(concurring). I concur in the result reached in the above opinion. The contract between the parties consists, as the court below found and as this court holds, in three separate contracts, one dated on October 3, 1917, another dated on October 10, and the other dated on October 16, all in the same year. Those contracts show the parties, subject-matter, terms, and consideration. Each of these contracts contained the following statement:
“This contract is accepted subject to the conditions specified in line bill of lading, and is further conditional upon the continuance of the steamship company’s service and the sailing of its steamers. Carriers shall not be liable for any loss, damage, or delay resulting directly or indirectly from war or hostilities between any powers.”
On October 13, 1917, the respondent received the following telegram from Washington : “The United States Shipping Board hereby gives notice to all owners of ships registered and enrolled under the laws of the United States that the requisition of all American steamers described below and of which previous announcement has been made, will become operative and effective on October 15, 1917, at noon.”
The following is an excerpt from the testimony: “After the government had tqken over by commandeering the steamers of the steamship line, had you any other steamers owned by or operated by the Luckenb.ach Steamship Company, after October, to carry that contract? A. No, sir; our last company operation was the sailing of October 13, 1917.”
On November 16,1917, the respondent notified the libelant as follows: “As a result of the loss of two of our steamer's by enemy submarines, and serious damage to two others of our steamers in the war zone, our freight service from New York to Havre-has been interrupted, and we herewith notify you, under the following clause contained in the contract: ‘This contract is accepted subject to conditions specified in line bill of lading, and is further conditional upon the continuance of the steamship company’s service and the sailing of its steamers. Carriers shall not be liable for any loss, damage, or delay resulting directly or indirectly from war or hostilities between any powers. Luckenbach S. S. Co., Inc., -,’ that we will, therefore, be unable to provide steamer space on our steamers for the ■cargo mentioned, and that the contract is thereby canceled.”
The general freight agent of the respondent at the time involved herein testified to the reason why the respondent did not fully perform its contract to carry all the freight under the agreements it made with the libelant. The following is an excerpt from his testimony:
“Q. Do you recollect yourself the times that each of the vessels were commandeered by the government of the steamship company without referring to the memorandum, or do you want to refer to the memorandum? A. I could not recollect offhand the dates at the present time.
“Q. I understood you to say you do know the Luckenbach Steamship Company had no ships of their own they could use to carry the balance of this cargo of coffee?- A. No.
“Q. Now, then, the steamships — who were operating them, the steamships belonging to the Luckenbach Steamship Company? Who was operating them? A. You mean were they under the government?
“Q. Yes, under the government. Were you operating them or the government? A. We were acting as agents for the government. •
*999“Q. Now, under whose instructions did you carry any cargo on those ships? A. Under the government’s instructions.”
The testimony also showed that after the ships were requisitioned the officers of the respondent company attempted to obtain the release of the vessels, so that they could carry the balance of the freight belonging to the libelant, and which the respondent had contracted conditionally to carry. The general freight agent, after testifying that the vice president of the company went to Washington to obtain the consent of the government to the release of the vessels, so that they might carry this freight, testified as follows:
“Q. What did he go there for? A. To get all the space he possibly could.
“Q. And was he able to accomplish it? A. No, sir; he was not.
“The Court: You don’t know what he was able to do.
“By Mr. Carter: Q. Did you get the vessels released so as to move these shipments of coffee? A. No, sir.”
The vice president of the respondent was asked whether all of its steamers were taken by the government pursuant to the telegram, and answered:
“Every piece of floating property we owned was taken as a result of that telegram, or similar individual requisitions.”
It appears, therefore, that the contract to carry was not absolute, but conditional; that the condition upon which it depended was the continuance of the steamship company’s service, and that service did not continue, but was terminated by the United States government under the telegram of October 13, 1917; and that that requisition became operative on October 15, 1917, at noon. In view of all the facts, the letter of cancellation of November 16, 1917, was amply justified.
There was no reason, in my opinion, why it was necessary to show that the libelant made any effort to arrange with other lines to carry the libelant’s freight, in view of the fact that its obligation was conditional, and not absolute, and the condition had arisen which excused performance. See Compagnie de Trefileries v. France & Canada Steamship Co., 192 App. Div. 709, 183 N. Y. S. 169, aff’d 233 N. Y. 596, 135 N. E. 932. The important consideration in this ease is, as it was in Texas Co. v. Hogarth Shipping Co., 256 U. S. 629, 631, 41 S. Ct. 612, 65 L. Ed. 1123, that the contract became impossible of performance through the supervening act of the government of the United States.