case? law, are propositions which admit of no doubt. Neither can it be questioned, that if, from a change in the political relations and circumstances of this country, with reference to any other contracts which were fairly and lawfully made at the time, they have become incapable of being any longer carried into effect without derogating from the clear, public duty which a British subject owes to his sovereign and the state of which he is a member; the non-performance of a contract in a state so circumstanced is not only excusable, but a matter of peremptory duty-an obligation on the part of the subject. But in order to found this new public duty, which is to supersede the performance of his former private one, it is necessary that an actual change in the political relations of the two countries should have taken place, and that the danger to result to the public interest of his own country, from an observance of the contract, should be clear, immediate, and certain: in short, such a state of circumstances must be shown to exist, as that the contract is no longer capable of being performed by him, without criminal compromise of his public duty. Can anything of this kind be said, with truth, to exist in the present No actual change in the political relations of Great Britain and Russia had then taken place. The danger to result from remaining at Cronstadt was neither immediate nor certain; in point of fact, it attached only at the distance of many weeks afterwards; and no one can venture to suggest, even in argument, that the loading in question might not have been completed without any criminal compromise of public duty. Indeed, to allow a man to withdraw himself from the performance of a distinct positive contract, upon the ground of some speculative inconvenience, suggested as likely to result from such performance to the general interests of the state, would afford great encouragement to disingenuous subtleties and refinements upon subjects of this kind, and would render all reliance upon the solemn stipulation of parties in commercial matters precarious and insecure, and which encouragement this court would most reluctantly lend its assistance to administer. For the reasons already given, such an argument has no foundation to rest upon in the present case. Therefore, neither upon this ground, any more than upon the others already considered, is the plaintiff precluded from a right to recover" (0). (0) Atkinson v. Ritchie, 10 East, 530. See ante, p. 320; and Pole v. Cetcowich, 7 C. B. (N. S.) 430; 31 L. J. C. P. 102. CHAPTER VII. OF THE LIMITATION OF THE RESPONSIBILITY OF THE OWNERS AND MASTER; AND HEREIN, SECT. 1. Of Foreign Laws and Ordinances on this Subject, p. 348. 2. Provisions of 7 Geo. 2, c. 15, p. 349. 3. Provisions of 26 Geo. 3, c. 86, p. 351. 4. Provisions of 53 Geo. 3, c. 159, p. 351. 5. Cases upon these Statutes, p. 353. 6. The provisions of 17 & 18 Vict. c. 104; and 25 & 26 Vict. c. 63, p. 354. 7. Mode of procedure under these Acts, p. 356. 8. Liability of Master and Seaman in those capacities, p. 358. 1. Of Foreign Laws and Ordinances on this Subject. In considering the instances in which the owners are answerable to the merchant for the loss or damage of his goods, I have hitherto forborne to mention the limits of their responsibility, and have treated them as being responsible up to the full extent of the amount of such loss or damage-and so, both by the civil law and by the common law of England, they formerly were; for, although it was decided (a), at a time when the ransom of ships taken by a foreign enemy, was not contrary to the laws of the realm (b), that such ransom could not be made at a price exceeding the value of the ship and cargo (and the loss of the value of the cargo would fall upon the merchants), yet, until the responsibility of the shipowner for the loss or damage of goods was limited by statute, it was never doubted but that such responsibility was co-extensive with the loss, and the statutes, which have been made to narrow it, are founded upon that supposition. The ancient laws of Oleron, Wisbuy, and the Hanse Towns, contain no proviso on this subject. Nor is any alteration of the rule of the civil law noticed by Roccus (c), although Vinnius, an earlier author, says that, by the law of Holland, the owners are not chargeable beyond the value of the ship and things that are in it (d); in conformity to which principle the French ordinance declares, "That the (a) Helley v. Grant, and Graham and another v. Hall, cited 1 Term Rep. K. B., p. 79. (b) 22 Geo. 3, c. 25, prohibits ransom. was a Neapolitan, was first published in 1655. (d) In Peckium, p. 155, published in 1647, the author cites Grotius, lib. 3, Introduc. ad Jurisp. Bat. c. 1, and lib. 2, De Jure Belli et Pacis, c. 11, n. 13. owners of ships shall be answerable for the acts of the master, but shall be discharged therefrom upon relinquishing their ship and the freight" (e). A similar provision is contained in the ordinance of Rotterdam, made in 1721, which declares, "That the owners shall not be answerable for any act of the master done without their order, any further than their part of the ship amounts to" (f); and by other articles of the same ordinance it appears that each part-owner is liable only for the value of his own share (g). Valin, in his commentary on the French ordinance (h), informs us that the same regulations are also established at Hamburgh (i). 2. Provisions of 7 Geo. 2, c. 15. The earliest provision of the British legislature on this subject was a statute made a few years after the date of the ordinance of Rotterdam, and which was passed in consequence of a petition presented to the House of Commons by several merchants and other persons, owners of ships belonging to the port of London (k), setting forth the alarm of the petitioners at the event of a late action, in which it was determined that the owners were answerable for the valuable merchandise embezzled by the master. The foundation of this limitation is mentioned in the preamble of the statute, which states, "That it is of the greatest consequence and importance to this kingdom to promote the increase of the number of ships and vessels, and to prevent any discouragement to merchants and others from being interested and concerned therein; and that it has been held, that in many cases owners of ships or vessels are answerable for goods and merchandise shipped or put on board the same, although the said goods and merchandise, after the same have been so put on board, should be made away with by the masters or mariners of the said ships or vessels, without the knowledge or privity of the owner or owners, by means whereof merchants and others