INT. PAPER CO. v. THE "GRACIE D. CHAMBERS."

MR. JUSTICE McKENNA delivered the opinion of the court.

Libel in admiralty on the schooner "Gracie D. Chambers," her tackle, etc., to recover the sum of $5,845, prepaid freight on a cargo of paper loaded on the schooner for shipment from New York to Bordeaux, France, by the International Paper Company. Judgment went for libelant in the District Court. It was reversed by the Circuit Court of Appeals by a divided court. To this action this writ is directed.

The facts as found by the Circuit Court of Appeals are as follows:

"September 14, 1917, the schooner Gracie D. Chambers began to load a general cargo in the Port of New York to be delivered at Bordeaux. Between September 27 and 29 the libelant Paper Company shipped 120 tons of print paper.

"September 28 at 4:25 p.m. the Treasury Department at Washington telegraphed the Collector at the Port of New York to withhold clearance of all sailing vessels, any part of whose voyages would bring them within the danger zone. There was no official publication of this embargo, but it was put into effect beginning September 29 by the refusal of clearance to such vessels as they applied for them. Both the shippers and the shipowners had heard rumors of the embargo as early as October 1.

"October 3 the schooner moved out to an anchorage at the Red Hook Flats to save wharfage charges and to await clearance.

"October 4 the freight was paid against delivery of the bill of lading.

"October 5 the master applied to the Collector for clearance, which was refused. He then applied to the authorities at Washington to except this schooner from the embargo on the ground that it had begun to load before the order was made. Refusal to allow an exception in her favor was not definitely and finally made until October 10. Subsequently the cargo was discharged and the owners refused to return the freight paid.

"`The bill of lading contained the following provisions:

"`Restraints of Princes and Rulers excepted.'

"`Freight for the said goods to be prepaid in full without discount retained and irrevocably ship and/or cargo lost or not lost.'"

The case was submitted with Nos. 449 and 450 [Allanwilde Transport Corporation v. Vacuum Oil Co., ante, 377], and its primary question is, as there, the sufficiency of the clauses in the bill of lading as a defense. In those cases we decided that the bill of lading expressed the contract of the parties and hence determined their rights and liabilities. And it is the safer reliance, the accommodation of all the circumstances that induced it. It was for the parties to consider them, and to accept their estimate is not to do injustice but accord to each the due of the law determined by their own judgment and convention, which represented, we may suppose, what there was of advantage or disadvantage as well in the rates as in the risks.

It is asserted, however, that the vessel in this case did not break ground and that this fact distinguishes the case from Nos. 449 and 450. The fact does not deflect the principle of those cases. It was not made to depend upon the fact of breaking ground, but upon the bills of lading which provided for the payment of freight upon the shipment of the goods and the right to retain it though the goods were not carried, their carriage being prevented by causes beyond the control of the carrier.

Therefore, upon the authority of those cases, the judgment of the Circuit Court of Appeals in this case is

Affirmed.