Part IV. cannot be said that such a notice, though bad for other ports, is good for Amsterdam. It takes from the neutral all power of election as to what other port of Holland he should go to, when he found the port of his destination under blockade. A commander of a ship must not reduce a neutral to this kind of distress; and I am of opinion, that if the neutral had contravened the notice, he would not have been subject to condemnation." And again, in the case of the Rolla (a), "All that is necessary to make a notification effectual and valid, is, that it shall be communicated in a credible manner; because, though one mode may be more formal than another, yet any communication which brings it to the knowledge of the party, in a way which could leave no doubt on his mind as to the authority of the information, would be that which ought to govern his conduct." 5. Recent Decisions. The duty of a master to whom, upon his arrival at the port of loading, notice is given by the merchant of his inability to provide a cargo, has already been adverted to (b). It has been decided, in recent cases, that such an intimation given to a master, during the time allowed for loading, but not accepted and acted upon by him as a renunciation of the charty-party, is not a breach by the merchant of his contract to furnish a cargo (c). It was held also, in the first of the cases last referred to that where by the terms of a charter-party between British subjects its performance was to be in part dispensed with in the event of war-the war, to produce that effect, must be a war which rendered the performance of the contract by them unlawful; e.g., a war between England and Russia, not one between Russia and Turkey. Although contracts which cannot be performed without being guilty of the unlawful act of trading with the King's enemies are dissolved by the breaking out of hostilities, it was in a late case considered that a declaration of war against a foreign state does not necessarily render unlawful the performance of a contract by a British subject within its territory. "The cargo," it was observed by Lord CAMPBELL," which he has contracted to supply, may have been purchased beforehand by him, or by the subject of a friendly or allied state, in either of which cases it may be meritorious to save it from the grasp of the enemy:" and on these grounds, where a plaintiff, who was the master of a vessel and the subject of a friendly and (a) 6 Rob. 372. (b) Ante, p. 439. (c) Avery v. Bowden, 5 E. & B. 714; in Ex. Ch., 6 E. & B. 953; Reid v. Hoskins, 5 E. & B. 729; in Ex. Ch. 6 E. & B. 953; 2 E. & B.578; Barrick v. Buba, 2 C. B. (N. s.) 563; and see Hochster v. Delatour, 2 E. & B. 678, and the Danube and Black Sea Railway Co. v. Xenos, 11 C. B. (N.s.) 152; S. C. in Ex. Ch., 31 L. J. C. P. 284; in which it was held that a cause of action arises on the explicit renunciation of a contract by the person bound to perform it, and the acceptance by the other contracting party of such renunciation - though the time for performance of the contract has not arrived. neutral state, had agreed by charter-party with a British subject to Chap. 11. proceed to Odessa, and there load a cargo of grain to be provided by the factors of the defendant, a plea that before the ship arrived at Odessa, and before the defendant had provided or purchased any cargo to be loaded on board the said ship, war was declared against Russia, and it thereby became impossible for him to perform his agreement without trading with the Queen's enemies, and that thereby the contract became and was wholly rescinded, was held on demurrer to be no answer to the action (d). In a subsequent case, in which the plea alleged that the plaintiff and defendant were British subjects; that both of them had notice of the war between our Queen and the Emperor of Russia, before the alleged breach of the contract; that Odessa, the agreed port of loading, was within his dominions; and that the defendant could not, without trading and corresponding with the enemy, have procured nor the plaintiffs have received a cargo, the contract was held to have been dissolved. "Here," said Lord CAMPBELL, "the defendant, by the averment in his plea, that he could not have loaded the ship without trading with the enemy, acquits himself of all blame. He negatives the supposition that before the declaration of war he could have provided a cargo for the ship from Russian subjects, or that after the declaration of war it would have been possible for him to have loaded without trading and corresponding