EDMUND BENDIT Vs. EDGAR RAPHAEL PRUDHOMME

JUDGEMENT

(1.) The respondent, a merchant of Madras, contracted on 10 November, 1916, with the appellants, who are a firm in Marseilles, to ship 400 tons of groundnut kernels of Marseilles in the December January 1916-1917 season on a C.I.F. contract, the goods to be of H. P. Brand. Ha booked the necessary tonnaga on the S.S. Seapool, a vessel chartered by Messrs. Gordon Woodroffe & Co., but it was commandeered by the Government on 14 November for purposes connected with the War. In spite of his best endeavours, the respondent was unable to obtain accommodation for this cargo on any other steamer leaving the "kernel" ports, that is, ports on the Coromandel Coast from which kernels are usually shipped, viz., Madras, Pondicherry, Cuddalore, Negapatam and Porto Novo. Ha therefore wrote on 22nd December, 1916, and 11 January, 1917, to the appellants pleading force majeure and asking them to consider the contracts as cancelled. The appellants refused to do so, rejecting the plea that this was a case of force majeure and suggested trying other lines and other ports. The respondent tried all the shipping agents in vain. He then made a proposal that he should endeavour to work off old contracts by shipping a portion of the goods contracted for under old contracts along with the portions of the goods to be supplied under new contracts, but the appellants only treated this as a virtual admission of his liability and an attempt to diminish his debt. They were unwilling to accept the proposal exactly as it was offered and it fell through. There was no extension of the time for performance for an indefinite period by mutual agreement. In the end they put the respondent into Court in March, 1921, and lost their case in the Trial Court, on the findings of the Judge, (1) that force majeure would discharge the defendant from the performance of his original contract, and (2) that inability to obtain tonnage is force majeure within the meaning of that expression as construed in English Courts.

(2.) It may be noted in this connection that both the standard contract forms in use by the parties (Exhibits A and I) contain force majeure clauses. Exhibit I which is respondent's version is the less definite of the two. It mentions two kinds of force majeure which would render the contract null and void except so far as it had already been partly performed. One is prohibition of export of the article from the country, a second is blockade, and there are others not mentioned. Such are cases of force majeure preventing the execution of the contract. Exhibit A is more explicit, as it enumerates war, revolution, strikes, epidemics as well as other unforeseen circumstances which might prevent the goods from reaching the port of embarkation or from being shipped or despatched and so would render the contract void. Section 56 of the Indian Contract Act simply says that a contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful; and Section 65 provides that in such event any person who has received any advantage under the contract is bound to compensate the person from whom he received it.

(3.) The term force majeure which is borrowed from the Code Napoleon has received interpretation in several decisions of the English Courts in recent years. In Matsoukis V/s. Priestman and Co. (1915) 1 K.B. 681 Mr. Justice Bailhache after considering the definition given by an eminent Belgian lawyer of force majeure as meaning "causes you cannot prevent and for which you are not responsible" a definition which would certainly include inability to obtain tonnage owing to war conditions prevailing in the port or ports from which the goods were to be despatched-himself gave it a more restricted meaning. In his opinion force majeure would include strikes and break-down of machinery but not bad weather, or football matches, or a funeral. In Lebeeaupin V/s. Crispin (1920) 2 K.B. 714 Mr. Justice McCardie observed : "A force majeure clause should be construed in each case with a close attention to the words which precede or follow it, and with due regard to the nature and general terms of the contract. The effect of the clause may vary with each instrument." In Peter Dixon and Sons, Ltd. V/s. Henderson Craig and Co. Ltd. (1919) 2 K.B. 778 the fact that British ships were no longer available by reason of the war for carriage of wood pulp from Canada to Grimsby in England was held to be a hindrance to the performance of a contract for delivery of pulp and came within the meaning of the force majeure clause in the contract under consideration in that case. If the hindrance was insurmountable, it would amount to prevention, which was another term used in the contract which would relieve the sellers from liability, and the Court of Appeal held that the arbitrators were accordingly justified in finding the Boilers not liable.