OpenJurist

THE PROGRESO.

837

of her contract, she fully complied therewith by the tender made immediately upon her arrival at Boston. It may betaken as settled that "detention at quarantine" is fairly included in thescope of that clause in this charter party which has reference to the" restraints of princes, rulers, and people." Quarantine reg. ulations and health laws, so called, although often affecting in their operation a direct and palpable regulation of commerce, are constantly made and prescribed by states, and even by local municipal corporations, and pass everywhere, unchallenged, as the result-of a legitimate exercise of that police power which resides in sovereignty. Such regulations would be worthless unless the enforcement were surejand such certainty of enforcement is attained by virtue of the power of the people', as exhibited and exercised through their governmental agents. It follows, then, that enforced obedience to lawfully-prescribed quarantine reg. ulations is a "restraint" of natural liberty of action devised by and pr().. ceeding from the" people." The Progreso was therefore clearly entitled. to the benefit of this exception as a valid excuse for her default in per:formance of those terms and conditions of her contract, which the quarantine regulations at Charleston deprived her of ability to perform:. What, then, were those terms and conditions? With the performance of what part of her contract did this "restraint" so seriouslyjnterfere?' By the charter party the ship had contracted to arrive at Charleston on October 1st. Doubtless, if her freedom of sailing had not been interfered with by the quarantine regulations of that port, she could readily have complied with her agreement. But the enforcement of these regulatiol1l'; made it simply impossible for her to arrive at that port at the date des" ignated. Not until a month later, November 1st, would she be permit.l ted to reach CharlestoD, as she had been notified. Not until then could she be ready to load. But on that day there would· be, at least;.oo "restraint of people" to bar her movements, or cause further delay and detention., Quarantine regulations were then to be done away Then and after that time they were as if they never had been. The ship would be free to come and go at that port as she pleased. The plain and indeed only result, then, of these quarantine regulations, wt!S to work a temporary retardation in and hindrance of the ship's ments. The "restraint" could be for a limited time only. It operated, iUs true, to delay the arrival of the Progreso at Charleston until November, but then its force would'be spent. For such delay, so caused, this clause in the charter party afforded ample excuse and protection to the ship. An unsurmountable barrier had been placed in her course to hand of the law. Until that barrier was reCharleston by the moved, she was helpless to keep and pe:rform that part of her contract which demanded her presence at the port of loading on October 1st. But, when the cause oiher helplessness was removed, her ability to per'; form was restored to her. Nowhere in the record is anything allegedae excusing her nonperformance after that date. Under the admitted cumstances, her failure to arrive at Charleston on the date fixed Jorarrival is therefore wholly excusable. But no valid excuse existed or has

838

FEDERAL.REPORTU.',

vol. 50.

Mr fa:ilurl:!itQutrive: there a.fl.el' her way had:hee& cleared of obstacles. With the raising ot the quarantine came free gress '!tort. Her course on November 1st to the Charleston wharves wasstraightundfree. Her con.tract w.as '.'to proceed to Charleston with all speed;" that is, with all speed possible under the circumstances. It,ctlinnot be doubted .that the Progresooouid have been. at Charleston by NO\7liHuber 1st if she had made "all speed possible unde:li,the circulnstances" to·<arriv8,there, as she was bQundby her contract to do. A charter party is. to he construed in consonance with well-established rules which obts.in in:tbe construction of contracts generally;. and no canan of construction is more often resorted to than that the .patties must receive a reasonable conlallgullgeused by the struction,expressive of theintl'lnt oltha parties, and tending to promote the object in view. Here it was the obvious intent of. the parties to this charter party that the Progreso shoUld proceed to Charleston within a reasonable time to take on a cargo of cotton to be conveyed to Liverpool. The transportation of the cotton was the object to be attained. Whether that. transportathm commenced on October 1st or November 1st was not as mllterial as that the cotton should be transported.. This is evidenced by the fact that delay in arriving at the port of lading did not . avoid the cOntract by its terms, but such avoidance for such cause lay in the discretion of the charterers. Delay might have been vexacaused by the ship, it was punishable; but mere tious. If delay, in itself, did not defeat or destroy the agreement. Such delay, unless it be so expressly stipulated in the writing, never defpats a contract, unless time be of its very eSllence, and then generally at the option, only, of the innocent party. Here it.is clear that party regarded time as of the. essence of the contract. As the learned judge who heard this cause in the court below tersely says in his opinion: "So long as the circumstances remained substantially unchanged, the delay being no greater than might rt'Rsonably have uepn contemplated, the contract remained in force. 'rhe month which elapsed made no material change. The respondent was still engaged in carrying merchandise, and aule to kel'p her engagt'mellt, and the libelants still had merchandise to carry. She buund hereelf to gu to Charleston and cal'ry it, itshe could get there in reasonable time; a time which answered the purpose for which she contracted to go."
Her failure to report, therefore, within the reasonable time, to the charterers at the port of lading, being wholly without excuse, constituted a breach of the charter party, for which she must be held responsible. the offer to send the Progreso to Charleston, Nor do we think while she was in the port of Boston, in December, upon condition that the charterers would then signify their consent to load her, was in any way a compliance with the terms of the charter party. The demand then made by Belloni & Co. upon Street Bros. to exercise their option of accepting tbe ship after this delay in arriving at the port of lading was pl'emature, and while appealing, possi bly, to the courtesy af the charterers, could not have any legal effect upon the obligations of the ship yet to be perlormed. By the cOntract the option reserved to the charterers waS