Compagnie de Commerce v. Hamburg Amerika

[No. 10986. March 31, 1917.
COMPAGNIE DE COMMERCE ET DE NAVIGATION

D'EXTREME ORIENT, plaintiff and appellant, vs. THE
HAMBURG AMERIKA PACKETFACHT ACTIEN
GESELLSCHAFT, defendant and appellant.
1. SHIPPING; ALIEN ENEMY VESSELS; DAYS OF

GRACE AND SAFE CONDUCTS.—The Sixth Convention,
adopted at the Second Hague Peace Conference (1907),
recognized the practice of granting "days of grace" and
"safe-conducts" to enemy merchant vessels found in the
port of a belligerent at the commencement of hostilities,
not as a right, but simply as a privilege, a délai de faveur,
which may be accorded or refused at the option of the
belligerent.
2. ID. ; ID. ; ID.—The f act that there was so substantial a

divergence of views among the conferees representing
their respective governments at the Second Peace
Conference, with regard to the existence and binding
character of a duty in this regard under accepted rules of
international law, as to make it impossible for the
conferees to agree upon a convention setting forth
anything beyond "a pious wish" in the' premises, justifies
the conclusion that thereafter, at least, adherence to the
practice by a belligerent could not be demanded by virtue
of any convention, tacit or express, universally recognized
by the members of the society of nations; and may be
expected only when the belligerent is convinced that the
demand for adherence to the practice inspired by his own
commercial and political interests, outweighs any
advantage he can hope to gain by a refusal to recognize
the practice as binding on him.
3. ID.; ID.; ID.; DEVIATION.—The master of a German

vessel, .the Sambia which had just completed loading a
cargo of rice meal in the French port of Saigon, at the
outbreak of the present war, for delivery in Dunkirk or
Hamburg, under a contract of affreightment with a French
shipper, fled with his vessel and her cargo and took refuge
in Manila Bay, Held: That under the circumstances
surrounding the flight of the vessel, her master had no
such assurance, under any settled rule of public
international law, as to the immunity of his vessel from
seizure by the French authorities in Saigon as would
justify holding that it was his duty to remain in that port,
in the hope that he would be allowed to sail for the port of
destination designated in the charter party with a laissez-
passer or safeconduct, which would secure the safety of his
vessels and cargo en route.
591
VOL. 36, MARCH 31, 1917. 591
Compagnie de Commerce etc. vs. Hamburg Amerika etc.
4. ID. ; ID. ; ID. ; ID.—Although the Republic of France

appears to have authorized and directed the grant of "days
of grace" and "safe-conducts," soon after the outbreak of
the war, to enemy merchant vessels in its harbours;
nevertheless, until such action had been taken the master
of the Sambia had reasonable grounds to apprehend
danger of seizure by the French authorities in the event
that the French Government should decline to conform to
the practice; and in the absence of any assurance in that
regard upon which the master could confidently rely, his
duty to his owner, and to his vessel's flag, justified him in
fleeing from danger of seizure in the port of an enemy, to
the absolute security of a neutral port.
5. ID.; ID.; ID.; ID.—Under the general provisions of

maritime law, and the express provisions of the charter
party which contained a mutual exception with relation to
"The act of God, the King's enemies, etc.," the shipowner
was relieved from liability for the deviation of the Sambia
from the route prescribed in the charter party, and the
resultant damages to the cargo.
6. ID.; VESSEL IN PORT OF REFUGE; DISPOSITION OF

CARGO.—Under ordinary circumstances, it may fairly be
presumed in the absence of instructions from a shipper
whose goods are found aboard a vessel lying in a port of
refuge, whose master has been compelled to abandon the
attempt to transport the cargo in his own vessel, that the
shipper's interest will be consulted by forwarding his
property to the port designated by him in the contract of
affreightment; when practicable, therefore, the master is
bound to act for the cargo owner in that way; but when the
condition of the cargo is such as to render it inadvisable to
attempt to tranship, or if there is ground to believe that
such will be the case before suitable means of
transhipment can be secured, the duty clearly rests upon
the master to make such other advantageous disposition
of the property of the absent shipper as circumstances will
permit.
7. ID. ; ID. ; ID.—Under all the circumstances as set out in

the opinion in the case at bar, Held: That the interests of
the absent shipper were consulted by the sale rather than
the transhipment of the perishable cargo aboard the
Sambia; and that it was the duty of the master to sell
rather than to tranship the perishable cargo aboard his
vessel.
8. ID.; ID.; ID.—A shipmaster must be allowed a reasonable

time in which to decide what course he will adopt as to the
disposition of his cargo, after entering a port of refuge; and
though he must act promptly thereafter, when the cargo is
a perishable one, neither he nor the shipowner is
responsible for loss or damage suffered by the cargo as a
result of its detention aboard
592
592 PHILIPPINE REPORTS ANNOTATED
the vessel during such time as may be reasonably

necessary to come to a decision in this regard.
9. ID.; ID.; ID.; FORCE MAJEURE.—Held: That under all

circumstances set out in the opinion, the master of the
Sambia proceeded with all reasonable dispatch, and did
all that could be required of a prudent man to protect the
interests of the owner of the cargo aboard ,his vessel; so
that any losses which resulted from the detention of the
cargo aboard the Sambia must be attributed to the act of
the "Enemy of the King," which compelled the Sambia to
flee to a port of refuge, and made necessary the retention
of the cargo aboard the vessel at anchor under a tropical
sun, and without proper ventilation, until it could be
ascertained that the interests of the absent owner would
be consulted by the sale of this perishable cargo in the
local market.
10. ID.; ID.; ID.; ABANDONMENT OF CLAIM FOR
FREIGHT.—Where a master relinquishes the attempt
either to carry on the goods on his own ship or to send
them to their destination in another ship, he thereby
wholly abandons any claim for freight in respect to them,
unless it has been made payable in advance, or
irrespective of delivery; where freight is only payable on
delivery, no part is earned until it is delivered.
11. ID.; ID.; ID.; ID.—Carrying the cargo of the Sambia from
Saigon to Manila was not even a partial performance of
the contract of affreightment which provided for its
transportation from Saigon to Europe; and even if it could
be treated as such, the shipowner would have no claim for
freight, in the absence of any agreement, express or
implied, to make payment for a partial performance of the
contract.
12. ID; CHARTER PARTY; ACTION FOR BREACH.—A

provision in a charter party for the settlement of disputes
by a reference to arbitration in London is waived by
appearing and answering without objection, and seeking
affirmative relief, in an action for the breach of the charter
party instituted in the courts of the Philippine Islands;
and neither party to such an action will be permitted to
submit the issues raised by the pleadings for adjudication,
without objection, and then, when unsuccessful assail the
court's jurisdiction on appeal, in reliance upon a
stipulation in the charter party which he was at entire
liberty to waive if he so desired.
13. ID.; ID.; QUESTIONS OF GENERAL AVERAGE.—Under

the "YorkAntwerp Rules" of 1890, by reference to which it
was expressly stipulated in the charter party of the
Sambia all questions of general average should be settled,
general average is not allowed unless the loss or damage
sought to be made good
593
VOL. 36, MARCH 31, 1917. 593
as general average has been incurred for the "common

safety" of ship and cargo.
14. ID.; ID.; ID.—The following general rule of maritime law
prescribing the conditions under which a claim for general
average contribution on account of ship's expenses, cited
and adhered to: "Expenses voluntarily and successfully
incurred or the necessary consequences of resolutions
voluntarily and successfully taken, by a person in charge
of a sea adventure, for the safety of life, ship and cargo,
under the pressure of a danger or total loss or destruction
imminent and common to them, give, the ship being
saved, a claim to general average contribution."
15. ID.; FLIGHT OF VESSEL NOT FOR THE COMMON

SAFETY.—In fleeing from the port of Saigon, and taking
refuge in Manila Bay the master of the Sambia was not
acting for the common safety of the vessel and her cargo.
The French cargo was absolutely secure from danger of
seizure or confiscation so long as it remained in the port of
Saigon, and the flight of the vessel was a measure of
precaution adopted solely and exclusively for the
preservation of the vessel from the danger of seizure or
capture.
16. ID.; MODIFICATION OF JUDGMENT.—So much of the

judgment as provides for the delivery to the plaintiff of the
net proceeds of the sale of the cargo (P128,977.71)
affirmed; but so much thereof as allowed damages for a
breach of the charter party (P60,841.32) reversed.
APPEAL from a judgment of the Court of First Instance of

Manila. Harvey, J.
The facts are stated in the opinion of the court.
Gilbert, Cohn & Fisher for plaintiff-appellant.
Crossfield & O'Brien for defendant-appellant.
CARSON, J.:
For a statement of this case on appeal we cannot do better

than to set forth the substance of the carefully prepared
opinion in the court below, and the assignments of error by
counsel on the appeals brought here by both parties.
"This is an action by the Compagnie de Commerce et de

Navigation D'Extreme Orient, a corporation duly organized and
existing under and by virtue of the laws of the Republic of France,
with its principal office in the city of Paris, France, and a branch
office in the city of Saigon, against
594
the Hamburg Amerika Packetfacht Actien Gesellschaft, a

corporation duly organized under and by virtue of the laws of the
Empire of Germany, with its principal office in the city of
Hamburg, Germany, and represented in the city of Manila by
Behn, Meyer & Company (Limited), a corporation. The plaintiff
seeks to recover the full value in Saigon of a certain cargo of the
steamship Sambia, alleged to amount to the sum of P266,930,
Philippine currency, and prays that certain proceeds of the sale of
said cargo, amounting to P135,766.01, now on deposit in this
court, be applied on said judgment, and that judgment be
rendered in favor of the plaintiff and against the defendant for
such sum as may represent the difference between the said
amount and the value of the payment and delivery unto plaintiff
from. said deposit, with legal interest and costs of suit.
"This is essentially a suit for damages growing out of the 'f
ailure, refusal and neglect of the defendant to safely carry the
said merchandise and cargo as in said charter party and bills of
lading provided,' as shown by paragraph XI of the complaint and
other allegations of said complaint.
"The plaintiff alleges (1) that on June 17, 1914, the defendant
chartered and hired unto the plaintiff the steamship or vessel
called the Sambia f or the purpose of carrying a full cargo of rice,
rice bran and cargo meal from the port of Saigon to the port of
Dunkirk and Hamburg, via Suez Canal, upon the terms and
conditions set forth and contained in the written charter party
made and executed between the said parties on said date, a copy
of which is attached to the complaint, marked Exhibit A; (2) that
about July 28, 1914, under and in pursuance of said charter
party, the plaintiff loaded and shipped on board the Sambia at
said port of Saigon, destined for said ports of Dunkirk and
Hamburg, via Suez Canal, certain merchandise and cargo as
listed in Paragraph III of the complaint; (4) that upon the loading
and shipment of said cargo on board the Sambia the master
thereof, in due course, and in representation of said defendant,
duly signed, executed and delivered
595
VOL. 36, MARCH 31, 1917. 595

to the plaintiff good and sufficient bills of lading for the said
cargo; that save and except for the negotiation of said bills of
lading unto the Hongkong & Shanghai Banking Corporation as
security for the due acceptance and payment of certain bills of
exchange drawn by plaintiff, the plaintiff has been and still
continues to be the sole and exclusive owner and holder of said
bills of lading and of the cargo described in the complaint Which
is evidenced thereby; (5) that about August 2, 1914, the said
steamship Sambia sailed from the said port of Saigon bearing on
board the said cargo, and acting under and in pursuance of orders
from the defendant, as owners of said vessel, but without the
consent or approval of plaintiff as the charterer of said vessel and
the owner of said cargo, and against the protest of plaintiff, the
said vessel wholly failed, omitted and refused to sail unto said
destinations of Dunkirk and Hamburg, or unto either of them, or
unto any of the ports of call in the due course of said stipulated
voyage, but wilfully and intentionally deviated from the said
stipulated voyage and sailed to the port of Manila, Philippine
Islands; that said vessel arrived at Manila on or about August 8,
1914, and has wilfully and intentionally abandoned the said
stipulated voyage and has remained at Manila continuously f rom
the said 8th day of August, 1914, until the present day; (6) that
upon the arrival of said vessel at Manila, the defendant wholly
failed, omitted and refused to tranship the said cargo of the
plaintiff and to forward the same unto the stipulated destinations
thereof, as in duty bound, and, in the absence of plaintiff, as
owner of the said cargo, wrongfully and unlawfully detained the
said cargo and the whole thereof at said port of Manila; (7) that on
September 10, 1914, the defendant in the absence of plaintiff,
sought and obtained by means of a petition filed in cause No.
12235 of this court, the authority of this court to discharge the
said cargo of the plaintiff from the said vessel, and to sell the
same at private sale, and sought and obtained the designation of
Behn, Meyer & Company (Limited), of Manila, P. I., as agent of
the said S. S.
596

