Argument for Appellants.

by this court. In the case of Dahl v. Nelson, L. R. 6 App. Cas. 38, 43, 47, 51, where the whole subject is discussed, it was held, by the House of Lords, that the destination called for in the charter-party, by the language used, provided alternative destinations for the vessel, and it was substantially decided that a satisfactory port would be furnished if, either inside the port itself or at a reasonable distance outside, she could find a safe berth. And see, to the same point, Capper v. Wallace, 5 Q. B. D. 163; Neilson v. Wait, 14 Q. B. D. 516; Carsanego v. Wheeler, 16 Fed. Rep. 248.

It is true that the case of the Alhambra was not considered by the House of Lords when Dahl v. Nelson was before them, it not having been decided, on appeal, until March, 1881, while the decision in the House of Lords bears date in January preceding, but it is believed that a comparison of the doctrines laid down by the House of Lords with the law as determined in the Alhambra case, will show that the latter would not have been adopted by the tribunal of last resort if it had come up for consideration. The case in the House of Lords, being then still unreported, is not cited in the Alhambra case. It is not important, however, to consider how far the case of the Alhambra would be regarded as authority in this court, because the learned judge below has found that "there existed at the time of the making of the charter a general custom in the Atlantic ports of the United States, with reference to charters similarly worded, that a ship may be ordered to any safe port within the range where commerce is carried on, whether she can get into it or not, provided there is an anchorage near the port, customarily used in connection with it, and where it is reasonably safe for the ship to lay and discharge." Under this custom it is not denied that it was within the right of the charterers to send the Gazelle to Aalborg, provided the anchorage outside was reasonably safe, and both parties must be presumed to have known of the custom.

The appellee contends that there is but one safe port in Denmark for a vessel of the Gazelle's tonnage, viz.: Aarhus, and yet it is manifest from the language of the charter-party -"a safe, direct, Norwegian or Danish port"—that the

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Argument for Appellants.

charterers contemplated more than one. If, therefore, he desired to take no chances; if he desired to assume that what was constantly safe to other vessels would not be safe to the Gazelle; that the every-day experience of the port was not such as to justify him in taking the risk of the anchorage outside the Limfiord; it was his plain duty to say so, at the time the charter-party was entered into, and not expose the charterers to the loss and sacrifice of placing a valuable cargo on board, to be straightway unloaded and left on their hands at the port of shipment. It was neither frank nor fair for him to procure a charter by remaining silent under such circumstances, and enforce a restriction afterwards, which would have prevented the charterers from taking his ship if they could have anticipated it. He ought not to be permitted to lie in wait till he had the charterers in his power. Charter-parties are instruments more or less informal, and entitled to liberal construction in furtherance of the real intention of the parties and the usage of trade. Raymond v. Tyson, 17 How. 53, 59, 60.

It is supposed to be clear law, that when a vessel is chartered to go to a port or as near thereunto as she can safely get and always lay and discharge afloat, there is no restraint of her right to go to and enter a totally different port, provided it be the nearest safe port of discharge to the port of her destination. Horsley v. Price, 11 Q. B. D. 244.

When the contract of either party is broken, it is the implied duty of the other to do the next best thing, in order to prevent unnecessary loss. 2 Sedgwick on Damages (7th ed.), 118. If the master of the Gazelle had signed the bill of lading in the form admitted by the appellee in his libel to have been tendered him, he would not have prejudiced his own rights in any particular. If, upon arriving off the Limfiord bar, he had found any good and sufficient reason for not discharging outside, he could have lawfully gone to the nearest safe port for security. He would in fact have but conformed in that regard to the language of the charter-party itself. The master recognized this, for the court finds expressly, as already shown, that he agreed to sign bills of lading at one time containing

Argument for Appellants.

the words just above quoted from the charter-party, but that for some unassigned reason he changed his mind, only repeating his previous allegation, "that there was no place near Aalborg where he could safely lay and discharge, and as he knew beforehand that he would have to go to the nearest safe port, he would not sign any bills of lading which might in any way commit him to anything else." These facts, however, if they are facts, he was quite as fully aware of, when he agreed to sign, as when he afterwards fell away from his agreement. Nor can there be any better evidence than all this that he was aware of his right to go to another port, if he could not lie and discharge safely at the anchorage outside of Aalborg. If he was right in his contention as to the insecurity of the anchorage outside of Aalborg, he must be presumed to have known that his failure to discharge his cargo there would not impose upon him any responsibility for damages; and that, on the contrary, he would be entitled to recover from the shippers any loss he might incur by going first to the mouth of the Limfiord and sailing thence, for sufficient cause, to the nearest safe port. How, therefore, he could impair his interests or lose any of his rights by signing the bills of lading as requested, it does not seem easy to perceive. Shield v. Wilkins, 5 Exch. 304.

