rmi: srxnrm. . 53
and confiscation, by attempting to break it, if the blockade be ap-
parently effective.
This case, however, is not that of a contract, express or implied, to
run a blockade, and to reach some interior landing-place where the
consignee is ready to receive the cargo. It is the case of a disability
by each to deliver or to receive the cargo, by reason of a blockade of
the very spot of delivery. In the case of The Tutela, 6 C. Bob. 177, .
the blockade was regarded as making the prior contract illegal._ Sir
Wrnnrxm Soorr, in delivering the judgment of the court, says:
"He [the captain] seems to have entertained no doubt upon that point, but
to have acted only under cm opinion that because he had signed the charter-
party he was bound to proceed; * * * as in all other contracts that be-
come illegal, he might have protested against being any longer bound by his
cha rter-party . "
In Geipel v._Smith, L. R. 7 Q. B. 404, 412, it was decided that if the
port of destination be blockaded after the execution of the charter-
party, the charterer may refuse to load. This decision was, however,
' in part based on the exception of "restraint of princes" which the
charter contained. But the court sustained the fifth plea also, which
made no reference to that exception, on the ground that the major
force put an end to the adventure. Pages 405, 410, 411. To have
this effect, however, the blockade must be real and effective. In
Medeiros v. Hill, 8 Bing. 231, the owners were held liable in damages
for not sailing to the blockaded port according to the charter, the
blockade at that time having ceased to be real or effective, and hence
no real obstacle to the ship’s performing her agreement. And, con-
versely, in the case of The Harriman, 9 Wall. 161, the owners were
held in default and entitled to no freight, because they did not at-
tempt to complete the voyage as agreed on, but returned when 1,200
miles distant from the destination of the ship.
It is doubtless a well-settled rule of law that parties must abide
the risks of their express contracts, and answer in damages for de-
faults which they have not guarded against by appropriate excep-
tions. Holyoke v. Dcpew, 2 Ben. 340; Paradine v. Jane, Aleyn,
26. But this rule, in its practical application, is subject to another
rule,equally well settled, viz.: that if the obligationsof the parties be
concurrent and dependent, and neither is ready or able to perform his
own part, neither has any remedy in damages against the other. In
applying these rules to a ca`se of blockade, there is, perhaps, a dis-
tinction between those cases where the blockade is at a distance from
the place where the delivery is to be made, and merely prevents ac-
cess thereto, and other cases in which the blockade operates directly
upon the place of delivery itself. In the former cases the consignee
may be able and ready to receive the cargo if the ship could reach her
berth; and in that case the disability is upon the ship alone. · In the
latter, the major force, as in the present case, operates upon both par-
ties alike, and prevents the consignee from receiving the cargo, as