dent. Neither was it a condition precedent that the vessel should sail with all convenient speed, or within a reasonable time, for the object of the charter-party was not frustrated.' Pollock, C. B. said: "It is very true that there is a remark made by Mr. Justice Maule, that he does not quite see how, if a particular day named would be a condition precedent, merely a convenient or reasonable time would not be so; but in reality the distinction, in my mind, is very obvious. Where a particular day is named, there can be no doubt that the parties meant that day; and one can very well imagine from that that it was the intention of the parties that the vessel should sail before that day, and if she did not sail before that day, the person engaging the vessel might decline to load, saying, 'what I contemplated was a voyage very different from that which you now force upon me to perform.' What is laid down in Abbott on Shipping by Shee12 appears to contain the pith and substance of this question; whether or not a particular condition covenanted by one party, be a condition precedent, the breach of which will dispense with the performance of the contract by the other, or an independent covenant, is a question to be determined according to the fair intention of the parties, to be collected from the language employed by them. An intention to make any particular stipulation a condition precedent should be clearly and unambi 1 Tarrabochia v. Hickie, 26 L. J. Ex. 26. 29th Ed. 221. 2 guously expressed.' Now, when any particular day is named, it is clearly and unambiguously expressed. There can be no doubt in the opinion of mankind at large whether a particular day is the 3rd of April or not; but what is or is not a convenient speed or within a reasonable time, is a matter that must always be of considerable contention. One may fairly, therefore, say, when a day is mentioned, at least the time is clearly and unambiguously expressed, and if the rest of the contract points to that as a condition precedent, it is a reasonable thing to say it is a condition precedent; but where a time is alleged in a loose, lax and ambiguous form, as to which there may be great difference of opinion, I think it would be very unreasonable to say that that was a condition precedent-a condition precedent which a man could hardly know whether he could perform or not. The general rule, in the words of Lord Ellenborough, cited in Davidson v. Gwynne' is 'that unless the non-performance alleged in breach of the contract goes to the whole right and consideration of it, the covenant broken is not to be considered a condition precedent, but as a distinct covenant, for the breach of which the party may be compensated in damages.' The jury here having negatived that which appears to me to be really the substance of each of the pleas, the pleas are not proved; and the rule, therefore, must be made absolute to enter the verdict for the plaintiff." 112 East 381, To proceed to a port as ordered. By a charter-party, which contained the usual exceptions of dangers and accidents of navigation, the plaintiff's vessel was to proceed with all convenient speed from Liverpool to Newport, and there load a cargo of iron rails for San Francisco, and the freight was to be paid by the charterers on right delivery of the cargo. The plaintiff effected a policy of insurance with the defendants on the chartered freight on that voyage. The vessel proceeded from Liverpool to Newport, but before arriving there she took the rocks at Carnarvon Bay, where she remained for a considerable time, she was ultimately got off, and brought back to Liverpool, but though the damage she had sustained was not such as to constitute a total loss of the ship, the time necessary for getting her off and repairing her, so as to be a cargo carrying ship, was so long as to put an end, in a commercial sense, to the commercial speculation entered upon by the plaintiff (the shipowner,) and the charterers; and the latter accordingly abandoned the contract, and hired another vessel by which they forwarded the rails to San Francisco:-It was held, that under the above circumstances the charterers were released from their contract to load under the charter-party.1 If the loading port is not named in the charterparty, but remains to be determined by the charterer, he must, subject to special agreement, name it before he can require the ship to sail. So where a charter 1 Jackson v. The Union Marine Insurance Co. Ld., L. R. 10 C. P. 125; 41 L. J. C. P. 27. party stated, that it was agreed thereby that the ship should sail in ballast to a safe and convenient port, near to Cape Town, and there load a full cargo, and the plaintiff agreed to load the vessel with the said cargo, and to pay freight. The averment alleged, that though the plaintiff was ready and willing to appoint and put on board a proper person as supercargo, who would have indicated to the master a safe and convenient port near Cape Town, for receiving on board the cargo, the defendant would not permit the ship to proceed in ballast on the voyage; it was held, that the plaintiff should have given notice of a safe and convenient port or anything equivalent in law to such notice; it being the duty of the charterer to select the port and give notice of it to the owner before the commencement of the voyage.1 Where a loading port has to be named under a charter for a full cargo, the charterer must name a place where a full cargo can be safely taken." 2 Where by the terms of a charter-party of a vessel bound for M., it was agreed that the vessel should, after delivering her outward cargo, with all convenient speed proceed to such one of certain specified ports as should be ordered at M., and there load from the factors of the charterer a full and complete cargo, &c., and therewith proceed to the United Kingdom :-Held, that it was incumbent on the charterer to give orders as to the sailing of the vessel within 1 Rae v. Hackett, 12 M. & W. 724. a reasonable time after her arrival at M., and that he was liable to an action for delaying to do so, though it did not appear, that the vessel had discharged her outward cargo.' In the case of Sieveking v. Maas, the Captain of a ship chartered to load at a foreign port, and to proceed to a coal port or to a good and safe port in the Frith of Forth, or to London, or to a good and safe port on the east coast of England, as ordered on signing bills of lading, or with L. and F. at Elsinore, downwards, signed a bill of lading in which it was stated that the ship was bound for orders to Elsinore. The Captain waited a reasonable time at Elsinore for orders, but none coming from the charterers, he proceeded to the port of Leith:Held, in an action by the charterers against the Captain, that the Captain having waited a reasonable time for orders at Elsinore, had performed his duty under the charter-party; that he was not bound to communicate with the charterers and ask for orders; and that as no orders were given him, he was entitled to elect to which of the ports specified in the charter-party he would take the ship. In French v. Gerber the ship was, after loading a full cargo, to proceed to a port of call for orders to be forwarded within forty-eight hours after notice of arrival given to charterers to discharge at a good and safe port. Twelve working lay-days |