hostile. In Atkinson v. Ritchie (s), a shipowner had contracted to load a cargo at St. Petersburg, and when half loaded, on hearing a rumour that an embargo was about to be placed on all British vessels within the jurisdiction, he sailed away. This event did, in fact, take place six weeks afterwards. Against the shipowner's plea that performance of the contract had been prevented by "restraint of princes," the Court decided that the restraint must be actual and operative, and not merely expectant and contingent. And on the shipowner's further plea that he owed it a duty to the state to withdraw his property from the grasp of the enemy, the Court decided that to warrant this public duty superseding the private obligation, an actual change in the political relations of the two countries should have taken place. The shipowner was consequently condemned in damages in respect of his non-delivery of the cargo contracted for. And in Osgood v. Groning (t), where the master had landed his cargo at an English port, and declined to proceed to his destination in the North Sea on the ground that his vessel would be exposed to the risk of capture and confiscation by the enemy, the Court decided that no freight was due, the contract not having been fulfilled. In a subsequent action this decision was justified on the ground that the plaintiff might reasonably have been required to proceed on the voyage. It has been stated above that the contract of carriage must be performed unless its completion be prevented by the intervention of the named contingencies. It is, however, to be understood that, apart from any express or implied exception as to trading with the Queen's enemies, as a matter of course neither of the contractors shall be required to proceed with the agreement if its performance should subsequently be rendered unlawful by his government. If, therefore, after the contract has been lawfully made, and before its execution, hostilities should occur between the state to which the ship or cargo belongs and that in which the cargo is to be supplied or to which it is to be carried, whereby one of the contracting parties is precluded from performing his agreement, the contract is ipso facto dissolved. Similarly if commerce between such countries be prohibited. (s) 10 East, 530. (t) 2 Camp. 466. For example: A merchant in London charters a Danish vessel to load a cargo at a Turkish port. If war should occur between England and Turkey, it would be unlawful for the British charterer to supply the cargo in Turkey. If the hostilities were between Denmark and Turkey, it would be unlawful for the Danish ship to transact business at the Turkish port. If between England and Denmark, the contract would become unlawful to both parties. The contract may in all such cases be said to be dissolved by force majeure. A good illustration of the application of this principle is furnished by Baily v. De Crespigny (u), where defendant had covenanted that no building should be erected on a certain paddock, and plaintiff proceeded against him for breach, inasmuch as a railway station had been built upon it. The Court held that defendant had been discharged from his covenant by the operation of an Act of Parliament giving compulsory powers of purchase to the railway company, in the exercise of which powers the land had been acquired and built upon by the company. The Act of Parliament had put it out of his power to perform his covenant, and on the principle of the maxim "lex non cogit ad impossibilia,” he was entitled to judgment. "The law compelleth not impossibilities"; the question remains-What does the law understand by the relative term impossibility? This can hardly be reduced to a definition, but may in a great measure be deduced from judgments. In Medeiros v. Hill (x), a shipowner had refused to proceed to fulfil his contract on the ground that the port of destination was blockaded, and that the voyage was therefore illegal. The Court held that the mere act of sailing to a blockaded port without premeditated intent to break the blockade if it should be found to continue on the vessel's arrival off the port, was no offence against the law of nations; that when the contract was made the fact of the blockade was known, and that the contracting parties must be taken to have entered into the charterparty with equal knowledge of its existence; and that there was not (u) L. R. 4 Q. B. D. 180. Vide also Barker v. Hodgson, 3 M. & S. 267. With respect to joint inability to perform contract, vide Carver's Carriage by Sea, §§ 228, 229. (x) 8 Bing. 231 (an. 1832). Vide also Barker v. Hodgson, 3 M. & S. 267. evidence of any intention on either side to break it: therefore, that no difficulty attending the performance of the contract could be set up as an excuse for its non-performance. In Metcalfe v. Britannia Ironworks Co. (y) a vessel had been chartered to proceed from Middlesborough to Taganrog, "or as near thereto as she could safely get," freight being due on right delivery at destination. On arrival at Kertch further progress was blocked by ice, navigation being closed for the winter, and the master there terminated the voyage. On a demand for freight it was held that none was due, there having been no voluntary acceptance by charterer at the substituted port. The stoppage at Kertch was no breach of the contract, because the master could get no further; but the landing cargo there was a breach. He might have waited till the navigation reopened; for the charter-party did not say, ". . . . as near thereto as he could safely get at that time." Between a blockade by ice and a blockade by proclamation there would seem to be in