Page:Federal Reporter, 1st Series, Volume 9.djvu/443

 428 FEDERAL REPORTBK. �defendants to keep their contraot and make the promised voyage. The libellants have at least sustained a loss of $2,800 in gains pre- vented by this failure of the defendants to keep their contract, and in my judgment they are such damages as arise naturally from the breach of the contract, and must also be considere d as within the contemplation of the parties thereto when they made it; and are, tliPrefore, recoverableiii this suit. Hadley v. Baxendale, 9 Bxch. 341 ; Griffin y. Golver, 16 N. Y. 489; Ogden v. Marshall, 4 Selden, 340; Sedg. Dam. 79. �The stipulation in the charter that either party shall be liable to the other in the penal sum of $2,900 upon a failure to perform any part of the agreement, was intended, in contemplation of law, not as a measure of damages, but as a penalty, to be enforced only to the amount of the actual damages sustained by such failure. Harris v. Miller;\}. S. C. 0. Dis. Or., March 8, 1880; Sedg. Dam. 399, 421, note 1. But this being a suit, not for the penalty, but upon the covenants in the contract for damages for a breach thereof, the amount recovered may exceed such penalty. Lowe v. Peers, 4 Burr. 2225 : Harrison v. Wright, 13 East, 343 ; Winter v. Trimmer, 1 Black, 395 ; Abb. on Ship. 285 ; Sedg. Dam. 423. �In their answer the defendants allege that the parties were mutu- ally released from the obligation of the charter-party by reason of the alleged cancellation of the same by the master and Hop Kee; but it not appearing that the latter bad authority to make such cancella- tion, that defence is abandoned, and it is now insisted that the con- traot to furnish and receive freight and passengers on the G-aribaldi at Hong Kong for Portland was a contract so far to be performed in the former place, and, being prohibited there, it was invalid, and therefore bound neither party to it. But this proposition assumes •what is not proven. There is no evidence that it was unlawful to carry passengers out of Hong Kong on a suitable vessel — one that was "staunch and strong," and reasonably safe for them to venture their lives upon. The defendants expressly covenanted in the charter- party that the Garibaldi was such a vessel, and in such condition ; and, if they had not, the law would imply a covenant on their part that the vessel was "fit" to do what they undertook to do with her — carry passengers out of Hong Kong. Maclachlau, L. of M. S. 406; The Merrimac, 2 Sawy. 693; Lyon v. Mills, 5 Bast, 428; Stanton v. Richardson, 9 G. P. 390 ; 1 Pars. Ship & Adm. 284. Nor was the duty and responsibility of the defendants in this respect affected by ��� �