mm smmsu. t 51
named be found to have been blockaded before her arrival there. If
the shipper had still an unrestricted right to name any other open port
of Peru as a "second port" (The Teutonic, L. B. 4 P. C. 171, 182) in
consequence of the blockade of Callao before arrival there, still this
right was limited by the express exclusion under the charter of any
port "north of Cal1ao." No port south of Uallao was at that time
proposed by either party; and it does not appearin evidence whether
any port to the south, and within reasonable distance of Callao, was
at that time open or not. The stipulations of the charter as respects
the place of delivery were evidently abandoned. Upon the arrival of
the ship off Callao, therefore, the dealings of the parties had been
such as to exhaust the express provisions of the charter. The situa-
tion then became, in effect, the same as if Callao had been the only
port of discharge named in the charter—party, with no reference to the
contingency of blockade. The Teutonic, L. B. 4 P. C. 171, 182; 4
Adm. & Ecc. 394. This results necessarily from the fact that both
had waived the "next open port" clause of the charter, and neither
party afterwards acted on it or proposed to act upon it.
3. In case of a blockade of the port of destination, especially where,
as in this case, the very place of discharge is subject to the major
force of the blockading squadron, and in the absence of any alterna-
tive provisions in the charter, the English and American authorities
apparently sustain the respondents’ contention that the obligations of
the charter·party, as a strict common-law contract, are dissolved.
The blockad.e operates on both parties alike. It is a major force that ‘
prevents each from performing his own part of the contract. If it
disables the ship from delivering the cargo as agreed, it equally dis-
ables the consignee from receiving it as agreed. The obligations on
the one side to deliver the cargo, and on the other side to receive it, are
concurrent obligations; and neither party being able to perform his
own part of the contract through a major force and without any fault
of his own, neither can maintain any action against the other for the
non-performance of it. Cunningham v. Dann, 3 C. P. Div. 443; Ford
v. Cotesworth, L. B. 4 Q. B. 127; L. B. 5 Q. B. 544. If this major
force were temporary only, the effect would be only a suspension of the
obligations of the contract till this superior force were withdrawn;
as in the case of an embargo of the port of departure, where the vessel, .
as it is held, may retain the cargo, unless perishable, till the embargo
is removed, and then complete her voyage and earn the stipulated
freight. But by the English and American law a blockade of the port
of destination is regarded as a permanent obstacle to the completion
of the contract on either side. Hadley v. Clarke, 8 Term B. 259;
Palmer v. Lorillard, I6 Johns. 348; Geipel v. Smith, L. B. 7 Q. B.
404, 414. This distinction between the effects of an embargo and of
a blockade is well settled in the English and American law, though
not in accord with the provisions of the majority of the continental
codes on the same subject. The effect of such a blockade under our