Reported by J. P. As p i s a l l, Esq., Barrister-at-Law.
A p ril 20 and June 6, 1871.
Th e Pa t b i a.
Non-delivery of cargo—Outbreak of war—German ship—Englishb ill of lading and consignees— What law governs—General maritime law.
There is a general naritime law administered alike by English and foreign courts, having admi
ralty jurisdiction, distinct from the municipal laws of nations, (a)
Lloyd v. Guibert (13 L. T. Rep. N. S. 602) con
sidered.
By the laws of England and of the North German Confederation, a b ill of lading is decisive as be
tween ship owner and consignee, and the North German code, although providing a form of b ill of lading, does not prevent a special form of contract.
The master of a North German vessel, under a North German charter party, gave a b ill of lading fo r goods shipped on board his vessel, in South Ame
rica, as part of a general cargo to be delivered in North Germany to English consignees. The Eng
lish language, money, and weight were used in the bill of lading, which contained the proviso, “ the dangers o f the sea only excepted.” The master of the vessel, on her arrival at Falmouth, refused to proceed on account of the outbreak of war be
tween France and Germany .-
Held, that, whether the contract ivas governed by English, general maritime, or North German law, the master was bound to proceed, as the bill of lading was precise in its terms, and, contem
plating the happening of certain events, exempted him in only one event.
The goods were stowed at the bottom of the hold under those of the other shippers, a,nd as the charterers refused to consent to the unloading of the cargo at (a) There may arise cases of contract where the law of no particular state is applicable, no intention of the parties being expressed, as in the case of a contract made on the high seas between vessels of different states, to be per
formed on the high seas, and there is no doubt that there are certain rules of conduct which are observed by all civilised nations alike, and this applies both to questions of contract and tort. Such rules are enforceable by both British and foreign courts, and so become law, and therefore it may be said, that in maritime matters there is a general maritime law. The legislative enactments of England, or of other countries, cannot apply to foreign ships with respect to acts done on the high seas or in foreign ports, unless their owners so wish at the time, and when a suit is instituted against such ships, it is manifest that there must be some law applicable to them which is distinct from the statute law of the land, and this law is derived from those principles which form the foundation not only of our English law, but of the laws of all civilised nations. Such a law whatever it may be called, is no doubt administered by English and foreign courts having admiralty jurisdiction^ _As the principles themselves do not make the law, but it is made rather by the application of them, the dictum above will not conflict with the words of Willes, J,, in Lloyd v.
Guibert (sup.), where he uses the phrase, ” the general maritime law as administered in England.” As to the law governing cases of collision between British and foreign ships on the high seas, see The Zollverein (Swa, 96), The Dumfries (Swa. 63), The Chancellor (14 Moo.
P. C. C. 202 ; 9 L. T . Rep. N . S. 627).—Ed.
M A R IT IM E L A W CASES.
■72
Ad m.] Th e Pa t r i a.
Falmouth, the master would not deliver to the con
signees there, even on the offer of f u ll fre ig h t;
Held, that the master was hound to deliver at F a l
mouth.
Semble, that as the rights and obligations of the parties to a contract are to be determined by the law which they have declared themselves to intend, and as where there is no express declaration of in tention, the presumption as to the law contemplated by the parties must be gathered from the circum
stances of the case, in this case the English law applied to the contract as between the shipowner and consignee, (a)
Th i s was a suit instituted under the 6th section of the Adm iralty Court A ct 1861 on behalf of Messrs.
Chalmers, Guthrie, and Co., of Idol-lane, in the C ity of London, merchants, the consignees under a b ill of lading of 1923 bags of coffee on board the ship Patria, for damages occasioned by the non
delivery of the said goods.
The Patria is a vessel sailing under the flag of the North German Confederation, and belonging to the port of Geestemunde in Hanover, one of the states of the Confederation, and her owners are subjects of the said state. In March 1870 she was chartered to Messrs. Frederick M iiller and Sons, of Bremen, subjects of the said Confederation, and the said charter was entered into at Bremen.
W hilst under the said charter party, she was lying at the port of Champerico, in the republic of Guatelema, taking in a general cargo for Ham
burg. The said cargo was shipped under the charter party for the benefit of Messrs. M iiller and Sons, and was procured by them or their agents, and not by the owners of the ship.
The p la in tiff’s goods were shipped on board the Patria, to be carried to Hamburg, on the terms of the following b ill of lading.
Shipped in good order and condition by Fdigoras y Ceballas on board the vessel called the P atria, whereof B. H . Kassebohm is master, now lying at the port of Champerico, and bound for Hamburg, vid Teeojate and San Jose de Guatemala, to say, 1928 bags of coffee, of 1301b. net each, being marked and numbered as in the margin, and are to be delivered in the like order and con
dition at the port of Hamburg (the dangers of the sea only excepted) unto Messrs. Chalmers, Guthrie, and Co., of London, or to assigns, he or they paying freight for the said goods 41. British sterling per ton of 22401b. and 51. per cent, primage. In winess whereof the master or purser of the said vessel hath affirmed to five bills of lading all of this tenor and date, one of which being accomplished, the others to stand void.