are greatly discouraged from adventuring their fortunes as owners of ships or vessels, which will necessarily tend to the prejudice of the trade and navigation of this kingdom." It is, therefore, "for ascertaining and settling how far owners of ships and vessels shall be answerable for any gold, silver, diamonds, jewels, precious stones, or other goods or merchandises, (e) Liv. 2, tit. 8, Des Propriétaires, art. 2. The encouragement of maritime commerce, especially among the noblesse, was one of the principal objects of this ordinance. See same book, and tit. art. 1, and Valin's Preface to that title. See also the Code de Com. art. 216. (f) Art. 167; 2 Magens, 107. (i) An extract from the Ordinance of Hamburgh, dated 1731, is given in 2 Magens, but the article containing this provision is not noticed. (k) See Commons' Journals for the year 1733, p. 277. The case referred to by the petition appears clearly to be that of Boucher v. Lawson, cited in part 3, ch. 2, sect. 3. The bill went through both Houses without a division. The clauses directing proportional compensation and relief in equity were introduced in the House of Lords. which shall be made away with by the masters or mariners, without the privity of the owners thereof," enacted "That no person or persons who is, are, or shall be owner or owners of any ship or vessel, shall be subject or liable to answer for, or make good, to any one or more person or persons, any loss or damage by reason of any embezzling, secreting, or making away with by the master or mariners, or any of them, of any gold, silver, diamonds, jewels, precious stones, or other goods or merchandise, which from and after the 24th day of June, 1734, shall be shipped, taken in, or put on board any ship or vessel, or for any act, matter, or thing, damage or forfeiture done, occasioned or incurred, from and after the said 24th day of June, 1734, by the said master or mariners, or any of them, without the privity and knowledge of such owner or owners, further than the value of the ship or vessel, with all their appurtenances, and the full amount of the freight due, or to grow due, for and during the voyage wherein such embezzlement, secreting, or making away with as aforesaid, or other malversation of the master or mariners, shall be made, committed or done; any law, usage or custom to the contrary thereof in anywise notwithstanding" (7). And by the second section of the same statute it was enacted, that if several freighters sustained losses exceeding in the whole the value of the ship and freight, they were to receive a compensation thereout in proportion to their respective losses; and that any one freighter, on behalf of himself and the other freighters, or any part-owner, on behalf of himself and the other part-owners, might file a bill in a court of equity for the discovery of the total amount of the losses, and of the value of the ship, and for an equal distribution and payment. By the third section, if such a bill was filed by or on behalf of the part-owners, the plaintiff was required to make affidavit that he did not collude with the defendants, and offer to pay the value of the ship, and freight, as the court should direct. By the fourth section it was provided and enacted, that nothing in that Act contained should extend, or be construed to extend, to impeach, lessen, or discharge any remedy, which any person or persons then had, or should or might thereafter have against all, every, or any, the master and mariners of such ship or vessel, for or in respect of any embezzlement, secreting, or making away with any gold, silver, diamonds, jewels, precious stones, or merchandise, shipped or loaded on board such ship or vessel, or on account of any fraud, abuse, or malversation of and in such master and mariners respectively; but that it should and might be lawful to and for every person or persons so injured or damaged to pursue and take such remedy for the same, against the said master and mariners respectively, as he or they might have done before the making of that Act. By this statute, therefore, the legal responsibility of the master (1) 7 Geo. 2, c. 15, a. d. 1734. was left unaltered in all the cases before enumerated, and that of the owners also in the case of a robbery committed by persons not belonging to the ship. But where a ship in the river Thames was forcibly plundered of dollars during the night by a gang of robbers, in consequence of information given by one of the mariners of the ship, who afterwards shared the booty, the responsibility of the owners was held not to extend beyond the value of the ship and freight by virtue of this statute (m). 3. Provisions of 26 Geo. 3, c. 86. Immediately after the decision of that case, and in consequence of the danger to which the facts that were disclosed in it showed the owners to be exposed, another petition was presented to the House of Commons (n), on behalf of several owners of ships belonging to London and other ports; and in compliance therewith, another statute was passed (0), fixing the same limits to the responsibility of the owners in the several cases mentioned in the preceding statute, and also in the case of robbery, "although the master or mariners should not be in anywise concerned in or privy to such robbery, embezzlement, secreting, or making away with." This statute also contains the same provisions as the preceding Act, for equal distribution and discovery by bill in equity, and also for remedy against the master and mariners, and (as was mentioned in the preceding chapter) entirely took away the responsibility of the owners in the case of loss or damage by fire (p). 4. Provisions of 53 Geo. 3, c. 159. By 53 Geo. 3, c. 159, this limitation of the responsibility of the owners was still further extended, for it enacted, that no person or persons who was, were, or should be owner or owners, or part-owner or part-owners, of any ship or vessel, should be subject or liable to answer for or make good any loss or damage arising or taking place by reason of any act, neglect, matter or thing done, omitted, or occasioned without the fault or privity of such owner or owners, which might happen to any goods, wares, merchandise, or other thing, laden or put on board the same ship or vessel after the 1st of September, 1813, or which, after the said 1st of September, might happen to any other ship or vessel, or to any goods, wares, merchandise, or other thing, being in or on board of any other ship or vessel, further than (m) Sutton v. Mitchell, 1 Term Rep. K. B. p. 18. (n) See Commons' Journals for the year 1786, p. 296. This Act also was passed without a division in either House of Parlia ment. (0) 26 Geo. 3, c. 86, s. 1. |