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out paying the freight, that might become due for the carriage of them, and indemnifying the master against the consequences of any bill of lading signed by him (a). Indeed a master who has signed bills of lading cannot with prudence deliver back the goods without having all the parts of the bill of lading delivered up to him, for if any one part has been transmitted [406] to a third person, such third person may have acquired an interest in the goods.

3. Another general rule of law furnishes a dissolution of these contracts by matter extrinsic. If an agreement be made to do an act lawful at the time of such agreement, but afterwards, and before the performance of the act, the performance be rendered unlawful by the government of the country, the agreement is absolutely dissolved. If therefore, before the commencement of a voyage, war or hostilities should take place between the state to which the ship or cargo belongs, and that to which they are destined, or commerce between them be wholly prohibited, the contract for conveyance is at an end (b), the merchant must unlade his goods, and the owners find another employment for their ship. And probably the same principles would apply to the same events happening after the commencement and before the completion of the voyage, although a different rule is laid down in this case by the French Ordinance (c), as I have before observed (1). But if war or hostilities

(a) 2 Eq. Ca. Ab. p. 98 Anon. (b) French Ordinance, liv. 3. tit. 1. des charte-parties, art. 7.

(c) Liv. 3. tit. 3. Fret. art. 15. See before, part 3. ch. 7. sect. 5.

(1) If the port to which the ship is by the charter party bound to proceed, be blockaded, this produces a dissolution of

break out between the place, to which the ship or cargo belongs, and any other nation, to which they are not destined; although the performance of the contract is thereby rendered more hazardous, yet is not the [407] contract itself dissolved, and each of the parties must submit to the extraordinary peril, un

less they mutually agree to abandon the adventure. So, if the government of the country, to which the ship and cargo belong, should prohibit the exportation of the particular commodities, that compose the cargo, or by the terms of the contract are destined to compose it, (as is sometimes done by all states with regard to provisions in a time of scarcity,) in this case also it seems that the law of the country would give no damąges to the owner against the merchant, who had been thus compelled by the law of the same country to abandon his engagement. On the other hand, if a merchant hire a ship to go to a foreign port, and covenant to furnish a lading there, a prohibition by the government of that country to export the intended articles, neither dissolves the contract, nor absolutely excuses a non-performance of it (d); for the laws of one nation do not give effect to the positive institutions of another incon

(d) Said by the Court to have been so decided in Chancery, 2 Vern. 212. And see Dig. 19. 2. 61. 1. Ordin. of Rotterdam, art. 130, 131, 132. 2 Mag. 102. and Cleirac, note 4. on the 19th article of the

laws of Oleron. And ruled in the case of Blight & others. Page, Guildhall Sit. after M. T. 1801, before Lord Kenyon, Ch. J. cited 3 Bos. & Pull. 295, note (a).,

the charter-party. This was so held on a charter-party be tween neutral citizens in Scott v. Libby, 2 John. Rep. 336.; and on a charter-party between a neutral and a belligerent by Sir William Scott in The Tutela, 6 Rob. Adm. Rep. 177.

sistent with its own; and the different interests of nations sometimes render an act meritorious in one, which is prohibited by another in alliance with it, if the act be not contrary to the general law of nations, or to existing treaties; and the common exception of the restraint of princes and rulers applies only to the [408] case of the master (e). But in such a case it would be the duty of the master upon his arrival at thé port of lading to obtain another cargo, if possible, from other persons, and not sullenly hoist sail and depart, in order to charge the merchant with the whole freight. And if upon the ship's arrival he is informed that the merchant is unable to furnish the lading, he cannot, by waiting the time appointed in the charter-party, charge the merchant with the demurrage (ƒ).

4. But although contracts of this nature are dissolved by the breaking out of war or hostilities in the manner before mentioned, of which no person can foresee the termination; yet they are not dissolved by an embargo, or temporary restraint of their performance imposed by the government of the country, in whose ports the vessel may happen to be, as a measure of political caution in time of war, or upon the expectation of it, either in the lading port, or in a place, at which the ship may have touched in the course of her voyage (g). This subject has lately received a judicial determination in the law of England. The case (h) was as follows: Hadley, the plaintiff, brought an action against [409] Clarke & others, owners of the ship Pomona, for

(e) Blight & others v. Page. And see also as to this point Touteng & another v. Hubbard, 3 Bos. & Pull. 298.

(f) Blight & others v. Page. (g) French Ordinance, liv. 3. tit.

1. des charte-parties, art. 8. and see liv. 3. tit. 3. fret. art. 16. Pothier, charte-partie, num. 100.

(h) Hadley . Clarke, 8 Ter. Rep.

K. B. 259.

British government on all Swedish vessels; upon which the merchant applied to the captain to give back his letters of advice, who declined to do so, and who soon after the embargo was taken off, which happened in the following June, offered to proceed on the voyage, but was directed by the merchant not to do so, because the season for shipping fruit was then passed; the Court of Common Pleas held that the master could not maintain an action against the merchant for the non-performance of the contract (n). For otherwise a British subject would sustain the evils that the government of his country intended to inflict on foreigners; which is contrary to the principle now established in the law of insurance, viz. that the insurer is not answerable for a loss happening to an enemy by British capture in a course of hostilities, whether existing at the time of the insurance,

or taking place afterwards (0). In the case of [412] another Swedish vessel stopped under the same embargo, with a British cargo of fish on board, the cargo was taken out and restored; and upon the restoration of the ship the learned Judge of the Court of Admiralty held the merchant not to be liable to the freight, as I have mentioned before (p).

(n) Touteng & another v. Hubbard, 3 Bos. & Pull. 291.

(0) Furtado v. Rodgers, 3 Bos. & Pull. 191. And Kellner v. Le Mesurier, Gamba v. Le Mesurier, and Brandon v. Curling, all three decided in the Court of King's Bench

in Mich. Term, 1803, and reported, 4 East. 396, 407, 410.

(p) The ISABELLA JACOBINA, Sovergren, 4 Rob. A. R. 77. cited before, chap. 7. of this part, sect. 15. b.

PART THE FOURTH.

OF THE WAGES OF MERCHANT SEAMEN.

CHAPTER THE FIRST.

OF THE HIRING OF SEAMEN.

SEAMEN

EAMEN employed in merchant ships are usually hired at a certain sum, either by the month, or for the voyage. In the former case the amount of the payment, that may be earned by them, depends upon the length of the voyage; in the latter it is fixed invariably without any regard to the duration of the voyage. In the fishing trade, particularly the whale-fishery, and in private ships of war, the seamen usually serve under an engagement to receive a certain portion of the profits of the adventure, Such an engagement is rather in the nature of a partnership than of a contract of hiring and service, and the objects of it do not properly fall under my consideration (1). An engagement to receive a

(1) But in an action brought against the master by a seaman in the whalefishery, who was to receive a certain part of the profits of the voyage in lieu of wages, after the cargo was sold, Lord Alvanley held that he was entitled to recover the amount of his share; that the share was to be considered, when liquidated by sale, as in the nature of wages; and that mariners in

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