Sambia and the master thereof in making the said discharge and
sale of said cargo; (8) the defendant, purporting to act under and
in pursuance of said authority so obtained, has heretofore sold
and disposed of the said merchandise and cargo, or so much
thereof as then and there remained, and has paid and deposited
in this court, as the proceeds of said sale, the sum of P135,766.01,
subject to the further order of this court upon the determination
of the person or persons who may be entitled thereto; (9) that
plaintiff is informed and verily believes, and therefore alleges, any
and all claims and demands of third persons in and to or against
the said proceeds of said sale have been wholly paid and satisfied
and that no person or persons other than this plaintiff has any
right, title or interest in or to said deposit of P135,766.01; (10)
that the true value and market price of said merchandise and
cargo above mentioned and described f. o. b., Manila Bay, was and
is not less than P266,930, and the true value and market price of
the same in the market of Manila was and is the said value
increased by the customs duties and landing charges thereof, and
the value and market price thereof in the markets of Dunkirk and
Hamburg was and is the said sum increased by the freight,
insurance, interest, landing expenses, and other costs and charges
requisite and necessary for the transfer of said merchandise and
cargo unto said ports of destination thereof; (11) that under and
by virtue of said failure, refusal and neglect of the defendant to
safely carry the said merchandise and cargo as in said charter
party and bills of lading provided, there has been wholly lost unto
the plaintiff the said sum of P266,930, Philippine currency, and
said loss has been diminished only in said sum of P135,766.01 so
deposited as aforesaid, or by so much thereof as shall be paid and
delivered unto plaintiff free and discharged of any and all adverse
claims, charges, or liens of third persons.
"The plaintiff prays:
"1. That the proceedings known and designated as No.

12,235 in this court be wholly merged and
consolidated with this cause.
597
VOL. 36, MARCH 31, 1917. 597

"2. That the said deposit of P135,766.01, Philippine

currency, be paid and delivered unto this plaintiff
free and discharged of any and all adverse claims,
charges or liens of third persons.
"3. That the plaintiff have judgment against the
defendant in the said sum of P266,930, Philippine
currency, or in such other sum as may represent
the difference between the said amount and the
value of the payment and delivery unto plaintiff
from said deposit, together with interest thereon at
the legal rate until paid.
"4. That plaintiff have judgment for its costs of suit
and for such other and further remedy and relief as
may be proper in law and in equity.
"The Exhibit A attached to the complaint is here referred to as the
charter party between the plaintiff and the defendant, dated June
17, 1914, without giving a synopsis of its contents.
"The defendant by its answer (1) makes a general denial, and
(2) admits the first paragraph of the complaint, except that
portion which alleges that the defendant has been represented in
Manila by Ernest Vietmeyer, the master of the steamship
Sambia, and alleges that the said Vietmeyer does not and has not
at any time represented the defendant and has only represented
the freight and cargo of the said steamer to the extent of
attempting to collect freight and to make delivery and sale of the
said steamer's cargo; (3) admits the second paragraph of the
complaint, except that portion which alleges that the cargo was to
be transported to the ports of Dunkirk and Hamburg, and in
respect to that portion alleges that the transportation contract
between plaintiff and defendant, which is made part of plaintiff's
complaint, provides that said steamer should proceed to Dunkirk
and Hamburg 'or so near thereunto as she may safely get;' (4)
admits paragraph 3 of said complaint; (5) admits paragraph 4 of
said complaint, except that portion which alleges that the bills of
lading were negotiated to the Hongkong and Shanghai Banking
Corporation as security for the acceptance and payment of
598

bills of exchange drawn by plaintiff, and, having no information in

relation thereto, denies the same,- and except that portion of said
paragraph 4 which alleges that the plaintiff has been and still is
the sole and exclusive owner and holder of bills of lading of the
cargo of the said steamer, and alleges in respect to both of said
portions of said paragraph 4 of said complaint that in another
proceeding in this court, numbered 12235, entitled 'ln the matter
of the petition of Ernest Vietmeyer as captain of the German
steamer Sambia for judicial authority to sell and dispose of cargo,'
the said Hongkong & Shanghai Banking Corporation made and
presented a claim for the said cargo of the said steamship Sambia
and proceeds from the sales thereof, alleging that it was the
holder and owner of the said bills of lading of said cargo and was
entitled to the possession thereof; (6) further answering a portion
of paragraphs 5 and 6 of the complaint, the defendant specifically
denies that through the sailing master, or any other officer of the
said steamship Sambia, or in any other way, by its orders, or
otherwise, it refused sailing of said steamship to the ports of
Dunkirk and Hamburg, or either of said ports, or any other ports
of call, or that said steamship wilfully deviated from the due
course of her voyage, and specifically denies that the said
steamship abandoned the voyage which it was agreed should be
made in defendant's contract with the plaintiff, as set forth in the
charter party, and defendant specifically denies that it has ever
refused to tranship the cargo of said steamship or to forward the
same to its destination, or that it has detained the said cargo
otherwise than as in its answer set forth, and that plaintiff,
through its representative in Saigon, not only knew of the
intention of sailing said steamer from Saigon to Manila, instead of
upon its regular course, but consented thereto and approved
thereof as the sailing of the said steamer in stress to a port of
safety for the purpose of saving both the said steamship and its
cargo from total loss; that said steamship is ready to sail and will
proceed upon its regular voyage
599
VOL. 36, MARCH 31, 1917. 599

to Dunkirk and Hamburg as soon as the conditions of war now

existing between the Empire of Germany and other nations of
Europe will permit, and that defendant has never in any way
been requested to tranship the cargo of the said steamship or to
forward the same to its destination, and has not detained said
cargo in Manila, or elsewhere, except as in the answer set forth;
(7) the defendant admits paragraph 7 of plaintiff's complaint, and
alleges in respect thereto, and calls attention to, the allegations
contained in defendant's cross-complaint and counterclaim.
"The defendant files a cross-complaint and counterclaim, and
(1) reiterates the admissions made in paragraph 2 of the answer
and makes the same a part of the crosscomplaint, and (2) alleges
that the steamship Sambia was under charter to the plaintiff to
load cargo, as provided in the charter party which is made a part
of this crosscomplaint, and was loading at Saigon, a French port,
on the 2d day of August, 1914, and it was rumored that war had
been declared between the Empire of Germany and the Republic
of France, and thereupon the master of said steamship, fearing
seizure because the said steamship was registered and sailing
under the German flag and the port she was then in was a French
port, desired to leave said port of Saigon, but was required by
plaintiff to complete the loading of the total cargo called for by the
said charter party, which the said master proceeded to do, and
completed the loading so as to leave the said port on the 4th day
of August, 1914, which was done, and said rumors of the
declaration of war having been verified, the said master and the
plaintiff's representative at Saigon, one Ducasse, concluded that it
would not be safe for said steamship to proceed on its voyage to
Dunkirk and Hamburg, nor to stay in said port of Saigon, and
thereupon the master and said representative went to the French
Governor at Saigon and asked for a pass or safe-conduct to the
port of Manila, but the said Governor refused to issue such pass
or safeconduct for the reason that he had not been officially
notified
600

of said declaration of war, and thereupon plaintiff's agent at

Saigon procured from the proper authorities the necessary
clearance papers for the said steamship and its bill of health for
the port of Manila, which the said master and said representative
decided was the nearest safe and neutral port of refuge, and
thereupon the said master sailed the said steamship to the said
port of Manila where he arrived with said steamship on the 8th
day of August, 1914, where he, with said steamship, has been
obliged to remain continuously since, because of the conditions of
war existing which render the said steamship and cargo subject to
seizure anywhere outside of a neutral or German port by any
hostile nation with which the Empire of Germany is at war; (3)
that almost immediately upon the arrival of said steamship at
Manila, the defendant, through its agent in Manila, cabled
plaintiff in relation to the steamship's cargo and sought
instructions as to the disposal of it, but received no answer, and
again cabled and still received no answer, and then wrote the
plaintiff advising that the cargo had been inspected by the official
surveyor, and that it was becoming heated and weevily, and there
was no immediate prospect that the said steamship would be able
to continue its voyage and that the said cargo would be sold, and
that the German consul at Manila had instructed its sale, and
that it was for the best interests of the plaintiff and for the
insurers of said cargo to do so in order to realize something from
the said cargo, and asked that the consular invoice of said cargo
be sent to the plaintiff's agent in Manila in order that the cargo
might be discharged in Manila with the permission of the
Customs authorities; that still receiving no answer from the
plaintiff, the defendant applied to this court and obtained
authority on the 10th day of September, 1914, to dispose of the
cargo as set forth in paragraph 7 of plaintiff's complaint, and
proceeded to the sale thereof, and again advised plaintiff by letter
under date of September 21, 1914, of the action taken, the amount
of cargo sold at that time and the
601
VOL. 36, MARCH 31, 1917. 601
difficulties attending the sale, and in October the def endant's

said agent received from plaintiff a letter, as follows:
" 'Compagnie de Commerce et de Navigation d'ExtremeOrient.
" 'Saigon le 1 October, 1914.
" 'Messrs. Behn, Meyer & Co., Ltd.,
" 'Manila.
" 'Dear Sirs:
" 'We beg to acknowledge receipt of your favors of the 7 & 21 of

September. We have received none of your telegrams.
" 'SS. Sambia. Our opinion is that the matter of the ss. Sambia
has to be discussed between the owners of the steamer and the
underwriters of the war risk.
" 'Up to now we have not received any instructions either
directly or indirectly to interfere and we shall abstain from doing
so without exact orders.
" 'Anyhow we shall be very much obliged for every information
you might be able to give us on the subject.
" 'We are, dear sirs,
" 'Yours faithfully,
(Sgd.) " 'Compagnie de Commerce et de
Navigation de Extreme Orient.
"'Le Directeur;'"
that the sale authorized was proceeded with and all of the
cargo available was disposed of, and the balance which was putrid
and unfit for sale was dumped into the sea by order of the
authorities of the port of Manila, and report was made to the
court and the product of the sale of said cargo, amounting to
P135,766.01, was deposited in court, under the order of the court,
notwithstanding the fact that the master of said steamship
making the sale under the court's authority had paid of the
amount deposited to Behn, Meyer & Company, a corporation and
defendant's agent at Manila, the sum of P60,841.32 for freight
charges upon said cargo, the sum of P18,259.18 as a deposit to
insure the payment of general average in lieu
602

of bond for general average against said cargo, and the sum of
P18,259.18 as compensation to Behn, Meyer & Company, which
had been authorized by this court to make sale of said cargo as
agent for the master of said steamship and for the steamship
itself, for its compensation in doing so; (4) that said Behn, Meyer
and Company deposited out of its own funds the total of said three
amounts mentioned in the preceding paragraph, in all P97,359.68,
of which the said Behn, Meyer & Company has already accounted
to the defendant for the sum of P79,100.50 and having so
accounted in good faith, the defendant is bound to see said Behn,
Meyer & Company safe from loss and to reimburse that
corporation in the sum of P79,100.50; (5) that said def endant has
and claims a lien upon the said sum deposited in Court as
aforesaid to the amount of P79,100.50 on account of freight and
general average deposited as stated, and the amount of
P18,259.18 as fees for the expenditures and services performed by
Behn, Meyer & Company in the sale of said cargo, which the
defendant is obligated to pay to Behn, Meyer & Company; (6) the
defendant further alleges that in addition to the amount stated
and claimed by the said master, Vietmeyer, of said steamship
Sambia he has spent the sum of P608.64 for internal revenue
taxes upon the sale of said cargo; (7) the defendant alleges that
Behn, Meyer & Company in obtaining discharge of said cargo, as
agent of the said master and of the said steamship, and making
sale hereof under the authority stated, was obliged to execute for
customhouse bonds in the sum of P100 each, conditioned for the
production of consular invoices of said cargo sold, and this
defendant is obliged to hold the said Behn, Meyer & Company
harmless on account of the execution of said bonds; and that
plaintiff has refused and still refuses to produce the said invoices
as required by law; that the customs authorities of the port of
Manila now require the satisfaction of said bonds and the
defendant is obliged to pay - the amount thereof in the sum of
P400 and has and claims a lien on the funds deposited in this
court to the amount of P400; (8) that defendant, since
603
VOL. 36, MARCH 31, 1917. 603

