair inference that the further carriage of them was intentionally dispensed with, and the inapplicability of the cases where the sales had been made tortiously, Parke, B., proceeded to answer the argument based upon the validity of the sales, as follows: "But it was said that where the goods were lawfully sold from necessity, the case was different; for that, in such a case, neces 8. Hunter v. Princep, supra; 10. Penoyer v. Armroyd v. The Ins. Co., supra; Callender v. The Ins. Co., supra. 9. Caze v. The Ins. Co., supra; Columbian Ins. Co. v. Catlett, supra. Hallett, 15 Johns. 332; Escopiniche v. Stewart, 2 Conn. 391. 11. 13 M. & W. 230. sity imposed upon the master the character of agent for the shipper, in addition to his ordinary one of agent for the shipowner, and that, having that double agency, he might be presumed to have intended to make a reasonable contract between his two principals; that is, on behalf of the ship-owner, to give up the goods at the intermediate port, instead of carrying them on; and on behalf of the shipper to receive them there, and pay reasonable freight for the part of the voyage already performed. It is difficult to conceive any conjuncture in which such a presumption could be made; for the agency of the master from necessity arises from his total inability to carry the goods to the place of destination, which dispensed with the performance of that primary duty altogether; and the right to freight pro rata, from the presumed waiver on the part of the shipper of the performance of a duty which the master was ready to execute. At all events, we think that no such presumption can be made in this case. According to the statement in the special case, an emergency had arisen, in which, as the law is laid down by Lord Stowell, in the case of The Gratitudine, the authority of agent for the shipper necessarily devolved upon the master to do the best for his interest, and that was to sell, because the cargo was perishable, and would have perished if it had been left at the Mauritius, or been attempted to be carried to its place of destination. This sale, therefore, transferred the property and bound the shipper; but in no other respect did the necessity, under the circumstances of this case, confer upon him any agency. But if we suppose that he had a further authority, and that instead of being master he had been supercargo, and that his sale of the goods had been equivalent to a sale by the defendants themselves, present at the Mauritius, there would have been no reasonable ground to infer a new contract to pay freight pro rata; for the ship-owner was not ready to carry forward to the port of destination, in his own or another ship, and, consequently, no inference could arise that the shippers were willing to dispense with the further carriage, and accept the delivery at the intermediate instead of the destined port. The truth is, that the goods were in the same situation, as to the claim for freight, as if they had been abandoned by the ship-owner and left behind at the Mauritius, and there sold by the owner. This view of the case accords with the decisions in the American courts to which we were referred,12 in both of which it was held that, if the cargo is sold at an intermediate port for the benefit of all concerned, no freight is due." It may, therefore, be stated that no freight can become due where the transportation of the goods to the place of destination has become impossible, and the voyage is abandoned, even where the impossibility arises from their perishable nature, and they have been consequently sold under the authority conferred upon the carrier by the necessity of the case, and the proceeds of the sale have been accepted by their owner.13 But it has been held in admiralty with respect to the carriage of goods for long distances under bills of lading which recognize several distinct carriers and stages of transportation that, when the further transportation of the goods is prevented by some incapacity in the goods themselves and a condition of things arises which makes a sale, or a delivery to some one representing the owner at one of the recognized points of trans-shipment where there is a market, the only really practicable course, a reasonable rule of partial compensation for the service performed may be applied.14 Sec. 819. (§ 460.) Same subject-How when carriage interrupted by war.-If, subsequently to the contract of carriage, the nation to which the carrier belongs engages in a war with the nation to which the destined port belongs, and the carrier 12. Armroyd v. The Insurance Co., supra; Hurtin v. Union Insurance Co., supra (cited in the note to Mr. Justice Story's edi tion of Abbott on Shipping). 13. Richardson บ. Young, 38 Penn. St. 169; The Ship Nathaniel Hooper, 3 Sum. 542; Jordan ย. The Warren Ins. Co., 1 Story, 342; McGaw v. The Ocean Ins. Co., 23 14. Insurance Co. v. Southern Pacific Co., 72 Fed. 285, 18 C. C. A. 561, 38 U. S. App. 243, affirming 55 Fed. 8; Scow No. 190 and 450 Bales of Cotton, 88 Fed. 320. finds upon arrival in its neighborhood that he cannot enter without imminent risk of capture, he may decline to attempt to do so, and may retire to a port of safety, there to await further orders from the shipper, without forfeiting his claim to pro rata freight, if he has, notwithstanding, performed a valuable service to the shipper. This was decided in the case of The Teutonia,15 a Prussian vessel which contracted to carry a cargo from South America to the port of Falmouth, and thence to such destination as the shipper might direct. On arrival at Falmouth, orders were given to proceed with the cargo to Dunkirk. Upon arrival in the neighborhood of the latter place, the master was informed of the commencement of hostilities between the French and Prussians. He therefore returned to Dover to await the orders of the shipper, who demanded his goods, and denied the right of the carrier to any compensation. But his claim to the goods without the allowance of freight was not allowed, and the learned judge, Sir R. Phillimore, in his judgment in the case, uses language worthy of attention. After stating the facts, he proceeded to say that, "in this state of facts, I am of opinion that the Teutonia would have incurred a double risk in proceeding to Dunkirk. She would have been exposed to the peril of being seized by a French cruiser on the ground of her Prussian nationality, and of being seized by a Prussian cruiser on the ground of her trading with and carrying contraband of war to the enemy. The information which the pilot gave her off Dunkirk was substantially correct. War had in fact broken out, or was so imminent as to render Dunkirk an unsafe port for a Prussian vessel. . . . But I do not find any case which goes the length of saying that where a supervening moral impossibility, arising out of the prohibition imposed by a law not applicable, or not existing, at the time of the making of the contract, has prevented its fulfillment, the merchant is entitled to have his goods carried by the ship almost, as in this case, the whole length of the voyage, without any compensation to the shipI find no authority for the position that the owner. 15. L. R. 3 Adm. 394. contract is dissolved in the sense of rendering null all that has been previously done under it, though it is dissolved as to all future consequences. This may be the doctrine of the common law, where a physical unexpected obstacle which might have been guarded against in the contract prevents the completion of it; but in this instance, the completion is prevented by the act of the law itself. The old case of Paradine v. Jane,16 and others founded upon the principles therein contained, have been cited to me as authorities for the contention that the Teutonia was guilty of a breach of contract in not proceeding to Dunkirk, even in the circumstances. which I have stated. The propositions of law in Paradine v. Jane are 'where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him; but 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 provided against it by his contract.' But assuming that this is at present a correct exposition of the law of England (though the last proposition is, I think, not in harmony with the jurisprudence of any other European state), it does not seem to me to affect this case. Indeed, it has not been denied that if the contract has become illegal in virtue of a law subsequent to it, the non-execution of the contract is no breach." Sec. 820. ($461.) Same subject-Rule for adjusting freight pro rata.-The rule for adjusting pro rata freight where it is allowed, adopted by Lord Mansfield in Luke v. Lyde,17 is to ascertain how much of the voyage has been performed when the disaster happened which compelled the vessel to seek a port. In The United Insurance Co. v. Lenox,18 it was decided that the true measure of the amount was to be found in the proportion of the voyage performed, not at the place where the accident happened, but at that where the 16. Aleyn, 26. 17. 2 Burr. 882. 18. 1 Johns. Cas. 377, 2 id. 443. |