Geipel v Smith

268 MARITIME LAW CASES. V. C. M.] GEIPEL AND OTHEHRS v. SMITH AND ANOTHER. [Q. B. COURT OF QUEENS'S BENCH. Reported by J. Shorrt and M. W. McKellar, Esqrs., Barristers-at-Law. Friday, Jan. 26,1872. GEIPEL AND OTHERS v. SMITH AND ANOTHER. Charter-party - Restraint of princes - Blockade of port of discharge - Impossibility of performance. A blockade of the port of distination, of which there is no chance of termination within a reasonable time, operates us a dissolution of an executory contract of affreightment containing the exception, restraints of princes and rulers, and where the shipowner obtains intelligence of the existence of the blockade after the contract is made, but whilst , it is stilly executory, and before he has laden his cargo, he is justified in treating the contract as an entire contract to load and carry to the port of destination, and, as such, impossible of perform-ance, and is, therefore, not bound to perform part of the contract by proceeding to load his cargo. To a declaration for a breach of a charter-party whereby the defendants agreed that their ship should, with all convenient speed, proceed to a spout as directed by the plaintiffs, and, having there loaded a cargo of cools, should, as soon as wind and weather permitted, proceed to Sam-burg and there deliver the same "restraints of princes and rulers" (amongst ether things) ex- MARITIME LAW CASES. 269 Q. B.] Geipel and others v. Smith and another. [Q. B. cepted, the defendants pleaded, in various pleas, that before any breach war was being carried on between Germany (wherein the said port of Hamburg was situated) and France; that Hamburg was blockaded by the French fleets; and that defendants were ready to perform their contract so far as they were not hindered and prevented by any of the excepted causes. Held, on demurrer, that the blockade was a " restraint of princes and rulers," and, therefore, that the defendants were justified in refusing to carry out the contract. The performance of the whole undivided contract being rendered impossible by one of the excepted causes, the defendants were not bound to perform, a, part of it, via., the loading of the ship, (a) Demurrer to pleas. Declaration on a charter-party, whereby it was agreed between the plaintiffs and defendants that the defendants' vessel the Martindale being tight, staunch, and strong, and every way fitted for the voyage, should with all convenient speed sail and proceed to a spout as directed by the plaintiffs or their agent, and there take on board a full and complete cargo of cools not exceeding what she could reasonably stow and carry, over and above her tackle, apparel, provisions, and furniture, and being so loaded, the captain should immediately call at the office of the plaintiffs or their agents and clear with them at the Custom House, also sign bills of lading without qualification as they present them, but without prejudice to the said charter-party, and then as soon as wind and weather should permit, should proceed to Hamburg, and there deliver the same to the said freighters or assigns, they paying the freight for the same at a certain agreed rate, the act of God, Queen's enemies, restraints of princes and rulers, fire, and all and every of the dangers and accidents of the seas, rivers, and navigation, of whatsoever nature or kind during the said voyage, always excepted, the brokerage of 2 1/2 per cent. on account of freight to be due on signing the said charter-party, and in case of the breach or non-performance of the said charter-party, the defendants or the captain to pay to the plaintiffs 100l, as and for liquidated damages. And the plaintiffs say that they did and were ready and willing to do all things, and all conditions precedent were fulfilled, and all times elapsed necessary to entitle, and nothing happened to disentitle the plaintiffs to have the defendants observe and fulfil the terms of the said charter-party, and to maintain this action for the breach thereof hereinafter mentioned; yet the defendants before any breach by the plaintiffs of the said charter-party, and although not prevented by any of the said expected perils, causes, manners, or things, absolutely refused to observe and fulfil the terms) of the said charter-party and to let their 1 said ship take or carry any goods of the plaintiffs to the said port of Hamburg, and gave notice to the plaintiffs that they absolutely refused to do, and they would not observe or fulfil, and absolutely renounced the said charter-party, and wrongfully - and in violation of the said charter-party, discharged the plaintiffs from directing the said ship to sail or proceed to any spout, and from other wise observing and fulfilling the terms of the said charter party, and renounced the said charter-party, and thereby wrongfully broke and violated the said charter party, and by reason of the premises the plaintiffs became and were unable to have the said charter-party observed and fulfilled by the defendants, and uselessly incurred great expense in and about procuring cargo for the said ship, and were prevented from sending the said goods to Hamburg, and lost divers largo profits, &c. Pleas. (5.) That after the making of the said charter-party, and before any breach thereof, a war was being carried on between the peoples of Germany, wherein the said port of Hamburg was situated, and the peoples of France; and the said port of Hamburg was then blockaded by the fleets of Fiance; and her Most Gracious Majesty the Queen, by her royal proclamation, enjoined ail her subjects to maintain a strict neutrality between the said belligerent peoples, and not to commit any act contrary to or in violation of the law of nations; and the defendants say that they were and are British subjects, and that the ship was a British ship, and the said cargo was a cargo to be carried to and delivered at the said port of Hamburgh. Wherefore, the further performance of the said charter-party became and was illegal, and the defendants, as they lawfully might, refused farther to carry out the same. (6.) That after the said charter-party was entered into, and before any breach thereof by the defendants, a state of war arose and existed as in the last plea mentioned, and the said port of Hamburg became and was blockaded by the French, and her Majesty the Queen published a proclamation as aforesaid, and there upon the defendants, having notice of the said blockade, and of the said proclamation of her Majesty, refused to allow the said ship to receive a cargo for the purpose of then carrying the same to | the said blockaded port while the same watt so blockaded, and of running the said blockade with the said cargo for the purpose of delivering the same at the said port during the continuance of the said blockade, which is the said breach complained of, and not otherwise (7.) That after the said charter-party was made, and before any breach by them of the said charter-party, & state of war existed, and the said port of Hamburg was blockaded, and her Majesty, the Queen, published her proclamation as in the 5th plea stated, and the defendants say that they were ready and willing to perform the said charter-party on their part, so far as they might lawfully, and so far as they were not hindered and prevented by any of the said excepted causes; and the defendants say that the said ship could not have received a cargo, nor could the said charter-party have been earned out and fulfilled within a reasonable time in that behalf, except by the said ship receiving a cargo for the purpose of carrying the same to the said blockaded (a) This question was considered by Lord Stowell in The Tutelu (6 C. Rob. 177). That was a prize case, the vessel having been seized by the British for attempted breach of blockade. One defence set up that the master, although he had remonstrated with the shipper against pursuing his intended voyage, had been compelled to proceed by the shipper, as he had signed the charter-party before knowing of the blockade. In giving judgment, Lord Stowell said : " He (the master) seems to have entertained no doubt upon that point (the blockade), but to have acted only under an opinion, that because he had signed the charter-party he was bound to proceed. I conceive the law is not so, bat that he would have been justified in refusing to go on. As in all other contracts that become illegal, he might have protested against being any longer bound by the charter-party." The ship was condemned. Sea also The Isabella Jacobina. (4 W. Rob. 77). - Ed. 270 MARITIME LAW CASES. Q. B.] GEIPEL AND OTHERS v. SMITH AND...