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dissenting) rejected this view of the case, and held that it was impossible in the circumstances of the case to impute to the master and crew who only yielded to force in quitting the ship, an intention not to return so as to constitute her a derelict1.

(2) The doctrine of frustration of the venture, and (if one takes the view that a distinction can still be drawn between them) the principles regulating the effect of supervening impossibility of performance, have been discussed at some length in relation to charter-parties in Chapter V. Few topics have been so prolific of litigation during the recent war, but it is doubtful whether anything can be usefully added to what has already been said in that chapter upon Tamplin's case. The doctrine of frustration or supervening impossibility has been frequently applied to voyage charterparties, but the question whether it could ever operate to discharge a voyage charterparty was left open in Tamplin's case. Bailhache J. in Admiral Shipping Co. v. Weidner, Hopkins & Co.3 and Sankey J. in Scottish Navigation Co.v. Souter & Co.4 answered this question in the negative, but the Court of Appeal in reversing these decisions applied the doctrine to time charter-parties. In both cases the parties contemplated a definite commercial venture, namely a ‘Baltic round,' so that the charter-parties, though for time, bore a resemblance to voyage charter-parties. The point has however now been settled in Bank Line v. Arthur Capel & Co.5, where the House of Lords applied the doctrine to a charter-party, which was definitely for time and could not be said to contemplate any particular adventure.

The principle expounded in Tamplin's case that a mere interruption in a time charter may not be such as to put an end to it, must however not be applied to the case of a time charter to which one party is an enemy or under which there is an obligation to render services for the benefit of the enemy. Rowlatt J. had to consider a case of a British steamship time

1 Bradley v. H. Newsom, Sons & Co. [1919] A. C. 16.
2 (1916] 2 A. C. 397.
3 (1916] 1 K. B. 429.

[1916] 1 K. B. 675.
6 (1919] A. C. 435.

Clapham Steamship Co.'s case (1917] 2 K. B. 639.

chartered to a company who were, if not enemies, at any rate agents for enemies, where both on the principle of Tamplin's case and on the strength of an express suspension clause in the charter-party it was argued by the charterers that they were entitled to the use of the steamship after the war. This contention was however rejected, the learned judge pointing out that the effect of maintaining the charter in a state of suspension secured shipping facilities to the enemy upon the conclusion of peace and thus fortified his commercial position during the war, while hampering the British shipowner in the disposal of his tonnage. These grounds were enough to avoid the contract in toto, and whether the fact that a contrary decision would benefit the enemy after the war as well as during its continuance also had the same vitiating effect upon the contract the learned judge did not consider it necessary to decide. We now know from the Rio Tinto Co.'s cases that it would. 'I do not base my decision,' said Rowlatt J.?, 'on the ground that the maintenance of the charterparty in a state of suspension during the war will benefit the enemy after the war. That may or may not of itself make it illegal. What I say is that it supports the enemy during the war.' The ground of this conclusion is that ‘if at the moment when war breaks out the enemy is entitled to retain his assurance of tonnage to be available at the end of the war his commercial position is fortified even during the war. He is enabled, by the prospect of shipping facilities which he has, to keep together his connection with neutral or enemy merchants overseas, and even (if he likes to speculate on the war being short or if he can obtain contracts with conditions protecting him if it should be long) to enter de praesenti into new contracts to be performed when peace arrives. The value of this passage is that it points out clearly the reason why, at any rate in the case of a pre-war commercial contract which crosses the line of war or otherwise benefits the enemy resident,' we must expect to find its fate to be abrogation and not merely suspension. 1 [1918] A. C. 260. ? (1917] 2 K. B. at p. 646.

3 [1917] 2 K. B. at p. 645.

(3) In a war in which the British Empire is neutral different questions arise. Our municipal law does not treat blockaderunning or the carriage of contraband as illegal”, and our Government recognizes the right of belligerents to check these practices by the infliction of the customary penalties. When therefore a contract for such a purpose is entered into either before or during the war, then at any rate where the party against whom it is sought to enforce it knew or ought to have known of the peculiar nature of the venture, the law will enforce it'. But where the contract is made, for instance, before and not in contemplation of war, or before and not in contemplation of the blockade of the agreed destination, it is believed that the contract must be treated as discharged on the ground that a totally new state of affairs has arisen, and the contract has ceased to involve an ordinary commercial adventure.

