performance of the contract, and a blockade can have no greater effect upon it. Watkin Williams (Steele with him), for the defendants.-The pleas shew a good defence to the action. The main objection urged by the plaintiffs is that the vessel ought at any rate to have proceeded to the port of loading, without regard to any obstacle at the port of discharge. But it could not have been necessary that the defendants should go through the idle ceremony of entering upon the performance of a contract which it was impossible to fulfil. They had a right to assume that the impediment would continue-Hochster v. De la Tour (5). It may be doubted whether the exception in the charter-party as to restraint of princes and rulers would, taken by itself, be sufficient to excuse the defendants from proceeding to Hamburg. But it is submitted that, quite apart from this exception, it is an implied term in a charter-party that the blockade of the port of discharge shall dissolve the contract. In Scott v. Libby (6) it was assumed by the Supreme Court of New York that such a blockade would dissolve the contract. [COCKBURN, C.J.-But where the obstacle is removed is not the ship bound to proceed? BLACKBURN, J.-It may be that where the shipowner is wrong in his apprehension, he is liable as for a breach of his contract.] It The Elizabeth (7) shews that if the ship had proceeded to Newcastle this would be regarded in a Prize Court as evidence of an intention to violate the blockade. is true that in Medeiros v. Hill (8), the shipowner was held liable for not proceeding to a blockaded port, but this was on the express ground that the parties knew of the fact at the time of entering into the charter-party. In the German and other foreign codes, a charter-party is dissolved by a blockade or prohibition of trade with the port of destination. In Parsons on Maritime Law, vol. i. p. 277, it is expressly laid down that when a (5) 2 E. & B. 678; s. c. 22 Law J. Rep. (N.s.) Q.B. 455. 77. (6) 2 Johns. (Amer.) Rep. 336. (7) 1 Edw. Adm. Rep. 198. (8) 8 Bing. 231; s. c. 1 Law J. Rep. (N.s.) C.P. blockade is notified the subjects of foreign countries are bound to take notice of it, that is if it be a real blockade, and no ship is bound to enter a port blockaded, and that although it is no breach of the law for a vessel to sail for the blockaded port in the hope of a termination of the blockade, it is to be doubted whether the shipowner has a right to insist upon carrying the cargo to the blockaded port for such a purpose, or whether the shipper could insist that his cargo should be carried, unless the circumstances were such as to shew clearly that the blockade would continue only for a short time. He also cited Paradine v. Jane (9); Hills v. Sughrue (10); Pole v. Cetcovich (11); Naylor v. Taylor (12); Pothier Chartepartie, s. 98. Cohen in reply.-Impossibility of performing a contract occasioned by the acts or laws of a foreign state does not excuse the performance, unless excepted in the contract Leake on Contracts, p. 367. Pole v. Cetcovitch (11) at most only decides that where a ship is under charter to proceed to a particular port the master, where there is risk of capture, is not bound to start immediately, but may stay to make inquiries. Atkinson v. Ritchie (3), shews that no exception not contained in the charter-party itself can be engrafted upon it by implication as an excuse for its non-performance. He cited Bailey v. De Crespigny (13), and McAndrew v. Chapple (14). COCKBURN, C.J.-I am of opinion that our judgment should be in favour of the defendants. I will not say that the pleas are all of them sufficient, but the main question is whether upon the admitted facts the defendants are entitled to judg ment and I think that they are. declaration is upon a charter-party by which the defendants agreed that their vessel The Martindale, should with all convenient speed sail and proceed to a (9) Aleyn, 28. (10) 15 Mee. & W. 253. The "spout," as directed by the plaintiffs and there take on board a cargo of coals and then as soon as wind and weather should permit should proceed to Hamburgh and there deliver the same to the freighters or their assigns, the act of God, Queen's enemies, restraints of princes and rulers, &c., excepted. The fifth plea shews that after the making of the charter-party, and before any breach of it, a war broke out between Germany and France, that Hamburgh was blockaded by the French fleet and that our Government by proclamation enjoined upon all British subjects strict neutrality between the belligerents, that the ship was a British one and that it became illegal to carry the cargo to Hamburgh. The question is whether that is such a state of things as justified the defendants in throwing up the charterparty and refusing to perform it. Now, the charter-party contains stipulations for the performance of two things by the defendants: they were first to sail to the spout " and load a cargo, and then to proceed to Hamburgh. It is perfectly true that according to the plea it was