The Portland daily press., 1867-01-08

rival within the usual time, and Of he's raa ar
ness 10 receive her cargo, or are thew exonsad
II oy Tue pefis OF the sea the vessel is delay.
ed and the voyage protraeted, if she afterwar'''s
completes her passage and offers to receive ana
carry forward the cargo to the port of destns
ton? Is there an implied warranty or condi-
tion precedent, as to the time Of the yessePs
Delns ready to receive her cargo, when nothinS
vi the Kind is so expressed in the contract? II
',a .,le owners had expressly stipulated that the
tsias essei should be at Farmingdale on day GER
no,su report for cargo no one will deny their
ronrts u,oIIe make such an agreement, or that the
ever nmuon hoid them to its very letter, how
go, unreasonable. But there is a clear dis
tihcloh between express and i,onl;ad ohl;1,a
.ios . as Is wen said in Flanders on Sbinnino
note page 24O, there is distnct;o ranllPIp;s
,nt s between implied covenants by
operation OF law and exp1ess covana~.. ~
latter are taken more strictly anS ~. lhe
son, tnat when party, by ms o,v,, @ aS 80.
creates duty or charge upon h;msoI1 lac ~ :?
bound to makeit good, and is not excnssd Ie oi' -
though prevented by inevitable necessity. be-
cause IL Is sand he might have provided aSo;pst
It by his contract. On this ground il bas haa,.
held, thak II ship be warranted to sail o. -
before particular day, but is prevented rom n,
sailing on that day by an embargo, the warran-
~ is not comphed with. In the case of implj-
ed covenants, by operation of law, if the party
is disabled to perform, without any default on
his part, and with no remedy ever, the law win
excuse him." Upon general principles, in ali
contracts by charter party, when there is no
express agreement as 10 time, it is an implied
stipulation that there should be no unreasopa-
bic or unusual delay in commencing the vow
age.
Ii the clause in this charter party relating to
the commencement of the charter had been
oulitteu, and the vessel sailed seasonably on
tne voyage 10 Farmingdale, and had been de-
layed by tempestuous weather or driven ont of
hef course TO Bermuda, the authorities are yery
clear that the Respondents would not thereby
nave Deen excused rom loading the vessel ON
ne. n arrival, without fault of the owners, at
rarniihgAiaie. Ihe owner must repair his veg
sci as soon as he reasonably can. and the char
terers must await her readiness. EIander's
sec. 2l9-"the carrier is not Responsible for da
lay on the voyage on account of boisterous
weather, adverse winds or low tides; these are
dangers and accidents OF the sea and OF nav;
CATION, over which he has no control ana
against which his contract contains no war
ranty."
In Clark VS.. Mass F. & Ma Ins. Co., Rich
ioo, Where vessel bound from Richmond, w.
to Nice, with cargolof tobacco, was compelled
to go into kennebunk for repairs which de-
tanned her Tor two months il was decided that
the merchant was bound to wait that time 10
enable the master to make his REPAIRS that the
contract vas only suspended, by reason of the
disaster which befel the ship, and the master
should have repaired and proceeded on his
voyage; that neither party was at liberty To
abandon the contract without the consent of
the other, or without legal cause, which was
not procured or caused by the iault of the par
" VINO relied upon it, 1t was in evidence in
that case, that Ii the vessel had not met with
the disaster, and had made her passage to Nice
In the usual time, the tobacco would have
reached market in season tor the fail con-
cOurs, there being two co1lcouls q wear only for
sale OF tobacco for consumption in France.
and that the object OF the owners in the shin.
ment, was to get their tobacco to the French
narket at the time OF the fall concouys, and
tlat THIS object would have been defeated by
the delay which had been occasioped by the
repairs of the vessel, but the court held 'that
disappointment OF arrival could not control or
aHect the decision, that there was no stipula-
ton that the voyage should be performed in
any gwen time, ana that the disaster was only
temporary suspension which did not dis
charge the parties from their contract"
This distinction between suspension and
dissolution Of the contract has been recognized
and enforced in great number OF cases some
OF them OF very great hardship-in one case.
