bargo, with a British cargo of fish on board, the cargo was taken out and restored; and upon the restoration of the ship the learned Judge of the Court of Admiralty held the merchant not to be liable to the freight, as I have mentioned before (s).

3. Of Blockade of the Port of Departure.

The effect upon subsisting contracts, of blockade of the port of departure, does not appear to have been directly decided in our Courts; but after much discussion in the Courts of America, it has been considered, on the principles established in the cases above cited, not to dissolve a contract of affreightment, but merely to operate as a temporary suspension of its performance.

"This," says Chancellor Kent (t), "was the decision in the case of Palmer v. Lorillard (u), by the Court of Errors, of New York, in which the doctrine was extensively examined; and it was shown by a reference to the foreign ordinances and the soundest classical writers on maritime law (a), that the master, in the case of such an invincible obstacle of a temporary nature to the prosecution of the voyage, is entitled to wait for the removal of it, so that he may earn his freight, unless the cargo consists of perishable articles which cannot endure the delay. He stands upon a principle of equity which pervades the maritime law of Europe, if he refuses to surrender the cargo to the shipper without some equitable allowance in the shape of freight for his intermediate service."

Judge Story, however, says, that the question whether the master is entitled to retain the cargo until a compensation in lieu of freight be made to him, or be left to his remedy against the merchant by an action on the case, is still open to discussion.

When a blockade has been publicly notified to the government of a country, parties in that country entering into contracts after such notification must be taken to have knowledge of its existence (y); and although such a notification does not, proprio vigore, bind the subjects of any state but that to which it is addressed, yet in a reasonable time it will affect neighbouring states with knowledge as a reasonable ground of evidence. Accordingly, where a vessel belonging to Bremen was captured on her voyage outward from Amsterdam, then in a state of blockade, and it was pleaded in her behalf that the blockade existed de facto only, and that no notification of it had been made to the Hanse Towns, Lord Stowell (2) condemned

(s) The Isabella Jacobina, 4 Rob. Ad. Rep. 77.

(t) Commentaries, Edinburgh edit. p. 216. (u) 16 Johns. Rep. 348.

(x) Ordin. de la Mar, liv. 3, tit. 3, Fret, art. 15, and Charte partie, art. 8; Valin, p. 1; Pothier, Charte-partie, nums. 69, 100, 101; Laws of Oleron, art. 4; Consolat. par Boucher, chap. 80, 82, 84; Roccus, de Nav. p. 54; Jacobson's Sea Laws, by Freck.

(y) Medeiros v. Hill, 8 Bing. Rep. 231. Naylor v. Taylor, 9 B. & C. 718. Harriett v. Wise, 9 B. & C. 712. The doctrine of blockade, as a branch of the Law of Nations, will be found very ably discussed in "Commentaries on the Law of Nations, by William Oke Manning."

(2) The Adelaide, 2 Rob. Ad. Rep. 111. The Tutela, 6 Rob. Ad. Rep. 177.

the ship, and said, "At Amsterdam it must have been a subject of general notoriety that the port was legally considered by the English in a state of blockade; and it is impossible that it should not have come to the knowledge of this Bremen man. It is not to be said by any person, although I know a blockade exists, yet because it has not been notified to my Court I will take out a cargo.' If it was known to every Dane and Swede, it is impossible that it should not be known to this man. It is not more likely to have been unknown to this vessel, from the circumstance of its being a Bremen ship, when we consider the particular relation which Bremen bears to the sovereign of this country."

The general rule is, that by egress a blockade may be held to have been broken without proof of notice; those within a blockaded port are presumed to be necessarily apprised of the fact, but persons entering a place under blockade de facto only, are entitled to warning, although not excused (a), if affected with knowledge of the fact. Vessels which have gone into a blockaded port before the blockade, may be at liberty to retire, but not to carry out a cargo unless one carried in by them before the blockade, for the object of the blockade is to cut off all communication of commerce with the blockaded port. A ship coming out of it, is in the first instance liable to seizure, and the claimant to obtain release must give very satisfactory proof of the innocency of his intention (b).

A ship originally neutral, upon which no suspicion of enemy's property can attach, may be transferred by one neutral to another in a blockaded port (c), but it is otherwise with a ship which was the property of the enemy at the commencement of the war; and that fact, without clear proof of the contrary, will be presumed against a ship coming out of a port under blockade (d).