B. H . Ka s s e b o h m. Dated in Champerico the 19th March 1870.
Five copies of the said b ill of lading were signed by the master, and four were given by him to the said Fdigoras y Ceballas.
A ll the remaining goods on board the P a tria were shipped to Hamburg by, and belonged to, subjects of the North-German Confederation, and continued to belong to them up to the institution of this suit. On 5th A p ril 1870 the Patria sailed for Hamburg, and on the 23rd Aug. arrived in the British Channel, and her master and certain of her crew being i l l and in want of medical assistance, the ship put into the port of Falmouth.
Before the arrival of the ship in the English Channel war had broken out between France and Germany, and was then existing, and the port of Hamburg was blockaded by a French fleet from
(a) This does not in any way conflict with Lloyd v.
Guibert (sup.), as in that case the intention of the parties fnrniab«^ tb - guide to the governing law.—-Ed.
[Atoi. the 19th Aug. u ntil the 18th Sept. A t the time the P atria put into Falmouth there were French cruisers in the channel and on the whole line of route to the port of Hamburg, and if she had gone to sea she would have run great risk of capture.
The master of the Patria on the 9th Sept, left his ship, which remained at Falmouth, and went to London, and did not return u ntil the 1st Dec.
The ship was arrested on the 9th Nov, 1870. Pre
vious to the arrival of the ship, on the 1st June 1870, the plaintiffs learned, by a letter from Messrs.
M iiller and Sons, from Bremen, that they were the charterers and consignees of the vessel, and the plaintiffs wrote, on the 16th July 1870, to M iiller and Sons, a letter set out in the judgment.
A correspondence took place between the plain
tiffs and the master of the Patria, and in substance it showed that the plaintiffs did not require the master to sail during the blockade of the port of Hamburg; that they required dellveryat Hamburg after the raising of the blockade, unless the master would deliver at Falmouth, either of which the master refused to do. The plaintiffs’ demand for delivery at Falmouth was disputed, and the master said that there had never been a distinct demand.
The master further said that there had been no sufficient tender of freight, but the plaintiffs gave evidence to prove the tender, and called a Mr.
Coward, clerk to Broad and Sons, plaintiffs’ agents in Falmouth, who swore that he said to the master
“ We w ill pay fu ll freight, as i f the ship was discharged at Hamburg.” A ll the bills of lading were uot given up, but i t did not appear that the master made any d,emand for them. The goods in question were stowed at the bottom of the vessel, and could not be got out at Falmouth without unloading the goods of the other shippers.
To this M iiller and Sons, the charterers, would not consent unless the plaintiffs paid their proportion of the general average expenses of such unloading.
I t did not appear on the evidence that any demand for such payment had been made. Paragraph 2 of the defendant’s answer said that the goods were shipped “ on the terms of a bill of lading signed and delivered by the master of the Patria.”
The defendants’ answer also contained the follow
ing paragraph :—
13. By the law of Hanover and the said North German Confederation, the master of the P a tria was entitled to keep the P a tria in Falmouth harbour, whilst the Patria or her cargo, or part thereof, would have been liable to risk of capture at sea by reason of the continuance of the said war, and the master of the Patria was not by such law, whilst the blockade continued, or whilst the said war and liability to risk of capture continued, under any obligation to the plaintiffs to proceed or attempt to proceed to Hamburg w ith the P atria ; and by the said law the master of the P a tria in putting into and remain
ing with the P a tria in the said harbour of Falmouth as aforesaid had not at the time of the institution of this suit been g uilty of any breach of duty or of contract to or with the plaintiffs.
15. By the law of Hanover and the said Confederation, certain expenses incurred by reason of the P a tria having gone into and having been detained at Falmouth became divisible among ship freight and cargo, according to the principles of general average ; and by such law the master of the P a tria is entitled to retain any part of the cargo of the P a tria for the proportion of such expenses chargeable on or in respect of such part, or until the owner of such part should have given security for the payment of such ¡proportion, and the plaintiffs never tendered or offered to pay their proportion of the said expenses in respect of the oargo comprised in the said i b ill of lading, nor to give security for the same.
M A R IT IM E LA W CASES.
73Ad m. ] Th e Pa t r t a. [ Ad m.
17. By the law of Hanover and the said Confederation, the master of the Patria was forbidden to deliver to the plaintiffs, and could not lawfully deliver the goods men
tioned in the said bill of lading unless all the copies of the said bill of lading, signed by the said master and de
livered by him as aforesaid, were delivered as aforesaid.
The plaintiffs never tendered to the said master divers ©f the said copies of the said bills of lading ; and divers of snch copies have remained and are in the hands of per
sons unknown to the said master and the owners of the P atria.
