an action for damages; but it will lie upon the master to justify such an apparent breach of contract. In 1870 the German vessel San Roman (h), under charter from Vancouver's Island to the United Kingdom, put into Valparaiso to repair. Whilst there the master learned of the war which had broken out between his country and France, and as several French cruisers were in the neighbourhood of the port, he decided to remain where he was. He remained at Valparaiso for three months after completion of his repairs. At the end of that time the fear of capture, owing to the departure of the enemy's cruisers, not being then imminent, he again put to sea. For damages caused by this three months' delay charterers sued the shipowners. The Court held that the master was excused, on the principle that “ an apprehension of capture founded on circumstances calculated to affect the mind of a master of ordinary courage, judgment and experience, would justify delay." The charter-party excepted the act of God, the Queen's enemies, and restraints of princes and rulers. If, however, the delay had been found not to be warranted by the facts, these exceptions would presumably not have availed to protect the shipowners. On the other hand, it seems not unreasonable to suppose that even without such protective provisions the master would have been justified for delay reasonably incurred, either on the ground that he was entitled to take necessary measures to defeat an imminent danger which threatened the fulfilment of his contract and the safety of his ship and cargo; or that his obligations as a German subject required him not to expose the national property to the risk of almost certain capture by the enemy. "It seems obvious," said Mellish, L. J., in The Teutonia (i), "that if a master receives credible information that if he continues in the direct course of his voyage his ship will be exposed to some imminent peril; as for instance, that there are pirates in his course, or icebergs or other dangers of navigation; he must be justified in pausing and deviating from the direct course, and taking any step which a prudent man would take for the purpose of avoiding danger." It should be noticed that the (4) L. R. 3 A. & E. 583; 5 P. C. 301. Vide also The Patria, L. R. 3 A. & E. 436; The Express, ibid. 597; The Heinrich, ibid. 424. (i) L. R. 4 P. C. 171. phrase "the Queen's enemies" existing in an alien charterparty is, on the authority of Russell v. Niemann (j), to be construed to mean the enemies of the sovereign power to which the shipowner is subject. In an action under a time-charter, where the ship had been detained for breach of blockade, Lord Ellenborough decided that freight must be paid during the delay, "in the same manner as if it had arisen from contrary winds or from an embargo" (k). Convoy. In the absence of any stipulation otherwise, any loss or inconvenience consequent on the vessel having to wait for or with convoy must doubtless be borne by the party on whom it falls: wages, provisions, and demurrage by the shipowner; loss of market and of interest, and any deterioration consequent on the delay, by the owner of the goods. Similarly, in the case of delay caused by embargo, blockade, ice, or other circumstances not attributable to the ship or cargo. In Lannoy v. Werry (1), where it had been agreed that the merchants should pay certain sums for each day the vessel should wait for convoy above the space of twenty days in the whole, the Court decided, in effect, that the words "wait for" meant "wait for or with." Considerable delay had been caused after joining convoy by detention of the latter at Lisbon and Falmouth. And in Marshall v. De la Torre (m), where the charter allowed in all forty-one days for awaiting convoy at Portsmouth and discharging at Barcelona, and owing to the direct convoy having been missed, delays occurred at Falmouth and Gibraltar; it was held that no demurrage was due in respect of delays at places other than Portsmouth and Barcelona. Discharge Short of Destination.-It has already been observed (n) that the contract of carriage is, as regards the payment of freight, so far absolute that, to earn his freight, the ship (j) 34 L. J. C. P. 10; also The Teutonia, L. R. 4 P. C. 171; The Heinrich, L. R. 3 A. & E. 424. (k) Moorsom v. Greaves, 2 Camp. 627. (1) 2 Bro. Parl. C. 60; Carver on Carriage, § 635. (m) 1 Esp. 367. (n) P. 415, supra. owner must carry the cargo to the agreed destination. Не may, in certain cases, be absolved from completing his contract, but such an absolution only relates to his liability to pay damages for non-performance, and is beside the question of payment of freight. In The Isabella Jacobina (o), the vessel, of Swedish ownership, bound with a cargo of pilchards from Radstow to Venice, put into Falmouth in distress, and was there detained under an embargo laid on all Swedish vessels. The cargo, it was said, could not await a removal of the embargo, and it was, therefore, given up to the shippers. The Court adjudged no freight to be due, but ordered that the cargo should pay any expenses which might have been incurred on its behalf by the ship. It is, however, apparently to be presumed that if the captain had declined to deliver up the cargo, unless against payment of freight, he would have been within his rights; but it would seem as though. he had voluntarily parted with his cargo before demanding freight. In Liddard v. Lopes (p), a