4. Of Blockade of the Port of Destination.

With respect to blockade of the port of destination, it has been decided by the Supreme Court of New York, that it operates a complete dissolution of the contract (e). That decision proceeded on the broad ground, that what has become unlawful by the general law of nations, cannot be lawfully done by the subjects of any particular state. The question does not appear to have directly arisen in our Courts of Common law, but the general principle has been acted upon by Lord Stowell (f), and was assumed by the courts of King's Bench and Common Pleas in the cases which will be presently cited.

But to produce this effect it must be a real and effective-not a nominal or relaxed blockade (g).

(a) The Vrouw Judith, 1 Rob. 150. The Tutela, 6 Rob. 177. The Juffrouw Maria, 3 Rob. 147.

Cremidi

(b) The Frederick 1 Rob. 86. r. Powell, 11, Moore P. C. C. 88. (c) The Potsdam, 4 Rob. Ad. Rob. 89.

(d) The Vigilantia, 6 Rob. Ad. 122. The General Hamilton, 6 Rob. Ad. 61. (e) Scott v. Lubby, 2 Johns. Rep. 336. (f) The Tutela, 6 Rob. Ad. Rep. 177. (g) The Neptunus, 2 Rob. Ad. Rep. 110. The Adelaide, ibid. 111.

"A blockade," said Lord Stowell," may be more or less rigorous, either for the single purpose of watching the military operations of the enemy and preventing the egress of their fleet, as at Cadiz, or on a more extended scale, to cut off all access of neutral vessels to that interdicted place, which is strictly and properly a blockade, for the other is in truth no blockade at all, so far as neutrals are concerned. It is an undoubted right of belligerents to impose such a blockade, though a severe right, and as such not to be extended by construction. It may operate as a grievance upon neutrals, but it is one to which by the law of nations they are bound to submit. Being, however, a right of a severe nature, it is not to be aggravated by mere construction. If the ships stationed on the spot to keep up the blockade will not use their force for the purpose, it is impossible for a Court of Justice to say there was a blockade actually existing at the time so as to bind the vessel" (h).

When a blockading squadron is driven off by adverse winds, neutrals are bound to presume it will return, but not so if driven off by a superior force (i). And though the object of the blockade is to prevent all commerce with the place blockaded, it will not operate beyond the limits within which the blockading force has the means of making it effectual. Thus, the blockade of Amsterdam was held not to be violated by shipments to Embden with an ulterior destination by land to Amsterdam, which the blockading squadron had no power of preventing (k).

There must also, to render the voyage illegal, be a premeditated intention to break the blockade. If it be part of the original intention to inquire as to the continuation of the blockade at some port of the blockading country, a vessel may lawfully clear out for a blockaded port (1).

In the recent case of Medeiros v. Hill (m), which was an action of assumpsit against a shipowner for not proceeding to Terceira pursuant to charter-party, the defence was, first, that at the time the charterparty was entered into, Terceira was in a state of blockade by the government of Portugal, which blockade had been notified to the English government, and consequently that the voyage was an illegal voyage; and, secondly, that although the voyage might not be, strictly speaking, illegal (n), the circumstances of the blockade operated as an excuse for the non-performance of the contract.

(h) The Juffrouw Maria, 3 Rob. Ad. Rep. 147.

(i) The Hoffnung, 6 Rob. 112. (k) The Triheten, 6 Rob. Ad. Rep. 65. The Ocean, Rob. Ad. Rep. 237.

(1) The Columbia, 1 Rob. 154. The Shepherdess, 5 Rob. 262. The Neptunus, 2 Rob. Ad. Rep. 110. Naylor v. Taylor, 9 B. & C. 719. The Rolla, 6 Rob. 364. Dalgleish v. Hodgson, 7 Bing. 495.

(m) 8 Bing. Rep. 231.

(n) It has been recently decided that contracts of partnership for blockade running,

ex parte Chavasse, 34 L. J. (N. S.), Bankr. 17, and for service as a marine on board a ship to be employed in blockade running, or for carrying on trade with, or introducing contraband of war, into a blockaded port, The Helen, 35 L. J. (N. S.); Aston, p. 2, though illegal in the sense of exposing the parties performing them to such penalties as are sanctioned by international law, are not illegal in the sense that the performance is a breach of municipal law, or that they are not enforceable by a court of the loci contructus.

