N. P. SLOAN CO. v. CHURCHILL LINE et al.

N. P. SLOAN CO. v. CHURCHILL LINE et al. (Circuit Court of Appeals, Second Circuit. December 19, 1924.) No. 25. 1. Shipping <§=>108 — Carrier excused by withdrawal of approval of French High Commission. Under provision of contract for transportation of cotton to France, by certain boat, that contract is subject to approval of the French High Commission, carrier is protected from liability for noncarriage by the Commission’s withdrawal of its original approval. 2. Shipping <§=>l08-‘-Ca!rrier excused by governmental interference; “shipment.” Clause of contract for transportation of cotton to France, by certain boat, that owing to war conditions shipment is accepted at owner’s risk of any interference by any power, excuses carrier, where the French High Commission took all the space on the boat for the benefit of its government, and refused to allow the shipment thereon; the word “shipment” applying as fully to interference with shipment accepted but not loaded as with a shipment actually put aboard. ■ [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Shipment.] Appeal from tbe District Court of tbe United States for tbe Southern District of New York. Suit in admiralty by tbe N. P. Sloan Company against tbe Cbúrcbill Line, wbicb brought in Schneider & Cie. Prom an adverse decree, libelant appeals. Affirmed. Tbe opinion' of Ward, Circuit Judge, in tbe District Court, is as follows: December 31, 1917, tbe libelants entered into a freight contract for tbe transportation of 5,000 bales of cotton on board the Norwegian steamer Plores “expected to arrive about tbe middle of March,” to be transported from Savannah to Havre. Tbe material provisions of tbe contract are as follows: “This contract is subject to approval of tbe Preneh High Commission.” “Owing to conditions of war or hostilities existing and threatened this shipment is accepted at tbe sole risk of owners thereof of arrest, restraint, capture, seizure, detention or interference of any sort by any power. * & *- In January, 1918, the libelant did obtain permit No. 48 for tbe shipment from tbe Preneh High Commission at Washington and delivered tbe same to tbe Churchill Line. Tbe High Commissioner of tbe Preneh Republic to tbe United States wrote: “January 12, 1918. “To Messrs. N. P. Sloan & Company, 319 Chestnut Street, Philadelphia, Pa.- — -Dear Sirs: I beg to acknowledge receipt of your three letters dated January 11th, and I send you herewith permit No. 48 covering shipment of 5,000 bales of cotton to Prance. “I hereby certify that five thousand (5,000) bales of cotton covered by licenses 775 and 764 and consigned to Comptoir National d’Eseompte de Paris Havre, and to be shipped by Messrs. N. P. Sloan-Company, 310 Chestnut, Philadelphia, Pa., per Norwegian steamer Plores (Churchill Line), at. the rate of eleven dollars ($11) per hundred pounds, freight booked on the 31st of December, 1917, said steamer expected ready to load at Savannah about middle of March, 1918, are in compliance with the Preneh Regulations issued on November 22, 1917, and, therefore, their shipment to Prance is authorized.” The word “November” evidently should be “December,” reference being to the decree of that date, Exhibit la. January 23, 1918, the Churchill Line wrote to the J. H. W. Steele Company, who had taken space, as follows: “We beg to advise you that we have just received, notification that the S. S. 'Plores* has been requisitioned by the government, and therefore engagement No. 1505 for 5,000’ bales cotton made through you for account of N. P. Sloan Company is canceled. Would suggest that you inform shippers immediately by wire regarding this. “We regret very much to have to cancel the engagement, but, under the circumstances, there is nothing else to be done.” . Thereafter both parties made all possible efforts to get the French government to permit the shipment, but without success. The Preneh High Commission in the United States, appointed in pursuance of the decree of April 15, 1917, took up all freight space on the steamer for her fifth voyage from Savannah to Prance for the benefit of the Preneh government, shipping 1,700 tons of cotton for its account at a freight rate of $5 per 100 pounds instead of $11, which the libelant had agreed to pay. There could be no plainer revocation of its original permit. The libelant brought this suit against Churchill Line to recover damages sustained by it in shipping the cotton at a higher rate of freight, and the Churchill Line brought in Schneider & Cie, as its principal, under the fifty-ninth rule in admiralty. Assuming, as the libelant contends, that Steele & Co. were the agents of the Churchill Line and that the libelant did not know and were not told that the Norwegian steamer was chartered to Schneider & Cie, a French firm doing business in Paris, I think the libelant is not entitled to recover. All parties clearly understood that for some reason the consent of the French, government,to the shipment had to be obtained. The original permit referring to the regulations of December 22d (not November 22d) shows that the steamer was at the disposal of the French government; France could refuse to permit shipment to its ports even on neutral vessels. It is equally clear that the French High Commission withdrew its original approval. The French government made no contract with any one and could not be held if it had. It had a right to change its mind for any reason satisfactory to it. Determinations of sovereigns are absolute, whether they are right or wrong. Therefore I think the 'Churchill Line is protected from liability by the provision of the contract makifig the contract subject to the approval of the French High Commission and also by the provision that the shipment was accepted at the sole risk of the owners thereof of interference of any sort by any power. The word “shipment” applies as fully to interference with a shipment accepted but not loaded as with a shipment actually -put aboard. The libelant says that there is no proof that the sailing in June was the fifth voyage of the steamer. It was the fifth voyage between Baltimore and France. It was so stipulated at the trial, and there was no such voyage in March. The contract was canceled by the Churchill Company in January, and it is of that cancellation that the libel-ant complains. It makes no difference to the ease it presents whether the steamer ought to have arrived in March and did not arrive until May or June. The question is whether the Churchill Line under its terms is excused from carrying out the contract. I think it is. The libel is dismissed, as is the petition bringing in Schneider & Cie. June 20, 1923. Macklin, Brown & Van Wyck, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellant. Haight, Smith, Griffin & Deming, of New York City (Clarence B. Smith and Frank A. Paul, both of New York City, of counsel), for appellees. Before HOUGH and MANTON, Circuit Judges, and LEARNED HAND, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. Decree affirmed, upon the opinion of Ward, Circuit Judge.