Reid and Reid v Hoskins; Avery v Bowden

JurisdictionEngland & Wales
Judgment Date12 November 1856
Date12 November 1856
CourtCourt of the Queen's Bench

English Reports Citation: 119 E.R. 1119

IN THE EXCHEQUER CHAMBER.

Thomas Reid and George Reid, Appellants, against Edward Hamilton Hoskins, Respondent. George Avery, Appellant, against Samuel Wilson Bowden
Respondent.

S. C. 26 L. Q. B. 3; 5 W. R. 45; 3 Jur. N. S. 238. See Phillipson v. Hayter, 1870, L. R. 6 C. P. 42; Wilkinson v. Verity, 1871, L. R. 6 C. P. 210; Frost v. Knight, 1872, L. R. 7 Ex. 112; Roper v. Johnson, 1873, L. R. 8 C. P. 117; Hudson v.Hill, 1874, 43 L. J. C. P. 281; Byrne v. Van Tienhoven, 1880, 5 C. P. D. 350; Johnston v. Milling, 1886, 16 Q. B. D. 470.

(EL.ftBI.953. REID V. HOSKINS , ,, _ 1119 - ' in the exchequer chamber. thomas reid and george reid, Appellants, against edward hamilton hoskins, Respondent. george avery, Appellant, against samuel wilson bowden, Respondent. Wednesday, November 12th, 1856. Declaration stated that plaintiff and defendant agreed, by charter party, that plaintiffs' ship should proceed to Odessa, and there load from defendant's agent a cargo of specified goods, and therewith proceed home, a specified number of running daya to be allowed for loading and unloading, and ten days for demurrage after the laying days : that the ship proceeded to Odessa; that the time for loading had elapsed; but defendant made default in loading.- Plea : that, after the vessel proceeded to Odessa, and before the alleged breach of contract, war was declared by the Queen against the Emperor of Russia, and war had ever since existed between this kingdom and Russia, of which plaintiff and defendant had notice before the alleged breach : that Odessa was part of the empire of Russia ; and plaintiff and defendant were subjects of this kingdom, and not of Russia : that the ship was a registered British ship; and no licence from the Queen could be obtained for loading the ship at Odessa : that defendant could not have procured a cargo or loaded the ship as agreed, nor could plaintiff have received such cargo, without trading or corresponding with the enemy. Issue on this plea, - It was proved that the master was directed, by defendant, to apply to defendant's agent M. at Odessa. War between England and Russia was first known at Odessa on 1st April 1854, which was before the expiration of the running days. M., before 1st April, repeatedly told the master that he should be unable to procure a cargo, owing to a Russian prohibition ; and he also endeavoured to persuade the master to quit Odessa without a cargo, upon certain terms inconsistent with the charter party. The master continued to demand a cargo, till after 1st April, and, on a later day, but before the expiration of the running and demurrage days, left Odessa in ballast. - On appeal from the Court of Queen's Bench, held, by the Court of Exchequer Chamber, affirming the judgment of Q. B., that the plea was proved. - By charter party, defendant contracted with plaintiff to load at Odessa a cargo, on board a ship of plaintiff then to proceed from a British port : if, before the ship's arriving at Constantinople, " war had commenced," and was continuing on her arrival there, a cargo was to be loaded there at a reduced rate of freight. Held, by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, that, it appearing that both plaintiff and defendants were British subjects, this stipulation related to war between Russia, the State in possession of Odessa, and Great Britain, and not to war between Russia and Turkey, the State in possession of Constantinople. And therefore, war between Russia and Turkey having commenced before and continuing at the ship's arrival at Constantinople, but war between Russia and Great Britain not having commenced till afterwards, the alternative contract for loading at Constantinople did not take effect. - By charter party, defendant agreed to load a cargo on plaintiff's ship at Odessa, certain running days to be allowed. To a count for not loading, which averred that, before the expiration of the running days, defendant dispensed with the ship remaining at Odessa, defendant pleaded that, before cause of action arose, war was declared between Russia and Great Britain, which rescinded the contract It appeared that, after the ship had arrived, and before the declaration of war, defendant's agent had repeatedly told the master that he, the agent, had no cargo for the ship, and that the master had better go away : but the master continued to require a cargo till the declaration of war was known at Odessa, which was before the ship's laying days had expired. It further appeared that, in a conversation between plaintiff and defendant in England, after the declaration of war between England and Russia, defendant told plaintiff that he had determined not to load the ship, but to rely on the chapter of accidents, and that he had telegraphed to his agent at Odessa not to purchase a cargo. - Held, by the Court of Queen's Bench, that, assuming that the defendant's agent had on his part renounced the contract before the declaration of war, such renunciation, 1120 REID V. HOSKTNS 6BL&BL9M. not being accepted by the master, constituted neither a dispensation nor cause of action.