safe, but then closed by the local government, so that any vessel entering it without a permit, would be liable to confiscation (g). MENT. In cases of necessity, as, for instance, where the ship is TRANSHIPwrecked, or otherwise disabled in the course of the voyage and cannot be repaired, or cannot be repaired without too great a delay and expense, the master, acting as agent of his owner, may procure another competent vessel to carry on the goods and earn the freight. He is entitled, however, to a reasonable time within which to tranship (h). There is little authority in our law books as to whether it is the duty or only the right of the master to tranship, but although there is no express decision upon the subject there is no case in which such a duty has been declared. Transhipment has been treated merely as a power or privilege conferred upon the master for the benefit of the shipowner to secure the freight (i). But it is the duty of the Preservation master, as representing the shipowner, to take active measures where reasonably practicable for the preservation of the cargo from loss or deterioration in case of accidents. The master ought not to leave the cargo to perish, and in case of absolute necessity, where he has no means of communicating with the owners of the cargo, he may, to save the cargo, hypothecate the cargo, and where it is impossible to carry it on or preserve it he may even sell it (k). of the cargo. DUTY OF MASTER AT When the ship has arrived at the place of her destination, the master must take care that she be safely moored or anchored, and without delay deliver the cargo to the merchant or his consignees CHARGE. (i) See The Hamburgh, Br. & L. 253; De Cuadra v. Swann, 16 C. B., N. S. 772; Notara v. Henderson, L. R., 7 Q. B. 225: See also 3 Kent, Com. 210; Shipton v. Thornton, 9 A. & E. 316. The foreign jurists have differed on this question. The arguments on either side are shortly stated, and many of the foreign authorities on the subject are collected in the judgment in Shipton v. Thornton, ubi supra. In America it has been held, that it is the duty of the master to tranship where it is possible. 3 Kent, Com. 212. See, as to the duties of the master in M.P. cases of injury to the ship, and as to (k) See Tronson v. Dent, 8 Moo. P. Y EXCEPTIONS IN DISSOLUTION By act of parties. Unforeseen event preventing performance of contract. upon production of the bills of lading and payment of the freight (1). Under a charter-party providing for the delivery of the cargo at the usual place of discharge, the master is bound to take his ship to any usual place in the port to which the charterer may direct the ship to go (m). The charter-party usually contains the words, "the act of God, the Queen's enemies, and dangers of the seas excepted," or other words to a like effect. Similar words are usually inserted in bills of lading, and it will be convenient to consider the effect of these exceptions hereafter, when we treat of bills of lading (n). Contracts of affreightment may, like any other contracts, be dissolved by the consent of the parties; and at any time before breach it is not necessary that there should be any new consideration for the dissolution (o). It is, however, a rule of law that if the original contract is under seal, the contract of dissolution must be under seal (p). Contracts which are not by deed, but which by reason of the operation of the Statute of Frauds must be in writing, cannot be varied by a merely verbal agreement (9). It is an important general rule, of very frequent application, that where a party by his own contract creates a duty or charge, he is bound to perform it notwithstanding inevitable accident, since he might have provided against the contingency by the contract (r). (1) Abbott on Shipping, 3rd ed., p. 244; Fowler v. Knoop, 4 Q. B. D. 299. (m) Kirchner v. Venus, 12 M. P. C. 398; The Felix, 2 A. & E. 273; Parker v. Winlow, 7 E. & B. 942. (n) See post, p. 350. (0) King v. Gillett, 7 M. & W. 55; see also Viner's Abridg. Contract, G. 17. See Adamson v. Newcastle Steamship, &c. Association, 4 Q. B. D. 462, and see post, p. 332. The charterer's foreign agent has no implied authority to vary the cargo designated in a charter-party, nor to alter the place of loading; Sickens v. Irving, 7 C. B., N. S. 165; see also Broadhead v. Yule, 9 Sess. Ca. 13th series, p. 921. A ship's husband has no implied authority to cancel a charter-party; Thomas v. Lewis, 4 Ex. Div. 18. (P) 5 Rep. 26 a. (4) Goss v. Lord