1862. BEHN V. BURNESS. option in cash, under discount at two and half per cent. ; one third by charterer's acceptance at six months date, the charterer to insure the amount and deduct the cost of insurance; and the remaining one third of the freight by the charterer's acceptance at three months date from the delivery to the charterer, in London, of a certificate in writing, signed by the consignee, of the right and true delivery of the cargo agreeably to bills of lading, or in cash under discount at five pounds per cent. per annum, at charterer's option: and that the defendant should be allowed ten days for loading, and should receive the said cargo as delivered from on board at the rate of not less than thirty-five tons a working day, weather permitting, or in default should pay demurrage at the rate of four pence per ton register per like day. Averment of performance by the plaintiff, and default by the defendant. Plea. That at the time of making the charterparty, time was an essential and material part of the contract, and the then situation of the ship was a material and essential part of the contract, as the plaintiff and defendant respectively then well knew, and that the said ship was not, at the time of making the said charter-party, in the port of Amsterdam, of which the defendant then had no knowledge or notice. Issue. The following special case, of which the pleadings were to be deemed part, was stated by consent of the parties under the order of a Judge. By memorandum of charter-party, dated London, the 19th October, 1860, the plaintiff's ship "Martaban” was chartered to the defendant in the words and figures following, viz.: "It is this day mutually agreed between A. Behn, Esq., owner of the good ship or vessel called The Martaban, of 420 tons or thereabouts, now in the port of Amsterdam, and James Burness, Esq., of London, merchant, that the said ship being tight, staunch, strong, and every way fitted and ready for the voyage, shall, with all possible dispatch, proceed direct to Newport, Monmouthshire, addressing to Messrs. G. W. Jones & Co. for entering and clearing, and there load in the usual and customary manner in ten days, at any one of the usual loading places. Freighter may name a full and complete cargo of coals, which said freighter binds himself to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions and furniture, (the captain to have a sufficient quantity of coal on board at port of loading for ship's use for the voyage, and have the same endorsed on bills of loading, independently of the cargo): and being so loaded, shall therewith proceed to Hong Kong, or so near thereunto as she may safely get, and deliver the same alongside any craft, steamer, floating depôt or pier named by the consignee, notice to be given to the agent or consignee of the vessel being ready to discharge, (the act of God, the Queen's enemies, riots and strikes of pitmen, fire, and all and every other dangers and accidents of the seas, rivers and navigation always mutually excepted): the freight to be paid on the quantity delivered in accordance with this charter, at and after the rate of sixty shillings sterling per ton of twenty hundred weight in full of all port charges, wharfage, consulage, pilotage, Ramsgate and Dover dues, and to become due, say rd by charterer's acceptance at 3 months date from the final sailing of the vessel, or at owner's option in cash, under discount at 2 per cent.; rd by charterer's acceptance at 6 months, the charterer to insure the amount and deduct the costs of insurance; the remaining 3rd of the freight, less the 1862. BEHN V. BURNESS. 1862. BEHN V. BURNESS. cost of any coals short delivered at the port of final discharge, and after deducting such cash as may be advanced by the agent of the charterer's for ship's use, which the captain is at liberty to draw to extent of 2001. on usual terms against captain's draft on charterer at 90 days sight, to be paid by the charterers at 3 months date from the delivery to the charterer in London, of a certificate in writing signed by the consignee, of the right and true delivery of the cargo, agreeably to bills of lading, or in cash under discount at 5 per cent. per annum, at freighter's option. The vessel to deliver as customary, and the cargo to be delivered by the captain and received by the consignee at the rate of not less than 35 tons a working day, weather permitting, or to pay a demurrage at the rate of four pence per ton register per like day. The vessel to be addressed to freighter's agents inwards only, at the port of discharge, free of commission, but paying 2 per cent. to charterer in London, same to be deducted from 1st payment of freight any claim of average to be settled according to the custom at Lloyd's: a commission of 5 per cent. on amount of freight is due by the owner on signing this charter-party to David Brown, ship broker, London, and to whom the ship is to be addressed on her return to London: penalty for non-performance of this agreement, estimated amount of freight." The ship Martaban arrived on the previous 15th October, 1860, at Niewdiep, at the entrance to the Great Noord Hollandische Canal, on her way with a cargo from Sourabaya to the docks at Amsterdam, which, under favourable circumstances, she could have reached in twelve hours more; but, in consequence of strong gales from the opposite quarter, and the absence of steam tug power, she was unavoidably prevented from reaching the place of discharge in the Amsterdam Docks before day break on the 23d day of the same month of October. Niewdiep, the place where the vessel was unavoidably detained by the circumstances aforesaid on the said 19th day of October, the date of the above recited memorandum of charter-party, is a place in the direct course of the said vessel to Amsterdam, and is sixty-two English miles from that place, but is not within the port of Amsterdam. The ship Martaban, having discharged her cargo with all possible despatch, was immediately made ready for sea, and without any delay sailed on the 16th day of November, and proceeded direct for Newport, pursuant to the charter-party, and arrived there on the 1st December following. Notice was given to the defendant's agent at Newport on the 5th day of the same December that the ship was ready to receive cargo, and on the 16th December the stipulated lay days expired. The defendant continually, up to the expiration of the said lay days and afterwards, refused to load the ship. The plaintiff as soon as possible thereafter, namely on the 20th December, rechartered the vessel for Hong Kong from Newport, with a cargo of coals, at a smaller rate of freight than the defendant had agreed to pay, being at the time the highest that could be obtained; and thereupon the vessel, having loaded with all possible dispatch, sailed without delay for Hong Kong. The following statement is added at the request of the defendant's counsel, and under protest by the plaintiff's counsel. Before the charter was made, the defendant told the plaintiff's broker that he, the defendant, had a contract B. & S. VOL. I. 3 N 1862. BEHN V. BURNESS. 1862. BEHN V. BURNESS, with the English government to supply coals at Hong The question for the opinion of the Court is, Whether the words now in the port of Amsterdam in the said charter-party amount to a warranty, and, if so, whether the position of the ship Martaban on the 19th day of October amounted, under the circumstances, to a breach of that warranty. If the Court shall be of opinion that the plaintiff is entitled to recover, the question of damages is to be referred to the Master, and judgment to be entered for the plaintiff for such damages and costs of suit. If the Court shall be of opinion that the plaintiff is not entitled to recover, then judgment of nolle prosequi, with costs of defence, shall be entered up for the defendant. Manisty (Maclachlan with him), for the plaintiff.— The words in this charter-party, "now in the port of Amsterdam," do not constitute a warranty or condition precedent to the contract that the ship was there at the time of the execution of the instrument, and, if they did, here was no breach of it. The rule in construing contracts of this nature is to look to the intention of the parties as collected from the instrument. Here the intention was that the statement of the position of |