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by the steamship Orlando at Alexandria... during the month of January 1900.' The Orlando was stranded in December 1899, and, although she existed in January 1900, she did not exist as a cargo-carrying ship. The Court of Appeal held by a majority that the contract was subject to the condition that the parties should be excused if before breach the Orlando should cease to exist as a cargo-carrying ship without the defendants' default, and so the plaintiffs failed in their action for damages for failure to ship the cargo under the contract.

So far then we find the discharging effect of supervening impossibility of performance confined to the perishing of a person or of a thing which is the subject-matter of the contract, or stands in essential relationship to it, as did the Orlando in the cotton-seed case. It remained for King Edward VII to afford the occasion for the next extension of the doctrine. Amongst the group of Coronation Seat cases to which the illness of that monarch in June 1902 gave rise, Krell v. Henry1 is perhaps the most important. The defendant had agreed to hire a flat in Pall Mall for two days, the 26th and 27th of June, and had paid a deposit. The letters exchanged between the parties contained no reference to the procession, but it was obvious from all the surrounding circumstances (including previous conversation with the plaintiff's house-keeper) that the flat was hired for the purpose of viewing the procession. When the King's illness made it impossible for the procession to take place on those days, the defendant declined to pay the balance of the rent, and made a counter-claim (abandoned in the Court of Appeal) for the deposit already paid. That Court held that the Coronation procession was the foundation of the contract, just as the continued existence of the Surrey Music Hall was the foundation of the contract in Taylor v. Caldwell, and that its non-happening without the defendant's default excused him from the performance of the contract. But this doctrine must not be thought to cover the case where the event, which failed to happen, e.g. the Royal Naval Review at Spithead on June 28, 1902, was not the foundation of the contract. The review was merely the motive which induced the defendant to charter the plaintiff's vessel 'for the purpose of viewing the naval review'(which was cancelled),‘and for a day's cruise round the Fleet' (which remained anchored at Spithead)”.

1 [1903] 2 K. B. 740 (C. A.).

One further point was made clear in the Coronation Seat cases, and that is that the non-happening of an event which is held to be the foundation of a contract crystallizes the relations of the parties to the contract at the time when it ought to have happened and failed to happen. “The loss must remain where it was at the time of the abandonment.' The supervening impossibility does not affect rights, e.g. to the payment of money, already acquired, and does not enable a party who has paid money under the contract to recover it?. The rule 'treats the contract as a good and subsisting contract with regard to things done and rights accrued in accordance with it up to that time; but, as the basis of the contract has failed, it excuses the parties from further responsibility under it.' In Krellv. Henry4 Vaughan Williams L.J.said of Nickollv. Ashton: ‘Whatever may have been the limits of the Roman law,' this case 'makes it plain that the English law applies the principle not only to cases where the performance of the contract becomes impossible by the cessation of the existence of the thing which is the subjectmatter of the contract, but also to cases where the event which renders the contract incapable of performance is the cessation or non-existence of an express condition or state of things going to the root of the contract and essential to its performance.' In Nickoll v. Ashton the reference to shipment by the Orlando is express, but we shall see later that it would now be safe to add 'or implied.' In citing this passage in Horlock's cases, Lord Shaw states this view to be 'in entire accord with that doctrine of frustration of voyage which has become fully accepted since the case of Jackson v. Union Marine Insurance Co.®, with the doctrine underlying Taylor v. Caldwell, and with sound legal principle.'

1 Herne Bay Steamboat Co. v. Hutton (1903] 2 K. B. 683 (C. A.).

2 Civil Service Co-operative Society v. General Steam Navigation Co. (1903] 2 K. B. 756 (C. A.).

3 Chandler v. Webster (1904) 1 K. B. 493 (C. A.).
4 (1903] 2 K. B. at p. 748.
6 (1916] 1 A. C. at p. 513.

6 (1874) L. R. 10 C. P. 125.

Earl Loreburn in the passage quoted below asserts that the principles applicable in cases of maritime ventures are the same as in others, but it is believed that, historically speaking, it would be more correct to say that if the principles are the same now, it is mainly due to the maritime venture cases that this is so.

The foregoing is a very brief review of the pre-war development of the ordinary common law principles of supervening impossibility of performance of contract. Before turning, however, to the war cases, there is another current of authority deriving itself from a different source but ultimately coalescing, notably under pressure of the war cases, in the stricter common law principles; not only coalescing in them but modifying them in the way in which ever since the days of Lord Mansfield the need of catering for the business man has broadened the common law. It has only been in this way that the common law has been able to maintain its position as one of the two great branches of English law, united or 'fused' since 1873. Lord Mansfield's foresight thus avoided the mistake made by the later medieval common lawyers and by admitting the influence of a second equity (the equity of the laws merchant and maritime) secured the future of his science and a sphere of influence which has never ceased to expand. A few words from a case decided in the House of Lords in 1916 to which we shall return later1 mark this coalescence. “When this question' (supervening impossibility of performance), says Lord Loreburn, ‘arises in regard to commercial contracts, as happened in Dahl v. Nelson, Donkin & Co., Geipel v. Smith3, and Jackson v. Union Marine Insurance Co.4, the principle is the same and the language used as to “frustration of the adventure” merely adapts it to the class of case in hand. In all these three cases it was held, to use the language of Lord Blackburn, that a delay in carrying out a charter-party, caused by something for which neither party was responsible, if so great and long as to make it unreasonable to require the parties to go on with the adventure, entitled either of them, at least while the contract was executory, to consider it at an end.''

1 F. A. Tamplin Steamship Co. v. Anglo-Mexican Petroleum Products Co. (1916] 2 A. C. at p. 404. 2 (1881) 6 App. Cas. 38.

8 (1872) L. R. 7 Q. B. 404. 4 (1874) L. R. 10 C. P. 125.

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. Smiths, 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.

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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., 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

1 Supra.

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