Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIR8T DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS KD 1628!w87 """"'"" "-"""^ ^''*iiiiiiMfi»'iii,Sli,.'"*'''^"™e agreeme P 1924 022 494 029 (forn^U Slam S>rl|ool Eibrarg Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022494029 INTERPRETATION MERCANTILE AGREEMENTS. LONDON : P8INTED BY 0. F. BOTOBTH, QBBAT NEW STKEET, FETTBE LANE— B.O. THE INTERPEETATION OF MERCANTILE AGEEEMENTS: A SUMMARY OF THE DECISIONS AS TO THE MEANING OF WORDS AND PROVISIONS IN WEITTEN AGREEMENTS FOR THE SALE OF GOODS, CHARTER-PARTIES, BILLS OF LADING, AND MARINE POLICIES. WITH AH APPENDIX CONTAimNa A LIST OF WOBDS AND EXPRESSIONS USED IN, OR "in connexion with, mercantile agreements, and A LIST OF MERCANTILE USAGES. BY JOHN DENNISTOUN WOOD, BAEEISEEE-AT-LAW, Author of "The laws of the Australasian Colonies as to the Administration and Distribution of the Estate of Deceased Persons." LONDON: STEVENS AND SONS, 119, CHANCERY LANE, 1886 ^//il^ TO Sm WILLIAM FOSTER STiWELL, WHO FOE KEARLY THIRTY YEARS HAS HELD THE OFFICE OF €l§xd ^mtm xrf % ^upmi ^onxt of % ^alm'i sif ^xdaxm, THIS ¥OEK IS DEDICATED BY PEEMISSION. PREFACE. As this work treats — as its title shows — merely of the meaning of Agreements for the Sale of Goods, Charter- Parties, Bills of Lading, and Marine Policies, it follows that the rights of- the parties to such instruments arising out of events occurring subsequently to' the making of the contract, and the remedies for a breach of the contract, do not fall within its scope. Although there are many excellent treatises on agree- ments of the four classes above mentioned, yet there has hitherto been no treatise limited to the subject of the interpretation of such agreements ; and as there are certain common principles, applicable to all of them alike, and as a decision upon the meaning of an instrument of one class may throw light upon the meaning of an instrument of another class, there seems room for such a work as the present; just as, although there are treatises upon parti- cular statutes, a work on the general principles applicable to the interpretation of statutes has been found practically useful. Having thus stated the object of the present work, I will now proceed to explain the principle which has guided me in its composition. I have endeavoured from a decision or a series of decisions to deduce a general rule of law, which I have stated as concisely as I could, taking for a model the language of a well-drawn modern statute. VUl PREFACE. If the rule so stated can be readily understood without any illustration, and is clearly deducible from the authorities cited in the foot-note referred to in the text, I have added nothing to the statement of the rule and the citation of the authorities. Frequently, however, the meaning of the rule would not be readily apprehended unless an example of it were given, and in such cases I have appended one or more examples of the rule. Sometimes the rule stated may not at first sight appear to be deducible from the authorities cited. In such cases the matter which follows the rule may be regarded in the light of a proof. Some- times the matter which follows the rule is not so much an example or proof of the rule as the statement of a con- sequence or result which obviously follows from it. Such a statement is frequently (although not always) introduced by the word " therefore." All examples or proofs of, or statements of consequences obviously following from, the rule are printed in smaller type than the rule itself, and may be passed over by the reader, if he feels satisfied that the rule is borne out by the authorities cited, if he understands it without any example, or if he has confidence in his ability to draw any conclu- sions obviously flowing from the rule. There will be found here and there other matter which also is printed in smaller type than the rule. In some cases it has seemed desirable to state the reasons given by the Courts for the principles which they have embodied in their decisions. These reasons, however, are distinguished from the examples, proofs, and statement of consequences by a difference in the width of the margin. It often happens that one rule or principle of law neces- sarily implies the existence of another rule or principle of law, and yet that the connexion between the two is not obvious in the first instance. Moreover, the statement of the principle which follows from the first principle of PREFACE. IX law may not be readily understood unless an example of it is given by way of illustration. Every rule of law resulting, but not obviously, from a rule already stated, or wHcb requires an example, is stated as a " Corollary." A good deal of matter is printed in italics. It will be found to consist, in a few instances, of criticisms which I have ventured to make upon some decisions which appear not easily reconcilable with other decisions. In other cases it contains observations naturally suggested by a rule, but which are not strictly within the scope of a work on interpretation. If the matter is short it immediately follows the rule, and is not always distinguished by the heading " Note," but if it is of any length I have (in order to preserve the continuity of treatment of a subject) printed it as a " Note " at the end of the chapter in which the rule to which it refers occurs. In one or two instances a " Note," when it runs to a considerable length, is headed "Appendix," and examples of the rules stated in it are given. In interpreting mercantile agreements, it is necessary to consider not only the terms which they expressly contain, but also the terms which, although not expressly con- tained, are supposed, in consequence either of a general rule of law or of the usage of a particular business, to be contained in them. An implied term — whether implied by law or by the usage of a business — will be excluded if it is inconsistent with the express terms of the agreement ; but if it is not so excluded, it is as much a part of the agreement as if it were contained in it in so many words. The chief terms which are implied by law in the case of all agreements are stated in the first chapter: the chief terms which are im- plied in a particular class of mercantile agreements are stated in the part of this work which treats of that class. X • PREFACE. I have given in the Appendix a separate list of some of the terms which are implied by the usage of various busi- nesses. As such usages are constantly changing, as old usages die away and new usages spring up, it would be useless, even if it were possible, to give a complete list of the usages existing at any particular date. My object in giving such a list as I have given is, first, to show what usages have been held to be of such a reasonable nature that on their existence being proved they have been deemed terms of agreements; and in the next place, to offer information to mercantile men which may suggest to them the kind of inquiry which they should make as to the existence of usages affecting their particular class of business, for lawyers know little of. these usages of trade. "Lawyers," as Lord Campbell said,* "desire certainty, and would have a written contract express all its terms, and desire that no parol evidence beyond it should be receivable. But merchants and traders with a multiplicity of transactions pressing on them, and moving in a narrow circle, and meeting each other daily, desire to write little, and leave unwritten what they take for granted in every contract." It must not be supposed because in stating these usages I have employed the present tense that they are all still in existence. Many of them have passed away owing to changes in the manner of carrying on business, but it would have been vain to attempt to distinguish between living and obsolete usages by making a distinction of tenses. I have given in the Appendix at the end of this work an alphabetical list of a considerable number of words and expressions, the meaning of which has been defined by * Humfrey v. Dale, 7 E. & B. at 278. PREFACE. XI judicial decisions or in works of authority. Where these words and expressions are treated of in the body of the work, I have, in almost all cases, confined myself to a reference to the section or sections treating of them; if they are not, I have given definitions of them. The interpretation of those terms which are expressly contained in an agreement may involve questions of law, of grammar, or of usage. Many of the disputes as to the meaning of agreements involve no question either of law or usage, and might as fitly be determined by a tribunal consisting of grammarians or authors as by one consisting of lawyers. It would have been easy to refer to numerous decisions which have involved merely questions of grammar, that is, which have turned entirely upon the language used in some eccentrically worded agreement, but it would have been useless to have done so, as it is extremely improbable that the precise language used in such an agreement will be repeated in any other, and although language somewhat similar might be used, yet, as Sir George Jessel, M. E,., observed, "there is no more vicious line of argument .... than that .... of comparing one contract with another, and saying it differs very little ; you arrive ultimately at identifying wholly different contracts." * A French artist, accused of having insulted Louis Philippe by painting a portrait which bore a resemblance alike to the King and to a pear, drew in Court a series of sketches, the first of which represented unmistakably a pear, and the last of which was a good likeness of the head of the King, while the intermediate sketches passed by scarcely distinguishable gradations from the one extreme * Southwell V. Bowditch, 1 0. P. Div. at 377. See also Aspden v. Seddon, L. E., 10 Ch. App. at 397, note, second column, beginning at " The first case cited." XU PREFACE. to the other ; and he argued, that he had proved that the King's head was like a pear, and therefore that the portrait could not be a caricature. The judges, however, were not convinced by the argument. A great part of the whole work may be considered as furnishing examples of the cases to which the rules laid down in the first chapter apply, but the reader is requested after reading each rule to turn to the sections to which he is referred as furnishing examples of it. I may, perhaps, be censured for not adhering in the parts relating to Charter-parties and Marine Policies to the usual phraseology ; but in a work which aims at laying down rules applicable to all classes of mercantile agree- ments it would lead to confusion if different words were employed, not because the things written of were different, but because judges and text-writers in dealing with one class of agreements have called a thing by a name which in all other agreements has been appropriated to something else. My justification is stated at full length in the Pre- fatory Note to the Fourth Book. In any work on the interpretation of agreements it must frequently be necessary to set out the exact words used by the parties, but I have considered myself at liberty, when professing to quote the exact words of an agreement, to make slight omissions or alterations in the language, in order to secure conciseness or clearness. For instance, if an agreement was really made by agents, but nothing turns on the point that it was not made by the principals, I state it as one made between principals ; and in numerous other instances I relieve the reader from the necessity of mastering immaterial details. It is very much easier for an author to give at some length the substance of the principal decisions on any subject without laying down any general rule, than to PREFACE. Xm state the general rule whicli the author conceives is established by them, referring to the decisions merely as examples or proofs ; but the former mode often imposes upon the reader the task which the author shirks. To state the general principle to be deduced from a series of decisions, instead of the substance of each decision, involves not only great labour, but the danger of stating a rule of law without those qualifications restraining its generality which so often exist ; and, notwithstanding the care and time I have bestowed, I cannot hope that I have always succeeded in avoiding this danger. I must ask for indulgence for such errors as I have fallen into, and shall feel obliged to any members of the profession who will be so kind as to call my attention to them. I should have felt more confident as to the immunity of this work from, at all events, errors of any great magni- tude if the whole of it had had the advantage (which a part of it has had) of being revised, in collaboration with myself, by my friend Mr. William James Smith, an ad- vantage which I lost at a comparatively early period, in consequence of his being appointed a Judge in Cyprus. It is hoped that as the work is divided into Books, Parts, and Chapters, and as the latter are generally very short, the reader will, in most cases, be able, by a reference to the Contents, to find with little difficulty any passage he is in search of. But in addition to the Contents and the Index, he may turn, in case of need, to the Hst of " Words and Expressions," and to the reference figures in the Forms of a Bill of Lading, Charter-party, and Marine Policy, given at pp. xxxvi, xxxvii, and xxxviii. Since the body of this work was printed. Lord Esher, M.E., and Lindley, L. J., have, in Blackburn v. Vigors* * 55 L. J., Q. B. D. (0. A.), 347, at pp. 347, 351, and 358. XIV PREFACE. expressed their approval of the passage from Phillips on Insurance, cited at pp. 200 and 201, which states that it is an implied condition of the contract of insurance that it is- free from misrepresentation or concealment, and condemns the fiction of imputing fraud where none exists. In the same case, it was decided that in the rule of law stated in § 322, pp. 222 and 225, an "agent" of the assured is any agent, and not merely one employed to effect the insurance. J. DENNISTOUN WOOD. 2, Haee Cottet, Temple, August, 1886. CONTENTS. — ♦ — PAOE Preface vii Editions of Works of Eeference xxiv Table of Cases Cited xxv Form of a Bul of Lading (with Eeferences to the Sections of this Work treating of the Decisions as to the meaning of the several Clauses) xxxvi Form of a Chaetee-paety (with similar References) xxxvii Form of a Maeinb Policy (with similar References) xxxviii Eeferences to Sections in which wUl be found Examples of the Rules given in Book I., Chapter I xl Book I. OF WRITTEN MERCANTILE AGREEMENTS GENERALLY. Chap. I. — Of the Rules which govern the Interpretation of Mercantile Agreements in Writing 1 (i) Of the Principle according to which Mercantile Agreements in Writing are to be interpreted 1 (n) Of the Evidence admissible in the Interpretation of Agree- ments in Writing 6 (in) Of the Persons by whom they are to be interpreted 8 Chap. II. — Of Agreements which are not binding because they are not whoUy in Writing, or are not signed ; and of the Admissi- bility of Evidence to show that an Agreement is not binding, or that a Writing which apparently is an Agreement is not an Agreement • • • : 10 XVI CONTENTS. PASB Chap. IH. — Of a Sum named in an Agreement being reeoveraUe as Liquidated Damages, or being held to be merely a Penalty .... 15 Chap. IV. — Of Agreements made by Agents 17 Prefatory Note 17 Div. I. — Of the Eights and Liabilities of Principals 17 II. — Of the Eights and Liabilities of Agents 19 m. — "When a Party may sue or be sued on an Agreement by ■which, primd facie he is not bound 21 Illtjsteations of the Eules contained in Division II 22 Appendix. — Of the Circumstances under ■which a Principal's Eight to sue, or Liability to be sued, upon an Agreement made by his Agent ceases 28 Chap. V. — Of Eepresentations, Warranties, and Conditions 31 Notes 36 Book II. OF WRITTEN AGSEEMENTS FOR THE SALE OF GOODS. PAET I. Op the parties 39 PAET II. Of the goods SOLD 40 Chap. I. — Of the Distinction between an Agreement to seU Uniden- tified Goods and an Agreement to sell Identified (or Specific) Goods. — ^When the property passes under an Agreement of the first Class, and when under an Agreement of the second Class . . 40 Chap. II. — Of the Description of the Goods as to Kind or Quality . , 46 Div. I.^-Eules peculiar to Agreements for the Sale of Goods Not Identified 46 n. — ^Eules peculiar to Agreements for the Sale of Identified (or Specific) Goods 49 m. — ^Eules common to Agreements for the Sale of Identified Goods, and to Agreements for the Sale of Goods Not Identified 53 Appendix. — Discussion of Yeates v. Pirn 55 Chap. HI. — Of the Quality Or Number of the Goods Sold 59 Chap. IV.— Of the Seller's Title to the Goods 63 CONTENTS. XVll PAET III. Of DELTVEEY and ACCEPTANCE ^^6™ Chap. I. — Of Conditional Agreements to Deliver 64 Chap. II. — Of Information to be communicated by the Seller after the Sale and before Delivery 67 Chap. m. — Whether there is any Obligation to deliver or accept more or less than the Quantity sold 68 Appendix. — Of the Effect of the Breach of the Agreement in respect of one Instalment upon the Liability of the Seller to deliver, or of the Buyer to accept, the remain- ing Instalments 69 Phap. IV.— Of the Time of Delivery 71 Chap. V. — Of the Mode and Place of Delivery 74 PAET IV. Or THE PEICE 76 Chap. I. — Of the Amount of the Price 76 Chap. II. — Of the Buyer's Liability to pay the Price 79 Chap. IH. — Of the Time when the Price is to be paid 81 Chap. IV. — Of the Mode in which the Price is to be paid 83 Book III. OF CHARTER-PAKTIES AND BILLS OF LADING. Prefatory Note. — Of the Classes into which Charter-parties are divided, and of the Nature of a Bill of Lading 84 PAET I. Of CHAETEE-PAETIES and BILLS OP LADING generally . . 86 Chap. L— Of the Parties 86 Chap. II.— When the Owner wiU be deemed to have parted with the Possession of the Vessel 87 XVlll CONTENTS. FA.aB Chap. III. — "When Charter-parties and Bills of Lading are to be interpreted according to Foreign Law 89 Chap. IV. — Of Provisions as to the Charterer's Liability ceasing .... 90 Chap. V. — Of Clauses in Charter-parties whereby the Parties bind themselves and the Ship and Freight on the one hand, and the Cargo to be laden on the other, in a Penalty for the true Performance of their respective Covenants 92 Chap. VI. — Of the Clause as to the accomplishment of one of several Bills of Lading 93 PAET II. , Of EEPEESENTATIONS, CONDITIONS, and WAEEANTIES, Express and Implied, in Ohaiiteb,-pae.ties and Bills of Lading, and op teems which will not lie implied 94 Chap. I. — Of Eepresentations 94 Chap. II.— Of Conditions 96 Class I. Express Conditions 96 II. Implied Conditions 99 Chap, in.— Of Warranties 102 Class I. Of Express Warranties 102 II. Of Implied Warranties 102 Chap. IV. — Of Terms which will not be Implied 104 PAET III. Op PEO visions in Chaetee-paeties and Bills of Lading as to Loading and Unloading oe Delivery of Caego 107 Drv. I. Of the Cargo 107 Chap. I. — Of Provisions as to Loading a fuU and complete Cargo . . 107 Chap. II. — Of Statements in Bills of Lading as to the Condition, Weight, or Contents of the Goods shipped Ill Chap. HI. — Of Charter-parties under which the Shipowner is bound to provide the Cargo 115 CONTENTS. XIX PAGE DiT. II. — Of Provisions as to the manner and place of Loading and Unloading, and the Time at and within which the Load- ing and Unloading are to begin and be completed 116 Chap. I. — Of Provisions as to the Manner in •which the Cargo is to be Loaded 116 Chap. II. — Of Provisions as to the Manner in which the Cargo is to be Unloaded or Delivered 118 Chap. III. — Of Provisions as to the Place of Loading and Unload- ing, and of naming a Safe Port or a Eeady Berth . . 120 Notes , 125 Chap. TV. — Of Provisions as to the Time at which the Loading or Unloading is to begin, the Bate at, or Time within, which it is to be completed, and the Payment to be made if the Time is exceeded 127 Notes 138 PAET IV. Op the NECESSITY OE PEEFOEMING THE AGEEEMENT CREATED BY THE ChAETEE-PARTY OR EVIDENCED BY THE BuL OP Lading, TmiESs Peepoemance is excused by the Exceptions, of THE Exceptions excusing Performance, and of Provisions for the Determination of the Agreement in certain Contingencies 140 Chap. I. — Of the necessity of performing the Agreement created by the Charter-party or evidenced by the BiU of Lading, unless Performance is excused by the Exceptions 140 Chap. II. — Of the Exceptions excusing Performance 144 Notes , 152 Chap. IH. — Of Provisions for the Determination in certain Contin- gencies of the Agreement created by the Charter-party 156 PAET V. Of EEEIGHT and other Payments to be made to the Shipowner 157 Prefatory Note 157 Div. I. — Of the Payment of Freight 158 Chap. I. — Of the Time at and Circumstances under which Freight is payable 158 b2 XX CONTENTS. PAGE Chap. II. — In respect of what Groods Freight is payable 162 Note 164 Chap. III. — Of Provisions as to the Amount or Eate of Freight .... 165 Chap. IV. — Of Freight payable for a Term during which the Vessel is chartered 168 Chap. V. — Of Freight payable in advance 169 Chap. VI. — Of Demurrage, or the Payment agreed to be made when the Number of Lying-days allowed by the Charter-party is ex- ceeded 172 Div. n. — Of Lien for Freight and other Payments to he made to the Shipowner 173 Chap. I. — Of Agreements under which the Shipowner has no Lien for Freight 173 Note. — Whether Kirchner v. Venus and Gilkison v. Middle- ton are irreconcilable 176 Chap. II. — Of Liens given for Payments (other than Freight) to be made to the Shipowner 178 Notes 181 Chap. III. — Of the Incorporation in a BiU of Lading of the Provi- sions of a Charter-party giving a Lien for Freight or other Pay- ments to be made to the Shipowner 188 Notes 191 — ♦ — Book IV. OF MARINE POLICIES Prefatory Note 199 PART I. Op the EVIDENCE admissible in the Inteepeetation of Policies 204 Chap. I. — Of Statements made and Undertakings given before the Risk is accepted 204 (i) Of Statements made before the Eisk is accepted 204 (n) Of Undertakings given before the Execution of the Policy 207 Chap. II. — Of Evidence explaining the Meaning of Words used in the Policy 210 CONTENTS. XXI PAET II. PAOB The DESCEIPTION of the Subject of Iwstjeance 211 Notes 219 PAET III. Of CONDITIONS to be fulfilled by the Asstjeed 222 Dry. I. — Of Conditions not expressed in the Policy, hut implied by Law 202 Dry. II. — Of Conditions expressed in the Policy 233 Chap. L — Of the General Eules applicable to the Interpretation of Express Conditions 233 Notes 237 Chap. II, — Of Express Conditions as to the State or Situation of the Ship, the Time of Sailing, Neutrality, Convoy, and other matters 240 Note 247 PAET IV. Of the DUEATION of the Eisk 248 Chap. I. — Of the Commencement of the Eisk in Voyage Policies .... 248 Notes , 255 Chap. H. — Of the Course of the Voyage as contemplated by the Policy, and of the Determination of the Eisk by a departure from that Course ; also of the Eisk not attaching by reason of Delay in commencing the Voyage 258 Notes 265 Chap. III. — Of the Termination of the Eisk under Voyage Policies, when the Voyage contemplated has been pursued .... 267 Chap. IV.— Of Time Policies 273 PAET V. Of the PEEILS (in which Expeession is included Liabilities AEISING OUT OF PeeILS) INSUEED AGAINST 273 Chap. I. — Of the Principles upon which the Question of the Liability of the Insurers for a Loss alleged to have been occasioned by a Peril insured against is to be determined 275 Note— "Barratry" 278 XXU CONTENTS. PAGE Chap. II. — Of the Liability of tlie Insurers for Loss, total or partial, of Freight 281 Chap. HE. — Of the several Perils commonly insured against 284 Class I. — Of Perils hy which the subject of Insurance is Lost or Damaged, including a General Average Sacrifice of part of the subject of Insurance 284 Class II. — Of Payments made by the Assured, voluntarily or under compulsion, to mitigate or avert, or in consequence of the happening of a Loss by a Peril insured against, and although the subject of Insurance may not have been Lost or Damaged by that Peril, recoverable from the Insurers. . 292 Sub-Class I. — Of Payments voluntarily made by the As- sured — (i.) Of Expenses recoverable under the Suing and Labouring Clause 292 (ii.) Of Extraordinary Expenses voluntarily incurred for the joint Preservation of Ship and Cargo . . 294 Sttb-Class II. — Of Payments made by the Assured under compulsion to mitigate or avert, or in consequence of the happening of a Loss by a Peril insured against — (i.) Of Payments made on account of Salvage 296 (ii.) Of Pajrments made under a General Average Con- tribution 297 (ill.) Of Payments made in compliance with Foreign Law 298 (iv.) Of Payments made to the Owners of a Ship which has been Injured by the insured Ship 298 Chap. IV. — Of Perils from Liability for Loss occasioned by which the Insurers are exempted by the Express Provisions of the Policy, either absolutely or unless the Loss exceeds a certain Pro- portion of the Value of the Subject of Insurance 300 Note 304 PAET-VL Of the amount eecoverable in case of a Loss by a Peeil nfSUEED AGADTST, AND OF THE PeHCENTAGE OF LoSS WHICH MUST HAVE BEEN SUFFEBED TO MAKE THE InSUEEES LIABLE 306 Chap. I. — Of the Statement of Value in a Valued Policy, and of the Amount recoverable under a Valued or an Open Policy, and in case of Double Insurance 306 Note 307 CONTENTS. XXm PAGtB Chap. II. — Of Provisions in the Policy exempting the Insurers from Liability for the Loss of certain Goods, or where the amount of the Loss does not exceed a certain Proportion of the Value of the Suhject of Insurance 323 Notes 326 PAET VII. Oj? the PEEMIUM 329 DiY. I. — Of the Receipt for the Premium contained in the Common Form of Policy 329 Div. II. — Of Recovering hack the Prem,ium 331 Chap. I. — Of Eecovering hack the Premium, or Part of it, when there is no express Provision in the Policy for a Return of a Portion of the Premium 331 'Notes 335 Chap. II. — Of Recovering back a Portion of the Premium in a certain event according to a Provision in the Policy 337 Appendix. — Of the right to recover or retain the Premium in the case of Fraud, or where the Insurance is illegal, or, though not Ulegal, void, or has been effected with- out authority 340 Observations upon Lowry v. Bourdieu, and other cases 343 APPENDIX. WoKDS AND ExPEESSiONS used in, or in connexion with Q,uestions arising upon, Mercantile Agreements, the meaning of which has been determined by Judicial Decisions or in Works of Authority 347 Meecantilb Usages, including "Words and Expressions having a peculiar meaning in particular kinds of Trade, which have been proved or admitted 368 INDEX 375 ( xxiv ) The following Editions of Treatises have been used for tlie references in this Work : — Abbott's Law of Merchant Ships and Seamen, 12th ed., London. Arnould on the Law of Marine Insurance, 5th ed., London. Benjamin's Treatise on the Law of Sale of Personal Property, 3rd ed., London. Blackburn on the Contract of Sale, London, 1845. Broom's Legal Maxims, 6th ed., London, 1884. Duer on the Law and Practice of Marine Insurance, New York, 1846-6. Lowndes on Marine Insurance, 2nd ed., London, 1885. Maclachlan's Treatise on the Law of Merchant Shipping, 3rd ed., London. Marshall on Marine Insurance, Bottomry, and Eespondentia, 4th ed., London. Park's System of the Law of Marine Insurances, 8th ed., London, 1842. Parsons on the Law of Marine Insurance and General Average, Boston, U.S., 1868. Phillips' Treatise on the Law of Insiu-ance, 5th ed., Boston, U.S., 1867. Stevens on Average, and other Subjects connected with Marine In- surance, 5th ed., London. Story's Commentaries on the Conflict of Laws, 7th ed., London, 1872. Story's Commentaries on the Law of Agency, 9th ed., Boston, U.S., 1882. TABLE OF CASES CITED. \_The references are to the Sections, unless " p." is inserted hefore the figures.] Abrey v. Crux, 24. Aoebal v. Levy, 6, 22, 121. Adam v. Richards, 84. Adams v. Mackenzie, 414, 442, p. 366. V. Koyal Mail Steam Packet Co., 194, 220, 234, 235. Adamson v. The Newcastle Steamship Freight Assurance Co., 261. Ah Kang v. The Australasian Steam Navigation Co., 2, 204, 243. Airy ». Bland, 460. Aitohisou V. Lohre, p. 290, ^ 421, pp. 318, 363. Alcock V. Leeuw & Co., 181, p. 372. Aldridge v. Johnson, 52, 53. Alewyn v. Prior, 94. Alexander v. Gardner, 140, 279. V. Vauderzee, 17, pp. 364, 369. Alhambra, The, 204, 205, p. 125. Allen V. Pink, 23. V. Waldegrave, 35. AUiue V. Barker, 156. AUisou V. Bristol Marine Insurance Co., 2, p. 157, 5§ 280, 281, 302, 312, p. 355. Alsager v. St. Katharine's Dock Co., 8. Anderson v. Morioe, 6, 60, 129, 130. I/. Pacific Insurance Co., p. 199, § 294 (p. 206). V. Pitcher, 352. V. Thornton, pp. 199, 200, 5 462, p. 340. V. United Insurance Co., 319, p. 374. Audree v. Fletcher, pp. 343, 344. Anglo-Afrioan Co. v. Lamzed, 193. Anglo -Egyptian Navigation Co. v. Rennie, 55, 57. Annen v. Woodman, 324, 462. Anthon v. Wynne, 6. Appleby V. Myers, 6, 130. Appleton V. Binka, 33. Aquilar v Eodgers, 468. Arcangelo v. Thompson, 396 (Corol-- lary), pp. 278, 279. Armitage «;. Insole, 119. Armstrong v. .Sitokes, 29, p. 29. Ashcroft V. Crow Colliery Co., 216, 235 Ashforth v. Eedford, 17, 139, p. 355. Ashley «). Pratt, 367 (ii.), 371, 372. Aatley v. Weldon, 27. Atkinson v. Ritchie, 239. Atkyns v., Kinnear, 27. Atlantic Insurance Co. v. Storrow, p. 154. Attwood V. Emery, 107. V. SeUar, 170, 256, 416, 419, 420, p. 356. Aubert v. Walsh, p. 341. Audley v. Duff, 468, 470. Azemar v. Casella, 70, 74. B. Backhouse v. Ripley, 304. Baemeister v. Penton, p. 368. Baily v. De Crespigny, 6. Baiues v. Holland, 349. Bannister «). Breslauer, 291. Barber v. Fleming, 366, pp. 257, 258. Barclay v. Cuculla y G-ana, 235. V. Stirling, 356 (p. 250). Baring v. Christie, 350. V. Olagett, 350. V. Corrie, p. 28. Barker v. Hodgson, 21, 176, 235, p. 142. i. Janson, 437. • V. McAudrew, 230, 255, p. 366. • V. Windle, 45, 152, 181, p. 367. Barr f . Gibson, 69, 72. Barrett v. Button, 235. Barrow v. Dyster, 13. Bartlett v. Holmes, p. 361. , Barton ». Fitzgerald, 2. Bastifell v. Iiloyd, 3, 201. Bates V. Hewitt, p. 201, § 322 (pp. 223, 225, 226). Bean v. Stupart, 334, 337, p. 363. Beatson v. Haworth, 371. Beattie v. Lord Ebury, p. 202. Behn v. Bumess, 16, 18, 40, 41, 42, 43, 45, 46, 49, 50, 155, 164, pp. 202, 203, 239, § 350, p. 367. XXVI TABLE OP CASES CITED. Belcher v. Capper, 2, p. 84, § 143. BeU V. BeU, 324 (p. 22«). V. CarstairB, 330. V. Hobeon, 356. V. PuUer, 274. Benson v. Schneider, 180, pp. 369, 372. Berkley v. Presgrave, 416 (ii.). Bermon v. Woodhridge, 462, Corol- lary II. Bettini v. Otje, 41. Betts V. Bnroh, 28. Biooard v. Shepherd, 326. Bigge V. Parkinson, 66. BirreU v. Dryer, p. 373. Bishop V. Pentland, p. 284. Bize V. Fletcher, 14, 296, 334. Blackburn v. Vigors, p. xiii. Blaokett v. Eoyal Exchange Assurance Co., 303, 304, 455. Blaokhm-st v. CockeU, 337, 341. Blackmore v. North Australian Co., 4. Blaiberg, Ex parte, p. 165. Blaikee v. Stembiidge, 191. Blanohet v. Powell's Llantivet' Col- lieries Co., p. 113, 5 266. Blech V. BaUeras, 172', 234. Bloomer v. Bernstein, p. 70. Bloxam v. Sanders, 136. Boden v. French, pp. 358, 371. Bold v. Eayner, 12, 26, p. 369. Bond V. Nutt, 345, 367 (ii.). V. Gonsales, 367 (n.). Bondrett v. Hentigg, 396. Bone V. Eckless, p. 341. Booth©. G-aw, 417. Bomman v. Tooke, 164. Borrowman v. Drayton, 86. ■ ■ V. Free, 110. Bos V. Helsham, 1 24. Bottomley v. Forbes, p. 373. Bouillon «. Lapton, 326, 346 (n.). Bourne v. Seymour, 87, p. 363. Bousfield V. Barnes, 437. Bowden v. Vaughan, 297. Bowes V. Stanton, pp. 348, 364, 369. Bowman v. Horsey, p. 370. Boyd V. Dubois, 329, 394. Bradford v. Symondson, 462, pp. 341, 362. f.-Williams, p. 70. Bradley v. Dunipaoe, 189. Bragg 11. Anderson, 365, 372.. Brandt v. Lawrence, 103. Brereton v. Chapman, pp. 139, 372. British Wagon Co. v. Lea, 39. Brocklebank i>. Sughrue, 398 (4). Brooks, Ex parte, 18. Brotherton v. Barber, 407. Brough V. ."Whitmore, 299, 303, 375, pp. 356, 373. Brown v. Edgington, 62. V. Hare, 60. . V. Johnson, 223, 225, pp. 139, 371. V. Powell Coal Co., 187. V. Stapleton, 304. V. Tayleur, 359, 369, 370. V. Tiemey, p. 360. v. Vigne, 381. Browne v. Byrne, p. 372. , V. Hare, 60, p. 354. Browning i>. Provincial Insurance Co. of Canada, 16, 29, p. 29. Bruce v. Jones, 437, 441. ■ V. Nicolopulo, 238, 255. Bryan v. American Insurance Co., p. 154. Buck V. Eoyal Exchange Assurance Co., p. 349. Buckle v. Knoop, 13, 271, 272, p. 373. Budd V. Fairmauer, 80. Bull V. Robison, 64. Burgea v. Wiekham, 1, 324, p. 227, § 325. Burnand v. Rodooanachi, 437, 442. Burnett v. Kensington, 429. Burton v. English, 3, pp. 356, 362, 374. Busk V. Davis, 52. V. Eoyal Exchange Assurance Co., 396, p. 284. V. Spence, 100. Butler t). Wildman, p. 280, §^ 400, 405, p. 357. Byrne tt. Mercantile Insurance Co., 447. - — V. Schiller, 280. Bywater v. Richardson, 82, p. 58. . C. Cafiarini v. Walker, p. 353. Caine v. HorsfaU, p. 358. Calder v. Dobell, 15, 29, p. 30. Caldwell v. Ball, p. 85. Camden v. Cowley, 361 (p. 253), 379. Campbell v. Mersey Docks Board, 62. Cane v. Sinclair, 38. Capper v. Wallace, 204. Cargo ex Argos, 197. Carr v. Jackson, 38. V. Montefiore, 298, 329, p. 239, § 366, p. 251. ■ V. Royal Exchange Assurance Co., 433. Carruthers v. Gray, 330. Carter v. Boehm, p. 201, § 322 (p. 226), p. 340. — — v. Crick, p. 369. Cary v. King, 421. Castle 1). Playford, 127, 129, 279. Cator ®. Great Western Insurance Co. of New York, 395, 453. Chaine v. Francis, 122. Champion v. Plummer, 19. Chanter v. Hopkins, 42, 62. Chapman v. Eraser, p. 200. V. Gwyther, 82, 83, p. 58. -— V. Spiller, 92. Chappel V. Comfort, 293, p. 190. Chartered Bank of India v. Nether- lands India Steam Navigation Co., 3, 9, 146, pp. 143, 347, §§ 240, 241, p. 284. Chasca, The, 240, 247, p. 285. Chaurand v. Angerstein, p. 373. Chavasse, Ex parte, 21. Chemiuant, Le, p. 319. ■ TABLE OP CASES CITED. XX VU Cherry v. Colonial Bank of Austra- lasia, 36. Christie v. Lewis. 2, p. 84, ^ 144. V. Seoretan, 330. Christofierson v. Hansen, 29, 147, p. 181. Chusoa, The, 240. Clapham v. Cologan, 301, 365. V. Langton, 325. Clarke i'. Spence, 54, 55, 56. V. Westrope, 125. Cochran v. Eetberg, 225, pp. 352, 371. Cochrane v. Fisher, 347. Cockburn e. Wright, 200. Coddington «. Paleologo, 112. Cohn ». Davidson, 159, 160, 169, 324, p. 227, §{ 326, 462. Colby V. Hunter, 462, p. 360. Cole V. Meek, 178, 179. Colledge v. Harty, 336, p. 365. Collen V. Wright, 36. Colley V. Hunter, 342. CoIUns V. Collins, 124. Commercial Steamship Co. v. Boulton, 226. Company of African Merchants v. British and Foreign Marine In- surance Co., 373. Conkling v. Murphy, 155. Connor v. Spence, 6. Constable v. Noble, 359, 360. Cooke V. Eiddelien, 84, pp. 58, 370. V. Wilson, 33, pp. 23, 58. Corcoran v. Grumey, 430. Corr f . Standard Insurance Co. of New Zealand, 437. Cory V. Burr, 354, 396, p. 278, JJ 401, 407, 426, pp. 349, 350, 364, 366. V. Patton, 294, 322 (p. 223), p. 364. Coulthurst V. Sweet, 270, 271. Countess of Eothes v. KiroaJdy Water- works Commissioners, 2. Cousins i>. Nantes, p. 344. Covas V. Bingham, 123, 272. Coverdale v. Grant, 228, p. 361. Covington v. Roberts, 416 (i.) (ii.). Cowas Jee v. Thompson, p. 364. Crawcour v. Salter, 18. Crawford i\ Hunter, 439. Croockewit v. Fletcher, 50, 158. Cropper v. Cook, p. 368. Cross V. Eglin, 87, pp. 358, 370. V. Pagliano, 8. Crow V. Falk, 238, 255. Crowley v. Cohen, 302, 321, 446. Cruiokshank v. Jansen, 345, 370. Cullen V. Butler, 399, 412. Cunard v. Hyde, 404. Cundy V. Lindsay, 39. Cunningham v. Dunn, 175, 221, 234. Curtis V. WiUiamson, p. 30. Cuthbert v. Cumming, 13, 180, p. 371. Cutler V. Powell, 68, 74. Czech V. General Steam Navigation Co., 240. D. Da Costa i\ Edmunds, 304, 322 (p. 220), 404, 405, p. 374. Da Gamindo v. Pigou, 460. Dahl v. Nelson, 162, 203, 204, 258, 397. Dakin v. Oxley, 267, 268, 270, p. 164. Dale V. HaU, p. 134. Dalgleish v. Brooke, 435, 469. DalzeU v. Campbell, 460. Daniels v. Harris, p. 356. D'Aquilar v. Tohin, 367 (ii.). Davidsons. T5umand,,412. V. Gwynne, 267. Davies v. London and Provincial Ma- rine Insurance Co., 322. V. M'Lean, 118. V. M'Veagh, p. 139. Davis V. Garrett, 168. V. Geldart, 441. V. Jones, 24. Davison v. Donaldson, p. 29. ' Dean v. Hornby, 407. De Cuadra i\ Swanu, 256. D'Eguino V. Benecke, 351. De Hahn v. Hartley, 50, 334, 337. Delaney v. Stoddart, 367 (ii.), p. 373. De Mattos v. Saunders, 394. Dennistoun v. LiUie, 14, 296. Denoon v. Home and Colonial Assur- ance Co., 310, 313, 366, 451, p. 355. Dent V. Smith, 332, 396. De Eothschild 4). Royal Mail Steam Packet Co., 250, 251. De Silvale v. Kendall, 280, 282. Deslandes «?. Gregory, 3, p. 27. De Vaux v. Salvador, 396, 424. Deveaux v. I' Anson, 310, 366, p. 256. De Wolf V. Archangel Assurance Co., 343, 367, 337 (n.). Dickenson v. Jardine, 406, p. 357. Dickinson v. Lilwall, p. 368. Dickson v. Zizinia, 72, 78. Dimech v. Corlett, 28. Dinham v. Bradford, 124. Dixon, Ex parte, p. 29. V. Sadler, 324, 326, 396, p. 284. V. Whitworth, 302, 421. Doe V. Biggs, 8. Domett V. Beckford, 269. Dresser v. Norwood, p. 29. DriscoUj). Bovill, 367 (p. 260). V. Passmore, 367 (p. 260). Dudgeon v. Pembroke, 7, 8, 324, 393, 394, 396, p. 284, ^ 404. Duero, The, 240. Duff ». Mackenzie, 453. DufEell V. Wilson, p. 340. Duncan v. Topham, 106, p. 353. Duthie V. Hilton, 5, 263, 268. E. Earle v. Harris, 345. Eden v. Poole, 409. XXVlll TABLE OF CASES CITED. Edwards v. Footner, 14, pp. 199, 202, § 296. EicKhok V. Bannister, 92. Elbinger Actien-Gesellsohaft v. Claye, 29, 30, 32, p. 350. Elkin V. Janson, p. 200. Ellen i>. Topp, 43. EUiott V. Lord, 216. Ellis 4". Mortimer, 132. ■ V. Thompson, 5, 11, 104. Elphick V. Barnes, 133. Elton V. Brogden, 367 (p. 260). Emerton v. Matthews, 72. Entwistle v. EUis, 459, p. 327. Evans v. Edmonds, 50. Exposito V. Bowden, 21, p. 142. Eyre v. Glover, 307. I F. Fairlie v. Fenton, p. 26. Faith V. East India Co., 293 (n.), p. 192., Falkner v. Earle, p. 372. Fane v. Fane, 50. Farquharson v. Hunter, p. 373. Fawous V. Sarsfield, 322 (p. 224). Fawkes v. Lamb, 13, 128, p. 370. Feise v. Parkinson, 14, p. 200, § 294, pp. 206, 340. Feist V. Hm, p. 202. FeUx, The, 197. Fenton v. City of Dublin Steam Packet Co., p. 84. Fenwiek v. Robinson, 17, 447 (and OoroUary), pp. 348, 354. :- V. Schmaltz, 249. Field V, Lelean, 105. Figlia Maggiore, p. 85. Fisohel v. Scott, 96. Fisher u. Adelaide Insurance Co., 344. Fiski). Masterman, 464, 465. Fleet V. Murton, 13, 37, pp. 27, 368. Fletcher v. Inglis, 399. Flinnt). Tobin, p. 199. FHntw. Flemyng, 310, 366. Foley V. United Insurance Co. of . Sydney, 361 (p. 253), 366. Forbes. «>. Aspiuall, 303, 366, p. 256, § 398 (3), 440, 451. V. Cowie, 398 (3). 4). WUson, 324 (p. 227), p. 364. Ford J). Cotesworth, 6, 198, 215, 220, 221, 235. Forster v. Christie, 239. Forward v. Pittard, 235, p. 143, J 238. Foster v. Colby, p. 85, j 286, pp. 191, 194. V. United States Insvirance Co., p. 343. Fowkes V. Manchester and London As- surance Association, 4, 322. Fragano i!. Long, 140. Francesco v. Massey, p. 357. Eraser v. Telegraph Construction Co., 166. Freedom, The, 185. Freeman v. Head, p. 358. Freeth v. Burr, p. 70. French v. Gerber, 146, 147, 148, 291. V. Newgass, 154. Fry«i. Bell, 460. V. Chartered Mercantile Bank of India, 293, pp. 190, 196. Fumess i). Meek, 17, 24. Fumival v. Coombe, 8. G. Gabay v. Lloyd, 399, 434, pp. 305, 358. Gadd V. Houghton, 33, pp., 24, 27. Gaetano, The, 145. Gairdner v. Senhouse, 372. Gale V. Laurie, 303, p. 358. V. MaoheU, p. 374. Gambles v. Ocean Marine Insurance Co. of Bombay, 387. Gandy v. Adelaide Insurance Co., 322, pp. 224, 226. Gardner v. Grey, 76. V. Trechmann, 287, pp. 189, 190, 191, 351. Gath V. Lees, 110. GatlifEe v. Bourne, 197. Geipel v. Smith, 239, 258. General Steam Navigation Co. v. Slipper, 207. Gether v. Capper, 2, 12, p. 359. Gibbs V. Grey, 153. Gibson v. Bradford, 318. V. Crick, 13. V. Small, 326. V. Sturge, 270, p. 164. Gilkes V. Leoning, 100. GUkison v. Middleton, 284, 293, pp. 191, 193, 194. Gilmour v. Supple, 58, 60. Gladstone v. Clay, 366. V. King, 323. Glaholm v. Hays, 43, 45, 48, 60, 158. Gledstanes v. Allen, 293, p. 193. V. Eoyal Exchange Assur- ance Co., 319. Gleeson v. Kingston, 28. Glenfruin, The, 161, 247. Glover v. Black, 302. Glyn, Mills & Co. v. East and West India Dock Co., 151. Godtsu. Eose, 104, 136, p. 371. Goldsohmidt v. Whitmore, pp. 278, 279. Gompertz v. Bartlett, 69. Goodman v. Griffiths, 22. Goodwin v. Bobarts, 36. Gordon i>. Eimmington, p. 279, 56 399, 400. Gorissen v. Perrin, 12, 17, 94, 96, 98, pp. 360, 369, 372. Goss V. Withers, 407. Gould v. Oliver, 184, p. 374. Graves (or Greaves) v. Legg, 13, 41, 43, 100, 180, p. 369. Gray v. Carr, 2, 7, 8, 11, 2S8, 289, pp. 183, 186, 190, 196, 197. Great Indian Peninsular RaiL Co. -o. Saunders, 417, p. 360. TABLE OF CASES CITED. XXIX G-reaves v. Ashlin, 104. V. Hepke, 128, p. 370. Green v. Kopke, p. 26. ■». Poole, 395. Gregory v. Christie, p. 373. Gregson v. Euck, p. 371. Grey v. Pearson, 2. Griffiths V. Bramley Moore, 300, 309, 313, 448. Gull V. General Iron Screw Collier Co., p. 284. GuUisohen v. Stewart, 150, 259. Gurney v. Womersley, 69. GwUlim V. Daniel, 87, p. 363. H. HadMnson v. Robinson, 395. Hagedorn v. Oliverson, p. 342. V. Whitmore, p. 280, J^S 399, 453, 454. Hahn v. Corbett, 427. Haigh V. De la Coiir, 437 (note). Hale V. Rawson, 99. Halhead v. Toung, 308. HaUi). Janson, 13, 311, 312, p. 355. Hj,llett V. Wigram, 420. Hamilton v. Mendez, 407. V. Thames and Mersey Marine Insurance Co., 412. Hammond v. Anderson, 128, p. 370. Hampden v. Walsh, p. 341. Hardjnan v. Booth, 39. Hare i). Travis, 368, p. 262. Harman v. Kingston, 439. Harris v. Dreesman, 220. V. Jacobs, 214, 292. V. Scaramanga, 416, 419, 422, 423. Harrison v. Douglas, 338. V. Ellis, 357, 358, 382. i>. Jackson, p. 86. Harrower v. Hutchinson, p. 256, § 372. Hart V. Middleton, p. 358. V. Mills, 115. v. Swaine, 50. Hartley v. Buggin, 367. Hastelow v. Jackson, p. 341. Hathesing V. Laing, 13. Haughton v. Empire Marine Insurance Co., 324 (pp. 227, 228), 361 (p. 253). ». Ewbank, 300. Havelook «. Geddes, 160, 277, 279. V. Hancill, 354. Hawes v. Foster, 26. Hayn v. CuUiford, p. 85, §§ 242, 244, p. 358. Haynes v. Halliday, p. 372. Hayton «. Irwin, 13. Head v. Tattersall, 84, 86, 132. Heffield v. Meadows, 11. Heilbut V. Hiokson, 49, 52, 58, 60, 68, 74. Helene, The, 240. HeUston v. Gibson, 204. Hemmingway v. Hamilton, p. 202. Henchman v. Offley, 319. Headricks ». Australasian Insurance Co.,415,423,pp.354,359. V, Commercial Insurance Co., 340. Henrioh, The, 237. Hentig v. Staniforth, p. 341. Heyman v. Parish, pp. 278, 279. Heywardi). Scougal, 96. Hey worth v. Hutchinson, 74. V. Knight, 13, 141, pp. 369, 371. Hicks V. SHeld, 283, 311. Hide V. Bruce, 339. Higgias V. Senior, 15. HiU V. Patten, 303, 304, pp. 355, 359, 364. V. Wilson, 264. HiUs V. London Assurance Corpora- tion, 453. V. Sughrue, 2, 190, 235. HiUstrom v. Gibson, 204. Hinton v. Sparkes, 8. Hoadly v. MoLaine, 6. Hodgson V. Davies, 142, p. 371. Hoffman v. Marshall, 432. Holding V. Elliott, 23. HoUins V. Fowler, 39. Honoki). MuUer, 113. Hopkins v. Hitchcock, 61, 75. ■ -0. Tacqueray, 79, 80. Hopper, Re, 124. v. Bumess, 264. Hore V. Whitmore, 337. Horncastle v. Farran, p. 348. Homeyerj;. Lushington, 330, 356, 384. Horsley v. Price, 206, p. 125. 1). Rush, 29, p. 86. Horvill V. Couplaud, 6. Hoskins v. Pickersgill, 303, p. 365. Hough V. Manzanos, 33, p. 25. Houlder Brothers p. Merchant Marine Insurance Co., p. 382. How V. Kirohner, 284. Howard v. Tucker, 285. Hucks V. Thornton, 390. Hudson ij. Bilton, 346. ■ — V. Clementson, 219. V. Ede, 3, U, 228, 229. Hull V. Cooper, 343. Hulton V. BuUock, 30. Humble ®. Hunter, 1, 31. Humfreyw. Dale, 13, 37, p. 27, § 82, p. 58. Humphreys v. Union Insurance Co., 453. Humphries v. Carvalho, p. 369. Hunters;. Fry, 45, 152. ■ V. Leathley, 356 (p. 250). V. Prinsep, 300. V. Wright, 472. Hurry v. Royal Exchange Assurance Co., 355, 388, 445, p. 342. Hurst V. Usborn, 45, 154. Hutcheson v. Eaton & Co., p. 26. Hutchinson v. Tatham, 13, 37, p. 368. Hutchison v. Bowker, 7, 18, pp. 354, 369. Hydraulic Engineering Co. v. McHaf- fie, 107. XXX TABLE OP CASES CITED. I. Imperial Bank v. London and St. Ka- tharine's Docks Co., 37, pp. 28, 368. Imperial Marine Insurance Co. v. Fire Insurance Coi'poration, Limited, 320. Ingles V. Vaux, 380. Inglis V. Stock, 302, pp. 348, 351, 362, 354 (see Stock v. Inglis). Inman Steamship Co. v. Bisohoff, 395, 396, 398 (2) (Corollary). lonides v. Pacific Insurance Co., p. 204, § 294 (p. 206), 301, pp. 352, 364. V. Pender, 322, 437 (Note). V. Universal Marine Insurance Co., 395, 396, 413, 427. Ireland v. Livingstone, pp. 350, 351. Irvine v. Watson, p. 29. Irving V. Clegg, 178. . V. Richardson, 302, 437, 441. Isaacs, In re, p. 353. V. SkeUom, 52. Jackson v. Marine Insurance Co., 162, 397. Jacobs V. Ciedit Lyonnais, 9, 21. Jarman v. Coope, 435. JefEery (or Jeffries) v. Legender (or Legandra), 351, 352. Jenkins v. Hutchinson, 36, 38. V. Power, 460, p. 348. Jenkyns v. Brovm, 60. Jessel». Bath, 8, 188, p. 371. Joh V. Langton, p. 290, § 419 (1), p. 356. Johnson u. Chapman, 405. V. Macdonald, 94, 95. V. Eaylton, 68, 234, p. 369. V. Sheddon, 446 (p. 312). Johnston v. Hogg, pp. 350, 364. Jonassohn v. Young, p. 70. Jones V. Bowden, 77, p. 369. V. Bright, 62. V. Clarke, p. 354. V. Hohn, 162, 177, 257. V. Just, 62, 63, 71, 72, p. 364. V. Neptune Marine Insurance Co., 362, 363. Jordan v. Money, p. 202. JosUng V. Kingsford, 61. Joyce V. Kennard, 316, 446, 449. V. Realm Insurance Co., 8, 356. V. Swann, 5. Jumel V. The Marine Insurance Co., p. 322. Kaltenbaoh v. Lewis, p. 29. V. Mackenzie, 333, 442. Kay V. Meld, 194, 226, 228. V. Wheeler, p. 143, § 247. Kearon v. Pearson, 216, 235. KeUner v. Le Mesurier, 469, 471. Kelner v. Baxter, 8, 38. Kemble v. Earren, 27, 28. Kendall v. Hamilton, p. 30. Kennedy v. Panama Mail Co., 40. Kenyou v. Berthon, 334. Kern v. Deslandes, 293 (2), pp. 191, 194, 195. Keyser v. Scott, 435. Kidston v. Empire Insurance Co., 417, 429, 468, pp. 349, 360, 364. King V. Hinde, 219, pp. 357, 372. Kingston -upon -Hull Dock Co. v. Browne, 359. Kirchner v. Venus, 4, 13, p. 157, §§ 284, 287, pp. 194, 373. Kish ». Cory, 4, 233, 291, pp. 181, 357. Kleinwort v. Shepard, 407, p. 364. Knell V. Hooper, 327. Knight V. Faith, 391, 442, 444, 447. Knights V. Wiffen, 52. Koebel ii. Saunders, 329, 394. KopitofEv. Wilson, 161. Kreuger v. Blanck, 86. Laing v. Glover, 352. Lambert v. Liddaxd, 364, 366, 372. Lane v. Nixon, 328. Lang V. Anderson, 346, 348. Langhom v. Hardy, 366. Langton v. Higgins, 60. Laroche v. Owen, 367 (n.). Laugher v. Pointer, p. 84. Laurie v. Douglas, p. 152. Lavalre v. Wilson, p. 199. Laveroni v. Drury, p. 143. Lawrence v. Aberdeen, 395, 399, 434, pp. 304, 358. Lawson v. Bumess, 194, 218, 219. Lebeau v. General Steam Navigation Co., 185, 186. Le Cheminant, p. 319. V. Pearson, pp. 319, 321. Lee V. Southern Insurance Co., 417. Leeming v. Snaith, 88 (erroneously cited as Leeman v. Snaith), p. 363. Leidemann v. Schultz, 219, pp. 357, 372. Le Masurier v. Vaughan, p.- 239. Lennard v. Robinson, 33, 34, p. 22. Leonino v. Leonino, p. 156. Letchford v. Oldham, 394, 430. Lethuillier's case, 351. Leuckhart v. Cooper, 13. Leuw V. Dudgeon, 240. Levey v. Vaughan, 435. Levin v. Allnutt, 436, p. 351. V. Nevniham, 435. Levy u. Green, 115. Lewis V. Marshall, 182, 313, pp. 355, 372. V. Nicholson, 36. V. Rucker, 437, 445, p. 366. TABLE OF CASES CITED. XXXI Lidgettj). Seoretan, 377, 384, 385, 443, 444, 447, p. 322. Lilly V. Ewer, 351. Lindus v. Melrose, 3. Lishmau v. Northern Marine Insur- ance Co., 322 (p. 224). Lister v. Van Haansbergen, 149, 290. Livie V. Jansen, 443, 444, pp. 319, 321. Lloyd V. G-eneral Iron Screw Co., 240. V. G-uibert, 6, 9, 145. Lookhart v. Falk, 289, 291. Lockyer i>. Offley, 384 (ii.). Logan V. Le Masurier, 60. Lohre v. AitoHson, 18, 421, 442, 443, 445, 447. Long V. AUen, p. 374. Loraine v. Tomlinson, 462. Lorymer v. Smith, p. 369. Lothian v. Henderson, pp. 202, 367. Lovatt V. Hamilton, 94, 101. Lowry v. Bourdieu, pp. 341, 343, 315, 366. Lozano V. Jansen, 407. Luoas V. Bristow, p. 369. Luoena v. Crawfurd, 306. Lynch v. Dunsford, 322 (p. 224). V. Hamilton, 322 (p. 224). M. M'Cnlloch V. Eoyal Exchange Assur- ance Co., pp. 341, 342, 343. MoAudrew v. Adams, 5, 167, 168. V. Chappie, 164. McCoUin V. Gilpin, 8. McConnel v. Murphy, 3, 87, 88. McDevitt V. KattengaU, 23. McDougle V. Royal Exchange Assur- ance Co., 431. Mcintosh V. Sinclair, 208, 224, p. 139. McLean v. Pleming, 187, 289, p. 183, § 293 (ill.). McSwiuey v. Eoyal Exchange Assur- ance Co., 308. Maobeath v. Haldimand, 35. Maedonald v. Law Union Assurance Co., 50. V. Longbottom, 10. MacdowaU v. Eraser, p. 199, § 294, p. 206. Mackenzie v. Whitworth, 302, pp. 219, 374. MacMe v. Pleasant, p. 238. Mackintosh v. Marshall, 294, p. 206. Magnus v. Buttemer, 394, 399, 430. Mahony v. Kekule, 33, 34. MaUan v. RadlofE, 80. Manchester, &o. Rail. Co. v. Lanca- shire Rail. Co., 240. Manfield v. Maitland, 283. Manning v. Irving, 437, p. 365. Mariatigui v. Louisiana State Insur- ance Co., 384. Marsden v. City and County Assur- ance Co., 413, 427. V. Reid, 371. Marshall v. Bolokow, Vaughan & Co., 227. Marshall v. De la Torre, 232. Martina. Crokatt, 442. Martindale v. Smith, 58, 59. Martineau v. Kitching, 60, 127, 129. Maryland Insurance Co. v. Bosley, 457. Mason v. Skurray, p. 351. Maspons v Hermano v. Mildred, 30, p. 28. Mayor v. Simeon, 460. Mavro i;. Ocean Marine Insurance Co., p. 290, §§ 416 (l.), 422, 423, 428. Maydhew v. Scott, 435. Medaros v. Hill, 235. MeUish v. AUnutt, 356. V. Staniforth, 435. Mercantile Marine Insurance Co. v. Titherington, 386. Mercantile Steamship Co. v. Tyser, 322 (p. 224), 366, 395, 397. Merchant Shipping Co. v. Armitage, 266. Mersey Steel and Iron Co. v. Naylor, p. 70. MetoaUe v. Britannia Ironworks Co., 203, 264. V. Parry, 372. Meyer v. Everth, 76. V. RaUi, 417 (Corollary). Michael v. Tredwin, 393. Miedbrodt v. Eitzsimon, 262. Migotti 11. ColviUe, p. 358. Miles, Ex parte, 30, pp. 350, 353. Miller v. Tetherington, p. 374. V. Titherington, or Tethering- ton, 416, 422. V. Warre, 370. Milnes v. Gery, 124. Milvain v. Perez, 147. Milward v. Hibbert, 304, 322 (p. 226), 404, p. 374. Minett v. Anderson, 384. Mirabita v. Imperial Ottoman Bank, p. 45. Mitchell V. Soaife, 293, pp. 191, 197. Mitchison v. Nicol, 183. Moir V. Royal Exchange Assurance Co., 348. Mondel v. Steel, 74. Montoya v. London Assurance Co., 395, 399. Moody V. Gregson, 66, 67. V. Surridge, p. 351. Moore v. Campbell, p. 370. V. Harris, 8, 9, 83, 185. V. Taylor, 380. Moorsom v. Page, 178. Morck V. Abel, p. 341. Mordy v. Jones, 395. Morgan v. Bain, p. 70. V. Price, 437, 441. Morley v. Atteuborough, 91, 92, 93. Morris v. Levison, 4, 7, 11, 87, 89, 181. Morrison v. UniTersal Marine Insur- ance Co., 322 (pp. 225, 226), pp. 341, 364. Moss V. Smith, 395, 397, 398 (i.), p. 365. xxxu TABLE OP CASES CITED, Mossv. Sweet, 17, 131, p. 362. Mottevts «!. London Assurance Co., 361, 367 (n.). Mount v; Larkins, 367. Moxon V. Atkins, 359, 360. Murphy v. Bell, p. 344. V. Coffin, 223. N. Naylor v. Palmer, 401. v. Tayler, 407. Neill V. Ridley, 183. V. Whitworth, 104, 117. Nelson v. DaU, 194, 201, 202, 215, 220, 223, p. 139. ■ V. Salvador, 337 (p. 236). Nesbitt V. Lushington, 401, 429. Newberry v. Colvin, p. 84, § 143. Newby v. Reed, 441. New York Eire and Marine Insurance Co. i>. Roberts, 462. Nichol V. Godts, 70, 74. Nicholson v. Chapman, p. 363. Nielsen v. Wait, 204, 205, 208, 224, 225, pp. 139, 352, 362, 367, 372. Niemann v. Moss, 225. Nind ». Marshall, 3. Noble V. Kennaway, p. 373. Nonnen v. Kettlewell, 356 (p. 251). Norder Steamship Co. v. Dempsey, 223, p. 372. North of England Insurance Associa- tion V. Armstrong, 437. Oilcake Co. ». Arch- angel Insurance Co., p. 364. Norton v. Herron, 33. Norway, The, 266. Notman v. Anchor Assurance Co., 2. Nottingham Hide Co. v. Bottrill, 11. Nugent V. Smith, 6, p. 143, § 236. O. Oakley v. Port of Portsmouth Steam Packet Co., 236. Ogden V. Graham, 213, 239. Ogg V. Shuter, 60. Oglesby v. Tglesias, p. 25J § 147. OhrlofE V. BriscaU, 253. Olive V. Smith, 460. Oliver v. Fielden, 157. Ohverson v. Brightman, 381. OlUve V. Booker, 45, 49, 50. OUivent v. Bayley, 62. OUiver v. Cowley, 324. Oom V. Bruce, pp. 341, 342. Oppenheim «. Ery, 453, 454, 458. Orchard v. Simpson, 126. O'Reilly v. Royal Exchange Assur- ance, p. 265. Oswell V. Vigne, 330. P. Paice V. "Walker, 33, 34, p. 24. Palmer v. Blackburn, 448. Palyart v. Leokie, p. 341. Paradine v. Jane, 6. Parfitt V. Thompson, 327. Parker, In re, 18. . v. Palmer, p. 363. ■ V. Winlow, 32, 33, p. 23, §§ 210, 223. V. Winton, p. 139. Parmeter v. Cousins, 324 (p. 227), 361 (p. 253). Parton v. Crofts, 26. Paternoster v. Hackett, 50. Paterson v. Gandaseque, p. 30. V. Harris, 314, 394. Patria, The, 9, p. 85, §§ 145, 235. Patrick v. Eames, 366. Pawson V. Watson, p. 199, 5§ 295, 296. Paynter v. James, 262, p. 359. Pearson v. Commercial Union Assur- ance Co., 367 (ii.), 374. V. Goschen, 7, 288, p. 191. V. Scott, p. 28. Peek V. Larsen, 293. Pelly 'V. Royal Exchange Assurance Co., 299, 375, p. 373. Perry v. Bamett, 13. Pettitt V. Mitchell, p. 371. Petroooohino v. Bott, 197. Pettigrew v. Pringle, 346 (n.). Phelps V. Auldjo, 367 (p. 260). Philips V. Baillie, p. 85, § 165, p. 199. Phillips V. Briard, 13, p. 373. ■ V. Clark, 4, 240. 1!. Edwards, 240. V. Naime, 327. Philpot V. Swan, 395. Phyn V. Royal Exchange Assurance Co., 367. Pirie v. Steel, 447, p. 354. Pitman v. Universal Marine Insurance Co., 444, 447. Plummer v. Wildman, 420. Pole V. Ceteovich, 168. Porteus v. Watney, 222. Postlethwaitew. Preeland, 11, 176, 215, 216, 217, 220. Potter V. Rankin, 333. Powell, Ex parte, 18. V. Gudgeon, 395. V. Horton, 12, 61, 75. Power V. Butcher, 460, 461. Price ». BeU, 330. V. Livingstone, 346, pp. 360, 362. Priestley v. Eurnie, p. 30. Proudfoot V. Montefiore, 322 (p. 225). Puller V. Halliday, 274. V. Staniforth, 274. Pust V. Dowie, 43, 160. Pym V. Campbell, 24. Q. Quebec Marine Insurance Co. v. Com- mercial Bank of Canada, 326, 327. TABLE OF CASES CITED. XXXlll Queen, The, v. Arkwright, p. 359. V. Axnand, 314. V. Humphrey, p. 369. — V. Inhabitants of Chawton, p. 358. R. Rae V. Hackett, 209. Raffles V. Michelhaua, 25. Railway Sleeper Co., In re, p. 358. Raine v. Bell, 367. Raisby, The, p. 356. RaUi V. Jansen, 453. Randall v. Lynch, 222. V. Newson, 61, 62, 65. Rankin v. Potter, 333, 397, 442, pp. 347, 365. Ray V. Barker, 131, p. 362. Rayuer v. Grote, 38, 39. Redhead v. Midland RaU. Co., 161. Redman v. Lowdon, 294. V. Wilson, 396. Reese River Silver Mining Co. v. Smith, 50. Renter ». Sala, 100, 102, 103. Reynolds, Ex parte, 18. Rhode V. Thwaitea, 52. Rich V. Parker, 350. Richardson v. Brown, 80. V. Smith, 124. Rickman v. Carstaira, 451. Ridsdale v. Newnham, 346 (n.). Riggin ». Patapasco Insurance Co., pp. 247, 266. Ripley v. Scaife, 278. Ritchie v. Atkinson, 45. Rivaz V. G-erusse, 322. River Wear Commissioners v. Adam- son, 6. Roberts v. Brett, p. 354. Robertson v. Clarke, p. 373. V. Ewer, 409. V. French, 8, 300. V. Jackson, 12, 218, 219, p. 372. Robinson v. Bland, 9. V. Knights, 266. V. Millett, p. 369. V. Price, 416 (n.). V. Wait, p. 373. Rodocanaohi ». Elliott, 239, 299, 375, p. 284, §§ 408, 410, pp. 348, 362. Roelandts t\ Harrison, p. 362. Rohl V. Parr, 457. Robs v. HUl, 6. V. Thwaite, 304. Rotoh V. Edie, 408. Routh V. Macmillan, 45, 154. V. Thompson, pp. 342, 343, 344. Routledge v. BurreU, 334. Roux V. Salvador, 429. Rugg V. Minnett, 52, 129. Russell V. Nicolopulo, 81, p. 362. V. Niemann, 2, 237, 259, 399. W. s. Sack ». Ford, 191, 192. Ha ilin g Ship "Garaton" Co. ■!). Hiokie, pp. 360, 362. Sala V. Renter, 102. Salter v. Purohell, p. 28. ■ ■ V. Woollams, 114, 116. Salvador v. Hopkins, p. 373. Samuel v. Royal Exchange Assurance Co., 377. Sandeman v. Sourr, pp. 84, 85, §§ 191, 193. Sanders v. Jameson, 82, pp. 58, 370. ■ ■ V. Maclean, 134, 151. Sanderson v. Busher, 165. Sangninette v. Pacific Steam Nav. Co., 146, 147, 148. San Roman, The, 168. Sarquy v. Hobson, 395. Saunders v. Drew, 277, 282. Scaramanga v. Stamp, 168, 367, p. 260. Scarf V. Jardine, p. 30. Schaok V. Anthony, 15. Schilizzi v. Derry, 201, 203, p. 125, § 248. Schmaltz v. Avery, 10, 31, 38, 39. Schuster v. McKellar, pp. 84, 85. Scott 1). Bourdillon, p. 351. V. Thompson, 367 (p. 260). Seagrave v. Union Marine Insurance Co., p. 356. Seeger v. Duthie, 157. Semenza v. Brinsley, p. 29. Service v. Walker, 76. SeweU i>. Burdick, pp. 85, 193, 349. Shand v. Sanderson, 293 (ii.), pp. 191, 192 195 Shawe v. Felton, 385, 437, 442. Shee V. Clarkson, 460. Shepherd v. De Bemales, 269. V. Harrison, 60. V. Henderson, 407. V. Kaiu, 74. Shield V. WilMns, 202. Sibbald v. Hill, 294. Sieveking v. Maasa, 212. Sillar V. McVicar, 365, 366, p. 256. Simm V. Anglo-American Telegraph Co., 52. Simmons v. Swift, 59, 135. Simonds v. Boydell, 352, 467. V. White, p. 290. Simpson v. Crippin, p. 70. Sims V. Bond, p. 29. Sjoerda v. Luacombe, 235, 238. Small V. Gibson, 324, p. 363. V. Moates, 293, pp. 192, 197. Smethurst v. Mitchell, p. 30. Smith V. Chadwick, 50. V. Dart, 260. V. Scott, 399. V. Shepherd, 236. V. Sieveking, p. 189. V. Surridge, 324 (p. 227). V. Wilson, p. 57. Smurthwaite v. WUkins, 269. Smyth V. Anderson, 30. e XXXIV TABLE OF CASES CITED. Southampton Steam Colliery Co. v. Clarke, 178, 179, 195, 273. Southwell V. Bowditoh, 37, 39, pp. 25, 27, 28, 155. Sparrow v. Paris, 28. Spartali v. Benecke, 12, 13, 104. Spenoe v. Chadwick, 235. Spioer v. Cooper, 122, p. 371. Spitta V. Woodman, 356. Staniforth v. Lyall, 275. Stanton V. Richardson, 16, 43, 159, 163, 171, 234, p. 348. Startup V. Macdonald, 111, p. 370. Steele. State Line Steamship Co., 159, 160, 161. Stephens v. Australasian Insurance Co., 5 320, pp. 350, 374. Stevenson ». M'Lean, p. 371. V. Snow, 462 (Corollary II.), p. 374. Stewart ij. BeU, 388. V. Merchants' Marine Insur- ance Co., 4, 17, 18, 456. V. Eogerson, 262. — V. Steel, 447, pp. 319, 321. Stibley v. Imperial Marine Insurance Co., 323. Stock V. luglis, 52, 306, p. 354 (see IngUs V. Stock). Stone V. Marine Insurance Co., 365, 376, 377, 383, p. 362. Street v. Blay, 68. Strong V. Natally, 388. Stucley V. Bailey, 79, 80. SuUy V. Duranty, 276. Suse ». Pompe, 1. Svensden v. Wallace, p. 202, §§ 416, 419, 420, pp. 327, 356. ' Sweeting v. Darthez, 231. Swift v^ Jewsbury, 187. Syers v. Jonas, 77, p. 369. Tamvaco v. Lucas, 90, p. 364. V. Simpson, 283, 284, 285. Tanner v. Christian, 33. Tappenden v. Eandall, p. 341. Tapsoott V. BaKour, 194, p. 139. Tarling ». Baxter, 58, 129, 223. Tarrabochja v. HicMe, 50, 160. Tasker v. Cunningham, 368 (m.), p. 262. Tate V. Hyslip, 322, p. 226. Tatham v. Hodgson, 395. Taylor v. Briggs, p. 372. — • V. BuUen, 74. V. Caldwell, 129. V. Curtis, 416 (i.). V. Dewer, 396, 424, 425 (i.). V. Dowers, p. 341. • V. Dunbar, 395, p. 305. ■ V. Liverpool and Great Western Steam Co., 3, 240, 252, p. 365. Teutonia, The, 21, 168, 213, pp. 142, 143, §§ 237, 265. Thetis, The, p. 363. Thiis V. Byers, 222, 235. Thompson?;. GiUespy, 160, 311, 346, p. 355. w. Hopper, 324, 326, 395. V. Hudson, 27. V. Reynolds, 425 (3). V. Taylor, 366 (pp. 257, 258). Thomson v. Weems, 334. Thorn v. Mayor of London, p. 356. Thrift V. Toule, 254. ThurneU v. Balboume, 124. Tobin ». Harford, 451. Tonge V. Watts, 366 (p. 258). Touting V. Hubbard, 238. Towse V. Henderson, 174, 196. Trent and Mersey Navigation Co. v. Wood, 235. Trusoott V. Christie, 366. Tully V. Terry, 123, 271, 272. Turley v. Bates, 60. Turner v. Evans, 2. V. Gouldeu, 124. Turquand, Ex parte, 18. Tyler v. Home, p. 200. Tyrie v. Eletoher, p. 238, § 462, p. 332. U. Ulide V. Walters, 299, p. 373. Unwin v. Wolseley, 35. Usher v. Noble, 306, 440, 445. Uzielli V. Boston Marine Insurance Co., 418. V. Valente v. Gibbs, 2, 230, 255. Vallance v. Dewar, 13, 361 (p. 253), 367 (n.), p. 373. Valpy V. Gibson, 5. Van Baggen ». Baines, 346 (ii.), p. 357. Vandenbergh v. Spooner, 19. Vernede v. Weber, 96, 97, 101. Vickers v. Vickers, 124. Violett V. Allnutt, 356 (p. 250). W. Wait V. Baker, 60, p. 348. Wake V. Harrop, 23, 31. Walker ». Guarantee Association, 6. v. Maitland, p. 284. WaUis V. LitteU, 24, V. Smith, 27, 28. Walthew v. Mavrojani, 419. Waples V. Eames, 377. Ward V. Hobbs, 72, 93. Warde v. Stuart, p. 370. Warren v. Svriss Lloyd's Insurance Co., p. 374. Warwick v. Scott, 351. Way V. Moodigliani, 368 (m.), 392. TABLE OP CASES CITED. XXXV Weaj Commissioners v. Adamson, 6, 11. Webb V. Fairmaner, 138, p. 350. V. Thomson, 353. Wegener v. Smith, p. 189. Weiler v. Schilizzi, 69. West India Telegraph Co. v. Home and Colonial Lisuranoe Co., 396, p. 284, § 412. Weston ,, 298. Omit, For the form of the usual running-down clause, see Form of Policy at the beginning of this work. „ 299, 7th line from the bottom. For have, read " has." „ 302, last line but one. For § 416, read " § 415." „ 306, foot-note («). After Manning v. Irving, read " 1 C. B. 169; (in Ex, Ch.) 2 C. B. 784 ; (in H. L.) 6 C. B. 391." ,, 321, line 22, For fraudulently, read " prudently." „ 332, line 18. Before warranted, insert "is." ,, 334, line 9. For such, read "each." ,, 349, tit. Average. For on after clause, read "in." ,, 350, 5i/s line of tit. Collision Clause. For he, read "his." ,, 383, Zrd line from the bottom. For ^. 23i, read " k 23i." ,, 384, line 28. For Levering, read "Lowry." \_ERRATA. W. THE INTEHPRETATION MERCANTILE A&EEEMENTS. BOOK I. OF WRITTEN MEECANTILE AGREEMENTS GENERALLY, CHAPTER I. Of the Rules which govern the Interpretation of Mercantile Agreements in "Writing. For Beferencea to Sections, in which examples illustrating the Rules in this Chapter may he found, in addition to those cited in the foot notes, see ^'References to the Sections," &c., ante, I. Of the Principles according to which they are to be interpreted. II. Of the Evidence admissible in interpreting them. III. Of the Persons by whom they are to be interpreted. /. 0/ the Princijjles according to which Mercantile Agree- ments in Writing are to he interpreted. § 1. Evidence is not admissible to contradict a written agree- ment (fl), or, except in the cases hereinafter mentioned, to explain its meaning or add a term to it. Corollary. — As a term implied by law is part of a written [a) mmble v. mmter, 12 Q. B. 310. WRITTEN MERCANTILE AGREEMENTS GENERALLY. Book I. The -whole agreement must he con- sidered. agreement, evidence is not admissible to contradict it. Compare uith Second Corollary to%\^. Thus, as a warranty of seaworthiness is an implied term of a voyage policy, evidence of an oral agreement that the assured might recover though the ship was not seaworthy would not he admissihle (5). So, as it is an implied term of a bill of exchange that the indorser shall receive notice of dishonour, evidence of a usage in a particular locality or business (see § 12) not to give notice of dishonour would not be admissible (c). § 2. In the interpretation of any part of a written agreement the whole agreement must be considered (d), and a meaning may, even in violation of the rules of grammar (e), be put upon words which differs from that which the words ordinarily bear, if the ordinary meaning would be inconsistent with the inten- tion of the parties as it appears from the whole of the agree- ment (/). " the whole agreement must be considered." Corollary. — Therefore, where a specific enumeration concludes with a general term, that term is to be interpreted as limited to things of the same kind as those specifically enumerated (g). Because otherwise the specific enumeration would be useless (A). Thus, where a bill of lading contained an exception of the act of God, the king's enemies, and the dangers and accidents of the seas, and the following words (occurring after the provision for delivery of the goods to the shippers or their assigns), " paying (i) freight for the said goods and all other conditions as per charter-party," it was held that the words ' ' all other conditions as per charter-party ' ' were limited to conditions of the same kind with that previously (b) Surges v. WicTcham, 3 B. & S. at 696 and 697, per Blaokbixra, J. (c) Suse V. Pompe, 8 0. B., N. S. at 567. {d) For examples of the application of this rule, see Kotman v. Anchor As- surance Co., 4 C. B., N. S. at 480; Chriitie V. Lewis, 2 B. & B. at 428 ; Barton v. Fitzgerald, 16 East, 541 ; Turner v. Evans, 2 E. & B. at 519, per Crompton, J. ; Hills v. Sughrue, 15 M. & W. 253. [e) Allison v. Bristol Marine Insur- ance Co., 1 App. Cas. at 217, lines 3 to 7. (/) Belcher v. Capper, 4 M. & G. at 541 ; Grey v. Pearson, -Qi H. L. Oases, at 106 ; Valente v. Gihhs, 6 C. B., N. S. at 286, per Bj-les, J. ; Gether v. Capper, 15 C. B. at 707. [g) Countess of liothes v. Kircaldy IVaterworks Commissioners, 7 App. Cas. at 706 ; Broom's Legal Maxims, 543 (5th ed.) "Noscitur a Sooiis"; Max- well's Interpretation of Statutes^ 405 and 406 (2nded.). (A) See Ah Eang v. Australasian Steam Navigation Co., cited ^os^, § 243, (i) "Paying," in relation to "con- ditions," meaning performing or satis- fying, see Gray v. Carr, L. E., 6 Q. B. at 552. INTERPRETATION OF. mentioned, payment of freigM, that is, conditions to be performed by tte receiver of the goods, and therefore that an exception of "restraint of princes " (being one in favour of the shipowner {k) ), contained in the charter-party, was not incorporated (Z). Chap. I. § 3. If some of the words of a written agreement, after the whole agreement has been considered (m), are oapahle of more than one interpretation, that interpretation is to be preferred which is least favourable to the party upon whom an obliga- tion is imposed, or in whose favour an exception from, or modification of, an obligation is created by those words (n). See Note I., p. 9. § 4. If a written agreement is capable of two interpretations, that interpretation is to be preferred which is the more con- sonant to reason and common sense (o) or justice {p) . § 5. If the time within which anything is to be done is not Reasonable fixed by the agreement, it is an implied term that it shall be may be im- done within a reasonable time (q) ; if the price or remuneration ^ is not fixed by the agreement, it is an implied term that it shall be a reasonable price or remuneration (r). § 6. — (i.) If a party has by an agreement {see Corollary) The act of God does not [k] See post, § 238. (l) Miissellv. Nieman, 17 0. B., N. S. 163. [m) Mndv. Marshall, 1 B. & B. at 335, lines 6 to 12 ; Zindus v. Melrose, 3 H. & N. at 182, lines 13 to 16 ; 2 Bl. Comm. 380. (») McConnel v. Murphy, L. R., 5 P. 0. 219 ; JDeslandes v. Gregory, 2 E. & E. at 609, per Crompton, J. ; Basti- fell V. Zlmjd, 1 H. & 0. at 395, per Channell, B. ; Taylor v. Liverpool and Great Western Hail. Co., L. R., 9 Q. B. at 549 and 550 ; Hudson v. Ede, L. R., 2 Q. B. at 578 ; Chartered Basils of India v. Netherlands India Steam Navi- gation Co., 9 Q. B. D. at 123, lines 3 to 8 ; Burton v. English, 12 Q. B. D. at 220, lines 11 to 16 ; 222, last 13 lines ; 223, first 2 lines ; 324, lines 5 to 11. (o) Fowhes v. Manchester and London Assurance Association, 3 B. & S. at 929, lines 22 to 28, and 930, lines 2, 3, and 4 ; 32 L. J., Q. B. at 159 ; Fhillips V. Clark, 2 C. B., N. S. 156, at 159, 160, and 102, per Cockburn, 0. J., and at 163, per Orowder, J. ; Blackmore v. North Australian Co., L. R., 5 P. 0. at 45 ; Morris v. Levison, 1 0. P. Div. at 157, last 3 lines, and 158, lines 1 to 12 ; Stewart v. Merchants' Marine Insurance Co., 16 Q. B. D. from line 7 of 623 to first line of 624. See Xirchnerv. Venus, 12 Moore, P. 0. Ca. at 392 and 393. {p) Kish V. Cory, L. R., 10 Q. B. at 559 and 560, per Brett, J. ; at 503, per Amphlett, B. (?) Ellis V. Thompson, 3 M. & W. at 456, per Alderson, B. ; Duthie v. Sil- ton, L. R., 4 0. P. at 143, per Keat- ing, J. See McAndrew v. Adams, cited in 5 164. ()•) AcelialY. Levy, 10 Bing. at 382 ; JEoadly v. McLaine, 10 Bing. 482 ; Valpy V. Gibson, 4 C. B. 837 ; Joyce v. Swann, 17 0. B., N. S. at 102 and 104. b2 Book I. excuse the non-perform- ance of an agreement. WRITTEN MERCANTILE AGREEMENTS GENERALLY. agreed to do a certain thing he is not excused if he does not do it, although prevented from doing it hy the act of God (*■). As to ichat is the act of Ood, see Book III. Part IV. Cliap. II. (ii.) But if from the nature of the agreement it cannot reason- ably be supposed that it was the intention of the parties that the agreement should be.fulfiUed unless some particular specified thing should continue to exist when the time for fulfilment arrived, it is an implied term of the agreement that fulfilment shall be excused if, before any breach of the agreement, fulfil- ment became impossible from that thing ceasing to exist {t). Thus, if there is an agreement for the sale of a certain quantity of a crop to be grown on a particular piece of land, and in conse- quence of the crop failing from blight the seller is unable to deliver that quantity, he is not liable («). Corollary. — " If a party has hy an agreement agreed to do a certain thing." — If a person's liability to do a thing arises not under an agreement but under a duty or obligation imposed by the common law, he is excused if he is by the act of Grod pre- vented from doing it {x). See Note II., p. 143. Thus a common carrier, whether by land or sea, is excused if the goods entrusted to his care are destroyed by lightning {y). § 7. In the interpretation of an agreement a meaning must A meaning must be given to every part be given to every part of it (s) unless one part is inconsistent ment. ° \iiih. another part, or unless the agreement is a general form, («) Paradine v. Jane, Aleyn, 27 ; Lloyd V. Guihert, L. E., 1 Q. B. at 121 ; Wear Commissioners v. Adamson, 1 Q. B. D. at 548 ; 2 App. Cas. at 730 and 751 ; Ford v. Cotesworth, L. R., 5 Q. B. at 547 and 548, per Martin, B. ; Connor v. Spence, i Victorian Law Rep. (L.), at 258 and 259. {t) Baihf V. De Crespigny, L. R., i Q. B. at 185 and 186; Anthon v. Wynne, 14 Ch. D. at 608 ; Connor v. Spence, 4 Victorian Law Rep. (L.), at 260. (») Sorvill V. Coupland, L. R., 9 Q. B. 462; 1 Q. B. D. 258. See Appleby v. Mijers, L. R., 2 C. P. 651 ; approved in Anderson v. Morice, L. R., 10 C. P. at 617. (ic) Wear Commissioners v. Adamson, 1 Q. B. D. at 548 ; per MeUish, L. J., 2 App. Cas. at 750, Unes 7 to 9. (y) Moss V. mil, 2 C. B. at 890, lines 12 to 15 ; Walker y. Guaramtee Associa- tion, 18 Q. B. at 287, first 3 lines ; Nugent v. Smith, 1 C. P. D. at 427 ; Miver Wear Commissioners v. Adamson, 2 App. Cas. at 750. (s) Morris v. Zevison, 1 C. P. Div. at 157, lines 22 to 26 and 30 to 34, and 160, lines 5 to 18. INTEEPEETATION OF. some of tliG provisions of which are inapplicable to the agree- ment to he interpreted («). § 8. When one part of a written agreement is inconsistent with another part, that part which is inconsistent with the general intention of the parties as it appears from the agreement considered as a whole is to be rejected {b), but if neither part is inconsistent with the general intention of the parties as it appears from the agreement considered as a whole, and one part is in writing and the other is printed, the printed part is to be rejected (c), but if both parts are in writing, or both are printed, that part which occurs last is to be rejected (d). § 9. The law of the place where the agreement is made is to govern in its interpretation (e) in the absence of circumstances indicating a different intention ; As, for instance, that it is to be entirely performed elsewhere (/) (■wMch, however, is not necessarily a circumstance indicating such an intention (g) ). As to interpreting charter-parties and bills of lading by foreign law, see § 145. As to recovering under a policy payments made under a general average contribution abroad or in compliance icith foreign law, see Book IF. Part V. Chap. III. Class II. Sub-div. II. (ii. and in.). Chap. I. Rules of in- terpretation when one part is inconsistent with another part. Law of the place where the agreement is made prim3, facie governs the interpreta- tion. (a) Fear son v. Goschen, 17 C. B., N. S. at 373 and 376 ; Gray v. Can; L. E., 6 Q. B. at 536, per Brett, J.; 545, per ChanneU, B. ; 550, per Bram- well, B. ; and 557, per Kelly, C. B. ; Iludgcon v. Temhroke, 2 App. Cas. at 293, hnes 9 to 21. (S) Furnival v. Coombe, 5 M. & G-. 736; 6 So. N. R. 622; JCelner v. Baxter, 36 L. J„ C. P. 94 ; 15 W. R. 278 ; 15 L. T., N. S. 213; L. R., 2 C. P. 174 ; McCoUin v. Gilpin, 5 Q. B. D. 390 ; 6 Q. B. D. 516. {c) Alsager v. St. Katharine' s Bock Co., 14 M. & W. at 798 and 799, per PoUook, C. B. ; and at 797, per Parke, B. ; Mobertson v. French, 4 East, at 136, lines 5 to 20 ; Sinton v. Sparkes, L. R., 2 C. P. at 166, Unes 13 to 16 ; Joyce V. jRealin Insurance Co., L. R., 7 Q. B. at 683 ; Moore y. Karris, 1 App. Oas. at 327, last paragraph ; Dudgeon V. Fembroke, 2 App. Cas. at 293. See ohservations as to agreements, partly written and partly printed: Gray v. Carr, L. R., 6 Q. B. at 529, 531, 536, 650, 553, 555, and 557 ; Cross v. Fag- liano, L. R., 6 Exoh. at 13 and 14 ; Jesscly. Bath, L. R., 2 Exoh. 267. (d) Sheppard's Touchstone, p. 88, Chap, v., rule 7 ; Foe v. Figgs, 2 Taunton, 108. [e) Chartered Mercantile Bank of India T. Xetherlands India Steam l{av. Co., 9 Q,. B. D. at 122, lines 2 to 6, Vol. X. at 540 ; The Fatria, L. R., 3 Adm. & EccL 436, at 458 ; Moore v. Harris, 1 App. Cas. at 331 ; Story's Conilict of Laws, p. 317, sect. 272 ; p. 325, sect. 280 ; Robinson v. Bland, 1 W. Bl. at 259. (/) Lloyd V. Guibert, L. E., 1 Q. B. at 1 22, line 6 from the bottom. (^) Jacobs V. Credit Zyonnais, 12 Q, B. D. 589, at 601. WRITTEN MEECANTItE AGREEMENTS GENERALLY. Book I. Evidence of the surround- ing circum- stances is admissible. Evidence of meaning of words used in a particular business is admissible. Evidence is admissible to add a term to an agree- ment by- usage. //. Of the Evidence admissible in the Interpretation of Agreements in Writing. § 10. Evidence is admissible to show to what person or thing a written agreement refers (A). § 11. Evidence of the circumstances under which a written agreement was made is admissible if) to fill it up where it is silent, and to apply it to the subject-matter to which the parties intended it to be applied {ji), even though one of the parties may not have known of the circumstances if he ought to have known of them (^) ; As, for instance, if they were well known by persons engaged in the grain trade with, a particular port, and the agreement relates to a cargo of grain to he loaded at that port (m). For a case where it teas held that a party teas not bound to know of the usage, see Kirchner v. Yenus, cited in § 284. § 12. Evidence is admissible to show the meaning of any words in a written agreement which are in a foreign lan- guage (■»), or are used in a particular locality or business (o). § 13. Evidence is admissible to show that, by usage in a particular locality or business (such usage being a reasonable one {p)), an agreement is to be read as if it contained an addi- tional term {q), provided that additional term, if inserted in the (h) Schmaltz v. Avert/, 16 Q. B. 655 ; 20 L. J., Q,. B. 228 ; MacdonaU v. longbottom, 1 El. &E1. 977; 29 L. J., Q. B. 256. (i) Morris v. Levison, 1 0. P. Div. at 156, last 2 lines, and 157, first 2 lines ; JllUs V. Thompson, 3 M. & W. 445, at 452, 453, and 457, first 7 Unes ; Hud- son T. £de, L. R., 2 Q. B. at 578 ; L. E., 3 Q. B. at 415 ; Nottingham Jlyde Co. Y. Boltrill, L. R., 8 C. P. at 702, lines 7, 8 and 9 of judgment of Brett, J. ; Wood v. Frieatner, L. R.., 2 Exch. at 68, lines 2 to 10 of judgment of Kelly, C. B. ; Grayy. Carr, L. R., 6 Q. B. at 457, per Bramwell, B. ;^ Iliver Wear C'oimidssioners v. Adamson, 2 App. Cas. at 763. (/c) Sejteldv. Meadows, L. R., 4 0, P. at 600 and 601, per Smith, J. (^) Fostlethivaite v. Freeland, 5 App. Cas. at 613. (m) JECudson v. Ude, L. R., 2 Q. B. at 579, lines 15 to 22 ; L. R., 3 Q. B. at 415. {n) Gether v. Capper, 18 0. B. at 882, per Bramwell, B. (o) Fold y. Maijner, 1 M. & W. 343 ; Folertson y. Jaclcson, 2 C. B. at 427 and 428 ; Fowell v. FLorton, §J 60 and 74; 3 Scott, 110; Spartaliy. Benecke, 10 C. B. at 222 ; Gorissen y. Ferrin, 2 C. B., N. S. 681. {p) Vallance v. Fcioar, 1 Camp, at 506, note ; Gibson v. Crick, 1 H. & C. at 145 ; FLathesing y. Laing, L. R., 17 Eq. at 105 ; Lcuckhart y. Cooper, 3 Bing. N. C. at 107. (?) Spartali y. Benecke, 10 C. B. at 222, last 8 lines, and 223, first 6 lines ; INTERPRETATION OF. agreement, would not be inconsistent with tlae terms which it ^^^^' ^' already contains (r) ; 8ee Note II. p. 9. Even although one of the parties may not have known of the usage, if he ought to have known of it. Ttus where a shipowner, through a London broker conversant with the Bombay trade, made with Manchester merchant a charter- party relating to the loading at Bombay of a cargo of cotton to be delivered at Liverpool, it was held that evidence of a usage at Bombay that freight was to be paid according to the measurement at Bombay was admissible against the shipowner, though it was not shown that he had knowledge of the usage (s). " Evidence is admissible to show that by usage . . . an agreement is to be read as if it contained an additional term." First Corollary. — As an agreement relating to another subject- matter is not "an additional term" of an agreement, evidence of such an agreement is not admissible. Thus, where a vessel had been chartered for a voyage to a foreign port, it was held that evidence of a usage that the charterer was entitled to procure a charter-party for the ship for any voyage from such port and receive the usual broker's commission on the freight payable under such charter-party would be inadmissible; for this would not be adding some incidental matter to the agreement, but imposing on the party who had entered into one agreement another agreement (<). Second Corollary. — As the additional term is part of the written agreement, evidence is not admissible to prove an oral agreement inconsistent with that term. Compare icith Corollary toll. Thus, where it was proved that by the usage in a particular business the buyer is allowed one month's warehouse rent, evidence of an oral agreement that he should be allowed two months' rent was held not admissible (m). Terry v. Barnett, 15 Q. B. D. 308 (s) Buckle v. Knoop, L. R., 2 Exoh. (0. A.) ; Eeyworth v. Knight, 17 C. B., 125 ; Ex. Oh. 333. As to consignees N. S. 298 ; 10 Jvir., N. S. 866 ; Hum- of a bill of lading, who are resident frey v. Dale, post, p. 21 [d), and p. 27, abroad, not being afieoted by a usage 2nd line from the bottom ; Meet v. at an English port of which they have Murton, III. ; Hutchinson v. Tatham, not knowledge, see Kirchner v. Venus, L. R., 8 0. P. 482 ; ijos;;, p. 28. 12 Moo. P. 0. Gas. 361. ^esGreavesY. [r) Cuthlert v. Cumming, 10 Exch. Legg, 9 Ex. 709 ; 2 H. & N. 210 (Ex. at 815; 11 Exoh. at 408; Brown v. Ch.), where London merchants who .Byra«, 3 E. & B. at 715 and 716 ; JTaS employed a Liverpool broker were y. Janson, 4 E. & B. 500, at 509 and held bound by a Liverpool usage. 510 ; Hayton v. Irwin, 5 C. P. D. 130; {t) Fhillips v. Bnard, 1 H. & N. 21. Barrow v. Dyster, 13 Q. B. D. 635. («) Faickesv. Lamb, 31 L. J., Q. B. WRITTEN MERCANTILE AGREEMENTS GENERALLY, Book I. Evidence of oral state- ments is ad- missible in agreements as to insur- ance. A principal not named in the agree- ment may sue and be sued upon it. § 14. Evidence of a statement as to a fact made, or of an undertaking that something shall be done or shall happen given, before the execution of a policy, by the assured to the insurer, which has a tendency to influence the judgment of the insurer as to the nature of the risk, is admissible in the interpretation of the policy (*) : Provided that the statement or undertaking is such that if it were inserted in the policy it would not be inconsistent with the rest of the policy [y). § 15. Evidence is admissible to show that a written agree- ment, not under seal (z), was made on behalf of a person who is not named in it, and on this fact being proved he may sue and be sued upon it as if he had been named in it as a party [a). See § 29. The interpre- tation is for the Court. Jury may determine the meaning of a mercan- tile expres- sion. ///. Of the Persons hj whom Agreements in Writing are to be interpreted. § 16. When evidence is inadmissible in the interpretation of a written agreement, the interpretation is for the Court, and not for the jury (5). § 17. If a mercantile expression occurs in a mercantile agreement, the jury may say what meaning it bears in mercantile language (c). § 18. When evidence is admissible in the interpretation of a 98 ; 8 Jur., N. S. 385 ; 10 W. E. 348. See 1 Ainould, 638 and 539. [x] 1 Amould, pp. 515 and 516 ; Edviards v. Footner, 1 Camp. 530 ; Dcniiistoim t. LilUe, 3 Bligh, 202 ; 2 Duer, Lect. xiv., notes v. and vi. ; Feise v. FarMnson, 4 Taunt, at 641, lines 8 to 11 ; 1 Phillips, p. 279, § 537. {y) Size v. Fktcher, 1 Dougl. 12, cited i7osi!, Bk. IV. Pt. I. Ch. 1. (s) Story on Agency, p. 191, sect. 160 ; p. 490, sect. 422 ; Maclachlan, 353 ; Schach v. Anthony, 1 M. & S. 573. [a] Higgins v. Senior, 8 M. & W. at 844 ; drowning v. Frovincial Insurance Co. of Canada, L. R., 5 C. P. at 272 and 273 ; Calder v. Dobcll, L. R., 6 C. P. 486. (J) Sehn V. Burness, 3 B. & S. at 754, and at 756 and 757 ; Stanton v. Richardson, 45 L. J., C. P. at 82, per Cairns, L. C. (H. L.). {c) Alexander y. Vanderzee, L. E., 7 C. P. 530, per Martin, B., and Blackburn, Mellor, and Lush, JJ. ; Ashforth V. Eedford, L. E., 9 C. P. 20 ; Gorissen v. Ferrin, 27 L. J., C. P. at 32, per Cresswell, J. ; Furness v. MeeJc, 27 L. J., Exch. at 36, per Watson, B. ; Moss V. Sweet, 16 Q. B. 493 (the jury expressed their concurrence in this ex- planation) ; Hutchinson V. Bowlcer, 5 M. & W. at 538 and 542, per Parke, B. ; and 540, per Lord Abinger, C. B. See Fenwick v. Eobinson, 3 C. & P. at 325, lines 8 and 9 ; Stewart v. Mer- chdnta'' Marine Insurance Co., 16 Q. B. D. at 627, lines 18 to 30. IKTERPRETATIOK OF. "9 •written agreement, it is for tlie jury to determine whetlier the ^^^' ^' fact which the evidence has been admitted to prove has been proved, and if the jury find that it has been proved, or when the jury, without evidence, have said what meaning a mer- cantile expression bears in mercantile language, it is for the Court, after having ascertained from the jury to what person or thing the agreement refers {see § 10), or under what circum- stances it was made {see § 11), or what is the meaning of any words (see § 12), or what additional term the agreement is to be read as containing (see § 13), or what meaning a mercantile expression bears in mercantile language (see § 17), (as the case may be,) to interpret the agreement {d). See Note to % 24. Note I., see § 3, p. 3. — The case of bonds is prohahly an excep- tion to the rule stated in this section, as it is said in several old cases that the condition of a hond is to he construed in favour of the ohligor {see Laughter's Case (e), Box v. Day (/), Butler v. Wigge {g), Stanley v. Fearne (/t) ) ; although, of course, the condition of a bond is an exception from or modification of the obligation of the person making the hond to pay the special sum. Perhaps, also, charter- parties and marine policies form a further exception to the above rule{i). Note II., see § 13. — A usage in a particular business may have been so frequently proved in Courts of law that the Courts will take judicial notice of it, and not put parties to the useless expense of proving it over and over again {J). ((Z) SiitcUnson v. Bowker, 5 M. & W. IS to 24, and 627, lines 30 to 32. 