September 14, 1917, the schooner Gracie D. Chambers began to load a general cargo in the port of New York, to be delivered at Bordeaux. Between September 27 and 29 the libel-ant Paper Company shipped 120 tons of print paper. September 28, at 4:25 p. m., the Treasury Department at Washington telegraphed the collector at the port of New York to withhold clearance of all sailing vessels, any part of whose voyages would brihg them within *183the danger zone. There was no official publication of this embargo, but it was put into effect, beginning Septembej 29, by the refusal of clearances to such vessels as applied for them. Both the shippers and ilie shipowners had heard rumors of the embargo as early as October 1.
October 3 the schooner moved out to an anchorage at the Red Hook flats, to save wharfage charges and to awo.it clearance. October 4 the freight was paid against delivery of the bill of lading. October 5 the master applied to the collector for clearance, which was refused. He then applied to the authorities at Washington to except this schooner from the embargo, on the ground that she had begun to load before the order was made. Refusal to allow an exception in her favor was not definitely and finally made until October 10. Subsequently the cargo was discharged and the owners refused to return the prepaid freight.
The bill of lading contained the following provisions:
“ltostraints oí princes and rulers excepted.”
‘‘i'm'giit for the said goods to be prepaid in full without discount retained and irrevocably, ship and/or cargo lost or not lost.”
Claimant relies on these clauses for a'defense to the libel.
[1,2] By our law freight is earned only upon delivery of cargo. The ship may have carried the cargo on a voyage of 3,000 miles, and to within 1 mile of destination; but the carrier has earned no freight, and must return any freight prepaid if he has not delivered. The parties, of course, may agree upon a different rule, and for that purpose a clause has been introduced into bills of lading and charter parties from time out of mind that prepaid freight shall not be returned “ship lost or not lost.” The clause variously phrased is intended to cover all contingencies. If only the loss of the ship were contemplated, the additional words “or not lost” would be meaningless. What the parties intend is that the carrier shall keep the freight, even if he does not deliver the cargo, unless the failure to deliver be due to the carrier’s fault, or to a peril not excepted in the bill ox lading or charter party.
[3-5] The clause in this bill of lading is not very artistically drawn, because of the insertion of the conjunction “and” between the words “retained” and “irrevocably.” Yet the meaning is perfectly clear; “re,tallied and irrevocably, ship and/or cargo lost or not lost,” means retained and irrevocably retained. In the case of The Allanwilde (D. C.) 247 Fed. 236, the words were “retained and irrevocable,” but the meaning is exactly the same, to wit, that the prepayment of freight was irrevocable and was to be irrevocably retained. The marine document in each case contained an exception of the restraint of princes. The government’s embargo was such a restraint, and an exception coveted it exactly as it would cover perils of the sea.
It is to be remembered that goods delivered to the carrier, even before actual loading aboard, are in his custody, and that the maritime engagement is begun; the goods being bound to the ship for the freight and the ship hound to the goods for transportation in accordance with the contract. Bulkley v. Naumkeag Co., 24 How. 386, *18416 L. Ed. 599; Scott v. The Ira Chaffee (D. C.) 2 Fed. 401. The money sought to be recovered in this case was paid as freight against delivery of the bill of lading, whether earned or not.
The apparently inequitable result in this case is a temptation to interfere in a contract made by parties perfectly competent to contract, and contracting in the face of the very emergency which subsequently arose. This is to be especially avoided m construing familiar and long-established provisions in commercial documents. The District Judge, in the case of The Allanwilde, supra, made an additional suggestion to the effect that the carrier was bound to transship the cargo. That, however, is a discretion which is to be properly exercised on behalf of the shipper, when he is not present or cannot be communicated with, which is not this case. It is also a privilege which the law gives the master, as representing the owner, to earn his freight if he will lose it by abandoning the voyage. The District Judge thought that if the ship had broken ground — e. g., if she had sailed a mile — the prepaid freight might be retained. Clearly it could not be retained for that reason, because under our law it is not earned until delivery of the cargo. Only the clause in the bill of lading could authorize the retention.
The case of The Tornado, 108 U. S. 342, 2 Sup. Ct. 746, 27 L. Ed. 747, is not applicable. The voyage in that case was completely frustrated by a fire which rendered the ship unseaworthy and unable to proceed within a reasonable time. The question involved was the right to transship the cargo. The carrier claimed a lien upon the cargo for his' freight on the ground that he had been deprived of his right to transship it and so earn his freight. No freight was prepaid or payable, and none had been earned. The court held that the parties had contracted with reference to a particular vessel which no longer existed, and likened the case to that of Taylor v. Caldwell, 3 Best & Smith, 826, in which the owner of a music hall was excused from his contract to let it for a performance because it had been burned down. If the contract in the case of the music hall had contained a provision that the owner was to be liable, even if it burned down, the conclusion would obviously have been different. The House of Lords in the case of Coker v. Limerick S. S. Co., 34 Law Times Rep. 18, lately decided that the shipowner was entitled to recover freight payable on signing bills of lading, although the vessel and cargo were burned during the loading, and before the voyage, began, but after bills of lading were signed; the English law on the subject of prepaid freight being the same without any specific contract as our law is when the contract provides that it shall be retained.
Our decision in National Steam Navigation Co. v. International Paper Co., 241 Fed. 861, 154 C. C. A. 563, requires the decree to be reversed, and what was said in Ocean S. S. Co. v. United States Steel Products Co., 239 Fed. 823, 152 C. C. A. 609, as to the retaining of prepaid freight, being concededly obiter, is not controlling.
Decree reversed.