Page:Federal Reporter, 1st Series, Volume 5.djvu/141

 ANTOLB V. OILL. 129 �of grain under the charter, but they refused io load her, claiming that they were releaaed from their contract by reason of the failure of the vessel to proceed from G-enoa without delay to Baltimore. The freight to be paid under the charter was five shillings ten pence half penny per quarter of 480 pounds, and, upon the refusai of respondents, the vessel was at once rechartered for a similar voyago to carry grain to Great Britain, or the continent, at the then beat market rate, which had fallen to three shillings nine pence per quarter. �It is the loss to the libellant caused by this differ- ence in freights which he seeks to recover in this suit. Under the decision in Lowber v. Bangs, 2 Wall. 728, I think the stipulation in this charter-party that the vessel should proceed without delay to Baltimore must be held to be a sub- stantive part of the contract, and its performance a condi- tion precedent to the libellant's right to recover. This case, therefore, in my judgment, turns upon the answer to the question, did the vessel proceed without delay to Baltimore, within the meaning of the contract ? �That to proceed without delay was understood to mean, unless qualified, without such delay as would arise from tak- ing a cargo on board, would seem to be indicated by the faot that it was considered necessary to reserve to the owner the privilege of taking on board as ballast a cargo of coal. And this would seem also to show that any other employment of the vessel af ter the date of the charter-party, except this per- mitted one, was intended to be excluded. �The master of the vessel, in his testimony, in answer to the inquiry whether there was any unnecessary delay in dis- charging at Genoa, states that there was no delay except such as unavoidably arose from lightering in bad weather, and says he had "an allowance of 35 tons a working day to discharge the vessel." As the stipulation which the mas- ter speaks of fixed 35 tons per working day as the rate of discharge, and as that was what he in fact accomplished, it may be fairly taken as the average and accustomed rate at that port. It would; therefore, appear that at the date of the �v.5,no.l — 9 ����