
    JOSEPH PATON MACLAY ET AL. v. THE UNITED STATES.
    [No. 22523.
    Decided January 6, 1908.]
    
      On the Proofs.
    
    The owners of the Nyanza charter the steamer to one Withers to carry coal to undetermined points near Manila. The coal is to be discharged and received at the rate of 400 tons a day; the charterers are to have the option of keeping the vessel for ten days at £70 a day. The bill of lading is sent to the American admiral in command at Cavite to whom the cargo is assigned. He detains the vessel for forty-six days beyond the time allowed by the charter party and pays less than £70 a day demurrage.
    I.The consignee and indorsee of a bill of lading, who is the owner of the goods and who accepts them under the bill of lading, is bound by its terms.
    II.A vessel is not bound to look beyond the owner of the cargo and holder of the bill of lading. He becomes liable for any unreasonable delay in the acceptance of the cargo.
    III.After the Government’s proper agents accept a cargo pursuant to the bill of lading, the Government is bound by its terms and becomes privy thereto and liable to the owners for the damages caused by its officers’ violation of its terms.
    
      IV.Wiiere the charter party allows ten days’ demurrage at £70 a day and. the master refuses to allow the vessel to remain at that rate after the ten days, the earning capacity of the vessel becomes the measure of damages for the subsequent days of detention.
    V.Where it does not appear that the fouling of a vessel’s bottom was caused by the harbor in which she was detained, the. owners can not recover for it in addition to demurrage.
    VI.To lose an opportunity to carry a cargo for other persons is remote and speculative and not direct damages in a case of a vessel’s detention. Cases of remote and direct damages reviewed.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. In the year 1898 the claimants, Joseph Patón Maclay, Thomas Walker McIntyre, and William Murray Mackinley were British subjects, residing in Glasgow, Scotland, and were copartners engaged in business under the firm name of Maclay & McIntyre, and were the owners of the British steamship Nyanza, her gross tonnage being 4,053 tons and her net register tonnage 2,643 tons.
    It appears by stipulation of counsel, filed herein December 5, 1907, that William Murray Mackinley, of said firm, departed this life April 25, 1903, and the remaining members of the firm, as set forth above, prosecute this action as surviving partners.
    II. On May 6, 1898, the firm of Macondray & Co., of San Francisco, Cal., offered to furnish 4,500 tons of coal from Newcastle, Australia, deliverable at Manila, P. I., at $13.50 per ton, payment to be made on loading being finished, but on the following day stated that owing to the condition of affairs at Manila they could only furnish the coal, freight prepaid, the vessel carrying said coal to be discharged at the rate of 400 tons per day or demurrage paid at 4 pence per ton per day, they to assume all marine and war risk, insurance, and freight. On May 8 the Navy Department replied that the conditions named were satisfactory except as to payment for the coal before delivery, which was stated and on May 9 said firm informed the department that they had closed a contract for the delivery of 4,500 to 5,400 tons of coal on the conditions named by the Government. On May 14 Macondray & Co. confirmed the sale of the cargo of coal to be shipped on the British steamship Nyanza, in accordance with the terms and conditions named in the telegrams which had theretofore passed between them, and on May 21 the department awarded the contract to said firm.
    III. On May 13,1898, eight days prior to the awarding of said contract, the claimants’ firm, Maclay & McIntyre, entered into a charter party in writing, as set forth in the petition, with Henry J. Withers, of Sydney, New South Wales, for the carriage of a full and complete cargo of coal from Newcastle to Manila, at the rate of 30 shillings per ton, less 2 per cent, to cover insurance, etc., said coal to be taken in delivery at the port of discharge at the average rate of not less than 400 tons per running day (Sundays excepted) after arrival, the charterers to have the option of keeping said vessel on demurrage for ten days at £70 per day, payable day by day on demand.
    in June, 1898, there was shipped on the Nyanza, at Newcastle by said Withers, a cargo consisting of 5,241 tons of coal, destined for Manila. The cargo thus shipped was received by the Nyanza and carried and delivered under and pursuant to the terms of a bill of lading incorporating the terms of the charter party which was issued in triplicate by the master at Newcastle June 22, 1898. The freight on said cargo was paid in London by the representatives of said Withers.
    Nyanza arrived in the Bay of Manila, and the master was informed by a representative of Admiral Dewey, then in command of the United States fleet at that place, that the Admiral desired him to anchor along inside the line of the fleet, which was done. On the same day he was informed by Admiral Dewey that he held the bill of lading for the cargo and that the coal was destined for the United States fleet, and that he would take the cargo as he required it.
    
