season being the latter end of February; but the captain, as soon as he conveniently could after the ship was released, to wit, on the 2d July 1801, informed the Defendant that the ship was ready to proceed upon her voyage in pursuance of the memorandum for the charter, and offered to deliver up the letters of advice the Defendant had before given him to his correspondents at St. Michael's, if the Defendant would give him others in their stead. The Defendant declined giving him any answer till he had consulted his attorney, and on the 4th July the Defendant gave the captain the following written notice, viz. " Mr. Hans Peter Schonberg, As the ship Economy, which I chartered of you on the 19th December 1800, in consequence of the late embargo laid by the government of Great Britain on all Swedish vessels, could not nor did proceed on her voyage, according to the terms of the said charter-party, whereby the same charterparty was terminated and at an end; but as I understand it is your intention now to proceed to St. Michael's, I hereby give you notice that the ship cannot be possibly loaded there, the season for shipping fruit being long since passed; and your now making such voyage must, as you well know, be wholly useless and nugatory. Dated the 4th day of July 1801. (Signed) "William Hubbard.” In the month of January 1801, after the same embargo had taken place, the Defendant applied to the captain to give back his letters of advice, but he refused to deliver them up, and said he would deliver them to the agent for the owners in town. From that time no notification was made by either party that the contract should not be proceeded upon till the captain applied to the Defendant, as before mentioned. The whole freight of the ship, under the memorandum for the charter, would have amounted to 748/. 2s. 6d., but the actual damage the Plaintiffs sustained out of pocket by the expences of sailing upon the voyage until the ship was driven back, by paying the sailors during the embargo, and by the damages sustained, amounted to the sum of 3971. 6s. 6d,, for which the verdict was given.. The question for the opinion of the Court was, whether the Plaintiff was entitled to recover either the said sum of 7481. 2s. 6d. or the sum of 3971. 6s. 6d, or any part thereof; if not, a nonsuit to be entered. 1802. TOUTENG and Another ย. HUBBARD. 1802. TOUTENG and Another V. HUBBARD. This case was twice argued first in Easter term last by Bayley Serjt., for the Plaintiffs, and Best Serjt., for the Defendant; and again in Trinity term, by Shepherd Serjt., for the former, and Lens Serjt. for the latter. Arguments for the Plaintiffs. The embargo laid upon Swedish ships by the government of this country on the 15th of January 1801, did not put an end to the contract between the Plaintiffs and the Defendant. When the embargo was taken off, the eaptain was bound to proceed upon the voyage without demanding any additional freight, and the merchant was bound to employ the ship, and pay the freight stipulated for by the contract. In the present case it was unnecessary that the ship should actually, have proceeded upon the voyage to entitle the Plaintiffs to re eover, because the Defendant in express terms discharged them from that obligation. It may perhaps be contended that as the object of the voyage was to obtain a cargo of fruit, and it became impossible, in consequence of the embargo, that the ship should arrive at St. Michael's until after the fruit season, the Defendant was discharged; but as the delay was not owing to any neglect: of the captain, and no time of arrival was stipulated for in the ↑ contract, he would be entitled to freight at whatever time he ') night arrive. The ship might have been prevented from arriving in time by other accidents, as well as by an embargo, such: as wind, weather, and detention of pirates, &c., and yet in such case the Defendant must have paid the freight; if therefore it was intended that the consequences of an embargo should have been : sustained by the Plaintiff, there should have been an express clause to that effect in the agreement. The case of Hadley v. Clarke, ST. R. 259. clearly shews that no terms can be introduced into a contract by implication. In that case the owners of a ship refused to fulfil their contract in consequence of an embargo having for a considerable time prevented the ship proceeding in her voyage. Mr. Justice Lawrence there says, "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 întended that they should be excused for any other cause, they should have introduced. introduced such an exception into their contract ;" and he cites Paradine v. Jane, Alleyne, 27. in which case it was decided that where a party by his own contract creates a duty and charge upon himself, he is bound to perform it, notwithstanding any accident by inevitable necessity, because he might have provided against it in his contract. Though the case of Draddy v. Deacon, 2 Vern. 242. tends to shew, that an embargo dissolves the contract between the freighter and ship owners, yet it will be sufficient to say that Draddy v. Deacon was over-ruled in Hadley v. Clarke. An embargo is an act of precaution, and must be considered merely as a temporary measure, in which respect it differs from an act of hostility: and this distinction is taken Vulin. Comment. tom. 1. p. 626, 627. It does not amount to an interdiction of all commerce; but only to a suspension; and, therefore, the freighter must await the termination of the suspension, and then fulfil his contract. With respect to the exception contained in the agreement of "the restraint of princes. and rulers," it was clearly introduced for the benefit of the captain, who was to proceed with all convenient speed, subject to that exception, and cannot therefore be adduced as an excuse for non-performance of that part of the contract, to which it was never intended to apply. On this part of the subject, and indeed upon the whole case, a late opinion of Lord Kenyon at Guildhall, in a case of Blight v. Page, is a strong authority (). Nor can it be said, by way of answer to the Plaintiff's claim, that if the freight in this case be paid, the owners (a) Blight and Others v. Page, Sittings at Guildhall after Michaelmas terin 1801, coram Lord Kenyon. This was an action upon a memorandum for a charter-party. By the meniorandum it was agreed be tween the Plaintiffs, who were owners of the ship Favourite, and the Defendant, that the said slip, being tight, &c. should with all convenient speed