delivered the opinion of this court.
This is an action by the owners, against the charterers, of a bark, to recover damages for the non-performance of a charter-party, entered into on the ] 9th of June 1852, while the vessel was on her way from Frankfort to San Francisco. It stipulates that the “bark shall sail immediately, as soon as she has discharged her present outward cargo at San Francisco, to one of the guano islands, on the west coast of South America, between latitude one and fifteen south, as he (the captain) shall be directed by the charterer or his agent, at San Francisco, for orders to be furnished him there, at said island, by charterer or his agent, to take thence, or thence and from an adjacent island, a cargo of guano, as may be directed.” It also provides for twenty-five running days, exclusive of Sundays, to receive the cargo,- and for demurrage, at the rate of *50thirty dollars per day, beyond the lay days. The freight agreed upon was fourteen dollars per ton, of 2240 pounds.
The vessel reached San Francisco on the 7th of September, and was ready to sail again on the 14th of that month, but the captain, not finding orders there from the charterers, as contemplated by (he contract, remained until the 26th of October, when he sailed for the Lobos Islands, according to their instructions, which he had received on the 7th. Expenses were incurred at San Francisco, which, the plaintiffs say, resulted from the failure of the defendants to furnish orders when the vessel was ready to sail, on the 14th of September; these, as well as for the delay, they claim as part of their damages.
When the captain arrived at the Lobos Islands, on the 13th of December, he found no orders there, nor any person to represent the charterers, and being notified by an officer of the Peruvian Government, that he could not anchor, nor go on shore, he sailed the same day for Callao and Lima, in search of freight, where, on the 13th of December, he chartered the vessel to Barreda & Bro., for a cargo of guano, at the Chincha islands. The vessel proceeded on the voyage, took in cargo, returned to Callao for clearance, that being the port of the Chinchas, and sailed thence for Hampton Roads. During the passages from the Lobos Islands to Callao, thence to the Chinchas, and again to Callao, and while remaining at the latter port, other expenditures were made by the captain, in respect to which, also, and for the vessel’s delay, the plaintiffs seek to recover damages as having resulted from the defendants’ failure to supply orders at the Lobos Islands.
In the meantime, on the 20th of October, the agents of the owners, at New York, had made a charter of the vessel to Barreda & Bro., for a cargo of guano, from the Chincha Islands, in which, as in that of June, she was said to be on her way to San Francisco. This charter was delivered to the captain on "the day he had completed his loading.at the Chinchas, under the charter of December, and on arrival at Baltimore, he settled the freight with Barreda & Bro., at fifteen dollars per ton, of 2000 lbs., according to the October charter, rHthóüt receiving anything additional, as provided by the Lima *51charter of December, by which he was to have received twenty dollars per ton, of 2000 lbs.; and which he then can-celled .
The canse was tried upon an agreement as to the pleadings, and the verdict and judgment were for the owners. The plaintiffs offered eight prayers, all of which were granted except the sixth; and the defendants offered seven, all of which were refused, except the second and third. By their second they were allowed a deduction for the time spent at. San Francisco, while the captain was procuring a crew and waiting to hear from the owners. By granting the defendants’ third prayer, the court held that they were entitled to an allowance for the freight agreed to be paid by the December charier, having denied, by rejecting the plaintiffs’ sixth, that the freighters should be held to the charter of October, in ascertaining the freight earned by the new voyage. The defendants appealed from the rulings against them, but the plaintiffs’ exceptions were not brought before us by an appeal on their part.
Before considering the questions presented by the testimony offered at the trial, wo must dispose of .a point made on the part of the charterers, which, if ruled with them, would determine the controversy. It is contended, that this voyage was commenced after Mr. Webster, as Secretary of State, had written to James W. Jewett, stating that citizens of the United States might visit the Lobos Islands for the purpose of obtaining guano, and that this government would protect them in making such efforts; and that the Department having after-wards taken a different view of the subject, as indicated by its subsequent correspondence, and warned the merchant marine of the country, that all such enterprises would be undertaken at the peril of the parties engaged, this contract became illegal, and no recovery can be had upon it.
