McNear v. Leblond

Citations

• 123 F. 384
• 61 C.C.A. 564
• 1903 U.S. App. LEXIS 4004

Syllabus

<p>1 Shipping—Construction of Charter—Delay for Repairs.</p> <p>A charter party required, the master on tender of the vessel to furnisli a certificate that she was properly stowed and dunnaged, and of her good general condition, from charterer’s competent surveyor, and provided that in case of dissatisfaction with such certificate by either party the matter should be submitted to arbitration. It further provided that, “should the vessel fail to pass satisfactory survey, or, in case of arbitration, should the decision he against the vessel, or should she be detained more than 10 days for repairs, this charter to be void at charterer’s option, such option to be declared at the expiry of said 10 days.” Held, that all such conditions authorizing the avoidance of the charter were predicated upon the presumption of previous tender of the vessel to the charterer, and that he could not refuse to accept her when tendered within the time limited, by the charter because she had previously taken more than 10 days in making repairs.</p> <p>2. Same—Right to Cancel Charter—Estoppel.</p> <p>Under a charter provision giving the charterer the option to cancel if the vessel should be detained for more than 10 days for repairs, “such option to be declared at the expiry of said 10 days,” if he fails to make such declaration 10 days after the repairs are commenced, but permits them to proceed without objection, he is estopped to make it when the vessel is subsequently tendered after their completion.</p> <p>8. Same—Breach oe Charter—Measure op Damages.</p> <p>Where, on the refusal of a charterer, without legal cause, to accept the vessel, she was at once advertised for charter and rechartered to the same person, for the same voyage, at a lower rate, which voyage she made, the measure of damages for breach of the first charter is the difference between the freight she would have received under such charter and the amount actually earned under the second up to the time when the voyage unde