Andrea Esposito v Samuel Wilson Bowden
| Jurisdiction | England & Wales |
| Judgment Date | 29 May 1857 |
| Date | 29 May 1857 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 1430
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 27 L. J. Q. B. 17; 3 Jur. N. S. 1209; 5 W. R. 732. See The Teutonia, 1871-72, L. R. 3 Ad. & E. 413; L. R. 4 P. C. 171. Dicta applied, Janson v. Driefontein Consolidated Mines, [1902] A. C. 502.
v, ''""' 1430 / 3/f^3(ft'$*J-~ ESPOS1TO V . BOWDEN ''""' ' ' 7 EL. & BL. 764. '' 1 andrea esposito against samuel wilson bowden. Error from the Court T/^ ^"bf Queen's Bench. Friday, May 29th, 1857. Declaration charged that, by ò?"""" a memorandum for charter, it was agreed between plaintiff, owner of a ship then in a British port, and defendant, that the ship should proceed to Odessa, and there load from the freighter's factors a complete cargo of specified goods, and proceed , a therewith to a port of discharge, the act of the Queen's enemies and all accidents , f1 ..pf the seas, navigation &c., excepted ; thirty five running days to be allowed for J ' 2 goading and unloading, to commence at the port of loading, and 41. per day for 'Yl -'demurrage above the running days. Breach: (1.) Tha't, although a reasonable ^ S- Jtime for loading the cargo had elapsed, defendant made default in loading the MV9" 7^,4., agreed cargo; (2.) That defendant detained the ship on demurrage ten days - . fi3 above the laying days, and did not pay for such demurrage.-Plea: that defen-ò a/,T jdant was always a subject of the Queen, and Odessa was a port within the i fa. 7. dominions of the Emperor of Russia; and that, after the making of the charter I, party, and before the ship arrived at Odessa, and before the defendant provided : y/r. a cargo, the Queen declared war against the Emperor; since which time war had Krt , "" mt , f Assisted between them, and Odessa had been a hostile port in the possession of *^e Quflfln's enemies. That, from the time war was so declared, it became impossible for defendant to perform his agreement without dealing and trading w'tQ the Queen's enemies, of which plaintiff had notice before the expiration of the laying days: and the charter party, by reason of the premises, was wholly r.e8cinded. - Replication: that the Queen, by order of council, waived (except m the case of contraband of war) the seizure or confiscation of enemies' property , / j/j on board neutral ships and of neutral property on board enemies' ship; and, by a second order in council, allowed a certain time for Russian ships to load their ships in British ports, and allowed Russian merchant vessels, which should have sailed before the date of the order for any British port, to discharge at such port; and, by a third order, made before the expiration of the running days, and while there was time to load the cargo, ordered that neutral or friendly vessels might import into any British port all goods (not being contraband of war or requiring a special permission) to whomsoever belonging, and that the subjects of the Queen or of any neutral or friendly state might trade with all ports not blockaded (except that British vessels might not enter enemies' ports). That the ship was a neutral vessel, and plaintiff the subject of a neutral state : that Odessa was not blockaded during any part of the time during which the cargo ought to have been loaded ; and no part of the agreed cargo was contraband of war or requiring special permission for importation ; and the cargo might have been loaded notwithstanding the hostilities. On demurrer : - Held, by the Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench, that the plea was good, as shewing a dissolution of the contract before the time for performance had expired, and an impossibility of legally performing the contract, as the shipment of a cargo from an enemy's port, even in a neutral vessel, was an act, prima facie at least, involving a trading and dealing with the enemy, and therefore forbidden by law to a British subject ; and that, if such a shipment could under peculiar facts be legal, it lay on the plaintiff to shew the facts, which on this record he had not done. - Held, by both Courts, that the replication did not answer the plea ; for that the first order in council related only to neutral or hostile goods or ships; the second only to Russian ships; and the third was not shewn to have come into operation till after the alleged dissolution of the contract. [S. C. 27 L. J. Q. B. 17 ; 3 Jur. N. S. 1209 ; 5 W. R. 732. See The Teutonia, 1871-72, L. R. 3 Ad. & E. 413; L. R. 4 P. C. 171. Dicta applied, Janson v. Driefontein Consolidated Mines, [1902] A. C. 502.] The first count stated that, on 16th September 1853, by a certain memorandum for charter, it was that [764] day mutually agreed between the plaintiff, therein described as of Naples, master of the ship called The " Maria Christina," of Naples, of the burden &c., whereof the plaintiff was master, then in Hull, and the defendant, that the aaid ship, being tight &c., should with all convenient speed take an outward cargo from the Tyne to Naples, and, after discharging same, sail and proceed to 1BL. *.. B8POSITO V. BOWDBN 1431 Odegia, or bo near thereto as she might safely get, and there load from the factors of the aid freighter a full and complete cargo of wheat, seed or other grain, not exceeding what she could reasonably stow and carry, over and above the tackle, apparel, provisions and furniture : and, being so loaded therewith, proceed to Falmouth &c. (stipulations aa to the places of discharge, and payment of freight thereon). The freighter engaged to provide the necessary dunnage mats, which the ship would take out free of charge ; ship free from risk and expence of lighterage, but her boats and crew to render all necessary assistance in towing the lighters &c. The act of God, the Queen's enemies, fire and all and every other dangers and accidents of the seas, rivers and navigation, of what nature or kind soever, during the said voyage, always excepted. (Then followed stipu-[76S]-lations as. to mode of payment of freight.) Gash for ship's use, not exceeding 501., to be advanced the master at his loading port, free of interest and commission, on account of freighters having liberty to insure same at ship's expence. Thirty five running days were to be allowed the said merchants (if the ship were nob sooner dispatched) for loading and unloading, to commence at her port of loading on her being ready to load; laying days at port of discharge to commence &c. And, for demurrage over and above the said laying days, the said freighter agreed to pay 41. per day, detention by frost or quarantine not to be reckoned as lay days. The ship to be addressed at the within foreign loading ports to the charterer's agents, free of commission. Captain and owners to have an absolute lien on the cargo for freight, dead freight and demurrage: and charterer's responsibility to cease on shipment of cargo. Penalty for nonperforraance of that agreement, 8501. The words "demurrage, 41. per day," to be inserted in bills of lading; 801. to be advanced the master by charterers before sailing from Hull, on account of freight subject to insurance. Averment of the performance of all conditions precedent, and that all things have been done and happened that ought to have been done and happened, and that the plaintiff was ready and willing to do all things that it was necessary for him to be ready and willing to do, to entitle him to have the agreed cargo loaded on board the said ship at Odeaaa aforesaid, and the payment of the demurrage hereafter in this count mentioned. That, although a reasonable and proper time for loading the agreed cargo bad elapsed before the commencement of this suit, nevertheless defendant made default iu loading the agreed cargo; [766] and, before this suit, kept and detained the aaid ship on demurrage at Odessa aforesaid for divers, to wit ten, days over and above the said laying days in the said memorandum of charter mentioned. Yet defendant did not nor would pay the 41. per day, due and payable for such demurrage, as aforesaid. Pk* (1) to the first count. That defendant is and always has been a subject of our Lady the Queen; and that Odessa, the port where the said ship was to load her said cargo, is a port of Russia, and within the dominions of the Emperor of Russia. And that, after the making of the charter party, and before the ship arrived at Odessa, and before defendant provided or purchased any cargo to be loaded on board the ship, to wit on 29th March 1854, our Lady the Queen declared war against the Emperor of Btiaaia; and from that time war has existed between our Lady the Queen and the Emperor of Russia; and Odessa has been a hostile port, in the possession of the Queen'i enemies. That, from "the time war was so declared as aforesaid, it became and was impossible for him the defendant to perform his said agreement, and fulfil the term* of the said memorandum of charter, without dealing and trading with the Quean's enemies : of which plaintiff, before the expiration of the aaid laying days in the laid charter party mentioned, had notice. And the said charter party, by reason of the premises, then became and wai wholly rescinded. Replication. That, by an order or declaration of Her Majesty the now Queen, bearing date and made on the same day aud at the same time on which war waa so declared as aforesaid, to wit on 28th March 1854, Her Majesty the now Queen declared herself to be [767] desirous of rendering the war as little onerous as possible to the persons with whom she remained at peace: and that, to preserve the commerce of neutrals from all unnecessary obstruction, Her said Majesty was willing, for the present, to waive a part of the belligerent rights appertaining to the law of nations: Her said Majesty declared that she would waive the right of seizing enemy's property laden ou board a neutral vessel, unless it should be contraband of war, and that it...
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