« ПретходнаНастави »
Rescission of charter-party.
stamped within ten days from its arrival here, and before any one here has executed it (h).
$ 46. Contracts of affreightment are capable of rescission by the mutual consent of the parties; but if under seal, the contract of dissolution must also be under seal (i). Further, they will become ipso jure rescinded, if made illegal by a declaration of the government issued before their performance.
If the country to which the vessel belongs declare war against the state to which she is bound, before the performance of the contract, the contract of affreightment will be rescinded (k).
But if, instead of a declaration of war, an embargo only is imposed, there will be no rescission of the contract, but only a suspension of it (1); unless the embargo were meant as an act of hostility, and the object of the voyage has been lost in consequence of it (m).
Where a cargo is by the terms of a charter-party to be landed at a certain port, and it is subsequently made illegal to land cargo at the usual landing-place there, yet, if the cargo can lawfully be unloaded elsewhere in the port, the charter-party will still be binding (n).
The contract of affreightment will also ipso facto be rescinded, if the government prohibit the exportation of the various commodities of which the cargo is to be composed. But it will not be rescinded merely by public intercourse being prohibited for a time (6).
(1) 33 & 34 Vict. c. 97, ss. 66-68.
(i) King v. Gillett, 7 M. & W. 55; Adamson v. Neu'castle Steamship Ins. A880c., 4 Q. B. D. 462.
(k) Reid v. Hoskins, 4 E. & B. 979; see“Cases” (1) at end of this g; Esposito v. Bouden, 7 E. & B. 763; The Teutonia, L. R., 3 Ad. & E. 394 ; 4 P. C. 171.
(2) Hadley v. Clarke, 8 T. R. 259;
“ Cases” (2) at end of this ģ; The Patria, L. R., 3 A. & E. 436.
(m) Touteng v. Hubbard, 3 B. & P. 291; see“Cases” (3) at end of this g.
(n) Waugh v. Morris, L. R., 8 Q. B. 203; The Cargo ex Argos, L. R., 5 P. C. 134, 161.
(0) Barker v. Hodgson, 3 M. & S. 267; see "Cases" (4) at end of this g.
So if the ship be abandoned by its crew during the voyage, without any intention to retake possession, the owners of the cargo will be entitled to treat the contract of affreightment as at an end (p).
Again, in cases where the cargo is separated from the ship under commission or decree of unlivery, though it is before sentence of condemnation, the contract of affreightment will be thereby dissolved. If subsequently both ship and cargo be restored, full freight will be payable on the original voyage, even though the master decline to reload the cargo and take it to the port of delivery ().
CASES. 1. A registered British ship belonging to the plaintiff was chartered to proceed to Odessa, and there to load a cargo, and then proceed home; a certain number of days being allowed for loading and unloading. The vessel arrived at Odessa in safety; but before the expiration of the time fixed for loading, the British government declared war against Russia. Held, that the contract to load was thereby dissolved (r).
2. The defendants contracted to carry goods from Liverpool to Leghorn. On the vessel reaching Falmouth, in the course of her voyage, an embargo, which continued for two years, was laid on her. Held, that the embargo only suspended the contract to convey the goods, and that the defendants were liable in damages for their non-performance of it (8).
3. A British merchant chartered a Swedish ship for a voyage to St. Michael's, for fruit. The charter-party contained the usual exception against the restraint of princes. The ship was prevented from reaching St. Michael's in the fruit season by an embargo laid on Swedish ships by the British government. Held, that the owner could not, by completing the voyage after the embargo was taken off, recover the freight from the British merchant (t).
4. The charterer of a ship broke his contract in not providing cargo at a foreign port, in consequence of public intercourse being prohibited on account of the prevalence of an infectious dis
(p) The Cito, 7 P. D. 5; 51 L. J., P. 1; 45 L. T. 663; 30 W. R. 836 ; 4 Asp. M. C. 468 (C. A.).
