It is quite apparent, on looking into the case, that this controversy has grown out of a misapprehension, on the part of the owners, of the import and effect of the charter-party, and that, had it not been for this, no difficulty would have existed in adjusting amicably all matters between the parties, connected with the charter of the vessel. The owners have assumed, from a letter of instructions to the master of the vessel by the charterers, in which a premium is offered if he should arrive in the port of New York with the first fruit, that the charter was a fruit-charter, and that the cargo of salt was substituted by an agreement with the agent of the charterers at Malaga, there being no fruit there with which to load the vessel. The master testified to this arrangement, and that it was agreed that the cargo of salt should be discharged at the port of delivery within the same time within which a cargo of fruit could be, namely, some three days. Hence, on the arrival of the vessel here, the owners claimed that the cargo should be discharged within that time. This was refused by the charterers, they claiming that the charter-party provided for the shipment of any lawful goods, and that they were entitled to the usual and customary time for unloading a cargo of salt, which was fifteen days for a cargo of the present bulk, Sundays and rainy days excepted. The owners proposed a compromise of ten days, which was refused. This dispute occasioned some delay in the vessel’s reaching the dock for the discharge of her cargo. She reached the dock, however, in a few days after her arrival in port, and commenced the discharge, *68the purchaser receiving the salt in lighters and carts, and continued discharging until, as claimed, more than the ten days had expired, when a bill for demurrage of the vessel was presented to the consignees, and payment demanded, which was refused; and thereupon the owners libelled the remaining portion of the cargo for freight and demurrage.
Now, I consider it quite clear that the charterers were not restricted to any kind of cargo; and, also, that the agent at Malaga had no power to change the terms and conditions of the charter-party; and, further, that, according to its terms, the ship was bound to bring back a cargo from either Gibraltar or Malaga, if tendered by the charterers, or their agent; and, hence, that the claim to have the cargo of salt discharged within the time customary for the discharge of a cargo of fruit, was not well founded. According to the charter-party, the homo cargo was to be delivered in no other way than “dispatch to be used;” and the better opinion seems to be, upon the proofs, that these terms refer to custom house time, which is fifteen days, Sundays and rainy days excepted. When, therefore, this suit was commenced, this time not having expired, no right of action existed for the balance of the freight, that not being due, by the terms of the charter-party, till the discharge of the cargo at the home port; and there was no ground for a claim for demurrage. I agree that the master had a lien upon the cargo for the . balance of the freight, and might have retained enough of it to satisfy the payment; but no right of action to recover it accrued till the owner had fulfilled his part of the contract, namely, the delivery of the goods. Abb. Shipp. (Perkins’ 7th Am. Ed.) marg. p. 377, and note 2; Arthur v. The Cassius [Case No. 564].
The decree below must be affirmed.