the steamship Sambia arrived at the port of Manila up to March

31, 1915, has incurred expenses for wages and maintenance of the
steamship's crew, the cost of entering the port of Manila,
unloading of cargo, repairs of the steamer made necessary
because of her coming to a port of ref uge, for the upkeep and
other expenses incidental to the said steamer, sojourning in said
port of Manila as a port of refuge, amounting to P33,436.61 for
which the defendant claims general average against the said
cargo of the said steamer, and, as the said cargo has been
disposed of, against the proceeds of sale, the balance of which is
on deposit with this court, and that the defendant has and claims
a lien upon said deposit in the sum of P33,436.61; (9) the
defendant further alleges that the said steamship Sambia is still
in the port of Manila, as a port of refuge, and is unable to leave for
the same reasons which caused her coming to the port of Manila,
which still exist; that she was obliged to enter this port; that there
is no probability that said steamship will in the near future be
able to resume her regular voyage which was interrupted by her
entry in the port of Manila, and that defendant will be obliged to
incur other and further expenses after the 31st of March, 1915, in
the payment of wages and maintenance of the ship's crew and
maintenance of the steamship itself, and other things, and that
such expenses will be a general average charged against the said
cargo of said steamship against the plaintiff, and, as the cargo has
been sold, against the proceeds thereof now on deposit with this
court, and the defendant claims a lien upon said deposit for such
future expenses by way of general average; (10) the defendant
further alleges that the insurers of said cargo and the amount of
said insurance are known to the plaintiff and are unknown to the
defendant, and that such insurers are chargeable on the general
average with the loss sustained by the defendant as set forth in
the foregoing cross-complaint and counterclaim, arising f rom the
f act that the said def endant was obliged to enter and remain in
the port of Manila as a port of refuge to save both said steamship
and her cargo
604

from entire loss, occasioned by the capture and seizure thereof by

one of the nations with which the Empire of Germany was at war
at the time when the said steamer sought refuge, and with whom
the said Empire of Germany has continuously since been at war;
(11) the defendant further alleges that the plaintiff is not now
entitled to any judgment against the defendant for any sum
whatever or against the proceeds from sale of the cargo of said
steamer Sambia, and not until general average shall have been
adjusted between the defendant as owner of the said steamship
and of the freight charges upon the cargo and. the plaintiff as
owner of the cargo, or any other person or entities having an
interest in the transportation of said cargo from Saigon to the port
of destination.
"The. defendant prays that the plaintiff take nothing by its
action; that general average be adjusted as set forth by defendant,
and then only for such amount as may appear due to the plaintiff
from such adjustment; that defendant have judgment against the
plaintiff for freight due upon said cargo amounting to P60,841.32
and for such further amount as may be found due the defendant
upon the adjustment of general average; for the sum of P608.64
paid for Internal Revenue taxes, and for the sum of P400 on
account of bonds to produce Consular invoices, and that all of said
amounts be declared a lien upon said deposit in court as far as the
same shall be sufficient, and for such other and further amounts
as the said defendant shall hereafter be entitled to as expenses for
the maintenance and wages of crew of the said steamer, and for
the maintenance of the said steamer and any other expenses
properly chargeable to general average, and for the costs of this
action.
"The plaintiff denies each and every and all and singular the
allegations of the said cross-complaint and counterclaim, and the
whole thereof. * * *
"The pleadings in this case might indicate that there is
considerable dispute about the facts, but there is not. The
principal and material facts are not in dispute, and are
substantially as follows:
605
VOL. 36, MARCH 31, 1917. 605

"1. That the steamship Sambia, registered in Germany

and sailing under the German flag, and owned by
the defendant, under and by virtue of a charter
party dated June 17, 1914, proceeded to the port of
Saigon and was there taking on a cargo belonging
to the plaintiff when on the second day of August,
1914, there were rumors of impending war between
Germany and France and other nations of Europe.
"2. That on said second day of August, 1914, the
master of ,the steamship Sambia received an order
from the owner of said steamship to proceed at once
to a neutral port for refuge, the port of Saigon being
a French port; that the plaintiff objected and
insisted that the said steamship should load the
whole cargo in accordance with the terms of the
charter party; that the master complied and the
said steamship remained in the port of Saigon and
the loading was completed during the night of the
third day of August, 1914.
"3. That the plaintiff did all within its power to prevent
its property from leaving the port of Saigon, and to
that end made application to the judicial
authorities at Saigon for the compulsory detention
of the vessel, which application failed, and the
Governor of Saigon ref used to issue to the master
of said steamship a safe-conduct because he had not
been officially notified of the declaration of war.
"4. That on August 4,1914, the said steamship sailed
from Saigon, having cleared officially for Dunkirk
and Hamburg, but the master and the agent of said
steamship also obtained and took along a bill of
health for Manila, issued by the United States
consul at Saigon.
"5. That the steamship Sambia, came directly f rom
Saigon to Manila, where it arrived on the 8th day of
August, 1914, and where she has remained
continuously ever since owing to the condition of
war existing between Germany, France, Great
Britain and Russia, and where the defendant says
she will be compelled to remain until said war
conditions cease.
"6. That upon and after the arrival of said steamship at
Manila no attempt was made by the owners, master
and
606

agent of the said steamship to complete the voyage

according to the charter party or to deliver the said
cargo to the stipulated destinations, or to tranship
the said cargo to said destinations, or to conserve
the perishable merchandise composing the said
cargo.
"7. That on or about August 7, and 14, 1914, the
defendant's agent in Manila, Behn, Meyer &
Company, attempted to communicate with the
plaintiff by cable messages to Saigon, making an
offer to purchase the cargo on said steamship, but
the messages were not received by the plaintiff and
therefore were not answered; that on September 7,
1914, the defendant's said agent wrote to the
plaintiff in relation to the cargo informing it of the
condition of same;
"8. That on September 10, 1914, a survey was made of
the said cargo, and it was found to be weevilly and
heating, and the master of said steamship
thereupon applied to this court for authority to sell
said cargo, and under such authority the cargo was
sold for the sum of P182,591.46, and the balance of
said cargo was dumped into the sea by order of the
port authorities as unfit for sale, and the proceeds
of the sale in the sum of P135,766.01 after
deducting certain expenses incident to the sale,
were deposited in this court to await the orders of
the court.
"9. That on September 21, 1914, the defendant's said
agent at Manila again wrote to the plaintiff
informing the said plaintiff of the disposition which
had been made of the said cargo, and thereafter, on
October 1, 1914, received an answer to said letters
of September 7 and 21, 1914, in which the plaintiff
said: 'Up to now we have not received any
instructions either directly or indirectly to interfere,
and we shall abstain from doing so without exact
orders.'
"10. That the value of the cargo which is the subject
matter of this action, at the time of its loading at
Saigon was the invoice price of P266,930, and that
at the port of destination said cargo would have
been worth its said invoice price plus the freight
thereon to the respective ports of destination.
"11. That the freight on the cargo from Saigon to
Dunkirk and Hamburg, according to the charter
party, amounted
607
VOL. 36, MARCH 31, 1917. 607

to P60,841.32 and no part of the freight on said

cargo has been paid by the plaintiff.
"12. That no other person, company or entity than the
plaintiff, so far as the evidence shows, has any
right, title, interest or claim in and to the said cargo
of the steamship Sambia, or to the proceed thereof,
the subject-matter of this action.
"13. That the defendant claims that more than P33,000
have been expended by it in the upkeep and
maintenance of the said ship and crew since arrival
in Manila Bay, and that for this and future
expenses of the same character the defendant
claims a lien upon the proceeds of the sale of said
cargo by way of general average.
"14. That the defendant claims a lien on the proceeds of
the sale of said cargo for the payment of the sum of
P18,259.18 to Behn, Meyer & Company as its
commissions for making the sales of said cargo.
"15. That the defendant claims a lien upon the proceeds
of the sale of said cargo for the freight claimed
under the terms of the charter party, amounting to
P60,841.32 and for the sum. of P608.46 for the
internal revenue taxes on the sale of said cargo, and
for the sum of P400 to cover the amount of bonds
given by its agent to the customs authorities in
Manila to guarantee the production of the consular
invoices for said cargo, which consular invoices the
plaintiff refuses to produce.
"Upon a consideration of all the facts in evidence and of the

arguments of counsel, the authorities cited and other
authorities pertinent to the questions at issue in this cause,
the court has reached the following conclusions as to the
law:
"1. That it was the duty of the defendant, under the

terms of the charter party in evidence, to transport
the cargo in question from Saigon to Dunkirk and
Hamburg, via Suez Canal, under steam all the way
(unless disabled), or so near thereunto as she might
safely get, and there to deliver the said cargo
(always afloat) in any safe dock or berth which the
charterers or their agents might appoint.
"2. That the freight on the cargo having been made pay
608

able on right and true delivery of the cargo at

Dunkirk and Hamburg, and the transportation of
the cargo having been abandoned by the defendant
at Manila, no part of the f freight was earned
without such delivery, in the absence of an
agreement that the ship owner should become
entitled to a proportion of the freight on delivery of
the cargo in a port of refuge. (Carver on Carriage of
Goods by Sea, section 307.)
"3. That the fear of the owners and master of the
seizure or capture of the said steamship Sambia by
one of the belligerent powers at war with Germany
was not the result of force majeure and was not a
legal or sufficient excuse for having fled with a
French cargo from Saigon, a French port, to Manila,
or for the failure of the defendant to transport and
deliver the said cargo to the consignees at Dunkirk
and Hamburg, or for the failure to tranship the
same and cause it to be delivered in accordance
with the terms of the charter party.
"4. That the provision contained in the charter party
requiring the ship to make delivery of the cargo at
Dunkirk and Hamburg, 'or so near thereunto as she
may safely get' was no legal justification of
authority for the deviation of the ship to enter
Manila Bay in order to avoid the seizure or capture
of the ship by an enemy of Germany, since that
cause was intended only to justify the master of the
ship in discharging the cargo at some outside
anchorage, when by reason of her draft or
obstruction to navigation she could not reach the
usual wharf or anchorage of a designated port. (See
Meissner vs. Brun, 128 U. S., 474; 32 Law. Ed.,
496.)
"5. That there can be no general average unless there
has been a voluntary and successful sacrifice of a
part of the maritime adventure for the benefit of
the whole adventure, and for no other purpose; in
other words, there must be an intentional sacrifice
of a part of the property on board the vessel for the
purpose of saving the remainder from a common
peril, or extraordinary expenditures must be
incurred for the purpose of saving the property in
peril.
609
VOL. 36, MARCH 31, 1917. 609

