Vessel to sail by a certain date. to a loading place at Quebec, and there load a cargo of timber, and therewith proceed to one of several specified ports as ordered, and deliver the same. Both the plaintiff and the defendants were aware that at the date of the charter-party the ship was at the port of Mobile loading a cargo. She did not sail from Mobile for twenty-five days after that date. A correspondence ensued between the parties, in the course of which the defendants stated that if the plaintiff sent the ship out to load they should protest against loading, and should claim the difference of freight and insurance upon goods then shipped. Upon the arrival of the vessel at Quebec the defendants refused to load her :-IIeld, that the words now sailed or about to sail," were not a mere warranty, but amounted to a condition precedent, the non-fulfilment of which would have entitled the defendants to rescind the contract, but that the correspondence showed that the defendants had waived the breach of the condition by the plaintiff, and that they were therefore not justified in refusing to load the ship, though they might be entitled to make a claim against the plaintiff for damages in respect of the delay in her sailing from Mobile.1 Whether a particular in a charter-party shall be held to be a condition for the non-performance of which by one party the other is at liberty to abandon the contract, and consider it at an end, or whether it amounts to an agreement only, the remedy for the breach whereof is by an action for damages, 1 Bentsen v. Taylor, L. R. (1893) 2 Q. B. 274; 63 L. J. Q. B. 15. must depend in each case on the intention of the parties, to be collected from the terms of the agreement, and the subject matter to which it relates. It does not depend upon any formal arrangement of the words, but on the reason and sense of the thing as it is to be collected from the whole contract.1 By a charter-party it was agreed between the owner of the vessel and the freighter, that the ship should, having liberty to load a cargo of coals out, proceed to Trieste and there load a full and complete cargo of wheat, or other merchandise; that the said vessel being so loaded, should proceed to a safe port in the United Kingdom and deliver her cargo: that the cargo should be sent alongside and delivered at the expense of the freighters; that the freight should be paid in a certain stipulated manner: and that forty running days should be allowed the freighter for loading and unloading. Then followed the clause,"The vessel to sail from England on or before the 4th of February next," the vessel not having sailed by the 4th of February, the freighter altogether repudiated his contract:-Held, that he was justified in so doing, for that looking to the variation in the language of the clauses of the charter-party, and to the object for which the vessel was chartered, the sailing on or before the 4th of February was a condition precedent to his liability for freight, and not an agreement merely, upon the breach of which he might sue for damages." 1 Ritchie v. Atkinson, 10 East. 295. And Tindal, C. J. observed:-"The very words themselves, the vessel to sail,' do, by common usage, import the same as the words, 'condition to sail,' or 'warranty to sail on or before such a day.'" In Crookewit v. Fletcher,' the condition in the charter-party ran as follows:-" The Zwaan,' now in Amsterdam, to sail from thence to Liverpool on or before the 15th of March, and that the vessel should be ready &c., restrictions of princes, damage and accidents of the seas and navigation, the Act of God, fire, pirates, and enemies throughout this charterparty always excepted." The vessel was prevented by stress of weather from sailing from Amsterdam for Liverpool on or before that date. In an action against the charterer for refusing to load the ship and repudiating the charter-party, it was held that the stipulation as to sailing on the 15th of March was a condition precedent, and that the word 66 throughout" did not affect it; Martin B., saying: "Does the word 'throughout' make any difference? We think that it does not. It might perhaps operate to exonerate the plaintiff from an action in the event of the ship being prevented from sailing on the 15th of March by any of the matters excepted, but we think it does not affect the condition precedent upon the performance of which the defendant contracted to take and load the ship." A charter-party provided that a ship should "sail and proceed from Amsterdam with all convenient 126 L. J. Ex. 153. speed to Liverpool, to leave Amsterdam not later than all March." On the 30th of March the vessel, with a part of her ballast on board, quitted the docks at Amsterdam, and on the same evening reached the entrance of the North Holland Canal. On the 31st she arrived at Alkmaar, and stayed there during the 1st and 2nd of April, being engaged in taking in the remainder of her ballast. On the 3rd of April she set sail and left Nieuwedeep having completed her crew there on the 9th, and on the 17th arrived at Liverpool :-Held, that the words "leave Amsterdam," did not mean "sail on her voyage from Amsterdam," and therefore that the agreement in the charter-party had been fulfilled.' Parke, B. said: "The charter-party says nothing as to the time of sailing from Amsterdam, but merely that the vessel is to sail from that place with convenient speed to Liverpool. Upon this plea, where the only objection is that the vessel did not sail and proceed, leaving Amsterdam in all March, the question is, what is the meaning of the words. 'to leave Amsterdam not later than all March ?' In my opinion they signify that the vessel shall leave that place, that is the harbour, on the 31st of March at the latest, and then sail with all speed to Liverpool. The cases cited throw no light upon the meaning of the words 'leave Amsterdam.' The whole question turns upon the meaning of the word 'leave,' and not on the words 'sail and proceed.' What the defendant desired was, that the vessel 1 Van Baggen v. Baines, 23 L. J. Ex. 213, Voyage must be commenced should arrive at Liverpool by a certain time, and that the voyage should be commenced by quitting Amsterdam before the end of March, and that it should proceed to Liverpool with all convenient despatch." Upon general principles, in all contracts by charterwithout delay. party, where there is no express agreement as to time, it is an implied stipulation that there shall be no unreasonable or unusual delay in commencing the voyage; and after it has been commenced, no deviation. All the authorities concur in stating, that the voyage must be commenced within a reasonable time;1 and it is incumbent on the party to account for any delay on the voyage. In many cases it may be difficult to say what is a reasonable or an unreasonable time for commencing a voyage; the contract should therefore be referred to, in order to ascertain whether the voyage performed is in accordance with the contract. Where the charter-party provides that the ship being loaded is to sail, that is, she is to sail at once, and a reasonable time for the sailing of a ship after she is loaded is that she is to sail at once. The time of sailing may make the whole difference to the charterer as to the insurance of his goods. Therefore, the master, who has undertaken to sail within a reasonable time from the loading of his ship, is to sail at once; "reasonable time" means reasonable, having regard to the weather and the possibility of moving the ship.2 Freeman v. Taylor, 8 Bing. 124; Mount v. Larkins, 8 Bing. 108. 2 Oriental S. S. Co. v. Tylor, L. R. (1893) 2 Q.B. 518; 63 L.J.Q.B. 128. |