* 21 reached Port Empedocle, Sicily, her sec-| goods, and that a sulphur ship had been ond loading port. Her master began at once taken. In obedience to the instructions to load on board the sulphur in question, from the managing agents, as well as beand by April 24 it was all on board, bills cause he saw in the newspapers that the of lading therefor (containing the provisions sulphur was contraband of war and he concopied in the margint) had been signed, and sidered it unsafe to carry it, the master bethe vessel cleared from the custom-house, gan to reland the sulphur at Port Empeand ready to proceed on her voyage to Mes- docle on April 27, and had it all unloaded sina and Palermo for a cargo of fruit, and and warehoused by May 7. At the beginthence to New York. ning of the unloading on April 27, he gave In the meantime, unknown to the master, notice in writing to the shippers, and to the war had broken out between the United consignees named in the bills of lading, that States and Spain. On April 20, Congress "on finding risky my passage to New York passed, and the President approved, the with the actual sulphur cargo, for facts of joint resolution recognizing the freedom and war," he was discharging the cargo for the independence of Cuba, and demanding that account and risk of the shippers, "under the government of Spain relinquish its au- care of the mercantile agent, Mr. William thority in the island and withdraw its land Peirce, depositing the same in the* wareand naval forces. 30 Stat. at L. 738. On houses of Mr. Zenobia Urso here, and, if the same day the Spanish minister in Wash- these are not sufficient, in the warehouses of ington demanded and received his passports. the British consulate, faculty which I have On April 21, the American minister at in force in the bills of lading." On the Madrid was informed that the diplomatic re- same day he gave notice in writing to the lations between the two governments were Austrian consul at Girgenti "that, by order broken off, and he left that same day. On of the representative of my owners, for facts April 22, the first overt act of war, the cap- of war," he was discharging and warehouseture of the Spanish merchant steamship, the ing the sulphur from the Styria, for whom Buena Ventura, was committed. The Buena it might concern; and also gave notice in Ventura, 175 U. S. 384, sub nom. The Buena writing, through the Austrian consul, to the Ventura v. United States, 44 L. ed. 206, 20 director general of the customs at Girgenti, Sup. Ct. Rep. 148. On April 25, Congress that, having loaded the sulphur on the Stypassed an act declaring that war had ex- ria, "and sulphur being declared contraband isted since April 21. 30 Stat. at L. 364, of war, war actually existing between Spain chap. 189. On April 23, the Queen Regent and the United States of America, in behalf of Spain issued a decree announcing the ex- of the present laws, I deem it in the interistence of war with the United States; au-est of all whom it might concern to disthorizing the Royal Navy, "in order to cap-charge the whole sulphur here on receiving ture the enemy's ships, to confiscate the the necessary permit from the customs;" enemy's merchandise under their own flag, and asking that duties might be remitted on and contraband of war under any flag," to reshipment. On April 30 and May 2, the exercise the right of search on the high seas shippers of the sulphur protested against and in the territorial waters of the enemy; the unloading; and on May 3 and 5, respectincluding, under the denomination of con- ively, the master replied that he, "in distraband, "powder, sulphur, saltpetre, dyna-charging the goods, acted as was his right, mite, and every kind of explosive;" and charging the Minister of State and the Minister of Marine with the fulfilment of this decree. On April 23, the master of the Styria received a telegram from Burrill & Sons, her managing agents, directing him not to sail until further orders; and on April 25 another telegram directing him "to discharge whole cargo as quickly as possible." The master had by this time learned that war existed, and that sulphur was contraband. He knew that his course would take him within a few miles of the Spanish coast, in order to sight the lighthouses; and he had seen in an Italian newspaper that Spanish men-of-war were looking for contraband †To be delivered at the port of New York, "restraints of princes and rulers or people" and other specified perils "excepted; with liberty (in event of steamer putting back to this, or into any other port, or otherwise being prevented from any cause from commencing or proceeding in the ordinary course of her voyage) to ship or transship the goods by any other steamer." "In case of blockade or Interdict of the port of discharge, or if, without such blockade or interdict, the master shall consider it unsafe, for and in the best interest of the goods, which is confirmed by the fact, published in the papers, and discussed in the Italian Parliament, that sulphur had been declared contaband of war by one of the belligerent powers." And at the conclusion of the unloading, on May 7, the master gave notice to the shippers that, as soon as they paid the expense incurred on their account, the sulphur would be delivered to them; and to the consignees that the sulphur was lying in the warehouses at Port Empedocle, at the risk and expense of whom it might concern. The exportation of sulphur is one of the principal industries of the island of Sicily, and immediately after the declaration of war Sicilian merchants urged the Italian any reason, to enter or discharge cargo there, he