We are of opinion, that this view ought not to have such influence upon the case, even conceding that the correspondence, which is not in the record, should be judicially noticed by the court. There is nothing in the charter to show that the voyage was projected in consequence of the information received at the State Department. The Lobos Islands are *52not mentioned, nor is there anything to indicate that it was made with reference to them alone. The guano might have been obtained at any of the islands on the west coast, between one and fifteen degrees south. If, as was said, we must assume that the Lobos Islands are within these degrees, we cannot ignore the existence of other guano islands, in latitudes within the terms of the contract, with reference to which, it might be argued, that the parties had undertaken the venture.
But, aside from this consideration, we are to deal with the question according to the actual condition of the Lobos Islands, without regai’d to what the parties may have supposed it to be. If the defendants were misled bjr the officers of this government, they cannot, on that ground, claim immunity from the obligations they have incurred to the plaintiffs. It was competent for them to have made their liability depend on the political status of the Lobos Islands, or on the captain’s being able to load his vessel there. As the instrument contains no saving clause to meet", the contingency that did happen, the case must be governed by the general rules applicable to such contracts, which are thus stated by Lord Eilenborough, in Barker vs. Hodgson, 3 Maule & Sel., 267, where the charterer pleaded that he could not load the ship at the port, because there prevailed a pestilent disease, in consequence of which all intercourse was interdicted by the authorities of the place: “Perhaps it is too much to say, that the freighter was compelled to load his cargo, but if he was unable to do the thing, is he not answerable for it upon his covenant? Is not the freighter the adventurer who chalks out the voyage, and is to furnish, at all events, the subject matter of which freight is to accrue? The question here is, on which side the bur-then is to fall. If indeed the performance of this covenant had been rendered unlawful, by the government of this country, the contract would have been dissolved on both sides, and this defendant, inasmuch as he has thus been compelled to abandon his contract, would have been excused for the non-performance of it, and not liable to damages. But if, in consequence of events which happen at a foreign port, the freighter is prevented from furnishing a loading there, which he has *53contracted to furnish, the contract is neither dissolved, nor is he excused for not performing it, but must answer in damages.” The same principle had been applied in several cases of similar character, and it may now be considered the established doctrine, where the contract does not provide against such a contingency as the prohibition, by a foreign government, to export the stipulated cargo. Bright vs. Page, 3 B. & P., 295, note. Atkinson vs. Ritchie, 10 East, 201. Abbott, 310, 597, (Edition of 1846.) Smith’s Merc. Law, 315. Parson’s Merc. Law, 365. Randall vs. Lynch, 2 Camp., 356. 12 East, 197. 3 'Patent., 387. 16 East, 201. Flanders on Mar. Law, sec. 233.
It must be borne in mind, that the suit is, not to recover freight actually earned, according to the charter-party, but damages for violation of the contract, on the part of the freighters, in not supplying a cargo. In such cases the law leaves the amount to be ascertained by a jury, according to the liberal principles of interpretation usually applied to commercial contracts, upon consideration of all the circumstances, and of the real injury sustained by the owners, which cannot be settled properly by positive rules; and as this claim arose from the default of the charterers, in the first instance, at San Francisco, and afterwards at the Lobos Islands, it is but just and reasonable, that they should make good any loss that may be fairly attributed to such failure. Abbott, ch. 8. 3 Kent, 218, 219. Giles vs. Brig Cynthia, 1 Peter’s Adm. Rep., 207.
In passing upon the first prayer of the plaintiffs, the court was certainly right in saying that the captain, in the situation in which he was placed at the Lobos Islands, was at liberty to act upon his best judgment for the interest of all concerned, and obtain a cargo at another place, as he did. It would have been against the interest of owners and charterers, and inconsistent with his duty to both, to have remained there longer than was necessary to have ascertained whether the guano could be procured. On being ordered off, he had no alternative but to steer for another port. Bright vs. Page, 3 Bos. & Pull., 295. The law does not allow the captain to come home, without endeavors to freight his vessel, immediately *54on ascertaining that the cargo cannot be furnished, according to the charter; nor to remain the whole time appointed, and charge the merchant with demurrage. Acting for the interest of all concerned, under the circumstances by which he ma]^ ¿find himself surrounded, he must use efforts to make the vessel earn as much as he can, so as to diminish the loss to the party who may ultimately suffer by the failure to obtain the stipulated cargo. Abbott, 597, Smith’s Merc. Law, 284.