(McAndrews vs. Thatcher, 3 Wall., 347, 366; The

Star of Hope vs. Annan, 9 Wall, 203, 228; Fowler vs.
Rathbone, 12 Wall., 102, 114; Hobson vs. Lord, 92
U. S., 397, 404; Ralli vs. Troop, 157 U. S., 386, 393;
Barnard et al. vs. Adams, 10 How., 270, 303;
Philippine Code of Commerce, articles 806, 808, 811
and 812.)
"6. That inasmuch as the French cargo was absolutely
safe in the French port of Saigon, and the deviation
of the steamship Sambia from her intended voyage
to Dunkirk and Hamburg and her entry into Manila
Bay were induced by f ear of the capture of the
vessel by one of the belligerents at war with
Germany, the alleged peril which induced the
master of said vessel to enter Manila Bay was not
common to both ship and cargo as required by the
York-Antwerp Rules as a condition precedent to the
levying of a general average; that this cargo under
the law of nations was not subject to confiscation by
any enemy of Germany, and the cargo not having
been imperilled, the expense and loss to the ship
and its owners occasioned by the deviation and by
taking refuge in Manila Bay during the European
war were not for the benefit of the cargo, but for the
sole benefit of the ship and its crew; and therefore
the cargo should not in any event be called upon for
contribution under general average.
"7. That it was the duty of the defendant under the
charter party to transport said cargo to Dunkirk
and Hamburg in the steamer Sambia; but if for any
reason, the transportation could not be effected in
that vessel within a reasonable time, it was the
legal duty of the owners of said vessel and of the
master thereof to make the shipment in another
vessel. (Carver on Carriage of Goods by Sea,
sections 304, 305.)
"8. That Behn, Meyer & Company, agent for the
defendant, having been appointed by this Court as
agent of the petitioner Ernest Vietmeyer (master of
the steamship Sambia) and of the said ship in
making the discharge and sale of said cargo, the
court is of the opinion that said Behn, Meyer &
Company is entitled to a reasonable com
610

pensation for its services in making the sale of said

cargo under the authority of the court. And the
court is further of the opinion that five per cent
(5%) of the net proceeds of a large cargo of this kind
is reasonable compensation for said services in
making the sale. Therefore, the clerk of this court is
hereby directed to retain five per cent (5%) of the
amount of said deposit in the court, subject to the
further orders of the court in Civil case No. 12235
for the services of said Behn, Meyer & Company in
making the sale.
"9. That the defendant is liable to the plaintiff for the
damages caused to plaintiff in not having delivered
the said cargo to Dunkirk and Hamburg, in
accordance with the terms of the charter party; and
the transportation of the cargo having been
abandoned by the defendant at Manila, and the
defendant not having earned the freight money, the
value of the cargo at Saigon must be basis for
determining ,the damages suffered by the plaintiff;
that since the proceeds of the sale of said cargo,
after deducting certain expenses of the sale as
shown in said Civil cause No. 12235, resulted in the
sum of P135,766.01 having been deposited in this
court, and the court having allowed Behn, Meyer &
Company the sum P6,788.30 for their services in
making said sale, there now remains subject to the
further order of this court the sum of P128,977.71.
"10. It having been alleged in the complaint and
admitted in the trial of this case that the value of
the cargo at Saigon was the invoice price of
P266,930 Philippine currency, and the court being
of the opinion that the value of the cargo in Manila
was the price at which it was sold under the
authority of the court, P182,591.46 less the
expenses of the sale and the commissions of the
said Behn, Meyer & Company, the court finds that
the plaintiff is damaged by the acts of the
defendant complained of in the amount of the
difference between the agreed value of the cargo at
Saigon (P266,930) and the net proceeds of the sale
in Manila (P128,977.71) or the sum of P137,952.29;
but the court further finds that by paragraph 28 of
the charter party the penalty for nonperformance of
said agreement is proved
611
VOL. 36, MARCH 31, 1917. 611

damages not exceeding the estimated amount of

freight, and in this case the estimated amount of
freight is P60,841.32.
"Therefore let judgment be entered in this cause in favor of the

plaintiff and against the defendant for the said sum of
P128,977.71, less any commissions of the clerk of this court free
and clear of all liens, claims, or charges asserted by the defendant
in this cause, with legal interest on said sum from the date of the
filing of the complaint in this case until paid; and further, that the
plaintiff have and recover from the defendant in this cause the
sum of P60,841.32, as and for actual damages suffered by the
plaintiff by the defendant's breach of the charter party in
evidence, with legal interest thereon from the date of the filing of
the complaint in this case until paid.
"The defendant's cross-complaint is hereby dismissed with the
costs of this case against the def endant. It is so ordered."
Counsel for the defendant-appellant made the following

assignments of error on appeal:
"1. The trial court erred in finding that it had

jurisdiction to determine the subject-matter of this
action.
"2. The trial court erred in finding that the plaintiff did
all within its power to prevent its property from
leaving the port of Saigon.
"3. The trial court erred in finding that the owner of
the steamship Sambia made no attempt to complete
the voyage, to tranship the cargo, or to conserve the
perishable merchandise composing the cargo.
"4. The trial court erred in finding that the value of the
cargo was its value at Saigon plus the freight to
destination.
"5. The trial court erred in finding that the
transportation of the cargo had been abandoned at
Manila, and that no part of the freight was due
without delivery at Dunkirk or Hamburg.
"6. The trial court erred in concluding that the fear of
seizure or capture by belligerent powers at war
with Germany was not force majeure and was not a
legal excuse for fleeing to the neutral port of Manila
for refuge, or for
612
failure to deliver the cargo at its destination by

transhipment or otherwise.
"7. The trial court erred in concluding that 'there can
be no general average unless there has been a
voluntary and successful sacrifice of a part of the
maritime adventure for the benefit of the whole
adventure, and for no other purpose; in other
words, there must be an intentional sacrifice of a
part of the property on board the vessel for the
purpose of saving the remainder from a common
peril, or extraordinary expenditures must be
incurred for the purpose of saving the property in
peril.'
"8. The trial court erred in concluding that the cargo
was safe in Saigon and that the entry into Manila
Bay was alone induced by fear of capture of the
vessel by one of the belligerents at war with
Germany, and that the peril was not common to
both ship and cargo, and that the entry into Manila
Bay was for the sole benefit of the ship and its crew.
"9. The trial court erred in concluding that defendant
was liable to plaintiff for the damages caused to
plaintiff in not having delivered the cargo at
Hamburg or Dunkirk.
"10. The trial court erred in concluding that the value of
the cargo at Saigon must be the basis for
determining damages.
"11. The trial court erred in finding that the estimated
amount of freight as per charter party was
P60,841.32.
"12. The trial court erred in entering judgment in favor
of plaintiff and against the def endant for any sum
whatever.
"13. The trial court erred in dismissing defendant's
crosscomplaint."
Counsel for the plaintiff appellant made the following

assignments of error:
"1. The trial court erred in holding that the right of

plaintiff to recover the full value of the cargo was
limited by the terms of the charter party.
"2. The court erred in refusing to grant plaintiff's
motion for a new trial.
"3. The court erred in failing to give judgment for
613
VOL. 36, MARCH 31, 1917. 613

plaintiff for the full value of the cargo of the

steamship Sambia."
As counsel for the defendant appellant well says "the

various assignments of error are so inextricably mixed one
with the other" that it would be extremely inconvenient to
deal with each specification of error separately; and it will
make for convenience and a clear understanding of our
rulings to follow the plan adopted by counsel in their briefs,
and discuss the various specifications of error under the
general headings into which the contentions of counsel
naturally group themselves.
As indicated in the opinion of the trial judge, there is no
real dispute as to the material evidential facts of record in
this case; and it will readily be seen that the vital issue
raised on this appeal is whether or not the master of the
Sambia, when he fled from the port of Saigon and took
refuge in the port of Manila, had reasonable grounds to
apprehend that his vessel was in danger of seizure or
capture by the public enemies of the flag under which he
sailed.
If it was his duty to remain in the port of Saigon under
the circumstances existing at the time when he completed
the loading of the vessel, in the hope that he, would be
granted a laissez-passer or safe-conduct by the French
authorities, it is manifest that his flight subjected the ship
and her owners to liability for the resultant damages
suffered by the cargo.
If, on the other hand, the master had reasonable ground
to believe that by remaining in the port of Saigon he would
expose the vessel to a real, and not a merely imaginary
danger of seizure by the French authorities from which he
could secure her by taking refuge in the port of Manila, his
flight must be held to have been justified by the necessity
under which he was placed to elect that course which
would secure the vessel from danger of seizure by a public
enemy of the country under whose flag she sailed; and the
shipowner must be held to be relieved from liability for the
614
deviation from the route prescribed in the charter party

and the resultant damages to the cargo, under the general
provisions of maritime law (Carver's Carriage of Goods by
Sea, 5th Ed., sections 11 and 22), and the express
provisions of article 7 of the charter party which is as
follows:
"The act of God, the king's enemies, arrests and restraints of

princes, rulers and people, perils of the seas, barratry of the
master and crew, pirates, collisions, strandings, loss or damage
from fire on board, in hulk or craft, or on shore; and act, neglect,
default or error in judgment whatsoever of pilots, master, crew or
other servant of the shipowners in the navigation of the steamer;
and all and every the dangers and accidents of the seas, canals
and rivers, and of navigation of whatever nature or kind always
mutually excepted."
Counsel for the cargo owner insist that having in mind

accepted principles of public international law, the
established practice of nations, and the express terms of
the Sixth Hague Convention (1907), the master should
have confidently relied upon the French authorities at
Saigon to permit him to sail to his port of destination under
a laissezpasser or safe-conduct, which would have secured
both the vessel and her cargo from all danger of capture by
any of the belligerents, Counsel for the shipowner, on the
contrary, urge that in the light of the developments of the
present war, the master was fully justified in declining to
leave his vessel in a situation in which it would be exposed
to danger of seizure by the French authorities, should they
refuse to be bound by the alleged rule of international law
laid down by opposing counsel. When the case was
submitted we did not have at hand an authoritative report
of the proceedings at the Hague Conference touching the
adoption of the sixth convention, and we were not fully
advised as to the final action taken by the world powers by
way of ratification of, or adherence to its provisions. In the
discussion of this branch of the case in the consultation
chamber, our lack of definite and authoritative information
as to these matters resulted in such a division of opinion
615
VOL. 36, MARCH 81, 1917. 615

as to the respective rights of the parties, that it was at first
impossible to secure a majority vote for the final disposition
of this, as well as some other important cases submitted at
the same time, involving claims amounting to nearly half a
million pesos. Recently, however, our library was furnished
with a copy of Stockton's "Outlines of International Law"
which briefly and as we think authoritatively sets forth
what we now are all agreed would appear to be the present
status of public international law on the subject of "days of
grace" and "safe-conducts," which may be granted
merchant vessels of an enemy, lying in the ports of a
belligerent at the commencement of hostilities. Admiral
Stockton, a retired officer of the United States Navy, was
the first delegate from the United States to the London
Naval Conference in 1909, and his text-book, which went to
press soon after the outbreak of the war in Europe,
contains the most recent statement of the doctrine by a
recognized authority to which our attention has been
invited.
In Chapter XXIX of the "Outlines of International Law," which is

devoted to the consideration of several "Open and Unsettled
Questions in Maritime Law," Admiral Stockton, discussing the
question of the allowance of days of grace at the outbreak of war
says:
"The convention (VI) of the Hague conference of 1907 treating
upon this subject was so unsatisfactory to the American
delegation that they declined to sign it, and consequently it was
not submitted to the United States Senate for ratification. The
reason given for this procedure was 'based on the ground that the
convention is an unsatisfactory compromise between those who
believe in the existence of a right and those who refuse to
recognize the legal validity of the custom which has grown up in
recent years.'
"The first article of this convention provides that 'when a
merchant ship of one of the belligerent powers is at the
commencement of hostilities in an enemy port, it is desirable that
it should be allowed to depart freely, either immediately or after a
sufficient term of grace, and to proceed
616

direct, after being furnished with a passport, to its port of

destination or such other port as shall be named by it.
" The same applies in the case of a ship which left its last port
of departure before the commencement of the war and enters an
enemy port in ignorance of hostilities.'
"As this is only a pious wish, it does not require any action of
favor or grace from any of the belligerents, and seizure in port of
an enemy vessel can be made immediately upon the outbreak of
war. The article is not as liberal as the practice has been in the
past.
"The policy of the United States in such matters was shown in
the Spanish-American War in the rules laid down by the
President in his proclamation of April 26, 1898, the fourth article
of which reads as follows:
" 'ARTICLE 4. Spanish merchant vessels, in any ports or places
within the United States, shall be allowed till May 21, 1898
inclusive, for loading their cargoes and departing from such ports
or places; and such Spanish merchant vessels, if met at sea, by
any United States ship, shall be permitted to continue their
voyage, if, on examination of their papers, it shall appear that
their cargoes were taken on board before the expiration of the
above term: Provided, That nothing herein contained shall apply
to Spanish vessels having on board any officer in the military or
naval service of the enemy, or any coal (except such as may be
necessary for their voyage), or any other article prohibited or
contraband of war, or any despatches of or to the Spanish
Government.'
"This rule is an extremely liberal one and it is doubtful
whether it would be generally accepted, especially in the case of
states of Europe where quick mobilization maintains as a rule."
In an interesting article in The American Journal of

