Supreme Court of the United States


248 U.S. 392

Argued Dec. 13, 1918 - Decided Jan. 13, 1919

[248 U.S. 393] Messrs. Julius J. Frank and Everett P. Wheeler, both of New York City, for Standard Varnish Works.

[248 U.S. 395] Mr. Clarence Bishop Smith, of New York City, for The Bris. [248 U.S. 396]

Mr. Justice McKENNA delivered the opinion of the Court.

This case was submitted with Nos. 449 and 450, 248 U.S. 377 , 39 Sup. Ct. 147, and No. 479, 248 U.S. 387 , 39 Sup. Ct. 149, being a suit in admiralty, as they were, to recover prepaid freight upon a shipment of articles of merchandise which were not carried to destination, the carriage having been prevented by action of the government. Judgment was rendered for libelant and the case taken to the Circuit Court of Appeals.

The case is here on certificate from that court (254 Fed. 987), induced, as the court recites, by its decision in the case of International Paper Co. v. The Schooner Gracie D. Chambers (No. 479), to review which a certiorari has been granted by this court.

The facts as certified are these:

Clause 6 of the bill of lading is as follows: The material parts of clause [248 U.S. 398] 7 are as follows: Clause 2 should be considered. It exempts 'by arrest and restraint of princes, rulers or 'bt arrest and restraint of princes, rulers or peoples.'

We think the case is within the principle of the decision of the cases submitted with it. In this case, however, it is urged that the clause relied on by the ship to justify the retention of the advance of freight does not contain the word 'irrevocable' and that upon that word stress was put by the Circuit Court of Appeals and presumably by this court. The word undoubtedly is one of intensity but its absence does not remove the meaning or intention of its associates. Their declaration is that 'prepaid freight is to be considered as earned on shipment of the goods and is to be retained by the vessel's owners, vessel or cargo lost or not lost.' The declaration is clear, and, in anxiety of purpose, uses some tautology. The words 'prepaid freight is to be considered as earned' declare a completed right and carried the power of retention without the expression of the latter. And the expression of the right and the power cannot be put aside. Counsel, however, would make them purposeless and would consider the bill of lading as if they were not contained in it, and urges that the only effect of the refusal of clearance to the ship was the 'commercial frustration of the adventure' working a dissolution of the contract, absolving from performance but requiring the restitution of the payments that were made as the consideration of performance.

We are not insensible to the appealing force of the contentions nor to the strength of the argument advanced [248 U.S. 399] to support them, but the contract determines against them and the reasons for assigning to it that effect we have given in our opinions in the other cases.

We, therefore, answer the questions certified in the affirmative.

So ordered.