delivered the opinion of the court.
This is a libel in admiralty against cargo of the ship Tornado, brought by the master and owners of that vessel, to recover freight money. The district court, and, on appeal, the circuit court, dismissed the libel. The libellants have appealed to this court. The material facts found by the circuit court are these: On the 24th of February, 1878, the ship, while moored at the wharf in New Orleans, and bound on a voyage-to Liverpool, England, and before she had broken ground for said voyage, was discovered to be on fire in her hold. Her master had given bills of lading for the transportation from New Orleans to Liverpool, with the exceptions usual in bills of lading, of 5,195 bales of cotton, of which 5,008 had been put on board, 164 were on the levee, and 23 had not reached the levee. 'Water was pumped into the ship to extinguish the fire, and, on the 26th, near six o’clock p. m., being filled with water, she sank to the bottom of' the river alongside of the wharf, a part of her bulwarks remaining above water. While so resting upon the bottom of the river, the ship, cargo and freight were, on the 27th, libelled in the district court, for salvage, by the New Harbor Protection Company, and about two o’clock p. m. of that day the marshal, by virtue of a warrant of seizure issued by said court on said libel, took possession of the ship and cargo. On the 28th, about noon, the ship was pumped out and raised alongside the wharf, and the discharge of the cargo on board was commenced, all of it being damaged by water, and some of it by fire, 336 bales having been removed by the salvors in an undamaged condition before the ship sank but after the fire was discovered; but salvage was claimed and allowed on the entire cargo. On the same day, the proctor for the salvors filed in the district court a motion in writing, suggesting that the whole cargo then being discharged from the ship was greatly damaged by water and some of it by fire and water, and would in all probability have ultimately to be sold, being in an unfit condition to be sent to its destination, and an order of the court was thereupon made directing a sale of the cargo by the marshal upon the levee as it came out of the ship, on two days’ advertisement, in such lots as might
On the 30th of March, the present libel was filed. The unsold cargo and the proceeds of that which had been. sold
The circuit court found the following further facts: The libellants paid for compressing the cargo before it was put on board, and for stowing it on board, and other expenses incident .thereto, $14,278.26. The gross freight on the cargo, had it been delivered at its destination in Liverpool, as required by the bills of lading, would have been £4,169 13s Id. Of the cotton, 523 bales were in an undamaged and sound condition, being the 23, the 164 and the 336 before mentioned. In conse- ' quence of the fire, and as a result thereof, the ship was so badly damaged that the cost of her repairs would exceed her value when repaired, and she was unseaworthy and incapable of carrying freight. The 523- bales were bonded by the underwriters and were appraised at the sum of $19,100. The gross ‘proceeds of the sale of the damaged cotton amounted to $116,000. The purchaser at the marshal’s sale shipped to Northern States, in the condition in which' it came from the ship, 1,185 bales of the damaged cotton; and 2,896 bales more
On the facts so found the circuit court held that the libellants had no lien on the cargo or its proceeds, for freight or for the money paid by them for compressing and stowing the cargo, and dismissed the libel.
The libellants seek to apply to the. present case the principle applied where a voyage partly performed is interrupted by a disaster to the ship, namely, that the ship-owner has a lien on the cargo for the earning of the freight, and so has a right to carry the cargo forward by his vessel or some other conveyance, and deliver it and receive his full freight. As in the case of a disaster to the ship in the course of a voyage the whole freight is payable if, by the fault of the owner of the cargo, the master is prevented from forwarding the cargo from an intermediate port to its destination, it is contended in the preseht case that the .libellant's have a right to recover the whole agreed freight, because they had a right to -send the cargo to Liverpool and earn full freight, and were prevented from doing so by the action of the underwriters,, who became, by abandonment, the owners of the cargo. It is also contended that the owners had a right to repair the ship, even though the cost of repairing would exceed her valué when repaired.
The law in regard to-the respective rights and liabilities of shipper and ship-owner, where cargo has been carried for a part of a voyage, is nowhere better expressed than by Lord Ellenborough, in Hunter v. Prinsep, 10 East, 378, 394:
“ The ship-owners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the seas, or other unavoidable casualties-; and .the freighter undertakes that if the goods be delivered at- the place of their desti*348 nation, he will pay the stipulated freight; but it was only in that event, viz,, of their delivery at the place of destination, that he, the freighter, engages to pay anything. If the ship be disabled from completing her voyage, the ship-owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place, of destination ; but he has no right to any freight if they be not so forwarded ; unless the forwarding them be dispensed with, or unless there be some new bargain upon this subject. If the ship-owner will not forward them, the freighter is entitled to them without paying anything. One party, therefore, if he forward them, or be prevented or discharged from so doing, is entitled to his whole freight ; and the other, if there be a refusal to forward them, is entitled to have them without paying any freight at all. The general property in the goods is in the freighter ; the ship-owner has no right to withhold the possession from him, unless he has either earned his freight, or is going on to earn it. If no freight be earned and' he decline proceeding to earn any, the freighter has a right to the possession.”
These remark’s were made in regard to a voyage partly performed, and interrupted by a disaster, where freight money was claimed pro rata itineris peracti. But no case can be found in which freight money has been allowed, where the voyage was not commenced, and the ship was, by a disaster for which the shipper was not at all responsible, put into the situation of the vessel in this case after the contract of carriage was made.
