EEARNED HAND, District Judge
(after stating the facts as above). [1, 2] The contract between the parties fixed no time for delivery at all; only the date of sailing, and that somewhat indefinitely. There was therefore no express obligation upon the libelant to deliver at any given time. Now such a contract for its execution necessarily presupposed, some further action by the parties, and they acted in accordance with that assumption. In the permit the respondent fixed the sailing day as November 1st, and the time of delivery as October 29th, 30th and 31st. This they no doubt had the right to do by implication from the substance of the contract. They had the implied right to require delivery reasonably in advance of the day of sailing, so that they might stow the cargo economically and speedily. The libelants recognized this right and endeavored1 to adapt themselves to it. There being no date of delivery fixed in the contract, the respondents’ right to fix it, however, arose only from their reasonable necessities, which means that they could not unconditionally fix it at all, but only in relation to the date of sailing.
[3] When, therefore, they did fix it upon the assumption that the sailing was to be on November 1st, they got the right to shut out the cargo only in case the ship sailed on November 1st; but they may not make their own mistake the basis of an absolute undertaking by the libelants, when no such undertaking was in the contract. It was the respondents, not the libelants, who were at fault, for they agreed to lift the cargo in October. The libelants did not choose to repudiate because of that default, and they were not obliged to do so. As they did not, the contract remained, and the respondents retained their right to fix the time of delivery with reference to the time of actual sailing, but nothing more. Since the libelants tendered the cargo in ample season, [939]*939and, indeed, since some of it was accepted, the excuse of delay in delivery is certainly untenable.
[4] There remains, therefore, only the question whether the respondents' refusal was exercised “directly or indirectly from war or hostilities." It is no doubt true that the respondents might have shut out the cargo under that clause, if their engagements had committed them to more than their remaining fleet in fact could lift. The seizure by Gen. Pershing of the Frederick Buckenbach and the shelling of the J. B. Buckenbach were certainly within their rights so reserved. The difficulty with their exercise of that right is that, with these facts before them, they issued the permit which committed the Pleiades to the libelants' cargo. They had no right thereafter to resort to the excuse which they had thus waived, and to shut out what they had accepted.
[5] The so-called requisition of the Harry Buckenbach and the Pleiades is not to the point; it was no more than the declaration of the general powers of the Shipping Board to seize ships when they needed them, and was accompanied with an express reservation to the owners of the use of the ships until some specific demand was made. The loss of the D. M. Buckenbach did not play any part in their determination, as their letter of November 9th shows. This excuse failed, therefore, because it was waived by the issuance of the permit.
As both defenses are invalid, the libelants are entitled to the usual interlocutory decree.
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