stipulation shall be a condition precedent, the more recent cases conclusively establish the proposition that the question whether the stipulation is in the nature of a condition precedent, depends chiefly upon whether it forms part of the substance of the contract, and whether it is of such a nature that the breach of it will frustrate the object of the contract. In one of these Proceed with cases (f) the charter-party contained a clause that a ship which all convenient speed. had recently been launched at an English port should, with all convenient speed on being made ready, having liberty to take an outward cargo for owner's benefit direct or on the way, proceed to Alexandria, and there load a cargo from the charterers. The ship proceeded to Alexandria, but she deviated from the direct passage there, by proceeding to Constantinople and other ports. The deviation caused a delay of a few days only, and in no sense frustrated the object of the voyage. The Court held that the deviations were not such as to justify the charterers in refusing to load the ship on her arrival at Alexandria (g). In a case (h) where a charter-party provided that the ship should load a full and complete cargo of sugar in bags, hemp in bales, and measurement goods, and specified different rates of freight for dry and wet sugar, and provided that the vessel should be a good risk for insurance before and when receiving cargo; the Fitness to ship proceeded to her port of loading, and, having been surveyed, lated cargo. was reported to be a first-class risk. A cargo of wet sugar was provided for her by the charterer, and when the bulk of the cargo had been loaded, there was found to be such a large amount of molasses in the hold, the result of drainage from the sugar, that the ship would not be seaworthy for the voyage if she proceeded in the condition she then was. It became necessary to unload the cargo, and the charterer then refused to re-load it or to provide another cargo. An action was brought by the shipowner against the charterer for refusing to load according to the terms of the charter-party, and a cross action was brought by the charterer against the shipowner for neglecting (f) Mac Andrew v. Chapple, L. R., 1 C. P. 643. (g) Willes, J., said, p. 648, It seems to be now settled that delay by deviation is the same as a delay in starting; and it is also settled, at any rate in this Court, that a delay or deviation which, as it has been said, goes to the whole root of the matter, deprives the charterer of the whole benefit of the contract, or entirely frustrates the (h) Stanton v. Richardson, L. R., 7 carry stipu mencement of to have the ship fitted for receiving the agreed cargo, and for not carrying the agreed cargo. The jury at the trial found, as a fact, that the ship was not reasonably fit to carry a cargo of wet sugar, and could not have been made fit within such a time as would not have frustrated the object of the adventure, and a verdict was entered for the charterer in both actions. The Court of Common Pleas refused to disturb the verdict, and the Court of Exchequer Chamber and the House of Lords affirmed the Delay in com- decision. In another case (i), where the plaintiff agreed to time charter. charter a ship described as then in Sunderland, bound to London, for twelve months after completion of the "present voyage," and after the completion of the voyage the ship was detained as unseaworthy by the officers of the Board of Trade, and the necessary repairs occupied two months: when the repairs were completed, the shipowner offered the vessel to the charterer, but he refused to load her: it was held by the Court of Appeal, affirming the judgment of the Queen's Bench Division, that the charterer was justified in rescinding the charter. Mellish, L. J., in delivering judgment, said (j) :—" We are of opinion that, as in a charter for a voyage the specified voyage would be of the essence of the contract, and the charterer, if he could not have the use of the vessel for the specified voyage, would not be bound to take her for any other voyage, so, in a charter for time, if the charterer cannot have a vessel for the specified time, he is not bound to take the vessel for a shorter, or a substantially different, time; and if he cannot get the vessel for the specified time, he may throw up the charter." ENGAGEMENTS IMPLIED ON OWNER: There are certain terms which even if not expressed in the contract of affreightment must ordinarily be regarded as implied. Thus, in whatever way the contract to carry goods in a (i) Tully v. Howling, 2 Q. B. D. 182. (j) Brett, J., rested his judgment on the ground that on the facts the jury ought to have found that the ship was not fit for the purpose for which she was chartered, and could not be made fit within any time which would not have frustrated the object of the adventure. In Bradford v. Williams, L. R., 7 Ex. 259, the charter-party provided for the continuous employment of a vessel on short voyages from