Opinion of the court.

of freight, and, undoubtedly, if the counter order had not been too late, unless the master had consented to give up the freight, he could have been compelled to forward the wheat as per bill of lading, or be answerable for the refusal or neglect.

In cases where the disaster happens in consequence of one of the perils within the exception in the bill of lading, or charter-party, the only responsibility of the vessel is to refit, and forward the cargo, or the portion saved, or if that is impracticable, to forward it in another vessel, and the owner is then entitled to freight. If part of the cargo is so far damaged as to be unfit to be carried on, the master may sell it at the intermediate port, as the agent of the shipper, for whom it may concern, and carry on the remainder. In this class of cases the vessel is only responsible for carrying on the cargo, being exempt from any damage by the exception in the contract of affreightment. And it is perfectly settled, that if the shipper voluntarily accepts the goods at the place of the disaster, or at any intermediate port, such acceptance terminates the voyage and all responsibility of the carrier, and the master is entitled to freight pro rata itineris.*

The same rule, as it respects the effect of the voluntary acceptance of the goods at the place of the disaster, or intermediate port, applies in case the ship is disabled or prevented from forwarding them to the port of destination by a peril or accident not within the exception in the bill of lading.†

The only difference between the cases is, that inasmuch as, in the latter, the vessel is responsible for all the damages that have resulted from the misfortune to the cargo, the proofs of the acceptance of the goods at the intermediate port, in order to operate as a discharge of the vessel, should be clear and satisfactory. The mere acceptance in such

* Welsh v. Hicks, 6 Cowen, 504; Abbott on Shipping, 554-5, and note; 1 Parsons on Shipping, 239, n. 2; Ib. 273; Maude & Pollock, Law of Shipping, 239, 221.

Osgood v. Groning, 2 Campbell, 471; Liddard v. Lopes, 10 East, 526; The Newport, Swabia, 335, 342; Abbott on Shipping, 452, 453-5; Hadley . Clarke, 8 Term, 259; Spence v Chodwick, 10 Queen's Bench, 517.

Opinion of the court.

cases, and nothing else passing between the parties, ought not to preclude the shipper of his remedy. It should appear from the evidence and circumstances attending the transaction that the acceptance was intended as a discharge of the vessel and owner from any further responsibility-what would be equivalent to a mutual arrangement, express or implied, by which the original contract in the bill of lading was rescinded. The ground of the exemption from responsibility of the vessel, in both cases, is the voluntary acceptance of the goods at the intermediate port. Applying these principles to the present case, we think the court can come to but one result. It falls within the second class of cases above referred to, as the explosion of the boiler was not a peril within the exception in the bill of lading.*

The acceptance, as we have already seen, was the voluntary act of the insurance company, without any solicitation or interference on the part of the master; and what would seem conclusive of the intent of the company in the transaction is, that they refused to bring a suit against the carrier to recover for the damaged wheat, although urged to it by the parties who afterwards took an assignment of the subject of litigation. Some $2300 was paid for a claim which, if real and substantial, amounted to $20,000.

What is still further evidence of the understanding of the insurance company of the effect of the acceptance and sale is, that they brought a suit to recover the value of the one thousand one hundred bushels of sound wheat, in the Superior Court of Buffalo alone; but even this was subsequently discontinued. The suit in the present case has been instituted by a volunteer, on a speculation; and we are not sorry that, upon the application of the principles of law governing it, the experiment must fail.

As to the freight, the cases we have above referred to establish that the master is entitled to freight pro rata itineris in all cases where there has been a voluntary acceptance of

*Bulkley v. Naumkeag Steam Cotton Company, 24 Howard, 386; S. C. 1 Clifford, 322–324; 1 Sprague, 477.

Statement of the case.

the goods at the port of disaster. The rate is to be ascertained by comparing the portion of the voyage performed with the entire length of it.*

In the present case the goods were carried something more than half the distance; and, upon the facts as admitted in the record, the freight would exceed the value of the one thousand and one hundred bushels of wheat at the port of delivery at the time it arrived.