International Law, Vol. II, 1908, p. 266, the writer,
Professor James Brown Scott, after reviewing at some
length the history of the practice of granting days of grace
and safe-conducts which, he contended, should form a part
of the law of nations, concluded his discussion of the
subject with the f ollowing observations:
617
VOL. 36, MARCH 81, 1917. 617

"It is therefore a source of regret that the Second Peace

Conference refused to recognize it as a right but simply as a
privilege, a délai de faveur, which may be accorded or refused at
the opinion of the belligerent, and that the privilege was
unaccompanied by any recommendation of a period of time within
which the privilege in question should be accorded, * * * it may be
said that the expression 'it is desirable' that the vessels should be
allowed to depart freely amounts in reality to a command, and
that the 'practice of the future will recognize the custom as freely
as it has done in the past, thus establishing as a right what the
conference modestly denominates a privilege. If such be the case
the opposition of Great Britain to the recognition of the right will
be as futile in practice as it was unreasonable at the conference."
The order in council of the British Government of the 6th of

August, 1914, providing for the granting of "days of grace,"
which was substituted for a prior order in council of the 5th
of August, 1914, is as follows:
"His Majesty being mindful, now that a state of war exists

between this country and Germany, of the recognition accorded to
the practice of granting 'days of grace' to enemy merchant ships
by the convention relative to the status of enemy merchant ship
at the outbreak of hostilities, signed at The Hague on the 18th of
October, 1907, and being desirous of lessening, so far as may be
practicable, the injury caused by war to peaceful and
unsuspecting commerce, is pleased, by and with the advice of His
Privy Council, to order, and it.is hereby ordered as follows:
"1. From and after the publication of this order no enemy

merchant ship shall be allowed to depart, except in
accordance with the provisions of this order, from any
British port or from any ports in any native state in India,
or in any of His Majesty's protectorates, or in any state
under His Majesty's protection or in Cyprus.
"2. In the event of one of His Majesty's Principal Secretaries
of State being satisfied by information reaching him not
later than midnight on Friday, the 7th day of August,
1914, that the treatment accorded to British mer
618

chant ships and their cargoes which at the date of

the outbreak of hostilities were in the ports of the
enemy or which subsequently entered them is not
less favorable than the treatment accorded to
enemy merchant ships by article 3 to 7 of this order,
he shall notify the Lords Commissioners of His
Majesty's Treasury and the Lords Commissioners of
the Admiralty accordingly, and public notice thereof
shall forthwith be given in the London Gazette, and
articles 3 to 8 of this order shall thereupon come
into full force and effect.
"3. Subject to the provisions of this order enemy
merchant ships which
" (i.) At the date of the outbreak of hostilities were in

any port in which this order applies; or
"(ii.) Cleared from their last port before the declaration
of war, and after the outbreak of hostilities, enter a
port to which this order applies, with no knowledge
of the war:
shall be allowed up till midnight (Greenwich mean time),

on Friday, the 14th day of August, 1914, for loading or
unloading their cargoes and for departing from such port.
Provided that such vessels shall not be allowed to ship
any contraband of war, and any contraband of war already
shipped on such vessels must be discharged.
"4. Enemy merchant ships which cleared from their

last port before the declaration of war, and which
with no knowledge of the war arrive at a port to
which this order applies after the expiry of the time
allowed by article 3 for loading or unloading cargo
and for departing, and are permitted to enter, may
be required to depart either immediately, or within
such time as may be considered necessary by the
customs officer of the port f or the unloading of such
cargo as they may be required or specially
permitted to discharge.
"Provided that such vessels may, as a condition of being allowed

to discharge cargo, be required to proceed to any other specified
British port, and shall there be allowed
619
VOL. 36, MARCH 31, 1917. 619

such time for discharge as the customs officer of that port may
consider to be necessary.
"Provided also that, if any cargo on board such vessel is
contraband of war or is requisitioned under article 5 of this order,
she may be required before departure to discharge such cargo
within such time as the customs officer of the port may consider to
be necessary; or she may be required to proceed, if necessary
under escort, to any other of the ports specified in article 1 of this
order, and shall there discharge the contraband under the like
conditions.
"5. His Majesty reserves the right recognized by the

said convention to requisition at any time subject to
payment of compensation enemy cargo on board
any vessel to which articles 3 and 4 of this order
apply.
"6. The privileges accorded by articles 3 and 4 are not
to extend to cable ships, or to seagoing ships
designed to carry oil fuel, or to ships whose tonnage
exceeds 5,000 tons gross, or whose speed is 14 knots
or over, regarding which the entries in Lord's
Register shall be conclusive for the purposes of this
article. Such vessels will remain liable on
adjudication by the prize court to detention during
the period of the war, or to requisition, in
accordance, in either case, with the convention
aforesaid. The said privileges will also not extend to
merchant ships which show by their build that they
are intended for conversion into warships, as such
vessels are outside the scope of the said convention,
and are liable on adjudication by the prize court to
condemnation as prize.
"7. Enemy merchant ships allowed to depart under
articles 3 and 4 will be provided with a pass
indicating the port to which they are to proceed,
and the route they are to follow.
"8. A merchant ship which, after receipt of such a pass,
does not follow the course indicated therein will be
liable to capture.
"9. If no information reaches one of His Majesty's Prin
620

cipal Secretaries of State by the day and hour

aforementioned to the effect that the treatment
accorded to British merchant ships and their
cargoes which were in the ports of the enemy at the
date of the outbreak of hostilities, or which
subsequently entered them, is, in his opinion, not
less favorable than that accorded to enemy
merchant ships by articles 3 to 8 of this order, every
enemy merchant ship which, on the outbreak of
hostilities, was in any port to which this order
applies, and also every enemy merchant ship which
cleared from its last port before the declaration of
war, but which, with no knowledge of the war,
enters a port to which this order applies, shall,
together with the cargo on board thereof, be liable
to capture, and shall be brought before the prize
court forthwith for adjudication.
"10. In the event of information reaching one of His
Majesty's Principal Secretaries of State that British
merchant ships which cleared from their last port
before the declaration of war, but are met with by
the enemy at sea after the outbreak of hostilities,
are allowed to continue their voyage without
interference with either the ship or the cargo, or
after capture are released with or without
proceedings for adjudication in the prize court, or
are to be detained during the war or requisitioned
in lieu of condemnation as prize, he shall notify the
Lords Commissioners of the Admiralty accordingly,
and shall publish a notification thereof in the
London Gazette, and in that event, but not
otherwise, enemy merchant ships which cleared
from their last port before the declaration of war,
and are captured after the outbreak of hostilities
and brought before the prize courts for
adjudication, shall be released or detained or
requisitioned in such cases and upon such terms as
may be directed in the said notification in the
London Gazette.
"11. Neutral cargo, other than contraband of war, on
board an enemy merchant ship which is not allowed
to depart from a port to which this order applies,
shall be released.
"12. In accordance with the provisions of chapter III of
621
VOL. 36, MARCH 31, 1917. 621

Compagnie de Commerce etc. vs. Hamburg Amerika, etc.
the convention relative to certain restrictions on the

exercise of the right of capture in maritime war,
signed at the Hague on the 18th day of October,
1907, an undertaking must, whether the merchant
ship is allowed to depart or not, be given in writing
by each of the officers and members of the crew of
such vessel, who is of enemy nationality, that he
will not, after the conclusion of the voyage for which
the pass is. issued, engage while hostilities last in
any service connected with the operation of the war.
If any such officer is of neutral nationality, an
undertaking must be given in writing that he will
not serve, after the conclusion of the voyage for
which the pass is issued, on any enemy ship while
hostilities last. No undertaking is to be required f
rom members of the crew who are of neutral
nationality.
"Officers or members of the crew declining to give the

undertaking required by this article will be detained as prisoners
of war.
"And the Lords Commissioners of His Majesty's Treasury, the
Lords Commissioners of the Admiralty, and each of His Majesty's
Principal Secretaries of State, and all governors, officers and
authorities whom it may concern are to give the necessary
directions herein as to them may respectfully appertain.
"NOTE.—The standard local time corresponding with the
Greenwich mean time mentioned in article 3 of the above order in
council is 8 a. m. on Saturday, the 15th day of August, 1914."
The Decree of the President of France relating to German

vessels in French ports at the outbreak of war is as follows:
"DECREE.
"ARTICLE 1. German commercial vessels which are now or -have

been in French ports since and including the 3d of August, 1914,
from 18.45 o'clock, or which enter the same unaware of the
outbreak of hostilities, shall be accorded, from the date of the
present decree, a delay of seven full days within which to freely
leave said ports and,
622

after providing themselves with a safe-conduct gain their port of

destination, or such other port as may be designated by the naval
authorities of the French port where they are, by some direct
route.
"In consequence of the reservation made by the German
Government in articles 3 and 4, subarticle 2, of the Sixth Hague
Convention of 1907, the benefit of the foregoing provision does not
apply to German vessels that left their last port of departure prior
to August 3d, at 18.45 o'clock, and which, unaware of the
outbreak of hostilities, are encountered on the high seas.
"ART. 2. All vessels of which the construction, armament, or
appearance indicate that they are susceptible of being
transformed into vessels of war or of being utilized for some public
service, shall not benefit by the provisions of article 1.
"In case such vessels are employed in the carriage of mails, the
Department of Posts shall see that all the mail bags and parcels
on board said boats shall be forwarded by the most expeditious
route.
"ART. 3. The Minister of Foreign Affairs, of the Navy, of Public
Works, of Commerce, of Posts and Telegraphs, and of the
Colonies, are hereby charged with the duty of carrying out the
provisions of the present decree.
"Done in Paris, this 4th day of August, 1914.
(Sgd.) "R. Poincare, President of the Republic. Gaston
Doumergue, Minister of Foreign Affairs. Victor Augagneur,
Minister of the Navy. René Renoult, Minister of Public Works.
Gaston Thomson, Minister of Commerce, Posts and Telegraphs.
Maurice Raynaud, Minister of the Colonies."
A critical examination of the terms of the convention itself,

having in mind the discussion which preceded its adoption,
satisfies us that at the outbreak of the present war, there
was no such general recognition of the duty of a belligerent
to grant "days of grace" and "safe-conducts" to enemy ships
in his harbors, as would sustain a ruling that such alleged
duty was prescribed by any imperative and well
623
VOL. 36, MARCH 31, 1917. 623

settled rule of public international law, of such binding

force that it was the duty of the master of the Sambia to
rely confidently upon a compliance with its terms by the
French authorities in Saigon; and it seems clear from a
reading of the British order in council issued at the
outbreak of the war, with its limitations, restrictions, and
conditions imposed upon the exercise of the privileges
secured therein, that while that nation recognized the
advantages to be anticipated from the reciprocal adherence
by all the belligerents to the practice in that regard which
had been developed in recent years, in a more or less
modified form, the order in council was not published in
response to any imperative rule of public international law
to which that nation felt itself bound to subscribe.
We have not overlooked the fact that President
McKinley's proclamation of April 26, 1898, providing for
the immunity of Spanish vessels in American ports at the
outbreak of the Spanish-American War, recited in its
preamble that it was issued in "harmony with the present
views of nations, and sanctioned by their recent practice;"
nor have we forgotten that the Supreme Court of the
United States in the case of The Buena Ventura (175 U. S.,
384; 44 Law. Ed., 206), which was decided at the October
term, 1899, indicated that this proclamation was but a
formal recognition of an established practice of nations,
which had been recognized as early as the Crimean War by
England, France and Russia. But the very fact that there
was so substantial a divergence of views among the
conferees representing their respective governments at the
second Hague Conference in 1907, with regard to the
existence and binding character of such a duty under
accepted rules of International Law, as to make it
impossible for the conferees to agree upon a convention
setting forth anything beyond "a pious wish" in the
premises, quite conclusively demonstrates that, thereafter,
at least, adherence to the practice by any belligerent could
not be demanded by virtue of any convention, tacit or
express, universally recognized by the members of the
society of nations; and that it may be
624

