Thomas Reid and George Reid against Edward Hamilton Hoskins
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1855 |
| Date | 26 November 1855 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 365
Queen's Bench Division
See S. C. in Exchequer Chamber, 6 El. & Bl. 953.
& EL 51. RRID V. HOSKINS 365 There is no occasion for entering into the distinction between the two breaches t but it may be worth while to observe that the plea cannot be an answer to that for demurrage, without considering that the declaration of war at once dissolved the contract so absolutely and inevitably that even with the consent of the parties the ship could not have been detained beyond her lay days under the charter party, in the hope that a cargo might have been found for her or for any other purpose. Upon the whole, we think that we are bound to give judgment for the plaintiff. Judgment for the plaintiff (O. (9793 The following case, decided in Trinity Term 1855, may conveniently be inserted here. THOMAS REID AND GEORGE REID against EDWARD HAMILTON HOSKINS. [Sat urd ay, June 2d, 18551 Declaration stated that plaintiff and defendant agreed, by charter party, the plaintiff's 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 days to be allowed for loading and unloading, and ten days for demurrage after the laying days, at 51. per day : that the ship proceeded to Odessa ; that the time for loading had elapsed ; but defendant made default in loading.ùPlea: 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 bad 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,ùHeld a good plea, as negativing a possibility of the defendant performing the contract by doing anything either before or after the declaration of war, the impossibility being shewn to have arisen before any breach of contract, Especially as, the ship being British, it was the duty of the captain to quit Odessa as soon as he knew of the declaration of war. [See S. C. in Exchequer Chamber, 6 El. & Bl. 9931 The declaration stated that plaintiffs and defendant agreed, by charter party, that plaintiffs' ship, called The "Therms," should with all convenient speed, after discharging her then cargo, in ballast sail and proceed to Constantinople, and there receive orders to proceed to Odessa or Kertch, Varna or Baltchich, or so near thereto as she might safely get, and there load, from the agents of the defendant, a full and complete cargo of tallow, grain, seed or other stowage goods, at the option of the defendant, with the necessary mats for dunnage, which the defendant bound himself to ship &c., and send alongside at the port of loading and take from alongside at the port of discharge at his own expeuce and risk; (980) and, being so loaded, should therewith proceed to Queenstown or Falmouth, at the master's option, for orders, to be given by return of post, or laying days to commence, to discharge &c. (stipulations for discharge, and payment of freight on delivery). Forty five running days to be allowed the defersdant, if the ship was not sooner despatched, for loading the ship at the port of loading and unloading at the port of discharge and, if one half or more of the cargo should consist of wool, ten additional days to he allowed, and ten days on demurrage over and above the said laying days at Si. per day. Detention by ice and quarantine not to he accounted as laying days. The act of God, adverse winds, the Queen's enemies, restraint of princes, pirates, fire, and all and every other dangers and accidents of the seas, rivers and navigations, of what nature and kind soever, during the said voyage, always excepted. In the event of hostilities preventing the vessel from proceeding into the Black Sea direct, it was agreed that the defendant should in that ease load her with a cargo of grain or seed at Constantinople, or one safe port in the Sea of 366 REID HOSIONS 4 EL. lc Et 981. Marmora, or at or between Volo and Eno% at the rate of &c. : orders at Constantinople as to loading port ; other terms as above. Averment that the ship did, with all con- venient speed, proceed to Constantinople, and thence to Odessa, pursuant to orders received at Constantinople. That 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, &c., loaded on board the said ship, to wit at Odessa, and that the time for so doing has elapsed. Yet defendant made default in loading the said ship, and refused to load her as agreed. (981) Plea (2). That, after the said orders were given and the said vessel proceeded from Constantinople to Odessa, and 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, daring the period aforesaid, been at open war with one another ; of which plaintiffs and defendant, before the alleged breach, had notice. That Odessa, during all the time aforesaid, was part of the empire of Russia ; and that 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. And the ship was, _during all the time aforesaid, a British ship, registered according to law in that behalf, And that no licence from Her Majesty was or could he obtained or procured for loading any cargo on board the vessel at Odessa aforesaid ; and the defendant could not, without trading and corresponding with the said enemy and his subjects, have procured a cargo or loaded the said ship as agreed ; nor could the plaintiffs, without trading and corresponding with the said enemy, have received such cargo. Demurrer. Joinder. The case was argued on an earlier day in this Term (a). Manisty, for the plaintiffs. The only distinction between this case and Esposito v. Bowden (ante, p. 963) is that there the defendant only was a British subject, whereas here both parties are go. That can make no difference (982] the ground of the decision in Esposito v. Bowden (ante, p. 963) was, that the defendant might, before he had notice of the declaration of war, have legally procured a cargo with which be might afterwards have freighted the plaintiff's ship. It must he taken, as against the defendant, that war was not declared till after the vessel arrived at Odessa ; for the plea chews only the commencement of the war before the alleged breach, which, according to the declaration, was after the vessel arrived. Consistently with this plea, there may have been forty four days and twenty three hours during-which the defendant could have performed his contract. There is not even an allegation that, had there been no war, the defendant would have performed his contract. No issue could safely be taken by the plaintiffs. Wines, contrh, It is true that a contractor may, by his own act, break the contract before the time for the performance is out, as in Hoehster v, De la Tour (2 E. & B. 678). But the war here commenced before any breach, as is shewn by the plea. In Esposito v. Bowden (ante, p. 963) the ship-owner was a neutral ; and though that circumstance is perhaps not alone sufficient to distinguish the two cases, it could not there, as here, be said that the performance of the contract was prevented by an act of Government to which both parties must be understood to assent; the Court will not consider a neutral as bound, even so far as regards a matter litigated in an English Court, by our law ; Buron v. Denman (2 Exch. 167). Here, however, the record expressly chews that the parties, both British subjects, were, by an act of the British Government, (9881 rendered incapable of performing their contract ; and Potts v. Bell (8 T. R. 548) and The Hoop, Cornelis (1 Rob. Adm. R. 196), apply. The plaintiffs here could not have taken the cargo on board legally if the defendant had tendered it. tint a neutral might legally have done so. In Maude & Pollock On Shipping, p. 137, it is said : "If, after the making of the contract, the exportation of the articles which are to compose the cargo were prohibited by the law of this country, the contract...
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