sail and proceed to Liebau, or so near thereto as she could safely get, and there load from the factors of the Defendant a full and complete cargo of barley, in bulk not exceeding what the said strip could reasonably stow aud carry, over and above her tackle, &c.; and being so loaded should therewith proceed to Berwick, or so near thereto as she could safely get, and deliver the same, on being paid freight at and after the rate of 8s 6d. per quarter, of with two thirds port charges and pilotage The Favourite sailed on her voyage and captain, 1802. TOUTENG and Another v. HUBBARD. of a Steedish vessel will be paid for not doing that which they were prevented from doing because they were Swedes, and thus obtain an indemnification for the acts of the British Government out of the pocket of a British merchant; for the case must be decided upon a general rule of law, equally applicable to the present case as to that of a British captain detained by an embargo in a port of Sweden, after having entered into a contract with a Swedish merchant, and suing in this country. Although, upon the above principles, the Plaintiffs may perhaps be entitled to recover the whole freight, amounting to 7481. 2s. 6d., yet they only insist upon the sum of 3971. 6s. 6d., being the expences incurred by them in pursuance of a contract which the Defendant has refused to fulfil. Arguments for the Defendant. It is not necessary to contest any part of the doctrine laid down in Hadley v. Clarke. In that case there was nothing which required that the contract should be performed within a particular time; but the object of the contract in the present case was, that the Plaintiff's ship should proceed to St. Michael's before the next fruit season, and that the Defendant should furnish a cargo of fruit. Although no time for the performance of the contract be expressed, yet the nature of the contract necessarily imposes a limit to the time within which it was to be performed; and the possibility of performing the contract within that period captain, however, entered the port of The action was brought to recover The Attorney-General (Law) for the Plaintiff, insisted, that the exception of the restraints of rulers and princes was only applicable to the owners, and did not therefore excuse the shippers. Gibbs for the Defendant, urged, 1st, that the exception was applicable both to towners and shippers: and, d, that as the prohibition of the Russian Government equally prevented the captain from sailing with the cargo, as the shippers from loading it on board, the averment in the declaration that the Plaintiffs were ready to perform their part of the contract was not true; and, 3dly, that there was no pretence for demanding demurrage, since it was the fault of the captain himself to remain at Liebau after the notice which he had received. against the Defendant upon the point of law. It is said in Co. Litt. - [1] that if a man be bound in an obligation to A., conditioned to enfeoff B. a stranger, and B. refuse, the obligation is forfeited ; for thre obligor has taken upon him to make the feoffment. The reason of this is clear. If a man undertakes what he cannot perform, he shall answer for it to the person with whom he undertakes. I am always desirous to apply the settled principles of the law to the regulation of commercial dealings. With respect to the charge for demurrage, as it appears that notice was given before the captain entered the port that the factor could not furuish a cargo, there is no pretence for making the Plain tiffs liable. Verdict for the Plaintiffs for 486). 188. And see Barret v. Dutton, 4 Campb. 333. Beale v. Thompson, 4 East, 546. Atkinson v. Ritchie, 10 East,530. Sjoerds v. Luscombe, 16 East, 201. Barker v. Hodgson, 3 M. & S. 267-271. Sterer v. Gordon, 3 M.& S. 308. 315. Lord Kenyon Ch. J.; I am decidedly, having been prevented by an act of state, the contract was necessarily put an end to; for where a party is prevented from performing his contract by the interference of the law, he is not responsible to those with whom he contracts. The embargo in this case was not like those in Hadley v. Clarke and Blight v. Page, but was in the nature of an act of hostility against the subjects of Sweden, and if the Swedish captain be allowed to recover damages against the British merchant for non-performance of a contract which he was prevented from performing by the act of the British state, the object of the state will be defeated, and instead of operating against the subjects of Sweden will be turned against the subjects of this country. Indeed the clause which excepts the restraints of rulers and princes, must equally extend to both parties; and if it will excuse the Defendant from not proceeding on the voyage, it will equally excuse the Plaintiff from not furnishing a cargo. In Molloy, b. 2. c. 4. s.5. it is said, "if the ship in her voyage becomes unable without the master's fault, or that the ship be arrested by some prince or state in her voyage, the master may either mend his ship or freight another." Now the Swedish ships only being restrained by the embargo laid on in this case, the Plaintiff should, in order to entitle him to sue the Defendant on his contract, have offered to send some other ship not within the restriction of the embargo. With respect to the case of Paradine v. Jane, there is a great distinction between that which is done after a man is let into possession and that which prevents his getting possession. If in that case Prince Rupert had prevented the lessor from putting the lessee into possession the former could not have recovered rent against the latter without shewing that he had been put into possession. The same principle and distinction may be applied to the case of Blight v. Page, where the ship having proceeded on her voyage, was prevented from completing it by an embargo in a foreign port, laid on by the Government of that country; but here the ship was prevented from commencing the voyage by the Government of the country where the contract was made. This distinction is expressly laid down in Abbott's Treatise on merchant ships and seamen, p. 339, 340. where it is said that if the Government of the country to which the ship and cargo belong should prohibit the exportation of the commodities composing the cargo, the law of that country would give no damages against the merchant; on the other hand, if a merchant hire a ship to go to a foreign port, and covenant to furnish a lading there, 1802. TOUTENG and Another บ. HUBBARD. |