535 ; Behn v. Burness, 3 B. & S. at {j) Ex parte Fowell, 1 Ch. D. at 756, last 4 lines, and 757, first 3 Hues. 506, last paragraph ; Lohre v. Atkin- [e) Coke's Rep. Pt V. 22a. son, 3 Q. B. D. at 562, lines 5 to 8 ; (/) 1 Wilson, 61, per Lee, C. J. Crawcour v. Salter, 18 Cli. D. 30 ; Ex (g) 1 Wms. Saunders, 66 ; 16 Vin. parte Brooks, 261, at 263 ; Ex parte Abr. 59, Obligation L. Turquand, In re Parker, 14 Q. B. D. (7j) 2 Lev. 137. 636 (0. A.) ; Ex parte Reynolds, 15 Q. (i) Stewart v. Merchants^ MarUte In- B. D. at 184. surance Co., 16 Q. B. D. at 626, lines 10 WRITTEN MERCANTILE AGREEMENTS GENERALLY. Book I. CHAPTER IT. Of Agreements which aee not binding because they are NOT WHOLLY IN WrITING OR ARE NOT SiGNED, AND OF THE Admissibility of Evidence to show that an Agreement IS not binding, or that a Writing, which apparently IS an Agreement, is not an Agreement. Strictly speahing, this Chapter is out of place in a work on the interpreta- tion of agreements, hut it is inserted lest the rules in the first Chapter should possibly he supposed hy the reader to apply in cases in which they are not applicable. When names § 19. If a writing states the terms of an agreement but not of the parties r\ j j.i i* t l_^ i • j? i are not stated, ^ne names 01 the parties, and the agreement is one oi a class which by law is not binding unless it is in writing, there is no binding agreement (a). Thus, ■where the defendant, Spooner, had agreed to purchase from the plaintifl, Vandenhergh, goods above the value of ten pounds and liad signed the following writing : — " D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vanden- hergh, now lying at the Lyme Cobb, at Is. per foot " — it was held, that the defendant was not liable to be sued for not accepting the marble, as the writing did not mention the plaintifE's name as seller, but referred to it merely as part of the description of the goods (&). As such agreements as the above, even when they are not by law required to he in luriting in order to be binding, appear on the face of the writing to be incomplete, unless supplemented hy oral evidence, they do not fall within the scope of this viork, which treats only of writings which, prima facie, are complete agreements. Certain agreements must be signed. § 20. A writing which would otherwise be a binding agree- ment will not, in the case of certain classes of agreements, bind (a) Champion v. rinmmer, 1 B. & P. 252 ; inUiams v. Lake, 2 E. & E. 349 j Williams v. Jordan, 6 Ch. D. 517. (i) Vandenbergh v Spooner, L. R., 1 Ex. 316. WRITINGS WfllCH ARE NOT HINDING AGREEMENTS. 11 a party who has not signed it, unless (and even then only in the ^^^^- ^^' case of some of such classes) the agreement has been partly performed. Thus, an agreement for the purchase of goods for the price of ten pounds or upwards, which is not signed by the buyer or his agent, is not binding upon the buyer unless he has received part of the goods or paid part of the price. § 21. Evidence is admissible to show that an agreement is Agreements not binding on one of the parties because that party was under ing on minors age (if the agreement be one which is not binding upon a person ^f^oontrary to under age), or was a married woman, or was, to the knowledge la^or of the other party, intoxicated or insane at the time when it was made, or was induced to enter into it by the duress (c) or fraud of the other party, or on either party because it is con- trary to law, morality, or public policy ; or that an agreement or if the further per- which was binding at the time when it was made has ceased to formanoe be binding because, in consequence of something which has Jiggai. ^ since happened, the performance, or the further performance of the agreement, would be contrary to law. As in the case of a charter-party by which the charterer, being a British subject, has agreed to load a cargo at a port in a foreign country, and subsequently, before the cargo is loaded, war is de- clared between Britain and that country (d). Corollary. — As it is not contrary to the law of England to perform an agreement, the performance of which is forbidden by the law of a foreign country (e), evidence that the performance, or the further performance of an agreement, would be contrary to the law of a foreign country (unless the agreement contains a provision that the performance of it shall be excused in such a case), is not admissible (/). See Note to % 235. § 22, Evidence is admissible to show that a writing which Evidence is apparently is, really is not, a binding agreement, because the sw^that a° agreement is one of a class which by law is not binding unless P^^°® 7^^ ° ./ D agreed upon. {c) That is, actual Tioleuce or a threat S. 655. thereof. (/) Barker v. Hodgson, 3 M. & S. [d) Esposito V. Bowden, 7 E. & B. 267 ; Esposito v. Bowden, 7 E. & B. 763 ; The Teutonia, L. E., 3 Adm. & at 783 ; Maolachlan, pp. 679 and 580 ; Eool. at 413. Jacobs v. Credit Lyonnais, 12 Q. B. D. (e) Ex parte Chavaase, i De G., J. & 589. 12 .WRITTEN MERCANTILE AGREEMENTS GENERALLY. Book I. Evidence is admlBsible to show that a writing' was not intended to be an agreement. it is in -writing, and, although a price was agreed upon, the price is not stated in the agreement ((/). " although a price teas agreed tipon." Corollary. — If no price was agreed upon, the agreement is binding, because the law implies that the parties agree that a reasonable price shall be paid if there is no actual agreement as to price. See § 5. See Note, p. 14. § 23. Evidence is admissible to show that a writing which apparently is, really is not, an agreement, because the writing never was intended to be an agreement (//) between the persons who apparently are parties to it. Thus, wliere A. and B. had signed a charter-party wHch was drawn and signed in such, a manner that, unless evidence to the contrary had been given, B. would have been liable upon it as a principal, he was held not liable, because before it was signed he and A. had agreed that he was not to be personally liable upon it, and was to sign it only in order to bind his principal (i). So, where an oral agreement had been made for the sale of a horse, warranted quiet, and the bu3''er shortly afterwards paid the seller the price, and received from him the following writing: — "Bought of G. Pink a horse for the sum of 11. G. Pink ; " it was held, in an action for the breach of the wari-anty, that evi- dence of the giving of the warranty was admissible, because the writing was drawn up merely as a receipt, and was not intended to contain the terms of the agreement {j). But if the writing had been intended as an agreement, evidence of the tcarranty would not have heen admissible (li). Thus, whore there was an oral agreement for the sale of a horse, warranted sound, and the seller delivered to the buyer a writing commencing "sold to," and which contained all the necessary ele- ments of a contract, the fact of the sale, the names of the parties, a description of the horse and the price, it was held, by the Supreme Court of the Colony of Victoria, that its containing in addition a receipt for the money did not make it a receipt only, or prevent it from being the best evidence of the contract, and that as it con- ((/) Acehal v. Levy, 10 Bing. 376. See also Goodman v. Griffiths, 1 H. & N. 574. ■ ih) SoUing y. BlUott, 5 H. & N. 117. (i) Wake v. Samp, 6 H. & N. 768 ; 1 H. & C. 202. U) Mien v. Fink, 4 M. & W. 140. [k) Allen V. Pink, 4 M. & W. at 144, lines 17 to 24. WEITINGS WHICH AEE NOT AGREEMENTS, 13. tained no mention of a warranty, the verdict in favour of the buyer Chap. II. in an action founded on the oral warranty could not be sus- tained {I). § 24. Evidence is admissible to show that a writing purport- Evidence is ■ 1 I • I J 1 -i admissible to mg to be an agreement is not an agreement because it was show that a agreed (either orally («) or in writing) {see Note heloio) before it ^o^^Jo be^''^^ was signed, that it should not have any operation until some- operative as an agreement thing had been done or had happened. until some- Thus, a writing which is in the form of an agreement of sale done° and is signed by both parties will not bind either of them, if, before it was signed, they agreed that it should not operate as an agree- ment, unless a third party should approve of the thing to be sold and he has not done so (n). Note. — If the evidence adduced to show that the loriting is not to operate as an agreement until something has been done is oral, it is for the jury to determine whether the loriting is or is not an agreement. If the evidence is in writing, (as, /or instance, if the writing alleged to he an agreement is enclosed in a letter which if is contended shows that the writing was signed only on condition of something heing done), it is for the Court to determine whether the doing of the thing was necessary to make the writing an agreement (o). Corollary. — " that it should not have any operation, until," 8fc. — If the writing ever has operated as an agreement, evidence of a prior oral agreement that the agreement was to be suspended or terminated if something should or should not be done or should or should not happen (^) is inadmissible. See § 1. § 25. Evidence is admissible to show that a writing purport- ing to be an agreement is not an agreement, because there was no agreement between the persons named therein as parties as to the subject-matter of the writing. Thus, where a writing purported to be an agreement for the sale of goods "to arrive ex Peerless from Bombay," it was held that the writing was not an agreement, because there were two ships of the name of Peerless, and the seller meant one of those ships, and the buyer another (g). (l) McDevitt V. Kattengall, 5 Vio- {p) WalUs v. Zittell, UG.B., T!^. S. torian Law Reports (L.), 89. at 375, paragraph commencing: "It (»») Davis V. Jones, 17 C. B. 625. was contended ;" Abrey\. Crux, L.R., {«) Pym V. Campbell, 6 B. & B. 370. 5 0. P. at 42, last 4 lines, and p. 43 ; (o) Farness v. Mesk, 27 L. J., Exch. per Bovill, C. J. 34. (?) Saffles v. Michelhaiis, 2 H. & 0. 14 Book I. WRITTEN MERCANTILE AGREEMENTS GENERALLY. § 26. Although, there may be a writing which purports to he, and if there were no other writing would he, an agree- ment (r), evidence that there is another writing which also purports to be the agreement is admissible, and if there is a material difference, not only in appearance but in reality, between the two writings there is no agreement («). A "sold note" described the goods agreed to be sold as " Dunlop, Wilson & Oo.'s pig-iron;" the "bongbt note" was also put in evidence, and it described the iron as " Scotch pig-iron." It was held that the two writings did not, nor did either of them, consti- tute an agreement, the difference between them being material, since the one " note " would be complied with by the delivery of Scotch iron of any person's manufacture, while the other tied the parties down to iron manufactured by Dunlop, Wilson & Co. (s). It is only " if there is a material difference ... in reality beticeen the two ivritings" that there is no agreement. Therefore, where on a sale of oil the oil was to be delivered, according to the bought note, from the Speedy or Charlotte, but according to the sold note from the Speedy and Charlotte, it was held that there was an agreement, notwithstanding this apparent difference, because evidence was given (see § 13) that, according to the usage of the port where the contract was made, where two vessels are named in the contract the oil may be delivered from either, and the two notes therefore, when explained by this evi- dence, had the same meaning (t). Note, see § 22, p. 12. — The law deems oral evidence so untrust- worthy as compared with ivritten evidence, thaf it excludes oral evidence of the price if it is offered for the purpose merely of supplyitig a term as to ivhich the agreement is silent, and yet so trustworthy that it admits it for the purpose of upsetting an agreement which on the face of it is a good agreement. 906. See also Wake v. Sarrop, 1 H. (s) Sieveright v. Archibald, 17 Q. B. & C. at 209, judgment of Willes, J. ; 103. and Smidt v. Tiden, L. R., 9 Q. B. (i!) Sold v. Bat/ner, 1 M. & W. 343. 446. See also Seyicorth v. Knight, 17 0. B., (r) Hawes v. Forstei; 1 Moo. & Rob. N. S. 298 ; Kempson v. BotjU, 3 H. & 368; Partm v. Crofts, 16 C. B., N. S. C. 763; 34 L. J., Exoh. 191. 11 ; Benjamin, 256. ( 15 ) OHAPTBE III. Of a Sum named in an Agreement being recoverable as Liquidated Damages, or being held to be merely a Penalty. § 27. A provision in an agreement that if one party does not perform tlie thing, or one or more of the things, which he thereby agrees to perform he shall pay a named sum to the other party does not, if the thing, or one of the things, to be performed is the payment of a sum of money (a), or if the damages arising from the non-performance would be capable of accurate valuation (b), or probably if they would manifestly be insignificant (c), entitle the other party in ease of non-per- formance to recover the named sum (d) ; unless, perhaps, the named sum is a deposit (e). § 28. The circumstance that the named sum is described as being liquidated damages, or as being a penalty, does not determine the question whether the named sum is or is not recoverable in case of non-performance (/). Thus, where one of the things on non-performance of -which the named sum was to become payable was the payment of a small sum of money, it was held that the named sum was not recover- («) Astley V. TFeldon, 2 B. & P. at 8 from the bottom. 354, lines 22 to 24 ; Kemble v. Tarren, [d) Kembk v. Farren, 6 Bing'. 141. G Bing. at 148, lines 22 to 30 ; Thomp- [e] Wallisy. Smith, 21 Ch. D. at 258, son V. Httdson, L. E., 4 H. L. at 15 3rd paragraph, and 250, 251, 252. and 28 ; WalUs v. Smith, 21 Ch. D. at (/) Kemble v. Farren, 6 Bing. at 256 and 2G8. 147, last 4 liaes, and 148 ; Jietts t. (i) AtJci/ns V. Kinnear, 4 Exoh. at Biirch, 4 H. & N. at 511, lines 10 to 4 783, line 6 from the bottom. from the bottom ; DimeehY. Corlett, 12 [c) Thompson v. Hudson, L. E., 4 Moore, P. C. Cas. at 229 ; Wallis v. H. L. at 30, Unes 11 to 16 ; WaUis v. Smith, 21 Oh. D. (C. A.) at 256, lines Smith, 21 Ch. D. 243, at 257, line 10 17 to 27; Gleeson v. Kingston, 6 Vio- from the bottom; 258, first 5 lines; torian Law Eep. (L.), at 246. 270, lines 7 to 17 ; and 275, lines 12 to- 16 WRITTEN MERCANTILE AGREEMENTS GENERALLY. ^""^ ^' able, although it was by the agreement declared to be " liquidated and ascertained damages, and not a penalty or penal sum, or in the nature thereof "(g). So, -where a shipowner guaranteed that the vessel would sail with, if not before, any other vessel, "under penalty of forfeiting one-half the freight of the goods,'' it was held that the half freight was recoverable, although no actual damage was proved " (h). iff) Kemhle r. Farren, 6 Bing. 141. (A) Sparrow v. Faris, 7 H. & N. 594. ( 1~ ) CHAPTEE IV. Or Agreements made by Agents. Prepatoey Note. As this worh is confined to agreements falling ivitJiin the four classes enumerated in the title page, it is not within its scope to treat of agreements hy which agency is constituted, or of those matters which depend upon the nature of that class of agreements, that is to say, the rights of agents against their principals, and of principals against their agents, and the proof of agency when one principal seeks to malce the other principal liable upon an agreement made hy a person acting as the agent of the latter. This chapter, therefore, treats only of agreements made iy agent with agent, or hy a prin- cipal with the agent of the other principal. The only questions which can arise upon the ivording of such agreements are whether the principal or whether the agent can sue cr he sued upon them. Division I. Of the Rights and LiaUlities of Principals. § 29. A principal may, except in the cases mentioned in the A principal next two sections, sue and be sued («) upon an agreement, not beTued^^n under seal {b) made by his agent, although there may be nothing ^^ agreement in the agreement to show, and whether it was (c) or was not {d) agent, al- known by the other party, that there was a principal (e). not named in it. The above rule is almost a repetition of that given i»i § 15, hut the author has thought it as well to insert it in this Chapter. As to the circumstances under which the principal's right to sue upon an agreement made hy his agent ceases, see Appendix to this Chapter. (a) "The right to sue and the lia- (c) Calder y. jDohell, L. E., 6 C. P. bility to be sued upon a contract are 486. lecigTocaX," ElUnger Actien-Gesellschaft {d) Chrislofferson t. Hansen, L. E., V. Olaye, L. E., 8 Q. B. at 316 and 7 Q. B. at 513, lines 4 to 10; Arm- 317, per Blackburn, J. ; and 318, per strong v. Stokes, L. E., 7 Q. B. at 603, Lush, J. last 6 lines. {b) Story on Agency, sect. 160 ; (e) Browning v. Provincial Insurance Boraley v. Hush, cited ia Harrison v. Co., L. E., 5 U. P. at 272, last 4 Hnes. Jachson, 7 T. E. at 209. W. C 1^ WRITTEN MERCANTILE AGREEMENTS GENERALLY. § 30. A principal resident abroad cannot sue or be sued upon d°^s^nn't" ^^ agreement to buy or sell goods (/) made by his agent unless sue or be sued he has expressly authorized the agent to make him liable upon on agreements ., , s of sale. it(^). Note. — Whether this is a rule of law, or merely an inference of fact which a jury {or the Court when it has power to draw inferences of fact) ivill always draw, is perhaps douhtfuKJi). Corollary. — As the above rule applies only to agreements to buy or sell [i), a person resident abroad may sue persons whom his agent has employed to sell his goods for the proceeds of the goods, or for money received by them under a policy on the goods effected by them, although they knew only that the agent had a principal, and not his name (/<:). It is foreign to the purpose of this Chapter to consider under what circum- stances the persons sued may have a set-off for money due to them ly the agent. As to this see Kaltenbacli v. Lewis (Z), and the Appendix to this Chapter. If the agree- § 31. If the person who makes the agreement is really an that the^agent ^gent, but the agreement states expressly, or by necessary makes it on implication, that he makes it on his own account, the principal his own ao- ^ ' _ > i jr count, the cannot sue upon it. principal can- not sue upon Thus, where a charter-party purported to be made "between A. B., owner of the good ship or vessel called, &c.," and the de- fendant, and was signed by A. B., it was held, in an action brought by the principal, that evidence that A. B. was not the owner, and that he had signed the charter-party not as principal, but as agent for the plaintiff, was inadmissible (m). (See § 1.) (/) Maspons y Sermano v. Mildred, {h) Sulton v. Bulhck, L. E., 8 Q. B. 9 Q. B. D. (C.A.), at 542, last 3 lines; at 334 ; (in Exch. Ch.), 9 Q. B. 572. 643, first 2 lines (in H. L., 8 App. (i) Maspons y Sermano v. Mildred, 9 Oas. 874). Q. B. D. from 541, line 20, to 543, (17) Smyth V. Anderson, per Maule, J., line 6. 7 C. B. at 33 ; Elbinger Aetien-Gesell- [k) Maspons y Hermano v. Mildred, 9 schaft V. CUtje, L. B., 8 Q. B. at 316, Q. B. B. 530 ; 8 App. Cas. 874. 317, 318 ; Sulton v. Bullock, L. R., 8 (?) 24 Ch. D. 54. Q. B. at 334 ; in Exch. Ch. L. E., 9 (m) SimUe v. Sunter, 12 Q. B. 310. Q. B. 572 ; Ex parte Miles, 15 Q. B. See Schmaltn v. Avery, 16 Q. B. at D. at 42 and 43 ; Story on Agency, 660 ; Wake v. Sarrop, 1 H. & C, at p. 659, sect. 423; and p. 584, sect. 205. 448. AGREEMENTS MADE BY AGENTS. 19 Chap. IV. Division IT. Of the Rights and LiaUlities of Agents. For Illustrations of this Division, see pp. 22 — 28. § 32. An agent may sue and be sued {n) upon a -written An agent may agreement made by bim, altbougb tbe otber party knows, and sued upon an even altbougb tbe agreement states tbe fact, tbat be is an agent, ^''de^y^hiin, and tbe name of bis principal, unless tbe agreement sbows tbat l:^i°^!^-?'*j?{''^'' be did not intend to bind bimself (o) . not intend to bind himself. As to an agent not being Halle because before lie signed the agreement he had agreed with the other party that he was not to be personally liable upon it, see Wake v. Harrop, § 23. § 33 (i.) If an agent signs an agreement in bis own name When an ■witbout sucb a qualification as "per procuration" {p), or "as aSlyUaWe agent for" {q), or like words, be is personally liable upon tbe onanagree- agreement, unless it contains words wbicb clearly sbow tbat be did not intend to bind bimself personally (r). (ii.) And even if be signs witb sucb a qualification (s), or even if tbe body of tbe agreement states tbat be makes it as agent of, or for, or on bebalf of anotber [t), be is personally liable upon it if by tbe terms of tbe agreement tbe agent is to do wbat is to be done by one of tbe parties to it. § 34. If in tbe interpretation of a written agreement it is doubtful wbetber tbe agent is personally Kable upon it tbe fact tbat bis principal resides abroad, altbougb not conclusive, is yet a circumstance wbicb tends to sbow tbat tbe agent is liable. Because it is probable tbat a contracting party intends to bave a person resident in* tbe country upon wbom be can call for perform- ance of tbe agreement {u). (») Elbinger Actien-GoseUschaft v. (s) Lennard v. SoUnson, 5 E. & B. L. R., 8 Q. B. at 316, 317, and 125. 318. (t) Tanner v. Christian, 4 E. & B. (o) Parker v. Winlow, 7 E. & B. at 591 ; Norton v. Serron, Ry. & M. 229 ; 947 ; 27 L. J., Q. B. at 52, per Lord AppUton v. Sinks, 5 East, 148. See Camphell, 0. J. also Wilson v. Zultieta, 14 Q. B. 405 ; [p) Farker v. Winlow, 7 E. & B. at and Mahony v. KekuU, 14 C. B. at 398 947, line 14 ; 949, line 14. and 399. (17) Gooko V. Wilson, 1 C. B., N. S. [u) Wilson v. Zulueta, 14 Q. B. at at 156, per Crowder, J., and 162. 414, 416 last 4 lines, and 417 ; Mahony [r] Cooke t. WiUon, 1 C. B., N. S. v. KehuU, 14 C. B. at 397 and 398, per at 162 ; Price T. Walker, L. K., 5 Jervis, C. J.; Paiee v. Walker, L. R., Exoh. at 175; GadA w. SougMon, 1 5 Exch. at 177, 178, per Pigott, B. ; at Ex. D. at 360, per Mellish, L. J.; 178, perCleasby, B. ; XCTMaj-) Benjamin, 620to631; Eichhokv. 513, lines 7 and 6 from the bottom; Bannister, 17 C. B., N. S. 708. Ward v. JECoiis, 3 Q. B. D. at 161, (c) Mm'ley v. Attenhorough, 3 Ex. lines 17 to 23, per Brett, L. J. 64 Book II. WEITTEN AGREEMENTS FOK THE SALE OF GOODS. Part III. OF DELIVEEY AND ACCEPTANCE, conditional. CHAPTER I. Of Conditional Agreements to deliver. A sale of § 94. An agreement for the sale of goods " to arrive by," arrive" is Or " on arrival of," a vessel, is conditional on two things, first, the arrival of the vessel, and, secondly, the goods being on board on her arrival (a). Therefore, -where the vessel had on board at the time of the agree- ment of sale the quantity of goods sold, but in consequence of the subsequent Imia fide transfer by the seller's agent abroad of a part of them to another vessel of the seller's, she arrived with a less quantity than that sold, it was held that the seller, who was sued for not delivering, was not liable (b). Note. — In the judgment in Gorrissen v. Perrin(c) it is said: " Without desiring at all to interfere with the rule laid down in the cases in which it has heen held that in a contract for the sale of goods ' to arrive,' or 'expected to arrive,' hy a particular ship, the alligation (a) Johnson v. Macdonald, 9 M. & W. sellers, who were sued for not deUver- 600. Where goods were sold "on ing, had not warranted the arriyal of arrlTal, to be delivered by the sellers the oil by the 30th of June : Alewyn v. on a wharf to be appointed by the Fryor, Ry. & M. 406. buyers, with aU convenient speed but [b) Lovatt v. Hamilton, 6 M. & W. not to exceed the 30th day of June 639, cited post, § 101, as to another next," and the goods arrived on the point. 4th of July, it was held, that the (c) 2 0. B., N. S. at 700. CONDITIONAL AGREEMENTS TO DELIVEE, 65 ts conditional on ike double event, first of the arrival of the ship, and secondly of the goods being on board, we may, in passing, observe that we think it has been carried far enough, and that its effect may have been to introduce uncertainty into contracts which were not intended to be contingent on accidental circumstances, such as the transfer of the cargo from one ship to another." § 95. The rule of interpretation stated in the preceding section will prevail, although its effect may be to render certain words in the agreement superfluous. Below tie signatures to an agreement for tlie sale of goods, to arrive by a vessel named, was written tie following memorandum : " Should tie vessel be lost, tiis contract to be void." Tie vessel arrived, but witiout any goods of tie kitid sold on board. It was held, tiat tie words of tie memorandum did not make tie agree- ment one to deliver tie goods unless tie vessel was lost, and tiat, tierefore, as tie goods iad not arrived tie seller iad not broken iis agreement [d). § 96, It would probably be held that in an agreement for the sale of goods "to arrive" there is not, in addition to the two conditions mentioned in § 94, the further implied (e) con- dition that the seller has power to dispose of those goods. To a declaration alleging tiat tie defendants agreed to seU to tie plaintiff 100 iogsieads of oil, expected to arrive by a vessel named, and tiat altiougi tie said 100 iogsieads of oil did arrive by tie said vessel, yet tie defendants had not delivered tie said 100 iogsieads, tie defendants pleaded a plea tiat altiougi 100 iogsieads of oil arrived by tie said siip, yet tiat siewas a general siip, and tiat only 34 iogsieads of tie oil were shipped for or on account of tie plaintiff, wiici 34 tiey iad tendered to him. Tiis plea was demurred to, and tie defendants' counsel, finding tiat tie impression of tie Court was against Mm, obtained leave to amend it (/). In commenting upon tiis case tie Court of Common Pleas ob- -served: "It may well be tiat if a man takes upon himself to dispose of goods expected to arrive by a certain siip, as goods over wiici he has a power of disposal, and the goods afterwards arrive not consigned to him, he shall be precluded from saying tiat in addition to tie contingency of tieir arrival, tiere was implied tie furtier contingency of tieir coming consigned to iim; ie ias dealt [d) Johnson v. Maedonald, 9 M. & express condition that the seller should W. 600. be bound to deliver only such goods («) In Seywwd r. Scougal, 2 Camp. as he had power to dispose of. 56 (referred to by Maule, J., in Fischel (/) Fischel v. Scott, 15 0. B. 69. V. Scott, 15 C. B. at 75) there was an W. F Part III. Chap. I. 66 WRITTEN AGEEEMENTS FOB THE SALE OF GOODS. Book II. Sale of goods of a particular species pro- vided the same be shipped. To be de- livered on the arrival of a vessel. with them as his own, and cannot be allowed to import into the contract a new condition, viz., that the goods on their arrival shall prove to he his" (g). Note. — In order to prevent any such question as that above consi- dered from arising, it is not uncommon to introduce into an agreement for the sale of goods to arrive such words as "provided the same he shipped for seller's account" {K). § 97. An agreement for the sale of a cargo of a particular species of goods, provided the same be shipped, is conditional on a cargo of goods of that, species being shipped. Therefore, where the defendant agreed to sell to the plaintiffs a cargo of 400 tons, provided the same be shipped for seller's account, more or less, Necrensie rice, per British vessel Minna, and upwards of 400 tons of rice were shipped for the defendant's account, but such lice was not Necrensie rice, but rice of another species, it was held that the defendant was not bound to deliver the rice to the plaintiffs {%). § 98. If an agreement for the sale of goods to arrive states that the goods are on board the ship, and the ship arrives without them, the seller is liable for not delivering them, if they never were on board {Jc) ; but not if the goods, having been on board, did not arrive owing to perils of the sea or other causes not arising from the seller's default {T). § 99. An agreement for the sale of goods to be delivered on the arrival of a vessel is conditional only on the arrival of the vessel. Therefore, where the defendants agreed to sell to the plaintiff fifty cases of tallow, to be paid for in cash so many days after finishing the landing thereof, to be delivered on safe arrival of a vessel named, it was held that the defendants were liable for not delivering, as the vessel had arrived, but without the tallow (m). {g) Gorrissm v. Terrm, 2 C. B., N. S. at 701. (A) Vernedev. Weber, 1 H. &N. 311, at 316, note ; Gorriasen v. Ferrm, 2 C. B., N. S. at 693. {i) Vernede v. Weier, 1 H. & N. 311. l/c) Gorrissen v. JPerrin, 2 C. B., N. S. 681. {I) lb. at 700, lines 8 to 4 from the bottom. A different opinion is, how- ever, apparently expressed in Benja- min, 567, where it is said, "Where the language asserts the goods to be on board of the vessel named, there is a warranty that the goods are on board, and a single condition precedent, to wit, the arrival of the vessel." (m) Sale v. Sawson, 4 C. B., N. S. 85. ( 67 ) Part III, CHAPTER II. Or Information to be communicated by the Seller after THE Sale and before Delivery. § 100. If an agreement of sale provides that the seller shall An engage- inform the buyers of the name of the vessel by which the goods ^^ the™" are shipped as soon as he knows it or within a certain period it ^^y^^ °f ^^^ ^ '■ ^ name ot the is a condition {see § 41), that he shall inform them of it as soon vesael as soon as he knows it, or within the period named (a). knows it is a condition. Corollary. — A condition that seller shall declare the name of the vessel is fulfilled if the seller informs the broker who was employed to purchase of the name, when by usage the name is declared to the broker, although the broker does not inform the buyer, and the latter is ignorant of the usage (b). 8ee § J 3. As to giving notice of the place of deliver]/, see §§118 and 119, (a) Bush T. Spmee, 4 Camp. 529 ; 246, lines 16 to 19 ; and 249, lines 24 Graves t. Legg, 9 Ex. 709 ; Gilhes v. to 34. Zeoning, 4 C. B., N. S. at 502, first 7 (J) Graves v. Zegg, 11 Ex. 642; 2 lines ; Reuter v. 8ala, 4 0. P. D. at H. & N. 210 (Ex. Oh.). f3 63 WRITTEN AGREEMENTS FOR THE SALE OF GOODS. Book II. OHAPTEE III. Whether there is any Obligation to deliver or accept more or less than the quantity sold. § 101. If an agreement for the sale of goods is conditional, and the condition is without any default on the seller's part ful- filled as to a part only of the goods, he is not hound to deliver that part (a). Thus, where there was an agreement for the sale of fifty tons of oil, to arrive by a vessel named {see § 94), and only seven tons arrived, it was held that the buyer was not entitled to claim de- livery of those seven tons (J). Compare with § 258. § 102. The buyer is not bound to accept a greater or a less quantity than that mentioned in the agreement (c). An agreement was made for the sale of about twenty-five tons of pepper, November shipment, per vessel or vessels, the name of the vessel or vessels and full particulars to be declared within sixty days from the date of the biU of lading ; two declarations were made ; the first included among the twenty-five tons to which it related five tons which had been shipped in December ; and the second declaration (the first having been objected to on the ground that the whole quantity was not a November shipment) substituted for the five tons shipped in December a similar quantity which had been shipped in November, but this declaration was not made until more than sixty days after the shipment (d). It was held that the buyer was not bound to accept even the twenty tons which had been shipped in November, and as to which a declara- tion had been made within sixty days after shipment (e). {a) Vernede v. Weber, 1 H. & N. at at 244, lines 7 to 17. 319. (<2) This case is set out thus fully, as (i) Lovatt V. Samilton, 5 M. & W. it is referred to in the next section. 639 ; cited mU, § 94. (e) MeuUr v. Sala, i 0. P. D. (C. A.), {c) Heater v. Sala, 4 0. P. D. 239, 239, EXCESS OR BEFICIENCY IN QUANTITY, 69 As to the liability of the buyer under an agreement for the sale of a cargo mf^' Vfj to accept a certain quantity where the cargo exceeds that quantity, see Borrow- ' maji V. Drayton, cited in § 86. § 103. Under an agreement for the sale of goods abroad, to Sale of goods be shipped within a certain time by different vessels (/), the by different buyer is bound to accept a parcel which was shipped in time, ^^' although the rest of the goods are not shipped in time (g) ; At all events, if at the time the buyer is called on to accept it, it is not known that the rest of the goods wUl not be shipped in time (h). Note. — It would appear from the commentary of Lord Justice Cotton upon Brandt v. Lawrence, that the rule stated in this section should, in his opinion, he qualified by the insertion of such words as "and to be paid for on receipt of the shipping documents" after "vessels " (»). See, however, the judgment of Lord Justice Brett (k). As to an agreement for the sale of " a cargo " of goods, see § 86. As to other goods being tendered along with those bought, see §115. APPENDIX. Of the Effect of the Breach of the Agreement in respect of one Instalment upon the Liability of the Seller to deliver, or of the Buyer to accept, the remaining Instalments. The question whether the seller is hound to deliver, or the buyer to accept, the remaining instalments of goods after there has been a breach of the agree- ment by the other party in respect of an instalment, does not properly fall within the scope of a work on the interpretation of agreements, as the question turns upon something done after the agreement has been made. Nevertheless it may be convenient to state here the ruies of law upon the subject. (I.) Where an agreement of sale provides that the goods are to (/) See Note. the sentence. {g) Brandt v. Latmence, 1 Q. B. D. (i) Renter v. Sala, 4 C. P. D. at 344. 250, last 17 lines; and 251, first 5 (A) Eeuter v. Sola (cited in the pre- lines. ceding section), 4 0. P. D. at 245, (i) lb., at 258, lines 4 to 10. from "At" in line 14 to the end of 70 Book II. WRITTEN AGREEMENTS FOR THE SALE OF GOODS. . he delivered by instalments, and that each instalment is to be paid for on, or at a certain period after, delivery, the fact that the buyer did not pay for, or that he did not take delivery of, an instalment [l), when he ought to have done so, or that he did not take delivery of such a quantity as he ought to have taken delivery of{m), does not (unless the agreement so provides) entitle the seller to refuse to deliver the remaining instalments, if the conduct of the buyer has not been such as to justify the seller in believing that the buyer does not intend to perform the agreement in future (w). (II.) Where there is such an agreement, the fact that the seller did not deliver an instalment when he ought to have done so, or that when he delivered an instalment he delivered a less quantity of goods, or goods of a icorse quality, than he ought to have delivered, does not {unless the agreement so provides, or unless the delivery of the goods after the time wlien they ought to have been delivered, or of goods less in quantity or icorse in quality than ought to have been delivered, frustrates the whole object of the agreement) (o) entitle the buyer to refuse to accept the remaining instalments, if the conduct of the seller has not been such as to justify the buyer in believing that the seller does not intend to perform the agreement in future {p). [Vj See Jonassotm v. Young, cited in (o) Jonassohn v. Yomtg, 4 B. & S. at tlie next paragraph ; Morgcm v. Sain, 299, last 9 lines ; and 300, first line ; L. E., 10 C. P. at 25, the third sen- Freeth v. Burr, L. R., 9 0. P. at 214, tenoe in Brett, J.'s judgment. lines 3 to 7. See Bradford-v. Williams, (m) Simpson v. Crippin, L. R., 8 L. R., 7 Ex. 259. Q. B. 14. {p) Jonassohn v. Young, 4 B. & S. («) Withers v. Seynolds, 2 B. & Ad. 296 ; Freeth v. Burr, L. R., 9 C. P. at at 885, judgment of Patteson, J.; 213, last 5 liuea, particularly the words Freeth v. Burr, L. R., 9 0. P. 208; "non-delivery on the other" in the Bloomer v. Bernstein, L. R., 9 0. P. third line from the bottom ; and 214, 588 ; Morgan v. Bain, L. R., 10 C. P. first line and first word of the second 15 ; Mersey Steel and Iron Co. y. Nay- Hue. lor, 9 Q. B. D. 648 ; 9 App. Gas. 434. ( 71 ) Part in. OHAPTEE IV. Of the Time of Delivery. Compare with the Chapter on the Time when the Price is to be paid, pp. 81 and 82. § 104. If the agreement mentions no time within which the If no time for goods are to be delivered, the seller must deliver (a), and the mentioned in buyer must accept {b), them (in the absence of any usage of ^ent^e" trade fixinaf the time for deliverina:) within a reasonable time. s^ll^"" ™"st ° °' deliver -within Thus, where tlie agreement stated that the goods were "to he a reasonable paid for in cash in one month," but fixed no time within which '™®' they were to he delivered, it was held that the buyer was entitled to have the goods delivered to him at any reasonable time within the month, and without tendering the price (c). § 105. If the agreement fixes the time when the price is to Evidence of be paid, but not the time when the goods are to be delivered, delivery and evidence is admissible (see § 13) to show that by the usage of P^y^^'^* ^^^ the particular business the agreement is to be read as if it con- tempera- hgous tained the term that the seller is not bound to deliver before the time fixed for payment (d). As to an agreement providing that the goods are to be delivered and paid for within a certain period, see § 136. § 106. An agreement to deliver "directly" imposes upon the Agreement to seller the obligation to deliver within a shorter period than an "directly." agreement to deliver within a reasonable time does (e). (a) Mlis v. Thompson, 3 M. & "W. at In Spartali v. Senecke, it was also held, 456, per Alderson, B. ; Xeill v. Whit- that evidence of a usage of trade fii- worth, 18 C. B., N. S. at 443, per ing the time of delivery was inadmis- WiUes, J. sible, but on this point it has been (}) Greaves v. Ashlin, 3 Camp, at overruled by Field v. LeUan, cited in 427, first 5 lines of the judgment. the next section. (c) Spa/rtali v. Benecke, 10 C. B. 212, [d) Field y. Zelean, 6 H. & N. 617. at 216 ; Godta v. Jtose, 17 C. B. at 234, (e) Duncan v. Topham, 8 C. B. 225. lines 10 to 16 ; 25 L. J., C. P. at 63. 72 WRITTEN AGREEMENTS FOR THE SALE OF GOODS. ^''°^^^- § 107. If by an agreement the seller is to make an article To deliver " as soon as possible," he is bound to mate it within a reason- •' as soon as ,, . . .,t • i ■ i -i. ij i, possible." able tune (/), and in the shortest time withm which it coma be made by a person having proper appliances {g), without laying aside the execution of orders previously received (A). Meaning of § JQS. If by the agreement the goods are to be delivered within so many months, " months " means calendar months (i). Day when the § 109. If by the agreement the goods are to be delivered in was made ex- SO many days, weeks, or months, the time is to be computed computSion exclusively of the day on which the agreement was made (/c). of time. g uQ_ jf -^y. ^he agreement the goods are to be delivered at h^Ino^ion tbe Seller's option in one of two months named, and the seller as to the time declares his option to deliver in one of the months, he cannot 01 delivery '^ and has de- afterwards declare his option to deliver in the other [month (?) option. if the buyer has accepted the first declaration, and acted upon it (m). At what time § HI. If by the agreement the goods are to be delivered goods mlj be within SO many days, the seller fulfils the agreement and the delivered. huyer is bound to accept the goods if the seller tenders the goods to him on the last of those days after business hours, provided the buyer will have time to examine and receive them before midnight (m). But the buyer is not bound to remain at his place of business after business hours to take delivery, and if the seller, in conse- quence of there being no one there to take delivery, is unable to deliver the goods, he does not fulfil the agreement by going there after business hours ready to deliver («). Agreement to § 112. Where the provision in the agreement as to the time day^aud°TOm- of delivery was as follows: "delivering on" a day named, P^^*^""^ "complete on" a subsequent day named; two of the judges held that the seller was bound to commence delivering on the (/) Sydraulic Engineering Co. v. (J) See "Month" in "Words and MeSaJie, i Q. B. D. at 673, lines 8 to Expressions." 