(dissenting). The controversy as to who was right or wrong in giving the conflicting orders to the master of the steamer “Heina” while she was in River Plate, and 'the steamer “Mowinckel” at Progresso, Mexico, ought not to enter into our considerations now, for the parties made concessions and compromised their differences on June 5, 1917, and reduced their agreement to writing. The writing itself permitted neither party to keep anything in reserve for future action. It is evident that the parties intended to settle all matters concerning which they differed and start anew with the charter agreement. It provided for releases from “any claim with respect to the subject-matter of this agreement on account of any matter prior to the date of this agreement. The Company is to malee no claims or deductions whatever for stoppage during the negotiations concluded by this agreement.”

Any reasonable interpretation of the intention of the parties as gained from this agreement, would require sufficient time to give notice to the ship to proceed or for the owners to recall their stoppage orders. The parties could not have intended anything else. The owners were released from all the'consequences of the stoppage order. Now to hold that the owners may not collect hire during the period between June 5th, when the agreement was signed, and when the orders were actually received by the masters of the vessels to proceed, would seem to impose an obligation on the owners which was never contemplated by the parties on June 5th.

For this reason, I dissent.

(after stating the facts as above). No ambiguity or muddiness in expression can, in our judgment, be found in the written settlement contract. It declares on its face the nature of the pre-existing disputes and differences between owner and charterer, and compromises those matters in plain language. To us, and -we think to any plain man, that language means that from the instant of delivery of contract of compromise the ships were to resume work for the charterer under the old charters as modified. The terms of work were somewhat changed, much to the advantage of owner, but the pre-existing obligation to work was recognized. The compromise contract provided no period of delay, and in its terms took no account of difficulties in cable or other communication — a matter as well known to one party as to the other. From consideration of this agreement we see no reason why any unanticipated hardship or deprivation should not lie where it fell.

But if one inquires why the ships did not go to work again at once, this conclusion is undisturbed, for another question is crucial: Why did the ships ever stop working? Why did they lie idle in neutral ports? Plainly because of owner’s orders, charterers vigorously protesting against what they declared to be gross breaches of charter contract. The object of compromise, the charterer’s motive for concessions made, was to obtain withdrawal of owner’s stop orders, and in. effect owner agreed on ample consideration, to withdraw the same. Nobody but owner could withdraw them, and he agreed so to do because he was released (inter alia) from the consequences of failure to “prosecute the voyage with due diligence * * *. prior to-the date of this agreement.” If it was ever intended to release owner from the consequences of such failure after date of agreement, it should have been stated; the expression of one proposition furnishes strong argument for exclusion of all other and inconsistent ones.

Again, since no one but owner could undo what owner had done, the duty of giving orders was on owner, and it appears in evidence that owner assumed such duty, and prepared cables even before compromise signed. As a general principle, if one assumes a duty, he assumes also the risk of failure, even undeserved and accidental failure in performance of same. We have no doubt the risk of cable delay was on owner.

Finally if the compromise agreement be regarded as a new and: superseding contract, plainly the ships were not entitled to charter hire, until they reported for duty; and this they did not do until they actually received owner’s orders.

*812We noted in argument some objections to the rate at which the Company withheld the hire sued for. The basis for proper computation is not before us; our holding is only that the Company was entitled to withhold from owner what it would have paid owner had- the ships reported for duty on June 5th. Whether by reason of the premises the Company suffered any additional recoverable damages we do not know, and discover no such issue in the pleadings.

Decree reversed, with costs, and cause remanded, for entry of new decree not inconsistent with this opinion.