et al.· 'V.
STREET et ale
CC4.rctdt Oourt of Appeal.s, Third. 01h'ouit. May 24, 1892.)
QP PEOPLE"-QUARANTINE. Quarantine which interfere with the charter engagements of a vessel are fairly within the clause of .a charter excepting liability for results caused by "restraints of princes, rulers,and people."
S. SA.ME-DETENTION BY QUARANTISE-DUTY 01' VESSEL WHEN ENDED. A vessel, having by charter agreed to be at a certain port by the 1st of October,
"restraints ()f princes, rulers. and people excepted. It and ha\'ing been prevented from going there during October by quarantine regulations at such port, was held bonnd to have been at the port on tbe 1st of November, when sbe knew the quarantine would be raised. A charter provided that if the vessel should not arrive at Charleston, her loading port, on or before a certain day, charterers should have the.option of canceling the charter, option to be declared when vessel was ready to load.. The vessel being delayed, her agents called upon the charterers, while the vessel was at Boston, to declare whether they would load or not. Charterers declined to exercise their option. whereupon the ship canceled the charter. Held., that such demand by the ship was premature, that cbarterers were not bound to exercise their option until the vessel was at Charleston, and that the st.ip liabie for any dam811B8 caused charterers by her breach of tbe charter. 42 Fed. Rep. 229. aftlrmed.
SAME-OPTIOl'l 01' CANCELLATION-WHEN EXERCISED.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania. In Admiralty. Libel by Thaddeus Street, Timothy Street, and Thaddeus Street, Jr., against James M. Waterbury, owner of the steamship Progreso. Decree below for libelants. DelEmdants appeal. Affirmed. J. W(trren Coul,ston and Robert D. Benedict, for appellants. J. Rodman Paul and N. Dubois Miller, for appellees. Before ACHESON. lJircuit Judge, and WALES and GREEN, District Judges. GREEN, District Judge. From the record in this cause, it appears that in the latter part of August, 1888, the appellant, James M. Waterbury, owner of the steamship Progreso, then on a voyage from Cuba to the United States, did, through his agents, Belloni & Co., of New York city, by a certain charter party. demise and let to freight his said steamship Progreso to the firm of Street Bros., of Charleston, the appellees. The charter party, after providing that the steamship should, with al1 convenient speed. sail and proceed under steam to Charleston, S. C.. there to load from the charterers a full and complete cargo of COttOD in bales, to be conveyed to Liverpool, contained also, inter alia, two clauses or provisions which are of importance in the determination of this litigation, and which read as follows: "Should the steamer not arrive at her loading port, and be in all respecta
ready to load under the cha1·ter, on or before the that lIst) day of October.
1888, the charterers have the option of canceling the same, to be declared when vessel is ready to load. The customs and usages of the ports of loading and discharging to be obser\red,unless otherwise expressed." "The act of God, the queen's enemies, lire, epidemics, strike or lockout of stevedores' men. draymen, or press hands, stoppage or destruction of goods on railway or at press. restraint of princes or rulers or people, collision, any act, neglect, or default whatsoever of pilot, master, or crew, in the management or navigation of the ship, and all other damages and accidents of the seas, rivers. and throughout this whole charter party, being excepted." steam From the evidence in the cause, it appears that the Progreso, having taken on board. at Havana a full cargo of sugar, sailed thence direct for Philadelphia. 1 Reaching the Delaware breakwater on September 3d, she was detained. by the proper authorities for. a few hours at quarantine, and subsequently, for several days, at the lazaretto below Philadelphia, finally arriving at the latter port on September 10th. On that same day, Belloni & Co., agents for the appellant, as stated, evidently having heard rumors of impending or existing quarantine regulations at Charleston, which possibly might interfere with the arrival of the Progresoat that port, wrote to Street Bros. to the effect that the ship would arrive at Charleston about the 20th of September with a clean bill of hp.alth, and asking if, under such circumstances, she would be in danger of. detention at quarantine; expressly stating that they could not afford to send the ship to that port if she was to be quarantined. In reply to this communication, by a note under date of September 12th, Street Bros. notified Belloni & Co. that, after submitting their letter of the 10th September to the board of health, they were officially informed that the Progreso would not be permitted to come up to Charleston, because