The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-10-19
NEW YORK CITY.
UNITED STATES DISTRICT COURT.
Important Charter. Dectsiou.
Before Judge Shipman-


Ebsrrayd Fabsr o. the Schooner Onyuu.-0a tho 18th
u December 1885, the nbsllant chartered the schooner
Onruss 10 bring load Of cedar timber from Bayport,
Fla or some one Of several other specified ports Cd.
jacent thereto, New York A. she time the charter
was signsd by the parties The schooner was In
Now York. and the instrument rseiies:-"Also, is
dsrseed thas vessel loading for Key West
Torugas and 10 proceed thence direct 10 load on this
charter" In due time the Onruss left New York and
reached Fort Jenson Ct the rortugas, and before the
nsh Of January 1885, had discharged her outward cargo
and was ready proceed Baypor for the purpose Of
loading under this charter whore she was forcibly
sszsd, by order Of the United States military officer
commanding At Fort Jefferson and sent 10 Key West for
saTy in order TO the condenser, upon which an
post mainly relied for drinking wafer. To the
enforcement OF the order sergeant and nIe OF men
were placed board and proceeded with the weasel
Key West She performed the voyage and brought three
hundred tons o. coal to Iorosas which shs discharged
60 sail for Bay whsn she again ordered 70 Key
Ws b. the same officer by his subordinate, and pro-
coal. which she delivered 1t rortugas when she
leased, and the llth OF March saied for Bayport
The Captain Of the Onrust, In both instances. pro-
tested against the seizure and enforced services OF
Ms vessel and After her arrival st Baypo sue
shat there should DO no wsivsr Of ne right Of the char
terer 10 for her failure 70 proceed direct IN the
nrst instance from Torugas Bsypor according to the
understanding expressed In the chartsr-party The
schooner did not arrive in New York I'll the Gath OF
April Between the 18th Of March and the 2ltn OF
April cedar timber fell In the New York market But
for the forcbls detention by the military officers 1t Tor
tugas she would, in the ordinary course Of navigation
have arrived with her cargo at New York before the fall
IN the market The lbeiant has brought this suit ia
for breach Of the charter party the ground
that the schooner did not proceed direct
from Tortugas on discharging her outward
cargo, but devlated and delayed h;iy-ons days,
and seeks 10 recover damages ip proportion the de-
cline In the price OF cedar timber Ia the New York
market between the tmo she would have delivered the
cargo there had ther0 been delay and the time she
actually delivered The present controversy does not
arise out OF the breach OF any express stipulation. The
voyage was performed and the cargo delivered, The
only pretended breach consists in not proceeding from
Tortugas TO BaypoTt IN proper time. But particular
slime was stipulated In the contract and the only
Anne 10 which the vessel was bound Was that piled
by law from the use OF the word direct VII oh,
period necessary in the OF the highest dil2ence.
age The distinction 10 obvious 10 one case there
breach Of express stipulation In the contract
In the other the time OF performance prolonged by
fault or the master, but time not made Of the
essence Of the contract enforced desy breach.
II s obvious that the ella OF the ibelant would stand
upon higher ground II the word .'drect were held
20 apply primarily TO the route rather than the time Of
She voyage from Tortugas to BaypoIt The word applied
60 either aspect OF tho would be by tho
same rules OF law. But in fact the RravGmen OF the
bellants complaint II not that the Onrust did not
the customary route from Torugas 10 Bayport but
that she did start from the former port At the
she ought. Let decree be entered dsmssIg the Libel,
with