not expressed within it or contemplated by it to achieve the agreed purpose.
The Court concludes that the prevailing law is that if a supervening event, not attributable to a party, does in fact make it impossible to go forward, the contract may be abandoned without liability; but that if the supervening event only renders attainment of the ultimate objective more oppressive or more expensive, the contractor has the duty to go forward without extra compensation.
The Court places this case in the latter category and follows the rule expressed in Corbin on Contracts (§ 1333) to the effect that the risk of supervening difficulty and expense is for the contractor to bear. "He (the contractor) is not discharged from duty by actually unexpected difficulties or expense and he has no right to extra pay for completing the job." The Restatement of Contracts (Vol. II, § 467) is to the same effect. E.g., United States v. Spearin, 248 U.S. 132, 39 S. Ct. 59, 63 L. Ed. 166 (1918); Boyden v. United States, 80 U.S. (13 Wall.) 17, 20 L. Ed. 527 (1871); Foster v. Atlantic Refining Co., 329 F.2d 485 (5th Cir. 1964); Peerless Cas. Co. v. Weymouth Gardens, 215 F.2d 362 (1st Cir. 1954). The rule seems particularly apt in a case involving a voyage charter which concerns itself essentially with point to point carriage rather than with the designation of a particular route.
Of course, the general rule might not apply in the face of evidence of custom throwing the risk one way or the other or in the face of a mutual contemplation or understanding as to the impact of risk. But such latter factors are not present in this case. So far as the record indicates, the only person who had any conversations or communications with Transatlantic during the negotiations of the charter was Potosky and Potosky, it is admitted, was not a contracting officer and had no power to bind the Government to a contract or to an amendment of a contract. Further, even if Potosky were clothed with apparent authority, the record is bare of any indication that the parties contemplated or agreed that the CHRISTOS was to follow the route through the Canal and only that route. The charter, as noted, is silent on the subject and if we go outside the charter, the only evidence is that Potosky notified Transatlantic on at least two occasions that the charter would have to be strictly applied and could not be amended in any respect to permit Transatlantic to look to the Government for added compensation for the voyage around the Cape.
The mere fact that Potosky suggested that the Government might consider a further claim for compensation cannot be construed as an admission that the Government was liable for such compensation.
Thus the Court finds no basis for liability outside the charter, and the only liability under the charter was for the Government to compensate CHRISTOS for the freight in accordance with the charter terms. Transatlantic makes no claim with reference to such charges and it can only be concluded that it has accepted the monies tendered by the Government in full satisfaction of any liability in this regard.
It is accordingly the judgment of this Court that libellant has failed to state a cause of action upon which relief can be granted, and the libel is dismissed. Cf., Glidden v. Hellenic Lines, Ltd., 275 F.2d 253 (2nd Cir. 1960); Gans SS Line v. Wilhelmsen, 275 F. 254 (2nd Cir. 1921).
This Memorandum Opinion shall constitute the Court's findings of fact and conclusions of law.
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