Blockade.

charter-party became void on the closing of the ports, that being a prohibition of export preventing loading, and that the charter-party having been thus rescinded before the ship sailed from Genoa, the chartered voyage, the subject of the policy, had never begun.1

Lord Stowell says:-That "a blockade is a sort of circumvallation (surrounding, enclosing,) round a place, by which all foreign commerce is, as far as human force can effect it, cut off. It is intended to suspend the entire commerce of that place, and a neutral is no more at liberty to assist the traffic of exportation than of importation. The utmost that can be allowed to a neutral is, that having taken on board a cargo before the blockade begins, she may be at liberty to retire with it. But it must be considered as a rule, that a neutral ship, departing, can only take away a cargo truly and honestly purchased and delivered before the commencement of the blockade, and if she afterwards takes on board a cargo, it is a fraudulent act, and a violation of the blockade. The blockade commences when it is really supported by sufficient forces; it ceases when these forces do not further support it; in other terms, the reality of a blockade is the sole condition of its existence. Not only an attempt to enter the blockaded port in violation of that blockade is illegal, but from the moment of quitting port to sail on such a destination, and with the purpose of entering the blockaded

1 Adamson v. Newcastle Steamship Freight Insurance Association, L.R. 4 Q. B. D. 462; 48 L. J. Q. B. 670.

991

port, the offence of violating the blockade is complete, and the property engaged is subject to confiscation. And it has been held, that sailing after notification with instructions to proceed to the mouth of the harbour of the blockaded port, and inquire if the blockade was raised, is a forfeiture of neutrality and a ground for confiscation." So a vessel sailing without notice of the blockade, will be subject to condemnation if she touches at an intermediate port, and there learns the fact of the blockade, after which she attempts to enter the blockaded port.2 If a vessel is captured in attempting to enter a blockaded port because she is in a leaky condition, it must be proved that entering of the blockaded port arose from an imperious and overwhelming necessity.3

As regards a contract to deliver a cargo at a port which is likely to be interrupted by the outbreak of hostilities, the master ought not to sail with that cargo without having a written authority from the shipper, giving him full discretion as to how to act with respect to the goods, in the event of the port of destination being blockaded, or of any other interruption resulting from a state of war.

In an action for breach of a charter-party, by which it was agreed that the defendants' vessel should proceed to a port of loading, and after loading a cargo convey it to a foreign port, it was pleaded, that before breach there was a war between the country of the port of destination and another

The Irene, 5 Rob. 67.

The Columbia, 1 C. Rob. 138. 3 The Panagia Rhimba, 3 Jur. N. S. 23.

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.

2

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.

Pirates.

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. 91; 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,