contract had been made to carry coals from Shields to Lisbon, freight to be paid on right delivery. Portugal was occupied by the French, and the master being informed of this put into Portsmouth, and there the cargo was, by consent, sold without prejudice. Against the shipowner's claim for pro-ratâ freight and for demurrage whilst his ship was under detention at Portsmouth, Lord Ellenborough decided as follows: "The parties have entered into a special contract, by which freight is made payable in one event only, that of a right delivery of the cargo according to the terms of the contract, and that event has not taken place; there has been no such delivery, and consequently the plaintiff is not entitled to recover; he should have provided in his contract for the emergency which has arisen." In Hunter v. Prinsep (q) a vessel captured by the enemy was recaptured, and was subsequently wrecked at St. Kitts, where the cargo was sold. The shipowner claimed the proceeds in respect (0) 4 Rob. 77. (p) 10 East, 526. (g) 10 East, 378. Vide also Curling v. Long, 1 Bos. & Pul. 634. of pro-ratá freight, but Lord Ellenborough decided against this claim, observing that there had been no right and true delivery, and that if the shipowner had neither earned his freight nor was going to earn it, the freighter was entitled to possession of the goods. In Smith v. Wilson (r) a vessel under charter from the United Kingdom to Monte Video and back again, was captured on the way out and brought to England. The ship was restored, but in consequence of the delay the charterer refused to proceed with the contract. It was decided by the Court that, inasmuch as no cargo had been delivered in terms of the contract, no freight was due, delivery in the United Kingdom being a condition precedent to payment. The fact that the master was ready and willing to proceed did not get over this condition precedent: if the vessel had proceeded freight might still not have been earned. In this case the claim seems to have been solely for freight, eo nomine, not, as might have been expected, for damages for breach of contract. If the cargo be unlivered short of the destination by order of the Court, full freight is due, and the contract is at an end. So, at least, it was laid down by Sir W. Scott; and until a later decision to the contrary (The Newport, to be mentioned presently), no doubt seems to have existed as to this principle. Thus, in The Hoffnung (s), the vessel, on account of her cargo, had been brought in by captors and was unlivered by authority of the Court. The cargo was ultimately restored, but the master claimed to receive his freight, refusing at the same time to proceed on his voyage. Sir W. Scott decided that "the act of unlivery is binding on the parties, and must be taken to be decisive in producing a complete dissolution of the contract." Full freight, therefore, was held to be due. "At the moment of separation," said the learned judge, "the vessel acquires a right to proceed" (t). In The Newport (u), the vessel, whilst under charter to Ambriz out and home, was seized and condemned by the vice-admiralty court at St. Helena for being engaged in the slave trade, the cargo having been unladen and warehoused by order of the Court. An appeal was lodged against this condemnation, and the decree of the local court was, more than three years afterwards, reversed with costs and damages. The latter were claimed under various heads, one of which was that owing to his having been prevented from fulfilling his contract, the shipowner was liable to repay charterers the sum of 4007. advanced by them. The question of damages having been referred to the Registrar (H. C. Rothery), he found in favour of this item as follows:-"I am inclined to hold that the circumstances of the capture, detention, and even sale of The Newport amount to a mere temporary detention; that they do not fall within the exceptions specified in the charter-party, and that the shipowner was bound, on his property being restored to him, to fulfil his contract by furnishing a suitable ship to carry on the cargo to Ambriz, if so required by the charterers, and on his failing to do so, that the charterers have a right of action against him." Whether this opinion of the learned Registrar will ultimately be found to prevail over the judgments of Sir W. Scott may perhaps be doubted. Default of Charterer at Port Short of Destination.-If the vessel, either on account of capture, recapture, or other cause, be at a port short of her destination, and for any reason unconnected with the ship the cargo be not ready to proceed when the master is ready and willing to carry it on, the contract is deemed to be dissolved owing to the fault of the cargo, and full freight becomes due. Thus, in The Racehorse (v), the vessel, bound from Lisbon to an Irish port with fruit and wine, having been captured, was recaptured and brought into Falmouth. The master having been taken off by the first captors, and the owner being dead, no claim for the cargo was put forward till 17th July, the vessel having been restored by consent on 2nd July. In face of these facts it would, the Court considered, have been unreasonable to require the ship to stay and await the result of the proceedings after her own release; for the cargo might be condemned, (v) 3 Rob. 101. Vide also Cargo ex Galam, 33 L. J. Ad. 97; Blasco v. Fletcher, 32 L. J. C. P. 284; The Soblomsten, L. R. 1 A. & E. 293. |