1873

JACKSON

v.

UNION MARINE

INSURANCE Co.

engagements of the parties must be construed accordingly, and the obligations of each party will be qualified by the exception.

In the case of Hadley v. Clarke (1), goods had been put on board the defendant's vessel under a contract to carry them for the plaintiff from Liverpool to Leghorn, the dangers of the seas only excepted. Leghorn was then in the possession of the French Republic; and, when the vessel reached Falmouth, an embargo was laid upon her under an order in council, and she remained there under the embargo for more than two years, viz. from July, 1796, until August, 1798. The question was, whether the defendants were bound to carry on the plaintiff's goods. It was contended amongst other things for the defendants, that it was sufficient if they had waited a reasonable time after the embargo was first laid, and that, there being no probability that it would be taken off within a reasonable time, and it in fact lasted for two years, that the contract was at an end. The Court, however, considered that the defendants were not absolved from the contract. Upon this point Lawrence, J., said (2): "The counsel for the defendants were driven to the necessity of introducing into this contract other terms than those which it contains. They contended that the defendants were only bound to fulfil their engagement within a reasonable time, and then argued that, as the embargo prevented the completion of the contract within a reasonable time, the defendants were absolved from the engagement altogether. But it was incumbent on the defendants when they entered into this contract to specify the terms and conditions on which they would engage to carry the plaintiff's goods to Leghorn. They accordingly did express the terms, and absolutely engaged to carry the goods, 'the dangers of the seas only excepted.' That, therefore, is the only excuse which they can make for not performing the contract. If they had intended that they should be excused for any other cause, they should have introduced such an exception into their contract. In Aleyn, p. 27, this distinction is taken,-'Where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him; but, when the party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, not(1) 8 T. R. 259. (2) At p. 267.

1873

JACKSON

v.

UNION

MARINE INSURANCE CO.

withstanding any accident by inevitable necessity, because he
might have provided against it by his contract.' So, in this case,
there was one accident against which the defendants provided by
their contract. They might also have provided against an embargo:
but we cannot vary the terms of this contract, and the defendants
must be bound by the terms of the contract that they have made."
In the case of Touteng v. Hubbard (1), a Swedish vessel belong-
ing to the plaintiffs, and then in London, was chartered to proceed
to St. Michael's and there load a cargo of fruit for London, re-
straints of princes and rulers excepted. The vessel proceeded on
her voyage from London for St. Michael's, and put into Ramsgate
Harbour, where she was detained under an embargo by the British
government upon Swedish vessels for six months, viz. from the
15th of January until the 19th of June. She was then released;
but the season for shipping fruit from St. Michael's was at that
time over, and the charterer refused to load a cargo, on the ground
that the season for shipping fruit had long since passed, and that
the voyage would therefore be wholly useless and nugatory. The
case was twice argued; and the ultimate decision proceeded upon
the ground that the plaintiff, as a Swedish subject, could not
recover from the defendant, a British subject, damages sustained
in consequence of an embargo by the British government upon
Swedish vessels. But, upon the general question, in the judgment
of the Court delivered by Lord Alvanley, there are the following
passages (2): "The only question, therefore, will be, whether the
defendant was bound by the terms of the charterparty to furnish a
cargo to the plaintiff, notwithstanding the intervention of the
embargo. I will first consider for what purpose and for whose
benefit the words 'restraint of princes and rulers during the said
voyage always excepted' were inserted in the charterparty. It
appears to me that they were introduced for the benefit of the
master, not of the merchant, and that the true construction of the
charterparty is this, the captain engages to go to St. Michael's,
restraint of princes excepted, and the merchant engages to employ
him and furnish the ship with a cargo. Lord Kenyon, in the case
of Blight v. Page (3), put this construction on an instrument
(1) 3 B. & P. 291.
(2) 3 B. & P. at p. 298.

(3) 3 B. & P. 295, n.

1873

JACKSON

v.

UNION MARINE

INSURANCE CO.

nearly similar with the present. If, then, this had not been the
case of a Swedish ship hired by an English merchant, the merchant
would have been under the necessity of furnishing the ship with a
cargo
if she had arrived at St. Michael's as soon as she conveniently
might after the embargo was taken off, although, by arriving after
the fruit season was over, the object of the voyage might be
defeated: such is the doctrine in Hadley v. Clarke (1) and Blight
v. Page. (2) I have no difficulty in subscribing to the doctrine
laid down in Hadley v. Clark (1), that a common embargo does
not put an end to any contract between the parties, but is to be
considered as a temporary suspension of the contract only, and
that the parties must submit to whatever inconvenience may arise
therefrom, unless they have provided against it by the terms of
their contract. The object of the voyage might equally have
been defeated by the act of God as by the act of the state, as, if
the ship had been weather-bound until the fruit season was over;
and yet in that case the merchant would have been bound to fulfil
his contract. The principle of Hadley v. Clarke (1) is, that an
embargo is a circumstance against which it is equally competent
to the parties to provide as against the dangers of the seas, and
therefore, if they do not provide against it, they must abide by the
consequences of their contract."