      YI. Thereupon the cargo of coal on the Nyanza was delivered to Admiral Dewey on board vessels and other places in the neighborhood of Cavite and Manila, at such times and in such quantities as he from time to time directed, but such discharge and delivery was not effected at the average rate of 400 tons per running day (Sundays excepted) for the reason that Admiral Dewey was not ready to receive the same.
    VII. Reckoning at the average rate of 400 tons per running day, Sundays excluded, from July 15, 1898, twelve hours after the vessel’s arrival, the discharge of the cargo would have been completed on July 30, but as said discharge and delivery were not completed at that time, the master of the Nyanza was informed by Admiral Dewey that, under instructions of the Navy Department, demurrage would be paid at the rate of 4 pence per ton per day on net register tonnage, amounting to £44 0s. 8d. per day from July 31. To this the master of the Nyanza made due protest in writing.
    VIII. On August 10, 1898, the period of ten days during which time the'Nyanza might be kept on demurrage, as provided in the charter, having expired, the master of said vessel, acting under instructions of the owners, made claim in writing upon Admiral Dewey for £100 per day demurrage for a further twenty days. To this the Admiral replied that demurrage at the rate of 4 pence per ton per day net registered tonnage would be paid according to advice from the Navy Department as hereinbefore set forth.
    IX. The master of the Nyanza received and accepted from Admiral Dewey, under protest, the sum of $12,000.13 on account of demurrage admitted to be due; said sum was calculated on the basis of 4 pence per ton per day or £44 0s. 8d. per ton per day net registered tonnage, and covered a period of fifty-six days beginning July 31 and ending September 24, 1898, both inclusive.
    X. On September 24, 1898, the discharge and delivery of the cargo of the Nyanza was completed. Said vessel had been detained at Manila ten days beyond the time the discharge of the cargo should have been completed at the average rate of 400 tons per running day, Sundays excluded, and for which the charter party provided £70 sterling per day should be paid. The vessel was detained a further period of forty-six days before the discharge of said cargo was completed, during which time the net earnings of said vessel were reasonably worth £90 per day. Upon the basis stated, the account would stand:
    At £70 per- day, the rate provided for in the charter party for ten days, the demurrage would be_$3,406. 55
    Less the amount paid by defendants for said period_ 2,142.88
    Leaving_ 1,263.67
    At £90 per day for forty-six days, the time during which the vessel was detained after the ten days provided for in the charter party had expired, the demurrage would be_ 20,147.31
    Less the amount paid by the defendants for said period_ 9, 857.25
    Leaving_ 10,290.06
    Amounting in all to- 11, 553. 73
    XI. Thereafter and on September 5,1898, the master made a formal protest before the British consul at Manila against Bear-Admiral Dewey and all other persons concerned for the damages and losses sustained, or that might be sustained, in consequence of the demurrage and detention of the vessel. This protest, a copy of which was furnished the admiral, was as follows:
    “ By this public instrument of protest be it made known and made manifest to all people that on this fifth day of September, one thousand eight hundred and ninety-eight, personally came and appeared before me H. A. Bamsden, esqre., British vice-consul in charge of her Britannic Majesty’s consulate at Manila, Andrew McLauchlan, master of the British ship Nyansa, official number 106057, of Glasgow, who did solemnly declare and state as follows: That the British S. S. Nyansa arrived at this port with a full and complete cargo of coals, chartered by Mr. J. S. Withers, of Sydney, N. S. W., the United States Government constructor’s agent, to be delivered to order.
    “That on arrival of Bear-Admiral George Dewey, commanding the United States naval forces on Asiatic station, ordered the vessel to be anchored at Cavite and that the coal would be taken by him.
    “ On the thirty-first of July, the running days having been completed, demurrage then commenced.
    “As per charter party appearer claimed the sum of seventy pounds sterling per day, as stipulated condition on same to be payable day by day for the period of ten days; after this period appearer claimed one hundred pounds demurrage per day.
    “Admiral Dewey sent his secretary to appearer on board the Nyanza and produced a copy of the United States Government contract with Messrs. Macondary & Co., of San Francisco, in which it was stipulated the amount of four pence per ton demurrage, and the secretary informed ap-pearer that he was only authorized to pay that amount and wished to know if appearer would accept same.
    “ Under protest and perforce appearer accepted. On further communication Admiral Dewey stated that he had telegraphed to Washington the claim made by appearer, and, after the lapse of one month, on being asked by the agents here, Messrs. Ker & Co., of Manila, whether an answer had been received, the admiral replied that he had referred the whole matter to the Navy Department at Washington and declined to take any further action in this matter.
    “ In view of the above, therefore, appearer, in his name and in that of his principals, does protest against the said Admiral Dewey and against and all every other person concerned for damages and losses owing to detention and demurrage and any other losses which have been or may be sustained by the action of said Admiral Dewey by appearer and his principals, reserving to himself and agents and principals the right to extend this protest at time and place convenient.
    “(Signed) A. McLauchlan.”
    XII. After the discharge and delivery of the cargo at Manila, the Nyanza proceeded to Sydney, New South Wales, where she was docked and her bottom scraped and painted as a result of her long detention at Manila, at an alleged total cost to the claimants of $4,447.18, the cost of docking alone being £300, sterling. Seven days were consumed by the Nyanza in going to and from the docks, during which time the claimants were deprived of the use of said vessel. The court is unable to determine from the evidence what portion of the expense so incurred, if any, was caused by said detention, even if the defendants are liable therefor.
    XIII. It does not appear from the evidence that the expense incurred in the transmission of cablegrams was the result of the detention of the vessel or a necessary incident thereof. No allowance is made for alleged profits which might have accrued to the claimants by reason of the carriage of wool from Australia to England. It is not shown that claimants had engaged to perform any such service under the terms or conditions upon which it is usually performed.
    
