The opinion of the court was delivered by: INCH
The libellant, The Confederation of Switzerland, chartered the steamship "Gloria" owned by the respondent, Compania De Vapores Arauco Panamena, S. A. The charter was entered into January 8, 1941, and was to run for a period of six months, the Gloria was accepted as delivered as of the 8th of January 1941, at noon.
Libellant brings this suit to recover damages because of the alleged unlawful withdrawal, by the respondent, of the "Gloria" from said charter party.
There is no dispute about the facts so far as the issue presented is concerned. Either the respondent had or had not a lawful right to withdraw the "Gloria" from the charter party.
The material portion of the charter contract is as follows:
"1. Owners agree to let, and Charterers agree to hire Steamer for a period of about Six calendar months from the time the Steamer is delivered * * *.
"Steamer accepted as delivered on the 8th of January 1941 at noon.
"5. Charterers to pay as hire: $6.00 (Six Dollars) U.S. Currency per ton dead-weight on the guaranteed summer dead-weight of 9650 tons per 30 days, commencing in accordance with Clause 1 until her re-delivery to Owners.
"Payment of hire to be made in cash, in New York without discount, every 30 days, in advance, to Garcia & Diaz, 17 Battery Place, New York, Owners' Agents.
"In default of payment Owners to have the right of withdrawing steamer from the service of Charterers, without noting any protest and without interference of any Court or any other formality whatsoever and without prejudice to any claim Owners may otherwise have on Charterers under this Charter."
Under this contract the "Gloria" had made several trips from New York to Genoa, Italy.
The first payment of charter hire was slightly delayed because of a dispute in respect to furnishing a guarantee. This was satisfactorily adjusted. Thereafter the second payment was due Saturday February 8, and was made on February 7. The third payment was due Saturday March 8, and was made on March 7. The fourth payment was due Tuesday april 8, but no payment or tender of payment was made on or before that date.
The charter expressly required and both parties understood and intended that this fourth payment was required to be paid to the respondent on or before said 8th of April. On Wednesday April 9, libellant tendered a cashier's check of the National City Bank for the amount of the over-due hire. Respondent refused to accept same.
The same day (April 9) respondent sent a wireless to the master of the "Gloria", which was then on the high seas returning to New York, asking whether the "Gloria" was in ballast or not and instructing him not to accept any further ...