In Hurst v. Usborne (3), a vessel which was under charter by the defendants was delayed by perils of the seas one hundred and fiftytwo days beyond the usual time of the voyage to the port of loading, and the defendants in consequence refused to load her, partly on the ground that she had arrived after the time when the export trade usually took place from the port of loading, viz. Limerick. All the judges were of opinion that the state of the trade at Limerick did not affect the question; and Willes, J., upon this point laid down the law as follows (4): "As to the other question, whether the construction of the charterparty can be affected by the fact that the particular description of cargo could only be supplied at a certain season of the year, the answer to that, I apprehend, is, that the charterparty was probably entered into in the hope that the vessel would arrive at Limerick at that time of the year. But the ques

(1) 8 T. R. 259.
(2) 3 B. & P. 295, n.

(3) 18 C. B. 144; 25 L. J. (C.P.) 209. (4) 18 C. B. at p. 155.

tion is, who takes the risk whether she will or not? Why, the
person
who is to ship the goods takes the risk, unless he stipulates
that the other party shall take it. Here it is not stipulated that
the vessel shall arrive at Limerick by any particular day, but only
that she shall proceed there with all convenient speed. The owner
has performed his contract to proceed to Limerick with all con-
venient speed, when he has done all he could, but has been pre-
vented by dangers of the seas."

In the American case of Allen v. Mercantile Marine Insurance Co. (1), a vessel had been stranded and sprung a leak which took three weeks to repair, during which time she was frozen in by ice, and there was no possibility that the navigation would be free or the vessel be able to continue her voyage for five months. There was the usual exception in the bill of lading of dangers of navigation. The cargo had been delivered up to the shipper free of freight, and the action being brought against the underwriters for loss of freight, it was held that both the stranding and the closing of the navigation were dangers of the navigation within the exception of the bill of lading, and excused the delay which would necessarily ensue in making delivery of the cargo at the port of destination, and did not afford a sufficient excuse for the voluntary surrender of the cargo to the shipper free of freight, and that the underwriters on freight therefore were not liable. The Court there expressed their opinion that the repairs must be done within a reasonable time; and that no doubt would be so; but, unless the owner failed to complete them within a reasonable time, there would be no breach of contract by him. In that case it was also held that, so long as the vessel is capable of completing the voyage and thus earning the freight, neither the question of profit and loss to the owner nor of the length of time required to deliver the cargo, can so excuse the surrender without payment of freight as to render the insurers liable as for a loss; and that neither an injury to the vessel not sufficient to create a total loss, but repairable within a reasonable time, nor the act of God in closing navigation by ice, would authorize the abandonment of the voyage; but that either would authorize a detention of the goods until the voyage could be completed.

(1) 5 Hands Ap. Cas. (now cited, by authority, as 44 New York Rep.) 437.
VOL. VIII.
2 Z

2

1873

JACKSON

v.

UNION MARINE INSURANCE CO.

The case of Blasco v. Fletcher (1) was relied upon by the plaintiff. It was an action for the freight of goods which during the voyage and in consequence of serious damage to the ship had been taken possession of by the charterer and sold by him: but the decision really turned upon the point, whether the charterer had authority from the ship-owner to act as he had done, and which depended upon whether he had adopted a reasonable course under his special authority; and, he having so acted and adopted reasonable course for the interests of all parties, it was held that no claim for freight could be maintained. I fail to see the application of that decision to the present case.

The case of Geipel v. Smith (2), which was also relied upon by the plaintiff, turned entirely upon the exception in the charterparty of the "restraint of princes:" and it was held that, by reason of that exception, a blockade which prevented the defendant (the ship-owner) from proceeding to the port of discharge, absolved him from doing so, or even from loading; and, à fortiori, where by reason of the blockade the charterparty could not (as was alleged in one of the pleas demurred to) have been carried out within a reasonable time. The defendants, the ship-owners, in that case, were held to be wholly excused by the terms of the charterparty from proceeding to deliver the cargo if loaded, and therefore it was considered to be useless for them to load, and that they were absolved from doing so. The expressions to be found in the judgments in that case as to reasonable time must, I think, be considered to have reference to the particular allegations in one of the pleas to that effect.

There are, no doubt, cases where delay which frustrated the object of a contract has been held to absolve a party from the further performance of it; but that is only where there has been some default or breach of contract by the other party as to a stipulation which was not in the nature of a condition precedent, and would not, but for such frustration of the adventure, have gone to the whole consideration or have afforded an excuse in law for the breach of contract complained of. The cases of Havelock v. Geddes (3), Freeman v. Tyler (4), and Tarrabochia v. Hickie (5), were all cases where

(1) 14 C. B. (N.S.) 147; 32 L. J. (C.P.) 284.

(2) Law Rep. 7 Q. B. 401.

(3) 10 East, 555.

(4) 8 Bing. 124.

(5) 1 H. & N. 183; 26 L. J. (Ex.) 26.