of the contract, it seems to us, that we ought to hold it to be a condition upon the principles above explained, unless we can find in the contract itself, or the surrounding circumstances, reason for thinking that the parties did not so intend. If it was a condition, and not performed, it follows that the obligation of the charterer dependent thereon ceased at his option, and considerations either of the damage to him or of proximity to performance on the part of the shipowner are irrelevant." Where the contract contained the words "ship now at Rangoon," evidence was given to show the circumstances under which the contract was made, and that it was of vital importance that the vessel should be in the port named at the time of making the contract. It was held, that it was rightly left to the jury to say under what circumstances the contract was made, and that the words "ship now at Rangoon" amounted to a warranty justifying the defendant in saying that there had been a failure of performance of a condition precedent and in refusing to carry out the contract.' passage to C. Where it was stated in a charter-party that "the Now on her steamer A. now on her passage to C.," and it was proved that at the time the charter-party was entered into, the steamer was not on her way to C., being then in the port of L., and did not start until some days after the date of the charter-party, and did not arrive at her port of loading till nearly three weeks after the time it was alleged she should have reached 1 1 Oppenheim v. Fraser, 3 Asp. M. L. C. N. S. 146. Now at sea. the port. In an action by the charterers for damages for the difference between the value the steamer would have been to the charterers as an instrument for market prices, if she had been put at their disposal at the time when she ought to have been under the contract, that is a fortnight or three weeks earlier, and what she was worth to them in the same view at the time when she was actually delivered, it was held, that the statement in the charter-party that the steamer was on her passage to C. was a condition precedent and that the shipowners were accordingly liable for breach of contract." Where a statement is made at the time of entering into (and recited in) a charter-party, that a vessel is at sea, and has proceeded three weeks on her voyage, and it is proved upon the trial that the vessel has only been on her voyage for a much less time the statement being considered as a condition precedent amounting to a warranty-the failure in proof of the fulfilment of such warranty is fatal to the contract, and the plaintiff cannot recover against the defendant for not freighting the vessel. In an action on a charter-party, the declaration alleged as a breach, that the defendant did not ship a full cargo of linseed according to the terms of the charter-party. The defendant pleaded, setting forth the charter-party which stated that it was mutually agreed between the plaintiffs, as original charterers of the vessel called the "Dove" Al, "now at sea, having sailed three weeks ago," and the defendant, 1 Schiller v. Finlay, 8 Ben. L. R. 544, that the said ship should sail to Marseilles, and there load a full cargo of linseed, and should then proceed to one safe port in the United Kingdom, and deliver the same on being paid freight. In an averment that upon the making of the said charter-party, time was an essential part of the contract and that the probable situation of the vessel, with reference to the date of her sailing, was also a material and necessary part of the contract; that at the making of the charter-party, the vessel had not sailed three weeks before, but on the contrary, had sailed at a materially and unreasonably later time, viz. one week later, which plaintiffs, at the time of the making of the charter-party knew, wherefore the defendant declined to load any cargo. A verdict having been found for the defendant on this issue, it was held, that the fact of the vessel having sailed three weeks was a condition precedent to the defendant's liability to load, and that the defendant was entitled to judgment.1 Parke, B. said :-"The first question is, whether the allegation in the charter-party of the vessel being at sea, is a representation or a warranty. In construing agreements we ought to endeavour to discover the intention of the parties; and the rule is the same with regard to covenants. Here it is stated that the vessel was at sea, having sailed three weeks before; and in a case where time is of the essence of the contract that statement is an agreement and 1 Ollive v. Booker, 17 L. J. Ex. 21. not a mere representation. Here such stipulation imports a contract, although if it had been contained in a collateral paper only, it would have amounted to a representation. Prima facie I admit it is a representation, but I read the words as equivalent to a guarantee that the vessel was at sea, and had sailed three weeks. It is, therefore, a condition precedent. The object of the freighter was to arrive quickly at Marseilles, and time was of the essence of the contract. The statement, therefore, was a condition precedent; and if it was not complied with, the defendant was not bound to load the vessel. If, however, he had loaded the vessel, he would have waived the performance of the condition, and would have been bound to pay freight. The defendant, therefore, was not bound to load, and the plea affords a good answer to the action." In Behn v. Burness,' Williams, J. said, referring to Glaholm v. Hays2 and Ollive v. Booker3:—“We think these cases well decided and that the decision of Dimech v. Corlett' does not conflict with them, because it is immersed in the specific facts there set out, so as to be a precedent only for cases with very analogous specific facts. The statement in that charter, that the ship was now at anchor in this port' (Malta), did not avail to release the charterer, because the ship was in the port in the dry dock, although the statement of the fact that she was at anchor in the port was definite, and indicated that 132 L. J. Q. B. 208. 22 M. & G. 257. 12 Moo. P. C. 199. 3 17 L. J. Ex. 21. she was ready for sea, while, in truth, she was in a dry dock, being built, and was not completed for a month: yet as the defendant was at Malta, and was presumed to have known the state of the ship, and also to have known of the delay, and did not insist that the charter-party was broken, but allowed the ship to sail from Malta for Alexandria, without objection, his defence on this point failed." To say that a vessel has sailed represents that she has done so. To say that she is about to sail is to represent either that she is loaded and just going to sail, or that if she is not already loaded, she will be loaded in a day or two, and that she will then sail. Taken in connection with the words "now sailed," the words "or about to sail," amount to a representation that the ship is just ready to sail. It is very material for the charterer to know the place where the ship is, because it shows him what sort of a voyage it is which she will have to make, and how long a time is likely to elapse before she can come to him; the statement is a substantive part of the contract, and it will amount to a condition precedent unless there be in the contract itself, or in the surrounding circumstances, something to point to a contrary conclusion. Thus, where by a charter-party made between the plaintiff as owner of the F. and the defendants as charterers, the vessel was described as "now sailed or about to sail from a pitch-pine port to the United Kingdom." The charter-party provided that the vessel should, after discharging homeward cargo, sail Now sailed or about to sail. |