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performance of the contract, and a block- blockade is notified the subjects of foreign ade can have no greater effect upon it. countries are bound to take notice of it,
Watkin Williams (Stecle with him), for that is if it be a real blockade, and no the defendants.—The pleas shew a good ship is bound to enter a port blockaded, defence to the action. The main objection and that although it is no breach of the urged by the plaintiff's is that the vessel law for a vessel to sail for the blockaded ought at any rate to have proceeded to port in the hope of a termination of the the port of loading, without regard to any blockade, it is to be doubted whether the obstacle at the port of discharge. But it shipowner has a right to insist upon carrycould not have been necessary that the ing the cargo to the blockaded port for defendants should go through the idle such a purpose, or whether the shipper ceremony of entering upon the perform- could insist that his cargo should be carance of a contract which it was impossible ried, unless the circumstances were such to fulfil. They had a right to assume that as to shew clearly that the blockade would the impediment would continue-Hochster continue only for a short time. He also v. De la Tour (5). It may be doubted cited Paradine V. Jane (9); Hills v. whether the exception in the charter-party Sughrue (10); Pole v. Cetcovich (11); as to restraint of princes and rulers would, Naylor v. Taylor (12); Pothier Chartetaken by itself, be sufficient to excuse the partie, s. 98. defendants from proceeding to Hamburg. Cohen in reply.— Impossibility of perBut it is submitted that, quite apart from forming a contract occasioned by the acts this exception, it is an implied term in a or laws of a foreign state does not excuse charter-party that the blockade of the the performance, unless excepted in the port of discharge shall dissolve the con- contract — Leake on Contracts, p. 367. tract. In Scott v. Libby (6) it was as- Pole v. Cetcovitch (11) at most only desumed by the Supreme Court of New cides that where a ship is under charYork that such a blockade would dissolve ter to proceed to a particular port the the contract.
master, where there is risk of capture, [COCKBURN, C.J.-But where the ob- is not bound to start immediately, but stacle is removed is not the ship bound to may stay to make inquiries. Atkinson v. proceed ? BLACKBURN, J.-It may be that Ritchie (3), shews that no exception not where the shipowner is wrong in his contained in the charter-party itself can apprehension, he is liable as for a breach be engrafted upon it by implication as an of his contract.]
excuse for its non-performance. He cited The Elizabeth (7) shews that if the ship Bailey v. De Crespigny (13), and McAnhad proceeded to Newcastle this would be drew v. Chapple (14). regarded in a Prize Conrt as evidence of an intention to violate the blockade. It COCKBURN, C.J.—I am of opinion that is true that in Medeiros v. Hill (8), the our judgment should be in favour of the shipowner was held liable for not proceed. defendants. I will not say that the pleas ing to a blockaded port, but this was on are all of them sufficient, but the main the express ground that the parties knew question is whether upon the admitted of the fact at the time of entering into facts the defendants are entitled to judgthe charter-party. In the German and ment and I think that they are. The other foreign codes, a charter-party is declaration is upon a charter-party by dissolved by a blockade or prohibition of which the defendants agreed that their trade with the port of destination. In vessel The Martindale, should with all Persons on Maritime Law, vol. i. p.
277, convenient speed sail and proceed to a it is expressly laid down that when a
(9) Aleyn, 28. (6) 2 E. & B. 678 ; s. C. 22 Law J. Rep. (N.s.) (10) 15 Mee. & W. 253. Q.B. 455.
(11) 9 Com. B. Rep. N.S. 430 ; 8. c. 30 Law J. (6) 2 Johns. (Amer.) Rep. 336.
Rep. (N.s.) C.P. 102. (7) i Edw. Adm. Rep. 198.
(12) 9 B. & C. 718. (8) 8 Bing. 231; s.c. 1 Law J. Rep. (x.s.) C.P. (1?) 33 Law J. Rep. (x.s.) Q.B. 98. 77.
(14) 33.5 Law J. Rep. (n.s.) C.P. 281.
"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
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, "restraint 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 It seems to me that so long a delay must is, I think, to the purpose. If I under- frustrate the very object of the contract, take to convey goods from London to which is for the transport of the shipper's York, which it is impossible to do if a goods, and the employment of the shipbridge on the way is broken down and owner's vessel. Such a state of affairs, cannot be repaired within a reasonable in my opinion, not only produces a delay
if the bridge is actually broken in the fulfilment of the contract, but down, it is idle to say that I must perform puts an end to the whole matter. The part of the contract by carrying the goods case of Touteng v. Hubbard (15) is a as far as the bridge, in order that at some decision to that effect. There the vessel, future time I may be able to perform the a Swedish one, was chartered to sail to rest of it. Our judgment must, there- the island of St. Michael's, and bring fore, be for the defendants.
