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expected hazards and contingencies in the adventure, and we must presume that the contract was framed in foresight of both and in provision for both. We cannot step in with another and different accommoda
152-PEVENTION OF CARRIAGE-—
RETENTION OF FREIGHT-CONTRACT.
That the vessel did not break ground for the voyage, an embargo being laid, did not prevent retention of prepaid freight, bill of lading providing for its payment on shipment of goods, and right to retain it; carriage being prevented by causes beyond carrier's control.
tion. It is urged, however, that there is no (Argued Dec. 12 and 13, 1918. Decided Jan. provision in the contract (charter party and bill of lading) of the Oil Company excepting "restraints of princes, rulers and peoples" and that, therefore, the carrier was *not relieved from its obligation by the refusal of clearance to sailing vessels. And it is further urged that such embargo was at most but a temporary impediment and the cargo should have been retained until the impediment was removed or transported in a vessel not subject to it. We cannot concur in either contention. The duration was of indefinite extent. Necessarily, the embargo would be continued as long as the cause of its imposition-that is, the submarine menace and that, as far as then could be inferred, would be the duration of the war, of which there could be no estimate or reliable speculation. The condition was, there-bers; fore, so far permanent as naturally and justifiably to determine business judgment and action depending upon it. The Kronprinzessin Cecilie, 244 U. S. 12, 37 Sup. Ct. 490, 61 L. Ed. 960.
There is no imputation of bad faith. The carrier demonstrated an appreciation of its obligations and undertook their discharge. It was stopped, first by storm, and then prevented by the interdiction of the government. In neither situation was it inactive. It quickly repaired the effects of the former and protested against the latter, joining with the shipper in an earnest effort for its relaxation. It gave up only when the impediment was found to be insurmountable.
The answer to the other contention is that the contract regarded the Allanwilde, a sailing ship, not some other kind of ship or means. The Tornado, 108 U. S. 342, 2 Sup. Ct. 746, 27 L. Ed. 747; The Kronprinzessin Cecilie, supra.
The bill of lading in No. 450 is even more circumstantial. It provided that
(248 U. S. 387) THE GRACIE D. CHAMBERS.
INTERNATIONAL PAPER CO. v. THE GRA
CIE D. CHAMBERS.
"Full freight to destination, whether intended to be prepaid or collect at destination * shall be deemed fully earned and due and payable to the carrier at any stage before or after loading of the service hereunder, without deduction (if unpaid) or refund in whole or in part (if paid), goods or vessel lost or not lost, or if the voyage be broken up."
On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.
Libel by the International Paper Company against the schooner Gracie D. ChamFlorence G. Payne, claimant. Judg. ment for libelant was reversed by the Circuit Court of Appeals (253 Fed. 182), and libelant brings certiorari. Affirmed.
Mr. William C. Cannon, of New York City, for petitioner.
Mr. Robinson Leech, of New York City, for respondent.
Mr. Justice MCKENNA delivered the opinion of the Court.
Libel in admiralty on the schooner Gracie D. Chambers, her tackle, etc., to recover the sum of $5,845 prepaid freight on a cargo of paper loaded on the schooner for shipment from New York to Bordeaux, France, by the International Paper Company. Judgment went for libelant in the District Court. It was reversed by the Circuit Court of Appeals by a divided court (253 Fed. 182). To this action this writ is directed.
The facts as found by the Circuit Court of Appeals are as follows:
"September 14, 1917, the schooner Gracie D. Chambers began to load a general cargo in the port of New York, *to be delivered at Bordeaux. Between September 27 and 29 the libelant Paper Company shipped 120 tons of print paper.
"September 28, at 4:25 p. m., the Treasury Department at Washington telegraphed the collector at the port of New York to withhold clearance of all sailing vessels, any part of whose voyages would bring them within the danger zone. There was no official publication
And there is exemption *from liability "for of this embargo, but it was put into effect beany loss, damage, delay or default ginning September 29, by the refusal of clearance to such vessels as they applied for them.
by arrest or restraint of government, princ- Both the shippers and the shipowners had heard
es, rulers, or peoples.
rumors of the embargo as early as October 1.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
"October 4 the freight was paid against de- [ proclamation, for exportation, carrier could livery of the bill of lading. retain prepaid freight under contract, declaring it is to be considered as earned on shipment of goods, and is to be retained by vessel's owners if there be a forced interruption or abandonment of voyage, and exempting carrier from loss by restraint of princes, rulers, and peoples.