10 of Bramwell, L. J.'s judgment. (k) See § 138. {g) B., at 676, first paragraph of {}) Gath v. Lees, 3 H. & 0. 658. Cotton, L. J.'s judgment. (m) Borrowman v. Free, 4 Q. B. D. (A) AttwoodY. Emery, 1 0. B., N.S. at 505, lines 2 to 9; and 606, last 7 110; Hydraulic Engineering Co. v. lines of the judgment. McSaffie, 4 Q. B. D. at 673, lines 10 {n) Sta/rtup v. Macdonald, 6 M. & G. to 3 from the bottom ; and 676, line 9 593. of Brett, L. J.'s judgment. TIME OF DELIVERY. 73 day first named, wliile tlie other two iudges held that he was J,^"^* ^^^• ■' ° Chap. IV. not, that day being mentioned merely to prevent the seller's requiring the defendant to take delivery at an earlier date (o). § 113, An agreement under which the goods sold are to be To deliver delivered in a month named, or equally over that month and a'month."^^'^ the two following months, would probably be held to mean that f^]^^'^;^'^'^ the buyer was bound to make his election in the first-named- months. month, and communicate it to the seller in time to enable him to deliver the whole, or one-third, as the case might be, in that month (p). (o) Coddington v. Faleologo, L R., 2 [p] Sonok v. MuUer, 7 Q. B. D. 92, Ex. 193. at 97 and 101. 74 WRITTEN AGREEMENTS FOR THE SALE OF GOODS. Book II. CHAPTER V. Of the Mode and Place of Delivery. SeUer not § 114. In tiie atsence of any provision in the agreement, or the goods to of any usage of trade fixing the mode of delivery, the seller is ^^^^' not bound to send the goods to the buyer, and he fulfils his obligation to deliver them if he so places them in the buyer's power that the latter has the right immediately to remove them {q). Therefore, wliere hops, parcel of a larger quantity lying at a warehouse, were sold, and the buyer had the quantity sold to him weighed at the warehouse, and removed part of them, but upon afterwards 'sending for the remainder, found that they had been removed by a creditor of the seller's, it was held that he could not recover against the seller for not delivering them, as the seller was not responsible for the warehouse- owner's wrongful delivery of them to another (r). Buyer is not § 115. The buyer is not bound to accept the goods bought cept^the goo'da ^7 ^^^ ^ other goods are tendered with them, in such a manner ju-e tendCTed^^ ^® ^° cause him trouble or risk in selecting the goods bought by with them. him(s). At what § 116. In the absence of any provision in the agreement, or goods are to of any usage of trade fixing the place of delivery, the goods are be delivered j.^ -^^ delivered, if the sale is of identified {specific) goods, at the named in the place at which they are at the date of the agreement (t) ; or if the sale is of goods not identified, at the town or other place within which the agreement is made. (?) Smith's Mercantile Law (9th ed.), (s) Sort v. Mills, 15 M. & W. 85 ; 607, Bk. lii., Chap. 12, sect. 3 ; Ben- X»y v. Green, 8 E. & B. 575 ; E. & E. jamin, 670 and 671. 969. {r) Wood T. Tcmell, 6 Q. B. 234. See {t) Salter v. Woollama, 2 M. & G. also Salter v. Woollcms, 2 M. & G. 660; TTood v. Tassell, 6 Q. B. 234; 660. Benjamin, 670. MODE -ANB PLACE OF DELIVERY, 76 § 117. Although the agreement names a place from which chaV v the goods are to be taken, the seller is not necessarily bound to deUver them there ; Because the place may be named -for the benefit of the seller to entitle him to call upon the buyer to take delivery there. Thus, where an agreement for the sale of cotton, to arrive in Liverpool, contained the words " the cotton to be taken from the quay," and the buyer refused to accept the cotton because it had been removed from the quay and warehoused by the dock trustees, it was held, that he was not justified in his refusal, as the above words were inserted for the benefit of the seller to save him from the expense of warehousing the cotton, as, by the dock regulations, goods landed on the quay m.ust be removed within twenty-four hours, and if they are not the dock trustees can impose a fine, and have a power compulsorUy to warehouse them (m). § 118. If by the agreement the seller has the option of de- Seller having livering from one of several places, there is an implied condition delivering at that he shall give the buyer notice of the particular place from peaces muet^ vrhioh delivery is to be taken (x). declare his •' ^ ' option. § 119. If by the agreement the buyer has the option of yt^eie the taking delivery at one of several places, there is an implied buyer has , , . . an option he condition that he shall give the seller notice of the particular must declare place at which he will take delivery (y). («) NeillY. Whitworth, 18 0. B., K. {x) JDavies v. McLean, 28 L. T., N. S. 435 ; (in Ex Oh.) L. E., 1 C. P. S. 113, per Brett, J. ; 21 W. E. 265. 684. {y) Armitage v. Insole, 14 Q. B. 728 ; Benjamin, 671. 76 WRITTEN AGREEMENTS FOE THE SALE OF GOODS. Book II. Part IV. OF THE PEICE. OHAPTEE I. Of the Amount of the Price. § 120. If no price is mentioned in the agreement, it is implied that a reasonable price is to he paid {see § 5). § 121. If the seller agrees to supply a cargo of goods at a reasonable price, a reasonable price is not necessarily the current price at the port of shipment at the time when the shipment is made; For the current price of the day may be highly unreasonable from accidental circumstances, as from the commodity having been purposely kept back by the seller himself, or with reference to the price at other ports (a). § 122. Evidence is admissible {see § 12) to show that the words referring to the price have a particular meaning in the business. Thus, in an agreement for the sale of eighteen pockets at 100 shiUings, evidence to show that in the hop trade such an agreement was understood to mean at so many shillings per cwt., and not per pocket, was held to be admissible (6). When price is § 123. If the agreement fixes the price at so much for each from the^° imit of weight or measurement but provides that the quantity is to be taken from a document, the price will, in the absence EeasouaUe price implied if none is stated in the agreement. ReasouaUe price not ne- cessarily the current price at the port of shipment. Evidence of usage as to the meaning of words stating the price. {a) Acehal v. Levy, 10 Bing. at 383. (S) Spicer v. Cooper, 1 Q. B. 424 ; 1 G. & D. 62. See Chaine v. Francis, X Victoria Law Times, 38. AMOUNT OF THE PRICE. 77 of words manifesting a contrary intention, be according to the ^"a/T* weight or measurement stated. in that document, although it 1 i , 1 . ,, weight, &o., may be stated mcorrectly. stated in a document. Where the agreement was for the sale of a cargo of wheat consisting of about 1,300 quarters at 30s. per quarter, the quan- tity to he taken from the bill of lading and measure calcu- lated at 220 quarters ^= 100 kilos ; and the quantity mentioned in. the bill of lading (although the master had, according to the usual practice (c), written that the quantity was unknown to him) was greater by fifty-seven quarters than the quantity which the cargo measured when delivered, it was held, that the seller was entitled to retaia the whole of the price paid to him, which had been calcu- lated according to the quantity stated in the biU of lading (d). Compare with TuUy v. Terry, cited in § 271. § 124. If the price is to be fixed by valuers named in the Refusal by agreement, or to be appointed by the parties, and the valuers named^s will not value, the buyer* if he has not accepted the goods, can- valuers to not be sued for not paying for them (e) . Note. — The agreement may he such that the persons {named in it or to be appointed by the parties) who are to fix the value of the pro- perty, whether real or personal, to he purchased, are arbitrators and not mere valuers (_/), and if an arbitrator refuses to act, a judge may appoint a new arbitrator in his stead (g). If the fixing of the value is not of the essence of the agreement, the Court will carry the agreement into effect and itself ascertain the value (h). § 125. But if the buyer has accepted the goods, the law im- plies an agreement by him to pay a reasonable price for them («'). § 126. In an agreement for the sale of goods at the "market Meaning of value" of the unit of weight or measurement, the words "market y'XT"^* (c) See T«% v. Terri/, L. R., 8 C. Viekers, L. R., 4 Eq. 529. P. at 680, lines 5 to 8. (/) Se Hopper, L. R., 2 Q. B. 367. [d) CovasY. Bingham, 2 E. & B. 836. See Turner v. Goulden, L. R., 9 0. P, (c) MiVnes v. Qery, 14 Ves. 400 ; at 69. Thwmell v. Balbirnie, 2 M. & W. 786. {^) The Common Law Procedure See also (the agreements being for the Act, 1854, sect. 12. sale of property, aU, or part, of which (A) Sinham v. Bradford, L. R., 5 was real estate) Collins y. Collins, 26 Ch. App. 519 ; Itiehardson v. Bear. 306; 28 L. J., Oh. 184 ; Bosy. ib., 648. HeUhcm, L. R., 2 Ex. 72 ; Viekers v. (J) Clarke v. Westrope, 18 0. B. 765. 78 WRITTEN AGBEEMENTS FOE THE SALE OF GOODS. Book II. "Wlien tlie goods perish before they are weighed or measured. Evidence of usage that seller pays storage rent is admissible. value " mean the price in the market as between the manufac- turer and an ordinary purchaser. The plaintiff agreed to make for tie defendant a very large tent of canvas, of the market value of lid. per yard, for the price of Is. 4:d. per yard (being lid. for the canvas, and 5d. for the making), and if the market value of canvas should be less than 11 (J. per yard, to deduct the difference from the said price of Is. id. ; it -was proved that although the market value of canvas per yard was lid., yet, considering the quantity required for making the tent, canvas could have been procured at a considerably lower rate than lid. ; but it was held that the plaintiff was entitled to be paid the price of Is. id. per yard (7c). § 127. If by an agreement, under which the property in the goods sold has passed to the buyer or without the property having passed to him they are at his risk, the amount of the price is to be ascertained by weighing or 'measuring them and they perish before they are weighed or measured, the amount is to be ascertained as nearly as can be done [1). Compare vAth § 140. § 128. Evidence is admissible to show {see § 13) that by the usage in the particular trade, goods sold are allowed to remain for a certain period after the sale at the warehouse where they are lying at the time of the sale and that the seller pays the warehouse rent for that period {m). (i) Orchard v. Simpson, 2 C. B., N. S. 299. (?) Castle V. Flayford, L. E., 7 Ex. at 99 ; Martineau v. KUching, L. R., 7 Q. B. at 455, last 7 lines ; and 456, first 4 Unes. («») Sammmd v. Anderson, IB. & P., N. R. 69 ; GrfaA)ei v. Sesslce, 2 B. & Aid. 131 ; Fawies t. Lamb, cited in the Second CoroUary to ^ 13. See " Mercantile Usages." ( 79 ) Part IV. OHAPTEE II. Of the Buyer's Liability to pay the Price. § 129. If the property in the goods sold has passed to the if the pro- buyer (a) {see § 58), or if, although it has not passed, they are, |oods h'as " by the terms of the agreement, at his risk (b), he is liable to passed to the '' _ ° . buyer he must pay the price, although they have perished by flre or otherwise pay the price ,., . ,, . J, , 1 n although the wmle m the possession oi the seUer. goods have § 130. If the agreement shows that it was the intention of E«"«^«*- the parties that no payment should be made until the comple- is prevented tion of the agreement, the buyer is not liable to pay any part * ot payable. of the price if completion is prevented by a cause for which neither party is to blame (c). The plaintiffs agreed to erect for the defendant, upon a building standing on the defendant's premises, a steam-engine and machi- nery for a price ■which was to be paid only on the completion of the works : after the worts were far advanced towards comple- tion, and some parts were so nearly finished that the defendant had used them for the purpose of his business, a flre accidentally broke out on the defendant's premises, and destroyed the building, and the work done upon it by the plaintiffs {d). It was held that the plaintiffs were not entitled to recover any part of the price (e). § 131. If by the agreement the buyer has the option of re- Buyer with tumiag the goods if he does not like them (/), he is liable to returning the (a) Sugff V. Minett, 11 East, 210; dtuig Appleh/ -v. Mi/ers. Taylor y. Calchvell, 3 B. & S. at 837 ; [d) L. R., 1 C. P. at 621. Tarling v. Baxter, 6 B. & 0. 360. (e) AppUby v. Myers, L. R., 2 C. P. {b) Castle v. Flayford, L. E., 7 Ex. 651. See also Sowell v. Coupland, 98, cited in Anderson v. Morice, L. R., L. R., 9 Q. B. 462 ; 1 Q. B. D. 258. 10 0. P. (Ex. Ch.), at 617 ; Martmeau (/) G-oods delivered under such an V. Kitching, L. R., 7 Q. B. 436. agreement are said to be "on sale or (c) Anderson v. Morice, L. R., 10 return" : Ex parte Wingjield, 10 Ch. 0. P. (Ex. Ch.), at 617, paragraph D. at 593. WRITTEN AGREEMENTS FOR THE SALE OP GOODS. Book II. goods must pay if he does not return them within a reasonable time. He is not liable for the price if he returns the goods within the time stipulated. Bill of lading in parts. pay the price if he does not return them within a reasonahle time {g), even if he is prevented from returning them by the wi'ongful aot of a third person (h). § 132. If hy the agreement the buyer has the option of returning the goods within a certain period if he does not like them, he is not liable to pay the price if he returns them before the expiration of that period, notwithstanding that he has kept them for a longer period than was necessary for returning them from the time of his having informed the seller of his intention not to keep them, and been requested by him to return them (i), or notwithstanding that they are not in as good a state as when they were delivered, if their deterioration was not caused by his default {k). § 133. If by the agreement the buyer has the option of returning the goods if he does not like them, he is not Liable to pay the price if he is prevented from returning them by their having perished without any default on his part [1). § 134. If by the agreement payment for the goods is to be made in exchange for bill (m) of lading, the buyer is liable to pay when an indorsed bill of lading is tendered to him, although the bill is drawn in triplicate or quadruplicate, and the other parts of the set are not tendered (w), unless another part has been indorsed and parted with to some other person before the tender (o). Compare with § 151. (^) Moss V. Sweet, 16 Q. B. 493 ; Hx {k) Seadv. Tattersall, oitedin § 84. parte Wingfleld, last note. (A) This point was not actually de- cided, but a strong opinion was ex- pressed upon it in Ray v. Barker, 4 Ex. D. at 282, lines 11 to 2 from the bottom; 283; and 284. (i) EMs T. Mortimer, 1 B. & P., N. E. 257. [l) Elphick V. Barnes, 5 0. P. D. 321. {m) See 11 Q. B. 35. at 335, lines 21 to 24. (m) Sanders v. Maclean, 11 Q. B. D. 327. (o) li., at 339, hnes 19 to 23 ; and 343, Knes 19 to 22, and 27 and 28. ( 81 ) Part IV. CHAPTER III. Of the Time when the Price is to be paid. Compare u-ith the Chapter on the Time of Delivery, pp. 71 — 73. § 135, If the agreement fixes no time for payment of the Payment . . J -ji n T / \ and delivery price, payment is concurrent with delivery («). are ooncur- § 136. If an agreement of sale provides that the goods are to ^^'°-^- be delivered and paid for within a certain period, it would pro- are to be de- bably be held that the seUer might deKver them at any time a^^rtail'*^'"' within that period and require payment at the time of period the i i ./ pnoe is pay- dehvery (i). able when § 137. If by the agreement the goods are to be paid for in so Hvere?.^ many months, " months " means calendar months (c). Meaning of Tn fin ^ M fl § 138. If by the agreement the goods are "to be paid for in" rjiji j so many days, weeks, or months, the time is to be computed which the exclusively of the day on which the agreement was made (c?). made is ex- § 139. The jury may say (see § 17) what is the meaning of an expression fixing the time of payment which occurs in an agreement of sale. Wtere ty an agreement the goods were to be paid for in ' ' from six to eight ■weeks," and an action to recover the price was commenced forty-eight days after the day when the agreement was made, it was held to have been properly left to the jury to say whether the action had been brought too soon. The jury found that it had not been (e). (a) Blcxam v. Sanders, 4 B. & C. at Expressions." 948 ; Simmons y. Swift, 5 B. & C. at {d) Wehb v. Fairmanet; 3 M. & W. 862, per Bayley, J. 473 ; Young v. Higgon, ib., vol. 6, (4) Godts V. Zose, 17 C. B. 229, at at 54. 234 ; and 237, lines 8 to 13 : 25 L. J., (e) Ashforth v. Sedford, L. R., 9 C. P. at 63. C. P. 20. (c) See "Month" in "Words and W. G eluded. 82 WRITTEN AGREEMENTS FOR THE SALE OF GOODS. Book II. § 140. If by an agreement, under whicli the property in the OT^ri8*tobe S°°^^ sold has passed to the buyer or without the property paid at a havina: passed to him they are at his risk, the price . is to be certain time . • -, i- n t • j> after the paid at the expiration of a certain period from the doing oi aoWMohhas some act in connection with the goods, and the goods perish since the before the act has been done, the time when the act would have agreement ' become iuca- been done if the goods had not perished, is to be ascertained as pable of being . . . , • n j. j.i done. nearly as can be done, and the pnce is to be paid at tne expira- tion of the named period from that time (/). Compare with § 127. Thus, where goods were sold to be paid for by bill at two months from the date of landing, and they were lost by shipwreck, it was held that the seller was entitled to recover, as he had not com- menced the action until more than two months after the time when the goods would have been landed if they bad arrived in the ordi- nary course ((?). § 141. Evidence is admissible (see § 12) to show that words relating \o the time of payment have, in a particular locality or business, a meaning different from that which they would bear if such evidence were not given. Thus, where by an agreement for the sale of ash, made between a Liverpool merchant and a London merchant, the terms of pay- ment were " cash in twenty-eight days," evidence that by the usage, both of Liverpool and London, the expression would mean "cash in twenty-eight days from last day of landing" was admitted (7i). See Godts v. Eose, cited § 104. (/) Fragam v. Long, 4 B. & C. 219, C. P. 298, at 301, fii-st column, last at 222, lines 15 to 19 ; and 223, last 4 paragraph but one ; 302, first column, lines of the judgment of Holroyd, J. lines 17 to 12 from the bottom ; and {g) Alexander v. Gardner, 1 B. N. C. 303, first column, lines 23 to 11 from 671. the bottom; 17 C. B., N. S. 298, at [h) Seywm-th v. Knight, 33 L. J., 312. ( 83 ) Part IV. OHAPTEE rV. Of the Mode in which the Pkice is to be paid. § 142. The expression " an approved bill," in an agreement of sale, means a bill to whicli no reasonable objection can be made, not a biU whicb tbe seller approves (a). («) Sodgson v. Davies, 2 Camp. 530. is meant an approved bill was not ad- In the same case Lord EUenborough missible. It may be doubted whether decided that evidence that "by bill " this decision would now be followed. g2 ( 84 ) BOOK III. OF CHARTER-PAETIES AND BILLS OF LADING. Forms of a Charter-party and of a Bill of Lading are given at the commencement of this Work. See Contents. PEEFATOEY NOTE. Of the Classes into which GHAETEa-PAHTiES aee Ditided, and op THE NATTJEE OF A BllL OP LADING. Charter-parties are divided into two classes. A charter-party of the first class operates as a demise of the ship itself; under a charter-party of the second class (locatio operis vehendarum mercium) "all that the charterer acquires hy the terms of the instrument is the right to have his goods conveyed hy the particular vessel, and, as subsidiary thereto, to have the use of the vessel and the services of the master and crew" {a). The first class is suhr divided into (1) those charter-parties which are merely demises of the ship with its furniture and tackle (locatio navis); and (2) those (locatio navis et operarum magistri et nauticorum) to which the services of the master and crew, who are employed and paid hy the owner, are superadded {V). Where there is a demise merely of the ship itself (locatio navis) " the charterer becomes for the time the owner of the vessel," and as he appoints the master, the master is his agent, and he therefore becomes liable, not only upon such contracts {as for instance, bills of lading) as a master has authority to enter into, but for the negligence of the master as master {c). Where there is such a demise of the ship, the owner of the ship loses his right of lien for the freight of goods carried by his ship{d). (a) Sandeman v. Sctirr, L. R., 2 apply to a locatio operis vehendarum Q. B. at 96. mercuMn not to a locatio navis. See (b) Schuster v. MoKellar, 7 E. & B. Fmton v. City of Dublin Steam Facket at 723 and 724. Sometimes, how- Co., 8 A. & E. 835. ever, the charterer himself is ap- ifC) Serjeant Shee, in Abbott on pointed master, as in Newberry v. Col- Shipping (10th ed.), 208, citing the vin, 7 Bing. 191; 1 C. & J. 192; 1 judgment of Richardson, J., in C%m<«e C. & Kn. 28. V. iewts, 2 B. & B. at 443 ; Selclter v. (c) The observations of Abbott, C. J., Capper, 4 M. & Gr. 602. in Zaugher v. Fointer, 5 B. & C. at 579,. PEEFxlTOEY NOTE. 85' WJiere there is a letting of the ship with the services of the master and Book III. creto superadded (locatio nayis et operarum magistri et nauticorum), "when the master signs hiJls of lading he does so as the agent of the charterer, not of the owner ; hut still, as the owner is in possession of the ship hy his master and crew, he has rights in respect of this possession, as to claim a lien on goods on hoard for freight due to him: and he is liahlefor the negligence of the master as master [as, for instance, from a collision arising from the im- proper management of the ship), irrespectire of the contracts entered into hy the master with the shippers of goods, as agent for the charterer" (e). Under a contract for the carriage of the charterer s goods in the owner's ship and hy his servants (looatio operis yehendaniiu mercium), the ship- owner, in addition to heing liahlefor the negligence of the master, " has all the responsihility of a carrier of the goods (/), and if the master signs hills of lading, although he does so in virtue of a clause in the charter-party, provid- ing that the mastei- is to sign hills of lading if required hy the charterer, yet the oioner is liahle upon them if the shipper did not know of the charter- party" if). A hilt of lading is commonly spohen of as cont-aining the contract hetween the shipper -of the goods and the master of the vessel [see the preamhle ami 1st section of 18 it 19 Vict. c. 11, and Sewell v. Biirdick, 10 App. Cas. at lOo, per Lord Brannvell), hut, strictly speaking, the contract is created hy the delivery of the goods to, and the receptivn of them hy, the master (g) ; and of this contract the hill of lading [if one is given) is merely the evidence (h). By 18 iC- 19 Vict. c. Ill, "An Act to amend the Law relating to Bills of Lading," every consignee of goods named in a hill of lading to luhom the pro- perty in the goods therein mentioned passes hy reason of such consignment or itidorsement] has transfeiTed to and vested in him all rights of suit, and is suhject to the same liahilities in respect of such goods as if the contract con- tained t» (i. e., evidenced hy) the hill of lading had heen made with him- self As to the statement in the hill of lading that the goods have heen shipped heing conclusive evidence of such shipment, when the hill has passed to the hands of a consignee or indorsee for value, who had not actual notice at the time of receiving the same that the goods had not heen laden, see § 187. («) Schuster v. McKellar, 7 E. & B. {g) Maolaohlan, 389 ; Fhilips v. at 724 ; 26 L. J., Q. B. at 288. Jiaillie, 3 Dougl. 374. (/) Sandeman v. Sciirr, L. E., 2 Q. (A) Foster v. Colby, 28 L. J., Ex. B. at 86 ; The Figlia ilaggiore, L. E., at 35 (Ist ed.) ; 3 H. & N. at 711, per 2 Adm. &E. 106; The Fatria, L. R., Bramwell, B. ; Setoell v. Biirdick, 10 3 Adm. & E. at 458, 459, and 460 ; App. Cas. at 105 ; Caldicell v. Ball, 1 Sagn v. CuUiford, 3 C. P. D. at 415, T. E. at 216, lines 12 to 9 from the last two paragraphs (affirmed, 4 C. P. bottom. D. 182). 86 Book III. CHARTER-PARTIES AND BILLS OF LADING. Part I. OF CHAETEE-PAETIES AND BILLS OF LADINO GENERALLY. OHAPTEE I. Of the Parties. As to the owners or the charterers suing or being sued upon a charter- party not under seal [a), made hy the master or any other person as agent of either of them, see § 29. As to the master or any other person who is the agent of the owners or of the charterers suing or being sued upon a charter-party made by him, see §§ 32 and 33, and Lennard v. Eobinson, Cooke v. Wilson, Parker v. Win- low, Hougt V. Manzanos, and Deslandes v. Gregory, died in the Illus- trations of the rules contained in Division II., Boole I., Chap. IV., pp. 22 to 21. As to a person who mahes on behalf of an unnamed principal a charter- party, upon which, in the absence of evidence, he could not be sued, as it would be held to show that he did not intend to bind himself, being liable to be sued upon it if it is proved that by usage the agent is to be liable as a principal, if the principal's name is not disclosed within a reasonable time after the signing of the charter-party, see Hutchinson v. Tatham, cited at p. 28. As to a person who mahes, as on behalf of a person who is not named, but really on his own behalf, a charter-party which, if he had really made it on behalf of another, would be held to show that he did not intend to bind him- self, being able to sue or liable to be sued upon it, see Semaltz v. Avery, cited in § 38. As to the person on whose behalf a charter-party has been entered into not being able to sue on it as a principal, if the agreement states that the person who entered into it entered info it on his own account, see § 31. (a) Sorsleij v. Mush, cited in Sarrison v. JacJcson, 7 T. R. at 209. ( 87 ) Part I. CHAPTER II. When the Owner will be deemed to have parted with THE Possession of the Vessel. § 143. In a charter-party words amounting to a demise (a) — Sucli as, tlie owner agrees to let and tlie charterer agrees to take or to hire the vessel for a certain period, prima facie import that the owner intends to part with the possession of the vessel {b). As to the consequences of parting with possession upon the owner's right of lien, see p. 84, last 3 lines. § 144. But words of demise will not be held to import that the owner intends to part with the possession if there are words in the charter-party which show that he did not so intend. See §2. Thus, where by the charter- jjartj- the owner "granted and to freight let," and the charterer "hired and to freight took," the ship, it was held that the owner had not parted with the possession, inasmuch as the charter-party contained the following (among other) provisions : that the master was to receive and properly stow on board the vessel such goods as the charterer might think proper to send alongside her in the jDort of London, since such a provision would have been nugatory if the charterer had the entire j)Ossession of the ship, as then he could receive and stow them as and when he pleased ; that the master should make a right and true delivery of the cargo from alongside to the agents or assigns of the charterer, since this showed that they were not so much as to enter the ship; that the ship's boats were to be assisting, properly (o) NewUrry v. Colvin, 1 C. & J. at (4) Belcher v. Capper, 4 M. & Gr. 216 ; 7 Bing. at 207 and 208, affirmed 502. 1 CI. & Pin. 283. 88 CHARTER-PARTIES AND BILLS OF LADING. Book III. manned, provided no impediment was thereby made in carr5ring on the exclusive operations or duties of the ship, since the duties of the ship could not be inconsistent with those of one who was the absolute owner for the time ; that due notice that the ship was ready to receive the cargo on board was to be given to the charterer, his agents or assigns (c), since this was treating the charterer and the ship's owner as distinct persons ; and a stipulation as to the mode of pa3Tnent which showed that the payment for freight of the vessel and the delivery of the cargo were to be concomitant acts {d). {c) See the report in 5 Moore, at (rf) Christie v. Lewis, 5 Moore, 211 ; 214. 2 B. & B. 410. ( 89 ) Part I. OHAPTEE III. When Charter-parties and Bills of Lading are to be INTERPRETED ACCORDING TO FoRElGN LaW. See § 9. § 145. If a charter-party or bill of lading relating to the carriage of goods by a foreign ship does not contain provisions determining the rights of the parties on the happening of cer- taia events, which would by the law of England be implied on the happening of such events, in the case of a charter-party or bill of lading relating to the carriage of goods by a British ship, the rights of the parties on the happening of these events are to be determined, in the absence of anything showing a contrary intention («), by the law of the country to which the ship belongs, and not by the law of England (fi) ; At all events, if the charter-party or bill of lading is not in the English language, and is not executed in England, or in a coimtry governed by English law (c). The question whether a charter-party or bill of lading relating to the carriage of goods hy a foreign ship, written in the English language, and not executed in the country to which the ship belongs, is to be interpreted according to the law of England or the law of the country to which the ship belongs was discussed in The Patria but was not decided by the judg- ment (d). " the country to which the ship belongs." That is the country of the owners of the ship, not the country in ■which it is registered (e). («) The Patria, L. R., 3 Adm. & India Steam Navigatim, Co., 9 Q. B. D. Ecol. at 458, lines 3 to 7 ; Chartered at 121, "The goods were shipped at Mercantile BanJc of India v. Nether- an English port;" "The bill of lading lands Bast India Steam Navigation Co., is in the English language through- 10 Q,. B. D. 529, lines 14 to 22; and out," lines 12, 11, 7, and 6 from the 540, lines 20 to 27. bottom ; Vol. 10 at 540, lines 9 to 12. (6) Lloyd V. Guibert, L. E., 1 Q. B. [d) L. E,., 3 Adm. & Eocl. 436. See 115 ; The Gaetano, 7 P. D. at 146 and pp. 452, 453, 461, 462, and 464. 147. W Chartered Mercantile Man/c of India (c) Conxpaxe Lloi/dv. Guibert, L. E., v. Netherlands India Steam Navigation 1 Q. B. 115, with Tlic Fatria, L. E., Co., 10 Q. B. D. at 535 and 536, per • 3 Adm. & Ecol. 436 ; Chartered Mer- Brett, L. J. cantile Bank of India v. Netherlands 90 Book III. CHARTEE-PAKTIES AND BILLS OF LADING. CHAPTER IV. Of Provisions as to the Charterer's Liability ceasing. Wlien a lien § 146. If a charter-party, whicli proyides that the liability of respectof'eer- the charterer is to cease as soon as the cargo is loaded, gives the onfTh**^^^ owners of the ship a hen on the cargo in respect of certain liability ceases matters, it wiU be held (unless the clause as to liability ceasing those matters, plainly shows that it was intended that liability of every kind was to cease upon the. cargo being loaded (a) ) that the char- terer's liability, in respect of breaches of the charter-party com- mitted before the loading, ceased in respect of those matters alone in respect of which a lien was given {b). "Wien liabi- § 147. If a charter-party, which provides that the liability onty^as tcf of ^be charterer is to cease as soon as the cargo is loaded, gives kadrn ^^ ^^^"^ ^° ^^^^ °^ ^^^ cargo in respect of any matters, it will be held (unless the clause as to liability ceasing plainly shows that it was intended that upon the cargo being loaded the charterer's liability should cease in respect of breaches antecedent to, as well as in respect of those subsequent to, the loading {c) ) that the charterer's liability ceased in respect only of breaches committed after the loading {d). (a) See French v. Gerber, 1 C. P. D. expressly provided that the charterer's at 744, lines 12 to 9 from the bottom. liability should upon loading cease as (b) French v. Gerber (in 0. P. Div.), to matters as well before as after the 1 0. P. D. at 744, lines 6 and 5 from loading, see Oglesby y. Tglesias, E. B. the bottom ; (in C. A.) 2 C. P. D. at & E. 930 ; Milmin v. Perea, 30 L. J., 250, first 10 lines ; 253, last 5 lines ; Q. B. 90 ; 3 E. & E. 495. and 254, first 3 lines. It may, how- [d] Christoffersen v. Sansen, L. R., ever, be that the authority of French 7 Q. B. 509 ; French v. Gerber, 1 C. V. (JerSer is not completely established, P. D. at 743, lines 11 to 5 from the see Sangidnelti v. Faciflc Steam Navi- bottom. See, however, the observa- gation Co., 2 Q. B. D. at 262. tions of Mellish, L. J., in Smguinetti (c) French v. Gerber, I G. P. D. at v. Facific Steam Navigation Co., 2 Q. 744, lines 12 to 9 from the bottom. B. D. at 247. For examples of charter-parties which PEOVISIONS AS TO CHARTKHER's LIABILITY CEASING. 91 § 148. If a charter-party, whicli provides that the liability c^^^^jir of the chartei'er is to cease as soon as the cargo is loaded, gives J.-L [■ i 1 1 • • 1 • o When liabi- tne owners oi the ship a lien on the cargo in respect of certain lity ceases matters, the charterer's liability ceases in respect of breaches of load^o-.^^™ the charter-party committed after the loading, notwithstanding that no lien is given in respect of those breaches (e). The fact that the charterer is a principal, and not an agent, does not vary the interpretation of the clause providing that his liability is to cease upon the cargo being loaded (/). § 149. If a charter-party provides that the liability of the Delay in load- charterer, except in respect of loading, is to cease as soon as the cargo is loaded, the exception extends to delay in loading as well as to not loading a full and complete cargo (g). § 150. If a bill of lading contains such words as " the con- Bill of lading signee paying freight and all other conditions as per charter- ^ord™™^* ^ party," and the charter-party contains a demurrage clause, and conditions as per cxi3 means (unless ex- Part iii. plaaned by evidence) in the order of readiness. Chap. iv. A cliarter-party provided that the plaintiff's sMp should proceed to a certaia dock and there load a cargo of Marley Hill coke, "to be loaded in regular turn ; " this coke was to be obtained only of the Marley Hill Company, who kept a book in which they entered the names of ships to be loaded ; it was their practice to enter ships not only before they were ready to load, but before their arrival at the dock or even at the port, and if a ship was not ready to load when her turn came, the ship next in turn was loaded, and the other took its turn when ready, before others which might have been waiting some time ; the plaintiff's ship was detained in con- sequence of this practice. To an action for not loading in regular turn, the defendant, the charterer, set up as a defence the practice of the Marley Hill Company. The jury foimd that this was not an established or known custom, and that regular turn meant the order of readiness. The Court held that the plaintiff was entitled to recover [k). § 219. But if there is a well-known usage of the port as to the order of loading or delivery, the expression means according to such order (l). The vessel, a sailing vessel, was to load a cargo of coals, and the charter-party contained the words, " Eegular turn to be allowed the merchant for loading," — and a demurrage clause ; it was proved that according to the usage of the port steam vessels are loaded with coal in priority to sailing vessels which have arrived before them, and that the vessel did not load for many days after she was ready because steam vessels which had arrived after her were loaded before her in accordance with this usage. It was held, that demurrage was not payable (m). § 220. If the charter-party does not mention anytime within If no time which the vessel is to be loaded, the charterer is bound to load reasonable her within what is a reasonable time under ordinary circum- p^^^^"^" stances (see § 5) after the vessel is ready to receive cargo («) ; Therefore a charterer who had agreed to load a cargo of coals. (i) Eohertson v. Jackson, 2 C. B. 412. (m) King v. Sinde, Ir. Law Rep., {k) Lamon v. Bumess, 1 H. & C. 12 Q. B. Div. 113. 396. («) Adams Y.Soyal Mail Steam Packet {!) Itobertscmx. Jackson, 2 C.B.il2; Co., 5 C. B., N. S. i92; Nelson v. Leidemann v. Sdiultz, 14 C. B. 38 ; Dahl, 12 Oh. D. at 583, lines 6 to 12 ; Siidson V. Clementson, 18 C. B. at 225, FostUthwaite v. Freeland, 4 Ex. D., lines 8 to 11 ; Zawson v. Bumess, 1 per Thesiger, L. J. ; Ford v. Cotes- H. & C. at 401, lines 8 to 4 from the wort/i, L. R., 4 Q. B. at 134, last bottom ; and 403. 2 lines ; and 135, first 4 lines. W. K 130 CHARTER-PARTIES AND BILLS OF LADING. Book III. no time within wHch they were to be loaded being mentioned in the charter-party, was held not excused for delays in loading caused by a dispute between the railway company along whose line the coal was to be brought and the coalowners, respecting the rates of carriage, and by a subsequent strike among the colliers (o). Unless both parties at the time the charter-party is entered into know of circumstances which will prevent the vessel being loaded with usual dispatch, in which case the charterer is bound to load only within what is a reasonable time under those cir- cumstances (p). See Note I., post, p. 138. Thus, where before the charter-party was signed both parties knew that the colliery from which the coals which were to be loaded were to be supplied was not at work, in consequence of an accident having happened to the steam engine, it was held, that if the steam engine was repaired and the coUiery got to work in a reasonable time after the execution of the charter-party, and if the vessel was loaded within a reasonable time after the coUiery got to work, the charterers were not liable for any delay in loading caused by the colliery not being at work {q). § 221. If the charter-party does not mention any time within which the vessel is to be discharged, each party is bound to use reasonable dispatch in performing his part (the owner by the captain and crew, in delivering the cargo in the usual manner, and the charterer in taking it away in the usual manner), but neither party agrees that the delivery shall occupy merely the usual time (r). Corollary. — Therefore if the cargo is not delivered in the usual time, each party having used reasonable dispatch in per- forming his part, neither is liable for the delay [r). Thus, where a vessel chartered under a charter-party, which did not mention any time within which she was to be discharged, had commenced to discharge, but the further discharging was pre- vented for some time by the authorities in consequence of an ap- prehended bombardment of the port, it was held that the charterer was not liable for the delay which was thus caused (r). (o) Adams -7. Moyal Mail Steam Pacleet [q) Sarris v. Dreesmam, 23 L. J., Co., 5 C. B., N. S. 492 ; 28 L. J., C. Ex. 210 ; Adams v. Royal Mail Steam P. 33. Facket Co., 5 0. B., N. S. at 495, 496, (p) Ford T. Cotesworth, L. R., 4 Q. and 497. B. at 135, lines 7 to 9 ; PostUthwaite [r] FordY. Cotesworth,'L.'R.,iQ,.'B. V. Freeland, 5 App. Cas. at 619, last 3 127 ; afBrmed, vol 6, p. 544 ; 10 B. & lines. S. 991. See Cunningham v. Dunn, 3 C. P. D. 443, cited in § 175. LYING-DAYS AND DEMUKEAGE. 131 § 222. Where a specified, numter of days is given for Part III. unloading, and so many more on demurrage, the demurrage chap. IV. becomes payable if the cargo has not been unloaded during the Demurra°-e days given for unloading (although the charterer or the holder '^iiE^'^^^^j.i^ of the bill of lading may not be in default), unless the delay charterer may- has been caused by the act of the shipowner (s). in default. Thus, •where it was by the practice of the port the master's duty to put the timber, of which the cargo consisted, over the side, and form it into rafts, and after the discharging had begun rough weather came on, which prevented the master for some days from, putting the timber over the side, though the charterer could have towed it away if put over the side and formed into rafts, and the unloading was thus not completed within the lying-days, it was held that the charterer was liable to pay demurrage {t). So, the indorsee of a bill of lading for part of the cargo, which incorporated the terms of the charter-party, was held liable to pay demurrage, as the whole of his portion of the cargo had not been unloaded within the lying-days, although this was owing to its being stowed under cargo belonging to other consignees who did not unload theirs in proper time («). As to demurrage where the vessel is to unload at a place named, or as near thereto as she can safely get, and is prevented by an obstacle, though not a physical one, from getting to the place named, see Nelson v. Dahl, cited in §201. § 223. (i.) The lying-days commence when the vessel is at The lying- the place named (whether that place be described as a port, mMU!e°when dock, quay, or otherwise) for loading or unloading, and, in the the vessel is case of loading, after the charterer has notice that she is ready named. to load {x), although she may not then be in the particular part of the port, dock, quay, or other place named, at which the par- ticular cargo is to be loaded or unloaded (y). 