home a cargo, the charter-party containing BLACKBURN, 'J.-I am of the same the exception against restraints of princes. opinion. Upon all the substantial matters An embargo having been laid on Swedish involved I agree that judgment must be vessels by the British Government, the for the defendants. I have some doubt as vessel was detained till the 19th of the to whether the fifth plea is good, and am following June, after which time it went disposed to think that on it judgment to St. Michael's, and then claimed to should be for the plaintiffs. But that is a recover the freight against the British mere question of costs. The charter- merchant; but the Court of Common party in question is an executory contract. Pleas said: "No; the exception of reThe ship is to proceed with all convenient straints of princes introduced into the speed to a spout, and there load a cargo charter-party not for the benefit of the of coals, and then proceed to Hamburgh, merchant, but of the master.” It would be subject to the exception, amongst other a inonstrous thing if a party could, under things, of the “ restraint of princes.” such a contract, be obliged to load a cargo Whilst the contract was still executory, at
time whatever in sæcula sæculorum. war broke out between France and Ger- The merchant is entitled to get his cargo many, and there was an effectual blockade within a reasonable time, that being a of the port of Hamburgh, so that the de- matter to be determined by a jury. It fendants could not bring the cargo to would be monstrous to hold that the
cargo Hamburgh without breaking the blockade should be kept waiting for years. A cargo and evading the restraint of the Emperor of coals, of corn, and still more one of of France. Then comes another question. fruit, would inevitably deteriorate in that If whilst the blockade existed there was a time. On the other hand there would be “ restraint of princes” which excused the the obvious hardship on the shipowner of performance of the contract, the moment inaking him keep his ship in dock, waitthe blockade ceased, were the defendants ing till the news should come of the bound to carry out their contract ? This blockade having been raised. This would is the real question. We need not consider bafle the very object of the voyage. The the different words of the pleas. If the intention of each party is to carry out the blockade had existed only for an hour, or contract within a reasonable time; and if for a very short time, I do not think it the restraint of princes lasts beyond a would put an end to the contract; but I reasonable time, it seems to me that either cannot agree with the contention that party is entitled to treat the contract as however long the blockade might have at an end. The 6th plea says that the existed, even if it had lasted as long as the plaintiffs asked the defendants to take blockade of Toulon, or as long as some of
and break the blockade, the blockades in the War of Independence that is, to carry out the undertaking, between the United Provinces and Spain; notwithstanding that a restraint of princes that during that enormous time the did exist. So understood the plea is good. owners of the ship and cargo should be Then comes the 7th plea, which says, in obliged to have them ready in order that the contract might afterwards be carried out.
(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. 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 plaintiffs 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.
v. Fletcher (3), Worms v. Storey (4),
The vessel in the course of her voyage Jordlan v. The Warren Insurance Company stopped at Liverpool, and on the 24th of (5), Ewbank v. Nutting (6), The Charles- October, 1868, on her way out, came ton Steamboat Company V. Bason (7), without any fault, into collision with Soule v. Rodocanachi (8), Palmer v. Loril- another vessel. The result of the colli. lard (9), King v. Shepherd (10).
sion was that she was driven ashore Milward (Dicey with him) for the plain- in an exposed place, where the beans tiffs, cited Bird v. Cromwell (11, The became soaked with salt water, and Steamboat Lynx v. King (12), Niagara the vessel herself received an injury which v. Cordes (13), Laveroni v. Drury (14). made it necessary that she should put
Cur. adv. vult. back to Liverpool for repairs. She was
there put into a graving dock for that The judgment of the Court (15) was purpose on the 27th, and temporarily (on Feb. 16) delivered by
repaired, in order to proceed to Glasgow. WILLES, J.—This is an action by the For the purpose of lightening the ship, shippers of beans on board a steamship and to facilitate the repairs, about onecalled The Trojan, for a voyage from Alex- fourth of the beans were transhipped into andria to Glasgow, against the ship- lighters, and for a like purpose other part owners, for an alleged neglect of the was removed and spread out in the after master to take reasonable care of the part of the ship. When the ship was beans by drying them at Liverpool, into repaired the beans were, without being which port the vessel was driven for dried or otherwise looked after, replaced repairs, by an accident of the sea, from in the wet state. On the 30th of October the direct and proximate effect of which the ship proceeded to Glasgow. The the beans were wetted, and from the beans were materially damaged by not remote effects of which, for want of dry- being dried at Liverpool. ing, they were further seriously damaged. The beans might at Liverpool have The bill of lading was subject, amongst
been removed to warehouses for the pur. other exceptions, to the following, namely, pose of being spread out and dried, and "loss or damage arising from collision or such accommodation might have been other accidents of navigation occasioned found within half a mile of the graving by default of the master or crew, or any
dock. This would have caused a material other accidents of the seas, rivers and benefit to the beans, and materially steam navigation of whatever nature or checked the process of decomposition. kind excepted,” and it gives “liberty The expense of unshipping, drying and during the voyage to call at any port or reshipping, according to the finding in ports to receive fuel, to load or discharge the case, which must be regarded as a cargo, or for any other purpose what- finding in fact, would have been particu
lar average, payable by the owner of the
cargo, and that must be taken therefore (3) 14 Com. B. Rep. N.S. 147; 8. c. 32 Law to have been a reasonable and proper J. Rop. (N.s.) C.P. 284.
course to pursue, so far as the shipper's (4) 11 Exch. Rep. 27; s. c. 25 Law J. Rep. (x.s.) Exch. 1.
interest was concerned. (5) 1 Story, U.S. Rep. 342.
It is not stated in the case what risk, (6) 7 Com. B. Rep. 797.
trouble, expense, or delay the drying (7) Harper Amer. Rep. 262.
would have caused. In the absence of (8) 1 Newb. Adm. Rep. 504.
any statement that either was unreason. (9) 16 Johns, U.S. Rep. 348.
able, and acting upon the power of (10) 3 Story, U.S. Rep. 349. (11) 1 Miss. 81.
"drawing inferences" given by the special (12) 12 Miss. 272.
case, the Court below appear to have (13) 21 How. U.S. Rep. 7, 28.
arrived at the conclusion of fact, that the (14) 8 Exch. Rep. 166; s. c. 22 Law J. Rep. unshipping, drying and reshipping the (2.8.) Exch. 2. (15) Coram Kelly, C.B.; Martin, B.; Willes,
cargo, were under the circumstances, as J.; Channell, B.; Byles, J.; Keating, J.; and to time and otherwise, reasonable and Cleasby, B.
proper acts to be done by the person