-On appeal to the Exchequer Chamber: the judgment was affirmed. [S. C. 26 L. Q, B. 3; 5 W. R. 45; 3 Jur. N. S. 238. See Phillipsm v. Hayter, 1870, L. R. 6 C. P. 42 ; Wilkinson v. Ferity, 1871, L. R. 6 C. P. 210 ; Frost v. Knight, 1872, L. R. 7 Ex. 112; Roper v. Johnsm, 1873, L. R. 8 C. P. 177 ; Hudson v. Hill, 1874, 43 L. J. C. P. 281; Byrne v. Fan Tienhoven, 1880, 5 C. P. D. 350 ; Johnston v. Milling, 1886, 16 Q. B. D. 470.] These were two appeals against decisions of the Court of Queen's Bench. [964] In Beid and Another, Appellants, against Hoskins, Respondent, the appellants Thomas Reid and George Reid wero plaintiffs below, and Edward Hamilton Hoskins was defendant below. The case stated for the opinion of the Court of Appeal disclosed the following circumstances. This was an action for breach of a charter party, dated 17th November 1853, by which the plaintiffs' ship " Themis " was to proceed to Constantinople, and thence to Odessa or Kertch, Varna or Baltschik (as ordered at Constantinople), there to receive a cargo of tallow, grain, seed or other stowage goods, at the option of the defendant, from the defendant, which he bound himself to ship. Forty five running days were to be allowed the defendant, if the ship was not sooner dispatched, for loading at the port of loading, and unloading at the port of [955] discharge, and ten days on demurrage : and, if one half or more of the cargo should consist of wool, ten additional days were to be allowed over and above the said laying days. The declaration, after setting out the substance of the charter party, averred that the ship proceeded, with all convenient speed, to Constantinople, and thence to Odessa, pursuant to orders received at Constantinople: and that the plaintiffs did all things necessary on their part, and that all things necessary happened and were done, to entitle them to have a full and complete cargo of tallow, grain, seed or other stowage goods, loaded on board the said ship at Odessa: yet the defendant made default in loading the said ship, and refused to load her as agreed. The defendant pleaded three pleas. The issues joined on the 1st and 3d pleas were found for the plaintiffs; and nothing now turns upon them. The second plea was as follows. That, before the alleged breach of contract, war was declared and proclaimed by Her Majesty, Queen Victoria, against the Emperor of Russia ; and they then went to war; and that such war then commenced, and has ever since existed and raged ; and this Kingdom and the Empire of Russia have, during the period aforesaid, been at open war with one another; of which the plaintiffs and defendant, before the alleged breach, had notice; and that Odessa during all the time aforesaid wag part of the said Empire of Russia ; and that the plaintiffs and defendant, during all the time aforesaid, were and are natural born subjects of this Kingdom, owing allegiance thereto, and not of the said Empire of Russia. That the said ship was, during all the time aforesaid, a British [956] ship, registered according to law in that behalf: and that no licence from Her Majesty was or could be obtained or procured for loading any cargo on board the said vessel at Odessa aforesaid ; and the defendant could not, without trading with the said enemy and his subjects, have procured a cargo or loaded the said ship as agreed; nor could the plaintiffs, without trading with the said enemy, have received such cargo. The plaintiffs joined issue upon that plea. The cause came on for trial before the Lord Chief Justice of the Court of Queen's Bench, at the London Sittings after Trinity Term, 1855 : when it was proved that the ship arrived off Odessa on the 26th of February 1854, but could not get into the mole (or harbour) till the 9th of March. That the ship got into the mole on the 9th of March, and was then ready to take in cargo. That the master went ashore on the 4th, 5th and 6th days of March 1854, and had an interview, on each of those days, with Mr. Matthieu the defendant's agent, to whom he was consigned, and who communicated with the master through an interpreter, he being unable to speak the English language himself. That, at the first of these interviews (on the 4th of March), Matthieu informed the master, as the fact was, that on the 3d of March an Imperial Ukase had been published at Odessa forbidding the exportation of grain from that port; in...

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