8ee Motes II. and III., p. 139, and Corollary, next page. " although she may not then le in the particular part of the doch at which the cargo is to he loaded." Thus, if the most usual mode of loading coal is by means of («) Randall v. Lynch, 2 Camp. 352. first 4 lines, and lines 8 to 6 from the (<) Thiis T. Byers, 1 Q. B. D. 244. bottom. (m) Forteus v. Watney, 3 Q. B. D. [y] Nelson v. Bahl, 12 Oh. D. from 223 ; 534 (C. A.). 581, line 17, to 584, line 6 ; Brown v. {x) Nelson v. Bahl, 12 Ch. D. at 68, Johnson, 10 M. & "W. 331 ; Tapscott v. lines 12 to 8 from the bottom ; 582, Balfour, L. K., 8 C. P. 46. lines 9 to 11, and last 2 hues ; 583, k2 132 Book III. CHARTER-PARTIES AND BILLS OF LADING. " spouts," and by tte ctarter-paity the vessel is to proceed, to a dock as ordered by the charterer, and there load a cargo of coals, the lying-days commence when the vessel has arrived at the dock named by the charterer, and not from the time when she was put under one of the spouts (z), (ii.) But if by usage a particular part or spot of the port, dock, or other place named, is to he intended as the place at which the loading or unloading is to take place, the lying-days commence only when the vessel is at that part or spot (a). By the charter-party the vessel was to proceed to Liverpool and there unload a cargo of timber, the discharging dock to be ordered on arrival of steamer at Liverpool, and she went, as ordered on arrival, to the Canada Dock, but by reason of the crowded state of the dock did not, until some days afterwards, get a berth at the quay where the unloading was, by the regulations of the dock, to take place. It was held, that evidence of a usage in the port of Liverpool that, in the case of timber ships, the lying- days commence only from the mooring of the vessel at the quay where alone she is allowed to discharge, and not from the time of her entering the dock, was admissible (b). By the charter-party the vessel was to deliver her cargo at Dieppe, alongside the railway wharf, or into lighters or any vessel or wharf where she could safely deliver, as ordered; she was ordered to deliver alongside the railway wharf, but, in consequence of none of the berths being vacant at the time of her arrival in the dock at Dieppe, she could not get into a discharging berth along- side the railway wharf until the day after her arrival in the dock. It was decided, that as the railway wharf had been named as the place for unloading, the lying-days commenced on her arrival there, not on her arrival in the dock (c). " T/ie lying-days commence when the vessel is at the place named for loading or unloading." Corollary. — Therefore, if by the charter-party the vessel is to go to a place named or to be named, or as near thereto as she may safely get, and she arrives at a point near that place, but is temporarily prevented from going to the place by an obstacle (as, for example, the tides being neap), which will be removed in such a time as, having regard to the (s) Tapscott V. Balfour, L. E., 8 Q. Co. v. Dempsetj, 1 C. P. D. 654. B. 46. (i) Norder Steamship Co. v. Dempaey, [a) Nelson v. Dahl, 12 Ch. D. at 1 C. P. D. 654. 582, lines 18 to 20 ; Norder Steamship {c) Murphy v. Coffin, 12 Q. B. D. 87. LYIKG-DAYS AND DEMURRAGE. 133 objects both of charterer and shipowner in the voyage, is not Part III. unreasonable, the lying-days commence not on her arrival at chap. iv. the point near the place, but on her arrival at the place itself (d'). See Bastifell v. Lloyd, cited in § 201. § 224. If by the usage of the port a part of the cargo is to When lying- be delivered at one place and the remainder of the cargo at menoe -when another, the lying-days commence on the vessel's arrival at the to^edefh-ered first place of delivery (e). But a usage that the time occupied at different while the vessel is moving from the one place to the other is not to be reckoned among the running days, is valid. By the charter-party a vessel -with, a cargo of grain was to "proceed to a port in the Bristol Channel as ordered, eight running days to be allowed the charterers for loading and discharging the steamer, and ten days on demurrage over and above the lying- days," at so much per day ; the vessel was ordered to Gloucester, a port in the Bristol Channel, for discharge, and arrived at Sharp- ness Dock, which is within the port of Gloucester, and seventeen mUes by canal from the basin in the city of Gloucester, where grain cargoes are usually discharged ; the vessel could not proceed to that basin unless a considerable portion of her cargo were first discharged at Sharpness ; a portion of the cargo was discharged there, and taken delivery of by the charterers, who required the captain to proceed to the basin, and deliver the remainder there; this he did under protest. It was proved that there was a custom that if a grain vessel arrives at Sharpness so heavily laden that she cannot pass up the canal to the basin in the city of Gloucester with that cargo on board, she unloads at Sharpness so much as is neces- sary to enable her to pass up the canal, and dehvers the remainder at the basin in the city, and that tlie time occupied in passing from Sharpness to the basin in the city is not reckoned among the run- ning days. It was held, that this was a valid custom, and that although the days occupied in discharging part of the cargo at Sharpness were to be reckoned among the running days, yet after she had finished discharging there the running days were to be resumed only when she arrived at the basin in the city (/), See " Running Bays '' in " Words and Expressions." § 225. A clause in a charter-party that the vessel shall be A clause as to loaded or unloaded in so many days, means that she shall be in so many loaded or unloaded in so many consecutive days (g) ; that is, ^^^l ^^ (d) Parker v. Winslow, 7 E. & B. (/) NieUen v. Wait, 14 Q. B. D. 942 ; 27 L. J., Q. B. 49. 516 ; vol. 16 (0. A,), 67. (e) M'Intoshy. Sinclair, lllr. Rep., [g) Nielsen v. Wait, 16 Q. B. D. at Com. Law, 466, at 469. 73, lines 5 to 10 ; and 77, last f-.ur lines. 134 CHARTER-PARTIES AND BILLS OP LADING. days. ^°°^ ^^^- Sundays and holidays are included in the computation of time consecutive (except, as has been said(g'), where Sunday is the first or last day), unless by the usage of the port "days" means working days (/«), or unless the context shows that working days are meant. " Sundays and holidays are included" As where a charter-party contained the following clause: "The vessel to be loaded in fourteen days, and to be discharged, weather permitting, at not less than twenty-five tons per working day (holidays excepted) " ; the Court held that the words " holidays ex- cepted " did not apply to the days for loading as well as to those for discharging, for a certain fixed number of days were given for loading, but no specific number for unloading ; and the mere fact that the words "holidays excepted" are tautological, if applied only to working days, was not of much weight in the construction of documents (»). " unless the context shows that working days are meant." As where a charter-party contained the following clause: " Load- ing and discharging the ship as fast as the steamer can work, but a minimum of seven days to be allowed merchants, and ten days on demurrage, over and above the said lying- days " (ft). A fraction of § 226. In calculatmg the number of days m respect of which a d£ com day counted as a demurrage is due a fraction of a day is counted as a day. Thus where a ship could not get to her berth until 8 a.m., at which hour she began discharging and continued to discharge until 8 p.m., and began again at 4 a.m. on the next day and finished at 8 a.m., it was held that the charterer was not entitled to set off the four hours lost on the first day against the four hours of the second day, and that the second day must be counted in favour of the shipowners {I). When a daily § 227. If a charter-party provides that cargo shall be loaded andunloaddng ^"^^ unloaded at a certain fixed daily rate, for the purposes ^xed, the qJ calculating whether, as the case may be, demurrage is due ingandun- or damages for detention of the ship are payable, the times be kept sepa- Occupied in loading and unloading must be kept separate ; and rate. [g) By Alderson, B., in Brown v. 206. Johnson, Car. & M. at 444. [k) Commercial Steamship Co. v. Boul- (Ji) Cochran v. Betherg, 3 Esp. 121 ; ton, L. E., 10 Q. B. 346. Brown v. Johnson, Car. & M. 440; 10 [l) Commercial Steam Ship Co. v. M. & W. 331. Boulton, L. E., 10 Q. B. 346. See Kay [i) Niemann v. Moss, 29 L. J., Q, B. v. Field, 10 Q. B. D. at 242, note (6). LYING-DAYS AND DEMUKEAGE. 13-'5 if there has been delay in loading, notwithstanding that the Part iii. cargo has been discharged at a greater rate than that provided chap. IV. by the charter-party, the charterer will be liable for the delay. ~ ' A charter-party provided that the plaintiff's ship should proceed to Bilbao, and there load a full and complete cargo of iron ore, and deliver the same at Middlesborough, the loading and discharging to be at the rate of 300 tons per working day ; the vessel loaded at a rate less than 300 tons per working day, but discharged her cargo at Middlesborough at a higher rate per day. It was held that the days for loading and unloading must be kept separate, and that the charterers had no right to add together the whole number of days occupied in loading and unloading for the purpose of ascer- taining the average amount of work done on each day (m). § 228. Provisions in charter-parties that days of detention As to a clause in, or prevention of, loading by a cause named, wHoh loaiSg is prevented As, for example, ice, by a cause Bamed are not are not to be reckoned as lying-days, apply only to a detention to^s^^^o^oiiea. or prevention after the cargo has been brought to the place at which the loading is actually to take place (w). By the charter-party the vessel was to " proceed to Cardiff, East Bute Dock, and there load a cargo of iron, detention by frost or strikes not to be reckoned as lay days ; " iron shipped at Cardiff is manufactured by manufacturers, who have their works at some dis- tance from Cardiff, but some of them have store places at East Bute Dock, and ship the iron from the quay there ; the charterer shipped iron manufactured by a manufactui-er who had a store place not at East Bute Dock, but on a canal from which there is a junction communicating with the Cardiff Docks ; in consequence of a frost the passage of the lighters on the canals was delayed for some days ; the loading would not have been delayed if the iron had been at a store place at East Bute Dock. It was held, that as the excuse for not loading was confined to the place where the loading was to be done, and as whatever was done to the goods before they got to East Bute Dock was no part of the loading, the delay on the canal was not a detention by frost within the meaning of the charter-party (o). By a charter-party the vessel was to proceed to Sulina, and there load a cargo of grain, " detention by ice not to be reckoned as lying-days;" at Sulina there are no store-houses available to {m) Marshall v. Bolckow, Vauglian S; 543 ; 9 App. Caa. 470. Co., 6 Q. B. D. 231. (o) Kaxj v. ReU, 10 Q. B. D. 241 («) Kay V. lieU, 10 Q. B. D. 241, at (0. A.). See CoverdaU v. Grant, 11 Q. 247, lines 24 and 26 ; and 249, lines 24 B. D. at 544 ; 9 Ap£). Caa. 470. to 27 ; CoverdaU v. Grant, 11 Q. B. D. 136 CHAETEE-PARTIES AND BILLS OF LADING. Book III. merchants in -wliicli cargoes of grain may be kept for loading vessels; graia is kept at ports on the Danube, and brought by steam ligMers down the river and over the bar at its mouth to ships awaiting their loading at Sulina ; these facts are well known to persons in the grain trade ; Galatz, a town more than 100 miles up the Danube, is the nearest to Sulina of the store-houses on the Danube; the charterer had a cargo of grain at Galatz, but in consequence of the Danube above SuUna being frozen over he was prevented from sending it down to Sulina for a considerable time after the vessel was ready to receive loading. It was held that under the circumstances the conveyance by the river between Galatz and the vessel at Sulina was to be considered as part of the act of loading, and, therefore, that the prevention from sending the cargo down the river was a detention by ice within the meaning of the charter-party (p). tSVadi*^^* § 229. If a charter-party allows so many lying-days, and might haTe provides that days during which the charterer is prevented from pleted before loading, by the happening of any of certain events named, are ventlnff^aTOse" ^°^ *° ^® reckoned as lying-days, and the charterer is, after the is immaterial, lying-days have commenced, prevented from loading during certain days by one of the events named, the fact that he might have completed the loading before the happening of that event has not the effect of causing the days during which he is so prevented to be reckoned as lying-days. A charter-party, under which the vessel was to load at Sulina (at the mouth of the Danube), contained the following clause : " Thirty running days are to be allowed the merchants for loading and unloading, and ten days on demurrage, over and above the lying-days, at 6?. per day ; detention by ice not to be reckoned as lying-days ; " the master gave the charterer's agent notice that the vessel would be ready to receive cargo on the 29th of November; the cargo was to be brought from Galatz, a place up the Danube, where it was stored {see preceding section), and it could have been brought thence to Sulina in from eighteen to seventy-two hours ; navigation on the Danube between Galatz and Sulina was un- obstructed by ice between the 29th of November and the 5th of December, from the latter of which days it remained obstructed until the 8th of Pebruary in the following year ; navigation at the port of Sulina was never obstructed by ice except between the 16th and the 20th of December ; the charterer did not send the cargo to Sulina until after the 8th of February. It was held, {p) fftidsm V. Ede, L. E., 2 Q. B. 248, and 249 ; and Grant v. Goverdale, 566; 3 Q. B. 412 (0. A); referred to 9 App. Oaa. at 477, and in the next in jr«y V. Meld, 10 Q. B. D. at 245, section. LYlNa-DAYS AND DEMTJREAGE. 137 that tte days between the oth of December and the 8tb of the Part III. following February were not to be reckoned as lying-days (j). ^^' ^^' § 230. A provision in a charter-party that compensation Detention "at 1,111, • T s 1 • -nni ^°y period of snail be paid lor detention at any period of the voyage does the voyage" not apply to a detention before the ship sails on her voyage. ohide^deten- Compare uith § 255. tionheforethe voyage oom- By the charter-party a vessel lying in a port was to sail on ™6^oed. or before a certain day to another port, and there load a cargo, the owner having liberty to take in light freight, and there were provisions that there should be so many lying-days for loading, and that each party should be permitted to detain the vessel for so many days over and above the lying-days, paying to the other at a named rate per day, as agreed, compensation for such detention ; that should the vessel be imnecessarily detained at any other period of the voyage, such detention shoiild be paid for by the party delinquent to the party observant at the above-named rate of demurrage or compensation, and that the vessel should unload at an English port at the rate of so many tons per day. It was held that the voyage did not commence until the ship had sailed from the port at which she was lying when the charter-party was signed, and, therefore, that the charterer could not recover from the owner compensation at the named rate on account of the vessel not having sailed until after the appointed day (r). As to the meaning of " voyage " in other cases, see § 255. § 231. A charter-party may he so vrorded that the clause as Clause as to to demurrage will be held to apply to delay at an intermediate ^'^''^f' and not at the final port of discharge. only to a delay at an iuter- A charter-party provided that the ship should load at a foreign mediate port, port, discharge at another foreign port, and there load for an English port, " seventy running days to be allowed the merchants (if the ship is not sooner dispatched) for loading, discharging and reloading the ship at the several ports, and ten days on demurrage over and above the lying-days at 11. per day." It was held that the charterer was not bound to pay demurrage for the days occupied in unloading at the English port, although they and the days occupied in loading, unloading and reloading at the foreign ports, added together, amounted to more than seventy days, for the word " reloading " limited the meaning of the word "discharging " to a discharge before the ultimate loading («). (?) Mudson V. Ede, L. R., 2 Q. B. 270 ; 28 L. J., C. P. 229 ; see Barker 566 at 579, last paragraph, and 580 ; v. McAndrew, 18 0. B., N. S. at 772. 3 Q. B. 412 (Ex. Oh.). (s) Sweeting v. Barthets, 14 C. B. {r) VaUnte v. Qihhs, 6 C. B., N. S. 538; 23 L. J., 0. P. 131. 138 CHAETER-PAETIES AND BILLS OP LADING. Book III. § 232. On the other hand, the charter-party may be so or not apply "worded that the clause as to demurrage -will be held not to at an mter- ^PP^J ^0 delay at intermediate ports. By tte charter-party the vessel was to sail from the port of London to Portsmouth, to join convoy and proceed thence to discharge her cargo at Barcelona; forty-one days were allowed for waiting at Portsmouth for convoy and for discharging at Barcelona, and demurrage was to be paid for all the time beyond the days so allowed. She was detained twelve days at Portsmouth and sixty-two days at other ports waiting for convoy. It was held, that demurrage was not payable for the days during which she waited for convoy at other ports than Portsmouth (<). Demurrage clause applies both, to load- ing and un- loading where there are so many days given for each. Where ship has to be altered to admit bulky piece of cargo. § 233. If a charter-party contains a clause giving so many days for loading, and another clause giving so many days for unloading (whether immediately following the former or not being immaterial), a demurrage clause coming after the clause which gives so many days for unloading applies to loading as well as to unloading (u). § 234, If the shipper has agreed to load a bulky piece of cargo, and that it shall be put in the vessel, stowed, taken out, and landed at the shipper's risk and expense, and it is impossible to stow this piece without widening the hatchway (as the shipper knew before the agreement was made would be the case), and in consequence of such widening the vessel is delayed beyond the lying-days, the shipper is liable to pay demurrage {x). Note I., see latter part of § 220. — Breit, J., in Stanton v. Eichardson (y), expressed the opinion that questions as to the inter- pretation of a written agreement must be decided without regard to the knowledge of either party hefore they entered into it. See, however {in addition to Harris v. Dreesman and Adams v. Royal Mail Steam Packet Company, referred to in § 220), Blech. v. Balleras (z). The learned judge appears to have subsequently altered his opinion, see Johnson v. Eayltoii(a) and Cunningham v. Dunn (S), cited in § 175. See Note to § 172. [t) Marshall x. De la Torre, 1 Esp. 367. (u) Kish V. Cory, 44 L. J., Q. B. at 207 ; L. E., 10 Q. B. at 557, 558. [x] Blech V. Balleras, 3 E. & E. 203 ; 29 L. J., Q. B. 261 ; already cited, see \ 172. (y) L. E., 7 C. P. at 428, 434. (2) 3 E. & E. at 215, per Wightman, J., and 219, last 2 lines, and 220, first 4 lines ; and Posttethwaite v. FreeUmd, 5 App. Cas. at 619, last 3 lines. (a) 7 Q. B. D. at 450 and 452, cited in § 68. [b] 3 C. P. D. at 448, 449 ; see also 449, per Cotton, L. J. LYING-DAYS AND DEMURRAGE. 139 Note II., see § 223.— TVie rule as stated in the first part of this Part III, section IS founded on the judgment of Brett, L. /., in Nelson v. Dahl. Chap. IV. In some earlier cases, as, for instance. Brown v. Johnson (c), there are dicta to the effect that if a port, as, for instance, London, which is very extensive, including as it does Gravesend, is named, the lying- days commence, not when the vessel is in the port, hut when she is in the dock at which vessels usually load or unload. But in such a case there would probably be a usage that the dock is to be intended by the place named in the charter-party. In Brereton v. Chapman {d), it ivas held that under a charter-party hy which the vessel was to unload at Wells, or as near thereto as she could safely get, the lying-days com- menced when she arrived, not at the entrance of the Port of Wells, but at the place where it ivas usual to unload ; but in that case, " by the custom of the Port of Wells, the lying-days for unloading did not com- mence running till the vessel arrives at the quay " (e). Note III., see § 223 (i.) — In Davies v. McVeagh (/), the vessel was to load a cargo of coals at Liverpool, " in Wellington Dock, High Level." At the end of Wellington Dock was a high level railway and platform, with convenient tips for loading coal. In consequence of the regulations of the dock authorities she was unable to obtain a berth at the high level until several days after she had entered the Wellington Dock. It was held, that the lying-days commenced when she entered the dock. As was remarked in Murphy v. Coffin {g), this decision treats the charter-party as if the words " high level" had not been contained in it. It seems scarcely likely, however, that " the attention of the Court in Davies v. MeVeagh was not called to the fact that under the charter-party the high level was the place of destination," as it was argued before Brett, L. J., at Liverpool, " that the liability of the charterer did not initiate until the ship was at the high level in Wel- lington Dock, which was the place of loading " (A). (c) lOM. &W. 331; see aXso Tapsoott [e] See Mcintosh v. Sinclair, 11 Ir. T. Balfour, L. E., 8 C. P. at 52, lines Rep. Com. Law at 467, and Nielsen v. 14 to 19, and Parker v. Winfon, 1 E. & Wait, 14 Q. B. D. at 526. B. 943 ; 27 L. J., Q. B. 49. (/) 4 Ex. Div. 265 (0. A.). [d) 7 Bing. 539. [g) 12 Q. B. D. at 90. [h] Nelson v. Dahl, 12 Oh. D. at 590. 140 Book III. CHAETER-PAETIES AND BILLS OF LADING. Paet IV. OF THE NECESSITY OF PEEFOEMING THE AGEEE- MENT CEEATED BY THE CHAETEE-PAETY OE EVI- DENCED (o) BY THE BILL OF LADING, UNLESS PEEFOEMANCE IS EXCUSED BY THE EXCEPTIONS ; OF THE EXCEPTIONS EXCUSING PEEFOEMANCE, and OF PEOVISIONS FOE THE D^ETEEMINATION OF THE AGEEEMENT IN OEETAIN CONTINGENCIES. OHAPTEE I. Of the Necessity of Pekformikg the Agreement created BY THE Charter-party or evidenced [a) by the Bill OF Lading, unless Performance is excused by the Exceptions. ■Non-perfonn- § 235, If either party does not perform the agreement only by the Created hy the charter-party or evidenced by the bill of lading, t^naiin\he ^^ ^^ liable to the other party {h), unless the non-performance is exceptions, owing to some cause which, according to the language of the formanoebe- charter-party or bill of lading, excuses him from performing m^™L the agreement, or unless the performance of the agreement would be contrary to the law of England, or, as it seems, to the law of a foreign country to which the ship belongs, and of which (a) See Prefatory Note to this Book, at 134, paragraph beginning "There p. 85. is" ; L. E., 5 Q. B. (C. A ) at 547, (J) Fordy. Cotesworth, L. E., 4 Q. B. per Martin, B. PERFORMANCE, UNLESS EXCUSED, OBLIGATORY, 141 the owner or master is a subject. 8ee Note I. at the end of this ^art iv. Chap, I. Vhajpter. As to an agreement not being binding if the performance of it would be contrary to laiv, see § 21. (i.) Therefore The forcible robbery by armed men of the goods carried (c) ; The destruction of the goods by fire (d) ; The vessel running against an anchor to which no buoy is fastened (e) ; A port being in a state of blockade (/) ; The confiscation by a foreign government of the goods as being contraband (g) ; The reasonable apprehension of capture by an enemy's ship {h) ; ■will not excuse a shipowner whose failure to deliver the goods is owing to any of the above named causes, if these causes are not among the exceptions in the bill of lading. (II.) So— The prohibition by a foreign government of loading (i) ; The prohibition by the law of a British possession {i) of such communication as is necessary for the purpose of loading {k) ; The fact, where a cargo of guano is to be loaded at a guano island, that there is no guamo there to be loaded (l) ; The fact (where a cargo of coal is to be loaded) of the colliers at the collieries from which the coal is to be obtained being on strike, or delay caused in the delivery of the coals by a dispute between the railway company along whose line the coal is to be brought from the collieries and the coal owners respecting the rates of carriage (m) ; The prevention of loading by ice, either in the port of loading {n) (c) Barclay v. Cuculla y Gana, 3 (i) Sjoerds v. Luscombe, 16 East, 201. Dougl. 389. {k) Barker v. Sodgson, 3 M. & S. [d) Forward v. FUtard, 1 T. R. 27. 267. This was the case of a carriage by [jt] Hills v. Suglirue, 15 M. & W. land, but there is no distinction be- 253. Although in this case it was the tween a carrier by land and a carrier shipowner, not the charterer, who re- by water. Trmt and Mersey Naviga- lied as an excuse on the fact of there tion Co. V. Wood, 4 Dougl. at 289 and being no guano, yet as the shipowner 290, per Lord Mansfield ; and 290, per (see § 190) undertook to do what is BuUer, J. ; 3 Esp. at 130. usually done by the charterer, namely, (c) Trent and Mersey Navigation Co. provide the cargo, it is cited among V. Wood, 3 Esp. 127 ; 4 Dougl. 287. the excuses for non-performance relied (/) Medaros v. Sill, 8 Bing. 231. on by the charterer. [g) Spence v. Chadwiclt, 10 Q. B. [m) Adamsy. Royal Mail Steam Packet 817. Co., 5 0. B., N. S. 492. (7() The Patria, L. E., 3 A. & E. («) Barrett v. Button, 4 Camp. 333. 436. 142 CHAETEE-PAETIES AND BILLS OP LADING. Book III. or on a canal by wMch the goods to be loaded are to be brought to the place of loading (^); The prevention of loading by rough weather {q), or the circum- stance that the persons employed by the charterer to load have other vessels which have to take their turn of loading before the vessel chartered by the charterer (r) ; will not excuse a charterer whose failure to load within the proper time is owing to any of the above-mentioned causes, if these causes are not among the exceptions in the charter-party. Note I. — The general rule is, that a party who has agreed to perform an act is not excused hy showing that the performance would he con- trary to the law of a foreign country. See Corollary to § 21. Thus it was held, that a charterer who was sued for not sending a cargo alongside the ship at Oibraltar, according to his covenant in the charter-party, was not relieved from liability hy showing that in con- sequence of a malignant disease having hrohen out at Oibraltar, a British possession, all such communication as was necessary fot the purpose of sending the cargo alongside the ship was prohibited and unlawful («). But it seems that there is an exception to this rule in the case where the shipowner is the subject of, and the vessel belongs to, a foreign country. Where a charter-party made between the master of the ship and a British subject, after describing the master and the ship as of Naples, provided that the ship was to take an outward cargo from an English port to Naples and there discharge, and then proceed to a named Russian port and there load, it was said in the judgment that if war had brohen out between the Emperor of Russia and the King of Naples, the vessel would have been absolved from going to the Russian port, and might forthwith have proceeded upon another voyage if). By a charter-party made between the master of a Prussian vessel {both owner and master being Prussians) and a British subject, the vessel was to proceed to and unload at a French port, if ordered. She was ordered to a French port, Dunkirk; before she could have un- loaded war was declared between France and Prussia. Sir Robert Phillvmore said: " The law of Prussia, the state to which the ship belonged, prevented the unloading at Dunkirk. The contract was no longer capable of being performed by the master without a criminal compromise of public duty " [u). In the judgment in the Privy Council, on appeal, it was said : " If the master had entered Dunkirk, and it had turned out that war had been previously declared, he would {p) Kearon v. Fearsm, 7 H. & N. [t) Esposito v. Bowden, 7 E. & B. at 386. 792. (q) Thiis T. Byers, 1 Q. B. D. 244. («) The Teutonia, L. E., 3 Adm. & (r) Asheroft v. Cron Orchard Colliery E. at 414. As to whether the master Co. L. E. 9 Q. B. 540. could recover any remuneration, see (s) Barker v. Sodgson, 3 M. & S. 267. § 265. PEEPOEMANCE, UNLESS EXCUSED, OBLIGATOEY. 143 fiave entered it with notice that he was entering an enemy's port ; and this would have obviously exposed his ship to condemnation, and might have exposed himself to severe penalties when J^e returned to his own country. When an English merchant ships goods on board a foreign ship, he cannot expect that the master will act in any respect differently towards his cargo than he would towards a cargo shipped by one of his own country." It was held, in affirmance of the judgment of the Admiralty Court, that the master was justified inputting lack to the Downs for the purpose of ascertaining whether war had been declared, and committed no breach of contract in refusing to deliver the cargo at Dunlcirh {x). Note II. — As to the act of God not excusing a person who has absolutely agreed to do a thing, see § 6. The owners of a vessel plying hahitually between given ports, and carrying the goods of all comers as a general ship, are common carriers (y) ; and if they receive goods for which no bill of lading is given (z), they are not liable for any loss which is owing to the act of God or the king^s enemies (a). ♦ Part IV. Chap. I. («) The Teut(mia,Xi. E., 4 P. C. 171, at 179, 180. [y) Nugent v. Smith, 1 C. P. D. at 427. (z) Nugent Y. Smith, 1 0. P. D. at 21, line 7 ; Zay v. Wheeler, L. E., 2 C. P. at 304, first 6 Unes of the judgment. Compare with Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D. at 528, first 2 sentences of the last paragraph. {a) Bale v. Hall, 1 WUs. 281 ; For- ward V. Fittard, 1 T. E. 27 ; Laveroni V. Brury, 8 Ex. at 170 ; Nugent v. Smith, 1 0. P. D. at 431. 144 Book III. CHAETEE-PARTIES AND BILLS OF LADING. CHAPTEE II. Or THE ExCEPTrONS EXCUSING PERFORMANCE. Compare tvith Book IV., Part V., Chapter II. Meaning of § 236. A provision in a cliarter-party or a bill of lading God." exempting either party from liability for non-fulfilment of the agreement if the non-fulfilment is owing to the act of Grod, -will not exempt him, unless the non-fulfilment is owing to some direct and violent act of nature which could not have been guarded against by ordinary exertions of human skill and diligence («). Tims, where the defendants' steam-packet, wliioh was towing a tow-boat, on board of wHcb were the plaintiff's goods, stopped its course as it approached a pier in order to allow another vessel to clear away from the pier, and in consequence of the stoppage the tow-boat was driven by the wind and tide against the rudder of the steam-packet, so as to cause a leak, in consequence of which the plaintiff's goods were damaged ; it was held, that the loss was not occasioned by the act of God, there being nothing unusual in the state of the wind or tide, and the proximate cause of the acci- dent being the stoppage, which was the act of man (J). Meaning of § 237. A provision in a charter-party or bill of lading (( 'flip Oupah'r enemies." exempting either party from liability for non»-fulfilment of the agreement, if the non-fulfilment is owing to the act of the Queen's enemies, wiU exempt him if the non-fulfilment is owing to the act of any sovereign ruler who makes war with [a) Nugmt v. Smith, 1 C. P. D. at PacTcet Co., 25 L. J., Ex. 99 ; 11 Ex. 437, 438. 618 ; see also Smith v. Shepherd, cited lb) Oakleyy.Port of Fortsmmith Steam at 11 Ex. at 622. OF THE EXCEPTIONS EXCUSING PERFORMANCE. 143 or against whom war may be made (c) by tbe sovereign of the ^a"^* ^^• shipowner (c?). '■ — Ttus, tlie words "the king's enemies" in a bill of lading for goods sHpped on board a Mecklenburg ship were beld to mean the enemies of the Duke of Mecklenburg- Sctwerin (e). § 238. A provision in a charter-party excluding liability for The exception non-fuliilment of the agreement which is owing to the restraint straint of of princes and rulers will, in the absence of express words f™^? benefit showing a contrary intention (/), be held to have been inserted °^ ^^^ ^hip- for the benefit of the shipower alone (g). Thus, where under a charter-party containing this provision the ship arrived at her port of loading in the United States, but the loading was prevented by the fact that the Government of the United States had laid an embargo on all shipping, and refused to allow the charterer to load, it was held that he was liable for not loading {h}. § 239. A provision in a charter-party exempting the ship- Meaning of owner from liability for non-fulfilment of the agreement if the rulers." non-fulfilment is owing to the restraint of princes and rulers, will not exempt him unless the non-fulfilment is owing to an actual and operative restraint (i), As, for instance, the port named being closed by the government of the country {j) or being blockaded {¥}, and not to a merely expected and contingent restraint (l), As, for instance, an anticipation (even although it proves to be well founded) that an embargo will shortly be laid on shipping in the port (m). (c) The Heinrich, L. R., 3 Ad. & E. [h) SJoerdsv. Luscombe, 16 East, 206; at 435. Touting v. EiiUard, 3 B. & P. 298. ?v.iVisc»jffl«»,17C. B., N. S. (i) Atkinson t. Mitchie, 10 East, at 163 ; 34 L J., C. P. 10 ; The Teutonia, 634. L. R., 3 Ad. & E. 394 ; L. R., 4 P. 0. [j) Ogden v. Graham, 1 B. & S. 773 171. at 781. (e) Russell v. Niemann, 17 C. B., {k) Geipel v. Smith, L. R., 7 Q. B. N. S. at 173. 405. (/) As vnBruceY. Nicolopuh, 11 Ex. {!) IRodoeanachi y. Elliott, L. R., 8 129, where the words in the charter- C. P. at 665, lines 5 to 2 from the party were ' ' the restraints of princes bottom, and 670, lines 2 to 7. and rvders . . . mutually excepted." [m) Atkinson y . Ritchie, WEaat, 5ZQ ; See also Crow v. Falk, 8 Q. B. at 471 . Forster v. Christie, 11 East, 205 ; Rodo- {g) For a dictum of Martin, B., in canachi y. JSllioit, L.. R., 8 0. P. at opposition to this rule, see Ford y. 665; Geipel y. Smith, L. E., 7 Q. B.at Cotesworth, L. R., 5 Q. B. at 548, last 407, per Cookburn, C. J., and Lush, J. 3 lines. W. L 146 CHARTER-PARTIES AND BILLS OP LADING. Book III. Whether a confiscation hy customs officers is a restraint of princes, see Al. Eang v. Australasian Steam Navigation Co., cited in the next section. ilrpKons d^^ § 240— (i.) Words in a bill of lading restricting the liability not apply to a of the shipowner or master will not, unless a contrary intention by the ship- be clearly shown (w), exempt him from liability for a loss gSoT. ^"^^ " occasioned by the default of his servants or the crew employed on the carrying vessel (o). Tins an exception of leakage and breakage does not include leakage or breakage caused by the negligence of the shipowner's servants in stowing (jj). So a confiscation of the goods at a foreign port by reason of the omission of the master to insert an entry of them in the ship's manifest, as required by the law of the port, has been held by the Supreme Court of Victoria not to be within the exception of "re- straint of princes" in a bill of lading, because, even if the acts of customs ofBoers in a foreign port could be considered as restraint of princes, the act which led to the confiscation was the default of the master in not complying with the laws of the port into which he put (j). So an exception of " collision" does not include a collision caused by the negligence of the shipowner's master or crew (r). So an exception of "thieves" does not include a theft of the goods by the crew or by one of the passengers, but applies only to a theft by some person not connected with the ship («). See Note 11. pp. 153—155. Other instances where the defendant ivas not excused hy the ex- ceptions, the loss having arisen from the negligence of his servants, are given in the foot-note (t). (ii.) But they will exempt the shipowner from liability under (n) As in T/ie Diiero, L. E., 2 Adm. (y) Ah Kang v. Australasian Steam & E. 393 ; see at 396. Na/vigation Co., 9 Vict.LawRep. (Law) [o) Phillips T. Clark, 2 0. B., N. S. 171. For another point decided ia at 162, first 8 lines ; Zloyd v. General this case, see § 243. Iron Screw Co., 3 II. & C.28i; F!iillips {r) Chartered Mercantile BanJc of T. Edwards, 28 L. J., Ex. at 53, last India v. Netherlands India Steatn Navi- paragraph, and 54, first 2 lines; The gation Co., 10 Q. B. D. 521. See at Melene, L. E., 1 P. C. at 238 ; The 631 and 543, first 5 lines. Chusca, L. E., 4 Adm. & E. at 449 ; (s) Taylor v. Liverpool and Great Manchester, ^c. Sail. Co. v. Lancashire Western Steam Co., L. E., 9 Q. B. Sail. Co., 8 App. Gas. at 704, last para- 646 ; 43 L. J., Q. B. at 207, 2ud ed. graph, and 710. [t) Czech v. General Steam Navigation {p) Czech V. General Steam Navigation Co., L. E., 3 C. P. 14 ; Leuw v. Co., L. E., 3 0. P. 14 ; Chartered Mer- Dudgeon, 16 W. E. 80 ; 17 L. T., N. S. cantile BanJc of India v. Netherlands 145; L. E., 3 C. P. at 17, note 4 ; 37 India Steam Navigation Co., 10 Q. B. D. L. J., C. P. 6, note ; Phillips v. Clarlc, at 542. 2 C. B., N. S. per Willes, J., at 161 and 164. OF THE EXCEPTIONS EXCUSING PEBFOEMANCE. 147 the agreement (see the Note) for a loss occasioned ty the default ^^'^^ ^• of the master or crew of another vessel helonging to him. Thus, where there was an exceptioa of " collision,'' and also of " loss or damage from any act, neglect, or default of the master, mariners, or other servants of the'' shipowners, and a loss was occasioned by a collision, which took place partly from the default of the crew of the carrying vessel and partly from that of the crew of another vessel belonging to the same shipowner, it was held that although the last exception did not apply to the default of the crew of the other vessel, yet the rule that words restricting the liability of the shipowner do not exempt bi'-m from a loss occasioned by. the negligence of his servants, refers only to the negligence of his servants employed in carrjdng out the agreement ; and, therefore, that as the exception of " collision " covered the coUision so far as the other vessel contributed to it, even although it was caused by the negligence of its crew, while the negligence of the carrying vessel so far as it contributed to the coUision was covered by the other exception, the shipowners were not liable («). Note. — The shipoioner, though not liable in an action founded on the hill of lading, is liable in an action for a tort, in which action one- half the amount of the loss would be. recovered (u). § 241. Words exempting the shipowner from liahility for a Exceptions as loss occasioned by the negligence or default of the master or ^o "ot apply crew or his other servants, will not exempt him from liability *° tiie sMp- ' ^ •' owner s per- for a loss occasioned by his personal negligence or default. sonai negli- genoe. Thus, such words will not exempt him. from liability if he know- ingly appoints an iacompetent master, and a loss arises from the master's incompetence (aj). § 242. Words exempting the shipowner from liability for a "Innaviga- loss occasioned by default "in navigating the ship," do not ship." exempt him from liability for a loss occasioned by negligence in stowing (i/). Although the Court of Appeal {see § 244) based its judgment on another ground, yet it did not express dissent from the judgment of Denman, J., which was lased upon the ground stated above. § 243. Words in a bill of lading exempting the shipowner from liability for " loss or damage from any neglect or default of the pilot, master, or mariners, or other servants of the ship- (m) Chartered Mercantile JBtmk of East India Steam Navigation Co., 10 India t. Netherlands East India Steam Q. B. D. at 532 and 533. Navigation Co., 10 Q. B. D. 521, C. A. {y) Sat/n v. CuUiford, 3 0. P. D. (a;) Per Brett, L. J., Chartered Met- 410 ; vol. 4 (C. A.), 182. eantiU Bamh of India v. Netherlands l2 148 CHARTER-PARTIES AND BILLS OF LADING. Book III. owner, in navigating the ship, or under any other circumstances," have heen held by the Supreme Court of the colony of Victoria not to exempt him from liability for the confiscation of the goods at a foreign port, by reason of the omission of the master to insert an entry of them on the ship's manifest as required by the law of the port ; Because the language of the exception must be construed strictly against the shipowner {see § 3), and the words " or under any other circumstances whatsoever," must be construed as relating to the conduct of the master on matters in some way connected with the navigation of the ship, as, if they were to be construed as altogether independent of the words immediately preceding them, those words would be useless (z). Master, offi- § 244. Words exempting the shipowner from liability for the default of the master, officers, and crew, do not exempt him from liability for the default of his other agents and servants ; Therefore not for the negligence of a stevedore in stowing the goods {a). A loss from § 245. A loss Occasioned by a collision which took place from casionediiy the negligence of the master or crew, either of the carrying notafossfrom vessel Or of another vessel, is not a loss from the "perils, dangers, the perils of qj, accidents of the sea " within the meaning of the exception in the seas. _ _ ° ■"■ a charter-party or bill of lading (b). Losses by §246. Losses Occasioned by pirates (c), or by collision, wTthinthe ^°t Occurring from the fault of the master or Crew of either exception. g]^jp ^^^^ qj, ^j sea- water passing through a hole made by rats (without there being negKgence on the part of the master or crew) (e), are losses by the perils, dangers, and accidents of the sea within the meaning of the exception in a charter-party or bill of lading. Losses by § 247. Losses Occasioned by barratry (/), by the ship not barratry, or by . ./ v./ /7 .