Porteous v. . Williams , 115 N.Y. 116 ( 1889 )

The plaintiffs sued to recover $1,452.66, that sum being, as alleged, their loss in consequence of the refusal of the defendants to load the steamship "Limosa," under a charter-party dated at Charleston, S.C., March 20, 1882. The plaintiff was nonsuited. Among other grounds presented by the defendants to sustain that ruling is:

First. That the charter-party was canceled. Upon that question there is, as it seems to us, room for a difference of opinion. The charter-party recites that the vessel "is due at New York with a cargo on or about 25th inst., meaning March 25, 1882; that the said ship being light, staunch, strong and every way fitted for the voyage, shall, with all convenient speed (after having delivered her outward cargo, which she is at liberty to take to New York for owner's benefit), sail and proceed in ballast to Charleston, S.C., or Coosaw River, S.C., charterer's option, and there load (always afloat) from the factors of said merchants a full and complete cargo of phosphate rock." It appears that on the twenty-sixth of March, and while on the voyage to New York, the steamer was seriously injured, and when she reached port was necessarily taken to the dry-dock for repairs. She remained there until the latter part of April. In the meantime, as early as April first, the defendants notified the plaintiffs that if she should be delayed in New York and did not reach Charleston in time to make a shipment in April, they "would have to throw her up" or cancel the charter. There was correspondence in regard to it and afterwards they took a new charter party, dated April twenty-fifth, for the month of May.

The steamer was then in New York, but immediately started for Charleston, where she was to be loaded. The letters which passed between the agents of the parties are susceptible of two constructions, and we do not think it can be said, as matter of law, that the parties agreed that the first charter, party should be canceled or superseded.

Second. There is another question. If the parties did not agree that the first charter party should be canceled, was the undertaking on the plaintiff's part performed or was there such failure and inability to perform as released the defendants and permitted them to refuse the vessel when tendered? The express agreement of the owner required the ship after discharging the cargo then on board, with "all convenient speed," to sail and proceed to the port of the charterer. No deviation was provided for, nor detention for any cause save the necessary delay of unloading. The qualification of detention by unavoidable accident, or perils of navigation, or other cause has no application to that term of the agreement. Such qualification relates to the voyage to be made for the charterer, and not to the condition of the ship while going to the owner's port of discharge, nor to any detention made necessary by that condition. The evidence would, in one view, warrant the finding that the vessel was taken under the first charter for a particular shipment or cargo, and that the whole object of the charterer in engaging the ship was frustrated by the delay of the owner in bringing her to Charleston.

In McAndrews v. Chappel (1 Com. Pl., L.R. 643) the charter-party contained a clause that the ship should "with all convenient speed (on being ready) proceed to the charterers and there load, and notwithstanding this qualification it was thought that if the delay prevented the cargo from being shipped, which cargo was the object for which the ship was chartered, performance on the charterer's part might be excused, although that question was not decided. In Lowber v. Bangs (2 Wall. 728), a somewhat similar provision was regarded as a condition precedent, but, whether one or the other case is followed, we think it quite clear that if the delay of the owner did truly defeat the object of the charterers in making the agreement, performance on their part would be excused and they would not be liable. We cannot say, however, that it does so appear as matter of law.

Some other propositions are submitted by the respondent, but none which, in the present aspect of the case, would permit it to be taken from the jury, and it should have been sent to them.

The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed.