Page:Harvard Law Review Volume 32.djvu/879

843 NOTES 843 In all these cases the courts are careful to point out that there is an actual force in existence, and that the danger must be such that the vessel cannot reasonably be expected to proceed.^^ Thus there is no restraint, when the captain acts upon false intelligence as to the existence of the danger.^* In the case of The Kronprinzessin Cecilie,^^ one question presented was whether a deviation, caused by reasonable fear that a force might come into existence, could constitute a restraint of princes. A German vessel, bound for European ports, turned back to America through fear of capture at a time when war, although threatened, had not yet broken out. Action was brought on a contract of affreightment, and the court refused to extend the restraint-of-princes clause to this situation, — a conclusion thoroughly sound, for the justification should be determined as of the time of deviation, and there was then no force in existence. Thus if the question arose on an insurance policy, and if the threatened war had never been declared, it could not be said that the loss was caused by any peril insured against. There is here mere apprehension, which of itself cannot constitute a restraint.^" It does not, however, follow that the captain's action in deviating is unreasonable or improper; and in The Kronprinzessin Cecilie, recovery against the shipowners was denied on the ground that the act was justi- fied under an implied condition of the contract. This really rests on the proposition that the voyage is a joint maritime enterprise, that the cap- tain is the agent of the respective owners of both ship and cargo, and that so long as he acts reasonably for the best interests of all concerned, no liability will be imposed upon his employers. This theory was also relied on in a number of the cases which held that reasonable avoidance of an existing force falls within the terms of the restraint-of-princes clause.^^ Indeed it probably did much to facilitate recognition of the latter principle. It may properly be applied in the case of a charter- party or bill of lading, but cannot apply to cases of insurance. It is of course independent of the restraint-of-princes clause, and seems to form the only proper basis for distinguishing insurance cases from the others.^ " "In the absence thereof [actual arrest], there must exist some actual restraint preventing performance, or the danger of capture, by reason of the prevalence of the war, that was imminent, apparently remediless and certain, and which would have operated to prevent the contract from being performed." W. R. Grace & Co. 11. Luck- enbach S. S. Co., supra, 954. This is perhaps too strict a test. For another instance of imreasonable apprehension, see The Svorono, supra. surance Co., 6 Johns. (N. Y.) 226 (1810). 1* Supra. The decision of the Circuit Court of Appeals, 238 Fed. 668, reversed by the Supreme Court in this case is discussed in 30 Harv. L. Rev. 516. ^^ It should be noted that this was the situation in Atkinson v. Ritchie, 10 East, 530 (1809), which is often cited for the proposition that an act induced by fear of a restraint is never covered by the restraint-of-princes clause. The shipowner acted through apprehension of an embargo at the port of destination, which actually was not imposed until six weeks later. See, also. Watts, Watts & Co., Ltd. :;. Mitsui & Co., Ltd., supra. ^1 See Nobel's Explosives Co. v. Jenkins & Co., supra, 332; The Styria, supra, 9, 10. The British courts have even said that the cargo owner cannot expect a foreign master to run greater risks than he would with a cargo of his own country. See The Teutonia, L. R. 4 P. C. 171, 179-80 (1872); The San Roman, supra, 307. For the application of the principle in the absence of a restraint-of-princes clause, see Essex S. S. Co. v. Langbehn, 250 Fed. 98 (1918), and The Eros, 251 Fed. 45 (1918). ^ A difference in result also arises when negligence of the master or crew has con-
 * 8 King V. Delaware Insurance Co., 6 Cranch (U. S.) 71 (1810); Craig v. United In-