"October 5 the master applied to the collector for clearance, which was refused. He then applied to the authorities at Washington to except this schooner from the embargo, on the ground that she had begun to load before the order was made. Refusal to allow an exception in her favor was not definitely and finally made until October 10. Subsequently the cargo was discharged and the owners refused to return the prepaid freight.
"The bill of lading contained the following provisions:
Restraints of princes and rulers excepted.' "Freight for the said goods to be prepaid in full without discount retained and irrevocably, ship and/or cargo lost or not lost.''
The case was submitted with Nos. 449 and 450, 248 U. S. 377, 39 Sup. Ct. 147, 63 L. Ed. 312, and its primary question is, as there, the sufficiency of the clauses in the bill of lading as a defense. In those cases we decided that the bill of lading expressed the contract of the parties and hence deternined their rights and liabilities. And it is the safer reliance, the accommodation of all the circumstances that induced it. It was for the parties to consider them and to accept their estimate is not to do injustice but accord to each the due of the law determined by their own judgment and convention, which represented, we may suppose, what there was of advantage or disadvantage as well in the rates as in the risks.
It is asserted, however, that the vessel in this case did not break ground and that this fact distinguishes the case from Nos. 449 and 450. The fact does not deflect the principle of those cases. It was not made to depend upon the fact of breaking ground, but upon the bills of lading which provided for the payment of freight upon the shipment of the goods and the right to retain it though the goods were not carried, their carriage being prevented by causes beyond the control of the carrier.
Therefore, upon the authority of those cases, the judgment of the Circuit Court of Appeals in this case is affirmed.
(248 U. S. 392)
On Certificate from the United States Circuit Court of Appeals for the Second Circuit.
Libel by the Standard Varnish Works against the Steamship Bris; Rederiaktiebolaget, claimant. Judgment for libelant, and case taken to Circuit Court of Appeals, which certifies questions (254 Fed. 987) Questions
answered in the affirmative.
"On August 17, 1917, varnish belonging to libelant was shipped by it in the port of New York for Gothenburg, Sweden, upon the steamship Bris, consigned to the Allmanna Svenska Elektriska A. B. Westeras, and the agents for said ship thereupon delivered to libelant a bill of lading, of which a copy is annexed hereto, which formed a contract between libelant and claimant in reference to said goods. Particular reference is made to clause 6, clause 7 and the next to last clause of the bill of lading. The libelant paid in advance the freight mentioned in said bill of lading. At the time of said shipment, shippers were required to obtain export licenses from the British government on cargo of this class, and were also required by
SHIPPING 152-PREVENTION OF CARRIAGE
(Argued Dec. 13, 1918. Decided Jan. 13, 1919.) the United States Statutes to obtain export licenses from the United States government in connection with such articles as the President should, by proclamation, designate. At the time that said shipment was made the President had designated certain articles as to which licenses *must be thus procured when destined for Gothenburg, Sweden, but varnish was not included among them. At the time of shipment,
Vessel being prevented from carrying shipment of varnish to war zone by failure of shipper to procure license, required by President's
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Mr. Justice MCKENNA delivered the opinion of the Court.
This case was submitted with Nos. 449 and 450, 248 U. S. 377, 39 Sup. Ct. 147, 63 L. Ed. 312, and No. 479, 248 U. S. 387, 39 Sup. Ct. 149, 63 L. Ed. 318, being a suit in admiralty, as they were, to recover prepaid freight up
a shipment of articles of merchandise which were not carried to destination, the carriage having been prevented by action of the government. Judgment was rendered for libelant and the case taken to the Circuit Court of Appeals.
The case is here on certificate from that court (254 Fed. 987). induced, as the court recites, by its decision in the case of International Paper Co. v. The Schooner Gracie D. Chambers (No. 479), to review which a certiorari has been granted by this court.