      Mr. J. Parker Kirlin for the claimants: (Convers de Kirlin and Mr. Edward G. Benedict were on the brief.)
    The position was the same as though this bill of lading had specifically read, “ the said charterers or the consignee to have the option of keeping the said ship on demurrage for ten days, at seventy pounds sterling per day, payable day by day on demand,” and had been silent as to the rate of demur-rage payable after ten days.
    The United States was owner and consignee of the cargo of coal, was the holder of the bill of lading, and demanded and accepted delivery of the cargo under and pursuant to its terms.
    It is well settled that the owner and consignee of a cargo who holds the bill of lading and demands and accepts the cargo from the ship, in pursuance of the contract of carriage, is liable and bound to pay demurrage according to the terms of the contract. (Neilson v. Jessup, 30 Fed. Rep., 138.)
    Cases can be multiplied on the point from the courts of many jurisdictions. The liability of the owner and consignee of cargo to pay demurrage when he demands and accepts the cargo, has been affirmed in Dayton v. Parke (142 N. Y., 391); Gabler v. Freeman (29 Md., 273); Falkenberg v. Clark (11 R. I., 278); Morse v. Pesant (3 Abb. Dec., [N. Y.] 320) ; North German Lloyd v. Heule (44 Fed. Rep., 100); Taylor v. Fall River Iron Works (124 Fed. Rep., 826); Graham v. Planters’ Compress Co. (129 Fed. Rep., 253); Crawford v. Mellor (1 Fed. Rep., 638); Gates v. Ryan (37 Fed. Rep., 154); Sutton v. Housatonic Ry. Co. (45 Fed. Rep., 507).
    The English rule is precisely the same. (Lesson v. SoTby, 4 Taunton, 52; Harnon v. Gandolph, Holt, 35; Allen v. Coltart, 11 Q. B. D., 782.)
    The conclusion is inevitable, therefore, that by demanding and accepting the cargo of coal by virtue of its possession of the bill of lading, the United States, under the settled commercial law, bound itself to pay the ship’s demurrage at the charter rate for the period of ten days.
    The damages incident to the loss of the freight based on the wool trade were the direct and inevitable result of the delay caused by the act of the admiral, without the operation of any independent intervening cause, and were not remote.
    The ground on which the item is claimed is, perhaps, not very material. The loss arose from the circumstances above stated and is, it would appear, an item of direct damage and not remote.
    In Hadley v. Baxendale (9 Ex., 341), Alderson, B. stated the rule to be applied in such cases as follows:
    “ Now, we think the proper rule in such a case as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.”
    The allowance of this loss would be justified under the first branch of the rule — that is, as a loss fairly and reasonably considered to have arisen naturally and according to the usual course of things from the breach of the contract to unload the steamer at the rate of 400 tons a day under the charter of May 13,1898.
    The results of the detention could not become fully apparent until the cause had produced its entire effect, which was not known until the condition of the freight market at the end of the second charter was seen. Therefore the loss of the wool market was directly due to the detention of the vessel under the first charter and not to any new and independent cause. This view of the matter is supported by the statement of Knowlton, J., in Lynn Gas Go. v. Meriden Go. (158 Mass., 570), as follows:
    “ When it is said that the cause to be sought is the direct and proximate cause, it is not meant that the cause of agency which is nearest in time or place to the result is necessarily to be chosen. (Freeman v. Mercantile Accident Association, 156 Mass., 351.) The active efficient canse that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source is the direct and proximate cause referred to in the cases: McDonald v. Snell-ing, 14 Allen, 290; Perley v. Eastern Railroad, 98 Mass., 414, 419; Gibney v. State, 137 N. Y., 529; Milwaukee de St. Paul Railway v. Kellogg, 94 U. S., 469, 474.”
    While there is not much authority to be found bearing directly on the point in issue, the analogies to be derived from the cases seem to support the claimants’ contention. (Fletcher v. Tayleur. 17 C. B., 21; Hadley v. Baxendale. 1854, 9 Ex., 341.)
    
