In the case supposed, the consideration for carrying the cargo, is the agreement to pay thirty dollars a ton; now this consideration is divisible by its very terms into thirty dollars per each ton; the promise to carry a full cargo, and the breach of it, may then be divided correspondingly; and the owner has broken all that part of his promise which relates to that part of the cargo which he did not carry, and has thereby released the shipper from paying him for that part of the cargo. But he has kept that part of his promise which relates to that part of the cargo which he has brought, and for so much, therefore, the shipper must keep his promise. So, if the owner promises that his ship shall be stanch and tight; and he carries the cargo, but the ship is neither stanch nor tight, this is not a separable promise in the sense in which a promise to carry a full cargo is; for a ship must be sea-worthy, or not sea-worthy, as a whole. But it is so far separable, that the effect of the breach of it does not necessarily extend to the whole cargo, and therefore may not to the compensation for carrying it. Therefore the owner would recover his freight, but be liable in damages for any consequences of the bad condition of his vessel, if goods were laden on board, but the freighter might refuse to put the goods on board.1

In regard to dependent and independent covenants, see Pordage v. Cole, 1 Saund. Wm's. Ed. 319; Roberts v. Brett, 18 C. B. 561, 36 Eng. L. & Eq. 358.

1 Havelock v. Geddes, 10 East, 555. In this case the owner of a vessel covenanted that he would forthwith make her tight and strong, etc., for a voyage of twelve months, and keep her so. To an action of covenant on the charter-party for freight, the defendants pleaded the non-performance of this covenant in bar of the whole demand, and the plaintiff demurred. In giving the opinion of the court, Lord Ellenborough said: "The question upon the plea is, Whether the defendants are entitled to insist that the forthwith making the ship tight, stanch, etc., was a condition precedent. The defendants did not repudiate the ship, because she was not immediately made tight, stanch, etc., but took her into their service and employed her; and after having navigated her for several months, they say that, because this was a condition precedent, and was not performed, they are not liable to pay any thing. They do not pretend that the non-performance has damnified them to the extent of the payment they wish to evade; and, to be sure, if this were a condition precedent, the neglect of putting in a single nail for a single moment after the ship ought to have been made tight, stanch, etc., would be a breach of the condition, and a defence to the whole of the plaintiff's demand. We are clear, however, that the defendants, who took the ship into their service and employed her in an unimpaired state, have no right to insist that the forthwith making her tight, etc., was a condition precedent. Whether a particular covenant is to constitute a condition precedent depends upon the intention of the parties, as it is

So, if he promised to sail with the first convoy; but waited and afterwards sailed and arrived in safety; here, too, he would recover his freight. And a covenant to sail with the first wind

to be collected from the instrument in which the covenant is contained. . . . . And it would be an outrage to common sense to say, that it could have been the intention of these parties, that if the defendants took to this ship as a ship in their employ under the charter-party, they should be at liberty afterwards to insist that the making her complete in every particular, and that forthwith, without any delay, was a strict condition precedent on the part of the plaintiff. The cases cited are also decisive upon the point..... Boone v. Eyre, 1 H. Bl. 273, in the notes, lays down a very sensible general rule, that where mutual covenants go to the whole consideration on both sides, they are mutual conditions, the one precedent to the other but where they go only to a part, and a breach may be paid for in damages: there, the defendant has a remedy on the covenant, and shall not plead it as a condition precedent. Had the plaintiff's neglect here precluded the defendants from. making any use of the vessel, it would have gone to the whole consideration, and might have been insisted upon as an entire bar; because the consideration for the defendants' covenant to pay the freight would then have failed in toto; but as the defendants have had some use of the vessel, notwithstanding the plaintiff's neglect, the plaintiff's covenant is to be considered as going to a part only the consideration has not wholly failed; and the covenant cannot be looked upon as having raised a condition precedent, but merely gives the defendants a right, under a counter action, to such damages as they can prove they have sustained from this neglect. For these reasons we are of opinion that this plea cannot be supported, and that the demurrer to it must be allowed." See also, Tarrabochia v. Hickie, 1 H. & N. 183, 38 Eng. L. & Eq. 339; Clipsham v. Vertue, 5 Q. B. 265, 272, per Ld. Denman, C. J.; Ollive v. Booker, 1 Exch. 416, 423, per Parke, B.; and Elliot v. Von Glehn, 13 Q. B. 632, 641, per Erle, J., to the point that a loading or use by the charterer would be considered as a waiver of the breach of the condition. In Dunbar v. Smeethwaite, Q. B. 1854, 24 Law T. 92, 29 Eng. L. & Eq. 189, in an action by a shipper of goods against a ship-owner for a breach of covenant that the ship should be sea-worthy at the commencement of the voyage, whereby he was prevented from insuring his goods, the defendant pleaded that before any loss, damage, or prejudice had arisen to the plaintiff the ship was made sea-worthy. Held, no plea. A contrary doctrine to Havelock v. Geddes has been asserted by the court of appeals in Maryland, that in an action by the shipper against the captain and consignee to recover money retained as freight, the plaintiff might resist the defendant's claim thereto by showing that the vessel was not sea-worthy at the commencement of the voyage, and recover accordingly. In this case the ship proceeded upon the voyage, but was compelled by adverse weather to put into a port, not that of destination, where she was condemned. Dickinson v. Haslet, 3 Har. & J. 345. But in Reed v. Dick, 8 Watts, 479, where the ship was lost by parting her cable, Gibson, C. J., decided that evidence that the sails were insufficient, would not make the carrier answerable for the injury to the goods on board. See also, Hart v. Allen, 2 Watts, 114; Collier v. Valentine, 11 Mo. 299; Forbes v. Rice, 2 Brev. 363.

