Sivut kuvina
PDF
ePub

The expression ‘frustration of the adventure' is also familiar in marine insurance cases; see, for instance, Becker, Gray & Co. v. London Assurance Corporation?. In a charter-party case?, Bailhache J. defined it as follows: “The commercial frustration of an adventure by delay means, as I understand it, the happening of some unforeseen delay without the fault of either party to a contract, of such a character as that by it the fulfilment of the contract in the only way in which fulfilment is contemplated and practicable is so inordinately postponed that its fulfilment when the delay is over will not accomplish the only object or objects which both parties to the contract must have known that each of them had in view at the time they made the contract, and for the accomplishment of which object or objects the contract was made.'

We must, therefore, before entering upon an examination of the war cases, examine this commercial doctrine of the 'frustration of the adventure,' and discover its source and its limits. Such a doctrine would surely have sounded to the ear of Mr Justice Blackburn, who delivered the judgment of the Court of Queen's Bench in Taylor v. Caldwell, as dangerously lax, though at a later date, as we shall see, he was prepared to make use of it in commercial cases without apparently feeling it to be in any way in conflict with the severer ratio decidendi of Taylor v. Caldwell.

In Geipel v. Smith3, where a shipowner had before the outbreak of war contracted to carry a cargo of coal from Newcastle to Hamburg, the Court held that he was justified in refusing to load under a charter-party containing an exception of 'restraints of princes and rulers' when the French blockade of the port of Hamburg prevented its performance. This exception not merely protected the shipowner from an action for damages, but operated to release him from the charter. “The object of each of them,' said Blackburn J. (as he then was) at p. 413, 'was the carrying out of a commercial speculation within a reasonable time; and if restraint of princes intervened and lasted so

1 (1918] A. C. 101.

2 Admiral Shipping Co. v. Weidner, Hopkins & Co. [1916] 1 K. B. at p. 436; (1917] 1 K. B. at p. 242. 3 Supra.

long as to make this impossible, each had a right to say, “Our contract cannot be carried out”; and therefore the shipowner had a right to sail away, and the charterer to sell his cargo or refrain from procuring one, and treat the contract as at an end.' Again, Lush J. said at pp. 414-15, 'a state of war must be presumed to be likely to continue so long, and so to disturb the commerce of merchants, as to defeat and destroy the object of a commercial adventure like this.' Taylor v. Caldwell is not mentioned.

Two years later, in Jackson v. Union Marine Insurance Co.1, the Exchequer Chamber had to decide in an action upon a policy of insurance whether there had been a loss of chartered freight by perils of the seas. The shipowner undertook by charter-party dated in November 1871 to proceed from Liverpool to Newport (Mon.) with all possible dispatch (dangers and accidents of navigation excepted), and there load a cargo of iron rails and carry them to San Francisco. On the way round from Liverpool the vessel went aground on January 3, 1872, and was got off on February 18 in such a condition that her repairs would not be completed until the end of August. Meanwhile, on February 15, the charterer repudiated the contract and chartered another ship. The effect of the delay would have been to substitute an autumn for a spring voyage, which meant a different adventure. The Court held that the shipowner could not have maintained an action against the charterer for not loading, and therefore had sustained a loss of chartered freight by perils of the seas. The finding of the jury upon which the majority judgment of Baron Bramwell is based was that 'the time necessary to get the ship off and repairing (sic) her so as to be a cargo-carrying ship was so long as to put an end in a commercial sense to the commercial speculation entered into by the shipowner and charterers,' and so far from being deterred by the severer principles laid down in Taylor v. Caldwell, the Baron says that it ‘is a strong authority in the same direction.' Mr Justice Blackburn (as he then was), who delivered the judgment of the Court of Queen's Bench in

i Supra.

Taylor v. Caldwell, concurred in Baron Bramwell's judgment in Jackson v. Union Marine Insurance Co.1 The fact that these cases of maritime ventures involve the construction of special clauses in charter-parties and similar documents is apt at first sight to obscure their bearing upon the general principles of the discharge of contracts, but a few words from Baron Bramwell's judgment in Jackson's case put these special clauses in their proper light. At p. 143 he said: “The shipowner, in the case put, expressly agrees to use all possible dispatch: that is not a condition precedent; the sole remedy for and right consequent on the breach of it is an action. He also impliedly agrees that the ship shall arrive in time for the voyage: that is a condition precedent as well as an agreement; and its non-performance not only gives the charterer a cause of action, but also releases him. Of course, if these stipulations, owing to excepted perils' (as actually happened in this case) ‘are not performed there is no cause of action, but there is the same release of the charterer.' Here lies the point in Jackson's case for us. The excepted perils (*dangers and accidents of navigation') protect the shipowner from an action, but if the contract is such that the Court will imply a term that the vessel will arrive to load at a certain time, then they will not protect him from the right of the charterer to a discharge of the contract if that term is not fulfilled. It is the implied term that is of interest for our present purpose. Again, on p. 144, speaking of the excepted perils, he says: “They excuse the shipowner but give him no right. The charterer has no cause of action, but is released from the charter. When I say he is, I think both are. The condition precedent has not been performed by default of neither. It is as though the charter were conditional on peace being made between countries A and B, and it was not.'