May, 1871, to March, 1872, and stipulated that the vessel should load with G. & Co. or F. & Co. till the end of Sept. at captain's option, after Sept. with F. & Co. In September the captain exercised his option in favour of loading from G. & Co.; but the charterers having refused to load from G. & Co. the shipowners refused to continue working under the charter. In these circumstances it was held that the breach of the charter-party, which the charterers had committed, went to the root of the contract and justified the shipowner in declining further to perform the charter-party. ship be made, whether it be in the shape of a charter-party or any other form, the shipowner is, unless there be an agreement To provide a seaworthy to the contrary, impliedly held to warrant that the ship he pro- ship vides shall be seaworthy and in a condition to perform the voyage and undergo the perils of the sea and other included risks to which she must of necessity be exposed in the course of the voyage (k). reasonable As it is the duty of the shipowner to furnish a vessel fit to within a carry the cargo that the charterer has agreed to put on board; time. so, in the absence of any express provision as to time, he must be taken to stipulate that he will do so within a reasonable time, and if he delays to do so for an unreasonable time, so as to destroy, in a commercial sense, the success of the adventure, the charterer is entitled to throw up the charter (). In a recent case (m), where a vessel was chartered to proceed with all convenient speed, dangers and accidents of navigation excepted, from Liverpool to Newport, and there load cargo, the vessel, in the course of her passage from Liverpool to Newport to fulfil the charter, was stranded; and although she was afterwards got off, the time necessary for repairing her was so long as, in the opinion of the jury, to make it unreasonable for the charterers to supply the cargo at the end of that time, and so as to put an end, in a commercial sense, to the commercial speculation entered upon by the shipowner and the charterers: it was held that the charterers were absolved from loading the vessel; that it was, in fact, an implied condition precedent that the vessel should arrive at the port of loading at such a time that the contemplated adventure should be possible in a business sense. The ship not arriving at that time, the contract was at an end, although, as the delay arose from an excepted peril, no action could have been maintained in respect of the delay by the charterers against the shipowner (n). (k) Kopitoff v. Wilson, 1 Q. B. D. 377; Steel v. The State Line Company, 3 App. Ca. 72. This implied warranty attaches at the time when the ship sails with the cargo on board for her port of destination, and this warranty is broken if she is then unseaworthy, although she may have been seaworthy at the time of commencing to take on board her cargo; Cohn v. Davidson, 2 Q. B. D. 455. Further, the shipowner not only undertakes that the ship shall be fit to carry a cargo of merchandize, but where a particular cargo has been named in the contract (1) See Stanton v. Richardson, supra, (m) Jackson v. Union Marine Insurance Company, L. R., 8 C. P. 572; 10 C. P. 125. (n) See per Blackburn, J., Poussard v. Spiers, 1 Q. B. D., at page 414. But see Hurst v. Usborne, 18 C. B. 144, To prosecute the voyage without deviation. Although the charter-party usually stipulates that the vessel shall proceed on the agreed voyage with all convenient speed (0), unnecessary yet in the absence of any such express stipulation there is an implied obligation on the part of the shipowner to prosecute the voyage with all due despatch, and if any loss or damage is sustained by the charterer by reason of undue delay or deviation his remedy lies against the shipowner (p). But a deviation for the purpose of saving life is always justifiable on the ground that owners of ship and owners of cargo must be regarded as impliedly assenting to a departure for the purpose of carrying out the clear moral duty of assisting fellow creatures in distress (q). Collateral agreement that ship should first fulfil other engagements. DUTY OF MASTER ON ARRIVAL AT PORT OF LOADING. OBLIGATION OF Where a charter-party contained a warranty that a ship was in a position to arrive at the port of loading within a named date, in an action for a breach of the warranty it was held to be a good answer that the charter-party was made subject to a condition that the ship should first with convenient speed fulfil other engagements and then proceed to her port of loading, and that she did so (r). In the absence of an express stipulation in the charter-party requiring the master to give notice of the arrival of the ship at the port of loading, no obligation is imposed upon the master to give such notice to the charterer or his agent, because the arrival of a ship at a port is matter of notoriety of which the charterers are bound to take notice; but when the readiness