where ship was chartered, and afterwards
detained by an embargo TOR two years, it was
declded that the contract remained in full force
and the parties were bound to comp. etc it, ana
me ships owner was held responsib BILE in dam
lges for not going the voyage ut the termina-
ound in I. R., 279. 4r
Lord Kenyon, IN his opinion there, saws: "If
ms contract were put an end to, it might
squally be said, that Interruptions of yoyage
rom other causes would also have put an end
% lt-e. g., ship being driven out OF her
course, and yet that never was pretended In
stances OF such interruption frequently arise
n voyages from the southwest D 4rts of this
Kingdom to Iceland; sometimes ships are
iriven by the violence OF the winds to ports in
denmark, where they have been obliged to
winter. 1 am Of the opinion, however hard it
nay be to the defendants, the plaintitf is en-
titled to recover" So IN sd Summer, boz the
Sathl Hooper--Judge Story remarks, suppose
ship meets with a calamity in the course of
Ter voyage, and Is compelled to put into pert
o repair, and there the cargo is required 10 be
lnlivered, in order to make the repairs, or to
naaaEa f ff safe. - ascertain and repair the
hssoiss inc cohftacr }dr voyagv4-- -rrrraIn-
y not" rs r-l5e ls 5gF +0st 49,
Ine reports abound with cases of this descrip-
ION ana no benefit car result from further ci-
alton from them. The principe is SO we'll
ettled that even when the vessel is chartered
" the month and is detained or DELAYED ior re-
,airs after the voyage commences, the charter
'ris Obliged to pay Tor the time she is thus de-
aged. IhIs principle Is so well established
hat do not understandpt as questioned by the
earned counsel Tor respondent, but it is con-
ended that admitting such to be the law
when the vessel meets with disasters in the
prosecution OF the yoyage,it is not applicable
ID the present case, as the voyage stipulated
or in the charter had not yet commenced. It
. very certain that the vessel was bound to
proceed from Boston to Farmingdale under
implied conditions, as the charter party is ST.
lent on this subject, and it is difficult Tor me
to ind satisfactory reasons why any other COLI
ditions should arise or be imphed in relation to
this portion Of her undertaking. than the law
would imply in case the charter had merely
said vessel TO proceed from Boston to Farm
ingdale, as the charter had commenced at Bos-
ton and had provided for the vessel going in
ballast from Boston to Farmingdale and load.
and in these cases ii the vessel had been de-
layed by storms and in need OF repairs and so
compelled to refit and delay was occasioned
thereby, neither party would have been exon
Grated from the performance OF the contract
II the vessel was seasonably repaired and ar
rived ut place OF loading.
In Tontong VS.. Hubbard, 3 b. 2. 29I, the ves-
sci was chartered for voyage to St Miehaels
for fruit from London, and being driven back to
England by the weather. she was there detain-
ed by an embargo. Lord Stanley saws. Sthe
of this charter is that the can
tain agrees to go to st. Michaels restraint of
princes excepted, and the merchant engages
10 employ him and furnish the ship with a ear
go. The merchant would have been under the
necessity OF furnishing the ship with cargo. If
she had arrived at st. Alichaels as soon as she
might after the embargo was tax
en- OFT, although by arriving after the fruit sea-
son was over, the object OF the voyage might be
defeated. . . The object of the VOYAGE Iniobt
equally have been defeated by the act of God
as by the act of the State, as If the shin nod
been aoedther-6ound, until the fruit season acas
orer, and yet in that case the merchant aoouid
haoe been compelled to fltfl his contract"
The counsel Tor respondents read from Alb
bott the case of MIR. Andrews VS.. Adams. This
case Is found reported in Bing. N G. 300.
and an examination of the case and of tie
opinions OF the court 1 think will sustain NV
construction OF the present contract
Tindal, Chief Justice says: "The broad uues-
ton is, whether upon the construction OF this
charter party, which was to ST. Michaels for
fruit there has been any unnecessary delav 10
commencing the voyage to St. Michaels. Upon
general principles IN all contracts by charter
party, when there is no express agreement as
to time, 1t Is an implied stipulation that there
shall be no unreasonable or unusual delay in
the voyage, and after it has been
commenced no deviation; and the auestion ia
whether the de fendant sailed within a reason
able time according to the terms of the charter
party. All the authorities concur in statin0
that the voyage must be commenced in a rea,
sonable time. Now inasmuch as the parties
have stipulated that the voyage shall commence
on the first OF December, it may be inferred
that they contemplated the voyage to st. Mi
chaels should terminate by that DAY. III indeed
6y an accident Or Unforeseen cause aohich shoaid
e1cuse the master, the uesset should dTTtve late
the chdrterer aooutd hare no just cause Of COM
plant. Thus clearly showing, that in the opin-
Ion of the Court, when no time was fixed for
the vessels arrival at her post, If delayed by
accident, or perils of the sea, the charterer was
not relieved from performance OF ms contract
By an e1press contract for the vessel to pro-
ceed from Boston to Farmingdale, the risk of
DELAY occasioned by perils OF navigation must
have been borne by the charterers. Why should
there be any different rule, when the vessel is
sailing under an implied instead of an express
snnag.ment L cannot believe, that tn, law
will Under such circumstances, imply a iabil-
;tv which would not arise out of an exDress
Undertaking to perform the same services
Upon this part of the law, the remarks of