1 Davidson v. Gwynne, 12 East, 381. But when it is covenanted to load the vessel in time to sail with a convoy on a particular day, and the vessel arrives out in time to receive her cargo, but only a small portion of it is laden on the appointed day, the captain is not bound to wait, but may sail with the convoy, although the charterer offer to

is not a condition precedent. Nor is a stipulation to load certain goods. But if it is a part of the agreement that the ship shall be at, or sail from a certain place on or before a certain day there to receive a cargo, and she is not there on that day, this is a condition precedent; so far, at least, as to discharge the freighter from all obligation to load her, as the condition is not fulfilled; but if he loads her and she carries the cargo, then she earns her freight, subject as before, to damages for the breach of the provision as to time.3

provide a full cargo in a few days. Thompson v. Inglis, 3 Camp. 428. See also, Shadforth v. Higgin, 3 Camp. 385.

Bornmann v. Tooke, 1 Camp. 377.

1 Constable v. Cloberie, Palmer, 397; Fothergill v. Walton, 8 Taunt. 576. See also, Stavers v. Curling, 3 Bing. N. C. 355; Deffell v. Brocklebank, 4 Price, 36; Galloway v. Jackson, 3 Scott, N. R. 753. * In Glaholm v. Hays, 2 Man. & G. 257, by the memorandum of charter it was agreed that the vessel should proceed to Trieste, and there load a full cargo, and, being so loaded, should proceed to a port in the United Kingdom, upon payment of freight at a certain rate; that forty running days should be allowed the merchants for loading at Trieste, and for unloading at the port of discharge; and twelve days on demurrage, the vessel to sail from England on or before the fourth of February next. The vessel did not sail till the twenty-second of that month, being detained by contrary winds. The charterer refused to load any goods on board. Held, that the sailing on or before the fourth of February was a condition precedent. In Shadforth v. Higgin, 3 Camp. 385, the ship was to go to Jamaica, and the freighter undertook to provide a full cargo in time for the July convoy, provided she arrived out, and was ready by the twenty-fifth of June. Held, that her arrival was a condition precedent. In Croockewit v. Fletcher, 1 H. & N. 893, 40 Eng. L. & Eq. 415, the defendant pleaded to an action for breach of a charter-party by refusing to take the vessel, that the charter-party contained a stipulation that the vessel was to sail from Amsterdam to Liverpool on or before the fifteenth of March, and that she did not sail on or before that day. Replication, that the ship was prevented from sailing by dangers and accidents of the seas and by the act of God. On demurrer the replication was held bad. The charter-party contained this clause: "Restrictions of princes and rulers, the damages and accidents of the seas and navigation, the act of God, fire, pirates, and enemies, throughout the charter-party, always excepted." The court held, that, though this might exonerate the plaintiff in the event of the ship being prevented from sailing on the day named by any of the matters excepted, yet it did not affect the condition precedent upon the performance of which the defendant contracted to take and load the ship. And a replication that the defendants had repudiated the charter-party before the time of the sailing of the ship, was also held to be bad. See also, Bright v. Cowper, Brownl. 21; Tarrabochia v. Hickie, 1 H. & N. 183, 38 Eng. L. & Eq. 339. So, where it was agreed that a vessel should be launched and ready to receive cargo in all May, guaranteed to sail in all June, and that she should proceed to a certain port and load a full cargo, it was held, that the readiness to receive a cargo in all May, was a condition precedent to the plaintiff's right to recover for not loading a full cargo; and that a plea stating that the ship was not ready to receive a cargo in all May was good on general demurrer. Oliver v. Fielden, 4 Exch. 135. See also, cases ante, p. 130, note 2. In Ollive v. Booker, 1

At common law, this doctrine of dependent and independent covenants sometimes works great hardship, if not injustice. But, as applied to contracts relating to shipping, it is seldom laid down without a distinct and adequate reference to the intention of the parties, and the actual justice of the case. Indeed, it may almost be said, that there is a presumption of law, for there is certainly a strong disposition of the courts, against such a construction of a covenant or promise as would make it a condition precedent. For it is obvious that the construction which disconnects the promises, and obliges each party to satisfy the other for so much of his promise as he has kept, saving, however, his right to indemnity for any promises which are broken, would, in the vast majority of cases, do justice, and complete justice, to both parties.

Whenever the courts are called on to construe a mercantile

instrument, very great regard is always paid to mercantile usage. But it must always be understood, that, however powerful and important this may be in the interpretation of contracts, it is never suffered to control the express declarations of the parties. The whole influence of usage in the interpretation of contracts, is founded on the reasonable presumption that wherever men act in reference to a subject, in regard to which a distinct and established usage exists, so well known that they could not have been in ignorance of it, they may very fairly be presumed to have made their bargain with reference to that usage; or, in other words, to have made that usage a part of their bargain. But there is obviously no room for this presumption when the parties expressly declare that they had no reference to this usage; or when they make express provision for themselves,

Exch. 416, a statement that a vessel was at sea, having sailed three weeks previous or thereabouts, was held to be a condition precedent. But in Elliot v. Von Glehn, 13 Q. B. 632, where the charter-party contained a representation that the vessel was then at Wyburgh, and it turned out that she had just sailed on her voyage from Wyburgh to Hull, it was held, that this was a mere representation and not a warranty. The defendant in this case had made some use of the vessel, by loading part of the cargo, and Erle, J., puts his decision partly on that ground. In another case, where it was covenanted that the ship should sail on or before February 12th, but the charter-party was not to take effect till the fifteenth of March, the time of sailing was held not to be a condition precedent. Hall v. Cazenove, 4 East, 477.

1 See cases supra.

incompatible with this usage. And if their express provisions are one with the usage, then there is no need of calling on that, either to interpret or enforce the written agreement.1

SECTION VII.

OF THE DISSOLUTION OF A CHARTER-PARTY, OR OF ITS OBLIGATIONS.

. All contracts may be dissolved by the parties who make them, if they agree in doing so.2 But they must agree in this; for as soon as the contract is effectually and legally made, both parties are bound by it; and neither of them can, without the consent of the other, suspend or annul it, simply by giving notice of his intention to do so before the other party has done any thing whatever under the contract.3

The contract, however, may be dissolved, or its obligations annulled for the parties, against their will, and by causes extrinsic to them. Thus it is an universal rule, that if a contract, which is legal when made, becomes illegal before it is executed, it becomes thereby as wholly void as if it were illegal at the outset.

1 See 2 Parsons on Contracts, 48-59; Phillipps v. Briard, 1 H. & N. 21, 37 Eng. L. & Eq. 480; and ante, p. 156. But usage is only admitted in the case of contracts, and is, therefore, not admissible in cases of general average, for the right to contribution does not arise from contract, but depends upon a principle of natural justice, that they who have received a common benefit from a sacrifice voluntarily made by one engaged in a common adventure should unite to make good the loss which that sacrifice occasioned. Per Curtis, J., Sturgis v. Cary, 2 Curtis, C. C. 382.

2 Thus Lord Denman, C. J., in Goss v. Nugent, 5 B. & Ad. 58, said: "After the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract; which is to be proved, partly by the written agreement, and partly by the subsequent verbal terms ingrafted upon what will be thus left of the written agreement." See also, King v. Gillett, 7 M. & W. 55; Cummings v. Arnold, 3 Met. 486; Buel v. Miller, 4 N. H. 196; Howard v. Macondray, Sup. Jud. Ct., Mass., Nov. T. 1856. But if the contract be under seal, it requires by the rules of the common law an instrument of as high a nature to terminate it.

3 See Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210, and cases cited ante, p. 159, note 2.