Contract dissolved by performance non-performance of this positive contract that no guano was to be found at the island (y). But where the act to be performed is of such a nature that both parties must concur in doing it, and an unexpected event prevents each from doing his part, neither can maintain an action against the other for the non-performance of the act. Thus, in a case where a vessel was chartered to load a cargo at a named port, and by the regulations of the port the loading of the agreed cargo was prohibited, the charterers sought to recover damages against the shipowners for not loading the agreed cargo; but it was held that as neither of the parties were able to perform their respective duties under the contract, the plaintiffs being unable to load the cargo, and the defendants to receive it, the action could not be maintained (≈). The general rule stated above is subject to this further qualification that if after the contract is made it becomes unlawful becoming un- for either party to perform it, then the performance cannot be insisted upon, nor can damages be recovered for the non-performance, because lex non cogit ad impossibilia (a). lawful. Thus, it has been said, that 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 would be considered to be dissolved, or, at all events, no damages could be recovered for its breach (b). And the breaking out of a war, or a local interdiction of commerce, arising subsequently to the making of the contract between the state to which the ship or cargo belongs and that to which it is destined, would have the same effect (c). It is otherwise with respect to an embargo, which operates only as a temporary suspension of the adventure, and such an impediment cannot, at least where the contract has been in part performed, be set up in answer to the (y) Hills v. Sughrue, 15 M. & W. 253. The charter-party in this case provided also that certain disbursements were to be returned to the charterers "in the event of any unforeseen cause preventing the completion of the charterparty:" but the Court held that this stipulation could not be construed to mean that the contract by charter-party was to be at an end under circumstances such as those which had happened. See also Puller v. Staniforth, 11 East, 232, and supra, p. 322, n. (~). (2) Cunningham v. Dunn, 3 C. P. D. 443. See also Ford v. Cotesworth, L. R., 5 Q. B. 544. (a) Baily v. De Crespigny, L. R., 4 Q. B. 180. (b) See the judgment of Lord Ellenborough in Barker v. Hodgson, 3 M. & S. 270. A prohibition at the port of discharge by a foreign government would not have this effect. See Blight v. Page, cited 3 B. & P. 295, note (a), and Touteng v. Hubbard, ib. 291. (c) See Abbott on Ship. 596. breach of a contract which has not provided against the contingency (d). But if the embargo is of an hostile character, and the object of the voyage is likely to be defeated by the delay, it seems that the contract may be treated as dissolved (e). Where an embargo was laid by the British Government upon foreign ships, as an act in the nature of reprisals and of partial hostility, it was held that no right of action could be founded in our Courts, by an owner of one of the foreign vessels against an English merchant, for a breach of contract which resulted only from his obedience to the orders of his own Government (f). In recent years a number of cases have arisen having reference Recent cases to the matter now under consideration, and although the deci- effect of war respecting the sions in many of them turn upon the meaning of express ex- on contract of ceptions contained in the shipping documents, yet they are all so connected that it will be convenient to consider them together here. During the Crimean war, some important questions arose with reference to the effect of war on contracts of this description. In a case in the Court of Exchequer, it appeared on the pleadings that the plaintiff had agreed, at the request of the defendants, to execute an order for goods required by a merchant at Odessa, and that the defendants had for certain considerations undertaken to accept the plaintiff's draft for the invoice price of the goods. To a declaration setting out these facts, and alleging that the defendants had not accepted the plaintiff's draft, the defendants pleaded that at the time of the making of the agreement the merchant at Odessa was an alien, and that afterwards, before any breach of it, and before the time when the plaintiff was to have despatched the goods to him, he became and still was an enemy of the Queen, so that the plaintiff could not lawfully forward the goods to him. To this plea the plaintiff replied. that in the declaration of war against Russia the Queen had waived the right of seizing enemy's property laden on board of neutral vessels, unless it was contraband of war, and that, by a (d) Hadley v. Clarke, 8 T. R. 259. In this case the contract was considered to be suspended until the embargo was removed. See also Scott v. Libbey, 2 Johns (American) Rep. 336. In Pul ler v. Staniforth, 11 East, 232, and Bell v. Puller, 2 Taunt. 285, the charterparties expressly provided for cases of interference with the contract by poli tical circumstances. (e) Abbott on Shipping, 3rd ed. p. 411; and see Rodocanachi v. Elliott, L. R., 9 C. P. 518. (f) Touteng v. Hubbard, 3 B. & P. 291. See the observations on this case by Blackburn, J., in Geipel v. Smith, L. R., 7 Q. B. 412, and see post, p. 332. affreight ment. subsequent order in council, six weeks from the declaration of war had been allowed to Russian merchant ships in ports in the Queen's dominions for loading their cargoes and departing, and that the goods in question were not contraband of war, and might before the expiration of the six weeks have been shipped on board a ship under the order in council. Upon a demurrer to this replication, it was held that the plaintiff was entitled to judgment, as, assuming that the declaration of war had made it illegal for the plaintiff to send the goods to an enemy, it appeared that they might have been shipped within the period allowed by the order in council (g). Some observations in this case threw a doubt upon the general doctrine that after a declaration of war all trading and commercial intercourse with the inhabitants of the enemy's country is absolutely illegal; but this decision proceeded, as will be seen, upon the ground that in that particular case the performance of the contract in question had been permitted by the very terms of