      Mayne on damages, 7th edition, page 14, comments on the decision as follows:
    “ In this case the primary object of the ship was to earn freight by carying passengers. The defendant was to be paid the value of such a ship. Any delay in its completion would clearly subject it to a diminution in value by a fall of freight. The measure of that diminution in value was accurately expressed by the difference in profits obtained on the first voyage.”
    Other cases in which loss of profits have been recovered for delay in the delivery of vessels at specified times under building contracts are: Gory v. Thames Iron Works, 1868, L. B. 3 Q. B., 181; ex parte Cambrian Steam Packet Company, L. B. 4 Ch., 117; L. B. 6 Eq., 396; The Argentino, 14 App. Cas., 519.
    
      Mr. Philip M. Ashford (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants:
    As a general proposition of maritime law it must be conceded that the consignee of a cargo accepting the same under a bill of lading binds himself to all the terms and conditions specified therein, and the terms of the charter party are frequently incorporated in the bill of lading by a reference to them. The authorities cited by counsel for claimants in their brief under the “ first point ” would seem to establish this proposition so thoroughly as to leave no room for argument. To the same effect see Carver’s Carriage by Sea, paragraphs 636 to 642; Amer. and Eng. Ene., vol. 9, pp. 224, 228, 254; Grossman v. Burrill, 179 U. S., 100, 109.
    But it will be found upon an examination of these authorities, both in the text and in the citations and decisions, that the theory upon which the consignee under such circumstances is held bound to the terms named in the bill of lading is that at the time of acceptance of the cargo he learns from the bill of lading of the terms and conditions under which the carrier or shipper is offering the cargo, and that he must therefore be held to agree to those terms and conditions.
    In the case at bar it clearly appears that at the time Admiral Dewey informed the master of the Nyanza that he held a bill of lading he did not know and had no means of knowing what the conditions of the charter party were with reference to demurrage. No copy of the charter party was attached to the bill of lading which was sent to Admiral Dewey through the channel of the bank referred to in the findings, and, so far as is disclosed by the record, the master of the Nyanza did not proffer a copy thereof to Admiral Dewey when he discovered that he was the holder of the bill of lading. Was it not his duty to do so ?
    Immediately upon the master ascertaining that Admiral Dewey held the bill of lading covering the cargo, which was at that time under the absolute control of the master of the Nyanza, should he not have said to Admiral Dewey, in words or in substance, “ Here is a copy of the charter party referred to in the bill of lading which you hold.” Had he done so he would have unquestionably been advised then, as he was fifteen days later, that the admiral would not be governed by the terms of that charter party, and he would have been left free to go his way or find some one else to receive the cargo. He could and should have then looked to the shipper (Grossman v. Burrill, infra). Does not the failure in this respect on the part of the master of the Nyanza operate to vitiate the apparent acceptance of the cargo by Admiral Dewey under the terms of the charter party % It may be argued that the reference in the bill of lading to the charter party was sufficient to put Admiral Dewey upon his inquiry and to make it obligatory on his part to have asked the master of the Nyanza when he boarded his ship on July 15 for a copy of the charter party so referred to, but in view of the information which Admiral Dewey then had with reference to the terms and conditions under which Macondary & Co. agreed to deliver the coal, he was certainly justified in assuming that wherever the charter party was, or whatever its form, it was in accordance with those terms and conditions.
   Atkinson, J.,

delivered the opinion of the court:

The owners of the steamship Nyanza, who are subjects of Great Britain, bring this suit to recover damages by way of demurrage for detention of said steamer while unloading a cargo of coal consigned under a bill of lading to the naval forces of the United States at Manili, P. I., during the months of July, August, and September, 1898, and certain other alleged losses incident to such detention.