expected only when the belligerent is convinced that the

demand for adherence to the practice inspired by his own
commercial and political interests outweighs any
advantage he can hope to gain by a refusal to recognize the
practice as binding upon him.
Professor Lawrence, an English authority, discussing
the practice in 1904 said:
"Certainly it will be wise for British shipowners to read the signs

of the times, and not calculate upon a continuance in future of the
indulgences which have been accorded in recent years. * * *" And
Professor Higgins, another English authority, observed that "each
state will determine for itself whether the desire to injure its
enemy * * * will prevail over the fear of offending neutrals by
causing a great dislocation in trade, in which some of them are
sure to be interested."
That the practice has been by no means unif orm, and that
the tendency in recent years has been to limit, restrict and
in some cases, apparently, to disregard it altogether will
appear from a very summary review of its historical
development. In the Crimean War (1854), England and
France gave Russian vessels six weeks for loading and
departure. In the Prussian-Austrian War of 1866, six
weeks were allowed. In the war of 1870 France granted a
leave of thirty days. In the Spanish-American War (1898),
Spain allowed American ships five days, and the United
States allowed Spanish ships one month. In the Russo-
Japanese War (1904), the Japanese allowed the Russians
one week, but the Russians allowed the Japanese only two
days. As to the present European War our sources of
information are not absolutely authoritative, but it would
appear that the English and Germans detained and seized
each other's merchant vessels, and in some instances
confiscated their cargoes, under circumstances which would
seem to indicate that one belligerent or the other, or both,
had wholly disregarded the pious wish of the sixth Hague
convention. With reference to the other belligerents it is
said that England and Austria-Hungary mutually granted
ten days
625
VOL. 36, MARCH 31, 1917. 625

of grace; Germany and France, seven days; France and

Austria, seven days; but that Great Britain and Turkey,
and Great Britain and Bulgaria made no mutual allowance
of time, and that Italy without granting days of grace
captured all enemy vessels apparently intended for
conversion into vessels of war, and sequestered the rest—a
distinction without any very substantial difference.
We conclude that under the circumstances surrounding
the flight of the Sambia from the port of Saigon, her master
had no such assurances, under any well-settled and
universally accepted rule of public international law, as to
the immunity of his vessel from seizure by the French
authorities, as would justify us in holding that it was his
duty to remain in the port of Saigon in the hope that he
would be allowed to sail for the port of destination
designated in the contract of affreightment with a laissez-
passer or safe-conduct which would secure the safety of his
vessel and cargo en route.
It is true that soon after the outbreak of the war, the
Republic of France authorized and directed the grant of
safe-conducts to enemy merchant vessels in its harbors,
under certain reasonable regulations and restrictions; so
that it would appear that had the master of the Sambia
awaited the issuance of such a safe-conduct, he might have
been enabled to comply with the terms of his contract of
affreightment. But until such action had been taken, the
Sambia was exposed to the risk of seizure in the event that
the French government should decline to conform to the
practice; and in the absence of any assurance in that
regard upon which the master could confidently rely, his
duty to his owner and to his vessel's flag justified him in
fleeing f rom the danger of seizure in the port of an enemy
to the absolute security of a neutral port.
Discussing the exception of "King's enemies," Carver
"The next exception, that of 'King's enemies,' relates to acts done

by states or peoples with which the sovereign may be at war, at
any time during the carriage of the goods.
626

It does not include robbers on land; but has been said to

include pirates, or robbers on the high seas, as being
enemies of all nations.
"The shipowner is bound to be careful to avoid the acts of such

enemies; but where he has been so, he is not liable f or losses
occasioned by them. For example, for the destruction or capture of
the goods by enemies' cruisers; or for a delay where the master
has properly put into a neutral port for safety. The master is
justified in putting in, and delaying, where he has a reasonable
apprehension of danger from capture.
* * * * * * *
"An express exception of 'King's enemies' relates, at least, to the

enemies of the state to which the carrier belongs. (Ang. Carr. s.,
200; Story, Bail. s., 526. But see per Byles, J., in Russell vs.
Niemann, (1864) 34 L. J., C. P. 10, at p. 14; Cf. Morse vs. Slue,
[1671] 83 E. R., 453; Sir T. Ray. 220; 1 Vent. 238. The exception
'King's enemies/ appears to have been made, originally, because
the bailee who had lost the goods by their acts was without a
remedy against them. Southcote's Case, 4 Co. Rep., 83 b; The
Teutonia [1872] 42 L. J. Adm. 57; L. R., 4 P. C., 171; The San
Roman, [1872] 42 L. J. Adm. 46; L. R. 5 P. C., 301; Russell vs.
Niemann, [1864] 34 L. J., C. P., 10.)"
The danger from which the master of the Sambia fled was
a real and not merely an imaginary one as counsel for the
shipper contends. Seizure at the hands of an "enemy of the
King," though not inevitable, was a possible outcome of a
failure to leave the port of Saigon; and we cannot say that
under the conditions existing at the time when the master
elected to flee from that port, there were no grounds for a
"reasonable apprehension of danger" from seizure by the
French authorities, and therefore no necessity for flight. As
was said in the case of Australian Steam Nav. Co. vs.
Morse (L. R., 4 P. C., 222) :
"The word 'necessity,' when applied to mercantile affairs, where

the judgment must in the nature of things be exercised, cannot, of
course, mean an irresistible compelling
627
VOL. 36, MARCH 31, 1917. 627

power. What is meant by it in such cases is the force of

circumstances which determine the course a man ought to take.
Thus, where by the force of circumstances, a man has the duty
cast upon him of taking some action f or another, and under that
obligation adopts a course which, to the judgment of a wise and
prudent man, is apparently the best for the interest of the persons
for whom he acts in a given emergency, it may properly be said of
the course so taken that it was in a mercantile sense necessary to
take it."
There can be and there is no question as to the necessity,

arising out of the presence of enemy cruisers on the high
seas which compelled the Sambia, once she had left the
port of Saigon, to take refuge in the port of Manila and to
stay there indefinitely pending the outcome of the war. We
conclude, therefore, that the deviation of the Sambia from
the route prescribed in her charter party, and the
subsequent abandonment by the master of the voyage
contemplated in the contract of affreightment, must be held
to have been justified by the necessity under which he was
placed to elect that course which would remove and
preserve the vessel from danger of seizure by the public
enemies of the flag under which she sailed; and that
neither the vessel nor her owners are liable for the
resultant damages suffered by the owner of the cargo.
Counsel for the cargo owner further contend that even if
it be held that the action of the master of the Sambia in
fleeing to a port of ref uge and abandoning the prosecution
of the voyage contemplated in the contract of aff
reightment, was justified or excused by the exigencies of
war, it was his imperative' duty, nevertheless, to tranship
the cargo on a neutral vessel to one of the ports of
destination designated in the contract.
We do not think that this contention is sustained by the
evidence of record.
Under ordinary circumstances, it may fairly be
presumed in the absence of instructions f rom a shipper
whose goods are found aboard a vessel lying in a port of
refuge, whose master has been compelled to abandon the
attempt to trans-
628

port the cargo in his own vessel, that the shipper's interests
will be consulted by forwarding his property to the port
designated by him in the contract of affreightment; it
would appear therefore that, when practicable, the master
is bound to act for the cargo owner in that way; but when
the condition of the cargo is such as to render it inadvisable
to attempt to tranship, or if there is ground to believe that
such will be the case bef ore suitable means of
transhipment can be secured, the duty clearly rests upon
the master to make such other advantageous disposition of
the property of the shipper as circumstances will permit.
(The Niagara vs. Cordes, 62 U. S., 7; Carver's Carriage of
Goods by Sea, 5th ed., pars. 294, 302, 305; Abbott (13th), p.
412; Shipton vs. Thornton, 9 A. & E., 314, 337; Matthews
vs. Gibbs, 30 L. J., Q. B., 55; Cf. Gibbs vs; Grey, 26 L. J.,
Ex., 286; Shipton vs. Thornton, 9 A. & E., 314; Cannan vs.
Meaburn, 1 Bing., 243; Ang. Carr. s., 187; Cf. The
Gratitudine, 3 C. Rob., 240; The Hamburg, 32 L. J., Ad.,
161; 33 L. J., Ad., 116; Atwood vs. Selar, 3 Q. B. D., 342.)
The cargo of the Sambia being a. perishable one, and it
having proved impracticable to secure prompt instructions
from the shipper, the master was conf ronted with the
necessity of electing the course he should pursue, to protect
the interests of the shipper whose property had been
intrusted to him under a contract of affreightment which
he found himself unable to execute upon his own vessel. He
elected, after taking the advice of a competent marine
surveyor, to sell the entire cargo under judicial authority,
and to that end followed substantially the proceedings
prescribed in such cases in section II, chapter III of the
Commercial Code; and we are of opinion that not only is
there nothing in the record which would sustain a finding
that in so doing he failed to exercise a sound discretion in
the performance of the duty resting upon him to protect the
interests of the cargo owner, but that on the whole record it
affirmatively appears that this was the only course open to
him under all the circumstances existing at the time when
he adopted it.
629
VOL. 36, MARCH 31, 1917. 629

No direct evidence appears to have been submitted by

either party as to whether it would have been practicable to
secure a suitable vessel upon which to tranship the cargo.
This may have been, and doubtless was, because the
impracticability of an attempt to tranship was tacitly
conceded in the court below. But however this may be, it is
clear that the record will not sustain an affirmative finding
that it was the duty of the master of the Sambia to
tranship his cargo rather than to sell it in the port of
Manila. On the contrary, we think it sufficiently appears
that in adopting the latter course he acted discreetly,
prudently and with due regard for the interests of the cargo
owner.
Our conclusions in this regard are derived from
considerations based upon the evidence of record, the
admissions of counsel in argument, and matters of general
knowledge of which we are authorized to take judicial
notice.
On account of the unavoidable lack of ventilation while
the Sambia, lay at anchor beneath the rays of a tropical
sun, her perishable cargo of rice and ricemeal began to heat
soon after she put into Manila Bay, a part of the cargo
being rendered absolutely worthless by heating and
through the inroads of weevils so that it had to be thrown
overboard.
Exhibit B which set out in full in the plaintiff's brief is a
certificate dated the 7th of September, 1914, prepared by a
marine surveyor, who having been called upon to examine
the cargo aboard the Sambia, reported that it "showed
signs of heating and of being infested with weevils" and
recommended, "in the interests of all concerned, that it be
discharged and disposed of as soon as possible" and that it
"be sold by 'private treaty' in preference to 'sale by auction/
owing to conditions in the local market."
The risks of heavy, and perhaps total loss, incident to an
attempt to tranship this perishable cargo, were greatly
augmented by the possibility, and indeed the probability,
that any vessel used for this purpose would be exposed to
unusual and protracted delays, as a result of the abnormal
630

conditions prevailing in the shipping trade after the

outbreak of the war, of which we think we may properly
take judicial notice.
And finally, it is a matter of common knowledge in this
jurisdiction that rice is not exported to Europe from the
Philippine Islands, and -that freight vessels suitable for the
transportation of rice to Europe in bulk do not make a
practice of lying in Manila Bay, unless previous
arrangements have been made for their coming here under
charter; so that in the absence of any evidence to the
contrary, we are satisfied that if the master of a German
vessel, lying in Manila Bay soon after the outbreak of the
war, could, by any possibility, have secured the services of
such a vessel, he could not reasonably have hoped to do so
without the expenditure of considerable time in the effort.
It has been suggested that the danger of loss and
damage to this perishable cargo might have been averted
had it been transhipped immediately upon the arrival of
the Sambia in Manila Bay and before it began to heat and
deteriorate in the hold of that vessel.
But aside from any question as to the impracticability of
securing a suitable vessel for that purpose immediately
after the arrival of the Sambia in Manila Bay, it must not
be forgotten that the act of the "King's enemy" which
justified and excused her flight from Saigon, necessitated,
and therefore justified and excused the retention of the
cargo aboard the vessel by the master for such time as
might be reasonably necessary to ascertain the facts upon
which he could intelligently decide upon the proper course
to be pursued thereafter; and that the deterioration of the
cargo set in as soon as the vessel came to anchor and
adequate ventilation could not longer be provided. It
follows that the question which confronted him when the
time had arrived for the making of his decision as to the
disposition which should be made of the cargo aboard his
vessel was whether the interests of the shipper would be
consulted by the transhipment of a perishable cargo of
ricemeal that had already begun to heat and to deteriorate,
631
VOL. 36, MARCH 31, 1917. 631