The facts as certified are these:
the libelant presented a license which it had | considered as earned on shipment of the procured from the British government. On Au- goods and is to be retained by the vessel's gust 27, 1917, the President made a further owners, vessel or cargo lost or not lost." The proclamation, effective August 30, 1917, where- declaration is clear, and, in anxiety of purby shippers of varnish and all other cargo destined for Gothenburg, Sweden, were required pose, uses some tautology. The words "preto procure licenses before the same could be paid freight is to be considered as earned" exported. The libelant thereupon made appli- declare a completed right and carried the cation for such a license, and the claimant held power of retention without the expression of its vessel in port until October 8th, to see if the latter. And the expression of the right such licenses could be procured, before begin- and the power cannot be put aside. Counsel, ning the discharge of the cargo. Unless ship- however, would make them purposeless and ments were accompanied by the aforesaid li- would consider the bill of lading as if they censes they were not allowed by the men-of-war belonging to the Allies to proceed to destina- were not contained in it, and urges that the tion. On or about October 8th the United only effect of the refusal of clearance to the States, acting through the Exports Adminis- ship was the "commercial frustration of the trative Board, refused the application for a li- adventure" working a dissolution of the concense to transport the goods mentioned in the tract, absolving from performance but relibel, and other cargo destined for Gothenburg, quiring the restitution of the payments that and claimant thereupon began to unload the were made as the consideration of performcargo of the Bris and concluded the discharge on October 22, 1917. The claimant continued ready and willing to carry said cargo forward if a license therefor were obtained by libelant. The libelant took redelivery of the cargo at the port of shipment and made a demand upon the claimant that the claimant should return the freight paid, which demand was refused. The question aforesaid is as follows:
"1. Did the bill of lading contract justify the carrier, under the facts stated, in refusing to refund the prepaid freight?"
Clause 6 of the bill of lading is as follows:
as earned on shipment of the goods and is to
DETROIT. The material parts of clause *7 are as fol- (Argued Dec. 9 and 10, 1918. lows: 13, 1919.)
1. MUNICIPAL CORPORATIONS 696 PIRATION OF STREET RAILROAD FRANCHISEREMOVAL OF TRACKS.
A city may compel a street railway company to remove its tracks from streets, its franchises for which have expired.
"Also, in case the ship shall be prevented from reaching her destination by * * * war or the hostile act of any power," the master may wait until the impeding obstacle be removed "or discharge the goods into any depot or at any convenient port or bring her. cargo back to port of shipment where the ship's responsibility shall cease.
We are not insensible to the appealing force of the contentions nor to the strength of the argument advanced *to support them, but the contract determines against them and the reasons for assigning to it that effect we have given in our opinions in the other cases.
We, therefore, answer the questions certified in the affirmative. So ordered.
(248 U. S. 429) v. CITY OF
CHARGES ORDINANCES-CONNECTING LINES. 1918, as to street car fares and transfers held Ordinance of city of Detroit of August 9, to apply to entire street railway system, consisting of several lines, franchises for some of which were still in force, while those for others had expired.
Clause 2 should be considered. It exempts the carrier from loss by certain causes or "by arrest and restraint of princes, rulers or peoples."
We think the case is within the principle of the decision of the cases submitted with it. In this case, however, it is urged that the clause relied on by the ship to justify the retention of the advance of freight does not contain the word "irrevocable" and that upon that word stress was put by the Circuit A section of an ordinance, explicitly fixCourt of Appeals and presumably by this ing fares for trips over two or more street car court. The word undoubtedly is one of in-lines, whether or not franchise lines, and limiting maximum charge, without charge for transtensity but its absence does not remove the fers, held, in view of definition in another secmeaning or intention of its associates. Their tion of a continuous trip as a journey from one declaration is that "prepaid freight is to be point to another in the city, whether on one
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
3. CARRIERS 12(10)-STREET RAILROADS— CHARGES ORDINANCES-CONNECTING LINES.
5. STREET RAILROADS
For a city after the franchise of some of the lines of a street railway company have expired to pass an ordinance to continue in force for a year unless sooner repealed, with penalties for its violation, for continued operation of the company's system, with fares and transfers over the various lines, whether or not having a franchise, amounts to a grant to the company for further operation of the system, during the life of the ordinance.