Nugent, 5 B. & A. 65. A subsequent verbal agreement which is not good under the statute cannot operate as a rescission of the original written contract; Noble v. Ward, L. R., 1 Ex. 117; 2 Ex. 135. (r) Paradine v. Jane, Aleyn, 27; Adams v. The Royal Mail Steam Packet Company, 5 C. B., N. S. 492. "If a man chooses to enter into a contract to do a particular act he is bound to answer for it, although the performance of the act may be prevented by the occurrence of unforeseen circumstances which it was beyond his power to control, and which have arisen from no act or default of his own, because he might and ought to have provided for the contingency by his contract;" per Brett, J., Jackson v. Union Marine Insurance Company, L. R., 8 C. P., at Thus, as we have seen, where time is expressly limited by the terms of the contract for the loading or discharge of the ship, the merchant will be liable if he neglects to perform the contract on his part, even though he may be prevented by some unforeseen event (s). So where, owing to the prevalence of an infectious disease at the port of discharge, all public communication with the shore became unlawful and impracticable, it was held that the loss must fall on the freighter, and that he was liable in damages for not performing his contract (†). The shipowner's contract is not dissolved, nor is it any excuse for its non-performance, that the delivery of the goods to the consignee is prevented by their wrongful seizure by Custom House officers (u). Where the shipowners had covenanted to deliver the outward cargo, and "having done so" to receive on board a return cargo, and the freighters had covenanted that they would find and provide, "as they did warrant and assure to the shipowners," a full return cargo, it was held that the freighters were liable, on this covenant, for not having furnished a return cargo, although the delivery of the outward cargo was prevented by its seizure, without any default of the shipowners, at the outward port where it ought to have been delivered, by persons exercising the authority of Government there (x). The shipowner also, unless the charter-party expressly provides against such a contingency, is not protected even against inevitable accident. Thus, where shipowners covenanted to proceed to one of the Guano Islands, and there "to load a full and complete cargo of guano by the ship's boats and tackle, and by the labour of the crew," it was held to be no excuse for the P. 586. See Jones v. St. John's College, L. R., 6 Q. B. 115. This general rule is, however, subject to a qualification which is thus expressed by Hannen, J., in Baily v. De Crespigny, L. R., 4 Q. B., at p. 185: Where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens. See Howell v. Coupland, 1 C. P. D. 258. (s) Ante, p. 317. (t) Where by the charter-party the charterer undertakes to procure a pass necessary to enable the vessel to load at a foreign port he cannot excuse his neglect to provide cargo simply on the ground that the government authorities refused to grant a pass; Kish v. Gibb, 1 H. & N. 810. (u) Gosling v. Higgins, 1 Camp. 451; Spence v. Chodwick, 10 Q. B. 517; and see also, as to the effect on the contract of the interference of the agents of the English government at a foreign port, Evans v. Hutton, 4 M. & Gr. 954. (x) Storer v. Gordon, 3 M. & S. 308; and see post, Chap. VI., Part II., DE MURRAGE. Contract dissolved by performance non-performance of this positive contract that no guano was to be found at the island (y). But where the act to be performed is of such a nature that both parties must concur in doing it, and an unexpected event prevents each from doing his part, neither can maintain an action against the other for the non-performance of the act. Thus, in a case where a vessel was chartered to load a cargo at a named port, and by the regulations of the port the loading of the agreed cargo was prohibited, the charterers sought to recover damages against the shipowners for not loading the agreed cargo; but it was held that as neither of the parties were able to perform their respective duties under the contract, the plaintiffs being unable to load the cargo, and the defendants to receive it, the action could not be maintained (≈). The general rule stated above is subject to this further qualification that if after the contract is made it becomes unlawful becoming un- for either party to perform it, then the performance cannot be insisted upon, nor can damages be recovered for the