Court. And as it is obvious on the face of the bill that the averment referred to was wholly subordinate to the determination of the existence of the alleged nuncupative will and the validity of the probate thereof, a question over which the Circuit Court did not have jurisdiction, it results that the bill upon constitutional or other grounds, did not present a case warranting the court in passing upon the construction and effect of the will. There was no error in the action of the Circuit Court of Appeals, and its judgment is, therefore, Affirmed. THE ELIZA LINES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 12. Argued April 11, 12, 13, 1905.-Decided October 30, 1895. A vessel bound on a voyage from Pensacola to Montevideo with a cargo of lumber under a charter party, "the dangers of the seas, fire and navigation always mutually excepted" was abandoned, justifiably, in consequence of dangers of the seas and was afterwards picked up by salvors and brought into Boston. The master who was at St. John was notified and claimed the vessel and cargo from the salvors, stating his intention to repair the vessel and complete the voyage, to which cargo-owners objected claiming that the voyage was abandoned and they were entitled to the cargo and obtained an order for its sale. The Circuit Court held that the master should have been allowed to complete the voyage and earn freight and charged the cargo-owners personally with the net freight. Held error, and that the abandonment of the vessel by the master and crew gave the cargo-owners the right to refuse to go on with the voyage and that they were not to be treated as guilty of breach of contract for preventing the continuance of the voyage by their refusing to do so and procuring the sale. An open cessation of performance with the intent to do no more, even if justified, excuses the other party from further performance on his side. The same principles which apply to the making of a contract apply to the breach of it, and to nonperformance of the conditions attached to the other side. If there is no injustice it is desirable that the maritime law of this country and of England should agree. Argument for Cargo-owners. THE facts are stated in the opinion of the court. 199 U. S. Mr. L. S. Dabney, with whom Mr. F. Cunningham was on the brief, for Ward & Co., cargo-owners: When a vessel has been abandoned at sea by the master and crew without any intention of returning to her, the owner of cargo has the right, before the carrier or his agents have regained possession of the cargo, to treat the contract of affreightment as abandoned and at an end, and to receive his cargo without becoming liable for any freight; and this although the abandoned ship and cargo are carried by salvors to the original port of destination. The Arno, 8 Asp. Mar. Law Cas. 5 (1895); S. C., 72 L. T. (N. S.) 621; The Cito, L. R. 7 P. D. 5 (1881); The Kathleen, L. R. 4 Ad. & Ecc. 269, 1874; The Leptir, 5 Asp. Mar. Law Cas. 411, 1885; S. C., 52 L. T. (N. S.) 768; The Argonaut, Shipping Gaz., Dec. 5, 1884, 775; The Elizabeth and Jane, 1 Ware, 41, 1823; S. C., 15 Fed. Cas. 478, Case No. 8,321; The Mansanito, 22 Fed. Cas. 594, Case No. 13,075, 1861; The James Martin, 88 Fed. Rep. 649, 1883; Dunnett v. Tomhagen, 3 Johns. 154, 1808; Post v. Robertson, 1 Johns. 24, 1806. After the renunciation of a continuing agreement by one party, the other party is at liberty to consider himself absolved from any further performance of it, retaining his right to sue for damages sustained. Roehm v. Horst, 178 U. S. 1. The carrier is not bound to resume the voyage. The carrier is not bound to stipulate for the cargo or even for his own ship. He can without any breach of contract leave the salvage proceedings to take their course and let his ship be sold to pay the salvage. The Nathaniel Hooper, 3 Sumn. 542. The owner of cargo may stipulate for his cargo but he has no right to stipulate for the ship. If he find her derelict upon the high seas with his cargo on board, he has no right to take possession of her except as a salvor: certainly not for the purpose of completing the carriage of his cargo. The Arno, supra. The voyage of the Eliza Lines could not after the abandon 199 U. S. Argument for Cargo-owners. ment by the master and crew be resumed, as concerns the cargoowner, with the same character of a transaction of commerce. As Ward & Co. had exercised the right to treat the contract of affreightment as at an end, and to receive their cargo, or to have it sold, without the payment of any freight, it follows that they are not liable personally and that no decree can properly be made against them personally. They are not liable upon any express contract and can be liable only upon an implied contract, to pay for benefits received by services rendered or to sacrifices made to save their cargo. Flaherty v. Doane, 1 Lowell 148. The bottomry bondholder, of course, had no personal claim against Ward & Co. and the decree against Ward & Co. for bottomry must rest wholly upon the consolidation of the causes, and convenience in the distribution of the amount awarded against them. One of the best established and beneficent powers of the Admiralty Court has always been that of ordering a sale upon the happening of a maritime disaster, after hearing all persons concerned. This power has been exercised for the very purpose of settling the question of the necessity and taking the responsibility from the shoulders of any one interested in the adventure; and while it is oftenest invoked by the master in order to relieve himself from responsibility, as for instance in selling cargo to obtain funds to carry on the voyage, it may be invoked by a cargo-owner or by any one else who is interested. 