44 FEDERAL ·BEPOBTEB•
Tun S1>A1z·r.~.N.'
Cnossnm v. FABBRI and another}
(D7·8¢’7’Z'Cf (hurt, S. D. New York. July 24, 1885.)
1. DmMU1mAG1u—BLooKADm or Poar or DESl‘lNATlON—CONSTl·lUC'l‘ION on CHAR-
Tmn-PAaTr—UUs’roMAaY DlSPr\'l‘CH—UASE STATED.
The charter-party of the ship S. provided for a voyage " from New York to
Arica, Peru, with the privilege of a second port in Peru not north of Uallao;
charterers to be allowed ‘customary dispatch’ for discharging the cargo after
the captain reports the vessel in the berth ready to */6 =¥ *6 discharge the
cargo. * * * Should the port of Arica be blockadcd, and the vessel not be
, — . able to get into that port, the vessel is to proceed to the next nearest open port
` to discharge her cargo." On arrival at Arica on the fifth of April, that port
was found to be blockaded, and tl1e vessel was ordered by the agents of the
» chartercr to Callao, which was then open, but was blockaded the day before
the vessel arrived there. The agents thereupon directed the vessel to go to
Ancon, 10 miles north of Gallao, a place which had never before been made a
ti portof. entry, and which had no facilities for discharging cargo, in consequence
of which great delays were occasioned. Wlicn about half the cargo had been
discharged, Ancon was blockadcd, and the vessel went to Chancay, wheretherc
· . was further delay, and a little more discharge of cargo before that port also was
closed. After further hindrances, the discharge was finally completed on thc
twenty-fifth of August at Arica, where the blockade had been raised. Libel-
ants claimed that " customary dispatch," in general, on the coast of Peru was
such that the S. should have been discharged at Ancon by May 12th, whereas her
. discharge was not completed at Arica until nearly 125 days later, for which de-
murrage at the rate of £15 per day was demanded. Ileld, that the expression
"customary dispatch," in unloading, is the dispatch customary at the place of
discharge. At the extemporized ports of Ancon and Chancay there was no
. custom. As, in using the phrase ‘• at the next nearest open port," the parties
, could not reasonably have had in view any such places as Ancon or Chancay,
the *‘ customary dispatch " of large ports, such as Arica or Callao, could not be
exacted in this case at new and extemporizod ports, which were substituted by
necessity, and not from choice, as places of delivery, to prevent the defeat of
the voyage, and that the obligation of the consignees, as respects discharge in
those places, would be that of reasonable diligence only.
2. SAMm—WA1vaR or Paovisron IN Cnnnrnn-—RnsuL·r m rms Cass.
As the consignees designated Callao, 600 miles north, for the place of dis-
charge after Arica, and the captain of the S. acquiesced, held, that the provis-
~ ions of the charter as to the “ next nearest port" had been waived. There was
no provision in the charter for a substituted port in case the ‘*second port"
. . should also be blockaded. Held, therefore, that upon the blockade of Callao
the situation became the same as if Oallao had been the onlyport of discharge
, named in the charter, with no reference to the contingency of blockade.
3. SAME-Bnooksnn or Ponr or D1<:sT1NAT1oN—EFFEcT ON Cunvrmn-Enenrsu
. AND Amnmosn AU'l‘HORlTlES. ` _
English and American decisions reviewed as to the effect of the blockade of
I the port of destination of a vessel on the obligations of her charter-party.
4.‘ESAME——UNDER Fonniou Law.
The obligations of the ship in such circumstances considered under the codes
. of various foreign nations. t
5. SAME—EFFECT ON OHAliTER—DUTY or MASTER—FREIGHT—DELAY on DAM-
AGE-—O0NTRACT T0 RUN Bnoomnn. _
‘ — Under our law, a blockade that prevents both parties from performing their
. concurrent obligations as to receipt and delivery of cargo dissolves the spe-
, cific contract. If the master cannot then obtain the instructions of the ship-
illeported by Edward G. Benedict, Esq., ofthe New York bar. ` A