is to have option of landing the goods at any other port which he may consider safe, at shipper's risk and expense, and on the goods being placed in charge of any mercantile agent or of British consul, and a letter being put into the postoffice, addressed to the shipper and consignee, if named, stating the landing and with whom deposited, the goods to be at the shipper's risk and expense, and the master and owners discharged from all responsibility." for the useful information of merchants, agreed between Spain and Italy that the Spanish ships had instructions to let sulphur go free; but "it was not given officialÎy, only a matter of verbal arrangement. Of course, the verbal arrangement you can't believe." Early in the morning of May 8, the master sailed, without the sulphur, to Palermo, and thence to Messina, took on board at each place a cargo of fruit, and on June 3 arrived at New York. Soon after the arrival there, these libels were filed. government to request Spain to exempt it from the list of contraband. The Giornale di Sicilia, a newspaper of Palermo, each issue of which had a double date, and was read by the master of the Styria on the day of its publication, contained, according to the translations in the record, the following information on the subject: On April 2425, 1898, it was stated that the merchants of Messina had requested their deputy in the Italian Parliament to urge the government to induce Spain to exclude sulphur from being considered contraband of war; and that the deputy had been assured that the Minister for Foreign Affairs would tel- The master also testified that on the evenegraph to the Italian ambassador in Madrid ing of May 7 he saw a notice from the Austo obtain what was required from the Span-trian consul, saying that there had been a ish authorities. On April 26-27, it was communication from the prefect that it was stated that Spain included sulphur in the list of contraband of war, and that the Italian Council of Ministers had decided to induce Spain to revoke its decision. On April 27-28, it was stated that an Italian deputy had asked the Minister of Foreign Affairs in Parliament whether sulphur had been excluded from the list of contraband of war. On April 29-30, it was stated that the Spanish government had not yet pronounced it self upon the Italian demand to exclude sul phur from the list of contraband of war; that the Italian ambassador had been promised an immediate decision; that the Spanish Minister of Marine seemed decidedly adverse to the demand; but that it was hoped it would be conceded. The paper of May 1-2 contained, under date of May 1, from an anonymous correspondent at Rome, these statements: "Although the official advice has not yet arrived, I assure you absolutely that the Spanish government has determined to exclude sulphur from the list of contraband of war. The Popolo Romano, confirming my information, says that the relative decree is imminent which has been provoked by the insistence of our ambassador in Madrid, who obtained from Sagasta that he should unite the Council of Ministers, in which, notwithstanding the opposition of the Minister of Marine, the opinion prevailed to exclude sulphur from contraband." The Official Gazette will publish the decision regarding sulphur. Meantime the Spanish government has already ordered the commanders of its ships to allow sulphur to pass free." The It appeared from inquiries made by the paper of May 3-4 contained, under date of Foreign Office in London, and by the AmerMay 3, from its Roman correspondent, this ican Ambassy in Italy, in June and July, statement: "The Department of Foreign 1898, that the actual state of facts was as Affairs decided not to publish in the Official follows: The Spanish Minister for Foreign Gazette the Spanish government's decision Affairs verbally stated to the Italian amregarding the exclusion of sulphur from con-bassador at Madrid, on April 29, 1898, traband of war. But the Minister of the and to the British ambassador at Interior sent a circular to all the prefects in Sicily, informing them of the orders relative to the free navigation of cargoes of sulphur." The Giornale di Sicilia of May 7-8, 1898 (which did not reach the master before he sailed from Port Empedocle), contained, under the heading "The Exportation of Sulphur may be continued," the following: "The Prefettura also with its communication confirms to us that the exportation of sulphur, notwithstanding the Spanish-American war, may continue. Indeed, the Spanish government has officially declared, in the circular to the commandants of their ships, that sulphur is not to be considered as contraband of war. An official and public declaration is lacking, but there is no doubt that sulphur will pass freely." On May 10, 1898, the Foreign Office in London, answering a telegram from Burrill & Sons, wrote them: "Spanish government state that decree already issued cannot be altered, but that as temporary measure Naval Departments have been ordered not to treat sulphur as contraband of war. They lay stress on the fact that the measure is temporary only." On Madrid, on May 6, 1898, that while the decree of April 23 could not be altered, orders would be given to the Naval Departments, as a temporary measure, not The Giornale di Sicilia of May 5-6, 1898, to treat sulphur as contraband of war. contained, under the heading "Sulphur is May 31, 1898, the Spanish Minister, in a not War Contraband," the following: note to the British ambassador at Madrid, "From the Minister of Agriculture, Indus-stated that the treatment of sulphur as contry, and Commerce, the following telegram traband of war