non-performance, because lex non cogit ad impossibilia (a). lawful. Effect of war, &c. Thus, it has been said, that if, after the making of the contract, the exportation of the articles which are to compose the cargo were prohibited by the law of this country, the contract would be considered to be dissolved, or, at all events, no damages could be recovered for its breach (b). And the breaking out of a war, or a local interdiction of commerce, arising subsequently to the making of the contract between the state to which the ship or cargo belongs and that to which it is destined, would Of embargo have the same effect (c). It is otherwise with respect to an embargo, which operates only as a temporary suspension of the adventure, and such an impediment cannot, at least where the contract has been in part performed, be set up in answer to the (y) Hills v. Sughrue, 15 M. & W. 253. The charter-party in this case provided also that certain disbursements were to be returned to the charterers "in the event of any unforeseen cause preventing the completion of the charterparty:" but the Court held that this stipulation could not be construed to mean that the contract by charter-party was to be at an end under circumstances such as those which had happened. See also Puller v. Staniforth, 11 East, 232, and supra, p. 322, n. (†). (z) Cunningham v. Dunn, 3 C. P. D. 443. See also Ford v. Cotesworth, L. R., 5 Q. B. 544. (a) Baily v. De Crespigny, L. R., 4 Q. B. 180. (b) See the judgment of Lord Ellenborough in Barker v. Hodgson, 3 M. & S. 270. A prohibition at the port of discharge by a foreign government would not have this effect. See Blight v. Page, cited 3 B. & P. 295, note (a), and Touteng v. Hubbard, ib. 291. (c) See Abbott on Ship. 596. breach of a contract which has not provided against the contingency (d). But if the embargo is of an hostile character, and the object of the voyage is likely to be defeated by the delay, it seems that the contract may be treated as dissolved (e). Where an embargo was laid by the British Government upon foreign ships, as an act in the nature of reprisals and of partial hostility, it was held that no right of action could be founded in our Courts, by an owner of one of the foreign vessels against an English merchant, for a breach of contract which resulted only from his obedience to the orders of his own Government (ƒ). In recent years a number of cases have arisen having reference Recent cases to the matter now under consideration, and although the deci- effect of war respecting the sions in many of them turn upon the meaning of express ex- on contract of affreightceptions contained in the shipping documents, yet they are all so connected that it will be convenient to consider them together here. During the Crimean war, some important questions arose with reference to the effect of war on contracts of this description. In a case in the Court of Exchequer, it appeared on the pleadings that the plaintiff had agreed, at the request of the defendants, to execute an order for goods required by a merchant at Odessa, and that the defendants had for certain considerations undertaken to accept the plaintiff's draft for the invoice price of the goods. To a declaration setting out these facts, and alleging that the defendants had not accepted the plaintiff's draft, the defendants pleaded that at the time of the making of the agreement the merchant at Odessa was an alien, and that afterwards, before any breach of it, and before the time when the plaintiff was to have despatched the goods to him, he became and still was an enemy of the Queen, so that the plaintiff could not lawfully forward the goods to him. To this plea the plaintiff replied that in the declaration of war against Russia the Queen had waived the right of seizing enemy's property laden on board of neutral vessels, unless it was contraband of war, and that, by a (d) Hadley v. Clarke, 8 T. R. 259. In this case the contract was considered to be suspended until the embargo was removed. See also Scott v. Libbey, 2 Johns (American) Rep. 336. In Puller v. Staniforth, 11 East, 232, and Bell v. Puller, 2 Taunt. 285, the charterparties expressly provided for cases of interference with the contract by poli tical circumstances. (e) Abbott on Shipping, 3rd ed. p. 411; and see Rodocanachi v. Elliott, L. R., 9 C. P. 518. (f) Touteng v. Hubbard, 3 B. & P. 291. See the observations on this case by Blackburn, J., in Geipel v. Smith, L. R., 7 Q. B. 412, and see post, p. 332. ment. |