with the enemy. To meet the possibility that a cargo, the property of British subjects or of our allies, might have been loaded in the ship after the declaration of war, there is an averment that the plaintiffs could not have received a cargo on board without trading with the enemy. It is material in this case, that the owners of the ship were British subjects. It therefore was the duty of the captain of the ship as soon as he heard of the declaration of war to make his escape, and to seek a place of safety, instead of lingering at Odessa in the hope of obtaining a cargo, although he might safely have done so if he had not been a British subject, and the ship had been neutral property" (e). The decision in the former of these cases was reversed by the Court of Exchequer Chamber in a judgment delivered by WILLES, J., asserting the principle that the object of war, being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse with the inhabitants of the enemy's country, and renders such intercourse, except with the license of the Crown, illegal, and that all contracts having such intercourse for their object are dissolved. "In ordinary cases, said the learned Judge, after a masterly discussion of the (d) Esposito v. Bowden, 4 E. & B. 963. The issue of fact, "impossible or not," without trading and corresponding with the enemy, was afterwards tried before Baron PLATT, at York, and evidence given that duties of export would become due to the Russian Government on the shipment. The jury, under the direction of the learned (e) Reid v. Hoskins, 5 E. & B. 729. It Part IV. authorities on the question in the Court of Admiralty, the Courts of Common Law, and the Courts of the United States of America (a), "the more convenient course for both parties would seem to be, that both should be at once absolved, so that each one becoming aware of the fact of a war, the end of which cannot be foreseen, making the voyage, or the shipment, presumably illegal for an indefinite period, may be set at liberty to engage in another adventure without waiting for the bare possibility of the war coming to an end, in sufficient time to allow of the contract being fulfilled, or some other opportunity of lawfully performing the contract perchance arising. The law upon this subject was doubtless made, according to the well-known rule, to meet cases of ordinary occurrence, and in times when to permit trading with the enemy even through neutrals, was the exception, not the rule. These considerations may explain the origin of the law authoritatively laid down in the books, as to war at once working an absolute dissolution of the contract. We are of opinion that for a British subject not domiciled in a neutral country, which the defendant cannot be presumed to be, to ship a cargo from an enemy's port, even in a neutral vessel, without license, is an act, prima facie, and under all ordinary circumstances, of dealing with the enemy, and therefore forbidden by the law; that it lies on the person alleging it to be legal, to establish the fact; and that in the absence of proof that it would be legal, neither a British subject nor an alien friend can found any action upon the fact of its not having been performed. The Sovereign of this county has a right to declare war, with all its consequences, enforcing or mitigating them either generally or in particular instances, as may be thought best by the Government. One of these consequences, not removed or dispensed with by any treaty, by order in Council, or licence, or by any special circumstances of necessity in the particular case is, that trade and dealing with the enemy are forbidden. The plea alleges that the contract could not, from the time of the declaration, have been fulfilled without such dealing or trade. That, as we have already shewn on grounds not considered by the Court of Queen's Bench, may be true. If it may be, then inasmuch as the law justifies what it commands, and inasmuch as it effects that purpose by dissolving the contract, which presumably cannot, within any reasonable time, be executed without dealing and trading with the enemy, the plea founded upon that state of the law is sufficient (b). (a) Gist v. Mason, 1 T. R. 88; the Hoop, 1 Rob. 196; Potts v. Bell, 8 T. R. 548; Bell v. Gilson, 1 B. & P. 345; Furtado v. Rodgers, 3 B. & P. 191; Touteng v. Hubbard, 3 B. & P. 291; Bowker v. Hodgson, 3 M. & S. 270; Atkinson v. Ritchie, 10 East, 530; the Juffroow Catharina, 5 Rob. 140; the Madonna, 4 Rob. 195; Griswold v. Johnson, 16 Johnson (U.S.) 438; the St. Lawrence, 1 Gallison (U.S.) 467; the Joseph, 1 Gallison (U.S.) 467. Kent's Com. 3rd vol. 4 ed., p. 248. (b) Esposito v. Bowden, 7 E. & B. 763; 27 L. J. Q. B. 17; Geipel v. Smith, 41 L. J. Q. B. 153; Adamson v. Newcastle, &c., Ins. Ass., 48 L. J. Q. B. 670; L. R. 4 Q. B. D. 462. PART THE FIFTH. OF THE HIRING OF MERCHANT SEAMEN; THE EMPLOYMENT OF CHAPTER I. OF THE HIRING OF SEAMEN; AND HEREIN. SECTS. 