< jr rats, or by the being seaworthy, or by rats gnawing the goods (p'), are not ship not being seaworthy. ; — (a) Ah Kang v. Australasian Steam India v. Netherlands India Steam Nm>i- ' Navigaiim Co., 9 Viot. Law Rep. i/aft'ow Co., 10 Q. B.D. at 530 ; Woodley (Law), 171. For another point de- v. Miehell, 11 Q. B. D. at 52. cided in this ease, see § 240 (i). («) Pandorfy. Hamilton, 16 Q. B. D. («) Hayn v. Culliford, i C. P. D. 629. 182 (0. A.). (/) The Chased, L. R., 4 A. & E. (J) WoodleyY. Miehell, 11 Q,.'B.^.i1. 446. For the meaning of this word, (e) 2 Rolle's Abr. 248, pi. 10 ; Eus- see "Words and Expressions." See sell V. Niemann, 17 C. B., N. S. at 176 ; Note II. p. 153. Abbott, 330. (y) Kay v. Wheeler, L. R., 2 C. P. [d) Chartered Mei-eantile Bamh of 302. OF. THE EXCEPTIONS EXCUSINO PERFORMANCE. 14^ ■within the meanina' of the exception of " the dangers and acoi- Part I v. , , J.,, . ■,•,•„ Chap. II. dents 01 the seas, rivers, and navigation. "Losses occasioned by ... . the ship not being seaworthy .... are not xdthin the meaning of the exception" S^c. Thus, if a steamship becomes disabled in consequence of the breaking of her crank shaft, caused by a latent defect arising from a flaw in the welding which it was impossible to discover, the ship- owner is not protected by the exception in the bill of lading of " the dangers and accidents of the seas and of navigation " {h). § 248. A cause vi^hioh merely temporarily prevents the com- A temporary pletion of the voyage is not within the meaning of the exception not^th^the of the damages and accidents of the seas in a charter-party or exceptions. bill of lading. The charter-party, the purport of which is stated in § 201, con- tained an exception of the dangers and accidents of the seas, rivers, and navigation. It was held that the fact of the water in the river being temporarily too low to admit of the vessel sailing up was not a prevention within the meaning of the exception (i). § 249. An inability on the part of either party to fulfil the What are not agreement, occasioned by something that happens in the ordinary beyond the course of things, is not within such an exception as " accidents ^^f^^ ^ '^°^' beyond his control." Thus, where by the charter-party the charterers were to load in regular and customary turn, except in the case of riots, strikes, or other accidents beyond their control, which might prevent or delay the loading, it was held that they were not excused by the snow being so deep on the ground as to render it impossible to bring the cargo to the place of shipment, a fall of snow being one of the ordinary operations of nature, and not in popular language an accident (/). § 250. A loss occasioned by theft is not a loss by robbers Loss by theft. within the meaning of the exception " robbers" (which applies to a taking away by violence that cannot be resisted), unless there is something in the bill of lading or charter-party, or the surrounding circumstances, to indicate a contrary intention (k) . See Note II. p. 153. [h) The GUnfruin, 10 P. D. 103. Smith, J., in the report in 18 L. T., (i) Schilizzi v. Derry, cited in § 201. N. S. at 28. (j) Fenwick v. Schmalz, L. R., 3 {k) De jRothsehildy. Mot/al Mail Steam C. P. 313. As to an extraordinary Tacket Co., 7 Ex. 734. fall of snow, see the judgment of 150 CHARTKE-PAETIES AND BILLS OF LADING. BookliL § 251. A loss occasioned by theft is not a loss -witliin the meaning of the exception " the dangers of the seas, roads and riYers." It was held, upon, a bill of lading under -wHoli the goods were to be carried partly by land as well as by sea, either that the word " roads " meant marine roads in which vessels lie at anchor, or that, if it meant roads on land, the dangers intended were those immediately caused by roads, such as the overturning of carriages in rough and precipitous places {k). A loss by theft § 252. A loss occasioned hy the goods being carried away by is not H '—'•-'«/«' damage to the robbers or thieves is not a damage to the goods within the ^°° ' meaning of such an exception in a bill of lading as "the shipowner is not to be liable for any damage to any goods which is capable of being covered by insurance," Such an exception applying to a damage to the goods themselves, and not to a loss to the owner of the goods (J). "Leakage." § 253. A loss by leakage, whatever the quantity lost may be, is within the exception of " leakage " (m) . As to a loss hy leakage, occasioned by negligence, not being within the exception, see % 240 (i). § 254. Damage to goods occasioned by leakage from other goods, or by other goods being broken (even if both lots of goods were carried under the same bill of lading), is not within the exception of " leakage or breakage" (m). Thus, where barrels of oil and palm baskets were carried under a bill of lading, which contained the words "not accountable for leakage or breakage," and the palm baskets were damaged by oil, which had escaped from the barrels, the shipowners were held liable for the damage to the baskets (n). Meaning of § 255.— (i.) If a charter-party provides that the ship shaU voT^e " '^ ^°^'^ ^^ ^^"^ ^^^ from a port, but contains no provision as to her sailing to the port of loading, a delay in loading, occasioned by a cause which would have been within the exceptions if it had [h) De Hothsehild Y.Moyal Mail Steam on this bill of lading, § 240(i). Packet Co., 7 Ex. 734. [m) Ohrlof\. Briscall, L. R., 1 P. C. (I) Taylor v. Liverpool and Great 231. Western Steam Co., L. R., 9 Q. B. («) Thrift v. Toule, 2 C. P. D. 432, 546. See for another point decided OP THE EXCEPTIONS EXCUSING PERFORMANCE. 151 occurred after ila.6 ship had sailed from the port of loading, is not Part iv. within an exception of causes or dangers " during the voyage " ; '■ — '■ — Because the exception ia confined to tlie time during tlie voyage, ■while the breach hy not loading at the time appointed takes place before the voyage begins (o). Pollock, C. B., in Bruce v. Nicolopulo {p), expressed dissent from Crow V. Falk (o) [the case on which the above point was decided), as did Willes, J., in Barker v. M' Andrew (j); hut m Valente v. Gibbs (r) Coclcburn, C. J., said that he was not disposed to dissent from it. Compare with § 230. (ii.) But if by the charter-party the vessel is to sail to the place at which she is to load, a delay in loading, occasioned by the dangers of the seas, whether such dangers occurred during the preliminary passage to the place of loading or at the place of loading (s), is within an exception of the dangers of the seas " during the voyage " {t) ; Because the voyage commences ■when the vessel sails to fulfil the obligations of the shipo^wner under the charter-party (m). § 256. The exception in a charter-party or bill of lading of Exception the dangers of the seas does not excuse the master of the ship cuseSVe^' if he proceeds on the voyage after she has to his knowledge "^oyage is con- become unseaworthy, and he has had the opportunity of repair- out repairing ing her, or of discontinuing the voyage («) . § 257. If the vessel is by one of the causes mentioned in the a temporary- exceptions rendered incapable of receiving cargo for a time, does^n*t°ex- which is not so long as to frustrate the object for which the ousefomot . loading. vessel was chartered {see § 162), the exceptions have not the effect of excusing the charterer from loading. By the charter-party the charterer was to load at a foreign port a full and complete cargo of cotton in bales, fire and the other (o) Crow \.Fanc, 8 Q. B. 467. [t) Barker v. M' Andrew, 34 L. J., [p) 11 Ex. at 132. C. P. 191 ; 18 C. B., N. S. 759. [q) 34 Ij. J., C. P. at 194. (m) Bruce v. Nicolopulo, 11 Ex. 129. [r) 6 0. B., N. S. at 285. [x) Worms v. Storey, U Ex. 427 ; (s) Per Willes, J., 34 L. J., 0. P. Be Cuadra y. Swarm, 16 0. B., N. S. at 193. at 795 ; Atwood v. Sellar, 4 Q. B. D. at 366 and 357. 152 Book III, If the per- formance of one part is excused, the performance of the other is. CHARTEE-PAETIES AND BILLS OF LADING. dangers and accidents of the seas excepted; the charterer had loaded a certain number of hales, when a fire broke out, and the master ordered the vessel to be scuttled ; the cargo on board was so damaged that it had to be sold by the master by auction ; the vessel was repaired with dispatch, and was two months after the part which was so damaged had been loaded tendered to the charterer's agents to take the remainder of the cargo ; but they refused to supply more cargo. The charterer was held liable ( y). § 258. If the performance of a material part of the agree- ment created by the charter-party is excused by one of the causes mentioned in the exceptions, the performance of any other part of the agreement is excused, at all events if the agreement remains executory (s). Compare mth § 101. Thus where the charter-party contained the exception of " the restraint of princes," and the port of discharge was blockaded after the making of the charter-party and before any cargo was put on board, it was held that the shipowner was not bound to receive loading and then sail to the port of discharge as soon as possible after the blockade had ceased, because it was an entire agreement, and it would have been no advantage to the charterer that the cargo should be loaded if it could not be discharged (a). § 259. If a bill of lading contains such words as " paying freight for the said goods and all other conditions as per charter-party," these words do not incorporate exceptions in favour of the shipowner contained in the charter-party. The " conditions " being limited to those to be performed by the receiver of the goods (6). Loss CAtrSED BY TaCKLE arVING WAT. Note I. — It was decided in Laurie v. Douglas (c) that a loss occa- sioned hy the sudden canting over of the vessel, which was in the dock fastened hy a tacTde hloch from her masthead to a lighter lying outside her, the canting over being caused hy the hreaking of the hooh of the tackle, was a loss hy the dangers and accidents of the seas and naviga- tion loithin the meaning of the exceptions in a hill of lading. The {y) Jones v. EoUn, L. E., 2 Ex. 335. , [z) Ddhl T. Nelson, 6 App. Cas. at 63. (a) Geipel v. Smith, L. E., 7 Q. B. 404. (4) Ernsell v. Niemann, cited in Corollary to § 2, p. 3. As to demur- rage being incorporated by such words, see GtiUischeny. Stewart, cited in § 150. (e) 15 M. & "W. 746. OF THE EXCEPTIONS EXCUSING PERFOEMANCE. 153 reasons for the judgment are not reported, and it is not easy to imagine Part IV, tohat they could have been. As the jury negatived negligence, it would . seem that the tackle must have been insufficient, and therefore that there had been a breach {see § 161) o/" the implied condition that the ship should be fit for its purpose. Note II., see § 250. — There seems to be no clear decision in England on the question whether a loss occasioned by the goods being stolen by some person not connected with the ship is a loss within the meaning of an exception of " thieves." A bill of lading contained an exception of '^robbers, thieves, barratry of master and mariners, pilferage ;" a box of diamonds, shipped under such a bill of lading on a ship which carried passengers, loas stolen, but whether during the voyage, or after her arrival in port and before the time for de- livery had arrived, and whether by one of the crew, or by a passenger, or after her arrival by some person from the shore, there teas no evidence to shotv. It tvas held that the shipoivners ivere not protected by the above exception, because, if the goods ivere stolen by the crew or the passengers, the rule that a shipowner, in the absence of words shoioing a contrary intention, is not protected by the exceptions from a loss occasioned by the default of his servants or cretv {see § 240 (l.) ) applied, and there was no proof that the goods were stolen by persons not connected with the ship, while the exception of " barratry " did not avail, because the goods might have been stolen, not by the creiv, but by one of the passengers. According to the reports in the Law Reports {d) and in the Latv Journal (e). Lush, J., was of opinion that the exception of " thieves " would have availed the defendants if they could have shoivn that the theft was committed by '■'persons outside the ship and not belonging to it." Archibald, J., hoivever, apparently thought that it would have been necessary for them to show that the goods were taken away by theft with violence (latrocinium) as opposed to theft without violence (furtum). According to the report in the Weekly Reporter {f), Lush, J., thought that " the word ' thief ^ must he taken to mean the same as it is held to mean in policies of insurance, namely, not furtum, but latrocinium." If the decision was really based on the ground that prima facie the id) 9 Q. B. at 549. outside the ship, that being the mean- (e) Vol. 43, Q. B. at 207 : "It lies ing which I attach to the word upon the defendants to show that the 'thieves.'" theft was committed hy some person (/) Vol. 22, at 754. 154 Book III. CHAETEE-PAKTIES AND BILLS OF LADING. word ^'thieves" must, in the exceptions in a hill of lading, bear the same meaning as it hears in a policy, and that in a policy it applies only to theft hy violence, and is, in fact, synonymous with ^' rohhers,'^ it is necessary to consider what authority there is for holding thai this is the proper meaning of the word "thieves" when it occurs in a policy. In Parlt, on Insurance (g), after a statement of the opinion of Roccus, it is said: "It was thought proper thus to state the opinion of this learned writer upon the subject, the law of England in this respect being silent, though his reasoning upon this subject is by no means conclusive as to Bnglisli insurances on account of the express terms of the contract." In Arnould on Marine Insurance {h)it is laid down that " the under-' writer is not liable for loss occasioned by theft (furtum) or larceny, as distinct from latrocinium {or robbery accompanied with violence) . . . even although the risk of ' thieves ' is one of the enumerated risks in all our common policies." No decision of any English or American Court is cited in support of this position, the references being to Emerigon, Bonlay-Paty and Kent's Commentaries. Kent refers to the decision of Chancellor Walworth, in New York, that the clause in the modern policies against loss by thieves applied to the acts of thieves who stole from the ship while she lay at the wharf, which, he says, "may be reasonable, and is according to the popular acceptation of the word ' thieves,' but it is against all the authorities, foreign and domestic ;" but none of the authorities he refers to are decisions upon a policy containing the word " thieves." Chancellor Walworth pointed out{i) that " some of the learned writers clearly could not be speaking in respect to the modern English policy" (_as they lived before the words found in it were employed), "while others did not advert to its peculiar words;" and that " the only word used in any of the continental policies to cover any kind of theft, except what is included in the term ' barratry,' is the French word pillage (k), or its equivalent, ichich imports latrociniation, or robbery by violence, and not a simple larceny merely" (J). {g) Vol. 1, p. 36. d%M, le ravage et 1' enlevement (A) Vol. 2, pp. 774, 775 (1st ed.); d'efiets, dedenrees oudemarchandiees p. 757 (Sth ed.). ^ force ouverte." (i) Bryan.v. American Insurance Co., (I) Bryan v. American Insurance Co., 1 Hill. N. T. Eep. 25. 26 WendeU, 663. See also Atlantic (k) Merlin, in his Eepertoire de Insurance Co. v. Storrow, 5 Paige, 293 ; Jurisprudence, Art. Pillage, Vol. 12, 1 Piiillips, 650 ; 1 Parsons, 564 ; see defines this word thus : " Pillage o'est foot-note (1). OF. THE EXCEPTIONS EXCUSING PERFOEMANCE. 155 It appears, therefore, that Chancellor Kent and others (w), in con- Part IV. demning the judgment of Chancellor Walworth as inconsistent with previous authorities, have fallen into the fallacy so often exposed by /Sir G. Jessel, M. R. («), of interpreting the meaning of toords in one document hy decisions upon words which are not identical occurring in another document. (m) See Amould, Vol. 2, p. 787. Ch. D. at 466 ; Ex parte Blaiherg, 23 (») See Southwell v. Bowditeh, 1 0. Oh. D. at 258. P. D. at 377 ; Zeonino v. Leonino, 10 156 Book III. CHARTER-PARTIES AND BILLS OF LADING. CHAPTER III. Of Provisions for the determination in certain contin- gencies OF THE Agreement created by thr Charter- party. § 260. If a charter-party gives the charterer the option of cancelling it if the ship does not arrive at the port of loading by a day named, he may cancel it if the ship does not arrive there by that day, although her non-arrival is owing to one of the dangers excepted in the charter-party [a). § 261. If a charter-party contains a provision that it is to be cancelled on the happening of certain named events, the charter- party will be void on the happening of any one of those events, and is not merely voidable at the option of either party. Thus, where a charter-party contained the words "In the event of war, blockade, or prohibition of export preventing loading this charter-party to be cancelled," and subsequently the port of load- ing named in the charter-party was closed by an enemy of the country in which it was situated, it was held that upon the hap- pening of this event the charter-party came to an end without any election by either party (i). (a) Smith v. Dart, 14 Q. B. D. 105. ship Freight Assurance So., i Q. B. D. (J) Adamson v. The Newcastle Steam- 462. ( 157 ) Paet V. OF FEEIGHT AND OTHEE PAYMENTS TO BE MADE TO THE SHIPOWNER. PEEPATOEY NOTE. Freight in this Part is used in its popular sense, and is not limited to the sense in which it is often used l>y lawyers, that is, the reward payable to the carrier for the safe carriage and delivery of the goods, and which is payahle only on the safe carriage and delivery (a). "A sum of money payable before the arrival of the ship at her port of dis- charge, a/nd payable by the shippers of the goods at the port of shipment, does not acquire the legal character of freight because it is described under that name in a bill of lading, nor does it acquire the legal incidents of freight : it is in effect money paid for taking the goods on board and undertaking to carry, and not for carrying them " (J). (a) Kirchner v. Venus, 12 Moore's [b) lb. See, however, ^«jso» v. 5Ws- P. C. Cas. at 390. tol Marine Insurance Co., 1 App. Oas. at 224, 228, 233, 239, and 251. Part V. 158 Book III. CHARTER-PARTIES AND BILLS OF LADING. Division I. Oftlie Payment of Freight CHAPTER I. Of the Time at and Circumstances under which Freight IS Payable. Payment and § 262. If, according to the charter-party or bill of lading, concurrent freight is to be paid on delivery of the cargo, payment and delivery are concurrent acts, that is, are to be performed as simultaneously as the nature of the thing will admit of (6). § 263. If, according to the charter-party or bill of lading, freight is to be paid before delivery (see Prefatory Note on pre- ceding page), the shipowner is, notwithstanding, not entitled to the freight if he is not willing and able to deliver the cargo or goods. Thus, if ty the bill of lading freight for the goods is to be paid within three days after arrival of the ship, and the goods before delivery of any portion of them, and -within three days after the , ship's arrival, are destroyed, the consignee is not liable to pay freight (c). Note. — If a time is mentioned in the hill of lading within which the owner of the goods is to pag freight and take deliverxj, and the ship- owner is willing and able to deliver during the whole of that time, bttt the oioner of the goods does not demand deliverg within that time, and after that time the goods are destroyed before delivery, it would pro- bably be held that the shipowner is entitled to the freight (d). (i) Faijnter v. James, L. E., 2 C. P. (c) Buthie v. Silton, L. E., 4 C. P. 348 ; affirmed, 18 L. T. 449; 16 W. E. 138, cited post, § 268. 768; Stewart v. Rogerson, L. R., 6 [d) Diithie v. Silton, L. E., 4 C. P. C. P. at 430 ; Miedbrodt v. Fitisimon, at 144 ; 19 L. T., N. S. at 287, per L. E., 6 P. 0. at 314. Brett, J. CIRCUMSTANCES UNDER WHICH FREIGHT IS PAYABLE. 159 § 264. If the shipowner carries the goods not to the port of Part V, discharge but to a port short of it he is not (except in the case chap. i. mentioned in the next section), in the absence of any new agree- ment, either express or implied, arenot^a^ed to the port of As, for example, -where the shipowner is able and -willing to discharge no carry on the goods either in the same ship, repaired if necessary (e), go^gg ^ug" or in another ship, to the port of discharge, but the charterer or consignee chooses to ha-ye them dehvered at the port -where they are (/), entitled to the freight or any part of it. By the terms of a charter-party, -which -were incorporated -with the bill of lading, the goods -were to be delivered at Taganrog, or as near thereto as the ship could safely get ; the master, on the arrival of the vessel at Kertch, a place 300 miles distant from Taganrog, finding that on account of ice he could not proceed to Taganrog until the spring, proceeded to discharge the cargo, al- though the agents of the consignees gave him notice that if he did he -would be held liable ; they subsequently obtained possession of it. It -was held that the shipo-wner could not recover even freight pro raid (g). So, if the goods are justifiably sold by the master at an inter- mediate port, the shipo-wner is not entitled to freight pro rata, even if they are sold for more than they -would have brought if carried to the port of destination (h). § 265. If the agreement has been dissolved (?) on account of Where per- performance being forbidden by the law of the country of the forbidden by shipowner, but the shipowner before the dissolution has carried shLomaer's ^ the goods so far towards their destination that the charterer has ooi^tT- derived material benefit from the carriage, the shipowner is entitled to recover a reasonable remuneration {k) . The judge of the Admiralty Court so decided, but on the hearing of the ease on appeal it lecame unnecessary to consider this question, and the Judicial Com- mittee of the Privy Council gave no opinion on it, observing that it was one " of great difficulty and importance" {I). [e] Maclachlan, 478, last paragraph, (A) Hopper v. Burneas, 1 0. P. D. and 479 ; Sill v. Wilson, 4 C. P. D. at 137 ; Bill v. Wilson, 4 0. P. D. 329. 333. (i) See Note I. p. 142. (/) Sopper V. Burness, 1 C. P. D. [k) Tlie Teutonia, L. E., 3 Adm. & at 140 and 142 ; Metcalfe v. Britcmnia E. 394, at 415, last line to the end of Ironworks Co., 2 Q. B. D. at 426. the report. (g) Metcalfe v. Britannia Ironworks {I) L. E., 4 P, C. at 183. Co., 1 Q. B. D. 613 : 2 Q. B. B. 423. 160 CHARTER-PARTIES AND BILLS OF LADING. Book III. § 266. If the charter-party provides that a named lump sum shall be paid as freight on the entire discharge and right de- livery of the cargo {see Note I.), the shipowner is entitled to receive the lump sum, although he deliver only a part of the cargo, if the rest of the cargo has been lost through any of the causes excepted in the charter-party, such as perils of the seas or fire (w). See Note II. Note I. — Possihly a different interpretation might he put upon a charter-party, the ivords of which were " the delivery of the entire cargo" instead of the " entire delivery of the cargo" {n). Note II. — I'rohahly he is entitled even if it has been lost through other causes, such as the negligence or theft of the crew, hut the charterer or shipper would in such case have a remedy hy cross- action (o), or he might set up a coutiter-claim in any action brought against him hy the shipowner. Preightisdue, § 267. So the shipowner is entitled to receive the lump sum entire cargo although he deliver the entire cargo but in a damaged condition, IS and although the damage arose from his negligence (j»). Note. — The charterer or shipper, however, would, if the damage arose from the shipoivner's negligence, have a remedy hy cross-action, or he might set up a counter-claim in an action brought against him by the shipowner {q). Unless the § 268. But if, whether by any of the causes excepted in the itTfdentity."^ charter-party or bill of lading or not, so much of the cargo has been lost that no substantial part of it remains to be delivered, or it has been so damaged that it has lost its identity, freight is not payable. Compare with § 69. Thus, if owing to the ship having been scuttled to extinguish a fire on board, the cement mentioned in a bill of lading no longer (m) Robinson y. Knights, L. E., 8 Co., L. E., 9 Ex. 74 ; Bobinson v. C. P. 465 ; Merchant Shipping Co. v. Knights, L. E.., 8 C. P. at 468, last ge, L. E., 8 C. P. 469, note ; 5 lines ; Merchant Shipping Co. t. (Ex. Ch.) L. E., 9 Q. B. 99. Armitage, L. E., 9 Q. B. at 105, lines («) Per Cleasby, B., Merchant 22 to 26, and 111, lines 4 to 9. Shining Co. v. Armitage, L. E., 9 [p) Dakin v. Oxley, 15 C. B., N. S. Q. B. at 113. 647 ; 33 L. J., C. P. 115; Davidson v. (o) The Norway, Brown & Lush. Gwynne, 12 East, 381. 226 ; 3 Moore's P. C. Cas., N. S. 245 ; [q) Dakin v. OxUy, 15 C. B., N. S. Blamhet v. FoweWs Ilantivit Collieries at 667 ; 33 L. J., C. P. at 120. CIRCUMSTANCES UNDER WHICH FREIGHT IS PAYABLE. ;16J exists as cement, having been hardened into solid masses, freight Part V, is not payable (r). ■ ^^'^ So if sugar in mats shipped as sugar is washed away, so that only a few ounces remain, and the mats are worthless ; or if crockery arrives as broken sherds, or iron as rust, it would seem that freight would not be payable (s). § 269, If in a bill of lading the names of the consignees are "The oon- foUowed by such words as " they paying freight," these words in^^frei^hf." will be interpreted as having been introduced for the benefit of the master or shipowner, and not for that of the shipper ; there- fore if the master or shipowner delivers the goods without obtaining payment of the freight from the consignee he may claim it from the shipper (t). Note. — Although 5y 18 ^ 19 Vict. c. Ill, s. 1 (m), every consignee naiped in a hill of lading, and every indorsee to whom the property in the goods passes, is subject to the same liabilities in respect of the goods as if the contract contained in the bill of lading had been made with himself, and he may, therefore, be sued for the freight, yet the shipper remains alioays liable iv). {/•) ButUe T. miton, L. E., 4 C. P. 565 ; B) Smurthwaitey. Wilkins, 11 C. B., [t) Shepard v. Be Bernales, 13 East, N. S. at 847, last 2 lines. W. M 162 CHARTEE-PAETIES AND BILLS OP LADING. Sook III. CHAPTER II. In eespect op what Goods Freight is payable. Where freight § 270. — (i.) Freight, where it is to he paid at a certain rate at a certain per Unit of nnmher, weight, measurement, or capacity, is, in the of wMffht"&o ^^sence of an agreement to the contrary, introduced by express words or custom, payahle only for goods which have been shipped, carried, and delivered {a) : (ii.) Therefore it is payahle only on the number of articles loaded and delivered, or according to the weight, measurement, or capacity of the goods at the time of loading if from any cause there has been an increase, or at the time of delivery if from any cause there has been a decrease, in the number, weight, measurement, or capacity during the voyage (J) . EfPeotof "de- § 271 — (i.) The mere insertion of such words as " delivered," livcrsd. ' ' or "on deli- or " on delivery," will not necessarily make the freight payable '^®"^^- according to the weight, measurement, or capacity at the time of delivery if there has been an increase in them during the voyage. Por they may have been inserted merely to make it oleac that freight was not to be paid upoa any goods not delivered. By a charter-party the ship was to load a full cargo of cotton at Bombay " and deliver the same at Liverpool on being paid freight as follows : viz. 75s. per ton of 50 cubic feet delivered for cotton, the freight to be paid on unloading and right delivery of the cargo ; " the cotton on being removed from the hold at Liverpool expanded very considerably, and the shipowner claimed freight on (») Gibson v. Sturge, 10 Ex. 622; CouUJiv/rst v. Sweet, L. E., I 0. P. Buckle V. Kmop, L. R., 2 Ex. at 334. 649; Daldn v. OxUy, 15 C. B., N. S. [b] Gibson T. Sturge, 10 Ex. 622 ; at 665, last 5 lines, and 666, first line. IN RESPECT OF WHAT GOODS FREIGHT IS PAYABLE. 163 its measurement -when delivered, and not -when skipped ; lie ^5* ^■ contended that unless the freight was payable according to the chap. II, measurement at the port of delivery the word "delivered" was ■ without meaning ; but it was held that the charter-party meant merely that the' charterer was to pay on the whole quantity delivered (c), " ' delivered' meaning no more, and being used for no other purpose than to fill up the sentence in which the word ' deliver ' was used before ; and was unnecessary, as it merely stated what the law would consider to be the effect of the contract without it " {d). (ii.) But the words " delivered " or " on delivery " may be so placed in connection with the unit of weight, measurement, or capacity as to show that it was the intention of the parties that freight should be payable according to the weight, measurement, or capacity at the time of delivery (e). Thus, by a bill of lading so many bundles of bark, weighing so much, were to be delivered unto the shippers' order or to their assigns, ' ' they paying freight for the said goods at the rate of 31. per ton of 20 cwt. nett weight delivered." The bark, being green, weighed more when shipped than when delivered. It was held that the consignee of the bark was entitled to it upon payment of freight according to the weight delivered, and that the expense of weighing it fell upon the shipowners and not upon him (e). See Note on next page. (ill.) Or the charter-party or bill of lading may be so framed as to give the shipowner the option of claiming freight accord- ing to the number, weight, measurement, or capacity, either at the time of shipment or at the time of delivery (/). § 272. A charter-party may be so framed as to show that the parties intended that the statements in the bills of lading as to the number, weight, measurement, or capacity of the goods for which freight is to be paid shall be taken as conclusive [g], even if the bill of lading besides the statement as to the number. (c) Buckle V. Knoop, 36 L. J., Ex. at 681, lines 11, 12, and 13. 49 ; 15 W. E. 588 ; L. E., 2 Ex. 125 ; (/) TuUy v. Terry, L. E., 8 0. P. (Ex. Ch.) 36 L. J., Ex. 223 ; L. E. 679. 2 Ex. 333 ; 15 W. E. 999. (g) Covas v. Bingham, 2 E. & B. {d) 15 W. E. at 590. 830 ; 23 L. J., Q. B. 26, cited in Tully \e) CouUhurstv. Sweet, L. R., 1 0. P. v. Temj, L. E., 8 0. P. at 684. 649; Tulh/ v. Terry, L. E., 8 C. P. m2 164 CHARTER-PAETIES AND BILLS OF LADING. Book III. weigM, measurement, or capacity of tlie goods contains such •words as " quantity unknown ; " For they may haye been inserted merely to protect the captain against a claim for alleged short delivery when the quantity of goods has been erroneously stated in the bill of lading {h). Note, see § 271 {n.).^-The difference between the words of the hill of lading in Ooiilthurst v. Sweet and those of the charter-party in Buckle V. Knoop is that hy the hill of lading the parties " made the word ' delivered ' the adjective or participle to the previous words ' nett weight,^ so as to lead to the inference that the amount of the freight loas to he paid on the weight to which the word ' delivered ' applied, that is to say, the nett weight at the time and place of delivery " (J). Even if the hill of lading had not contained the words " nett weight delivered," it would seem that according to the rule laid down in Gibson V. Sturge(7(;) {which was approved of hy the Court of Exchequer Chamher in Buckle v. Knoop (Z)), that freight can he claimed only on what is shipped and delivered, the decision in Coulthurst v. Sweet must have been the same, for if goods weigh less when delivered than when shipped, something which teas in them when shipped has not However, in Dakin v. Oxley (m), it is said, " where the cargo, with- out loss or destruction of any part, has become accidentally swelled, or, perhaps, diminished, as by drying {Jacohsen's Sea Laws, Book III., Ch. II., p. 220), freight {usage of trade apart) is payable upon the quantity shipped, because that is what the contract refers to." [h) Tulhj V. Terry, L. E., 8 C. P. (A) 10 Ex. 622; 2i L. J., Ex. 121. 679. (0 L. R., 2 Ex. 333 ; 36 L. J., Ex. («) BucUe T. Knoop, per Kelly, C. 223; IS "W. E. 999. B., 15 W. E. at 590 ; 36 L. J., Ex. (m) 15 C. B., N. S. at 665 and 666. at 52. ( 165 ) Part V. Div. I. CHAPTER III. Of Provisions as to the Amount or Eate of Freight. § 273. Where by the charter-party the ship is to load a full Wtsre a and complete cargo of a named kind of merchandise " or other ig to he paSi merchandise," and to he paid freight at a certain rate for *°'^,^* '^ , ' -"^ o certam rate, the named kind of merchandise, and should any other cargo be and other shipped, then in proportion according to certain rates referred mg to other to, if the ship loads a cargo consisting wholly or partially of ^^ ^' merchandise other than the named kind, the shipowner is not entitled to be paid at the same rate as if the ship had been loaded with the named kind of merchandise. By the charter-party the ship was to load " a full and complete cargo of oats or other lawful merchandise to London or a safe port, as ordered, on signing bills of lading, and proceed to deliver the same on heing paid freight as follows : 4s. 6d. per 320 lbs. English weight delivered for oats, and if any other cargo be shipped to joay in full and fair proportion thereto according to the London Baltic printed fates, taking as basis for natural weight of the oats 36 lbs. English per bushel." The ship loaded a full and complete cargo of tow and flax, both of which are mentioned in the Baltic printed rates. This species of merchandise being very light, a much larger quantity of ballast was required than if she had been loaded with oats. The shipowner contended that the amount of freight payable for the cargo should be so fixed that the aggregate freight for the whole bulk of the cargo should equal that which would have been payable for a cargo of oats, and that the reference to the Baltic printed rates was only for the purpose of fixing the relative rates of other articles than oats among themselves in order to ascertain what sum was to be inserted in the bill of lading for each article as the freight to be paid on the delivery of that article; or at all events that he was entitled to be paid as if the tow and flax had occupied the same space as the oats would have occupied ; but the 166 CHARTER-PARTIES AND BILLS OF LADING. Book III. Court, as to the first point, held that the reference to the Baltic ' printed rates was merely a mode of -writing shortly that the freight for each article mentioned in them should be that -which on -working out the sum in proportion -would be the rate for that article -when oats -were at the specified rates ; and as to the second point, that there -were no -words in the charter-party amounting to a stipula- tion that the shipowner should not be bound to supply more ballast than bore a reasonable proportion to the cargo shipped, and that no such stipulation is implied by la-w (»). Whether under such a charter-party the charterer is entitled to load any merchandise which is not specified in the rates referred to is not altogether certain. In The Southampton Steam Colliery Company v. Clarke(i) the Court of Exchequer held that the words " other merchan- dise '' must of necessity mean only those descriptions of merchandise which are specified in the rates referred to as bearing certain, propor- tions to the named kind of merchandise, as otherwise there ivould he no means whatever of determining the amount affreight payable for any other hind of merchandise than the hind named ; but the Court of Exchequer Chamber (c) said that as all the cargo loaded consisted of merchandise specified in the rates referred to it was unnecessary to express any opinion on this point, § 274. If a charter-party- provides that if the ship shall be prevented by a cause named from unloading her cargo at the port of discharge and there loading another cargo the charterer ■will pay the shipo-wner a certain sum named instead of the stipu- lated freight, the shipo-wner may, if the ship having been pre- vented by that cause from unloading and loading at the port of discharge brings back the outward cargo to the home port, recover the sum named without any deduction on account of freight earned by him by carrying goods for a third person to the home port from a port into which she has put on her return voyage from the port of discharge {d). As to a § 275. If a charter-party pro-vides that the charterer may the^oharterer gi^c notice of his intention not to load the ship with a cargo, notic^'Thi ^"^^ *^^* ^^ ^^ gives such a notice he will pay the shipowner a intention not certain sum named instead of the stipulated freight, the ship- to load. -"■ (a) Southampton Stemn Colliery Co. v. 494. The previous case of Ptillcr v. Clarice, L. K., 4 Ex. 73; 19 L. T., Staniforth, U East, 232, is explained N. S. 651 ; 38 L. J., Ex. 84 ; (in Ex. in Sell v. JPuller, 2 Tavmt. at 292, last Ch.) L. E., 6 Ex. 63. 8 lines, 293, and 299 ; in I'uller v. (S) L. E., 4 Ex. at 78. SalUday, 12 East, at 500, last 3 lines ; \c) L. E., 6 Ex. at 56, last 4 lines. 501, first 3 lines ; 603, 604, and 506. \d) Bell V. Fuller, 2 Taunt. 285. See Abbott, 196—198; Maolaohlan, See also Fuller v, JIalMat/, 12 East, 585, foot-note' I. PROVISIONS AS TO AMOUNT OR RATE OF FREIGHT. 167 owner, if the charterer does not load but does not give notice of ^*'^t ''^■ his intention not to load, is not entitled to recover the sum Chap. lii. named, Because the event on ■wHch. the charterer was to pay that sum has never arisen. But he is entitled to recover the amotint of the loss he has actually suffered by the breach of the agreement to load, ■whether that amount be greater or less than the sum named (e). § 276. If a charter-party provides that if the charterer gives Expenses • 1 -n 1 caused by certain directions respecting the vessel he will bear any expense directions which the vessel may incur in consequence of those directions, ^arterCT. he is liable to pay only such expenses as are the natural conse- quence of the directions. Therefore where to a charter-party, which provided that the vessel should discharge her cargo at A., a clause was added giving the charterer the option of ordering that a portion of the cargo should he sent on to and discharged at B., and providing that every expense the vessel might incur in consequence of this additional clause should be home by the charterer, and the charterer exer- cised this option and made out two manifests, one for the portion of the cargo to be discharged at A., and the other for that to be discharged at B. ; it was held that the shipowner could not recover the expenses which he had been put to in consequence of the customs authorities at A. having held it illegal that there should be two manifests, and detained the ship there on account of such alleged illegality (/). (e) Staniforth v. Xijall, 7 Bing. 169. (/) Stilli/v. JDumnty, 3 H. &C. 270 ; 33 L. J., Ex. 319. 