In Dahl v. Nelson1 the House of Lords held that a shipowner who had undertaken to take his vessel and her cargo 'to the X Docks, or as near thereto as she can safely get,' and found when she arrived outside the docks that she must wait at least five weeks, was entitled to call upon the charterer to take

i Supra.

delivery outside the X Docks at the charterer's expense. Five weeks would have been an unreasonable period to wait, and 'in matters of business a thing is said to be impossible when it is not practicable, and a thing is impracticable when it can only be done at an excessive or unreasonable cost1.'

In all these cases of maritime ventures the judgments, in so far as they rest upon precedent and not merely upon a businesslike construction of a written contract, rely upon an entirely different line of authority from that under consideration in Taylor v. Caldwell. The arguments have a definitely maritime flavour, and any references to the ordinary principles of the common law affecting discharge of contract are apologetic.

We are now in a position to approach the war cases, and if the journey so far has lain over too familiar ground, some indulgence may be sought on the plea that the events of the past four and a half years have tended to set up a new standard of legal memory and to make pre-war law more distant from us than the mere lapse of time would justify.

In the first place our attention is claimed by three decisions of the House of Lords, Horlock's case and Tamplin's case3 in 1916, and the Metropolitan Water Board's case4 in 1917. In the first and third of these cases the interruption of the performance discharged the contract. In the second it did not.

In Horlock's case the plaintiff sued upon an allotment note given by her husband, a seaman on board the defendant's vessel, the Coralie Horlock, which had the misfortune to be in the port of Hamburg upon the outbreak of war, and was detained with her crew by the German authorities, at any rate until 1916 and probably throughout the war. The House of Lords, reversing the decision of Rowlatt J., and of the Court of Appeal, held that as from the date of the detention the further performance of the contract became impossible, and that the defendant was not liable to pay the wages of the crew after the detention. The majority judgments rest partly on Taylor v. Caldwell and the line of authority developed from that case and partly on the doctrine of frustration of voyage associated with the case of Jackson v. Union Marine Insurance Co.1 The fact that these two currents of authority are (or were) distinct though not (or at any rate no longer) in conflict is acknowledged by Lord Shaw in the passage in Horlock's case previously quoted?. Lord Parmoor's dissenting judgment rests mainly upon the case of Beale v. Thompson3, decided by the House of Lords in 1813 upon the effect of hostile detention which lasted for a period of about six months and then terminated, whereupon the seamen took part in the remainder of the voyage.

1 Maule J., in Moss v. Smith (1850) 9 C. B. at p. 94, a case of constructive total loss: cited by Lord Blackburn in Dahl v. Nelson (1881) 6 App. Cas. at p. 52.

2 Horlock v. Beal (1916] 1 A. C. 486.

3 F. A. Tamplin Steamship Co. v. Anglo-Mexican Petroleum Products Co. (1916] 2 A. C. 397.

4 Metropolitan Water Board v. Dick, Kerr & Co. (1918] A. C. 119; see also Bank Line, Limited v. Arthur Capel & Co. (1919) A. C. 435.

Tamplin's case dealt with a time charter whereby the owners of the British tank-steamship F. A. Tamplin chartered her for five years from December 1912 to the charterers for the purpose of carrying oil or other suitable cargo within certain specified geographical limits, paying the shipowner monthly hire. In February 1915 the steamer was requisitioned by the British Admiralty, and by means of structural alterations converted into a troopship. The shipowners thereupon claimed that the contract was determined or suspended by these acts of the British Government; the charterers, who were willing to continue to pay the agreed hire, resisted this claim. Article 20 of the charter-party was a common form of exceptions clause, enumerating amongst many other perils and contingencies 'restraints of princes, rulers, and peoples,' which clearly comprise a requisition by the Admiralty. The House was divided, not upon the principles of law to be applied, but upon their application to the facts of this case. Lord Parker delivered the principal majority judgment in favour of the charterers; Lord Buckmaster L.C. concurred in it; and Earl Loreburn delivered a less elaborate judgment on the same lines. Lord Parker, after quoting the Taylor v. Caldwell line of authority

(1916] 1 A. C. at p. 513. 3 4 East, 546; 1 Dow, 299.

1 Supra.

« EdellinenJatka »