50 FEDERAL REPORTER.
upon going to the "next nearest open port to Arica," and there only,
to discharge the Arica cargo. But as the vessel had been loaded for
Callao as a second port, and was bound to go there upon the char-
terers’ designation, the captain had no interest to decline going to
Callao to discharge the Arica cargo, instead of stopping at some in-
termediate open port nearer to Arica. On the contrary, the interests
of the vessel were apparently promoted by going directly to Callao at
once, as the second port within the charter; and it was certainly
competent for the consignees to accept the Arica portion of the cargo
there instead of at some port nearer to Arica, if they chose to do so.
Callao was not at that time under blockade; and there is no evidence
that a blockade was anticipated there sooner than at any other port
nearer to Arica. The direction by the cousignees to proceed imme-
diately to Callao was therefore a proper and lawful direction, (see 4
Ogden v. Graham, 1 Best & S. 773;) and the acceptance of this di-
rection by the master must therefore be construed as a waiver by
both parties of a strict delivery of the Arica cargo at "the next nearest
open port," and an agreement to accept Callao instead as the next
port and as a substitute for the discharge of the Arica portion of
the cargo, as well as the "second port" provided for in the charter.
On arriving off Callao, however, five days afterwards, that port also
was found to have been blockaded the day before, so that no delivery
could there be made.
In this situation I think the provisions of the charter·party as to the
place of delivery must he deemed exhausted. The language of the char-
ter requiring the vessel to go to the "next nearest open port" has ref-
erence to the blockade of Arica only; there is no similar express pro-
vision in case the "next port" should be blockaded before the discharge
there was completed. Had the provisions of the charter as to the
next nearest port to Arica not been waived, then, upon the blockade
of the next port before completing the discharge at that port, if Arica
was still under blockade, the ship might possibly still have been re-
quired to go to the next open port that was nearest to Arica, But
the strict performance of this clause had been waived. The ship had
sailed some 600 miles northward to Gallao; the consignees had the right
to have the portion of the cargo designed for Callao discharged near
` that port; and it would be unreasonable to hold that the captain
could be required to return to the strict terms of the charter-party
after they had once been waived by both, and to go hack hundreds of
miles to the south, to that particular open port which was nearest to
Arica, in order to discharge the Arica cargo, and be still bound to go
again to Callao, or near there, to discharge the rest. None of the
parties proposed any such course. Their subsequent action was, in
fact, wholly outside of the charter, and had apparently no reference
to that clause of it. ‘
As respects Callao as a "second port," there is no provision in the
charter providing for any substituted port should the "sec0nd port"