We are also of opinion, that the plaintiffs were entitled to recover for the delay of the bark at San Francisco, so far as .that delay was caused by the failure of the defendants to furnish orders there, for the prosecution of the voyage; and for the loss of time between the arrival at the Lobos Islands and the final departure from Callao, if the captain acted in good faith, and with due diligence and care; for if the new voyage was occasioned by the default of the defendants, and took more time, the owners should be compensated for such additional use of their vessel, which would be for the whole time between the arrival at the Lobos Islands and the final departure from Callao, after deducting the lay days, and so much as was consumed in bringing the vessel nearer home, if there had been proof that such was the course of the new voyage.
In estimating the damage for delay and loss of time, the sum agreed upon as demurrage was properly left to the jury, as jorima facie evidence. Some criterion must be observed, and considering the difficulty of procuring witnesses, in such cases courts should adopt that which appears to be the most convenient rule. This principle was adopted by Ld. Ellenborough, in the case of Moorsom vs. Bell, 2 Camp., 616, as a rule both of convenience and justice; open to the ship-owner to show :that more damage was sustained, and to the freighter to show that there was less. Abbott, Part 4, ch. 3, sec. 3, 306.
But here there was an allowance by the contract of twenty-five running days, exclusive of Sundays, at the place of loading. The prayer allowed only twenty-five lay days. Considering the fourth and fifteenth articles of the charter-party together, we think the lay days excluded Sundays, and that the prayer was erroneous, in restricting the jury to an allow*55anee of twenty-five. Abbott, Part IV, ch. III, sec. 2. 10 Mees, & Wels., 331. Smith, 283. The owners agreed to allow certain days for loading, if the voyage had been according to the contract. As they are charging the defendants for the extra time in obtaining another cargo, it is not unreasonable that the same allowance be made. It has been decided, that a substitution, by mutual consent, of a new port for that named in the charter-party, without mention of lay days, will not affect the lay days stipulated for in the original contract. Smith’s Merc. Law, 284. Jackson vs. Galloway, 5 Bing. N. C., 71. (35 Eng. C. L. Rep., 34.) The same principle should apply here, especially as the cargo actually obtained was of the same article as that with which the defendants had agreed to load the vessel. The fairness of the allowance is shown by the fact, that the charter-party made by the captain at the clearance port of these islands allows twenty-five working days, those of bad weather and hindrances excepted. In this respect the prayer was erroneous.
We need not inquire, nor do we intimate, whether this prayer was too broad in its scope, in not allowing the defendants a deduction for the vessel’s delay at San Francisco, while the captain was waiting to procure a crew, and for advices from his owners, because, if the defendants’ pretensions be well founded, they had the benefit of that view of the case, by the granting of their second prayer,- and this instruction would not, on this ground, be reversed on their appeal, whatever might be the result, if the points were before us on the exceptions of the plaintiffs.
2. There was no error in granting the second prayer. The defendants having failed to send orders in time to San Francisco, and the captain being ready to sail before they arrived, the means he employed to obtain information were proper, and the expense should be paid by the party in default. It was not covered by the demurrage allowed in the first prayer.
3. The demurrage included the hire and maintenance of the crew. If the captain, in the exercise of his discretion, discharged his crew, we do not think the owners can claim, in addition to the demurrage, the expense or bonus paid as the *56condition of releasing the captain from his contract with the seamen. If by this prayer the plaintiffs meant to claim this sum in addition to the demurrage, it was erroneous in point of law; and if such was not the design, the proposition should have been stated in terms less liable to mislead the jury.