20. The defendants further say that, by the said charter party aforesaid, which bore date the 29th Jan. 1869, the said charterers were entitled to the use of the said ship, and that the said ship had been put up by them as a general ship ; and thereby the said bill of lading was signed and delivered by the said master pursuant to the terms of the said charter party, for the benefit of the
«aid charterers and not for the benefit of the owners of the said ship ; and that in signing and delivering the said bill of lading, the said master acted as agent for the said charterers and not as agent for the defendants.
21. The said Fdigoras y Ceballas had, at the time
"^hen the said goods were shipped, notice that the said ship was under charter; and the plaintiffs had, at the time when they became the consignees of the said goods, Notice that the said ship was under charter at the time of the said shipment.
22. The defendants submit that the said goods men
tioned in the said bill of lading were not carried into any P °rt in England or Wales within the true intent and jneaning of the Admiralty Court Act 1861, s. 6, and that this Honourable Court has not jurisdiction to entertain this BUit.
M r. Travers, Vice-Consul of the North German Confederation, who was German advocate, proved the existence of a N orth German code of laws and produced a copy of the Mercantile Code, and said that a correct translation of the part relating to maritime law was published in “ Papers on Maritime Legislation, w ith a translation of the German Mercantile Law relating to Maritime Commerce, by Ernst Em il Wendt. The articles the code referred to in the argument were as follow :
A rt. 504.—The master shall at the same time take very possible care of the cargo during the voyage, in ne interest of those who are concerned therein. When pecial measures are required in order to avoid or lessen
* °s b, i t is his duty to protect the interests of those con- f r^ed in the cargo, as their representative; to take
?eir instructions, if possible, and, as far as circum- tances admit, to carry the same into effect; otherwise, _ owever, to act according to his own discretion, and f n ^ -a lly to take every possible care that those interested the cargo are speedily informed of such occurrences, .nd of the measures thereby rendered necessary. He is 8Uch cases particularly authorised to discharge the n°ie or portion of the cargo ; in the most extreme cases, a considerable loss on account of imminent deteriora- o r i ° r ° ^ er canses cannot be otherwise averted, to sell u hypothecate i t for the purpose of providing means for 8 preservation and farther transport; to reclaim i t in oth ° a8-e <?aP*'ure or detention ; or, if it shall have been iud^r,W*Se whbdrawn from his charge, to take all extra- J oicial and judicial steps for its recovery.
0 • h - 505.—When the prosecution of the voyage in its is direction is prevented by an accident, the master q- at liberty either to continue the voyage in another or + c* 10n> or suspend it for a shorter or longer period, cir ° re*'urn f ° the port of departure, according to the la ttUrnS^ance8’ an<^ fQ8trRctions received, which of f i f are k® adhered to as far as possible. In the case shall cancehing of the contract of affreightment, he
1 act according to the provisions of A rt. 634.
wi+ii * 631.—Either party can withdraw from the contract Co ° ut being liable for damages :—1. When, before the emi menc©“ ent of the voyage, the vessel is placed under oou a»r^0’ or taken possession of for the service of the i^ ry c>r a, foreign power; the trade with the port of deR+‘llai 011 prohibited ; the loading port or the port of to ^ ln^t.10n is blockaded; the exportation of the goods,
6 shipped according to the contract of affreightment,
from the port of loading, or their impor fcation into the port of destination is prohibited ; the vessel is by a Government order prevented from putting to sea, or the voyage, or the transmission of the goods to be shipped according to the contract of affreightment, is prohibited. In all the fore
going cases, however, the Government order justifies the withdrawal of the contract only when the impediment that has arisen is apparently not of short duration. 2.
When, before the commencement of a voyage, a war has been declared, in consequence of which the vessel, or the goods to be shipped according to the contract of affreight
ment, or both, can no longer be considered free, and would be liable to risk of capture.
A rt. 634. The dissolution of the contract or affreight
ment alters nothing in the obligation of the master to take care of the cargo in the absence of the interested parties, even after the loss of the vessel (articles 504, 506). The master is, therefore, justified and obliged, and in urgent cases even without previous inquiry, as cir
cumstances may require, either to forward the cargo to the port ef destination in another vessel for account of the parties concerned, or to have [it stored, or sold, and in case of its being forwarded or stored, to sell a portion of the same for the purpose of realising the funds neces
sary thereto and to its preservation, or in case of its being forwarded, to take a bottomry bond on the whole or part of it. The master is, however, not obliged to part with the cargo, or deliver it to another master for the purpose of its being forwarded, unless the distance freight as well as all other claims of the shipowner, and the contributions due from the cargo for general average, salvage, and assistance and bottomry have been paid or secured. The shipowner is answerable for the fulfilment of the duties devolving on the master according to the first section of this article, to the extent of his ship, so far as anything has been saved of it and of the freight.
A rt. 636. When subsequent to the commencement of the voyage, any of the incidents occur to which reference is made in A rt. 631, either party has a right to withdraw from the contract without being liable to damages.
When, however, any of the incidents mentioned in A rt.
631, No. 1, have occurred, the parties have, before being able to withdraw, to wait for the removal of the impedi
ment, three or five months respectively, according as the
ment, three or five months respectively, according as the