In the present case the ship was rendered unseaworthy by the fire and incapable of earning freight, and was so badly damaged that the cost of her repairs would exceed her value when repaired. There is no suggestion in the findings that there was any intention of repairing her, and on the facts found it must be presumed she would not have been repaired. All that could have been done, if the cargo had been bonded by the master or ship-owners, in regard to sending it forward, would have been to send it by another vessel. But, although the order of March 6th allowed the master to bond the 523
We are of opinion that by the disaster which occurred before the ship had broken ground or commenced to earn freight, the circumstances with reference to which the contract of affreight-, ■ment was entered into were so altered by the'supervening of occurrences which it cannot be intended were within the contemplation of the parties in entering into the contract, that the shipper and the underwriters were absolved from all liability under the contract of affreightment. The contract had reference to a particular ship, to be in existence as a seaworthy vessel and capable of carrying cargo and earning freight and of entering on the voyage. All the fundamental conditions forming part of the contract of the ship-owner were wanting at the time when the earning of freight could commence. In addition, as the result of the fire, and by no fault of the. shipper, all but 523 bales of the cotton was rendered unmerchantable, and put into such a condition that its owner might well hesitate to incur the expense of sending it to Liverpool. As to the undamaged cotton, the niaster had an opportunity for thirteen days' to bond itj and failed to do so.
The money paid by the ship-owners for compressing and stowing the cotton, and for other expenses incident thereto, must be understood as having been included in the freight money, and to be reimbursed out of that, and to be money for which, in any event, the shipper of the cotton would not have been liable in addition to the freight money.. If the shipowner was not entitled to the latter, he was not entitled to anything. He took, as to the expenses, the risk of losing them if he lost the freight money. So, the two are bound up together.
It is an inherent element in a contract of affreightment under a bill of lading, that the vessel shall enter on the voyage named, and begin the carriage of goods shipped, or, as it is technically called, break ground, before a claim to freight money can arise, unless the shipper of the goods, the vessel remaining ready to enter on the voyage, undertakes to reclaim the goods. In the latter case, the circumstances under which the contract was entered into continuing substantially the same so far as respects
The case of Jones v. Holm, L. R. 2 Exch. 335, was a different case. By a charter-party, a vessel was to go to a, specified port and take a specified cargo and deliver it at Liverpool for a specified freight. She went to the port and. was partly laden, when she was so damaged by fire that she was scuttled. The cargo was injured and sold, e-xcept a small part, not on board, which was forwarded to Liverpool by the master. The vessel was repaired and tendered to. take die remainder of' the cargo. The charterer refused tO'.supply more cargo, and the vessel obtained a cargo and carrie.d it. to England at a less freight thaii she would have earned for a fujl .freight under the charter-party. In a suit to- recover.- damages for á breach o‘f the charter-party,' it was held the .charterer was bound to complete the ladin g of the Vessel. ;
The authority of the case of Curling v. Long, is recognized in Bailey v. Damon,
On principle, this case falls within the rule that where the stipulations of a contract are interdependent, a defendant cannot be sued for the non-performance of stipulations on his part which were dependent on conditions which the plaintiff has not performed. The ship-owner was entitled to freight only for carrying the cargo and delivering it at Liverpool, with the implied covenant that this particular vessel was to take it on board and enter,on the voyage. Before that event .occurred this vessel was substantially put out of existence by nc fault of the shipper, and he had and could have no benefit from the contract. He had a right, therefore, to treat the contract as rescinded, so far as any liability for freight was concerned. In Taylor v. Caldwell, 3 Best & Smith, 826, it is laid down as a. rule, that, “ in contracts in which the performance depends on the continued existence.of a given person of thing, a condition is implied, that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.” The reason given for the rule is, that without “ any express stipulation that the destruction of the person or thing shall excuse the performance,” “ that excuse is by law implied, because, from the nature of the contract, it is apparent that the parties contracted on the-basis of the continued existence of the particular person or chattel.” The rule was there applied to excuse the owner of a music hall, which had been burned, from fulfilling a contract to let the use of it. The principle was extended farther in Appleby v. Myers, L. R. 2 C. P. 651. There' the plaintiffs contracted to erect certain machinery on the defendant’s premises at specific, prices for particular portions, and to keep it in repair for two years, the price to be paid upon completion of the whole. After some portions of the work had been finished, and others were in the course , of completion, the premises, with all the machinery and materials thereof, were destroyed by an accidental fire. It was held that both parties were excused from the further performance of the con
These principles, are so well established that it is only necessary to refer to one case in this court, Jones v. United States,
“ Where an act is to be performed by the plaintiff before the accruing of the defendant’s liability under his contract, the plaintiff must prove either his performance of such condition precedent, or an offer to perform it which the defendant rejected, or his readiness to fulfil the condition until the defendant discharged him from so doing, or prevented the execution of the matter which the contract required him to perform. ... A contract may be so framed that the promises upon one side may be dependent on the promises upon the other, so that no action can be maintained, founded on the written contract, without showing that the plaintiff has performed, or at least has been ready, if allowed by the other party, to perform his own stipulations, which are a condition precedent to his right of action.”
On a full consideration of the case, we a/re of opinion iEat the decree of the circuit court must he affirmed.