Compagnie De Trefileries & Laminoirs Du Havre v. France & Canada Steamship Co.

Headnote

Contract — action to recover for alleged breach of contract to carry goods from New York to Genoa, Italy — when defendant justified in discontinuing its service owing to war perils.

Compagnie de Trefileries & Laminoirs Du Havre y. France & Canada S. S. Co., Ltd., 192 App. Div. 709 , affirmed.

Appeal from a judgment, entered September 16, 1920, upon an order of the- Appellate Division of the Supreme Court in the first .judicial department, reversing a judgment in favor of plaintiff entered upon the report of a referee and directing a dismissal of the complaint. The action was to recover for an alleged breach of contract whereby defendant agreed to carry during the months of December, 1916, and January, 1917, upon its steamships 3,000 tons of copper from New York to Genoa, Italy. The contract provided that it was subject to the usual war clauses. The Appellate Division found that the defendant failed to carry the copper for the plaintiff because of its determination in good faith that conditions of war hostility rendered it unsafe and imprudent for its vessels to sail to the port of Genoa, and further found that the defendant in good faith abandoned its voyages to Genoa, except those taken by the ship Mexican and the ship Missourian, by reason of the danger threatened to ships making such trips, and that the defendant offered to take the copper and to land the same in a port in France, which offer was declined by the plaintiff. The court thereupon held that under the war clauses the defendant had the clear right to discontinue its service in view of the perils of transportation to Genoa and that its offer to take the copper upon the first steamship sailing to Genoa was a full compliance with its contract to make the shipment subject to these war clauses.