Upon these points Chief Justice Tindal, delivering the judgment of the Court of Common Pleas, observed, "The case of the Neptunus (n), which was cited in support of the first objection, establishes, that it is illegal to attempt to enter a blockaded port in violation of the blockade, and that after notification of the blockade, the act of sailing to a blockaded port with the intention of violating the blockade, is in itself illegal. But neither that case nor any other that can be cited has laid it down that the mere act of sailing to a port which is blockaded at the time the voyage is commenced, is any offence against the law of nations, where there is no premeditated intention of breaking the blockade, if it shall be found to continue in force when the ship arrives at the port. Any such determination would be destructive, in many instances, of the fair commercial speculations of neutral merchants, to whom it might be of the first importance to possess the opportunity of introducing their goods into the port which had been blockaded, at the very earliest moment after such blockade had been relaxed. In the present case, there was no evidence of any understanding between the contracting parties that the defendant was to break the blockade of Terceira, in order to deliver his outward cargo. Indeed, the fact of the blockade did not appear to enter into the contemplation of either party until after the defendant's son the captain of the vessel, had signed the charter-party for his father; and, upon the evidence, the blockade had ceased to be a real and effective blockade long before the charter-party was entered into.

"We see, therefore, no reason for holding the contract to be void on the ground of illegality.

"As to the second point, it is sufficient to say, that as the blockade had been publicly notified to the government of England, the contracting parties must be taken to have entered into the charter-party with an equal knowledge of its existence; no difficulty, therefore, attending the performance of the contract can be set up as an excuse for its non-performance. In that case the rule of law laid down in Paradine v. Jane (o) applies, viz.: "That where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by the contract.""

This judgment is in conformity with the opinion delivered by Lord Stowell, in the case of an American ship (p), condemned by him for an attempted breach of the blockade of Havre. Adverting to that opinion, Lord Tenterden, in the case of Naylor v. Taylor, an action on a policy of insurance, expressed himself as follows: "We think there is no ground for saying that this voyage as insured was illegal in its commencement; indeed, according to the opinion of Lord Stowell, in the case of the Shepherdess, the vessel might have sailed to Buenos Ayres, without contravening the laws of nations, provided it was a part of the original intention to inquire as to the continuance of the blockade at some port of the blockading country; and in this case

(n) 2 Rob. Ad. Rep. 110.

(0) Alleyn's Rep. 27.

(p) The Shepherdess, 5 Rob. Ad. Rep. 262,

inquiry might have been made at Monte Video, or of any of the Brazilian ships met in the river Plate, and the policy is framed upon a doubt whether the blockade would continue at the time of the ship's arrival at the Plate, and does not indicate any intention to break the blockade" (q).

But, subject to the exception to be presently noticed, a neutral merchant is not at liberty to speculate on the greater or less probability of the termination of the blockade, and say to the master-" If you don't meet with the blockading force, enter; if you do, take warning, and proceed elsewhere." The rule is, that after knowledge of an existing blockade, it is not lawful to go to the very station of blockade under pretence of inquiry (r). Here in Europe, where the different states have constant intelligence, and may be said to live as it were under one roof, it never can be permitted that a ship shall sail with a knowledge of the blockade under pretence of further inquiry at the spot blockaded; and lingering near a blockaded port, when it shows an intention of entering the port, is as much a breach of the blockade as continuing in the course to it after notification (8).

On this question of intention (t), a distinction has been taken between vessels sailing from a great distance to a blockaded port, and vessels sailing to it from ports in its vicinity. An American ship, taken by the French, on a voyage from America to Amsterdam, was retaken by the English, and proceeded against in the Admiralty for an intentional breach of the blockade of Amsterdam.

"I certainly," said Lord Stowell, "cannot admit that Americans are to be exempt from the common effect of a notification of a blockade existing in Europe. But it is not unfair to say, that, lying at such a distance, it is not unnatural that they should send their ships conjecturally upon the expectation of finding the blockade broken up, after it existed for a considerable time. A very great disadvantage indeed would be imposed upon them if they were bound rigidly by the rule which justly obtains in Europe, that the blockade must be conceived to exist, till the revocation of it is actually notified. If this rule were rigidly applied, the effect of the blockade would last two months longer upon them than upon the trading nations of Europe. That American merchants should therefore send their ships upon a fair conjecture that the blockade had, after a long continuance, terminated, and for the purpose of making fair inquiry whether it had so determined or not, is, I think, not exceptionable, though I certainly agree that this inquiry should be made, not in the very mouth of the river or estuary, from the blockading vessels, but in the ports that lie in the way, and which can furnish information without furnishing opportunities of fraud." But evidence of innocent intentions will be of little avail against the actual conduct of the master whom the owners have appointed as their agent, and by whose imprudence or fraud they must be bound. "It would," said Lord Stowell, "be the easiest thing in the world to put on board instructions perfectly smooth and unob

(9) Naylor v. Taylor, 9 B. & C. 719. (r) The Spes and Irene, 5 Rcb. 76.

The Elizabeth, 1 Edw. 198. (t) The Betsey, 1 Rob. Adm. Rep. 332.