168 Book III. CHARTER-PARTIES AND BILLS OE LADING. CHAPTER IV. Of Freight payable for a Term during which the Yessel is chartered. Freight is § 277. If a person charters a vessel for a term, agreeing to penods^ °^ P^J SO much for the term, he must, unless there is some agree- thevessd'i'"'^ ^^^^ ^ ^^^ Contrary in the charter-party («), pay for any undergoing periods during which she may have to undergo repairs not rendered necessary by the shipowner's default (b). The fact that in the charter-party, after the mention of the term, come such words as, " and so in proportion for any longer term she may he employed" is immaterial; Because as long as she is carr3diig out the charter-party she may be considered as employed by the charterer (c). The postpone- § 278. If the charterer agrees to pay freight at a certain ment of the j. n i.. j> <.i_ x time of rate lor a portion oi the term, ^;^*aterial (say so much per month), circumstance. , . . i , i • i • j n to be paid at certain longer intervals, (say at the end of every two months), this amounts merely to a postponement of the paymentj and does not make it contingent. Therefore freight for one month is due after the two months, if the ship has been lost after the first month and before the expiration of two months (d). § 279. The mere fact that the arrival of a certain period, or the happening of a certain event, is fixed as the time for pay- ment of freight, or any other sum, does not make the payment contingent fe). Payment on the happen- ing of an event. («) For an instance of such an agree- ment, see Saumders v. Drew, 3 B. & Ad. at 447. (i) Savehch v. Geddes, 10 East, 555. (c) Ripley V. Scaife, 6 B. & C. 167. [d) Smehch v. Geddes, sitpra. See Sazmders v. Drew, cited, post § 282. (e) Haveloek v. Geddes, supra. Com- pare with Alexander v. Gardner, 1 B. N. C. 671 ; and Castle v. Flayford, L. R., 7 Ei. at 100. See § 129. ( lfi9 ) Part V. Div. I. CHAPTER V. Or Freight payable in Advance. § 280. If tlie cliarter-party provides that a sum is to he paid Freight paid in advance on account of freight, the sum so paid cannot he ^nnoiTbr recovered back if the goods are subsequently lost by perils of recovered the sea, unless the charter-party shows that the intention of the parties is that if they are lost the sum shall be repaid {a) . The law of England on this point differs from that of other countries {b). § 281. If the charter-party provides that the charterer is to Where an pay a sum in advance on account of freight, whether the of^the fret'^t advance is of an aliquot part of the estimated freight or of a i^ advanced, gross sum of money (c) (the freight named not being a lump sum), he is entitled, if a part of the goods is lost, to deduct the sum paid by him in advance 'from the freight earned by the shipowner. A charter-party contained, tlie following clause : — "The freight to be paid on unloading and right delivery of the cargo at the rate (a) De Sihale v. Kendall, 4 M. & S. at 325 and 326 ; Allison v. Bristol 37; Syrne v. Schiller, L. E., 6 Ex. Marine Insurance Co., 1 App. Oas. at 319; Allison y . Bristol Marine Insurance '2,2b (as to Scotland) ; 249, third line Co., 1 App. Cas. at 236, lines 1 to 10; from hottom; and 253, fourth line of 249, last 5 lines ; 253, Lord Selhorne's Lord Selbome's judgment, judgment. {c) Allison v. Bristol Marine In- (J) Byrne v. Schiller, L. E., 6 Ex. surance Co., 1 App. Cas. at 254. ^^^ CHAETEE-PAETIES AND BILLS OP LADING. ^_ '__ of 42s. per ton on the quantity delivered, and suet freiglit is to be paid, say, one-half in cash on signing bills of lading, less four months' interest at bank rate and 5 per cent, for insurance, and the remainder on right delivery of the cargo." The charterer paid on the signing of the bills of lading a sum equal to the number of tons shipped multiplied by 21s. : the ship was wrecked and one- half of the cargo was lost. In an action by the shipowner against an insurance company on a policy on the freight it was contended by the defendants that the money so paid in advance was not all paid in discharge of such freight as might ultimately turn out to be earned, hut was to the extent of a half only paid on that amount, and that so there still remained a quarter of the entire freight for the merchant to pay, and therefore that there was not a total loss of freight; hut the House of Lords held, in opposition to this contention, that the plaintiff was entitled to recover for a total loss, because freight was to he paid " on the quantity delivered," not on the quantity shipped, according to the general rule of law as well as the express words of the charter-party (e). rteight where § 282. The fact that the charter-party (in those cases where lilG VCSS6i 18 chartered for the Tsssel is chartered for a term (/) ) provides that the freight is to he paid for certain periods of the term, does not show that the intention of the parties is that a sum paid in advance on account of freight for one of those periods shall be repaid if the ship is subsequently lost before the expiration of the period. By a charter-party for a voyage out and home it was provided that the charterer might, if he thought proper, hire the vessel for an intermediate voyage for a term not less than six months, in which case the owner was to refit her, the charterer paying at a certain rate per ton per calendar month, "paying four months of such monthly hire in advance, and at the expiration of six months two further months' pay, and so in every succeeding two months during the said monthly hire."- And it was agreed "that if the vessel should be lost the freight hy time should he due and payable up to the time of the loss." The charterer, having hired her for the intermediate voj'age, paid four months' hire in advance, and as she was lost two months after the hiring sought to recover back part of the four months' hire, on the ground that the clause by which it was agreed that if the vessel should be lost the freight should be payable up to the time of the loss showed that it was the intention of the parties that the freight paid in advance should be repaid if the ship was lost ; but the Court held that that clause was intended to apply to a loss which might happen after the four (e) Allison v. Bristol Murine In- (/) See last preceding chapter. suranee Co., 1 App. Oas. 209. OF FREIGHT PAYABLE IN ADVAKCE. 171 montlis, and was inserted for tie benefit of the skipo-wner, to se- Part V. cure him a rateable part of the hire if the vessel should be lost in ^i^- I' the course of any month after the expiration of the first four, and ^^' said that it was reasonable that he should have some compensation for the expenses he was put to in refitting her, which was given by the advance of four months' freight (g). § 283. A payment made by the charterer in accordance with the charter-party is not necessarily a payment on account of freight, as it may be merely a loan, to be deducted from the freight payable by the charterer if the cargo is delivered, or to be repaid to the charterer if the ship is lost. Whether the payment is to be held a payment on account of freight or a loan must depend on the language of the charter-party. In the following case the payment was held to be a payment on account of freight : By the charter-party the charterer agreed to pay for the freight and hire of the vessel on the voyage from the home to the foreign port 120Z., and from the foreign to the home port at so much for every pound of cotton, such freight to be paid as follows, viz., 1201. for freight of the outward cargo to M., and as much cash as may be found necessary for the vessel's disbursements in M., to be advanced by the charterer or his agents to the master of the ship when required, free from interest and commission, at the current exchange, and the residue of such freight to be paid on the delivery of the cargo in L. It was held, that the cash advanced by the charterer for the disbursements of the ship in M. could not be recovered back by him upon the subsequent loss of the ship before her arrival at L. (though by reason of such loss the master was pre- vented from earning the balance of the freight), because the sum so advanced was not a loan, but a payment on account of freight, as appeared first from the words ' ' free from interest and commis- sion," for if the advance was a loan it would have been reasonable that interest and commission should have been paid {h) ; and next from the words " the residue of such freight," which implied that the advance at M. was a part of the freight {h). See also HicTes v. Shield {%) and Tamvaco v. Simpson (k). In the following case the advance was held to be a loan : By the charter-party one-half of the freight was to be paid in cash on unloading and right delivery of the cargo, and the (g) Saunders v. Drew, 3 B. & Ad. (j) 26 L. J., Q. B. 205 ; 7 E. & B. 445. 633. (A) J)e SilvaU v. Kendall, 4 M. & S. {k) 19 C. B., N. S. 453 ; 34 L. J., 37. 0. P. 268 ; (in Ex. Ch.) L. E., 1 0. P. 363 ; 35 L. J., C. P. 196. 172 CHARTER-PARTIES AND BILLS OF LADING. Book III. remaindef by bill in London at four months, and then (after other ~ clauses) came the following: "the captain to be supplied with cash for the ship's use." It was held, that as there was nothing in the charter-party to show that the parties intended that cash sup- plied by the charterer to the captain was to be considered part of the freight, there being no such words as " deducting thereout the money previously advanced," it must be considered a loan, and could therefore be recovered back on the loss of the ship (l). (1) MmfieU V. Mmlland, 4 E. & Aid, 682. CHAPTER YI. Or Demukeage or the Paymekt agreed to be made when THE Number of Lying Days allowed by the Charter- party IS EXCEEDED. 8ee §§ 222, 225, 226, 227, 231, 232, 233, and other sections, in Chapter IV. of Division II., Part III., which Chapter treats [among other matters) " of the Payment to he made if the Time" "within lohich" the Loading or Unloading "is to be completed " "is exceeded." ( 173 ) Part V. Div. II. Divisio^r II. Of Lien for Freight and other Pai/ments to he made to the Shipoivner. CHAPTEE I. Of Agreements under which the Shipowner has no Lien FOR Freight. § 284. A siipowner, or where he has parted with the posses- Common law sion of the ship {see Prefatory Note to this Book) the person to fre°o-ht whom he has parted with the possession, has at common law a lien for the freight upon the cargo or goods which he has carried, unless he has entered into an agreement which is incon- sistent with the existence of such a lien (a) ; As for example — (i.) If te lias entered into a charter-party by wHoli the freight is to be paid at a fixed period after the sailing of the ship (J), as in the following case : — Goods were shipped at Liverpool for Sydney under a bill of lading which made them deliverable to ordfer or assigns, he or they paying freight for the said goods as per margin. On the margin was the following memorandum: " Preight payable in Liverpool to A. Macdonnell, one month after sailing, vessel lost or not lost.'' The shippers having become bankrupt before the ship arrived at Sydney without having paid the freight at Liverpool, the question arose whether Kirchner & Co., who were indorsees and holders for value of the bill of lading, were entitled to receive the goods without paying the freight. Evidence was given of a usage at Liverpool that the shipowner in case of non-payment of freight {a) Sow V. Kirehner, ll Moo. P. C. {b) Sow v. Kirchner, 11 Moo. P. 0. Caa. at 34. Cas. 21 ; Kirchner v. Vemis, 12 Moo. P. C. Cas. 361. 174 CHARTEE-PAETIES AND BILLS OF LADING. Book III. Taking a bill of exchange for tlie freight deprives the shipowner of his lien. (notwithstanding that by tlie terms of the bUl of lading the freight is made payable in England) does not lose his security or claim upon the goods upon the arrival of the ship at her port of dis- charge. It was held that, as the payment was to be made before the goods arrived, and whether they were lost or not, there was no lien at common law for the carriage of the goods ; that although the parties might have created a lien by agreement, they had not done so ; that to interpret a bill of lading containing such terms as giving a lien would lead to serious inconvenience (see § 4), for the master would often be unable to know whether the stipulated payment had been made or not, while an indorsee would not know how much he could advance on the security of the bill of lading, as he could not tell whether he would have to pay freight or not ; and that as the indorsees were resident not in Liverpool, but in Sydney, they were not bound to take notice of the alleged usage at Liverpool (c). (ll.) Or if he has taken a bill of exchange for the freight which is current when the voyage is completed and the cargo or goods could be delivered, even although the charterer, who has drawn, indorsed, or accepted the bill of exchange, has become insolvent {d). Note. — Whether, if a shipowner takes for the freight a hill of ex- change which becomes due and is dishonoured %efore the voyage is completed, he has a lien for the freight, has apparently not been decided (e) ; hut an opinion was expressed, though it was unnecessary to decide the point (^f), in Gilkison v. Middleton [g) that he has. As to lien in such a case against a bona fide holder, see next Case when the bill of lading states that the freight has been paid. § 285. If the Mil of lading states that the freight has been paid, although in fact it has not been, the shipowner has no Ken for it against an indorsee for value. This was decided in a case where the bill of lading contained the following words: "unto shipper's order or to his assigns, he or they paying freight for the said goods, being paid in Bengal," the captain having signed the biU of lading on a promise by the shipper to pay the freight before the ship sailed, which, however, he did not do {h). (c) Kirchner v. Venus, 12 Moo. P. 0. Cas. 361. See Note, p. 176. (d) Tamvaoo v. Simpson, 19 C. B., N. S. 453; 34 L. J., 0. P. 268; (in Ex. Oh.) L. B., 1 C. P. 363 ; 36 L. J., C. P. 196. (e) Tmwaco v. Simpson, L. K., 1 0. P. at 372, judgment of Blackburn, J. ; Gilkison v. Middleton, 2 C. B., N. S. at 148, per CresaweU, J. (/) See Note, p. 176. [g) 2 0. B., N. S. at 153 ; 26 L. J., 0. P. at 214, per Cookburn and Crowder, JJ. [h) Soward v. Tueker, 1 B. & Ad. 712. AGEEEMENTS UNDER WHICH SHIPOWNER HAS NO LIEN. 175 Where by the charter-party one-half of the freight was to he ad- I'a^t V. vanced by the charterer's acceptance, and the shipowners, on receiving chJn t' his acceptance for one-half, indorsed on the bill of lading a receipt for - the amount of the acceptance " as per charter-party," without any other' ivords from which an indorsee of the bill of lading could infer or learn that the amount had not been paid in cashii), Blackburn, J., appears to have thought that if the acceptance had been dishonoured before the completion of the voyage, the shipowners, even supposing that they would have had a lien for that half of the freight against the charterer (see Note to last preceding section), would not have had it against a bona fide taker of the bill of lading {Ic). § 286. A provision in a charter-party that the shipowner No Hen for shall have a lien for all freight does not give a lien for freight payable'^til ■which by the terms of the charter-party is not payable until ^}^^^ ^'^^ , W il, J T ii-x. delivery of alter tne delivery oi the cargo. the cargo. By a charter-party (after providing for payment of part of the freight) it was agreed that the remainder should he paid in cash two months from the vessel's report inwards at London and after de- livery of the cargo, or under discount of 5 per cent., at the charterer's option, that the owners of the ship should have an absolute lien on the cargo for all freight, and that the charterer should have the option of ordering the ship to a port on the Continent instead of to London, in which case freight should be paid in cash on the delivery of the cargo. It was contended that the stipulation that the owners should have an absolute Ken for all freight would have no meaning unless the shipowner (although the charterer had not exercised the option of paying under discount) had a lien on the cargo, the ship not having been ordered to a port on the Contiaent; but the Court held that the shipowner had not a lien, and yet that the words as to a lien were not useless, for they would have given the shipowner a lien if the charterer had chosen not to avail himself of the two months' credit, or if he had ordered the ship to a port on the Conti- nent, as in both these cases the payment of freight and the delivery of the cargo would have been contemporaneous acts {I). § 287. A charter-party which provides that freight is to be paid at a certain rate per ton and that the captain is to sign bills of lading at any rate of freight, but that should the total freight as per bills of laijing be under the amount estimated to be earned by the charter-party, the captain shall demand payment of any difference in advance, does not give a right of lien for that difference even as against the charterer (m). (i) See L. E., 1 C. P. at 370, per [l) Foster v. Colby, 28 L. J., Ex. 80; PoUook, C. B. 3 H. & N. 705. [k] Tamvaco v. Simpson, L. E., 1 {m) Gardner v. Treehmann, 15 Q. B. C. P. at 372. D. 154, at 157 and 158, last 3 lines of 176 Book III, CHAETEE-PAETIES AND BILLS OF LADING. Whethek Kiechneb, v. Venus and Gilkison v. Middleton aee ikeecoifcilable. Note, see § 284. — In Tamvaco v. Simpson, counsel {Mr. Mellish) having referred to Venus v. Kircliner («) as conflicting with Gilkison v. Middleton (o), Willes, J., made the following ohservation{p): — " The Privy Council seem to have thought that they were acting in opposition to Gilkison v. Middleton (o), but in truth they were not. There were two previous cases, in one of tvhich, Neish v. Graham (y), such a payment ivas treated as freight ; and in the other, Blakey v. Dixon {r), as not being freight proper. The question decided in Gilkison v. Middleton does not arise here ; that case was in truth only an affirmance of Blakey V. Dixon. There is no express lien here." Mr. Mellish then said: " Kiichner v. Venus does conflict with Neish v. Graham. The Court there did not attend to the distinction between that case and Gilkison V. Middleton now pointed out." Willes, J., therefore, appears to have thought that both Gilkison v. Middleton and Kirchner v. Venus were properly decided and were reconcilable, because in the former case a charter-party had been entered into which contained a clause giving a lien for what was not freight in legal parlance (see Prefatory Note, p. 157); whereas in "Kirchner v. Venus the bill of lading contained no clause giving a lien. It is no doubt the case that the plaintiffs m GUkison v. Middleton (o) had by the charter-party re- served to themselves " an absolute lien upon the cargo for the recovery of all freight," and that on reading the charter-party as a whole it was clear that "freight " included a sum of 900/., for which the charterers were to give their acceptance at three months ; and further, that the Court expressed their opinion — unnecessarily — that as be- tween the plaintiffs {the shipoioners) and the charterers the plaintiffs would have had a lien for the 900?. {the charterers having dishonoured their acceptance) ; but the learned judge overlooked the fact that the action was brought not against the charterers, but against the indorsee for value of a bill of lading. On the ground that the charter-party required " the master to sign bills of lading at such rates of freight as might be required by the agents of the charterers," and that the bill of lading contained no reference to the charter-party, it was held that the plaintiffs had no lien against him for the 900/. The bill of lading contained in the margin the words "freight payable in Liverpool one the judgment of Cotton, L. J. For C. P. 209. another point decided in this case, see [p) 19 C. B., N. S. at 466. p. 189. (?) 8 E. & B. 505 ; 27 L. J., Q. B. (») 12 Moo. P. C. Gas. 361. 15. \o) 2 C. B., N. S. 134 ; 26 L. J., (r) 2 B. & P. 321. AGREEMENTS UNDER WHICH SHIPOWNER HAS NO LIEN. ^77 month after sailing of vessel, lost or not lost " (s), and it was held ^^^t V. I , . . J. Div. II. that the plaintiffs had a lien against the defendant for the amount of Chap. I. the freight mentioned in the bill of lading, not because the charter-party contained a lien clause, but because the bill of lading showed upon the face of it that the freight had not been paid, and the defendant there- fore took it subject to the ris/c of its not being paid, and knowing " the general rule that goods are liable for the freight due" (f). It is there- fore submitted that Gilkison v. Middleton and Kireliner v. Venus are irreconcilable. (s) The words in the margin of the sailing, vessel lost or not lost." bill of lading in Kinhner v. Venus [t) Penultimate sentence of judg- ■were: " Freight payable in Liverpool ment of Cresswell, J., 26 L. J., 0. P. to iEneas Maodonnell one month after at 214, W. » 178 Book III. CHARTEE-PAETIES AND BILLS OP LADING. CHAPTEE ir. Of Liens given for Payment (other than Freight) to be MADE TO the SHIPOWNER. Wiat a lien § 288. — (i.) Where a charter-party provides that the ship- freightcoTers. Owner shall have a lien for dead freight (a), he has, according to a decision of the Court of Exchequer Chamher, a lien only for the amount of such compensation to he paid in case of short loading as is specified hy, or can he calculated according to, a standard given in the charter-party {b). But see Note II., pp. 183—187. (ii.) The circumstance that if " dead freight " is held not to apply to unliquidated damages (c) for short loading there will be nothing to which the provision giving a lien for dead freight can apply, owing to the charter-party not specifying the amount of compensation to he paid ia case of short loading, or giving any standard according to which it can be calculated, will not alter the interpretation of the charter-party so as to make dead freight apply to unliquidated damages for short loading [d) ; But see Note II. At all events if the words as to dead freight occur in a printed form (e). See % 8. See Gfray v. Oarr, the effect of which is stated in the next section. (a) See "Dead Freight" in "Words {d) Gray v. Carr, L. E., 6 Q. B. at and Expressions." 544, last 2 lines, and 545. (4) (?r«y v. Carr, L. R., 6 Q. B. (e) Fearson v. Goschen, 17 C. B., 522. N. S. at 373 and 376 ; (?r«y t. Carr, [c] See "Liquidated Damages" in 3J. E., 6 Q. B. at 536 and 545. "Words and Expressions." LIENS rOE OTHER SUMS PAYABLE THAN FREIGHT. 179 § 289. If a cliarter-parfcy which contains a demurrage clause Part V. contains a clause giving the shipowner a lien for demurrage (/), chap. li. the latter clause does not, according to a decision of the Court -wtat a lieu of Exchequer Chamber, give him a lien in respect of damages for demurrage for detention after the demurrage days {g). But see Note I., pp. 181—183. By a charter-party th.e ship was to load a lull cargo of staves and otter merchandise and proceed to London and deliver the same on heing paid freight at 8s. per 100 pieces of staves, and other merchandise, if shipped, to pay in full proportion ; 50 days to he allowed for loading, and ten days on demurrage over and ahove the said lying- days at so much per day ; the owners to have an absolute lien on the cargo for aU freight, dead freight, and demur- rage. The ship did not load a full cargo, and did not complete her loading within the ten days allowed on demurrage. Pour out of sis judges in the Court of Exchequer Chamber held that a lien was not given for damages for detention beyond the demurrage days, because " demurrage" has a known legal meaning, namely, the additional period during which the vessel may remain by agree- ment of the parties (though it is sometimes used by shipowners in the more extended sense of undue delay), and as demurrage proper was mentioned in the charter-party, there was something to which the word " demurrage " in the clause as to lien could apply, and the parties were not to be taken to contemplate that the charterer would break his agreement by taking a longer time to load than the agreed time. The view which the other two judges took of the case rendered it unnecessary for them to express any opinion upon that point. Four judges also held that a lien was not given for damages for short loading, because " dead freight " is properly "a sum ascer- tainable by the charter-party itself (as where a complete cargo is agreed to be 1,000 tons at a specific sum, as 20s. per ton)," and it was unreasonable {see § 4) to suppose that the- parties had agreed to give a lien for unliquidated damages for short loading, as in such case it would be impossible for the consignees to satisfy the lien and obtain possession of their property unless by agreement be- tween the parties as to the amount of damages, a matter upon which they would be very unlikely to agree ; and although this interpretation gave no effect to the words " dead freight," it was not necessary to find an application for them in the particular case, as they occurred in an ordinary printed clause {see § 7), and would have applied i£ the charter-party had provided for dead freight. The other two judges held that a Hen was given for damages for (/) See "Demurrage," in "Words {(/) Gray v. Carr, L. E., 6 Q. B. and Expressions." 522. See also Loclchart v. Falle, L. E., 10 Ex. 132. n2 18Q CHARTEE-EAETIES AND BILLS OF LADING. Book III. siort loading ; one of them on tlie ground that the House of Lords in McLean v. Fleming (A), had decided that a lien for " dead freight " gave a Hen for damages for short loading. The majority of the Court (t) held that in McLean v. Fleming, the charter- party related to a uniform cargo, the freight for which was payable at a fixed sum per ton, the amount of the cargo that was to be loaded being ascertained by the charter-party, and that, therefore, the compensation to be paid for not loading a full cargo was dead freight in the proper sense of the expression (/ ). Whether lien for not load- ing with due dispatch when charter-party silent as to the time within which vessel was to he loaded. § 290. Where a eliarter-party, which was silent as to the time within which the vessel was to be loaded, contained a demurrage clause limited to delay in unloading, and a clause giving the shipowner a lien for " freight, demurrage, and all other claims," Mr. Justice Blacthum doubted whether it would give a lien in respect of damages for not loading with due dispatch (k). § 291. If a charter-party which does not contain a demurrage clause contains a clause giving a lien for demurrage, the latter clause gives a lien in respect of damages for detention after the expiration of the days given for loading or unloading (/) ; Because if it were held to be limited to demurrage in the strict sense of the word (ro) it would have no meaning. See § 7. NoTU. — However, Bannister v. Breslauer, the case in which this point was virtually decided, has heen doubted {n). Lien for a claim in the nature of demurrage. § 292. If a charter-party, by which the charterer agrees that a berth shall be ready for the vessel on her entering the port, or by a certain day, contains a demurrage clause, and a clause giving the shipowners a lien on the cargo for freight, dead freight, and demurrage, and if the charterer has not a berth ready when the vessel enters the port, or by the day named, (A) L. E., 2 Sc. App. 128. See post, pp. 183 and 184. (i) Gray v. Carr, L. R., 6 Q. B. at 341 and 547. {J) Gray v. Carr, L. E., 6 Q. B. 522. {k)' Lister' y. Van Saanslergm, 1 Q. B. D. at 272, lines 12 to 14, and 273, lines 3 to 5. See § 149. (/) Bannister t. Breslauer, L. E., 2 0. P. 497, referred to in Loehhart v. rallc, L. E., 10 Ex. at 135. (»j) See "Demurrage" in "Words and Expressions." («) See French v. Gerber, 1 C. P. D. at 743 ; Kish v. Cory, L. E., 10 Q. B. at 558. LIENS FOE OTHER SUMS PAYABLE THAN FREIGHT. 181 the shipowners have a lien for compensation in respect of the Part V. time during which she is detained hefore the berth is ready ; chap. li. Because the damage to be paid for delay is in the nature of de- murrage, and the clause as to demurrage is elastic enough to comprise such damage (o). Note I., see § 289, ante. — It is doubtful whether the House of Lords tvould hold, at all events in the case of a charter-party containing a stipulation for the charterer's liability ceasing on the loading of the cargo (see Pt. I., Chap. IV. pp. 90 and 91), that a clause giving a lien for demurrage does not, when the charter-party contains a demurrage clause, give a lien in respect of damages for detention after the demur- rage days, and applies only to demurrage in the strict sense of the word, that is, to the agreed rate of compensation for detention during the days allowed on demurrage, as ivas decided in Lockhart v. Falk. In a subsequent case in the Exchequer Chamber {p), where the charter- party contained a demurrage clause, Lord Coleridge, C. J., and Brett, J., both expressed an opinion that when the question should arise it loould be held that the lien toould attach in respect of damages for detention after the demurrage days. The former said{q) : " Hereafter a question may arise as to the constntction of a charter-party framed like the one before us, when the shipowner sues not for demurrage properly so called, but for unliquidated damages for detention at the port of loading, and when the charterer relies upon the clause exempt- ing him from liability. It will be necessary, then, to consider whether demurrage includes detention. I am inclined to think that even in that case it will be held that the charterer'' s liability ceases on loading, and the lien attaches. I think this was the opinion of my brother Lush in Christo£Eersen v. Hanson ir). There there was a question as to detention, and Lush, J., says : ' If there were any provision giving the shipotvner an equivalent advantage, there would be a very good reason for his absolving the defendant {the charterer) altogether.'' Without offering any opinion as to this question, ivhenever it shall arise, I am of opinion that the judgment of the Court below must he affirmed." Brett, J., saidis): " I know that in this case it is unnecessary to say that the lien is given for more than demurrage, properly so called, at the port of loading, but I cannot be a party to construing such a clause as this, and holding that it absolutely absolves the charterer from all liability, past as well as future, ivithout considering what (o) Harris v. Jacobs, cited in § 214. [q] At 558, 559. (p) Eish V. Cory, L. E., 10 Q. B. \r) L. E., 7 Q. B. at 516. 553. (s) L. E., 10 Q. B. at 559, 560. 182 CHARTER-PARTIES AND BILLS OF LADING. Book III, must take place were we also to hold that the lien were (sic) given simply for demurrage, properly so called. The consequence would be that if the ship were detained at the port of loading beyond the demurrage days, the liability of the charterer when the ship was loaded would cease ; there could be no action against him for detention, and yet there would be no lien upon the cargo for anything hut demurrage proper, and the shipowner would he obliged to deliver the cargo to the consignee on payment of the demurrage. He would have no action against the consignee for detention at the port of loading, and, notwithstanding the fault of the charterer, he would have no remedy against anyone. The result would he so unjust, that I cannot think that this construction was meant by the parties. It may be said that this difficulty may he obviated by holding that the liability of the shipowner was to cease only in respect of the delay of the vessel during the demurrage days, and that the lien would attach for that only ; and that, notwithstanding the clause of exemption, a right of action would remain against the charterer for delaying the ship at the port of loading beyond the demurrage days. That construction seems hardly consistent with the decisions in which it has been held that the charterer's liability is to cease for past breaches of the charter-party, at all events in the deten- tion of the ship. I feel certain that when the occasion arises it will be held upon a clause like this, containing a cesser of liability of the charterer and a lien for demurrage, that ' demurrage ' includes not only demurrage proper, hut also that which is in the nature of demur- rage, viz., detention at the port of loading. This will make the contract just and reasonable, and it may he fairly held that the parties contem- plated this construction." Cleashy, B., and Amphlett, B., both referred to the point, the latter expressing no opinion hmv it would he decided, and the former say- ing (f): " No argument was addressed to us in the present case upon the difficult question whether the charterer would he discharged from liability for unliquidated damages in respect of detention, as distin- guished from the agreed payment for demurrage during ten days. On this question I ivill only remark that the clause may fairly he con- sidered as referring to those matters, such as payment, which are contemplated as arising upon the contract, and not to those which arise from a breach of the contract by detention." There certainly appears to he some difficulty in reconciling the opinions expressed by Lord Coleridge, C. J., and Brett, J., in Kisli v. Cory, with the judgments of Kelly, C. B., and Bramwell, Channell, and {t) At 501, last 2 lines, and 502. LIENS FOK OTHEE SUMS PAYABLE THAN FREIGHT. 183 Cleasly, BB., in Gray v. Gwv(u), that " demurrage" did not give a PartV. lien for damages for detention beyond the demurrage days. Chap. 11. Note II., see § 288. — Upon the decision in Gray v. Carr (aj), that a lien for '^ dead freight" does not extend to unliquidated damages for short loading, it may he observed that there seems a close analogy between a claim for unliquidated damages in the nature of dead freight and a claim, for unliquidated damages in the nature of demurrage, and that Brett, J., who was one of the four judges loho held, in Gray v. Carr, that " dead freight" did not include unliquidated damages for short loading, expressed, as just shoivn in Kish v. Cory, a strong opinion that " demurrage " will be held to include unliquidated damages for detention. As has been already observed {see p. 180), the Court differed in Gray v. Carr as to the effect of McLean v. Fleming. Cleasby, B., said{y): " / am informed that in such a case as the pre- sent the House of Lords has decided very lately that the lien for dead freight applies^ Some of my learned brothers have seen a note of the case, and will refer to the name and particulars of it. If there was any authorized report of the case I should, of course, have referred to it and corrected my judgment by it if necessary ; so far as I can collect no correction would have been necessary." Bramwell, B., after referring to the arguments used for and against the view that " dead freight " includes damages for short loading, said{z) : " Which of these reasonings should prevail might be a mat- ter of much doubt but for the case of McLean v. Fleming, recently decided in the House of Lords, where a lien for ' dead freight,^ under circumstances very similar to those of this case, was held to give a lien for damages for short loading. Pearson v. Gosclien(a) is, no doubt, the other way, though certainly there the matter was rather assumed than determined. Anyhow, if it conflicts with McLean v. Fleming of course the latter must prevail." Brett, J., said (J)) : "Since this case was argued, and since this judgment was written, our attention has been called to the case of McLean v. Fleming in the House of Lords, and if I had thought that that case overruled anything I have said in this I should have willingly bowed to it. But in that case, as I understand the judgment, the charter-party was in respect of the carriage of a uniform cargo and the freight was payable at a fixed sum per ton, and the charter-party {«) L. E., 6 Q. B. 522. (a) L. R., 6 Q. B. at 551. {x) lb. [a) 17 0. B., N. S. 352. (y) L. E., 6 Q B, at 533. (*) L. E., 6 Q. B. at 511, m CHAHTER-PARTIES AND BILLS OF LADING. Book III. ascertained the amount of the cargo that was to he loaded. It then put upon the charterers the lialility of loading a full cargo, and gave a lien to the shipowner for dead freight. Now, under those circum- stances, it was pointed out by some, if not all, of the learned lords who tooh part in the judgment, that the damages for not loading a full cargo were in point of fact ascertained, because they would be the specified amount per ton upon the quantity that was really ascertained ; and if that were so, that loould properly he dead freight within the ordinary meaning of the term ; and the lien being given in terms for dead freight, that case would be within the recognized rule ; and, as I understand their Lordships, they declined to overrule the case of Kirclmer v. Verms, and expressly declined to overrule the case of Pearson v. Goschen, which I think is decided on valuable principles that ought to be generally applied. I therefore do not consider that that case overrules what I have said of this charter-party." Channell, B., said{b): '' The delivery of the judgment of this Court was postponed till we had an opportunity of inquiring into the case of McLean v. Meming. My brother Bramwell considers the decision in the House of Lords governs this case, and must govern him, whatever his opinions otherwise would have been. My brother Brett, for reasons he has given, considers that McLean v. Fleming does not apply. Other of the judges, including myself, take the same view of the effect of the decision in McLean v. Fleming .... Thinking that the de- cision of the House of Lords does not govern the present case, I abide by the opinion that the plaintiff cannot recover his claim for dead freight.'^ Kelly, C. B. said (c) ; " Since this case was argued we have been informed of the judgment delivered by the House of Lords in a case ef McLean v. Fleming, and in which it was held that damages by reason of the shipment of less than a full cargo might be recovered as dead freight, and we are no doubt bound by that decision. In that case, however, the amount of darriages was capable of being at once ascer- tained, inasmuch as the short shipment was of the specific quantity of 210 tons of bones, the stipulated freight being 35s. per ton. This is in the nature of dead freight, strictly so called, and is thus distinguish- able from the case now before the Court." As will be seen from the extract from his judgment already given, Brett, J., distinguished Gray v. Oarr from McLean v. Fleming on the ground that in the latter case " the charter-party ascertained the amount of cargo that was to be loaded ;" but this fact does not appear (J) L. R., 6 Q. B. at 546. (c) L. R., 6 Q. B. at 558. LIENS FOE OTHER SUMS PAYABLE THAN FREIGHT. 185 from the report of McLean v. Hope, either in L. R., 6 Q. B. at 560, Part V. note, or in L. E., 2 So. App. 128.- All that is set out of the charter- Qjj^p'. ii. party on this point is that the ship was to " load a full and complete ~~ cargo of cattle hones in bulk." It is true that the charter-party was expressed to be made with the captain of " the ship Persian, of the measurement of 598 tons or thereabouts ;" but this statement ivas a mere representation [d). See § 152. Whether McLean v. Fleining ivas decided upon the ground that the ^^ dead freight" for which a lien ivas given ivas a liquidated amount the reader may decide for himself after perusing the following extracts from the opinions of all of the learned lords who delivered judgment. Lord Ilatherley, L. C, said (d) : " Dead freight, though, as observed by several authorities, not a very accurate term, was intelligible enough. Dead freight has been defined by Lord Ellenborough in Phillips v. Eoxie (15 East, at p. 555) as ' unliquidated compensation for loss of freight^ The question whether there had been an engagement by the parties for a lien for such unliquidated damages was matter of proof .... Of course there might be always some difficulty in liquidating the damages, because it m,ight be that the captain might have had it in his power to fill up the deficiency with other cargo ; but that was not the case here It was enough to say that here there ivas a clear case of an omission to supply a full cargo as contracted for, and a clear case therefore for applying the definition of Lord Ellenborough as to what ' dead freight ' was — a definition exactly agreeing with that which is given in BelVs Commentaries.'" The definition given in BelVs Commentaries on the Laius of Scot- land, referred to by Lord Ilatherley, is as follows : — " Dead Feeight. The merchant who freights an entire ship is liable to pay freight for the goods transported, and a compensation for the loss suffered by the failure to supply a full cargo. What is thus paid for the unoccupied space is not, strictly speaking, freight ; and although it is called dead freight, it is an unascertained claim of damages, or unliquidated com- pensation for the loss of freight, truly recoverable in the absence and place of freight, for which the goods cannot be retained by the master against the consignee. The claim for dead freight is grounded on the covenant in the charter-party, by which the shipper is bound to supply a full cargo. Where the agreement is for freight at so much per ton, according to the ship's measurement, the claim for dead freight is easily ascertained. Where the cargo is intended to be various, and at dif- ferent rates, it has sometimes been said that usage regulates the propor- {d) Note to Gray v. Can; L. E., 6 Q. B. at 569. 