Kelly v. Johnson

14 F. Cas. 267, 3 Wash. C. C. 45

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1811
• Status: Published

Opinion

WASHINGTON, Circuit Justice.

If regular bills of lading had been signed, and no law had afterwards passed to affect the contract of affreightment, it is admitted, that the defendants were bound to carry the goods, as soon as the embargo was removed. But, it is said, that the refusal of the captain to sign bills of lading and the nature of his receipt, made everything exec-utory, and varies this from most other eases. We think quite otherwise. The meaning of the receipt is plainly this, that as the embargo operated, for the present, to interrupt the voyage, and to suspend the effect of a bill of lading, if it were given, it • would be unnecessary at that time to sign them; but, that as soon as the restrictions should be removed, the captain would perform his contract to carry the cargo, and would then sign the bills of lading. This agreement being made after the existence of the embargo was known, makes the case rather stronger against the defendants, than if bills of lading had been signed before it was known. Certainly, it does not weaken the plaintiff’s case. Whether the enforcing law, passed on the 9th of January, 1809 [2 Stat. 506], can be construed to dissolve the contract, need not be determined; but if it did, it could not operate further, than to discharge the defendants from the claim of damages, for not carrying the cargo when the restrictions of the embargo should be removed; but, certainly, not to entitle the defendants to claim freight, or any thing in the nature of it, or damages, from the plaintiff. The referees have therefore erred in a plain point of law, and the report must be set aside.