18 F. Cas. 728 | S.D.N.Y. | 1867
The obvious question in this case is, whether the seizure and enforced deviation and delay by the military force at Tortugas, constitutes a breach of the agreement to proceed direct, for which the owners are liable. As there are no exceptions in the charter party under which the deviation can be sheltered or justified, we must look to the general legal import of the contract, and the responsibilities under which it placed the owners of the vessel. The point on which the case turns lies in this clause of the charter party: "Also, it is understood, that the vessel is now loading for Key West or the Tortugas, and is to proceed thence direct to load on this charter.” What were the obligations assumed by the owners under this clause of the contract? Clearly, not to be at Tortugas, or Bayport, within any specified time. Time is, therefore, not a specific and essential element in the contract. Of course, if the owners had agreed that their vessel should be at Bayport on or before a specified day, then a failure to comply would have been a breach, for which they would have been liable. No exceptions of perils of the sea, irresistible force, or inevitable accident were inserted in the charter, and none could have been set up to excuse a failure to be at a given port within a time expressly limited by the contract. It is well settled law that even the act of God will not excuse the performance of an express and positive stipulation of a valid contract. School District v. Dauchy, 25 Conn. 530. But the clause of this charter now under consideration is not express as to time. The words, “to proceed thence direct to load on this charter” are not clear and precise when applied to the subject matter — the voyage in question. “Direct" does not mean in a straight line nor instanter. The language does not measure the exact obligation imposed by the contract. Here the law steps in, and implies that the obligation assumed was to proceed without unreasonable delay and by the usual route. The same legal implication would have sprung from the contract in the absence of the word “direct;” for where the undertaking is to proceed from one port to another, a direct voyage is always prima facie intended. The law implies this, and the legal presumption is conclusive, until rebutted by some custom to deviate or proceed by another route. Lowry v. Russell, 8 Pick. 360. If the word “direct” had, therefore, been left out of this clause, the law would have raised an implied promise to proceed direct from New York to Key West or Tortugas, and thence direct to Bayport or some one of the other ports named. The time, within which such a promise is to be performed, is regulated by law. As the law implies the promise or obligation, so it implies the rule which must govern its performance. No time having been prescribed by the parties, the legal presumption is that they intended a reasonable time.
The case of Duncan v. Topham, 8 C. B. 225, was cited at bar by. the libellant. That case held, that where a contract was to be performed “directly,” it meant something more than a reasonable time, and that the word “directly” imported “speedily,” or, at least, “as soon as practicable.” A glance at that ease shows that it was very little like the one now under consideration. The subject matter bore no resemblance to the one we are now considering. The contract itself was the result of a correspondence between the parties, and, when expounded with reference to the subject matter, clearly presented a limitation as to time. But if we apply the doctrine of that case to the one now before us, we shall construe the clause of this charter to be an agreement of the owners of the Onrust that she shall proceed from New York to Key West or Tortu-gas, in a reasonable time, and from thence as soon as practicable, or speedily, to load on this charter. Still we have no express stipulation, by which time is made an essential element in the contract. We must resort to the rules of law for the measure of the obligation assumed. From New York to Key West or Tortugas reasonable diligence is required in expediting the voyage by the direct route, and from Tortugas to load on this charter, the highest degree of diligence. It is hardly necessary to cite authorities to show, that where a party is bound to the exercise of even the highest degree of diligence, he is not responsible for delay, caused by the interposition of irresistible force, where that force confronts and overpowers him without any fault of his own. “By irresistible force is meant such an interposition of human agency, an
In view of this conclusion it is hardly necessary to dwell on the cases cited by the li-bellant, to show that a party may be responsible for the non-performance of a contract, where his failure has been caused by the interposition of illegal force. I will, however, notice one, for the purpose of suggesting in the same connection the distinction which separates that class of cases from the one now before us. Gosling v. Higgins, 1 Camp. 451, was an action for the non-delivery of ten pipes of wine, shipped .at the Island of Madeira, on board of a vessel of which the defendant was owner, to be carried to Jamaica, and from thence to England. When the vessel arrived off Jamaica, •she was seized, with her cargo, for a supposed violation of the revenue laws, and there condemned; but, upon appeal to the privy council in England, the sentence of ■condemnation was reversed. A verdict for the plaintiff was ordered by Lord Ellen-borough, who remarked to the defendant’s counsel, “Tou have an action against the officers. The shipper can only look to the ■owner or master of the ship.” Here it will be seen was a breach of an express and essential stipulation in the bill of lading, which was to deliver the wine in England. Ho delivery was ever made. In other words, there was no performance. But the present controversy does not arise out of the breach of any express stipulation. The voyage was performed and the cargo delivered. The only pretended breach consists in not proceeding from Tortugas to Bayport in proper time. But no particular time was stipulated in the contract, and the only time to which the vessel was bound, was that implied by law from the use of the word ‘‘direct,” which, under the strictest construction, can only mean that period necessary, in the use of the highest diligence, under all the circumstances, to accomplish the voyage. The distinction is obvious. In one case, there was a breach of an express stipulation in the contract. In the other, the time of performance was prolonged by no fault Qfi the master, but, as time was not made the essence of the contract, enforced delay was no breach.
It is obvious that the claim of the libel-lant would stand upon no higher ground if the word “direct” were held to apply primarily to the route, rather than the time of the voyage from Tortugas to Bayport. The word, applied to either aspect of the case, would be governed by the same rules of law. But, in fact, the gravamen of the li-bellant’s complaint, is not that the Onrust did not pursue the customary route from Tortugas to Bayport, but that she did not start from the former port at the time she ought.
Let a decree be entered dismissing the libel with costs.