
    Gilbert Porteous et al., App’lts, v. Francis W. Williams et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed June 4, 1889.)
    
    
      1. Charter party—Cancellation op — When question for the jury.
    The plaintiffs sued to recover a sum of money, being, as they alleged, their loss in consequence of defendants’ refusal to load a certain steamship under a charter party. The plaintiffs were nonsuited. The defendants, to sustain the ruling, contend that the charter party was cancelled. The letters which passed between the parties in regard to the subject, were susceptible of two diverse constructions. Held, that inasmuch as it cannot be said, as matter of law, that the first charter party was cancelled or superseded, the question should have been submitted to the jury.
    3. Same—Construction of.
    The express agreement of the owner required the ship, after discharging the cargo then on board, with “ all convenient speed,” to sail and pro- ' ceed to the port of the charterer. No deviation was provided for, nor detention for any cause, save the necessary delay of unloading. Held, that the qualification of detention by unavoidable accident or perils of navigation, or other cause, has no application to that term of the agreement.
    3. Same—When ierformance on part of charterers excused.
    
      Held, that if the delay of the owner did truly defeat the object of the charterers in making the agreement, performance on their part would be excused and they would not be liable, but that inasmuch as it does not so appear as matter of law, the question should have been sent to the jury.
    Appeal from a judgment of the New York superior court, reversing a judgment of the special term.
    
      E. B. Qonvers, for app’lts; L. H. Arnold, for resp’ts.
    
      
       Reversing 53 N. Y. Supr. Ct. (21 J. & S.), 242.
    
   Danforth, J.

The plaintiffs sued to recover $1,452, 66-100, that sum being, as alleged, their loss in consequence of the refusal of the defendants to load the steamship Limosa under a charter party dated at Charleston, S. 0., March 20, 1882. The plaintiff was nonsuited. Among other grounds presented by the defendants to sustain that ruling, is,

First. That the charter party was cancelled. Upon that question there is, as it seems to us, room for a difference of opinion.

The charter party recites that the vessel “is due at New York with a cargo on or about 25th inst., meaning March 25, 1882; that the said ship being light, staunch, strong and every way fitted for the voyage, shall, with all convenient speed (after having delivered her outward cargo which she is at liberty to take to New York for owner’s benefit), sail and proceed in ballast to Charleston, S. C., or Coosaw river, S. C., charterer’s option, and there load (always-afloat) from the factories of said merchants, a full and. complete cargo of phosphate rock.”

It appears that on the 26th of March, and while on the voyage to New York, the steamer was seriously injured,, and, when she reached port on the 30th of March, she was necessarily taken to the dry-dock for repairs. She remained there until the latter part of April In the meantime, as early as April 1st, the defendants notified the plaintiffs-that if she should be delayed in New York and did not reach Charleston in time to make a shipment in April, they “would have to throw her up,” or cancel the charter. There was correspondence in regard to it, and, afterwards, they took a new charter party, dated April 25, for the-month of May. The steamer was then in New York, but immediately started for Charleston, where she was to be loaded. The letters which passed between the agents of the parties are susceptible of two constructions, and we do not think it can be said as matter of law that the parties agreed that the first charter party should be cancelled or superseded.

Second. There is another question. If the parties did not agree that the first charter party should be cancelled, was the undertaking, on the plaintiffs’ part, performed, or was there such failure and inability to perform as released the defendants and permitted them to refuse the vessel when tendered ? The express agreement of the owner required the ship, after discharging the cargo then on board with “ all convenient speed,” to sail and proceed to the port of the charterer. No deviation was provided for, nor detention for any cause save the necessary delay; of unloading. The qualification of detention by unavoidable accident, or perils of navigation, or other cause, has no application to that term of the agreement. Such qualification. relates to the voyage to be made for the charterer, and not-to the condition of the ship while going to the owners’ port of discharge, nor to any detention made necessary by that condition The evidence would, in one view, warrant the finding that the vessel was taken under the first charter for a particular shipment or cargo, and that the whole object of the charterer, in engaging the ship, was frustrated by the delay of the owner, and in bringing her to Charleston.

In McAndrews v. Chappie (L. R., 1 Com. Pl., 643), the charter party contained a clause that the ship should, “with all convenient speed (on being ready),” proceed te the charterers and there load, and, notwithstanding this-qualification, it was thought that if the delay prevented the cargo from being shipped, which cargo was the object for which the ship was chartered, performance on the charterer’s part might be excused, although that question was not decided.

In Lowber v. Bangs (2 Wall., 728), a somewhat similar provision was regarded as a condition precedent, but whether one or the other case is followed, we think it quite clear that if the delay of the owner did truly defeat the object of the charterers in making the agreement, performance on their part would be excused, and they would not be liable. We cannot say, however, that it does so appear as matter of law.

Some other propositions are submitted by the respondent, but none which, in the present aspect of the case, would permit it to be taken from the jury, and it should have been sent to them.

The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to abide the event.

All concur.  