of, the quarantine,until November 1st. Thereupon, Belloni & Co. ordered the ship tqpr9ceed to New York for repairs, and, declining to keep her idle until she cou.ld safely sail for Charleston, sought and obtained a cargo for an ad interim voyage from Norfolk, Va., to Bremen. She arrived at BrelIlen November 6, 1888. From Bremen she sailed to Hanlburg; aocepted there a return .cargo to Boston, at which port she arrived December 19th. December 20th, the day .following, the Progreso being at Boston, Belloni & Co. made formal application to .. to exercise the option in the charter party reserved to them upon failure of theship.'iO arrive at Charleston on or before October 1st, by requesting a declaration from them whether they would load the ship ifshe then proceeded to Chafleston, to which Street Bros. replied that they would insist upon and claim all their rights under the charter party. Belloni & Co. then finally declined to send the ship to that port, and Street Bros.,cobceiving themselves aggrieved by such action, filed their libel to enforce the recovery of such pecuniary damages as they claimed they had Upon these facts the contention of the appellant is that by the very terms of the charter party the Progreso was not required to go to Charleston if restrained by "princes, rulers, and people," 'aIld that she was in fact so restrained, within the meaning of the charter party, 'by the enforced quarantine at that portj and I secondly; that if' " was bound to go to Charleston, by the terms she i :
of her contract, she fully complied therewith by the tender made immediately upon her arrival at Boston. It may betaken as settled that "detention at quarantine" is fairly included in thescope of that clause in this charter party which has reference to the" restraints of princes, rulers, and people." Quarantine reg. ulations and health laws, so called, although often affecting in their operation a direct and palpable regulation of commerce, are constantly made and prescribed by states, and even by local municipal corporations, and pass everywhere, unchallenged, as the result-of a legitimate exercise of that police power which resides in sovereignty. Such regulations would be worthless unless the enforcement were surejand such certainty of enforcement is attained by virtue of the power of the people', as exhibited and exercised through their governmental agents. It follows, then, that enforced obedience to lawfully-prescribed quarantine reg. ulations is a "restraint" of natural liberty of action devised by and pr().. ceeding from the" people." The Progreso was therefore clearly entitled. to the benefit of this exception as a valid excuse for her default in per:formance of those terms and conditions of her contract, which the quarantine regulations at Charleston deprived her of ability to perform:. What, then, were those terms and conditions? With the performance of what part of her contract did this "restraint" so seriouslyjnterfere?' By the charter party the ship had contracted to arrive at Charleston on October 1st. Doubtless, if her freedom of sailing had not been interfered with by the quarantine regulations of that port, she could readily have complied with her agreement. But the enforcement of these regulatiol1l'; made it simply impossible for her to arrive at that port at the date des" ignated. Not until a month later, November 1st, would she be permit.l ted to reach CharlestoD, as she had been notified. Not until then could she be ready to load. But on that day there would· be, at least;.oo "restraint of people" to bar her movements, or cause further delay and detention., Quarantine regulations were then to be done away Then and after that time they were as if they never had been. The ship would be free to come and go at that port as she pleased. The plain and indeed only result, then, of these quarantine regulations, wt!S to work a temporary retardation in and hindrance of the ship's ments. The "restraint" could be for a limited time only. It operated, iUs true, to delay the arrival of the Progreso at Charleston until November, but then its force would'be spent. For such delay, so caused, this clause in the charter party afforded ample excuse and protection to the ship. An unsurmountable barrier had been placed in her course to hand of the law. Until that barrier was reCharleston by the moved, she was helpless to keep and pe:rform that part of her contract which demanded her presence at the port of loading on October 1st. But, when the cause oiher helplessness was removed, her ability to per'; form was restored to her. Nowhere in the record is anything allegedae excusing her nonperformance after that date. Under the admitted cumstances, her failure to arrive at Charleston on the date fixed Jorarrival is therefore wholly excusable. But no valid excuse existed or has