the declaration of war, and the general doctrine mentioned above has been, after full consideration and argument, fully sanctioned by the Court of Exchequer Chamber in a later case, and has also been recognized by the Court of Queen's Bench in some cases to which it is now necessary to refer shortly. In the first of these cases the question was raised on a demurrer in the Court of Queen's Bench, and afterwards carried to the Exchequer Chamber (h). It appeared that a ship owned by the plaintiff, a British subject, and in a British port, had been chartered to the defendant, also a British subject, to proceed to Odessa, and there load a cargo. By the charter, certain running days were to be allowed for loading and unloading, and demurrage was then to be paid at a fixed daily rate. The declaration alleged that the defendant had made default in loading, and had detained the ship on demurrage beyond the laying days. The plea stated that after the making of the charter-party, and before the arrival of the ship at Odessa, war had been declared against Russia, and that Odessa had been since a hostile port in the possession of the Queen's enemies, so that it was impossible for the defendant to perform his agreement, without dealing and trading with the Queen's enemies. The replication set up some orders in council, under which the plaintiff (g) Clemontson v. Blessing, 11 Exch. 135. See also the authorities collected and commented on in the note to that case. Ib. 141. (h) Esposito v. Bowden, 4 E. & B. 963; 7 E. & B. 763. contended that the defendant would have been justified in loading the vessel, and to which it is not necessary to refer particularly, as it was held both by the Court of Queen's Bench and by the Exchequer Chamber that they could not be applied to the particular circumstances disclosed by the declaration. Upon this state of facts the Court of Queen's Bench was of opinion that the plea was not sufficient, since it did not show that it was impossible for the defendant lawfully to perform his contract, for he might have bought a cargo before notice of the declaration of war, or have even bought one afterwards from British subjects at Odessa, in either of which cases it would have been lawful to load the ship after notice of the declaration of war. This reasoning was not, however, adopted by the Court of Exchequer Chamber, which reversed the judgment below, and laid down very distinctly, and in accordance with the older decisions, that the object of war, being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of all commercial intercourse and correspondence with the inhabitants of the enemy's country, and that all such intercourse is illegal, except with the licence of the Crown (i). With reference to the grounds upon which the decision in the Court below had been rested, the Judges in the Exchequer Chamber were of opinion that the plea was good, as showing a dissolution of the contract, and an impossibility of legally performing it, since the shipment of a cargo from an enemy's port, even in a neutral vessel, was prima facie illegal, and if any peculiar circumstances existed, which made such a shipment legal, it lay on the plaintiff to allege these facts. Another question of a similar kind arose in the Court of Queen's Bench, soon after the last-mentioned case had been decided in that Court, but before its decision had been reversed in a Court of Error. In this case (k) the declaration was framed upon a charter-party between the plaintiff and the defendant, by which the defendant agreed to load a cargo on board the plaintiff's ship at Odessa, and it alleged that the defendant has made default. The plea stated that before the breach of contract war had been declared by England against Russia, and had since existed, of which both the plaintiff and the defendant had notice before any breach; that both the (i) Esposito v. Bowden, 7 E. & B. 763. (k) Reid v. Hoskins, 4 E. & B. 979; 6 E. & B. 953. See also the report of this case after the trial of the issue in fact, 5 E. & B. 729. plaintiff and the defendant were British subjects, and the ship was a British registered ship; that Odessa was part of the Russian Empire, and that no licence from the Queen could be obtained for loading the ship, and that the defendant could not have procured a cargo or loaded the ship without trading or corresponding with the enemy. The Court of Queen's Bench held, under these circumstances, that the contract was dissolved before any breach of it by the defendant, and that he was entitled to judgment. The Court stated that it was material that the owners of the ship were alleged to be British, (since it was, on this account, the duty of the captain to make his escape from Odessa as soon as he heard of the declaration of war,) and it distinguished this case from the earlier decision, on the ground that the plea contained an averment negativing the supposition that the defendant, before the declaration of war, could have provided a cargo from Russian subjects, or, after the declaration of war, could have loaded the vessel without trading with the enemy; an averment which, as we have seen, was not (according to the view afterwards taken by the Exchequer Chamber (1)) in any way necessary. Another case in the Court of Queen's Bench gave rise to some questions relating to this subject. In this case (m) the defendant contracted with the plaintiff, by charter-party, to load on board a ship of the plaintiff a cargo, at Odessa, at a certain rate of freight. The plaintiff's ship was to proceed from a British port to Constantinople, and thence to Odessa, and it was agreed that if before the ship arrived at Constantinople "war had commenced,' the cargo was to be loaded at a reduced rate. It appeared that, in fact, before the ship had arrived at Constantinople war had been declared between Russia and Turkey, but not between England and Russia. The Court held, under these circumstances, that the contingency contemplated by the charterparty was war between Russia, the state in possession of the port of loading, and England, and this not having occurred before the arrival of the ship at Constantinople, that the contingency upon which the freight was to be reduced had not happened. In the same case it appeared that another charter-party had been entered into between the same parties, by which the defendant had (1) See the judgment in Esposito v. Bowden, 7 E. & B. 763. (m) Avery v. Bowden, 5 E. & B. 714; 6 E. & B. 953. See also Barrick v. Buba, 2 C. B., N. S. 563. |