1. Of the Hiring of Seamen generally, p. 451. 2. Of Ships' Articles-Regulations respecting them-of Merchant Shipping 3. Provisions for the protection of Seamen and the preservation of their Health 4. Verbal agreement for Wages not absolutely void, p. 459. 5. Seamen not entitled to increased Remuneration for extraordinary Service 6. Provisions of 17 & 18 Vict. c. 104, for the licensing by the Board of Trade of 1. Of the Hiring of Seamen generally. [SEAMEN employed in merchant ships are usually hired at a certain sum, either by the month or for the voyage. In the former case, the amount of the payment that may be earned by them depends upon the length of the voyage; in the latter, it is fixed invariably without any regard to the duration of the voyage. In the fishing trade, particularly the whale-fishery [see sect. 187], and in private ships of war, the seamen usually serve under an engagement to receive a certain portion of the profits of the adventure. Such an engagement is rather in the nature of a partnership (c) than of a contract of hiring and service, and the objects of it do not properly fall under my consideration. An engagement to receive a certain part of the freight to be earned by a merchant ship, which seems formerly to have been not unfrequent is at present seldom, if ever, made.] (c) But not one; see Wilkinson v. Frazer, 1 Esp. 182; Dry v. Boswell, 1 Campb. 329; Perrott v. Bryant, 2 Y. & C. 61; Pott v. Eyton, 3 C. B. 32. As to agreements with fishermen where vessels engaged in fishery Chap. 1, Part V. Repealed enactments. Present enactments. nature, &c., of articles. 2. Of Ships' Articles-Regulations respecting them-of Merchant Shipping Acts. Before the M. S. Act, 1854, statutes were passed for the purpose of regulating agreements with seamen. The 5 & 6 Will. 4, c. 19, recited (a) and repealed all the previous Acts upon this subject. That Act was repealed by the "General Merchant Seamen's Act," 7 & 8 Vict. c. 112; which so far as it related to agreements with seamen was repealed by the "Mercantile Marine Act," 13 & 14 Vict. c. 93; since also repealed by 17 & 18 Vict. c. 120. By the "M. S. Act, 1854," 17 & 18 Vict. 104, it is enacted, that every master of a ship (see sect. 109), except ships of less than eighty Form and sig tons registered tonnage, exclusively employed in trading between different ports on the coasts of the United Kingdom (6), shall, on carrying any seaman to sea as one of his crew, enter into an agreement in a form (c) to be sanctioned and issued by the Board of Trade, which shall be dated at the time of the first signature thereof, be signed by the master before it is signed by any seaman, and shall coutain, as terms thereof, the following particulars :— 1. The nature (d), and, as far as practicable, the duration of the intended voyage, or engagement (e). 2. The number and description of the crew (a point of great im (a) 2 & 3 Anne, c. 6; 2 Geo. 2, c. 36; (b) See Shepherd v. Hills, 11 Ex. 55. (d) [The Westmoreland, 1 W. Rob. 221. from thence to Calcutta. The Minerva, 1 Hagg. 374. And in another case, where the voyage was expressed to be from London to Batavia, to any ports and places, the East India sens or elsewhere, and until her final arrival at any port or ports in Europe, it appearing to have been the intention of the owners at the commencement of the voyage, that the ship should return from India to Cowes, and there receive orders as to the port of discharge; the same learned judge considered the description of the voyage much too general to answer the bene ficial purposes intended by the statute re quiring the voyage to be mentioned in the contract, and thought the intention to come to Cowes for orders as to the port of delivery, ought to have been mentioned. The George Home, 1 Hagg. 370. See the Eliza, 1 Hagg. 182, and Countess of Harcourt, id. p. 248.] (e) See Fraser v. Hatton, 2 C. B. (N.S.) 512. By 36 & 37 Vict. c. 85, s. 7, the agreement may, instead of stating the nature and character of the intended voyage or engagement, state the maximum period of the voyage or engagement, and the place, or parts of the world, if any, to which the voyage or engagement is not to extend, |