Some countenance is lent to this view by the case of The Teutonia-, although the ship was Prussian and Prussia became a belligerent, so that it is not a simple case of a neutral ship bound for a blockaded port. There an English merchant had shipped goods at a South American port on board of a Prussian vessel to be discharged at any port in Great Britain or on the continent between Havre and Hamburg, and the cargo-owner had ordered the goods to be delivered at Dunkirk. The ship arrived off Dunkirk on the 16th of July 1870 and lay to about 14 miles away, the master having heard rumours of war between Prussia and France. Presently a regular pilot, in official uniform, came aboard and told the master that war had been declared two days ago. Accordingly the master took his ship over to the Downs, and on the 19th took her into Dover. As a matter of fact, a state of war did not begin until the 19th, so that the master could have entered Dunkirk on the 16th without committing what for him would be the offence of trading with the enemy. The master then demanded freight before releasing his cargo at Dover. The Privy Council affirming the decision of the Court of Admiralty (Sir Robert Phillimore) held that the master was justified in making further inquiries before entering Dunkirk and that the English cargo-owner could not complain of his taking reasonable and prudent steps for the preservation of his ship; also, that since the charter-party had originally contemplated delivery at Dover as possible and had named a freight for that port, the master was entitled to his freight before releasing the cargo.

1 Kenny, Outlines of Criminal Law (9th ed.) p. 319. 2 See Palace Shipping Co. v. Caine (1907] A. C. 386. 3 See Carver's Carriage by Sea (6th ed.) ss. 245-6. (1872) L. R. 4 P. C. 171.

Geipel v. Smith1 also shows that the outbreak of war by converting what was purely a commercial venture into an attempt to run a blockade discharges both shipowner and charterer from performance. The fact that, as the Court held, a blockade came within the 'restraint of princes' clause in the charter-party would have been enough to protect the shipowner from an action for damages for refusing to attempt to run the blockade or even send his ship to the loading port, but for the reasons discussed in Chapter V upon supervening impossibility of performance the drastic change in the character of the voyage produced by the blockade dissolved the contract entirely.

The effect of the decisions upon a seaman's contract of service about to be discussed also points in the same direction.

(4) If we may deal here with a contract which is not affreightment but closely connected with it, what are the effects of the outbreak of war upon the seaman's contract of service? It is clear from O'Neill v. Armstrong, Mitchell & Co.2 that the outbreak of war may convert an ordinary voyage into an entirely different one by exposing the seaman to risks greater than, and different from, those contracted for, and in addition, if the seaman's country is neutral, to the risk of prosecution under a Foreign Enlistment Act, and thus may justify the seaman in treating his contract as at an end. Further, at any rate if the seaman is in the employment of one of the belligerent governments, as O'Neill was in effect employed by the Japanese Government, he can claim wages for the whole voyage as if he had completed it, on the ground that it was his employer's fault that the service was incomplete. Otherwise, he ceases to be entitled to his wages as is clear from Horlock v. Beall discussed in Chapter V. It might have been thought that on the ground of public policy the principle of O'Neill v. Armstrong, so far as the discharge of the contract is concerned, would not have been applied to the contracts of British seamen on board a British ship at a time when the British Empire goes to war, but in Liston v. Owners of Steamship Carpathian2 certain members of the crew (apparently British subjects but this is not clear) were held to have been justified in treating their contracts as at an end and in demanding increased wages on the ground that what began as an ordinary commercial voyage had lost that character owing to the entirely unforeseen risks of war such as capture, mines, etc. A number of the earlier cases upon the effect of hostile detention on the seaman's contract are considered in Horlock v. Beal from which case it is clear that according to the modern view hostile detention of ship and crew or either of them must almost invariably dissolve the contract with no further right or liability to the payment of wages after the date of the detention.

1 (1872) L. R. 7 Q. B. 404.

2 (1895) 2 Q. B. 418. See also Palace Shipping Co. v. Caine (1907] A. C. 386, where the transaction was regarded by Lord Loreburn L.C. as 'designed to force into a hazardous enterprise, partaking of the risks of war, seamen who had agreed to serve on a peaceful voyage.'

AGENCY. (1) As between the principal and the agent one of whom becomes upon the outbreak of war an “enemy resident,' the contract of agency is dissolved while the proprietary rights are preserved4, and no fresh agency can be created during the war.

(2) As regards third parties, the authority of the agent in this country representing a principal who is an enemy resident is determined ipso facto by war as by the principal's death or insanity, since the outbreak of war renders the principal 1 [1916] 1 A. C. 486.

2 [1915] 2 K. B. 43. 3 Supra. 4 Hugh Stevenson & Sons v. A.-G. für Cartonnagen Industrie [1918] A. C. 239.

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