4, 5. In sailing from San Francisco, the captain acted in execution of the defendants’ instructions. If, on their failure to furnish orders at the Lobos Islands, it became necessary to sail for another port, for which the crew had not been shipped, and they insisted on being discharged, the captain had no alternative but to engage another crew. The additional expense is not covered by demurrage, and must fall on the charterers. The same principle must apply to the port charges at Callao, if incurred in the prosecution of the new voyage, undertaken, in part, for their benefit, and by reason of their default. The 4th and 5th prayers, therefore, were properly granted.
7, 8. The seventh and eighth prayers state the law correctly, if they are understood as not allowing the plaintiffs the expenses therein mentioned, in addition to the demurrage, which is the interpretation of the plaintiffs’ counsel, and which we consider the correct view. Thus construed, they merely charge the defendants with items of actual loss or damage, according to the principle of Moorsom vs. Bell. But if these sums were. claimed in addition to the demurrage, they ought not to be allowed.
We are next to consider those of the defendants’ prayers, which were refused.
The first placed upon the contract a construction at variance with its plain meaning. The lay days were allowed for loading, and not for orders at San Francisco, and were properly deducted by the first prayer, from the whole time. The defendants were not injured by the refusal of this prayer, even if its propositions of law were correct.
The 4th was well refused. It is not pretended, that the December charter discharged that of June; why should that of October have such effect? They were both executed after default by the charterers, when the vessel was liable to be *57chartered. Whatever influence such act of an owner might have on the first charter, before a breach by the merchant, we are very certain that it cannot discharge him from all the consequences of his own violation of contract, previously committed, as proposed by this prayer.
5, 6. These prayers are based on the idea, that if the charter of October, did not, of itself, release the merchants from their liability on the contract of June, yet, in connection with the facts enumerated iu ¡he fifth prayer, it ought to reduce the damages; and, in connection with cértáin other facts stated in the sixth, ought to discharge the defendants altogether. To neither of these proposition's can we assent, because the owners had the right to make another charter to save themselves, and thereby benefit the defendants, and its mere execution cannot have the effect, either of releasing the first charter, or of reducing the amount of the verdict. What was done under that contract between the ownérs and the Messrs. Barreda, may be important in ascertaining the amount of loss to the plaintiffs; but the mere making of the contract can have no effect on their claim.
7. The seventh was not s&stained by aó^ évidéilce, unless the jury might be presumed to have knowledge of these places, and their relative positions, and distances, as well as the customary course of súch voyages. We have said, in discussing the plaintiffs’ first prayer, that the defendants ought not to be charged with the time, if any; consumed in bringing the vessel nearéi home. For so much of the timé she may be considered as having performed only what the owners had contracted' she should do, without, any loss to them by default of the defendants.
This being the appeal of the defendants, we must confine ourselves, for the reversal of the judgment, to théir exceptions. In finally disposing of the case, however, wc may look to the ruling of the Court below, on those tendered by the plaintiffs, though we cannot reyerse the judgment for their benefit, as they have not appealed. Nor, indeed will a judgment be reversed on the appellants’ exceptions, where the court can see that they will not be henefitted by another trial. This we take to' *58be the condition of the present record. We have expressed our dissent from the judgment below, on the first and third prayers of the plaintiffs, which would entitle the defendants to' a deduction from the items therein mentioned, not previously allowed; but my brother judges are of opinion that the court erred in refusing the plaintiffs’ sixth prayer, and in granting the defendants’ third, whereby they had the benefit of the freight stipulated in the December charter. Upon a procedendo they would be allowed a deduction only at the rate of the October charter, (for the court would not send the record back without an expression of their views on this disputed' point,) and, as the difference between them is greater than the amounts gained by the defendants on their appeal, the verdict could not be less, but considerably more than the amount already recovered against them. So far as the difference between the charters is involved in this view of the case, the result is a mere matter of figures on written evidence, and nothing, on that point, will be left for the jury. We may therefore, without assuming any facts which the jury ought to pass upon, decide the question of amounts, and let the judgment stand. Emery & Gault vs. Owings, 6 Gill, 191. Roloson vs. Carson, 8 Md. Rep., 226. Duvall vs. Farmers Bank, 9 G. & J., 31, 51.
(Decided January 28th, 1859.)Judgment affirmed.