possible for the defendants to have gone to the "spout" and loaded the cargo, but they could not legally have gone to Hamburgh. I do not at present think it necessary to consider the larger proposition which has been relied upon by the defendants, namely, that in the absence of such an exception as "restraints of princes," we should by implication import such a term into the contract. I base my judgment on the express terms of the contract, upon the exception as to "restraints of princes." Is the blockade of the port of destination a justification of the refusal on the part of the defendants, to proceed on the voyage? Does it come within the meaning of the exception, "restraints of princes ?" I think that it does. A blockade is the act of a sovereign state engaged in warfare. It is true that a vessel may run the blockade in spite of the blockading force, but we must assume that an effective blockade existed at the port of Hamburgh, and that the danger of capture did amount to a positive impediment and obstacle in the way of fulfilling the contract. I think, therefore, that as this blockade was the re act of the governing body of a foreign state, there was such a "restraint of princes," as warranted the defendants in saying that the case was within the exception, and in refusing to proceed on the voyage. But then Mr. Cohen says, that the term “restraints of princes," extends to the whole contract, and that the contract being that the vessel shall proceed to Hamburgh as soon as wind and weather permit, subject to the exception, straint of princes," that the vessel is bound to proceed, wind and weather permitting, as soon as the restraint ceases to exist. But I think that to put this construction upon the contract would be unjust and unreasonable as far as the shipowner is concerned, for it would require him to lose the use of his vessel for an indefinite time upon the chance of the blockade coming to an end. If we are to construe the contract in this way that the words "restraint of princes" must mean restraint of princes for more than a . reasonable time, then I think it is a sufficient answer, that in the present case the blockade was not expected to be removed within a reasonable time. If the defendants fail in making this out it may be that the action may succeed, but in this argument we are bound to put a reasonable construction upon the pleas, and it seems to me that where there is no likelihood that the obstacle will be removed within a reasonable time, that then there is a good answer to the declaration. Then it is contended that the contract is divisible; but if the performance of the whole is impossible, looking at the reason and convenience of the thing, it is quite obvious that that should excuse the performance of the part. What benefit could be derived from the shipowners going through part of the undertaking when the whole could not be performed? The view I take of it is, that the contract is entire, and that anything which justifies a breach of the whole will apply equally to a breach of part of it. It is admitted that the defendants could not, without violating the blockade, take the cargo to Hamburgh; and the contract being entire, whatever justifies a breach of the contract to carry the cargo there, justifies a breach of part of that contract. The case put by Mr. Williams in the course of his argument is, I think, to the purpose. If I undertake to convey goods from London to York, which it is impossible to do if a bridge on the way is broken down and cannot be repaired within a reasonable time; if the bridge is actually broken down, it is idle to say that I must perform part of the contract by carrying the goods as far as the bridge, in order that at some future time I may be able to perform the rest of it. Our judgment must, therefore, be for the defendants. BLACKBURN, J.-I am of the same opinion. Upon all the substantial matters involved I agree that judgment must be for the defendants. I have some doubt as to whether the fifth plea is good, and am disposed to think that on it judgment should be for the plaintiffs. But that is a mere question of costs. The charterparty in question is an executory contract. The ship is to proceed with all convenient speed to a spout, and there load a cargo of coals, and then proceed to Hamburgh, subject to the exception, amongst other things, of the "restraint of princes." Whilst the contract was still executory, war broke out between France and Germany, and there was an effectual blockade of the port of Hamburgh, so that the defendants could not bring the cargo to Hamburgh without breaking the blockade and evading the restraint of the Emperor of France. Then comes another question. If whilst the blockade existed there was a "restraint of princes" which excused the performance of the contract, the moment the blockade ceased, were the defendants bound to carry out their contract? This is the real question. We need not consider the different words of the pleas. If the blockade had existed only for an hour, or