May 13, 1898, the plaintiffs chartered their steamship Nyanza to Henry J. Withers, of Australia, to convey a cargo of coal from New South Wales, Australia, to one of several points mentioned at or near Manila, P. I., the definite point not being specified because of a state of war then prevailing between the United States and Spain. The charter party provided that the cargo was to be taken by the consignees at the port of discharge at the average rate of 400 tons per day, excluding Sundays, the charterers or their agents having the option of keeping the steamer on demurrage for ten days at £70 sterling per day, payable daily.

Before the arrival of the steamer at Cavite, July 15, 1898, it appears that the admiral in command of the United States naval forces at Manila had received and held a bill of lading for the cargo of coal, although it was not known to the commander of the vessel, prior to his arrival at Cavite, to whom the cargo of coal had been consigned. The coal was discharged from the vessel under the directions of the admiral in command, but not at the rate of 400 tons per day, as provided in the charter party. The vessel was detained in port for forty-six days beyond the time allowed by charter party for unloading, and the admiral stated to the commander of the vessel that he was directed by the Navy Department to pay only £44 Os. 8d. demurrage per day while the vessel was unloading, which amount was paid and was received as demurrage under protest by the commander of the vessel, who demanded £70 demurrage per day, as provided by the charter party.

The defendants contend that if recovery can be maintained in this action it must be based upon a contract between the plaintiffs and defendants; that plaintiffs were not privy to the contract for the purchase of the coal; that the contract was entered into between Macondary & Co., San Francisco, Cal., and the defendants; that the plaintiffs were not even aware that the coal had been purchased from Macondary & Co. until after the coal had been accepted by the admiral in command of the United States navy at Manila, and that plaintiffs did not know that the coal they were carrying was, or was to become, the property of the United States. Hence, it is urged that it can not be claimed that this suit can be predicated upon the provisions or any of the obligations arising from the contract between the defendants and Mac-ondary & Co.

Plaintiffs insist that they were not in privity with, and therefore are not bound by the terms of the contract between Macondary & Co. and the defendants; that the contract was made in San Francisco between the Bureau of Equipment of the Navy Department at Washington and the firm of Macon-dary & Co. on May 21, eight days subsequent to the signing of the charter on behalf of Withers in London on May 13, hence nothing was said or could have been said to the owners of the steamer at the time the charter was executed in London relative to any contract which may have been in contemplation between the defendants and Macondary & Co. They further maintain that the defendants received and held the bill of lading under which the cargo arrived at Cavite, and demanded and received possession of the cargo in pursuance of the provisions of the charter party, and being charged with notice of the conditions of the charter party and bill of lading, and also by demanding and receiving the cargo under their provisions, they became bound by their terms, and therefore stand in relation of privity of contract thereunder.

It is clear that the consignee and a lading, who is the owner of the goods and of the bill of lading, and who accepts the goods under a bill of lading, is bound by its terms. If he accept the goods under the bill of lading (as was 'done in this case) and agrees to receive the goods within a reasonable time or within an agreed time, he is, therefore, bound to pay in demurrage what the contract and the bill of lading require for the delay, should delay occur. The vessel is not bound to look beyond the owner and holder of the bill of lading, because the holder of the bill of lading has the right to control the delivery and the acceptance of the goods under it. For any unreasonable delay in the acceptance of the goods and in enabling the vessel to deliver the same he, therefore,' becomes primarily responsible. (O'Connell v. 1002 Bales of Hemp, 75 Fed. R., 408; Carv. Carr. by Sea, 671, 672; Scrutton Charter Parties, 36, 39, 40; Gardner v. Trechmann, 5 Asp., 558, 559; 2 Pritch Adm. Dig., 485, 615; Neilson v. Jessup, 30 Fed. R., 138; Dayton v. Parker, 142 N. Y., 391; Gabler v. Freeman, 29 Md., 273; Falkenberg v. Clark, 11 R. I., 278; North German Lloyd v. Heule, 44 Fed. R., 100; Taylor v. Fall River Iron Works, 124 Fed. R., 826; Graham v. Planters’ Compress Co., 129 Fed. R., 253; Crawford v. Mellor, 1 Fed. R., 638.)

