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 contract for chartering a vessel contains an exception in case of the act of God, the king's enemies, and restraint of princes and rulers, a contract to take a cargo and carry it to a given port is discharged if such port is blockaded by a hostile power.1 If a contract for chartering a vessel contains a provision that no voyage should be undertaken and no goods shipped that would involve risk of seizure, capture or penalty by rulers or governments, the owner of such vessel may insist that it shall not be sent on a voyage after the outbreak of the war which will expose it to risk of being destroyed by submarines.2 Under a clause in a bill of lading to the effect that the prepaid freight was to be retained by the carrier, whether ship or cargo were lost or not lost, the contract is not discharged by reason of the fact that the government delays the voyage indefinitely by refusing to give clearance to sailing vessels destined for the war zone,3 and the freight thus paid can not be recovered by the shipper.4 This result was reached even where the voyage could have been made but for the fact that the vessel was injured in a storm and returned to port for repairs, where it was delayed by the refusal of the government to issue a clearance.5 While the right of the carrier to retain the freight is most clear where the bill of lading provides that it shall be retained "irrevocably," • such result is to be reached under a clause which provides that "prepaid freight is to be considered as earned on shipment of the goods and is to be retained by the vessel's owners, vessel or cargo lost or not lost."7 A contract to load a Grecian vessel in the Black Sea with a cargo for England, is discharged by the outbreak of war between Turkey and Greece, as a result of which Turkey prevents Grecian vessels from passing the Dardanelles.8 The fact that the Turkish government subsequently modified its original practice and permitted Grecian vessels with cargo for neutral countries to pass for a short time, did not prevent the discharge of such contract.9 A contract which contains an express provision against arrests and restraint of princes, and which provides against voyages involving the risk of seizure or capture, and which gives to the charterer the option of canceling the charter or insuring the vessel against war risks if any Avar should break out which affected the operation of the vessel, is discharged by the outbreak of the war of 1914, while the vessel was in the Gulf of Finland on a voyage of indefinite duration.10 A contract by which A agreed to furnish a steamer to B, to transport a cargo from a port on the Sea of Azof to Japan in 1914, was held not to be discharged on September 1, 1914, by reason of the outbreak of war, since Turkey had not then entered the war, and did not enter it until November, and did not close the Dardanelles to navigation until after sunset on September 26, and since the English government had not prohibited steamers from going to the Black Sea to load.11 The " reasonable apprehension that the Dardanelles might be closed," was held not to amount to a "restraint of princes" within the meaning of the contract.12 The fact that the steamer could not have gotten out of the Sea of Azof after loading its cargo before the Dardanelles were closed, was held not to operate as a discharge.13
8 Moore v. Evans , A. C. 185 [affirming (1917), 1 K. B. 458, which reversed (1916) 1 K. B. 479].
9 Moore v. Evans , A. C. 185 [affirming (1917), 1 K. B. 458, which reversed (1916) 1 K. B. 479].
1 Geipel v. Smith, L. R. 7 Q. B. 404.
2 In re Tonnevold [19161, 2 K. B. 551.
3 International Paper Co. v. "Gracie D. Chambers," 248 U. S. 387, - L. ed. - [citing, Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U. S. 377, - L. ed. - ; and affirming, 253 Fed. 182]; Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U. S. 377, 3 A. L. R. 15, 63 L. ed. - .
4 International Paper Co. v. "Grade D. Chambers," 248 U. S. 387, 63 L. ed. - [citing, Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U. S. 377, 63 L. ed. - ; and affirming, 253 Fed. 1821; Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U. S. 377, 63 A. L. R. 15, 63 L. ed. - .
5 Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U. S. 377, 3 A. L. R. 15, 63 L. ed. - .
6 Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U. S. 377, 3A.L, R. 15, 63 L. ed. - .
7 Standard Varnish Works v. "Bris," 248 U. S. 31)2, 63 L. ed. - [citing, Allan wilde Transport Corp. v. Vacuum Oil Co.. 248 U. S. 377, 3 A. L. R. 15, 63 L. ed. - , and International Paper Co. v. "Gracie D. Chambers," 248 U. S. 387, 63 L. ed. - ].
8 Embiricos v. Reid , 3 K. 6. 45.
9 Embiricos v. Reid , 3 K. B. 45.
10 Scottish Navigation Co. v. Souter , 1 K. B. 222.
11 Watts v. Mitsui , A. C. 227.
12 Watts v. Mitsui , A. C. 227.
13 Watts v. Mitsui , A. C. 227].
"In my opinion there was no restraint of princes on September 1st when the shipowners declared their intention of not carrying out their contract. There was an available force at hand in the Dardanelles, and if the situation had been so menacing that a man of sound judgment would think it fool-hardiness to proceed with the voyage, I should have regarded that as in fact a restraint of princes. It is true that mere apprehension will not suffice, but on the other hand it has never been held that a ship must continue her voyage till physical force is actually exercised. I agree, however, with Lord Dunedin's expression that 'it would be useless to try and fix by definition the precise imminence of peril which would make the restraint a present fact as contrasted with a future fear.' No form of words is likely to cover automatically all contingencies. In the present case the lists of ships that went through the Dardanelles to and fro during the material days, which were furnished to us during the argument, though not printed in the book, show that there was no restraint by princes when the voyage was abandoned. I can not agree with the learned counsel for the appellants that we are to judge merely by the event. The decision must be made at the time by those concerned." Watts v. Mitsui , A. C. 227.