Page:Federal Reporter, 1st Series, Volume 1.djvu/190

182 FEDBEAIi REPORTER �from the oharlerers, (of which written notice "was given to them,) but that the charterers had, without cause, repudiated the charter and refused to load said vessel ; that said steamer, as soon as possible after said refusai, was re-chartered at the risk of said charterers, at the best rate that could be had, and that finding that a better charter could be obtained in New York than elsewhere, she took a charter from that port at a loss in freight of $1,912.58; and that she lost by the in- creased expenses and loss of time, and expanses at New York, $1,000 additional, so that the whole loss of the owuers was upwards of §3,000. �Obviously the solution of this controversy, involving so con- siderable a loss to both parties, depends upon the interpreta- tion of the words "about to sail from Benizaf with cargo for Philadelphia." �It is claimed that in interpreting the meaning of these words the court is to give weight to the facts stated by the charterers in the negotiations preceding the signing of the charter party, and particularly to the fact then made known by Schumaker & Co. to the agent of the owners, that unless the steamer arrived in time for the August shipment the ob- ject they had in chartering the vessel would be entirely frus- trated; that time was to them of the very essence of the whole contract, as they understood it, and that this they fully explained to the agent of the owners ; and as, by reason of the non-arrival of the steamer during August, their object was frustrated, the court should put upon the words "about to sail" a stricter interpretation than in a case where, notwith- standing the non-arrival of a vessel within the expected time, the purposes of the charterer might still be practicable. �Thjs doctrine is fully considered by the supreme court of the- United States in the case of Loher v. Bang-j, 2 Wall. 728-736, and the conclusion announced by the majorfty of the court is that the frustration of the purposes of the charterers cannot aliect the construction of the contract, but that the contract is to be construed with reference to the intention of the par- ties at the time it is made, without reference to subsequent events, the ijitention of the parties being derived from the ��� �