DCCCXXXIV.D. Upon the question as to what is a safe port, the following English decision is important:—

The defendants chartered a ship to proceed from England to a "safe port" in Chili, with leave to call at Valparaiso. On her arrival at Valparaiso, the charterers' agent named the port of Carrisal Bajo as the port of discharge, and directed the master to proceed thither. At the time Carrisal Bajo was named as the port of discharge, that port was closed by order of the Chilian Government, and the ship could not proceed thither without confiscation. The ship was consequently detained for some time at Valparaiso, and, on the port being opened, sailed for Carrisal Bajo, and there discharged her cargo. It was holden, that the charterers were liable in damages to the shipowner for the detention of the ship at Valparaiso, as they had not named a "safe port" within the meaning of the charter-party (c).

In the case of the Teutonia (d), the vessel, which was a Prussian ship, was chartered to bring a cargo from South America to Falmouth, for orders to a safe port in Great Britain, or on the Continent, between Havre and Hamburg. One of the excepted perils of the bills of lading, which were in English form, was "the Queen's enemies." The vessel arrived at Falmouth on July 10, 1870, at a time when the war between France and Prussia was apparently imminent, and the next day was ordered to Dunkirk, in France. Off Dunkirk she was informed, cn the 16th, by a pilot, that war had broken out. She sailed away to the Downs, [and anchored there on the 17th, which was a Sunday ;] her master telegraphed for orders on the 18th, and was told on the 19th not to go into Dunkirk. [She at once put into Dover, and on the same day war was formally declared by France.] It was holden that the master was justified, upon the information he

(c) Ogden v. Graham (1861), 1 Best & Smith, Rep. p. 773.
(d) L. R. 3 Adm. p. 394.

received, in taking a reasonable time to make inquiries as to the war, and was not bound, after it had broken out, to enter Dunkirk. The plaintiffs, who were the owners of the cargo, demanded it, after the 19th, at Dover, where the vessel [had remained, but made no definite offer] to pay any freight. They were refused, and then arrested the ship. The Admiralty Court held that they were bound, at least, to pay pro ratá freight; the Privy Council held that, in the circumstances, they were bound to pay full freight; and the suit was therefore dismissed.

DCCCXXXIV.E. In the Patria (e), another case arising out of the Franco-German war, a German vessel, bound to deliver a cargo at Hamburg, put into Falmouth on account of sickness. Being there, her master learnt that Hamburg was blockaded; and the vessel stayed at Falmouth. The blockade was shortly afterwards raised, but the vessel remained at Falmouth, for fear of capture from cruisers; and her master refused to give delivery [of a portion of the cargo consigned to the plaintiffs, who demanded it there, and offered to pay full freight.] It was holden that both the refusal of the master to proceed after notification of the raising of the blockade, and his refusal to deliver the portion of the cargo, were unjustifiable.

In the Heinrich (f), the San Roman (g), and the Express (h), somewhat similar cases, there were the further excepted perils of "the Queen's enemies and restraint of "princes and rulers ;" and on this, and on the particular facts, the delays were holden justifiable.

(e) L. R. 3 Adm. p. 436.

(f) Ibid. p. 424.

(g) Ibid. p. 583.

(h) Ibid. 597. See also The Wilhelm Schmidt, 1 Aspinall's Maritime Law Cases, p. 82; and Geipel v. Smith, L. R. 7 Q. B. p. 404.

CHAPTER XLII.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

DCCCXXXV. 2. WE have now (a) to consider the rules of Comity with respect to that great instrument of Commerce, Negotiable Paper; viz. Bills of Exchange (Litera Cambii, Lettres de Change, Gezogene Wechsel) and Promissory! Notes (aa).

[A Cheque, it may be observed, is in this country considered to be "a bill of exchange drawn on a banker payable on demand" (b).]

This subject was, on account of its importance and certain peculiarities incident to it, not included in the foregoing chapters on Obligations, but reserved for special consideration, though the general principles of the law relative to them are, of course, applicable to Bills and Notes.

[(a) Suprà, § dcccx.]

(aa) See generally Byles on Bills (14th edit. 1885), chap. xxiv., "Of the effect of Foreign Law relating to Bills of Exchange and Promissory Notes."

