APPEAL from the Circuit Court for the District of California, the case being thus:
During the recent war between Spain and the Republics of Chili and Peru, the Spanish fleet being engaged in active hostilities in the South American waters against the ports of the enemy, required supplies of steam-coal, and vessels were taken up on charter, in San Francisco, to convey cargoes for delivery at sea to the vessels of the fleet in aid of the hostile operations of blockade and bombardment of the Chilian ports.
Among these vessels taken up by persons watching the operations of the Spanish fleet, was the ship B. L. Harriman, which was engaged in this service by a charter-party, under date of May 4th, 1866, entered into between one C. J. Jansen, her owner, a merchant of San Francisco, and a certain Emeric, as freighter, also a merchant of that city.
The ship engaged her whole capacity to the freighter, and to take no cargo except from him or his agent, he stipulating to furnish a cargo of 786 tons of steam-coal (already laden on board) and to pay 'for the use of said vessel during the voyage aforesaid, $15 per ton, one-half to be paid here to C. J. Jansen of San Francisco, two days after the sailing of the vessel, and the other half to C. J. Jansen, of San Francisco, on receipt of cancelled bill of lading that the coal has been delivered.'
The owner stipulated for the freighting and chartering of the vessel 'for a voyage from San Francisco to Cobija, Bolivia, or other ports in the Pacific; the port of discharge to be named before the vessel sails from San Francisco; such instructions to be given by letter in triplicate, which will contain the privilege which is hereby given, that if the vessel proceeds direct by the instructions given to Valparaiso, the commanding officer of the Spanish navy will have the right to receive only a part of the cargo, the whole, or none, and to send her, if he desires, to another port in Chili, Peru, or the Chincha Islands, and in that case, the vessel will immediately proceed to the port which will be named by said commanding officer, and there complete her discharge.'
The letter of instructions provided for in the charter-party was given by the freighter to the master of the ship, under date of May 14th, 1866, and says:
'I hereby name you the port of Valparaiso, Chili, as the first port you have to proceed to on leaving San Francisco, and when there, to report yourself to the commanding officer of the Spanish navy, who will have the right &c.' (pursuing the privilege contained in the charter-party).
The instructions proceed:
'I herewith hard you a letter for the commanding officer of the Spanish navy, at Valparaiso, which contains the bill of lading of your entire cargo of coal, indorsed to his order, a duplicate of this charter-party, and of this letter.'
On May 17th, 1866, before the ship sailed, the freighter addressed another letter of instructions to the master, containing a copy of some instructions which he had himself received from Panama, and requesting the master to follow them so far as he could. They were thus:
'On receipt of this letter, if you have not attended to all our outstanding orders, you are requested to suspend operations until further ordered, including even the last one thousand tons of coal, for it is more than possible that the naval forces down there will have changed their base of operations. In case, however, you should have taken up a vessel before the present reaches you, then you must instruct the ship to seek after the fleet between the port of Valparaiso and the Chinchas.'
On the 19th of May, the freighter gave to the master the liberty to call at the Chincha Islands, if wind and weather or other circumstances favored his making them without prejudicing the freighter's rights under the charter-party and instructions. These islands are about 1200 miles north of Valparaiso, to which place, it will be remembered, that by the principal letter of instructions the freighter had directed the master to go.
After the ship sailed, the owner wrote a letter to the freighter, in which he says:
'In your charter of the ship B. L. Harriman there is no provision made for the possibility of there being nobody to receive her (the ship's cargo) on arrival, nor do I know that the captain of the Harriman had your private instructions on this point. At the time of making the charter we could hardly contemplate anything of the kind, hence the omission, and wish you will make some provision in the event such should be the case, and instruct me how to act, that I may communicate same to Captain Swenson.'