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
not to be exercised or declared until the Progreso had arrived at Charleston, and was ready to load.' This reservation,'of OptiOll WEtS a specific right secured to the charterers by their contract. The language creating such right is clear and unambiguous. The time and the place and the circumstances at and under which the right could be exercised were definitely fixen. The obligationofthat contract was inviolable. It could neither be altered nor amended save by mutual consent of the parties interesteq., demand made on behalf ,of the.ship while she was lying in the port 'of Boston, upon the charterers, to declare, then and there, their option, was wholly unwarranted by the contract. To have yielded to such demand, and to have declared their option, would have been an assent by them tOll. ir\aterialand substantial alteration of the contract in an important particular. They were clearly justified in refusing such assent, and in standing by tlie'terms ofthe charter party· That charter party was still in force, and the only legitimate act for the ship was to proceed uilder it to Charleston, and tender herself, on arrival, Teady to load. Nothing short of that would excuse. Nor do we think that any principle of equity can be cited which would justify the ship then in making such demand, under the admitted circumstances. Equity does not favor alteration of contracts fairly entered into. Parties are free to make their own bargains, and they are bound to stand by them when made. As was said by the learned judge of the district court when this cause was before him, "equity never relieves against terms of a contract sued upon, except for fraud, accident, or mistake." Neither appear to enter into the'execution of this contract. It was voluntary in its inception, and wholly free from taint. Some question has been made as to effect of the delay which occurred when the ship should have been at Charlesbetween November 1, ton, and DeCember 19, 1888, when she arrived, in fact, at Boston, after her ad interim voyage, and tendered herself ready to proceed to the port of lading. Counsel for appellant strongly insist that for such delay the ship should not be chargeable in any way, as it was cam'ed by the ad interim voyage. This matter is only important in 1Ol0nnection with the assessment of the pecuniary damage which the libelants were justly entitled to by reason of the ship's default, and it is sufficient to say that we perceive no ground upon which to base any different conclusion from that arrived at in the court below. The ship was undoubtedly justified in seeking an ad interim voyage. But such voyage should have been undertaken only upon such conditions and to such places as would have enabled her to be at Charleston on November Voyages which prevented that were not justifiable, and delay caused by such voyages cannot be held excusable. We are satisfied, also. that the assessment of damages, made by the special commissioner to whom that matter was referred, is computed upon proper basis, and is just and correct. We find no error therein. The result is that the decree below is in all things affirmed.
et al. v.
(D18trl,ct Oourt, 8. D. New York. May 16, 1892.)
Goods liable to'injure eaoh other may be carried in the same ship, It it be the general usage to parry tllem together, provided all proper means are employed to prevent injury. 2. SAME-TEA AND CAMPROR"":INFII:RENOIll of NlllGLIGENOII:. ,; But where tea and camphor were carried on the same vessel, there being no glill6ral,I.!Sage to oarry the two together, but this vessel being especially fitted with an air-tight compartment for the camphor, in spite of whioh the tea was delivered impregnated with the fumes of camphor, it was held that the inference p,f want oarewl\lI irresistible, and that the ship was liable.
SmPPINIi:.-DAMAGlll TO CARGO-STOWAGE-USAGII:.
In; El)art3"Choate Wing, Bhoudy
Libel for damage to cargo. Beaman, for libelants. Putnam, for claimants.
Decree for libel!tnt8.
The evidence from Shanghai sufficiently establishes that the tea, when shipped,was in sound condition and free ffoI11camphor damage. This confirms the recital of the bill of lading that the tea'was received good order and condition." The evidence also shows that all the tea consigned to the libelant was more or lesa damaged from the fumes of camphor,when delivered. The ship carried on board 400 tons of camphor, all in the aft compartment, separated by an iron bulkhead from the CiOmpartment next forward, in which, the tea was stowed. The defense as well ,as in other parts of the is rested upon the alleged custom of bringing tea and camphor as parts Of the Same cargo, and on the claim that there was no lack of care on the part 'oftbe ship. ' > lcannot 'sustain the defense. The extreme susceptibility of tea to d,amage froriHhefumesofeamphorhaslong been known. The T. A. Goddard, 12 Fed. Rep. 174. The value of tea in this market, however it may,be.inEurope, is greatly diminished by camphor infection. ,Doubtless"goods liable to injure .each other may be carried in the same ship, ir'it be the gf;lneral usage to carry them together, provided all proper means are employed to prevent injury. Olark v. Barnwell, l2 , The SabianceUo, 7 Ben. 357; The Oarrie Delap, 1 Fed. tea and camphor Rep. 874. But nQ general usage is established to in the same vessel to thislJountry. Minis v. Nelson, 43 Fed. Rep. 777; Iooksson v. Williams, 26 Fed. Rep. 642. Nor is there evidence of any ctlstom anyiwhere to bring camphor in such a way as to impregnate with its fumes nearly a whole cargo of tea. The practice of sometimes !briilging them,together in the Same vessel is of very recent date, and only in vessels specially designed and built to keep the camphor in airtight compartments. When a large part of the cargo is found to be impregnated with camphor fumes on board a ship thus built, like the
BRbWN, District Judge.