This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If a vessel has started on a voyage before the actual or threatened outbreak of war, the fact that war has broken out or has become imminent and that the vessel may be seized as a prize, justifies the vessel in returning to a neutral port or in proceeding to a neutral port, instead of proceeding on the voyage.1 A German vessel which sailed from an American port on the day that Austria declared war on Servia, is justified in returning to an American port without completing her voyage on learning that war would probably follow between Germany and Great Britain, and that such vessel would be seized as a prize when she attempted to deliver her cargo at the English port to which it was consigned.2 Under a contract between an English shipper and the owners of a German vessel, for trans-porting goods to Canada and return, the owners are not liable for delay due to the fact that, at the outbreak of war between Germany and France, the captain of the vessel put into a neutral port to avoid the risk of capture by French cruisers.3 On the other hand, it is held that the fact that performance of a contract will involve the danger of the seizure of the property by the military authorities, does not operate as a discharge of the contract.4
11 See Sec. 2711 et seq.
12 See Sec. 2711 et seq.
13Hore v Whitmore, 2 Cowp. 784.
14Touteng v. Hubbard, 3 Bos. & Pul. 291.
15Touteng v. Hubbard, 3 Bos. & Pul. 127.
16 Horlock v. Beal , A. C. 486 [distinguishing, Hadley v. Clarke (1799) 8 T. R. 259; and Beale v. Thompson (1804), 4 East. 546; and reversing (1915), 3 K. B. 6271.
17 Hor1ock v. Beal fl9161, A. C. 486 [distinguishing. Hadley v. Clarke (1799), 8 T. R. 259; and Beale v.
Thompson (1804), 4 East 546; and reversing (1915). 3 K. B. 627J. (Of the judges who held that these facts amounted to an impossibility which discharged the contract. the majority held that the impossibility began when the vessel was detained; and the minority held that it began when the crew was imprisoned.)
1 The Teutonia, L. R. 4 P. C. 171; Nobel's Explosives Co. v. Jenkins , 2 Q. B. 326; The Kronprinzessin Cecilie, 244 U. S. 12, - L. ed. - [reversing, The Kronprinzessin Cecilie, 238 Fed. 668].
A contract for chartering a vessel to proceed to a certain port is discharged by the fact that such port has been blockaded, if the blockade is effective, at least if it continues for such time as to prevent performance in accordance with the intention of the parties.5 Blockade has, however, been held to suspend a contract for transporting goods from such port, and not to discharge it 6 A contract to transport goods to a certain port is not discharged by the fact that a blockade of such port is declared if such blockade is not effective.7 For the purposes of international law, however, a blockade which is not effective is not recognized as having any regular effect.
The owner of a vessel on which goods have been placed before the outbreak of the war is not bound to attempt to perform the contract after war has broken out and such goods have been declared contraband.8 He is not liable in damages, therefore, because of his conduct in unloading such contraband at a neutral port and continuing his voyage.9 If such articles have been declared contraband by a formal decree, the carrier is not bound to rely upon oral declarations of the belligerent power to the contrary, nor upon its orders to its naval officers.10
2The Kronprinzessin Cecilie, 244 U S. 12, - L. ed. - [reversing, The Kronprinzessin Cecilie, 238 Fed. 668].
3 Anderson v. San Roman, L. R. 5 P. C. 301. (In this case it was shown that at least five f cruisers were lying off the neutral port in which such vessel had taken refuge for a considerable length of time.)
4Elsey v. Stamps, 78 Tenn. (10 Lea) 700 (a contract for the delivery of whiskey).
5 The Tutela, 6 C. Rob. 177.
6 Palmer v. Lorillard, 16 Johns (N. Y.) 348; Ogden v. Barker, 18 Johns. (X. Y.) 87.
7 Balfour v. Portland & A. Steamship Co., 107 Fed. 1010.
8 The Styria, 186 U. S. 1, 46 L. ed. 1027 [modifying, The Styria, 101 Fed. 7281.
Such contract is not illegal in the proper sense of the term. See Sec. 2771.
9The Styria, 1S6 U. S. 1, 46 L. ed. 1027 [modifying, The Styria, 101 Fed. 728].
A contract for chartering a vessel is not discharged because of the fact that submarine warfare has assumed such proportions that the danger of the destruction of the vessel by submarine has become considerable, at least as long as commerce is carried on in spite of submarine warfare.11