No balance is shown to be due to the libellant on the wheat. The libel, therefore, was properly dismissed by the court below.

DECREE AFFIRMED.

MCKEE v. UNITED STATES.

1. The military authorities had no power under the act of July 18th, 1861, to license commercial intercourse between the seceding States and the rest of the United States. The Ouachita Cotton case (6 Wallace, 521) affirmed.

2. Such trade was not authorized in March, 1864, by regulations prescribed by the Secretary of the Treasury in pursuance of the said act, but, on the contrary, was at that time forbidden by the then existing regulations of the treasury.

3. Even supposing such trade to have been licensed in March, 1864, in pursuance of the act of July 13th, 1861, the license would not have authorized a purchase by a citizen of the United States from any person then holding an office or agency under the government of the so-called Confederate States; all sales, transfers, or conveyances by such persons being made void by the act of July 17th, 1862.

APPEAL from the District Court for Southern Illinois, condemning certain cotton claimed by John H. McKee. The case was this:

Congress, by act of July 13th, 1861,† passed soon after the outbreak of the late insurrection against the United States, enacted that it might be lawful for the President, by proclamation, to declare that the inhabitants of any State or part of a State where such insurrection was existing were 12 Stat. at Large, 257.

* 1 Kent's Commentaries, 230.

Statement of the case.

in a state of such insurrection, and that "thereupon all commercial intercourse by and between the same and citizens thereof and citizens of the rest of the United States should cease, and be unlawful so long as such condition of hostility should continue." The same act contained a proviso that the President might license and permit commercial intercourse with any such part of the section so declared in a state of insurrection as he, in his discretion, might think most conducive to the public interest; and that such intercourse, so far as by him licensed, should be carried on in pursuance of rules and regulations prescribed by the Secretary of the Treasury.

In March, 1864, a date to be noted in the present case, the only regulations prescribed by the secretary on the subject forbade the trade; these prescribing that "commercial intercourse with localities beyond the lines of military occupation by the United States forces is strictly prohibited."

By section 5 of the subsequent act of July 17th, 1862,* it was enacted:

"That to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons hereinafter named in this section, and to apply and use the same and the proceeds thereof for the support of the army of the United States."

The enumeration of persons includes any person hereafter holding an office or agency under the government of the so-called Confederate States of America. And the section thus concludes:

"And all sales, transfers, or conveyances of any such property shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or use of such property, or any of it, to allege and prove that he is one of the persons described in this section."

* 12 Stat. at Large, 590.

Statement of the case.

In this state of the statutes and treasury regulations, one A. W. McKee, a resident of the then rebel portion of Louisiana, and from October till the autumn of 1864 the general agent of the Treasury Department to purchase and dispose of cotton in the State of Texas, and that part of Louisiana lying west of the Mississippi River, regions then in insurrection against the United States and within the military lines of the Confederacy, was the owner of certain cotton, the subject of the present appeal, and had it in a storehouse there on the bank of the Red River.

While thus stored within the Confederate lines, it was purchased of him there, and paid for on the 4th of March, 1864, by John H. McKee, a loyal citizen of the United States, resident at New Orleans, then in possession and under control of the government; this McKee, the purchaser, being no relative of his by blood, though an adopted son of an uncle. There was some evidence, not satisfactory, however, tending to show that the purchaser, McKee, had a license to trade in insurgent territory, issued by agents of the treasury in proposed conformity with the requirements of the act of July 13th, 1861. But, however this might have been, it seemed to be conceded that he had permission from the military commander of the forces of the United States in that department to pass through the Federal lines into the rebellious region, and bring away any property that he might purchase there; and there was even evidence tending to show that these authorities had actually granted him a license to trade.

The cotton had not yet been removed by J. H. McKee from the storehouse in which it was at the time of the purchase, when, in twelve days after the purchase, the region being now overrun by the Federal army, it was seized by a flotilla of the United States, and, in the face of protest, by the purchaser, brought to Cairo and condemned.

The propriety of this condemnation was now the question on appeal.

Mr. R. M. Corwine, for the appellant; Mr. Hoar, AttorneyGeneral, contra.