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Andrea Esposito v Samuel Wilson Bowden

State Trials Cited authorities 8 Cited in 1 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date29 May 1857
Date29 May 1857
CourtState Trial Proceedings
ESPOSITO against BOWDEN. JUDGMENT OF THE COURT OF QUEENS BENCH ON DEMURRER IN AN 2.JTION FOR BREACH OF A CHARTER PARTY, BEFORE LORD CAMPBELL, L.C.J.,(1) WIGHTMAN, ERLE,(2) AND CROMPTON, JJ,, APRIL 20TH, AND 28TH, 1855. (Reported in 4 E. & B. 963 ; 24 L.J. N.S. Q.B. 210 ; and 1 Jur. N.S. 729.) PROCEEDINGS IN THE EXCHEQUER CHAMBER IN ERROR FROM THE COURT OF QUEENS BENCH, BEFORE JERVIS, C.J., POLLOCK, C.B., ALDERSON, B., CRESSWELL, CROWDER, AND WILLES, JJ. MAY 1st, 1856 AND MAY 29th, 1857. (Reported in 7 E. & B. 763; 27 L.J. N.S. Q.B. 17 ; 3 Jur. N.S. 1209.) Action by the master of a Neapolitan vessel against the charterer for failure to load a cargo at Odessa in Russia pursuant to the charter, and for demurrage. Plea that the charterer was a British subject, and that before the lay days (3) expired there had been a declaration of war between the Queen and the Emperor of Russia, by which it became impossible for the charterer to load such cargo without dealing with the Queens enemies. The Court of Exchequer Chamber, on writ of error from the Queens Bench, held, reversing the judgment of the Court below- War Trading with the Enemy Contract of Aftreightment. That the plea was good, because it was prima facie unlawful for a British subject not domiciled in a neutral country to ship a cargo in an enemys port, even on board a neutral vessel, without the licence of the Crown. A declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of an enemys country without the licence of the Crown, and trading with the inhabitants of an enemys country is trading with the enemy. Semble that the prohibition extends even to the removal from the enemys country of merchandise acquired before the war.(4) A contract of affreightment is dissolved by the outbreak of war rendering its further performance illegal or impossible (5) and is not revived by the subsequent issue of Orders in Council relaxing the rule against trading with the enemy. (1) Afterwards Lord Chancellor. (2) Afterwards Chief Justice of C.P. (3) " Lay " or " laying " days are days allowed for loading or discharging cargo, after which the ship is entitled to a stipulated charge known as demurrage or to damages for detention. (4) As to neutrals, see Cremidi v. Powell above, p. 787. (5) See Avery v. Bowden, Reid v. Hoskins, and Clemontson v. Blessig, below, App. A, pp. 1084-5-8 ; also Bailey v. Be Crespigny, L.R. 4 Q.B. 180 ; The Teutonia, L.R. 4 A. & E. 394, 4 P.C. 171. This was an action by Andrea Esposito, the master of the Maria Christina, a Neapolitan vessel, against Samuel Wilson Bowden, the charterer, a British subject, for failure to load a cargo at Odessa pursuant to the charter, and for demurrage. The defendant pleaded the dissolution of the contract by reason of the outbreak of war with Russia, which rendered its performance impossible. PLEADINGS. The first count of the declaration stated that on the 16th September 1853, by a certain memorandum for charter, it was mutually agreed between the plaintiff,therein described as of Naples, master of the ship called the Maria Christina, of Naples, then in Hull, and the defendant, that the said ship should with all convenient speed take an outward cargo from the Tyne to Naples, and, after discharging the same, sail and proceed to Odessa, or so near thereto as she might safely get, and there load from the factors of the freighter a full and complete cargo of wheat, &c., and, being so loaded therewith, proceed to Falmouth, &c., the act of God, the Queens 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 809] Esposito against Bowden, 1855-7. [810 voyage, always excepted. Thirty-five running days to be allowed for loading and unloading, to commence at the port of loading on her being ready to load; laying days at her port of discharge to commence, &c. And, for demurrage, over and above the said laying days, the said freighter agreed to pay 4l. 