principle no great difference; time will dissolve them both. In Hadley v. Clarke (z) a vessel was under charter to carry a cargo from Liverpool to Leghorn. Whilst awaiting convoy at Falmouth an embargo was laid on all vessels sailing to Leghorn, and the vessel in consequence remained at Falmouth. She lay there, in fact, for more than two years, when she returned to Liverpool and landed her cargo. A few weeks afterwards the embargo was taken off. The shippers sued the shipowners for breach of contract, and judgment was given against the latter, the Court declaring that the contract was not dissolved by the embargo, which was a restraint of a merely temporary character. The Court observed that in such a case the verdict must needs inflict a hardship on one of the parties. The law was, however, clear, and the shipowner, had he so desired, could have protected himself by a clause in the contract of affreightment (a). In the leading case, Touteng v. Ilubbard (b), Lord Alvanley "had no difficulty in subscribing to the doctrine laid down in (3) L. R. 2 Q. B. D. (1876-7) 423. (z) 8 T. R. 259. (a) Vide also in this connexion sub Discharge Short of Destination, p. 423, infra. (b) Pp. 42, 256, supra. Hadley v. Clarke, that a common embargo does not put an end to any contract between the parties, but is to be considered as a temporary suspension of the contract only, and that the parties must submit to whatever inconvenience may arise therefrom, unless they have provided against it by the terms of their contract;" and that the voyage in Touteng v. Hubbard "might equally have been defeated by the act of God as by the act of the state; as if the ship had been weather-bound until the fruit season was over; and yet in that case the merchant would have been bound to fulfil his contract. The principle of Hadley v. Clarke is this: that an embargo is a circumstance against which it is equally competent to the parties to provide as against the dangers of the sea; and therefore if they do not provide against it they must abide by the consequences of their contract." And referring to the cases cited, his lordship observed that the principle which they established appeared to be that if a party contract to do anything, he shall be bound to the performance of his contract, if from the nature of that contract it is capable of being performed, and legally may be performed. But where the policy of the state intervenes and prevents execution, the party will be excused. But in Geipel v. Smith (c) it was held that "where circumstances have arisen which show that, without any default of the parties, a contract cannot be carried out as contemplated within a reasonable time, the shipowner is excused from going to the port of loading at all." In this case a British vessel had been chartered to load a cargo of coal in England to be carried, restraint of princes and rulers excepted, to Hamburg. Before anything had been done towards performance of the contract, Hamburg was blockaded by the French, and the shipowner thereupon refused to receive the cargo, alleging that it was impossible to fulfil the charter within a reasonable time except by running the blockade, and that to attempt this would be to disregard the royal proclamation of neutrality. The Courts supported this defence, holding that an effective blockade of the port of discharge not merely excuses delay in the carrying out of a contract, but after a reasonable time it relieves the parties, the contract being (c) L. R. 7 Q. B. D. 104. altogether executory, from the performance of it. If in this case the impediment had been in its nature temporary, the plea might have been considered bad, but a state of war must be presumed to be likely to continue so long as to defeat and destroy the object of such a commercial adventure. In Adamson v. Newcastle Insurance Association (d) the charterparty contained a clause "in the event of war, blockade or prohibition of export preventing export," the charterparty to be cancelled. On arrival of the vessel at Constantinople the master learned that the loading port-Galatz-was blockaded by Russia; and considering that there was no reasonable probability of its being opened in time for him to perform his contract, he loaded a cargo at Constantinople instead. The majority of the Court held that, having regard to the special clause, on the closing of the port the agreement was ipso facto terminated. Lush, J., dissenting, was of opinion that on the blockade the clause made the charter voidable by either side, but not ipso facto void. This case, like that of Metcalfe v. Britannia Ironworks Co. (e), emphasises the importance of accuracy and unambiguity in the language of contracts of affreightment. Similarly, in Avery v. Bowden (ƒ) (The Rolla (g)), where a vessel had been chartered to proceed to Odessa, but" in case of war having commenced" on the vessel's arrival at Constantinople, cargo to be loaded there instead; and war had so commenced between Russia and Turkey; the Court was called upon to decide what was intended by the special provision relative to war. It was finally decided that such a war was contemplated as would make it unlawful for a British ship to proceed from Constantinople to Odessa; and that the war which did occur was not such a contingency as entitled the master to demand a cargo at Constantinople. Delay consequent on Hostilities.-If in the course of performance of his contract the master, in order to avoid imminent risk of capture, should deviate from the regular course or detain his vessel in neutral waters, this deviation or delay will not support (d) 4 Q. B. D. (1879) 462. (e) P. 419, supra. (ƒ) 25 L. J. Q. B. 49. |