would be temporarily sus has been sent: 'Chamber of Commerce, Pal- pended; that the orders which had been ermo: I inform the Chamber of Commerce, given to that effect would not be revoked 8 Messrs. Latham G. Reed, John M. Bowers, and Bowers & Sands for Parsons. Messrs. Edward B. Hill and William J. Curtis for Malcolmson. without due notice; and that the eventual Messrs. Charles C. Burlingham, Harrevocation of the orders would not, in any rington Putnam, and Wing, Putnam, & Burcase, apply to vessels at sea in ignorance of lingham for Morgan et al. it, while the necessary time would be given for the execution of pending contracts. It did not appear that Spain ever made any public announcement of the modification of her intentions in regard to the treatment of sulphur, or ever agreed to let sulphur go free permanently. A vessel which lay alongside the Styria at Port Empedocle, loading sulphur, sailed before she did, and arrived at New York in safety on May 19. Two other vessels laden with sulphur came safely from the Sicilian port of Licata to the United States about the same time. And no sulphur ships were taken by Spain during the war. Mr. Melville H. Regensburger and Messrs. Stern & Rushmore for Munroe et al. *Mr. Justice Shiras delivered the opinion of the court: The master of a ship is the person who is intrusted with the care and management of it, and the great trust reposed in him by the owners, and the great authority which the law has vested in him, require on his part and for his own sake, no less than for the interest of his employers, the utmost fidelity and attention. Abbott, Shipping, 7th Am. ed. 167. It was well said by the district judge in the present case, that "though exceptions Presently after the signing of the Peace Protocol between the United States and Spain on August 12, 1898, the parties to these cases stipulated in writing that the steamship company should forward the sul phur from Port Empedocle by the first availnoted in the bill of lading contemable vessel to New York, and deliver it to plate cimcumstances of war, and are therethe consignees, upon the terms and for the fore applicable in the extraordinary circumfreight specified in the original bills of lad- stances that arose, still the carrier is not ing; that the sulphur, upon arrival, should thereby relieved from the duty of acting be sold at current market rates, and the pro- with reasonable prudence for the interests ceeds, less charges incurred, be credited on of all concerned. The master, as the agent account of the damages, if any, recovered by of all concerned, is still bound to a prudent the libellants; that, if the Styria was justi-regard for the interests of the cargo, and fied in relanding and storing the sulphur as 'must endeavor to hold the balance evenly' was done, the company should have a lien between ship and cargo when their interests upon the sulphur for the charges against it conflict." in Sicily; and that, if it was not so justified, the sulphur should be free from any charges except freight. "All will agree that the master must act in good faith and exercise his best discre tion for the benefit of all concerned." New Under this stipulation, the steamship England Ins. Co. v. The Sarah Ann, 13 Pet. company paid the expenses of storage in 400, 10 L. ed. 219; The Amelie, 6 Wall. 27, Sicily, and reloaded the sulphur and brought sub nom., Fitz v. The Amelie, 18 L. ed. 808. it to New York in its steamship Abazzia, The good faith of the master and his reasailing September 4, and arriving Septem-sonable exercise of discretion must be conber 30, and there delivered it to the consign-sidered and determined in the light of the ees, who paid the freight as agreed, and sold facts in each particular case. The term the sulphur at the current market rates."discretion" implies the absence of a hardAnd the company filed cross libels for the and-fast rule. The establishment of a clearcharges in Sicily. The district court found for the libellants, holding that the discharge of the cargo was too hasty and precipitate, and not justified by the facts of the case; and entered decrees for the libellants in small amounts, and dismissed the cross libels. 93 Fed. 474, 95 Fed. 698. Both parties appealed to the circuit court of appeals, which held that the sulphur was rightly discharged, but should have been reloaded before the Styria left Port Empedocle; and entered decrees for the libellants for increased damages, and upon the cross libels for the expenses of unloading, ware housing, and reloading in Sicily. 41 C. C. A. 639, 101 Fed. 728. The cases were then brought to this court by writs of certiorari, granted on petitions of both parties. 179 U. S. 683, 45 L. ed. 385, 21 Sup. Ct. Rep. 926, 179 U. S. 685, 45 L. ed. 386, 21 Sup. Ct. Rep. 917. Messrs. J. Parker Kirlin, Charles R. Flickor, and Converse & Kirlin for petition ET. ly defined rule of action would be the end of discretion, and yet discretion should not be a word for arbitrary will or inconsiderate action. "Discretion means the equitable decision of what is just and proper under the circumstances." Bouvier, Law Dict. "Discretion means the liberty or power of acting without other control than one's own judgment." Webster, Dict. Courts, in passing upon such questions, should endeavor to put themselves in the position of the actors in the transaction, and not be ready to find that the course actually pursued was blameworthy because the results were unfortunate; what those concerned have a right to demand of a master, when confronted with unexpected emergencies, is not an infallible, but a deliberate and considerate, judgment. Mere good