or by its sale on the local market for the best price he could
get—and we are of opinion that it sufficiently appears that
under all the circumstances his duty was to sell rather
than 'to tranship.
Counsel for the. cargo owners further contend that the
shipowner should be held responsible, at all events, for the
deterioration in the value of the cargo, incident to its
detention on board the vessel from the date of its arrival in
Manila until it was sold.
But it is clear that the master could not be required to
act on the very day of his arrival; or before he had a
reasonable opportunity to ascertain whether he could hope
to carry out his contract and earn his freight; and that he
should not be held responsible for a reasonable delay
incident to an effort to ascertain the wishes of the freighter,
and upon failure to secure prompt advices, to decide for
himself as to the course which he should adopt to secure
the interests of the absent owner of the property aboard his
vessel.
"The master is entitled to delay for such a period as may be

reasonable under the circumstances, before deciding on the course
he will adopt. He may claim a fair opportunity of carrying out the
contract, and earning the freight, whether by repairing or
transhipping. Should the repair of the ship be undertaken, it
must be proceeded with diligently; and if so done, the freighter
will have no ground of complaint, although the consequent delay
be a long one, unless, indeed, the cargo is perishable, and likely to
be injured by the delay. Where that is the case, it ought to be
forwarded, or sold, or given up, as the case may be, without
waiting for repairs." (See Carver's Carriage by Sea, 5th ed., sec.
309.)
"A shipowner, or shipmaster (if communication with the
shipowner is impossible), will be allowed a reasonable time in
which to decide what course he will adopt in such cases as those
under discussion; time must be allowed to him to ascertain the
facts, and to balance the conflicting interests involved, of
shipowner, cargo owner, underwriters on ship,
632

cargo and freight. But once that time has elapsed, he is bound to
act promptly according as he has elected either to repair, or
abandon the voyage, or tranship. If he delays, and owing to that
delay a perishable cargo suffers damage, the shipowner will be
liable for that damage; he cannot escape that obligation by
pleading the absence of definite instructions from the owners of
the cargo or their underwriters, since he has control of the cargo
and is entitled to elect." (Idem, sec. 304a.)
"The other condition of the master's authority to sell is that

the owners of the cargo must have been communicated
with and their instructions taken before selling, if
practicable. Whether that was so must be judged having
regard to all the circumstances of the particular case. The
master is not to delay for instructions where delay would
be clearly imprudent. But if there is a fair expectation of
obtaining directions, either from the owners of the goods, or
from agents known by the master to have authority to deal
with the goods, within such a time as would not be
imprudent, the master must make every reasonable
endeavor to get those directions; and his authority to sell
does not arise until he has failed to get them.
"Should the master fail to seek for instructions when he
might get them, or should he act against the instructions
he receives, any sale or hypothecation of the cargo he may
make under those circumstances is wrongful and void."
(Idem, sec. 299.)
It appears that two cablegrams were dispatched by the
local agent of the shipowner and of the master, to the duly
authorized representative of the cargo owners in Saigon,
one on the very day of the arrival of the Sambia in Manila
Bay, (August 8, 1914) and another a week later, advising
him of the situation; that these cables were not delivered
presumably because of the interruption of cable
communications following the outbreak of war; that later,
two letters were forwarded but remained unanswered until
after the master had sought and secured judicial authority
to sell the cargo—the answer when it was received
633
VOL. 36, MARCH 31, 1917. 633

Compagnie de Commerce etc. vs. Hamburg Amerika etc,
being a flat refusal on the part of the Saigon representative

of the cargo owners to give any instructions or assume any
responsibility; that on September 4, 1914, the master of the
Sambia had a survey made of the cargo, by a qualified
marine surveyor, who reported that it "showed signs of
heating and being infested with weevils," and
recommended that it be sold "in the interests of all
concerned;" that a copy of the marine surveyor's report was
immediately mailed to the Saigon representative of the
cargo owners; that on September 10, 1914, the master, not
having been able to get into communication with the cargo
owners or their representative in Saigon, sought and
secured judicial authority to sell the cargo; and that it was
sold under judicial authority granted in accordance with
the provisions of local law made and provided in such
cases.
It will be seen that thirty-three days elapsed from the
date of the arrival of the Sambia in Manila Bay, to the date
of the master's application for judicial authority to sell the
cargo. But having in mind the extraordinary and
exceptional conditions existing at that time as a result of
the war, with its interruptions of mail and cable
communications, its disruption of the markets throughout
the world, its development of questions as to whether food
supplies should or should not be declared contraband, and
its threatening aspects with relation to shipping and
commercial enterprises of all kinds throughout the world,
we are unable to say that the master devoted an
unreasonable length of time to the determination of the
problem of the disposition of the cargo with which he was
confronted after. his arrival in Manila Bay. On the
contrary, we are of opinion that he proceeded with all
reasonable dispatch, and did all that could be required of a
prudent man to protect the interests of the owner of the
cargo aboard his vessel; so that any losses which resulted
from the detention of the cargo aboard the Sambia must be
attributed to the act of the "enemies of the king," which
compelled the Sambia to flee to a port of refuge, and made
necessary the retention of the cargo aboard the vessel at
anchor under a tropical sun,
634

and without proper ventilation, until it could be
ascertained that the interests of the absent owner would be
consulted by the sale of this perishable cargo in the local
market.
We come now to consider the various .contentions of
counsel for the shipowner denying the right of the owners
of the cargo to a judgment for all, or some specified part, of
the proceeds of the sale of the rice.
The contention that the court below was without
jurisdiction of the subject-matter by reason of the provision
in the charter party for the settlement of disputes by a ref
erence to arbitration in London, may be disposed of without
extended discussion. This objection to the jurisdiction of the
court appears for the first time in defendant's brief on
appeal. In the court below def endant not only appeared
and answered without objecting to the court's jurisdiction,
but sought affirmative relief; and it is very clear that
defendant cannot be permitted to submit the issues raised
by the pleadings for adjudication, without objection, and
then, when unsuccessful, assail the court's jurisdiction in
reliance upon a stipulation in the charter party which the
parties were at entire liberty to waive if they so desired.
We do not stop therefore to rule upon the contention of
opposing counsel, that a contractual stipulation for a
general arbitration cannot be invoked to oust our courts of
their jurisdiction, under the doctrine announced in the
cases of Wahl and Wahl vs. Donaldson, Sims & Co. (2 Phil.
Rep., 301, 303), and Cordoba vs. Conde (2 Phil. Rep., 445,
447); and that this doctrine should be applied in the case at
bar, notwithstanding the fact that the contract was
executed in England, in the absence of averment and proof
that under the law of England compliance with, or an offer
to comply with such a stipulation constitutes a condition
precedent to the institution of judicial proceeding for the
enforcement of the contract.
The claim advanced on behalf of the shipowner f or f
freight is wholly without merit. Under the terms of the
contract of affreightment, the amount of the freight was
made payable on delivery of the cargo at the designated
port of destination. It is clear then, that under the terms of
that
635
VOL. 36, MARCH 31, 1917. 635

instrument freight never became payable. Carrying the
cargo from Saigon to Manila was not even a partial
performance of a contract to carry it from Saigon to Europe;
and even if it could be treated as such, the shipowner
would have no claim for freight, in the absence of any
agreement, express or implied, to make payment for a
partial performance of the contract.
The citation from Carver (section 307) referred to in the
decision of the trial court is as follows:
"Should the master relinquish the attempt either to carry on the

goods in his own ship or to send them to their destination in
another ship, he will thereby wholly abandon any claim for freight
in respect to them, unless it has been made payable in advance, or
irrespective of delivery. Where freight is only payable on delivery,
no part is earned until it is earned completely. So that whether
the abandonment of the voyage be due to inability, or prevention
of the ship, or to the necessity of selling the goods, either to raise
funds for the ship's repairs or in their owner's interest, the
shipowner loses the whole freight.
"On the other hand, if the cargo be accepted at the port of
refuge under an agreement that delivery there shall be treated as
a performance by the shipowner of his contract; or if the owner of
the goods, by any act or default, prevents the shipowner from
carrying them on to their destination, the whole of the freight
becomes at once payable.
"Also sometimes the shipowner becomes entitled, by
agreement, on delivery at a port of refuge, to freight in proportion
to the part of the voyage which has been accomplished. This
subject will be discussed more fully hereafter. Here it is enough to
say that no agreement of this kind can arise, by implication,
unless the cargo owner has consented to accept the goods under
circumstances which left him an option to have them carried on to
their destination by the shipowner, in his own or some other
vessel.
"Where the vessel has been abandoned at sea by the master
and crew, without any intention of returning to
636

her, the f reighter is entitled to treat the contract as a abandoned;

so that if she be brought into port by salvors, he may claim the
goods without becoming liable to pay f freight.
"In The Cito, the Court of Appeal decided that the ship owner
had no claim for freight after the abandonment; but declined to
say that that put an end to the contract of affreightment. By the
abandonment the shipowners gave the cargo owners a right to
elect to treat the contract as at an end. 'We do not decide what
would have been the result if, after the ship had been brought in
as it was by the salvors, and before the cargo owners had come in
and exercised their right to the cargo, the shipowners had given
bail for the ship and cargo, and had carried the cargo on/ "
The claim of the shipowner for general average cannot be

sustained under the provisions of the York-Antwerp Rules
of 1890, by reference to which, it was expressly stipulated
in the charter party, all such questions should be settled.
Rules X and XI, which treat of "Expenses at Port of Refuge,
etc.," and "Wages and Maintenance of Crew in Port of
Refuge, etc," provide for general average "When a ship
shall have entered a port or place of refuge, or shall have
returned to her port or place of loading, in consequence of
accident, sacrifice, or other extraordinary circumstances
which render that necessary for the common safety * * *;"
and an examination of the entire body of these rules
discloses that general average is never allowed thereunder
unless the loss or damage sought to be made good as
general average has been incurred for the "common safety."
It is very clear that in fleeing from the port of Saigon and
taking refuge in Manila Bay the master of the Sambia was
not acting for the common safety of the vessel and her
cargo. The French cargo was absolutely secure from danger
of seizure or confiscation so long as it remained in the port
of Saigon, and there can be no question that the flight of
the Sambia was a measure of precaution adopted solely
and exclusively for the preservation of the vessel from
danger of seizure or capture.
637
VOL. 36, MARCH 31, 1917. 637