(2) The Copenhagen, 1 C. Rob. Ad. 289.
(-) Reid v. Hoskins, 4 E. & B. 979.
(s) Hadley v. Clarke, 8 T. R. 259.
(1) Touteng v. Hubbard, 3 B. & P. 291.
order; and the ship left. Held, the charterer was liable to the owner (u).
After due notification of the blockade of a certain port, to sail with the intention of violating the blockade is illegal (x). But merely sailing to the port, without any premeditated intention of violating the blockade, is not illegal (y).
It is no defence to an action on a charter-party for not sailing to the port agreed on that it was in a state of blockade, if the defendant knew that it was when he signed the charter-party ().
Where the charter-party contains an express stipulation for its cancellation in the event of a blockade, or a prohibition of export preventing loading, if such an event occur, the charter-party will ipso facto be determined (a).
Endeavouring to break a blockade is punishable with confiscation of the ship and cargo. But the penalty will not be inflicted, unless (1) the blockade was effective, (2) the neutral had due notice of its existence, and (3) he committed some act violating it, either by entering or quitting the port blockaded with a cargo, shipped after the blockade commenced, or by sailing after notice of the blockade with the intention of doing either (6).
CASES. 1. A vessel sailing from Dantzic to Havre in October, 1798, was captured in attempting to enter Hayre in November, 1798. The notification of the blockade of that port was made in February,
(u) Barker y. Hodgson, 3 M. & Sel. 267.
(x) The Neptunus, 2 Rob. 110; The Adelaide, 2 Rob. 111, n. ; see “ Cases" (1) at end of this $.
(y) Medeiros v. Hill, 8 Bing. 234, per Tindal, C. J.; The Shepherdess, 6 Rob. 262, 264.
(3) Medeiros v. Hill, 8 Bing. 234; Naylor v. Taylor, 9 B. & C. 718.
(a) Adamson v. The Newcastle Steamship Ins. Assoc., 4 Q. B. D. 462; see “Cases" (2) at end of
(6) Wheaton, International Law, pp. 592—607 in Boyd's 2nd edit.
1798. Held, that the vessel was, therefore, liable to be confiscated (c).
2. By a charter-party made in February, 1877, a ship was to proceed to Galatz for orders to load there, &c. On the margin were the words, “In the event of war, blockade, or prohibition of export preventing loading, this charter-party to be cancelled.” In April, Russia declared war against Turkey, and the ship, on arrival at Constantinople on the 28th of May, found that the loading port, Galatz, was closed, and she accordingly did not proceed there. Held, that on its true construction, the charter-party, as soon as the loading port was closed by the Russian government, came to an end, without any election by either party (d).
(c) The Neptunus, 2 Rob. 110.
(d) Adamson v. Newcastle Freight Ins. Assoc., 4 Q. B. D. 462.
BILLS OF LADING.
Bills of lading When the owners and master of a ship agree with dif-what, and effect of. ferent merchants, or with one merchant who agrees with
other merchants, to convey their goods to the port to which the ship is about to sail, the contract is termed a contract for conveyance in a general ship.
The terms of the contract are regulated by the bill of lading, an instrument specifying the ship, goods, place of delivery, freight, primage and average, as well as the shipper and consignee. Owing to the great advantages of bills of lading, goods, even where the ship is chartered wholly to one man, are seldom shipped without a bill of
lading. Primage. Primage is a sum agreed to be paid by the freighter or
the consignee to the master for his trouble in shipping the goods. The master can sue for primage, though the freight were fixed by the owner, unless under his contract
with the owner he has given up his right to claim it (a). Mate's On goods being shipped, an acknowledgment, called the receipt.
mate's receipt, is given by the mate, which is afterwards
exchanged for the bill of lading. Clean bill of A clean bill of lading is a bill of lading which states that lading.
the goods are shipped in good order and condition, and
(a) Best v. Saunders, Mo. & Mal. 208; Caughey v. Gordon, 3 C. P. D. 419.