III. The general principle regulating damages in cases of this sort is too well established for controversy. The shipowner who is prevented from performing a voyage by the wrongful act of the charterer is prima facie entitled to the freight he would have earned, less what it would have cost him to earn it. If he has earned or might have earned other freights, or has or might readily have been benefited by the opportunities which the cancellation or defeat of the contract affords him, this must be taken into account. Scrutton on Charter-Parties, 256-259. Of course indemnity is the guide and principle in all such cases, and a man's loss by the breach of a contract is only his net loss: i.e., what he loses primarily, less what he gains, or ought to have gained, incidently or otherwise. If he gets, or might have got, a better charter, the day after he lost the benefit of a previous worse one, he is

Opinion of the Court.

obviously gainer and not loser by the transaction. Bailey v. Damon, 3 Gray, 96; The Potomac, 105 U. S. 630.

In Wilson v. Hicks, 26 L. J. (N. S.) Exch. 242, which was an action on a charter-party for not loading a cargo, and where the entire question was raised and discussed, Pollock, C. B., thus states the rule, on page 243: "The rule in all cases where the plaintiff seeks to recover damages for breach of contract, where the amount of damages depends on the conduct of the party, is, that, prima facie, he is entitled to the full measure of damages; but the jury are to take into consideration all the circumstances, and, if the plaintiff has acted unreasonably, then they may diminish the damages on that account. There is no rule of law that the plaintiff must necessarily recover the full amount of the freight, but it is a rule of law that the captain, in such cases, is bound to do what is reasonable, under the circumstances."

Mr. Archibald Stirling for appellee.

MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.

The jurisdiction and authority of this court, in passing upon this appeal, are defined by the act of February 16, 1875, c. 77, § 1, by which the Circuit Court, in deciding admiralty causes on the instance side, is required to state its findings of fact and its conclusions of law separately; and a review of its decrees by this court is "limited to a determination of the questions of law arising upon the record, and to such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of exceptions prepared as in actions at law." 18 Stat. 315. The limit thus prescribed has been steadfastly upheld by this court against repeated attempts to escape from it. The Abbotsford, 98 U. S. 440; The Benefactor, 102 U. S. 214; The Annie Lindsley, 104 U. S. 185; The Francis Wright, 105 U. S. 381; Sun Ins. Co. v. Ocean Ins. Co., 107 U. S. 485; The Adriatic, 107 U. S. 512; The Connemara, 108 U. S. 352; Merchants' Ins. Co. v. Allen, 121 U. S. 67.

Opinion of the Court.

The record in this case consists of the pleadings, the findings of fact, the conclusions of law and the final decree.

By the express terms of the charter-party, the charterers were bound to order the vessel "to a safe, direct, Norwegian or Danish port, or as near thereunto as she can safely get and always lay and discharge afloat." The clear meaning of this is that she must be ordered to a port which she can safely enter with her cargo, or which, at least, has a safe anchorage outside where she can lie and discharge afloat. Dahl v. Nelson, 6 App. Cas. 38; The Alhambra, 6 P. D. 68. The charterers insisted upon ordering her to the port of Aalborg. The Circuit Court has found that Aalborg is in a fiord or inlet having a bar across its mouth, which it was impossible for the Gazelle to pass, either in ballast or with cargo; and that the only anchorage outside the bar is not a reasonably safe anchorage, nor a place where it is reasonably safe for a vessel to lie and discharge.

These positive findings of essential facts are in no way controlled or overcome by the other statements (rather recitals of portions of the evidence than findings of fact) that large English steamers habitually, and thirty-one American vessels in the course of several years, had in fact discharged the whole or part of their cargoes at that anchorage, without accident or disaster. A dangerous place may often be stopped at or passed over in safety. The evidence on the other side is not stated in the findings; and if it were, this court, in an admiralty appeal, has no authority to pass upon the comparative weight of conflicting evidence.

The Circuit Court has found that "there existed, at the time of the making of the charter, a general custom in the Atlantic ports of the United States, with reference to charters similarly worded, that a ship may be ordered to any safe port within the range, where commerce is carried on, whether she can get into it or not, provided there is an anchorage near the port, customarily used in connection with it, and where it is reasonably safe for the ship to lay and discharge." But the only anchorage near the port of Aalborg not being a reasonably safe place to lie and discharge at, that custom has no bearing on this case.