rim smman. 55
has no contrary orders, shall goto some neighboring port of the same
country where he can unload." Article 277 provides that "if a ma·
jor force exists that prevents only temporarily the departure of the
ship, the contract remains, without any claim to damages for the de-
lay; the agreement equally remains, without increase of freight, if
the major force happen during the voyage." By article 276: "If an
interdiction of commerce arise before the ship depart, the charter is
dissolved without damage claims by either." 2 Valroger, Lois Mar. §§
716-726. Sections 499 and 505 of the Code of the Netherlands are to
the same effect. Accordingly, during the war of the rebellion, a ship, *
finding New Orleans blockaded, was held justified in coming to New
York to unload. Havre, twenty·eighth January, 1862, L. 28. If all
the ports of the same country are closed, Pardessus was of opinion
that the captain must return to the port of departure. 6 Ed. II. §
641. Nevertheless, it was decided at Rouen, (February 27, 1847, 48
Dall. 2, 150,) that a captain might go to the port of a neighboring
country if he judged it for the general interest; and he was held jus-
tified in landing his cargo at Montevideo upon finding Buenos Ayres,
his destined port, closed. In such cases, by the French law, the full
freight is earned. But if the captain be compelled to return without
unloading, he is entitled to his outward freight only. Article 299.
The same is the provision of the Commercial Code of the Netherlands.
Section 504.
The German Code, on the other hand, provides (section 631) that
either of the parties may rescind the contract without being held for
damages, if, among other things, "the port of discharge or destination
is blockaded." Article 636 provides for an apportionment of freight ‘
pro rata.
The Spanish Code, art. 780, provides that “when, in consequence
of a blockade or other cause, the ship cannot reach her port of des-
tination, the captain shall proceed to the next nearest port, and if
no one is there to receive the discharge, he shall await the orders of .
the charterer or consignee; the expenses of delay being a, common
average; and the inward freight to be paid entire."
The Peruvian Code, § 785, is nearly identical.
The captain in this case seems to have acted with some reference
to the provisions of the Peruvian Code. But even if that law were
applicable as the law of the place where the contract was to be per-
formed, that law would only operate according to its own terms; and
it is not clear that the provision, that the "expenses of delay shall be
a common average," does not include the delays unavoidably arising ,
in the "next port," as much as the delays in getting there; that is,
when such "next port" resorted to is not a port embraced in the ex-
press contract, but one, like Ancon and Chancay, wholly outside the
provisions of the charter.
The Italian Code of 1882 provides (section 553) that "in case of
a blockade of the port of destination, or of other accident, or major