Calmar Steamship Corp. v. Scott/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE concurs, dissenting.

The CHIEF JUSTICE and I, having voted to grant certiorari in this case, would now dismiss it as having been improvidently granted. No principle of law, requiring restatement or clarification, is involved. We have here only a question whether under the special circumstances of this case there was a frustration of the venture by the seizure of the vessel at Brisbane or at some later point. The District Court found there was not. The Court of Appeals, speaking unanimously through Judge Learned Hand, found that there was. The decision turns on the weighing of many factors and conditions against a background of admiralty practice and custom with which we are nowhere near as familiar as the experienced admiralty judges below. It seems to me quite improvident for us to reweigh the fragments of the evidence which Learned Hand, Augustus N. Hand, and Harrie B. Chase, JJ., weighed, see 197 F.2d 795, 799-801, and to revise the decision which their experienced minds reached on the totality of the facts of the case. Yet if we were to do so we could not escape the conclusion that the voyage had been frustrated at least by the time the Portmar reached Darwin on February 12, 1942. For as the opinion of the Court concedes, by that time the vessel had been emptied of her original cargo and was being loaded with troops, equipment, and armament for 'an exceedingly perilous expedition to Koepang, on the Island of Timor, some 500-odd miles northwest of Darwin.' As the Court says:

'This expedition ran into heavy air attacks and turned back. On the 18th of February, the Portmar was at Darwin again,     awaiting her turn to dock and discharge the personnel and      equipment she had taken on. While thus at anchor on the     morning of the 19th, she underwent bombing and strafing by      Japanese airplanes and sustained the damage which forced her      master to beach her and caused him to abandon her.'

Certainly by the 12th of February the purposes of the venture, commercially speaking, had ended. The ship was now engaged in an enterprise far beyond the voyage contemplated by the parties.