for a very short time, I do not think it would put an end to the contract; but I cannot agree with the contention that, however long the blockade might have existed, even if it had lasted as long as the blockade of Toulon, or as long as some of the blockades in the War of Independence between the United Provinces and Spain; that during that enormous time the owners of the ship and cargo should be obliged to have them ready in order that the contract might afterwards be carried out. It seems to me that so long a delay must frustrate the very object of the contract, which is for the transport of the shipper's goods, and the employment of the shipowner's vessel. Such a state of affairs, in my opinion, not only produces a delay in the fulfilment of the contract, but puts an end to the whole matter. The case of Touteng v. Hubbard (15) is a decision to that effect. There the vessel, a Swedish one, was chartered to sail to the island of St. Michael's, and bring home a cargo, the charter-party containing the exception against restraints of princes. An embargo having been laid on Swedish vessels by the British Government, the vessel was detained till the 19th of the following June, after which time it went to St. Michael's, and then claimed to recover the freight against the British merchant; but the Court of Common Pleas said: "No; the exception of restraints of princes is introduced into the charter-party not for the benefit of the merchant, but of the master." It would be a monstrous thing if a party could, under such a contract, be obliged to load a cargo at any time whatever in sæcula sæculorum. The merchant is entitled to get his cargo within a reasonable time, that being a matter to be determined by a jury. It would be monstrous to hold that the cargo should be kept waiting for years. A cargo of coals, of corn, and still more one of fruit, would inevitably deteriorate in that time. On the other hand there would be the obvious hardship on the shipowner of making him keep his ship in dock, waiting till the news should come of the blockade having been raised. This would baffle the very object of the voyage. The intention of each party is to carry out the contract within a reasonable time; and if the restraint of princes lasts beyond a reasonable time, it seems to me that either party is entitled to treat the contract as at an end. The 6th plea says that the plaintiffs asked the defendants to take their cargo and go and break the blockade, that is, to carry out the undertaking, notwithstanding that a restraint of princes did exist. So understood the plea is good. Then comes the 7th plea, which says, in (15) 3 Bos. & P. 291. effect, that the blockade lasted so long that the defendants were not able to carry out the contract without running the blockade. Mr. Cohen says that this plea does not answer the declaration, though it would reduce the damages. It seems to me that as the event turned out, the plea is not a bad one on general demurrer, but constitutes an entire defence to the action. For I take it that where a contract is executory, the defendant may say, "I am not going to perform what I bound myself to do, because I know that you, the plaintiff, will never be ready and willing to perform your part of the contract. That, I take it, it would be competent for the defendant to do, if it turned out in the end that he was right in his opinion. If the defendant says, “I am so confident that the blockade never will be raised within a reasonable time that I will chance the matter; I will take the risk of my opinion turning out correct;' then if the chances turn out against him, and the blockade were raised within a reasonable time, I am inclined to say that the plaintiff would have a good cause of action against him. But in the present case it has happened that the defendants were right in their opinion, the blockade not having been raised within a reasonable time; and it having turned out that they were right in the judgment they formed, there never came a time when the plaintiff's would have the smallest benefit from the contract. Different considerations would influence our judgment in a case where the contract was executed, but whilst a contract is still executory I think time is of the essence of the contract. LUSH, J.—I am authorised by my brother Mellor to say that he entirely concurs in the judgment already delivered; and I have only to say the same for myself. Judgment for the defendants. Attorneys-John Scott, for plaintiffs; Gold & Son, agents for W. Todd, Hartlepool, for defendants. There is a duty upon the master of a ship, as representing the owners, to take active measures to check and arrest the injurious consequences of damage done to the cargo by perils excepted in the bill of lading. In an action by shipper against shipowner it appeared that beans were shipped under a bill of lading, containing the usual exception of perils of the sea (including collision). The vessel sustained damage by collision, and put into a port for repairs. The beans having