We are of the opinion that the defendants, after accepting the cargo of coal pursuant to the bill of lading, are bound by the terms of the charter party therein referred to, and became privy thereto, and are accordingly liable to the plaintiffs for any damages growing out of any violation of its terms.

It now becomes necessary for the court to determine the amount of damages, if any, sustained by the plaintiffs. Five different items of alleged damages are claimed by them, as follows:

Item 1. — This is a claim for the difference between the amount paid for the lay period of ten days and the amount provided by the charter party. The charter party required payment of £70 demurrage per day for ten days after the Nyanza arrived at her port of destination. Having already decided that the defendants, having accepted the cargo of coal under the bill of lading, are bound by the charter party therein referred to, it necessarily follows that they are liable for the sum of £70 demurrage per day for the first ten days that the vessel was in port, which would leave a balance due them, after deducting $2,142.88 which was paid to them, of $1,263.67 under this item.

Item 8. — Plaintiffs demand pay also during the forty-six days’ detention of the vessel beyond the ten days allowed as the charter period for the delivery of the coal. The Nyanza was a steel steamship of 4,053 tons net and was worth about $300,000. When the charter was signed the owners allowed the charterers ten days’ demurrage at £70 per day, but refused to allow a day longer at that rate, because they valued the earning capacity of their vessel at a much greater rate. For this reason they contend that the defendants must make full compensation for the damages sustained at proper and reasonable rates.

We have found that £90 per day was reasonable compensation for the 46 days beyond the 10 days’ lay period, and therefore allowance should be made, under this item, to plaintiffs for said 46 days at £90 per day, which in United States currency would be $20,147.31. Deducting therefrom $9,857.25, the amount paid by defendants, would leave a balance due plaintiffs of $10,290.06.

Item 3. — This is a claim for the fouling of the vessel’s bottom during her long detention at Manila. The amount claimed under this head by plaintiffs is $4,447.18.

It is contended by plaintiffs that as a result of the forty-six days’ detention of the Nyanza at Manila it became necessary to dock the vessel and paint her bottom, which was done at Sydney, Australia, at a total cost of $4,477.18: $1,459.96 is the actual cost of docking, and the balance of the total amount claimed is for seven days’ loss of time of the steamer in getting to and from Sydney and while docking.

It is not disputed that the vessel was docked at an actual cost of £300, sterling. Neither is it denied that seven days were consumed in getting the vessel to and from the docks; but it is disputed that the forty-six days’ detention at Manila was the sole cause of the necessity for such docking, and that while such detention might have added somewhat to the fouling of the steamer’s hull, yet it would nevertheless have been necessary to place her on the docks at an early day thereafter had no detention occurred. It does not appear that it required a greater length of time to go through the docking process at Sydney than it would have taken in England, or indeed, at any other port; consequently, it is insisted that the defendants are not chargeable for the seven days’ loss of time claimed by plaintiffs in this item for going into and returning from the docks.

While it may be true that the necessity for drydocking was in part the result of the breach of the obligation on the part of the defendants in detaining the vessel for forty-six additional days at Manila in violation of the provisions of the charter party and the bill of lading, yet it does not appear that it was the whole cause. Furthermore, the demurrage allowed for the detention includes such incidental expenses as would necessarily have been incurred in keeping the vessel seaworthy had there been no detention. That is to say, it is not shown that because of the detention of the vessel in the harbor of Manila as a result thereof, independently of the usual action of the sea, the vessel’s bottom became foul. Therefore, no allowance is-made for this item.

Item 4-. — Testimony was adduced under this item for the purpose of showing that the claimants, by reason of the forty-six days’ detention of the Nyanza at Manila, lost an opportunity to carry a cargo of wool from Australia to England during the wool-shipping season of 1898, upon which it is claimed they would have realized £2,000, sterling, more profit than was realized by them on the cargo of sugar which was thereafter actually carried on said vessel, and for which they were paid. But assuming that by reason of the detention the plaintiffs were prevented from carrying a cargo of wool, the profits arising therefrom would necessarily be problematical. Such claim for loss or damage, therefore, is clearly too remote to allow recovery on account of the detention of the vessel.