Appeal from the District Court of the United States for the Eastern District of Michigan.
ordinance was passed August 9, 1918. It is printed in the margin.1
Suit by the Detroit United Railway Company against the City of Detroit, Application for temporary injunction was denied, and bill dismissed, and complainant appeals. Reversed.
The bill attacks the ordinance upon two constitutional grounds: First, that it impairs the obligation of the company's existing contracts; second, that it is confiscatory and hence deprives the company of its property without due process of law. The suit came on for hearing before the district judge upon an application for a temporary injunction, the judge denied the application and-upon
his own motion dismissed the bill.
The question upon this appeal is: Did the
1 An ordinance to fix and establish maximum rates of fares and charges which may be exacted and received by persons, corporations or partnerships operating street railways for the carriage of passengers within the city of Detroit, and to fix a penalty for the violation thereof.
Sec. 3. Between the hours of 5 and 6:30 a. m. and
6. CARRIERS 12(9)-CONSTITUTIONAL LAW 135-OBLIGATION OF CONTRACT-STREET RAILROAD FRANCHISE-ORDINANCE.
4:45 and 5:45 p. m. tickets in strips of eight for twenty-five cents shall be sold on all cars on all lines except where such sale would be contrary to the terms of a franchise contract, which tickets The obligation of the franchise contract for shall entitle the holder to the same rights between ,a line of a street railway company, fixing the said hours as the payment of a five-cent fare would. fare on such line at five cents without transfer, Sec. 4. Where a trip is over two or more lines, is impaired, in the case of a continuous trip be-shall be five cents, and no transfer fee shall be exwhether franchise lines or not, the maximum fare 'ginning on a non-franchise line and extending acted which raises the total charge to more than over it and a franchise line, by an ordinance five cents or six for twenty-five cents. requiring all such service for five cents.
Messrs. Allan H. Frazer and Richard I. Lawson, both of Detroit, Mich., for appellee.
It is hereby ordained by the people of the city of Detroit:
Section 1. No person, partnership or corporation operating a street railway on the streets of the city of Detroit, for the carriage of passengers for hire, shall charge more than five cents for a single ride,
or six tickets for twenty-five cents, per person for which is now operated or shall hereafter be operated one continuous trip within the city over any line without a franchise fixing the rate of fare.
Sec. 5. A continuous trip means one journey from Mr. Justice Clarke, Mr. Justice Holmes, and point to point within the city, whether the same is Mr. Justice Brandeis dissenting. made upon one car or one line or by means of transferring from car to car or from line to line. Each such person, partnership or corporation, and the officers, agents, servants and employés thereof, shall, upon demand, furnish proper transfers to carry into effect the provisions of this section. The provisions of this ordinance shall not be construed
as an attempt to impair the obligation of any valid contract, but shall apply to and govern all such street railway passenger traffic in the city, except where the same is governed by the provisions of such contract.
Sec. 2. No such person, partnership or corporation shall charge a higher rate of fare upon any line now or hereafter operated under a franchise
contract than is fixed by such franchise.
Sec. 6. Any such person, partnership or corporation which shall violate the provisions of this ordiMr. Elliott G. Stevenson, of Detroit, Mich., nance, or shall attempt to do so, and any officer, agent, servant or employé who shall order or direct for appellant. any such violation or attempted violation of the provisions of this ordinance, shall be guilty of an offense, and upon conviction shall be fined not to exceed five hundred dollars, or imprisoned in the Detroit House of Correction for not to exceed ninety
Mr. Justice DAY delivered the opinion of days, or shall be both fined and imprisoned in the the Court. discretion of the court, for each violation.
The Detroit United Railway Company brought this action in the United States District Court for the Eastern District of Michigan to enjoin the city of Detroit from enforcing the provisions of an ordinance regulating street railway fares in that city. The
welfare in the case of an emergency involving the Sec. 7. This ordinance is passed for the public peace, health and safety of the people of the city, and it is ordered to take immediate effect. It may be amended or repealed at any time by the common council of the city of Detroit. Unless so amended or repealed it shall remain in force for one year from August 9, 1918.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
bill, taking its allegations to be true, state grounds for relief to which the company was entitled upon the facts set forth? The action of the District Court was equivalent to sustaining a demurrer to the bill.
tem was the only means of transportation of such employés from their homes to their places of employment; and that the interruption of the operation of the company's system, or the separation in operation of the franchise from the non-franchise lines, would paralyze the industrial and business life of the city, throw thousands of its residents out of employment, and result in shutting down its industrial plants and factories. Allegations follow, setting forth the value of the company's property, and stating that the effect of the ordinance, if enforced, will be to require the operation of the company's system at a deficit, and, consequently, with no return on the investment.