faith will not excuse him, if his decision turns out to have been wrong, but the result is not always a true criterion whether a man pursued a prudent course or not. Holladay v. Kennard, 12 Wall. 254, 20 L. ed. 390. Applying these principles to the facts of the present case, we have to inquire whether the conduct of the master of the Styria | sulphur would be delivered to them; and to showed a reasonable exercise of judgment, the consignees that the sulphur was lying having regard to the rights of the owners of in the warehouses at Port Empedocle, at the vessel and those of the several owners the risk and expense of whom it might conof cargo. That the situation was a difficult one is obvious, and is shown by the fact that the learned judges of the courts below, though having the advantage of a full disclosure of the facts and of able discussion by counsel, disagreed on the critical question in the case, whether the master was right in deciding that it was his duty to reland and store the contraband goods. cern. were The learned judge of the district court held that, while the bills of lading contemplated circumstances of war, and therefore applicable, yet that the master's right under them could not be exercised without waiting a reasonable time to see whether the danger of continuing the voy age with the sulphur might not be removed by negotiation between the Italian and Spanish governments. He thus expressed himself: As both the district court and the circuit court of appeals held that, within the provisions of the bills of lading, the master had the right to decide on the course to pursue, whether to discharge the sulphur, or to refuse to sail until there was some reasonable assurance of safety, or to immediately proceed on his voyage, it is unnecessary for us to discuss the meaning of the bills of lading As heretofore stated, the Styria was an in that regard, but only to determine Austrian steamship, owned by the Austro- whether the decision of the master, to disAmericana Steamship Company, and Burrill charge and warehouse the goods, was a rea& Sons of Glasgow were her managing sonable exercise of the discretion vested in agents. She sailed April 16, 1898, with him. some cargo, from Trieste via Sicilian ports for New York, and on April 21 reached Port Empedocle, Sicily, her second loading port. Her master began at once to load on board different lots of sulphur owned by the libellants, and by April 24 it was all on board, bills of lading therefor had been signed, and the vessel cleared from the custom-house, and was ready to proceed on her voyage to Messina and Palermo for additional cargo of fruit, and thence to New York. On April 27, the master, having "The sulphur being generally regarded as learned that war between Spain and the contraband of war, and also within the exUnited States had broken out, and being press terms of the Spanish proclamation, a aware that sulphur was a contraband arti- voyage through the Mediterranean, past the cle, began to reland the sulphur at Port Em- coast of Spain and through the Straits of pedocle, and had it all unloaded and ware- Gibraltar, would presumably be pecuniarhoused by May 7. He gave notice in writ-ily dangerous to the cargo, even though the ing to the shippers, and to the consignees named in the bills of lading, that, "on finding risky my passage to New York with the actual sulphur cargo for facts of war," he was discharging that portion of his cargo. On the same day he gave notice in writing to the Austrian consul at Girgenti "that, by order of the representative of my owners, for facts of war," he was discharging and warehousing the sulphur from the Styria, for whom it might concern; and also gave notice in writing, through the Austrian consul, to the director general of the customs at Girgenti, that, having loaded the sulphur on the Styria, "and sulphur being declared contraband of war, war actually existing between Spain and the United States of Amer ica, in behalf of the present laws, I deem it in the interest of all whom it might concern to discharge the whole sulphur here on receiving the necessary permit from the customs;" and asking that duties might be remitted on reshipment. On April 30 and May 2 the shippers of the sulphur protested against the unloading; and on May 3 and 5, respectively, the master replied that he, "in discharging the goods, acted as was his right, and in the best interest of the goods, which is confirmed by the fact, published in the papers, and discussed in the Italian Parliament, that sulphur had been declared contraband of war by one of the belligerent powers." And at the conclusion of the unloading, on May 7, the master gave notice to the shippers that, as soon as they paid the expense incurred on their account, the vessel, as a neutral, might not be liable to assurances I must find, therefore, that the ship was not justified by clauses (a) and (b) of the bill of lading . . in discharging and storing the cargo on account of the shippers, as she did, between April 27th and May 7th; that by the 10th of May there was reasonable assurance that it would be safe to go on with the voyage, and that this was not an unreasonable time for the ship to wait under the facts and circumstances ས currently known in Sicily at that time." 93 | We understand that the district court Fed. 474, 95 Fed. 698. The circuit court of appeals took a different view of the duty of the master to suspend his voyage and await the uncertain results of the rumored negotiations, and held that he had a right to unload the cargo of sulphur when he did. The following quotations sufficiently show the reasoning of the