This is an appeal in admiralty from the decree of the Circuit Court of the United States for the District of California.
The charter-party, which lies at the foundation of the controversy, bears date on the 4th of May, 1866. The parties to it were Jansen, the claimant, and owner of the ship, and Emerick, the freighter. Both parties were merchants of San Francisco. The entire capacity of the ship was engaged to the freighter. He stipulated to furnish her a cargo of 786 tons of steam-coal, and to pay 'for the use of said vessel during the voyage aforesaid, $15 per ton in United States gold coin, one-half to be paid here to C. J. Jansen, of San Francisco, two days after the sailing of the vessel, less two and one-half per cent. discount for cash, 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 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.' In pursuance of the condition of the charter-party Emerick, on the 14th of May, 1866, addressed a letter to Swenson, the master, in which he said: 'I hereby name you the port of Valparaiso, Chili, as the first port which 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 to take only a part of your cargo of coal, the entire cargo, or none, and if he desires, to send you to another port in Chili, Peru, or the Chincha Islands, in which case you will have to proceed immediately to the port named by said commanding officer, and there complete your discharge, these conditions and privileges being part of the charter-party. I herewith hand 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.' On the 17th of May, Emerick addressed another letter to the master, in which he gave a copy of the instructions he had received from Panama, which were as follows: '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 operation. 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.' He added: 'As far as it is in your power you are requested by me to follow the above instructions.' On the 19th day of May, Emerick gave the master permission to make the Chincha Islands, if circumstances should be favorable, without, however, prejudicing his 'rights under the charter-party, and instructions.'
On the 22d of May, the vessel left San Francisco for the port of Valparaiso. She was freighted according to the charter-party. On the 16th of June following, Jansen said to Emerick, by letter of that date, '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.'