It is elementary that the damages for a breach of contract which can be recovered are those only which are the proximate or natural consequence of the breach. It is often a difficult matter to determine what is the proximate or natural cause of certain damages. As was said by Judge Agnew in Fairbanks v. Kerr (70 Pa. St., 86, 89), “ Many cases illustrate, but none define, what is an immediate and what is remote cause. Indeed, such a cause seems to be incapable of any definition which will suit in every case.” It is safe to say, however, we may add, that among the general rules for the recovery of damages are the following: That they must be the natural and proximate consequence of the wrong done; not the remote or accidental result. And special damages can be recovered only when they are not too remote, and are specially counted on and claimed in the complaint. What are termed speculative damages — that is, possible or even probable profits that could have been realized but for the breach of a contract charged against a defendant — are too remote and can not be recovered. It is well settled law that remote, contingent, or purely speculative damages can not be recovered for the breach of a contract, and it is generally agreed that speculative profits can not be recovered' for breach of contract; and sometimes the rule is stated more specifically, that no claim for profits can be recovered at all. (Smith’s Leading Cases, 8th Edition, 576.)

In the case of Harper v. Miller (27 Ind., 277) the court decided “ that in a suit to recover damages for the nondelivery of goods the damages sustained by the purchaser by reason of his inability, in consequence of such nondelivery, to fulfill a contract or sale made by him for the same goods are too remote.”

In the case of Lawrence v. Wardwell (6 Barb. (N. Y.), 423) it was held by the court that “ in an action by a lessee against the lessor to recover damages for a refusal to give possession of the demised premises the plaintiff can not, for the purpose of showing the amount of damages sustained, give evidence of an advantageous contract for the assignment of the lease, or of an offer to purchase it, by any other person.” To the same effect, in the case of Washington Ice Co. v. Webster (62 Me., 341), the court held that “the damages arising from the possible loss of customers, in not having the goods ready for sale, or in purchasing goods of the same description as those replevined to fulfill existing contracts, are too remote, contingent, and indefinite to become an element of damages.”

In the case of the V. & M. R. R. Co. v. Ragsdale (46 Miss.), where a suit was instituted to recover damages for failure to deliver certain mill machinery within a specified period of time, the court, among other things, said (p. 468) : “ But profits or gains derivable from a contract, which are contingent and speculative in their nature and dependent upon the fluctuations of the markets and the chances of business, such as the supposed successful operation the party might have made if he had not been prevented from realizing the proceeds of the contract at the time stipulated, are not to be taken into the estimate of damages. For, besides the uncertain and contingent issue of such an operation, in itself considered, it has no legal or necessary connection with the stipulations between the parties, and can not, therefore, be presumed to have entered into their considerations at the time of the contract.”

See also the following cases: Bridges v. Lanham, 14 Neb., 369; Willingham v. Hooven, 74 Ga., 234; Cuddy v. Major, 12 Mich., 368; Phuyfe v. Railroad Co., 37 Hun. (N. Y.), 377; Griffin v. Colver, 16 N. Y. R., 489; Barnard v. Poor, 21 Pick., 378; Fox v. Harding, 7 Cush., 516; Sedg. on Damages, 57-69, and cases there cited; N. A. Transportation Co. v. Morrison, 178 U. S. R., 262.

We, therefore, decide that this item must be disallowed.

Item 5. — The plaintiffs allege that in consequence of the detention of the Nyanza for the forty-six days at Manila certain cable expenses were necessarily incurred and paid' by the plaintiffs in the sum of £101 11s. 8d., or in money of the United States $494.35, for which they ask compensation^

There is no proof tendered as to the necessity of the expenditure of this large sum of money for telegraphing, except the mere statement of one of the plaintiffs that such an amount was paid out as a result of the detention of the vessel. No copies of telegrams are offered (except one), nor does it appear why it was necessary for the expenditure of this large sum of money for such cable messages. Not knowing, except in one instance, what the alleged cable messages contained, it is impossible for the court to determine whether they were the proximate and natural consequence of the detention of the vessel. No allowance for this item can, therefore, be made.

On the whole case we decide that plaintiffs shall recover from the defendants the sum of $11,553.73, and that judgment for the same is hereby ordered.  