become wetted by salt water, the shippers, through their agent, offered to receive the cargo and pay pro rata freight. The master refused to deliver the cargo except upon receipt of the whole freight, and proceeded with his vessel to the port of discharge. Upon its arrival it was found that the damage to the beans by the collision had been materially enhanced by their detention on board after they had been saturated with salt water. The increased damage would have been avoided if the beans had been unshipped, dried and re-shipped at the port of refuge, the cost of which might have been charged to the cargo as particular average: -Held, affirming the judgment of the Court of Queen's Bench, that assuming that the precautions above mentioned would not have unreasonably delayed the voyage, the defendant was liable for the additional damage to the plaintiff. Error from the decision of the Court of Queen's Bench, reported 39 Law J. Rep. (N.S.) Q.B. 167, where the facts are fully stated. Field (C. Hutton with him) (June 13, 1871), for the defendants, cited The Gratitudine (1), Tronson v. Dent (2), Blasco (1) 3 Robin. 240. (2) 8 Moo. P.C. 419, 449. v. Fletcher (3), Worms v. Storey (4), Jordan v. The Warren Insurance Company (5), Ewbank v. Nutting (6), The Charleston Steamboat Company v. Bason (7), Soule v. Rodocanachi (8), Palmer v. Lorillard (9), King v. Shepherd (10). Milward (Dicey with him) for the plaintiffs, cited Bird v. Cromwell (11), The Steamboat Lynx v. King (12), Niagara v. Cordes (13), Laveroni v. Drury (14). Cur. adv. vult. The judgment of the Court (15) was (on Feb. 16) delivered by WILLES, J.-This is an action by the shippers of beans on board a steamship called The Trojan, for a voyage from Alexandria to Glasgow, against the shipowners, for an alleged neglect of the master to take reasonable care of the beans by drying them at Liverpool, into which port the vessel was driven for repairs, by an accident of the sea, from the direct and proximate effect of which the beans were wetted, and from the remote effects of which, for want of drying, they were further seriously damaged. The bill of lading was subject, amongst other exceptions, to the following, namely, "loss or damage arising from collision or other accidents of navigation occasioned by default of the master or crew, or any other accidents of the seas, rivers and steam navigation of whatever nature or kind excepted," and it gives "liberty during the voyage to call at any port or ports to receive fuel, to load or discharge cargo, or for any other purpose what ever.' (3) 14 Com. B. Rep. N.S. 147; s. c. 32 Law J. Rep. (N.S.) C.P. 284. (4) 11 Exch. Rep. 427; s. c. 25 Law J. Rep. (N.S.) Exch. 1. (5) 1 Story, U.S. Rep. 342. (12) 12 Miss. 272. (13) 21 How. U.S. Rep. 7, 28. (14) 8 Exch. Rep. 166; s. c. 22 Law J. Rep. (N.S.) Exch. 2. (15) Coram Kelly, C.B.; Martin, B.; Willes, J.; Channell, B.; Byles, J.; Keating, J.; and Cleasby, B. The vessel in the course of her voyage stopped at Liverpool, and on the 24th of October, 1868, on her way out, came without any fault, into collision with another vessel. The result of the collision was that she was driven ashore in an exposed place, where the beans. became soaked with salt water, and the vessel herself received an injury which made it necessary that she should put back to Liverpool for repairs. She was there put into a graving dock for that purpose on the 27th, and temporarily repaired, in order to proceed to Glasgow. For the purpose of lightening the ship, and to facilitate the repairs, about onefourth of the beans were transhipped into lighters, and for a like purpose other part was removed and spread out in the after part of the ship. When the ship was repaired the beans were, without being dried or otherwise looked after, replaced in the wet state. On the 30th of October the ship proceeded to Glasgow. The beans were materially damaged by not being dried at Liverpool. The beans might at Liverpool have been removed to warehouses for the purpose of being spread out and dried, and such accommodation might have been found within half a mile of the graving dock. This would have caused a material benefit to the beans, and materially checked the process of decomposition. The expense of unshipping, drying and reshipping, according to the finding in the case, which must be regarded as a finding in fact, would have been particular average, payable by the owner of the cargo, and that must be taken therefore to have been a reasonable and proper course to pursue, so far as the shipper's interest was concerned. It is not stated in the case what risk, trouble, expense, or delay the drying would have caused. In the absence of any statement that either was unreasonable, and acting upon the power of "drawing inferences" given by the special case, the Court below appear to have arrived at the conclusion of fact, that the unshipping, drying and reshipping the cargo, were under the circumstances, as to time and otherwise, reasonable and proper acts to be done by the person |