The ship Spartan was chartered to the defendant, a corporation, on January 16, 1902, to carry a cargo of grain, lumber, or other merchandise from San Francisco, the vessel’s home port, to Sydney or Melbourne, as the defendant should elect. The charter provided for 14 lay days, to commence 24 hours after the vessel was at the dock ready to receive the cargo, and also contained the following provision:

On January 29, 1902, the libelants notified the defendant that the Spartan would be ready to receive cargo at 9 o’clock in the forenoon of the next day. In reply, the defendant on the same day addressed to the libelants the following letter:

The Spartan’s managing owner replied to this letter on January 30th, saying:

On the same day the libelants received from a ship broker the following written offer, which the testimony shows was sent at the suggestion of the defendant and on its behalf:

The Spartan’s managing owner, acting for the libelants, replied to this offer on February 1st, saying:

Upon the trial of the case the court found that the defendant, in refusing to load the Spartan, was guilty of a breach of the charter party, and the case was referred to a United States commissioner to ascertain and report the amount of damages sustained by libelants. 125 Fed. 646 . Upon the hearing before the commissioner the parties entered into the following stipulation:

1. In the former opinion in this case, 125 Fed. 646 , it was said, quoting the language used in Leblond v. McNear (D. C.) 104 Fed. 826 :

This rule, in so far as it provides for the mitigation of damages in an action of this character, is based upon the principle that, if a party entitled to the benefit of a contract can with reasonable exertions protect himself from loss arising from a breach, it is his legal duty to do so. Heckscher v. McCrea, 24 Wend. 304 . But in the application of this rule the law imposes upon a defendant guilty of a breach of contract the burden of proving in mitigation of damages that the other party could with reasonable diligence have reduced or prevented the damage occasioned by such breach. Costigan v. Mohawk & H. R. R. Co., 2 Denio, 609 , 43 Am. Dec. 758 ; Hamilton v. McPherson, 28 N. Y. 72 , 84 Am. Dec. 330 ; Utter v. Chapman, 43 Cal. 279 . There is no evidence that the libelants refused any offer of employment other than the one above referred to, or that, having refused it, they could at any time with reasonable diligence have obtained other employment for the Spartan during all or any portion of the time which would have been required for the performance of the charter, and so it is only necessary to consider whether it was the duty of the libelants to have accepted that offer to have thus protected themselves against some portion of the loss growing out of the subsequent action of the defendant in not loading the vessel under the charter.

It will be seen from the foregoing statement of facts that when the defendant gave notice of its refusal to abide by the charter party the lay days had not expired, and therefore the time for the performance of the contract upon the part qf the defendant had not yet arrived. The *871 question is thus sharply presented whether the mere notice by the defendant at that time of its intention not to perform the contract imposed upon the libelants the duty of accepting other employment for their vessel immediately, or did they have the right to wait until the expiration of the lay days before seeking or accepting other employment for the vessel? Upon both principle and authority it would seem that the libelants had the right to refuse other employment for the Spartan until after the expiration of her lay days under the charter. There was no actual breach of the charter by the defendant until after the expiration of the lay days therein provided for, and until such breach there was no obligation upon the part of the libelants to seek other employment, unless they elected to treat the repudiation of the charter by the defendant as a discharge of their own obligations thereunder. In Kadish v. Young, 108 Ill. 170 , 43 Am. Rep. 548 , an action to recover damages for breach of contract for the future delivery of barley, it was held that the buyer could not, by giving notice before the time of delivery that he would not accept such delivery, impose upon the seller the obligation to resell the barley before the time mentioned in. the contract for delivery, or take other steps to protect himself from damage. In Hochster v. De La Tour, 2 Ellis & Black. (75 E. C. L.) 678, Lord Campbell, C. J., in delivering the opinion of the court, said:

Avery v. Bowden, 5 Ellis & Black. (85 E. C. L.) 714, is also in point. The facts of that case are thus stated in the headnotes:

In the opinion of the court in that case, delivered by Lord Campbell, C. J., it was said:

In Howard v. Daly, 61 N. Y. 362 , 19 Am. Rep. 285 , it was held that when a party to a contract, before the time when by its terms he is required to perform, renounces the obligation of his contract, “the opposite party has an option either to treat the contract as subsisting, and, when the day arrives for commencing to serve, to offer to perform, or to regard it as immediately broken and to sue before the day arrives. This theory of an option is not objectionable, since, before the day for performance arrives, a party would not be bound to accept other employment, if offered, as he would be if the contract were broken off after that time” In support of this conclusion, the court quotes with approval the following language of Cockburn, C. J., in Frost v. Knight, L. R. 7 Exch. Ill, 1 Eng. Rep. 218, in discussing the effect of a notice of intention not to perform a contract, when given before the time for performance has arrived:

It is undisputed in this case that, when notified by the defendant of its intention not to comply with the terms of the charter party, the libelants refused to accept such notice as a termination of the contract, and at once replied that they would hold themselves bound by all of its obligations and insist upon its full performance by the defendant. In taking this position they only exercised their legal right, and, having thus elected “to keep the contract alive” for the benefit of the defendant as well as for themselves, they were not, under the rule announced in the foregoing cases, required to accept the offer to dispatch the Spartan to Puget Sound for a cargo at the time when that offer was made. They had the legal right to wait until the time for the performance of the contract had arrived before accepting other employment for the vessel, and, as there is no evidence that they refused any offer of cargo after the expiration of the lay days, or that with reasonable diligence they could after that time have obtained other employment for the Spartan, the libelants are entitled to recover as damages the net amount which would have been earned by the vessel under the charter, if the same had been fully performed by her.

It is claimed by the libelants that, under the rule requiring them to use reasonable efforts to mitigate their damages, they were not bound to accept or seek for a cargo to be loaded at a port so far distant from that of San Francisco as is Puget Sound, and that upon this ground also-they had the legal right to reject the offer to proceed to Puget Sound for a cargo. The conclusion that the libelants were under no legal obligation to accept this offer, because it was made before the expiration of the lay days, renders it unnecessary to consider this contention.

*873 Let a decree be entered in favor of the libelants for the sum of $3,662.91, with interest from the date of the filing of the libel, and for costs.