court: reached this same conclusion, but found the ship in fault because she did not wait a reasonable period to see if there might not be some reasonable assurance of safety, and held that 'the commencement of the discharge on the 27th was too hasty and precipitate.' This brings us to the next branch of the case. "When two nations formally proclaim the "It seems manifest that, upon the out- existence of a state of war between thembreak of war, a voyage with contraband on selves with all the solemnity observed in board to the port of one of the belligerents this instance, it would seem to be going too might fairly be regarded as a risky piece of far to say that parties whose contracts are business. The suggestion made upon the ar- affected thereby should wait some indefinite gument that the naval power of Spain was time, which a court shall find reasonable, in not such as would induce a 'man of ordi-a vague expectation that the belligerents nary courage, judgment, and experience' to may think better of it and make peace. A hesitate to proceed, is of no weight. We situation is quite conceivable, where delay may not attribute to the captain of the Sty: ria knowledge gained after the event; and indeed this court is not advised of any historical facts which would warrant the conclusion that it was not entirely within the power of Spain, during the first few months of the war, to arrest and search every vessel westward bound through the Straits of Gibraltar, and picking her way along by the lighthouses on the Spanish coast. istence, of war, and yet might fall short of being such authoritative evidence of a state of belligerency as would justify a master in treating any part of his cargo as being thereby made contraband. But the situation shown here was a very different one. Both nations had united in proclaiming to the whole world that they were at war, and we know of no reason why the master of any vessel of a neutral nation was bound to wait twenty-four hours, or twenty-four days or twenty-four weeks, to see if the two belligerents would not settle their differences. might fairly be required. Thus the minister of one power or the other might demand his passports, or the day named in an ultimatum might pass without compliance with its requirements, or a squadron of the war vessels of one power might impress seamen from the deck of the war vessel of another power, as the Carnatic and her consorts did with the Baltimore in 1798, or the war vessel of one power encountering the war We do not find it necessary to discuss this vessel of another upon the high seas might branch of the case, because we find in clause pour_broadside after broadside into her, as (a) abundant authority for a refusal to the Leopard did with the Chesapeake in carry forward the sulphur, while such a con- 1807,-any one of which acts would seem to dition of affairs existed as that already de-import the imminence, if not the actual exscribed as being generally known to exist, when the discharge began on April 27. There is no logical difference between a restraint of princes and rulers exercised by a cruiser, with power to visit, search, and seize, lying 2 leagues off Port Empedocle, and that exercised by a half dozen cruisers patrolling a narrow strait through which, if the voyage be made, the vessel must pass. Under such circumstances the owner of contraband cargo (loaded as this was before war broke out) could with reason insist that it would be gross negligence on the part of the ship to bring his cargo forward. Moreover, it "As soon as he learned that war was would certainly be unreasonable to require declared the master knew that the cargo the ship to remain in port with the contra- he had taken on board at Port Empedocle band cargo on board until the war should was contraband. 'I knew,' says he, 'that cease, a period of months, possibly years. sulphur is to make* gunpowder. Everybody The owners of other cargo not contraband knows that. I thought it must be have rights as much, if not more, entitled to contraband.' We should have some doubts consideration than those of the owners who as to the efficiency of a master for internahave been unfortunate enough to ship the tional commerce who did not know that sulcargo which has produced the risk. phur was contraband of war. It certainly Inasmuch as the master, where the con- should be a safe assumption for the master tract was made in time of peace, could prop- of a neutral vessel to make that he cannot erly decline to carry forward a cargo which carry such cargo to the ports of one belby the subsequent breaking out of war had ligerent without risking its seizure by the become contraband, we fail to see why he other; and, in the absence of special circumshould not have the right to land such con- stances, there would seem to be no necessity traband cargo, with all proper precautions to wait for further assurance in that regard. as to safekeeping, thus leaving his ship free In the case at bar, however, there were specto discharge its obligations to innocent car-ial circumstances which will be next considgo without risk or delay by reason of an actual arrest, which would be caused only by the presence of such contraband cargo. The ship made no contract to carry contraband of war to the port of a belligerent, and should not be held to the obligations of a contract into which she has never entered. ered. "The exportation of sulphur is one of the greatest industries of the island of Sicily, and the Italian government was naturally solicitous that the trade in sulphur with the United States should not be interfered with. It now appears in the record, by re |