PER CURIAM.
[1, 2] AVe concur in Judge Veeder’s finding of law that the charter is to be construed by English law, and that the provision as to arbitration is not enforceable in our courts. AYe decline to consider the correctness of the damages awarded. That matter was formally and properly referred to the commissioner, who made a report in accordance with a stipulation as to facts executed between the *46parties, and no exceptions to that report were ever filed. The correctness of the commissioner’s conclusion was never presented to the District Court, and is not before us in such shape as to require consideration.
[3] The clerk refused to include in the libelant’s bill of costs the marshal’s poundage, calculated at the lesser rate allowed on a settlement under section 829, subd. 15, Rev. St. U. S. (Comp. St. 1916, § 1386), and upon exceptions the District Judge overruled the clerk. It seems to us that the court made a very reasonable disposition for the protection of the marshal. If. the case be settled by the parties, this poundage will have to be paid before satisfaction of the decree. On the other hand, if the libelant has to collect by execution, the marshal will tax his full poundage and give credit for the amount allowed in the decree as upon a settlement.
[4] This leaves but two questions for brief consideration: (1) Was there a refusal to perform the contract of charter party on the part of the claimant or his agent? and (2) if there was such refusal, was the breach excused by the outbreak of war between France and Germany? The libel alleged, and the lower court definitely found, that on August 5, 1914, the master of the Eros, under instructions of her owner, refused to recognize the charterer’s orders, and withdrew the yacht from charterer’s control. We have examined the evidence carefully; its legal effect is fairly stated in the opinion of Judge Veeder, and, after making every allowance for the disadvantage under which claimant labored in having a breach of charter party spelled out of the conversation of a French ship captain, speaking in English, with an American lawyer, we are compelled to accept the finding of -the lower court.
Whether the outbreak of war excused this breach is a matter which a majority of this court consider disposed of by the actual facts of this case rather than by the application of any inexorable rule of law. The charter party contains no proviso excusing nonperformance caused by “acts of princes” or other matters equivalent to declared hostilities. It is thought that the recent ruling in The Kronprinzessin Cecilie, 244 U.S. 12" court="SCOTUS" date_filed="1917-05-07" href="https://app.midpage.ai/document/the-kronprinzessin-cecilie-98931?utm_source=webapp" opinion_id="98931">244 U. S. 12, 37 Sup. Ct. 490, 61 L. Ed. 960" court="SCOTUS" date_filed="1917-05-07" href="https://app.midpage.ai/document/the-kronprinzessin-cecilie-98931?utm_source=webapp" opinion_id="98931">61 L. Ed. 960, has mitigated tire rigidity of contract sometimes inferred from the absence of the “restraint óf princes” clause.
Applying that decision to this case, the majority hold that, if the French consul in New York had actually taken by order or requisition on the yacht master all, or substantially all, of his crew, that governmental act would have been an excuse for declination to further perform the.terms of charter. Such, however, was not the fact; a considerable number of the crew were taken, and did go to join the French military forces. We find that, before the charterer had finally committed himself to a new fixture, it had become possible to put the yacht at his disposition so far as he had then indicated. This the yacht master made no effort to do, and his conduct was entirely approved by the claimant herein, who not only ratified his captain’s substantial refusal to perform, but added the condition (wholly inadmissible) that the *47charterer should only use the yacht during the pendency of war within the territorial waters of the United States.
Therefore the decree must be affirmed, with interest and costs.
On Motion for Reargument.
PER CURIAM.
[5] Having fully considered the record in respect of damages, no reason is seen to disturb the conclusion reached below. Though a yacht is used for pleasure only, a contract for her use is as much a property right as the hiring of a cargo boat, and a breach of contract entails the same consequences. Our decision in Sanders v. Munson, 74 Fed. 649, 20 C. C. A. 581, is controlling and was followed.
That we have now disposed of this question as though.it had been properly raised does not signify any change of view as to the necessity of excepting to a commissioner’s report and presenting to the trial court any errors alleged to have occurred in assessing damages. But in this instance, as appellee did not in brief or otherwise insist on the point, we have deemed it waived, and on the merits deny any relief in respect of amount.