2 Parsons on Ship. 338; Benedict's Adm. Prac., 3d ed., § 299; The Fanny & Elmira, Edward's Adm. Rep. 117; The Gettysburg, 5 Asp. Mar. Law Cas. 347; Janney v. Columbian Ins. Co., 10 Wheaton, 411, 418; Dorr v. Pacific Ins. Co., 7 Wheaton, 581; Dunlap's Adm. Prac. p. 64. When the master sells upon a marine disaster, even without any legal proceedings, if it be done bona fide for the benefit of all concerned, the sale is upheld as against all persons, even though as a matter of fact it turns out to have been unfortunate. The Amelie, 6 Wall. 18; Post v. Jones, 19 How. 150. Argument for Master and Salvors. 199 U. S. Yet in this case, when a sale has been made in a port of refuge by order of an admiralty court upon due proceedings, and after hearing all persons interested, the Circuit Court rules that it must be assumed to have been made, unless the cargo is technically perishable, in the interest of the party moving it, and that that party is liable for the consequences of it. The grounds for the motion for a sale were well known and valid grounds, and grounds on which the courts have frequently ordered sales. There is no absolute right in case of salvage to a delivery of the property on stipulation. 300 Tons of Iron Ore, 38 Fed. Rep. 36; The Nathaniel Hooper, 3 Sumn. 542, 562; The Mendota, 14 Fed. Rep. 358; The Kathleen, L. R. 4 Ad. & Ecc. 269; The Lion, 1 Sprague, 399. In proceedings in rem the allowance of process is the act of the law, so that no damages are allowed for the arrest and detention of a vessel, unless there is bad faith or deceit practiced in suing out the warrant, or the suit is one that may be characterized as a malicious prosecution. The Alex Gibson, 44 Fed. Rep. 371, 374; The Adolph, 5 Fed. Rep. 114; Kemp v. Brown, 43 Fed. Rep. 391; The Wasco, 53 Fed. Rep. 546; Henry Adm. p. 337. Where a sale pendente lite is fairly made upon a valid order of the court, to prevent the property being eaten up by charges, it protects all parties equally with the purchaser. Pollard v. Baker, 101 Massachusetts, 259; American Ins. Co. v. Johnson, 1 Blatchf. & H. 9; Kleber on Judicial Sales, § 2, p. 58 and cases cited. Mr. John Lowell and Mr. James A. Lowell for Andreasen, master. Mr. Harrington Putnam and Mr. Edward S. Dodge, with whom Mr. Frederic Dodge was on the brief, for the salvors and holders of bottomry bond: In England when a vessel abandoned by the ship-owner owing to stress of weather is brought into harbor by salvors, the cargo-owner may elect to treat the contract of affreightment as at an end if the vessel has not come into the possession 199 U. S. Argument for Master and Salvors. of the ship-owner again. The Kathleen, 2 Asp. M. C. 367; The Cito, 4 Asp. M. C. 468; The Argonaut, Shipping Gazette, 1884, 775; The Leptir, 5 Asp M. C. 411; The Arno, 8 Asp. M. C. 5. The injustice of this rule is obvious. Saunders, Maritime Law, p. 133. The ship-owner has not been at fault, as his abandonment of the vessel was caused by the excepted peril of the seas; but he must deliver up the goods without receiving freight, if the cargo-owner so desires, or he may be compelled to carry them on. The English cases do not rest on a sound basis. They overlook the true nature of a contract of carriage. In such a contract the ship-owner agrees to carry the goods to their destination; the cargo-owner agrees to pay the freight when the goods arrive. Hunter v. Prinsep, 10 East, 378, 394; The Arno, 8 Asp. M. C. 5, 6; Ellis v. Willard, 9 N. Y. 529, 532; The Tornado, 108 U. S. 342; and under this contract the perils of the sea are excepted. The law of carriage by sea rests on the basis of this simple contract. The ship-owner has the right to carry the cargo and the cargo-owner has the right to have it carried. The ship-owner may carry to the destination, Allen v. Mercantile Ins. Co., 44 N. Y. 437; the cargo-owner cannot get the goods at an intermediate port except by paying full freight. Schouler Bailments, 3d ed., sec. 528; 2 Parsons Contracts, 9th ed., p. 425; The Teutonia, 1 Asp. M. C. 32; Palmer v. Lorillard, 16 Johns. 348, 355; The Nathaniel Hooper, 3 Sumner, 542, 555; unless they are voluntarily given up for a less amount. 2 Parsons Contracts, 9th ed. p. 427; Smyth v. Wright, 15 Barb. 51; McKibbin v. Peck, 39 N. Y. 262; Hunt v. Haskell, 24 Maine, 339. The ship-owner has the right to complete the carriage and may have a reasonable time in which to repair his injured vessel or he may trans-ship and send the goods on in another vessel. Shipton v. Thornton, 9 A. & E. 314; The Soblomsten, L. R. 1 A. & E. 293; McGaw v. Ocean Ins. Co., 23 Pick. 405; Harrison v. Fortlage, 161 U. S. 57, 65. Ordinarily the ship-owner keeps possession of the goods during carriage, but possession in him is not essential. He may forward the cargo in a vessel belonging to someone else if |