of the ship to load the agreed cargo depends upon the discharge of a cargo with which she was laden upon arrival in the port, or depends upon the removal of the ship into a particular dock or other matters of a like kind within the control and knowledge of the shipowner, it seems that the charterer is entitled to notice ($). The usual form of charter provides that the freighter shall where it was held that the charterer (0) See supra, p. 309. (p) Davis v. Garrett, 6 Bingham, 716; Jones v. Holm, L. R., 2 Ex. 335. (4) Scaramanga v. Stamp, 4 C. P. D. 316; S. C. on appeal, 5 C. P. D. 295. See The Scindia, L. R., 1 P. C. 246; The Sir Ralph Abercrombie, L. R., 1 P. C., at page 461. On the completion of the loading of the cargo, the ship should proceed on her voyage without delay; Bornmann v. Tooke, 1 Camp. 377. A delay by deviation is the same as a delay in starting; McAndrew v. Chapple, L. R., 1 C. P. 643. And see post, p. 318. (r) Corkling v. Massey, L. R., 8 C. P. 395; White v. Parkin, 12 East, 579. (s) Stanton v. Austin, L. R., 7 C. B.; Harman v. Mant, 4 Camp. 161; Fairbridge v. Page, 1 Car. & K. 317. load a "full and complete cargo" (t), and he is bound to do so, provided there is no default by the shipowner (u). Where a full cargo is to be shipped consisting of heavy and light goods, or of different kinds of goods at lower and higher freights, it is often material to ascertain the precise meaning of the contract; as in the latter case, the amount of freight may depend on the character of the goods laden, and in the former, the shipowner would be benefited by the shipment of heavy goods adapted to supply the place of ballast. No general rule can be laid down which will apply to all cases; but the decision of them must depend upon the intention of the parties as apparent on the express contract, or as it is to be implied from the surrounding circumstances, or from any custom of the particular voyage capable of being annexed to the contract. Usually the shipper has the option to load what goods he thinks best, and the shipowners are bound to ballast the ship properly (v). (t) As to the meaning of the words "6 a full and complete cargo, say about 1100 tons," see Morris v. Levison, 1 C. P. D. 155. See also supra, pp. 294, 298. As to the meaning of cargo in a contract for the sale of a cargo see Borrowman v. Drayton, 2 Ex. D. 15; Kreuger v. Blank, L. R., 5 Ex. 179; Ireland v. Livingston, L. R., 5 H. L. 395; Gifford v. Dishington, 9 Sess. Cases, 3rd series, 1045. Where a cargo of wheat, to be shipped, had been sold, and the contract note mentioned certain quantities as the maximum and minimum to be shipped, it was held that the purchaser was entitled to refuse to accept the shipping documents, or to pay for the cargo, as the bill of lading and shipping documents represented the cargo to consist of a greater quantity than the maximum fixed. It was also held that the purchaser was not bound to pay for the cargo, or to accept shipping documents which represented it to be within the prescribed limits, if in fact it exceeded them. Tamvaco v. Lucas, 1 E. & E. 581-592. See also Tamvaco v. Lucas, 1 B. & S. 185, 3 B. & S. 89, where a question arose on a similar contract as to the sufficiency of a policy of insurance, tendered as one of the shipping documents. (u) In Jones v. Holm, L. R., 2 Ex. 335, the defendant chartered a vessel to load at a named port. The charterparty contained the usual exception of fire. After a part of the cargo had been loaded a fire on board the ship rendered it necessary to repair the ship, and caused a delay of two months. At the end of the two months the charterer refused to load the residue of the agreed cargo. It did not appear that the delay was such as to frustrate the object of the adventure, and it was held that the charterer was liable for breach of contract in refusing to complete the loading. (v) See the cases cited in the following notes, and Irving v. Clegg, 1 B. N. C. 53; Capper v. Forster, 3 B. N. C. 938; Gibbon v. Young, 2 Moore, 224; Cockburn v. Alexander, 6 C. B. 791; The Southampton Steam Colliery Company v. Clarke, L. R., 4 Ex. 73; 6 Ex. 53; Pust v. Dowie, 5 E. & B. 20, 33, and ante, p. 76, note (u). Where a charterparty provided that the charterer should load a full and complete cargo of sugar or other lawful produce, freight to be paid, in certain rates on certain specified goods, and in proportional rates on other goods, if any should be shipped, except what might be shipped for broken stowage, which should pay as customary, and the charterer put on board as large a quantity of timber as the vessel could carry, but did not supply any broken stowage, for some of which there was room, it was held, that the question as to the completeness of the cargo was for the jury; but that, if it was for the Court, the charterer, having exercised his right of choice, and put on board an article with which the ship could not be fully loaded, was bound to supply broken stowage to fill up the cargo |