not appearing to have been purchased from an enemy; in effect that trading with the inhabitants of an enemy's country is trading with the enemy.1 Lord Stowell observed:-"The cases where acts of parliament have, on different occasions, been made to relax the navigation law, and other revenue acts; where the government has authorised under the sanction of parliament, a homeward trade from the enemy's possessions, but has not specifically permitted an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence; that it has been enforced where strong claims not merely of convenience, but almost of necessity, excused it on behalf of the individual; that it has been enforced where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage, after the first notice of hostilities; and that it has been enforced not only against the subjects of the Crown, but likewise against those of its allies in the war, upon the supposition, that the rule was founded on a strong and universal principle, which allied States in war have a right to notice, and apply mutually to each other's subjects.' The force of a declaration of war has been held equal to that of an Act of Parliament, prohibiting intercourse with the enemy, except by the Queen's license. As an Act of State done by virtue of the prerogative exclusively belonging to the Crown, such a declaration carries with it all the force of law. It is founded

The Hoop 1 C. Rob. 196; Potts v. Bell, 8 T. R. 549.

2

upon the jus-belli which Lord Coke' states to be a portion of the law of England, adding in republicá maxima conservanda sunt jura belli. This force has been attributed to it, amongst other cases in Furtado v. Rogers, where Lord Alvanley, C. J., said:-"We are all of opinion that on the principle of the English law, it is not competent to any subject to enter into a contract to do anything which may be detrimental to the interests of his own country-and that such a contract is as much prohibited, as if it had been expressly prohibited by Act of Parliament." As to the mode of operation of war upon contracts of affreightment made before, but which remain unexecuted at the time it is declared, and of which it makes the further execution unlawful or impossible, it is established that the effect is to dissolve the contract, and to absolve both parties from further performance of it.

The removal of merchandise, even though acquired before the war from an enemy's country, after knowledge of the war, without a royal license, is as a general rule illegal."

Where a charterer has assigned him a certain number of days wherein to load a vessel at a foreign port and before their expiration, war is declared between the nation, whose flag the chartered vessel flies, and such foreign State, it becomes illegal from the time. of such declaration of war, to attempt to perform the

1 Co. Litt. 11 b.

3 The Philip, cited in Potts v. Bell, 8 T. R. 555. Willes, J., in Exposito v. Bowden, 27 L. J. Q. B. 17.

23 B. & P. 191.

See the judgment of

contract; thus, where a vessel was chartered to proceed to Odessa and load a cargo there from the defendant's agents, forty-five running days being allowed, but the defendants failed to load a cargo, in accordance with the charter. In an action by the shipowner for breach of contract, it was pleaded that before the alleged breach of contract, war was declared between Great Britain and Russia, and that the plaintiffs and defendant were British subjects, and the ship a British ship, and that the defendant could not have procured or loaded a cargo without trading with the enemy. The evidence showed that the vessel arrived at Odessa on the 26th of February, and was ready to load on the 4th of March, and on the 10th of March notice to that effect was given to the defendant's agent. On the 1st of April the declaration of war was known at Odessa. On several occasions before that day, the master of the ship demanded a cargo of the defendant's agent, who told him that he had no cargo and could not load the ship, and proposed that the ship should go away. This, however, the master declined to do, and remained at Odessa, still requiring a cargo to be loaded by the defendant, until the 22nd of April, when he left Odessa in ballast. It was held that this was not any evidence of a breach by the defendant before the declaration of war put an end to the contract. Pollock, C. B., saying:-"Before the running days had expired it became illegal to perform the contract by the laws of this country. The charterer after that

could not perform it, and no action can be maintained against him for his failing to do so.' " It was also stated by the Court that "it was the duty of the captain as soon as he heard of the declaration of war, to make his escape and to seek a place of safety, instead of lingering at Odessa, in the hope of obtaining a cargo, although he might safely have done so if he had not been a British subject and the ship had been neutral property.'

"So, for a British subject not domiciled in a neutral country, to ship a cargo from an enemy's port, even in a neutral vessel, without license, is an act, prima facie, and under all ordinary circumstances, of dealing and trading with the enemy, and therefore forbidden by law; and that in the absence of proof that it would be legal, neither a British subject, nor an alien friend, can found any action upon the fact of its not having been performed."

In Avery v. Bowden3 a ship was chartered to proceed in ballast to Constantinople, and thence to Odessa and load; but it was stipulated that "in case of war having commenced previous to and continuing on the ship's arrival at Constantinople," the charterer should load her at that port at a lower freight. After the charter was made, and before the ship's arrival at Constantinople, war broke out between Russia and Turkey; subsequently to her arrival war broke out between Russia and England.

Reid v. Hoskins, 26 L. J. Q. B. 5.

Exposito v. Bowden, 27 L. J. Q. B. 17.

326 L. J. Q. B. 3; Barwick v. Buba, 26 L. J. C. P. 280.

And the question was as to the meaning of "war" in the above clause. It was held, that it meant such a war as would render the voyage of an English ship from Constantinople to Odessa unlawful, and did not comprise war between Russia and Turkey. The charterer therefore was not bound to load at Constantinople.

Plaintiffs having chartered a ship to one C., to proceed to Galatz to load a cargo of grain from there or certain other eastern ports, effected an insurance with the defendants by a time policy on loss of freight for a whole year, the perils insured against being amongst others "restraint and detainment of princes." By a memorandum on the charter-party it was agreed:-" In the event of war, blockade, or prohibition of export preventing loading, this charterparty to be cancelled." Before the ship's arrival at Genoa, in completion of the intermediate voyage, war was declared by Russia against Turkey, and the plaintiffs learned that the ports specified in the charter-party were closed. C. declined upon plaintiffs' request to cancel the charter-party, and they accordingly sent the ship in ballast to Constantinople; but the ports still being closed, and there being no prospect of their being opened, the ship did not. proceed further eastward, but obtained a cargo from Constantinople to England at a freight less than the chartered freight, and the plaintiff brought this action on the policy for the difference:-Held, that the plaintiffs were not entitled to recover, on the ground that by virtue of the memorandum the