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 charterers agents free of commission. Captain and owners to have an absolute lien on the cargo for freight, dead freight and demurrage, and charterers responsibilty to cease on shipment of cargo. Penalty, for non-performance of that agreement 850l. The words " demurrage 41. per day," to be inserted in the bills of lading ; 801. to be advanced the master by charterers before sailing from Hull, on account of freight subject to insurance, &c. Averment that the defendant made default in loading the aforesaid cargo, and kept and detained the said ship at Odessa ten days over and above the said laying days, and refused to pay the 4l. per day due and payable for demurrage. Plea (1) to the first count : That the defendant was and always had 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 wat, on the 29th March 1854, our Lady the Queen declared war against the Emperor of Russia ; and from that time war had existed between our Lady the Queen and the Emperor of Russia ; and Odessa had been a hostile port, in the possession of the Queens 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 terms of the said memorandum of charter without dealing and trading with the Queens enemies ; of which the plaintiff, before the expiration of the said laying days in the said charter party mentioned, had notice. And the said charter party, by reason of the premises, then became and was wholly rescinded. Replication : That by an order or declaration of Her Majesty the Queen, bearing date and made on the same day and at the same time on which war was so declared as aforesaid, to wit, on the28th March 1854,(a) Her Majesty de. clared herself to be 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 her by the law of nations : and her said Majesty declared that she would waive the right of seizing an enemys property laden on board a neutral vessel, unless it should be contraband of war, and that it was not her said Majestys intention to claim the confiscation of neutral property not being contraband of war found on board of enemies ships. That, by an Order in Council bearing date 29th March 1854,(b) her said Maj esty orderedthat Russian merchant vessels in any ports or places within her said Majestys dominions should be allowed until the 10th May then next, six weeks from the date thereof, for loading their cargoes and departing from such ports or places ; and that any Russian merchant vessel which prior to the date of that order should have sailed from any foreign port bound for any port or place in her said Majestys dominions, should be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation ; and that any such vessel, if met at sea by any of her said Majestys ships, should be permitted to continue her voyage to any port not blockaded. And, by a otrtain other Order in Council made long before the expiration of the said thirty-five running days, and whilst there was yet time to load the said cargo within the said running days, to wit, on the 15th April 1854,(e) it was ordered, by and with the advice of Her Majestys Privy Council, that all vessels under a neutral or friendly flag, being neutral or friendly property, should be permitted to import into any port or place in Her Majestys dominions all goods and merchandise whatsoever, to whomsoever the same might belong ; and to export from any port or place in Her Majestys dominions to any port not blockaded any cargo or goods not being contraband of war, or not requiring a special permission, to whomsoever the same might belong ; and it was thereby further ordered that, save and except as thereinbefore excepted, all the subjects of Her Majesty, and the subjects or citizens of any neutral or friendly state, should and might, during and notwithstanding the said hostilities with Russia, freely (a) See below, App. E, p. 1226. (b) See below, App. E, p. 1225. (c) See below, App. E, p. 1226. 811] Esposito against Bowden, 1855-7. [812 trade with all ports and places wheresoever situate, which should not be in a state of blockade ; save and except that no British vessel should under any circumstances be permitted or empowered to enter or communicate with any port or place which should belong to or be in the possession or occupation of her said Majestys enemies. Averment : That the said ship Maria Christina was at the time of the making of the said charter party, and so continued to be, and still was, a neutral vessel, and neutral and friendly property, and sailing under a neutral and friendly flag : and that the plaintiff was, during all the time aforesaid, and still was, the subject of a neutral state, and friendly with her said Majesty ; and that the said port of Odessa was not in a state of blockade at any part of the time daring which the said cargo could and might and ought to have been loaded pursuant to the said charter party ; and that the said cargo, so agreed to be loaded, was not, nor was any part thereof, contraband of war, nor requiring a special permission to be imported into any port or place in Her Majestys dominions ; and that the said cargo might and could...

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