Rule 18 of the York-Antwerp Rules is as follows:
"Except as provided in the foregoing rules, the adjustment shall

be drawn up in accordance with the law and practice that would
have governed the adjustment had the contract of affreightment
not contained the clause to pay general average according to these
rules."
If then, any doubt could properly arise as to the meaning

and effect of the words "common safety" as used in this
body of rules, we would be justified in resolving it in
accordance with settled principles of maritime law; and an
examination of the authorities discloses a substantial
unanimity of opinion as to the general doctrine which
provides that claims for contribution in general average
must be supported by proof that sacrifices on account of
which such claims are submitted were made to avert a
common imminent peril, and that extraordinary expenses
for which reimbursement is sought, were incurred for the
joint benefit of ship and cargo.
The doctrine is discussed at length in numerous
decisions of the Supreme Court of the United States, a
number of which are cited in the court below, but for our
purposes it will be sufficient to insert here a few extracts
from two of the leading cases.
In the case of The Star of Hope vs. Annan (76 U. S., 203),
Justice Clifford, speaking for the court said:
"Such claims have their foundation in equity, and rest upon the
doctrine that whatever is sacrificed for the common benefit of the
associated interests shall be made good by all the interests which
are exposed to the common peril and which were saved from the
common danger by the sacrifice. Much is deferred in such an
emergency to the judgment and decision of the master; but the
authorities, everywhere, agree that three things must concur in
order to constitute a valid claim for general average contribution:
First, there must be a common danger to which the ship, cargo
and crew were all exposed, and that danger must be imminent
and apparently inevitable, except by incurring a loss of a
638

portion of the associated interests to save the remainder. Second,

there must be the voluntary sacrifice of a part for the benefit of
the whole, as, for example, a voluntary jettison or casting away of
some portion of the associated interests for the purpose of
avoiding the common peril, or a voluntary transfer of the common
peril from the whole to a particular portion of those interests.
Third, the attempt so made to avoid the common peril to which all
those interests were exposed must be to some practical extent
successful, for if nothing is saved there cannot be any such
contribution in any case. (Barnard vs. Adams, 10 How., 303;
Patten vs. Darling, 1 Cliff., 262; 2 Pars., Ins., 278.)"
In the case of Ralli vs. Troop (157 U. S., 418), Justice Gray,
delivering the opinion for the court said:
"The result of the principles above stated, confirmed by the
authorities above referred to, may be summed up as follows:
"The law of general average is part of the maritime law, and
not of the municipal law, and applies to maritime adventures
only.
"To constitute a general average loss, there must be a
voluntary sacrifice of part of the maritime adventure, for the
purpose, and with the effect of saving the other parts of the
adventure from an imminent peril impending over the whole.
"The interests so saved must be the sole object of the sacrifice,
and those interests only can be required to contribute to the loss.
The safety of property not included in the common adventure can
neither be an object of the sacrifice, nor a ground of contribution."
In the opinion just cited there will be found a general

historical review of the authorities upon which the
foregoing conclusions were avowedly based, and we think
we may properly close our discussion of this branch of the
case at bar, with the following extracts therefrom:
"In the earliest case in this court, Mr. Justice Story, in delivering
judgment, stated the leading limitations and contributions, and
recognized by all maritime nations, to
639
VOL. 36, MARCH 31, 1917. 639

justify a general contribution, as follows: 'First, that the ship and

cargo should be placed in a common imminent peril; secondly,
that there should be a voluntary sacrifice of property to avert that
peril; and, thirdly, that by that sacrifice the safety ety of the other
property should be presently and successfully attained.'
Columbian Ins. Co. of Alexandria vs. Ashby and Stribling, 38 U.
S., 330; 13 Pet, 331, 338 (10:186, 190).
"In the next case which came before this court, Mr. Justice
Grier, in delivering judgment, defined these requisites, somewhat
more fully, as follows: 'ln order to constitute a case of general
average, three things must concur: 1st. A common danger, a
danger in which ship, cargo and crew all participate; a danger
imminent and apparently "inevitable, except by voluntary
incurring the loss of a portion of the whole to save the remainder.
2. There must be a voluntary jettison, jactus, or casting away of
some portion of the joint concern for the purpose of avoiding this
imminent peril, periculi imminentis evitandi causa, or, in other
words, a transfer of the peril from the whole to a particular
portion of the whole. 3. This attempt to avoid the imminent peril
must be successful.'
* * * * * * *
"Mr. Justice Shee, in a note to Abbott on Shipping, after

reviewing the statements of many continental writers upon the
subject, concludes: 'Upon the whole, it is impossible, consistently
with the opinion of Lord Tenterden, and with the doctrine of all
the writers on maritime law, whose opinions have not been
warped by the exceptional legislation or practice of the countries
in which they have written, to recognize a rule respecting ship's
expenses more comprehensive than the following one: Expenses
voluntarily and successfully incurred, or the necessary
consequences of resolutions voluntarily and successfully taken, by
a person in charge of a sea adventure, for the safety of life, ship
and cargo, under the pressure of a danger of total loss or
destruction imminent and common to them, give, the ship being
saved, a claim to general average contribution.'
640

(Abbott on Shipping 11th ed., 537, note.) In Harrison vs. Bank of

Australasia, L. R. 7 Exch., 39, 48, that statement was quoted as
laying down the true rule, although there was a difference of
opinion as to whether the facts of the case came within it. (See
also Robinson vs. Price, L. R. 2, Q. B. Div., 91, 94, 295.)"
What has been said disposes of all the real issues raised on
this appeal, except the contentions of the parties as to the
effect which should be given the so-called penal clause of
the charter party which our rulings on plaintiff's prayer for
damages make it unnecessary for us to consider or decide.
We conclude that so much of the judgment entered in
the court below as provides for the delivery to the plaintiff
in this action of the sum of P128,977.71, the net proceeds of
the sale of the cargo of rice aboard the Sambia, which has
been deposited subject to the order of the court below, less
any commissions to which the clerk of that court may be
lawfully entitled at the date of payment, should be
affirmed; but that so much of the judgment as provides for
the recovery of damages in the sum of P60,841.32, should
be reversed; and further, that so much of the judgment as
provides for the payment of legal interest on the net
proceeds of the sale of the rice deposited in the court below
should be modified by substituting therefor a provision for
the delivery to the plaintiff of any interest allowances
which may have accumulated thereon, in any bank or other
institution, wherein it may have been deposited, at the
time when the principal is paid over to the plaintiff. No
costs to either party in this instance. So ordered.
Torres, Moreland, Trent, and Araullo, JJ., concur.
Judgment affirmed in part and reversed in part.
_______________
RESOLUTION ON MOTION FOR REHEARING.
October 26, 1917.
CARSON, J.:
The motion of counsel for plaintiff to set aside the decision

heretofore entered in this case and to grant a rehearing on
the appeal is denied.
641
VOL. 36, MARCH 31, 1917. 641

In so far as the arguments of counsel in support of his

motion rest upon grounds heretofore decided adversely to
his contentions, we find no sufficient reason for reopening
the case.
In so far as the arguments rest upon an alleged
unfounded distinction made in the disposition of this case
and the case of Compagnie Franco-Indochinoise vs.
Deutsch, Australische Dampschiffs Gesellschaft (p. 643,
post), decided on the same day, we think that a comparison
of the two decisions, and a review of the facts and the
reasoning set out therein, is sufficient to refute the
contentions of counsel in this regard.
It may be worth while, however, to discuss briefly one
question that has arisen in this connection.
In one case, wherein we found that the facts disclosed
the exercise of reasonable diligence on the part of the
shipmaster, we relieved him from responsibility for losses
which occurred while his vessel lay in Manila Bay for a
period of time reasonably sufficient for the determination of
the course which he should pursue in the disposition of his
cargo.
In the other case, wherein we held that the shipmaster
had not exercised due diligence and had failed to take the
necessary measures looking to the disposition of his cargo,
we held him and his vessel responsible for all damage to
the cargo from the day he arrived in Manila Bay until it
was sold.
It has been suggested that to be consistent, we should
have relieved the master in the latter case of the loss by
deterioration from the time he arrived in Manila Bay to the
close of the period which would have been allowed him (had
he exercised due diligence) for the determination of the
problem of the proper disposition of his cargo.
But no evidence was offered to show what proportion of
the loss by deterioration occurred during that period, and
in the very nature of things it was and is impracticable to
ascertain that fact, or to submit proofs which would sustain
a judicial finding in that regard.
Said the Supreme Court of the United States (Hamilton-
642

Brown Shoe Co. vs. Wolf Bros. & Co., 240 U. S., 251, 262)
and the Supreme Court of California (Graham vs. Plate, 40
Cal., 593, 596) in discussing an analogous situation.
"The difficulty lies in ascertaining what proportion of the profit is

due to the trade-mark, and what to the intrinsic value of the
commodity; and as this cannot be ascertained with any reasonable
certainty, it is more consonant with reason and justice that the
owner of the trade-mark should have the whole profit than that
he should be deprived of any part of it by the fraudulent act of the
defendant. It is the same principle which is applicable to a
confusion of goods. If one wrongfully mixes his own goods with
those of another, so that they cannot be distinguished and
separated, he shall lose the whole, for the reason that the fault is
his; and it is but just that he should suffer the loss rather than an
innocent party, who in no degree contributed to the wrong."
In the case of Compagnie Franco-Indochinoise vs. Deutsch,

Australische Dampschiffs Gesellschaft (supra), the
wrongdoer could not be heard to contend that the cargo
owner should not be permitted to recover any of the losses
due to the shipmaster's lack of diligence, on the ground
that a part of those losses would have been incurred even
had the master exercised due diligence, it appearing that it
was inherently impossible to ascertain what proportion of
the loss would have been incurred, in any event, and
despite the exercise of the diligence required of the master
in the situation in which he found himself.
Arellano, C. J., Torres, Araullo, and Street, JJ., concur.
JOHNSON, J.:
I reserve my vote.
MALCOLM, M., dissenting:
I dissent. I must conf ess that my mind f ails to follow the

three majority decisions in their discussion of "reasonable"
or "due diligence" and other interrelated questions.
Motion denied.
643
VOL. 36, MARCH 31, 1917. 643

Compagnie Franco-Indochinoise vs. Deutsch etc.
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[No. 10986. March 31, 1917.

COMPAGNIE DE COMMERCE ET DE NAVIGATION

1. SHIPPING; ALIEN ENEMY VESSELS; DAYS OF

2. ID. ; ID. ; ID.—The f act that there was so substantial a

3. ID.; ID.; ID.; DEVIATION.—The master of a German

VOL. 36, MARCH 31, 1917. 591

Compagnie de Commerce etc. vs. Hamburg Amerika etc.

4. ID. ; ID. ; ID. ; ID.—Although the Republic of France

5. ID.; ID.; ID.; ID.—Under the general provisions of

6. ID.; VESSEL IN PORT OF REFUGE; DISPOSITION OF

7. ID. ; ID. ; ID.—Under all the circumstances as set out in

8. ID.; ID.; ID.—A shipmaster must be allowed a reasonable

592 PHILIPPINE REPORTS ANNOTATED

Compagnie de Commerce etc. vs. Hamburg Amerika etc.

the vessel during such time as may be reasonably

9. ID.; ID.; ID.; FORCE MAJEURE.—Held: That under all

12. ID; CHARTER PARTY; ACTION FOR BREACH.—A

13. ID.; ID.; QUESTIONS OF GENERAL AVERAGE.—Under

VOL. 36, MARCH 31, 1917. 593

Compagnie de Commerce etc. vs. Hamburg Amerika etc.

as general average has been incurred for the "common

15. ID.; FLIGHT OF VESSEL NOT FOR THE COMMON

16. ID.; MODIFICATION OF JUDGMENT.—So much of the

APPEAL from a judgment of the Court of First Instance of

For a statement of this case on appeal we cannot do better

"This is an action by the Compagnie de Commerce et de

the Hamburg Amerika Packetfacht Actien Gesellschaft, a

VOL. 36, MARCH 31, 1917. 595

596 PHILIPPINE REPORTS ANNOTATED

"The plaintiff prays:

"1. That the proceedings known and designated as No.

VOL. 36, MARCH 31, 1917. 597

"2. That the said deposit of P135,766.01, Philippine

598 PHILIPPINE REPORTS ANNOTATED

bills of exchange drawn by plaintiff, and, having no information in

VOL. 36, MARCH 31, 1917. 599

to Dunkirk and Hamburg as soon as the conditions of war now

600 PHILIPPINE REPORTS ANNOTATED

of said declaration of war, and thereupon plaintiff's agent at

difficulties attending the sale, and in October the def endant's

" 'Dear Sirs:

" 'We beg to acknowledge receipt of your favors of the 7 & 21 of

602 PHILIPPINE REPORTS ANNOTATED

VOL. 36, MARCH 31, 1917. 603

the steamship Sambia arrived at the port of Manila up to March

604 PHILIPPINE REPORTS ANNOTATED

from entire loss, occasioned by the capture and seizure thereof by

VOL. 36, MARCH 31, 1917. 605

"1. That the steamship Sambia, registered in Germany

606 PHILIPPINE REPORTS ANNOTATED

agent of the said steamship to complete the voyage

VOL. 36, MARCH 31, 1917. 607

to P60,841.32 and no part of the freight on said

"Upon a consideration of all the facts in evidence and of the

"1. That it was the duty of the defendant, under the

608 PHILIPPINE REPORTS ANNOTATED

able on right and true delivery of the cargo at

VOL. 36, MARCH 31, 1917. 609

(McAndrews vs. Thatcher, 3 Wall., 347, 366; The