The bill alleges that the complainant company is the owner of all the street railways in the city of Detroit, constituting a system of tracks of upwards of 270 miles. The sources of title of the company are set forth in the bill, and shown by many exhibits. It is sufficient for the present purpose to say: That the system consists of a considerable mileage of tracks upon which the franchises have expired; upon other portions of the system there are unexpired franchises, some of them derived from villages in which the [1, 2] The learned District Judge answered roads were constructed, which villages were the contention of the company by holding, in subsequently incorporated into the city. substance, that as to the non-franchise lines That from December 1, 1917, its system the remedy of the company was to abandon was operated, except the so-called three-cent the service and take its property from the lines, upon terms as follows: Five-cent cash city streets, and that as to the franchise fares for each passenger carried on or over lines the exception of the fifth section of the its lines, including so-called universal trans- ordinance saved the company's contract fers, with workingmen's tickets, eight for rights from impairment. There can be no twenty-five cents, between certain hours, and on the so-called three-cent lines a cash question that it was within the city's power fare of five cents, with eight tickets for to compel the company as to its non-frantwenty-five cents between certain hours; chise lines to remove its tracks from the good only on such three-cent lines with the streets of the city. This was settled in Deprivilege of a transfer on payment of a five- troit United Railway Co. v. Detroit, 229 U. cent cash fare, and also with the privilege S. 39, 33 Sup. Ct. 697, 57 L. Ed. 1056. The of purchase of six tickets for twenty-five city did not do so. Instead of taking such accents, also good between certain hours. It is tion it passed the ordinance in controversy, providing for the continued operation of *the averred that afterwards it became necessary to increase rates of fare. The bill recites the company's system. This ordinance has apdemand of the employés of the company for plication to the entire street railway sysincreased wages, which was refused; that tem. In section 1 it provides that no more a submission of the controversy was made than five cents shall be charged for a single to the War Labor Board; that the board ride, or six tickets for twenty-five cents, for after a hearing awarded a substantial in- one continuous trip through the city over any Section crease of wages, and recommended an in-line operated without a franchise. crease in passenger fares to enable the com- 2 purports to preserve the right to charge pany to meet this cost. The bill alleges that franchise rates when fixed by contract. Secthe increase made by the War Labor Board tion 3 provides for fares, eight tickets for amounted to about $2,000,000 per annum. twenty-five cents, except when such fares are The company petitioned the city for an in- contrary to contract rights. Section 4 procrease of rates of fare, and this petition was vides that where a trip is over two or more denied. lines, whether franchise or not, the maximum
On August 7, 1918, the company put in force a schedule of its own, making single fares six cents, with ten tickets for fifty-five cents, cash fare or tickets good on connecting or intersecting lines within the city. It is contended that this action of the company was without legal authority. Whether this was authorized or not, is not an issue involved in this case, and we express no opinion concerning it. The matters involved in this bill concern the validity of the ordinance passed August 9, 1918.
It is further alleged that Detroit is a city of a population exceeding 750,000; that it is an industrial city with much the larger part of its male population employed in industrial plants within and adjacent to the city; that the operation of the company's railway sys
fare shall be five cents, or six tickets for twenty-five cents, and no transfers shall be exacted which raise these rates of fare. Section 5 defines a continuous trip to mean a journey from one point in the city to another, whether on one car line or by means of transfers, and the company is required to furnish transfers to carry the provisions of the ordinance into effect. It is further provided that the ordinance is not to be construed as an attempt to impair the obligation of any valid contract, but shall apply to all street railway passenger traffic in the city except when the same is governed by the provisions of a contract. Section 6 provides for fines or imprisonment for violations of the provisions of the ordinance. Section 7 provides that the ordinance shall be in effect for