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country, so that the performance of the charterparty became illegal, and the defendants refused to perform it. It was held, that the plea was good, as the blockade was within the meaning of the exception "restraints of princes," and that the defendants were not bound to have proceeded to the port of loading, or to have waited in anticipation of the removal of the blockade, in the absence of anything to lead to the inference that it would be removed within a reasonable time.1
According to both English and German law, an apprehension of capture, founded upon circumstances calculated to affect the mind of a master of ordinary courage, judgment and experience, would justify delay.
Thus, where S. R., a German ship, with an English cargo, being in need of repairs, put into Valparaiso, in the month of August, and there ascertained the existence of the war between France and Germany. The repairs were completed on the 21st of September, but the master under the advice of his consul, did not set sail till the 23rd of December. In an action for delay in delivery of the cargo, it was held, that under the circumstances, the risk of capture was such that the delay was justifiable.2
It will be no defence to an action on a charterparty for not sailing on the voyage towards a port
1 Geipel v. Smith, L. R. 7 Q. B. 404; 41 L. J. Q. B. 153.
2 The San Roman, L.R. 5 P.C. 301; Pole v. Cetcovitch, 30 L.J.C.P. 102; The Heinrich, L. R. 3 A. & E. 424; The Teutonia, L. R. 4 P. C. 171.
agreed, or that the port is in a state of blockade if at the time of making the contract the owners were aware of the fact.1
With regard to blockades, also, it is clearly laid down that a contract made with the object of blockade running is not illegal in the view of our law, and that it may be enforced in our Courts.
In the Helen, Dr. Lushington said: "What is the usage as to blockade?" There are several conditions to be observed in order to justify the seizure of a ship for breach of blockade: the blockade must be effectual and (save accidental interruption by weather) constantly enforced; the neutral vessel must be taken in delicto; the blockade must be enforced against all nations alike, including the belligerent one. When all the necessary conditions are satisfied, then, by the usage of nations, the belligerent is allowed to capture and condemn neutral vessels, without remonstrance from the neutral State. It never has been a part of admitted common usage that such voyages should be deemed illegal by the neutral State, still less that the neutral State should be bound to prevent them; the belligerent has not a shadow of right to require more than universal usage has given him, and has no pretence to say to the neutral, "You shall help me to enforce my belligerent right by curtailing your own freedom of commerce, and making that illegal by your own
1 Medeiros v. Hill, 8 Bing. 231; Harratt v. Wise, 9 B. & C. 712; Naylor v. Taylor, 9 B. & C. 718; The Tutela, 6 C. Rob. 177.
2 L. R. 1 A. & E. 1.
law which was not so before." This doctrine is not inconsistent with the maxim that the law of nations is part of the law of the land. The fact is, the law of nations has never declared that a neutral State is bound to impede or diminish its own trade by Municipal restriction.
A contract may, in some cases, be enforced, although it was made with the object of breaking the law of a foreign country; as where a charterparty made with the intention of defeating the French revenue laws, was held to be valid, on the ground that "one nation does not take notice of the revenue laws of another."1
Losses arising from pirates were formerly included in our maritime law amongst the general perils of the seas, and probably would still be held to be so; though as piracy is now one of the enumerated perils in the charter-party, the point is of less importance.3
Piracy is forcible robbery at sea, whether committed by marauders from outside the ship, or by mariners or passengers within it. The essential element is that they "violently dispossess the master, and afterwards carry away the ship itself, or any of the goods, with a felonious intent."
Where emigrant cooly passengers murdered the captain and portion of the crew, and took possession
1 Planche v. Fletcher, 1 Doug. 251; Simeon v. Bazett, 2 M. & S. 94; Spence v. Chodwick, 16 L. J. Q. B. 313.
2 Kent's Com. 302; Abbott on Sh. 13th Ed. 461.
3 Arnould on M. I., 6th Ed., Vol. 2, 769.
Att. Gen. of Hong-Kong v. Kwok-a-Sing, L. R. 5 P. C. 179; Nesbitt v. Lushington, 4 T. R. 783; Palmer v. Naylor, 23 L. J. Ex. 323,
of the vessel and ran her ashore in order to escape, this act on their part was held to be an act of piracy, and one of the perils insured against.' Assaulting a ship on the high seas, and obliging the captain to redeem her for so much, or for a certain part of the cargo, is considered clearly to be piracy."
So, where a ship laden with a cargo of corn was forced by stress of weather into Elly Harbour, where there happened to be a great scarcity of corn, the people came on board the ship in a tumultuous manner, took charge of her and weighed her anchor, by which she drove on a reef of rocks, where she was stranded, and they would not leave her until they had compelled the captain to sell all the corn at a certain rate, which was about three-fourths of the invoice price. It was held that this loss fell within a capture by pirates.3
land or by sea.
The term "robbers" implies that the loss under Robbers by the exception must be occasioned by an act of forcible taking. 4
In a recent case, Bowen, L. J., said " robbery imports violence."
Where a vessel in consequence of having sprung a leak, put into an intermediate port and discharged her cargo, portion of which was stolen from the warehouse; in an action on the policy for a con
1 Palmer v. Naylor, 23 L. J. Ex. 323.
2 Lex. Mer. 149, 242.
3 Nesbitt v. Lushington, 4 T. R. 783.
* DeRothschild v. The Royal Mail Steam Co., 21 L. J. Ex. 273. Steinman v. Angier Line, Ld., L.R. (1891) 1 Q.B. 619; 7 Asp. M.L.C. 46.
structive total loss, it was held "that the loss by robbers, although not expressly mentioned in the policy, was one of the perils insured against."1
The term "thieves," is a word of ambiguous meaning, and this being the case, such a construction must be put upon the word as is most in favour of the shipper, and not most in favour of the shipowner. It is an exception framed by the shipowner for his own benefit, and it behoves him to use such language as to make clear what he holds to be an exception under it. It is not reasonable to suppose, where nothing is added to the word to qualify or limit or define its meaning, that the shipper of the goods intended that he should be unprotected against thefts by the crew or persons on board the ship. The word will not, therefore, comprehend thefts by passengers or members of the crew.
In Steinman v. Angier Line, the clause in the bill of lading was as follows:-"Pirates, robbers, or thieves of whatever kind, whether on board or not, or by land or sea." There was also a provision that the shipowners were not to be liable for or in respect of any neglect or error in judgment on the part of the master, pilot, crew, or other persons whosoever in their service or employment." The plaintiffs were the owners of goods, some of which had been stolen by some of the stevedore's men, after they had been put on board the ship at the port of loading. The stevedore under the charter
2 1 Dwarkadass Lalubhai v. Adamali Sultanali, 3 B. H. C. R., A. C. J. 1, 2 L. R. (1891) 1 Q. B. 619; 7 Asp. M. L. C. 46.