[The English and Scotch Law on Bills, Cheques, and Notes has been codified by 45 & 46 Vic. c. 61.]

Story on Bills, chap. v. ss. 129-178. Savigny, R. R. viii. s. 364, num. 3 (Wechselrecht).

Felix (edit. 1856), tome i. pp. 76, 160, 177, 181 note (b), 224 note (a), 244, & 328; [(ss. 32, 80, 85, 88 note (b), 101 note (a), 119, & 172.)]

Massé, Droit Commercial, liv. ii. tit. ii. nos. 589–591, et passim ; see index to that work.

[Nouguier, Lettres de Change (Paris, 1875), chap. xiv., “De la lettre de change dans ses rapports avec les étrangers."

Borchardt, Wechsel-Gesetze aller Länder (Berlin, 1871).] [(b) 45 & 46 Vic. c. 61, s. 73.]

DCCCXXXVI. The contract of a Bill of Exchange, like other contracts in this respect, must be considered with reference to

(1.) The lex domicilii, the law which governs the personal capacity to contract.

(2.) The lex loci contractús, [or law of the place where the contract is made.]

(3.) The lex loci solutionis [or law of the place of payment.]

(4.) The lex fori.

DCCCXXXVII. First, as to the lex domicilii, or the personal capacity to enter into this contract.

A Bill of Exchange must be considered with reference to the different persons interested or concerned in it, such persons being, according to the nomenclature of English law, the drawer, the payee, the acceptor, the indorser, [the indorsee, the bearer.]

A bill is, in the technical phrase, said to be honoured when it is duly accepted; when it becomes payable by lapse of time it is said to have arrived at maturity; and, when acceptance or payment thereof is refused, it is said to be dishonoured (bb). [An "inland bill," in this country, is a bill which is, or on the face of it purports to be, (i.) both drawn and payable within the British Islands, or (ii.) drawn within the British Islands upon some person resident therein. Any other bill is a "foreign bill " (c).]

It has been established as a general principle in the English Courts that the liabilities of the drawer, the acceptor, and indorser, must be governed by the laws of the countries in which the drawing, acceptance, and indorsement respectively took place.

[DCCCXXXVII.A. Questions of conflicting laws are now met by the rules contained in the seventy-second

(bb) Story on Bills, s. 126.

[(c) 45 & 46 Vic. c. 61, s. 4. "British Islands means any part of the United Kingdom, the islands of Man, Jersey, Guernsey, Alderney, and Sark, and any adjacent islands subject to Her Majesty.]

section of the "Bills of Exchange Act, 1882" (45 and 46 Vic. c. 61), which provides as follows:

"Where a bill drawn in one country is negotiated, 66 accepted, or payable in another, the rights, duties, and "liabilities of the parties thereto are determined as "follows:

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(1.) The validity of a bill as regards requisites in "form is determined by the law of the place of issue, and "the validity as regards requisites in form of the super"vening contracts, such as acceptance, or indorsement, or "acceptance suprà protest, is determined by the law of "the place where such contract was made."

"Provided that

"(a) Where a bill is issued out of the United Kingdom "it is not invalid by reason only that it is not stamped "in accordance with the law of the place of issue:

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"(b) Where a bill, issued out of the United Kingdom, "conforms, as regards requisites in form, to the law of "the United Kingdom, it may, for the purpose of enforcing payment thereof, be treated as valid as between all "persons who negotiate, hold, or become parties to it in "the United Kingdom."

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"(2.) Subject to the provisions of this Act, the inter"pretation of the drawing, indorsement, acceptance, or "acceptance suprà protest of a bill, is determined by the "law of the place where such contract is made."

"Provided that where an inland bill is indorsed in a "foreign country the indorsement shall, as regards the payer, be interpreted according to the law of the United "Kingdom."

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(3.) The duties of the holder with respect to present"ment for acceptance or payment and the necessity for "or sufficiency of a protest or notice of dishonour, or "otherwise, are determined by the law of the place where "the act is done or the bill is dishonoured."

"(4.) Where a bill is drawn out of but payable in the "United Kingdom and the sum payable is not expressed "in the currency of the United Kingdom, the amount.