186 Book III. CHAETEK-PARTIES AND BILLS OF LADING. iions ; hut it will generally he found that this must he re/erred to a jury or to an arbitrator, and perhaps in the end resolve into a mere inquiry into average gain on such a voyage." Lord Chelmsford said{e) : "It was argued that, even if a claim for damages for hreach of a covenant in a charter-party to furnish a full lading to a ship may he correctly called ' dead freight,^ yet that no lien can exist where the damages are unliquidated. But I understand the case of Phillips v. Eoxie not to have denied that, though the damages were unliquidated, there might have been a lien upon the cargo for them if the contract of the parties had stipulated for it, which it had not. ... In construing the charter-party it must he assumed that the parties understood the meaning of the terms they employed, and that, amongst others, the term ^ dead freight meant {according to Lord Ellen- horough's definition') an unliquidated compensation for the loss of freight. The freighter, with this understanding, agrees to load on hoard the respondents ship a full and complete cargo of cattle hones and to pay freight at the rate of 35*. sterling English per ton. He knows that if he fail to perform his covenant to load a full and com- plete cargo he loill he liable to the shipoivner in damages under the name of dead freight, and he agrees to give the captain or shipowner an absolute lien on the cargo for all freight, dead freight, and demurrage. Why should not his agreement have its intended effect? This case can hardly he considered to be one of unliquidated damages, because, the master not having brought home any other goods than those of the appellants, the proper measure of the shipowner's claim appears to be the amount of the agreed freight which he woiild have earned upon the deficient quantity of 210 tons of hones. But whether the amount of his damages is to be regarded as ascertained or not, I am of opinion that the charter-party gives him a lien for his claim on account of the deficient cargo." Lord Westhury said{f) : " Two questions luere argued at the Bar. First, what is the meaning of the term ' dead freight ' in respect of the remedy which it gives the shipowner ? Does it entitle him to say that the deficient quantity shall he paid for at the rate assigned per ton in the charter-party ? I think that that would be a very unreasonable interpretation, for if the full freight had been furnished to the captain, the charge for loading and other outlays attendant upon the additional 210 tons which were wanting would have occasioned some expenditure to the shipowner. The result, therefore, is, that in a charter-party («) L. K., 2 Sc. App. at 132 and (/) L. K., 2 So, App.at 134. 133, LIENS FOK OTHER SUMS PAYABLE THAN FREIGHT. 187 giving no specific sum as the amount to he recovered by way of com- ^P* '"'• pensation for dead freight, the shipowner becomes entitled only to a Chap. li. reasonable sum, which is another phrase for unliquidated damages^ Lord Colonsay said (g) : " The circumstance that the precise amount is not specified does not affect the principle. In almost any case that might happen some -inquiry might be necessary as to the amount of the dead freight. It might be alleged on the part of the charterers that other goods were received; or it might he alleged that certain things m,ust he deducted, and so forth, hut still the contract is there. It may he inconvenient or not that it should receive effect, bttt still there it is, and it is binding on the parties. But in this case I see no inconveni- ence or difficulty at all. It was not urged in the Court below that the claim made as for 210 tons loas an exorbitant claim,, or a claim which ought to be subject to any deduction. It is clear upon the evidence that the vessel was capable of carrying a great deal more, and there is no allegatioti that from that anything ought to he deducted." {g) L. B., 2 So. App. at 138. 188 Book III. CHARTEE-PARTIES AND BILLS OF LADING. CHAPTER III. Of the Incorpoeation in a Bill of Lading op the Provisions OF A OhARTER-PAKTY GIVING A LlEN FOR FREIGHT OR OTHER Sums to be paid to the Shipowner. § 293. If the charter-party gives the shipowner a lien for demurrage, or dead freight, or freight at a higher rate than that mentioned in the hill of lading, the shipowner has a lien against the holder of the hill of lading only for the freight of the goods mentioned in the bill of lading and at the rate mentioned in it («), (i) Unless the hill of lading incorporates hy reference the terms of the charter-party as to demurrage, dead freight, or freight at the higher rate (b) ; (ii) Or, unless the holder when he takes the hill of lading is aware that it is inconsistent with the charter-party, or does not give value for the goods mentioned in the hUl of lading (c) ; See Corollary, p. 191. See Note I. at the end of this Chapter. (a) Small v. Moates, 9 Bing. at 591, L. E., 1 C. P. at 692 and 693. lines 2 to n ; FeeJc v. Larsen, L. R., 12 (c) Small \. Moates, 9 Bing. at 691, Eq. at 385; Mitchell -v. Scaife, 4 Camp. lines 2 to 11 ; Gledstanes v. Allen, 12 298 ; Chappel v. Comfort, 10 C. B., C. B. at 220, lines 10 to 7 from the N. S. at 810, perWilles, J. bottom; 221, last 12 lines ; 222, lines (J) Chappel T. Comfort, 10 C. B., 18 to 21; Gilkison v. Middleton, 2 N. S. at 811, first 10 lines; Fry v. C. B., N. S. 134; see at 147, per Chartered Mercantile Bank of India, Creaswell, J., and at 153, lines 23 and REFERENCES TO CHARTER-PARTIES IN BILLS OP LADING. 189 (ill) Or, unless thie goods are the property of the charterer {d), Part v. the fact that the bill of lading for them may have heen indorsed chap. iii. to a person to whom the charterer is indebted, in order that he may satisfy the debt by a sale of them, but who has not made any specific advances upon them, not preventing the appKcation of this exception (e). See Note II. at the end of this Chapter. " (i.) Unless the bill of lading incorporates by reference the terms of the charter-party as to demurrage, dead freight, or freight at a higher rate." Thus where the charter-party gave demurrage, and by the bill of lading the goods were deliverable " against payment of the agreed freight and other conditions as per charter-party," it was held that the terms of the charter-party as to demurrage were incorporated in the bill of lading (/), for the words " and other conditions" plainly indicated that there was some condition to be performed beyond the payment of the freight {g). By the charter-party a lien was given for all freight and demur- rage; the words of the bill of lading were, "he or they paying for the said goods as per charter-party." It was held that the terms of the charter-party as to demurrage were not incorporated, for the natural meaning of the words " for the said goods" was "for the carriage of the said goods" (7i), and there was nothing to intimate to the consignee of the bill of lading that anything besides freight was to be paid IJi). By the charter-party sixteen days were to be allowed for loading and unloading, and demurrage at a nam.ed rate was to be paid for detention beyond the lying-days : by the bill of lading the goods were deliverable to the shippers or order, ' ' paying freight as per charter-party," and in the margin was written — "there are eight days for unloading." It was held that the terms of the charter- party as to demurrage were not incorporated, as the memorandum in the margin mentioned no sum nor did it in terms refer to the 24 ; Kern v. Deslandes, 10 C. B., N. S. and 560. at 226, penultimate sentence ; Faith [e) Gledstanea v. Allen and Kern v. T. East India Co., 4 B. & Aid. at 641, Deslandes, referred to in Note II. lines 10 to 17, and 643, lines 20 to 23 ; pp. 193 and 195. Shand V.Sanderson, 28 L. J., Ex. at 282, (/) Wegener v. Smith, 15 C. B. 28 ; second sentence of Martin's, B., judg- 24 L. J., C. P. 25. ment ; 4 H. & N. at 389, judgment of [g) Smith v. Sieveking, 4 E. & B. Pollock, C. B. at 951. See also Gardner v. Trechmann, {d) Small V. Moates, 9 Bing. 574 ; 15 Q. B. D. at 158, lines 4 and 5, and McLean v. Fleming, L. E., 2 So. App. 26 and 27. at 130, Unes 5 to 8 ; 133, last 9 lines; {h) Smith v. Sieveking, 4 E. & B. 134, lines 1 and 2, and last 6 lines; 945; 24 L. J., Q. B. 257; (Ex. Ch.) and 135, lines 1 and 2. See also the 5 E. & B. 589. report in L. R., 6 Q. B. note at 659 190 CHAETEE-PAETIES AND BILLS OF LADING. Book III. charter-party. One of tie Judges, Byles, J., said that he ■would have come to a difierent conclusion if the words in the margin had been inserted in the body of the bill of lading ; but Willes, J., on the contrary, said he would be disposed to give greater effect to ■what was written in the margin {k). By the charter-party the ship was to have " a lien on the cargo for freight " at a named rate per ton : one biU of lading contained the follo'wing clause: "Freight for said goods payable as per charter-party;" in other bills of lading, held by other consignees, the rate of freight was fixed at a lower rate than that named in the charter-party. The shipowner contended that as by the charter- party he had a lien on every part of the cargo for the whole freight he had a lien on the goods mentioned in the bill of lading for the difference between the amount of freight payable under it and the other bills of lading and the amount which would have been payable if the rate of freight named in them had been the same as that named in the charter-party, but the Court held that the words in the bill of lading " freight for said goods payable as per charter-party " did not incorporate the provision in the charter- party as to the shipowner having a lien on the cargo, and that the reference to the charter-party was merely to fix the rate of freight for the goods to which the bill of lading related {I). In Gray v. Oarr (m), the charter-party (n) gave the shipo'wner " an absolute lien on the cargo for aU freight, dead freight, and de- murrage:" thebUlof lading contained the following words: "paying freight and all other conditions or demurrage (if any should be incurred) for the said goods as per the aforesaid charter-party." Two judges, Brett, J., and Willes, J., held that the shipowner had no lien against the consignees named in the bill of lading in respect of dead freight or demurrage, or damages in the nature of demurrage, incurred at the port of loading, as no liability other than such as naturally attaches in respect of the carriage of the particular goods is to be imposed on a consignee of goods under a bill of lading unless such liability is clearly imposed by plain ■words, and that the words " and all other conditions or demurrage, if any should be incurred," were satisfied by making them ap- plicable to claims for any delay which might occur through the default of the consignee at the port of discharge, but the majority of the Ootirt held that the shipowner intended to preserve by the bill of lading, as against the consignee, all the rights given him by the charter-party against the charterer, and, therefore, that he had a lien for demurrage incurred at the port of loading. See also Eussell v. Niemann, cited in § 259. (k) Chappel v. Comfort, 10 C. B., Gardners. Trechmann,15 Q,.'B.'D.\5i. N. S. 802 ; 31 L. J., C. P. 58. (m) L. E., 6 Q. B. 522. {I) Fry V. Chartered Mercantile Banh (m) As to other questions which arose of India, L. E., 1 C. P. 689, cited in under this charter-party, namely, the judgment of Brett, J., in GVag/ V. whether "demurrage" and "dead Carr, L. R., 6 Q. B. at 538 and 639, freight" included claims for unliqui- and referred to post, p. 196. See dated damages, see ante, {§ 288, 289. REFERENCES TO CHARTER-PARTIES IN BILLS OF LADING. 191 Where the freight mentioned in the bill of lading -was at a lower Part V. rate than that mentioned in the charter-party, and the former ^'■'^- ^^^ document contained the ■words " all extra expenses in discharging to be borne by receivers, and other conditions as per charter-party," it -was held that there was no right of lien for the charter-party rate of freight, becauBe the reference to the charter-party incor- porated only such terms (as, for instance, demurrage) as would not alter the express terms of the bill of lading {q). " (ii.) Unless the holder u-Jien he takes the hill of lading is aicare that it is inconsistent toith the charter-party." Corollary. — If the charter-party authorizes the master to sign bills of lading at any rate of freight, even with the addition of such words as "without prejudice to the charter-party," and he accordingly signs a bill of lading at a lower rate of freight than that mentioned in the charter-party, the bill of lading is not inconsistent with the charter-party, as the words " without prejudice" mean without prejudice to the rights of the ship- owner against the charterer, and do not mean without prejudice to the right of lien against a holder for value (r) of a bill of lading. Therefore, the shipowner has not a Hen for the higher rate of freight mentioned in the charter-party against the holder for value of a bill of lading (who is not the charterer (s) ), even if he takes it with knowledge of the charter-party {t). Note I., see § 293. — The reason for the rule and the second excep- tion to it appears to he that the master is a general agent for the shipowner, and has a general authority to sign hills of lading at the usual rates (m); and that even where he exceeds Ms authority, as if he signs a hill of lading lohich is inconsistent loith the terms of the charter-party, his principal, the shipoivner, is hound to the holder of the hill of lading, unless the latter knows, or it may he ought to know {v), that the agent is acting in excess of the authority given him. [q] Gardner v. Trechmann, cited in v. Colby, and Shand v. Sanderson, cited foot-notes [g) and {I), and § 287. in Note II., p. 195. (>•) Shand v. Sanderson, 4 H. & N. (m) Story on Agency, sects. 116 and at 389 ; 28 L. J., Exch. at 282 ; Kern 119 ; Mitchell t. Seaife, 4 Camp, at V. Deslandes, 10 C. B., N. S. at 217 302. and 218, per Byles, J. {v) Oilldson v. Middleton, 2 C. B., («) Fearson v. Gosohen, 17 C. B., N. S. at 147, per OressweU, J. ; Foster N. S. 352. V. Colby, 3 H. & N. at 712, per Wat- (t) See Gillcison v. Middleton, Foster son, B. 192 Book III. CHARTER-PARTIES AND BILLS OF LADING. If the holder of the bill of lading knows that the agent is exceeding his authority, it seems unnecessary to show actual collusion between the two, as there apparently ivas in Faith v. The East India Company {x), tnmmented on in Shand v. Sanderson {y). This seems to have been the view of Bosanquet, J., in Small v. Moates(z), where, referring to Paith V. The East India Company, he said : " All the parties in that case luere cognizant of the terms of the charter-party." Note II., see § 293 (in.), p. 189. — According to the principle laid down in Small v. Moates (as), this exception to the rule stated in the section might have been laid down in more general terms, such as the following : — Or unless the title of the holder of the bill of lading is derived from the charterer. Later cases, however, appear inconsistent with this principle, as will he seen from the following review of them (V). One of them, Kern v. Deslandes, is referred to principally as furnishing an example of the third exception to the rule stated in this section. In Small v. Moates {a) a charter-party was entered into betiveen the defendant, the owner, and Wilkinson, the master of the ship, by which it was agreed that the defendant should have a lien upon the loading of the ship for all freight to become due under the charter-party. The firm of Boyd ^ Co., at Calcutta, the port of discharge of the outward cargo, agreed to advance money to Wilkinson upon the security of a quantity of saltpetre, being the portion of the homeward cargo which had been purchased and shipped by Wilkinson in his own name. In pursuance of the agreement they advanced the money to him and he indorsed to them bills of lading for the saltpetre : by the hills it was deliverable to order or assigns, they paying freight at so much per ton: Wilkinson handed to Boyd Sf Co. a bill of exchange for the amount of the advance to him drawn upon the plaintiffs : Boyd ^ Co. indorsed and trans- mitted the bills of lading to the plaintiffs as a security for the repay- ment of the amount of the bill of exchange : the plaintiffs paid the hill upon the security of the bills of lading. The question was whether the plaintiffs, upon payment of reasonable freight in respect of the salt- petre, were entitled to it as bona fide indorsees for value of the hills of lading, or whether the defendant, as owner of the ship, had a lien for the whole money due under the charter-party. It was decided that he {x) 4 B. & Aid. 630. (s) 2 Moo. & Scott, at 692. [y) 28 L. J., Ex. at 282 ; 4 H. & N. (a) 9 Bing. 574 ; 2 M. & Scott, 674. at 388. (b) Thecases are arranged in chrono- logical order. REFEREKCES TO CHARTER-PARTIES IN BILLS OF LADING. 193: had. The case tvas in the judgment distinguished from that of a Part V. shipper putting his goods on hoard a ship on the faith of a bill of lading ch&v III. signed by a person ivhom the oivner has allowed to bear the character ^~~~^~~"~' of master, who, it was admitted, tvould be entitled to receive his goods upon payment of the freight reserved by the hill of lading, and the decision tvas put upon the ground that the moment that the saltpetre was loaded on hoard the lien of the defendant attached upon it for the freight due to him, under the agreement contained in the charter-party. It tvas, no doubt, pointed out in the judgment that there had been no sale by Wilkinson, and that Boyd 8f Co., upon whose title the plaintiffs stood, took the hills of lading merely as security for the repayment of their advance; hut it was said that if the charterer had sold the salt- petre to a third person it ivould have been difficult to state the principle upon which this lien once vested in the shipowner could he divested from him by the sale of the goods hy the charterer (c). It was also, no doubt, 2^ointed out that if Boyd Sf Co. ivere not aware of the existence of the charter-party there were facts which ought to have caused them to make inquiries which ivould have led to their becoming aware of it, hut this tvas tnerely an observation in answer to an argument as to the hardship to Boyd &^ Co., and the judgment {d') in no way depended upon the indorsees' knowledge, or means of know- ledge, of the charter-party. In Gledstanes v. AEen (e), although the decision in Small v. Moates tvas approved of, nothing was said in approval of the opinion there expressed that the shipowner' s lien would not he divested even hy a sale hy the charterer of the goods shipped by him. In that case goods ivere shipped by the charterers, Stuart Sf Co., and the hills of lading were indorsed by them, to the plaintiffs, in pursuance of an arrangement hy which the plaintiffs were to honour hills drawn upon them hy Stuart 8f Co., who were to make regular consignments to the plaintiffs; but " no specific advances were made upon the particular goods " (f). The Court held, in an action brought against the shipoioner, that the plain- tiffs tvere not entitled to the delivery of the goods shipped hy Stuart ^ Co., on payment merely of the freight for such goods according to the rates specified in the hills of lading, on the ground that so long as the goods remained the property of the charterers or their agents they [e] QBing. at 591, last 3 lines, and (/) 12 0. B. at 221. The facts in 592, first 3 lines. this respect difEered from those in {d) i5. at 594, last paragraph. GilMson \. Middleton, 2 C. B., N. S. (e) 12 C. B. 202, at 220 and 221. at 140, lines 3 to 9, and 153, lines 23 See Sewellv. BurdieJc, 10 App. Oas. at to 25. 105. w. o 194 CHARTER-PARTIES AND BILLS OF LADING. Book III. were liable to the freight fixed hy the charter-party. Jervis, C. J., said{g) : " I do not say that the owners might not have been hound to -- . jg^j-jjgj. ^^^ goods to a bona fide holder for value of the hills of lading, upon payment of the freight therein mentioned ;" and Cresswell, J., saidih): "If the plaintiffs had heen indorsees for value of these hills of lading, the shipowners might possibly have heen estopped from, claiming a lien on the goods beyond the stipulated rate of freight." The question, therefore, whether a sale hy the charterer of the goods shipped hy him would divest the lien of the shipowner seems at the time of this decision to have been considered as one not concluded by authority. In Gilkison v. Middleton («') the hills of lading for goods shipped hy the charterers were indorsed to the defendants, who made advances upon the faith of them. Mr. Mellish, for the plaintiffs, the ship- owners, argued (k) that " where goods are shipped hy the charterer the oicner's lien attaches the moment the goods are shipped, and that the consignee stands in no better position in this respect than the charterer," relying upon Small v. Moates. It was decided that the shipowner had no lien for any freight beyond that m,entioned in the bills of lading (J). This case, therefore, may seem to be an authority for the position that the shipoivner has not against an indorsee for value of hills of lading for goods shipped by the charterer a lien for the charter-party freight if that is in excess of the bills of lading freight ; hut this does not necessarily follow, as the charter-party provided that the master was to sign bills of lading at such rates of freight as might be required hy the charter-party; and as Cockburn, C. J.{m), observed: "The ship- owners had been parties to bills of lading, in ivhich the master stated that a less sum" [than the charter-party freight^ "was due, and by means of that they had placed other persons in a position in which if they could insist on the whole amount they would prejudice such persons." In Foster v. Colby (ji), Pollock, C. B., said: " That he rested his judgment on the ground that a bona fide indorsee for value of the bill {gj 12 C. B. at 220, Hues 10 to 7 {I) As to Gilkison \. Middleton heiag from, the bottom. still an authority, except as to the (A) lb. at 222, sentence beginning point decided in Kirchner t. Venus, see "So here." Kern y. Deslmdes, 10 C. B., N. S. at (i) 2 C. B., N. S. 134, at 140, lines 215. 3 to 9, and 153 ; 26 L. J., 0. P. 209, (m) 26 L. J., C. P. at 214 ; 2 C, B., at 211. N. S. at 153. m 2 C. B., N. S. at 144. («) 3 H. & N. 705, at 715. REFERENCES TO CHARTER-PARTIES IN BILLS OF LADING. 195 of lading, having no knowledge or notice of the charter-party, or that Part V. the cargo loas subject to lien for any freight, except that mentioned in chap'. III. the hill of lading, and not acting collusively, is entitled to the goods on ■ • payment of the freight stipulated for in the hill of lading, and is not affected hy the greater liahility of the indorser, supposing such liability to exist." He, however, like the other judges, pointed out in the first place (o) that the shippers were not the charterers, or mere agents of the charterers, for although the shippers purchased on account of the charterers, yet they paid for the goods out of their own money, shipped them iti their oivn names, and intended to keep them under their own control (o) ; and, in the next, that by the charter-party the master was to sign the bills of lading at any rate of freight required {p). In Shand v. Sanderson (^) {in which also the holder of the bill of lading ivas held entitled to the goods on payment of the hill of lading freight) the facts were similar to those in Poster v. Colby, except that the indorsees of the hills of lading had, at the time of their rnaking an advance upon the goods, notice of the terms of the charter-party. Although the goods loere shipped by persons loho had been acting as agents for the charterer in respect of the charter-party, "they never parted with the possession of them, and in fact. were holding adversely to the charterer," and the charter-party authorited the master to sign bills of lading at any rate affreight required. These tioo cases, Poster v. Colby and Shand v. Sanderson, are therefore not really inconsistent with Small v. Moates, as in them it ivas at least doubtful whether the shippers could be considered to be the charterers or the agents of the charterers ; and even if they could he so considered, the charter-party itself provided for hills of lading being signed at any rate of freight, whereas the charter-party in Small v. Moates contained no such provision. In Kern v. Deslandes (r), Gregory Brothers, who executed the charter-party as agents for Ferguson, the charterer, were the real plaintiffs, and the defendant was the shipowner. The charter-party authorized the master to sign hills of lading at any rate affreight. It was decided that Gregory Brothers, loho were named as consignees in the hill of lading, were not entitled to delivery of the goods except upon payment of the charter-party freight. (o) 28 L. J., Ex. at 86 ; 3 H. & N. at ed., per Wataon, B. 708, lines 3 to 7, 715, sentence be- [q) 4 H. & N. 381 ; 28 L. J., Ex. ginning "It is said." 278. {p) See particularly 28 L. J., Ex. [r) 10 C. B., N. S. 205. at 88, per BramweU, B., and 99, 2nd o2 196 CHAETEE-PARTIES AND BILLS OF LADING. Book III. The facts of this case differed in several respects from those in Gilkison v. Middleton, Foster v. Colby, and Shand v. Sanderson, in all of which it was held that the holder of the hills of lading was entitled to the goods upon payment merely of the bills of lading freight. In the first of these three cases the holder of the bills of lading had made advances to the charterer upon the faith of them, and in the other two the goods were shipped, not by the charterers, but by persons who purchased the goods, though intending the purchase to be on account of the charterers, and the holders of the bills of lading were the indorsees for value of these shippers, while in Kern v. Deslandes the charterer loas the shipper (s) ; and although he was indebted to Gregory Brothers, and the goods were consigned to them in order that the debt might be reduced, yet, like the plaintiffs in Gledstanes v. Allen, they had made no advances upon the particular goods mentioned in the bills of lading [f). In Grray v. Carr (m) Brett, J., said that in his opinion, unless Kern V. Deslandes could he supported on the ground that the consignees claiming under the bill of lading were mere agents of the charterers, it could not be supported at all. Chappel V. Comfort (lo) is not a case in point, as it does not appear that the charter-party gave a lien for demurrage, the right to claim ifihich from the holder of the bill of lading was the question in controversy. Fry V. The Chartered Mercantile Bank of India (a;) seems incon- sistent with Small v. Moates, which, however, was not referred to either in the arguments or judgments. The charter-party provided that the ship should have a lien on the cargo for freight, 70s. per ton, and it did not contain any provision that the m,aster might sign bills of lading at a lower rate affreight. The charterers shipped goods under a hill of lading which contained a clause, "Freight for the said goods payable as per charter-party." The defendants made an advance upon the goods on receivirig the bill of lading for them. Other goods were shipped by various merchants at freights lower than that payable under the charter-party, and there was a deficiency upon the total amount of freight payable upon the cargo according to the charter-party. It was held that the plaintiffs, the shipowners, were not entitled to a lien for (s) See Fry v. Cliartered Mercantile 215, lines 8 to 6 from the bottom. Banle of India,'L.'S.., 10. P. at 693, last (m) L. R., 6 Q. B. at 540. sentence of Erie's, 0. J., judgment. [w] 10 0. B., N. S. 802. {t) 10 C. B., N. S. at 208, letter of [x) L. E., 1 C. P. 689. See ante, 7th January, 1859, 209 and 210, and p. 190. REFERENCES TO CHARTER-PARTIES IN BILLS OF LADING. 197- the amount of the deficiency, and that the defendants were entitled to tart V. delivery of the goods mentioned in the hill of lading upon payment of chap". III. freight for the same at the rate of 70s. a ton, on the ground that the reference to the charter-party icas merely for the purpose of determin- ing what the rate of freight was for the goods described in the hill of lading and for those only. If, however, "■from the moment the goods were loaded on hoard, the lien of the shipowner attached upon them for the freight due to him under the express contract contained in the charter-party," and " this lien once vested in him could not he divested from him hy " any act of the charterers, according to the doctrine laid doivn in Small v. Moates (y), it would seem to have been imma- terial to inquire what ivas the meaning of the bill of lading, tvhich teas merely evidence of an agreement between the defendants and the charterers. In Gray v. Carr (z) it was decided, by the majority of the Court, that the plaintiff, the shipoivner, was entitled against the defendants, who tcere the consignees named in the hills of lading, and in whom the property in the goods shipped by the charterers' agent was vested hy virtue of such consignment, and to whom a copy of the charter-party had been sent, along with the original hill of lading, to a lien for demurrage which loas given him hy the charter-party ; but this decision rested on the ground that the right of lien for the demurrage given hy the charter-party teas according to the true construction of the bill of lading retained as against the holders of that document (a), and not upon the ground that the charter-party gave the shipowner a lien, of which he could not he deprived by any act of the charterer in making out hills of lading on different terms. The nisi prius case of Mitchell v. Scaife (5) was decided before Small V. Moates. There the plaintiff had paid bills of exchange drawn on him by the shipper, who indorsed to him the bills of lading as security. Lord Ellenhorough held that the shipowner, who claimed a lien for the charter-party freight, had no right to detain the cargo for more than the freight mentioned in the bill of lading against the plaintiff, who was not proved to have had any notice of the charter- party. The decision was based on the ground that a bill of lading is an instrument lohich the master has in general authority to sign ; that (y) See 9 Bing. at 591, last 7 lines, 6 lines, 551, sentence beginning " It and 592, first 3 lines. remains," and 554, judgment of Kelly, (s) L. K., 6 Q. B. 522, Ex. Ch. C. B. (a) See L. B., 6 Q. B. at 531, lines (J) 4 Camp. 298. 10 to 7 from the bottom, 543, first 198 CHARTER-PAKTIES AND BILLS OF LADING, Book III, tjig plaintiff had no reason to suspect that this authority was not properly exercised upon that occasion ; and that the owner of the ship could not he heard to aver against the contract created hy his own agent through the medium of the hill of lading. The facts of the case differed from those in SmaE v. Moates in this respect, that the shipper, although he purchased on account of the charterer, appears to have had the hill of lading made out in his own name, as was the case in Poster v. Colby and Shand v. Sanderson, and the master and the charterer ivere different persons. ( 199 ) BOOK IV. OF MARINE POLICIES A Form of a Policy is given at the commencement of this Work. See Contents. PREFATORY NOTE. In questions arising out of agreements relating to marine insurance the Sense in which words ^' representation" and "warranty" {as to the meaning of which in ,• ^P'^^j' other agreements, see §§ 40 and 42) are ordinarily used in a sense different " -warranty" from that in which they are used in other mercantile agreements (a). .S'l'e ordinarily In the case of other mercantile agreements, a representation, that is, a So_„ armna-' statement as to a matter of fact made, before the execution of the agreement, out of marine or even in the agreement itself if it is not one of its terms (see § 40), by one insurance. of the parties to the other party, gives, if merely untrue and not fraudulent, Eepresenta- the party to whom it was made no right of action whatever (see § 40 (ll.") ) ; and ments'fo^n-" if one of the parties, before the execution of the agreement, undertaJses that suranoe will something shall be done, the undertahing is without effect, even if the party avoid the giving the undertaking never intended that it should be performed (see § 1). thoua-h thev In questions arising out of agreements relating to marine insurance, both are not frau- statements as to a matter of fact made, and undertakings given, by the assured dulent if they before the execution of the policy, are ordinarily called representations, the material former being called affirmative, and the latter promissory representations [b); point. bat even if the assured believed the statement to be true (c), or intended that the undertaking should be performed, he cannot recover the amount insured (as to a return of the premium, see Part VII. Div. II. Chap. I.) if the state- ment was not substantially true, or the undertaking was not substantially performed, and the statement or undertaking was material {d). At one time the rule of law as to representations in the case of agreements relating to marine insurance seems to have been the same as in the case of other mercantile agreements, namely, that the representation, unless fraudulent, does not avoid the agreement [e], but " the principle is now firmly established that (a) Philips V. Baillie, 3 Dougl. at [d) Maciowall v. Fraser, 1 Dougl. at 378, lines 11 and 12 of the judgment. 261, lines 6 and 7 of Lord Mansfield's (S) 2 Daer, p. 657, Lect. XIV. sect. judgment; Edwardsx. Footner, 1 Camp. 9 ; 1 Arnould, 516. 530 ; 1 Phillips, pp. 292 and 293, No. (c) Anderson v. Thornton, 8 Exoh. at 653. 427, last 4 lines ; Anderson v. Facifie («) See Fawson v. Watson, Cowp. at Insurance Co., L. B., 7 C. P. at 68. 786, lines 5 to 8 ; 788, lines 3 to 6 ; 200 MARINE POLICIES. Book IV. This principle forma an ex- ception to the rule -which prevails in other classes of mercantile agreements. The fiction of imputing fraud when there is none is objection- able and avoidable. the misrepresentation, from mistake, ignorance, or accident, of any material fact, however innocently made, will avoid the policy, quite as much as in cases where such misrepresentation arises from a wilful intention to deceive{f). This principle is in truth an exception to the general rule that parol evi- dence {except in the case of a usage) is not admissible to add a term to an agreement {g), nevertheless it is not generally so treated, and a misrepresentation innocently made is ordinarily spoJcen of as "equivalent to fraud" (h), or as " amounting to fraud " (»). Nevertheless a distinction is drawn between " a representation" which, " though equivalent to fraud," is not fraudulent in point of fact, and a re- presentation which is actually fraudulent; for in the former case the assivred, if the risk never attached, is entitled to a return of the premium, while in the latter he is not (ft). {See Appendix to Part VII.) Both the author of Arnould on the Law of Marine Insurance {I) and the Editor (m) are of opinion that it is belter to adhere to the legal fiction of im- puting fraud to the assured where, in the ordinary sense of the word, none exists, as it brings the doctrine on this subject nominally within the acknow- ledged general principle applicable to other contracts. As to this, Mr. Phillips makes the following remarks {n): "I cannot think that this anomalous use of the term 'fraud ' is Justifiable on this ground, since ambiguous phraseology is not to be tolerated in any science, and least of all in that of law, where it can possibly be avoided, as it may easily be in this case by stating the prac- tical doctrine in direct terms, namely, that it is an implied condition of the contract of insurance that it is free from misrepresentation or concealment, whether fraudulent or through mistake. This implied condition involves no more difficulty than that of seaworthiness, or any other implied warranty ; and if insurance is thereby distinguished from other contracts, which I appre- hend it is not entirely, this peculiarity is not, that I can perceive, of great weight, certainly not enough to excuse an anomalous application of the tech- nical terms 'fraud'' and 'fraudulent' to many of the misrepresentations Lmahre v. Wilson, 1 Dougl. 234, a case of a promissory representation, where (p. 289) Lord Mansfield told the jury " that if they were satisfied that the real intention at the time of the repre- sentation was to go to China" (the country mentioned in the representa- tion) "the plaintiff would be entitled to their verdict, for that the insured might change the intention in this case and go to Bengal, and yet be pro- tected by the policy, which clearly admitted of that voyage." Flinn v. Tobin, Moo. & M. 367; 1 Arnould, 514; 2Daer, p. 652. (/) 1 Amould, 1st ed. 494, 495. ■ {g) 2 Duer, Loot. XIV. sects. 3, 4, and 6, pp. 646 to 653 ; Proofs and Illus- trations, Note III. pp. 743 and 744, and Note V. p. 747 ; Elkin v. Janson, 13 M. & W. at 659, lines 5 to 8 ; 1 Arnould, Ist ed. 496; 3 Kent's Com- mentaries, 282 ; Feise v. Farkinson, 4 Taunt, at 641, lines 8 to 11. (A) Elkin v. Jmson, 13 M. & W. at 659, per Parke, B. («) 1 Amould, 514. (A) Feise v. Farkinson, 4 Taunt, at 641, first 3 lines; Anderson \. Thorn- ton, 8 Exch. at 427, last 4 lines, and 428, lines 25 to 29 ; Ttjler v. Home, 1 Park, 8th ed. 455 ; Chapman v. Fraser, ib. 456. (0 1 Amould, 1st ed. 496 to 498. (m) 1 Amould, 6th ed. 515. (n) 1 Phillips, p. 279, No. 537. The remarks in 2 Duer, pp. 646 to 651, Lect. XIV. sects. 3, 4, and 6, are well deserving of perusal. MAKINE POLICIES. 201 and ' concealments ' whereby a policy of insurance has been held to be de- Book IV, feated." " In the case of other agreements the agreement itself may contain the words which are held to be no integral part of it and to amount merely to a repre- sentation, but words contained in a marine policy are never held to be merely a representation in the sense in which that word is used in other agreements, that is, a statement the untruth of which {unless there is a fraudulent inten- tion) is immaterial; and it is generally considered that a representation, even in the sense in which the word is ordinarily used in treatises on marine insurance, that is, a statement as to the existence of a fact having a tendency to influence the judgment of the insurer as to the nature of the riah, and the untruth of which, if the difference between the fact as stated and as it exists is material, vitiates the contract, must be made orally or he contained in some writing other than the policy, and that a statement which, if made orally or contained in some other writing than the policy, loould be merely a represen- tation, using that word in the sense last mentioned, becomes, if inserted in the policy, a condition, or, in the language ordinarily used in treatises on marine insurance, a warranty (o). It is indeed said, by Dr. Duer{p), that in a few cases statements contained in the policy itself have been construed not as condi- tions, or, to use the language ordinarily employed in treatises on insurance, warranties, but merely as representations {using the word "representation'' in the sense in which it is used in treatises on marine insurance). The cases, how- ever, which he cites, seem to be instances of a statement by the assured in the policy, not that a particular fact existed, but that he had information, expec- tation, or belief as to the fact, and indeed this is so stated in an earlier part of the work {g). If a condition (or ■warranty) is defined {as it is submitted it ought to be) in such a manner as to show that the stipulation, " upon the literal truth of which the validity of the entire contract is dependent" {r), may be a statement not of the existence of a fact but of the information, expecta- tion, or belief of the assured as to the existence of the fact, there seems no reason why the statements referred to by Dr. Duer should be held to be repre- sentations and not conditions (warranties), for if the fact stated is the ' existence of the information, expectation, or belief, and thai statement is not literally true, then, even if the difference between the information, expectation, or belief as stated and as it existed was immaterial, it is submitted that the Courts would hold that the assured could not recover. The fiction of imputing fraud to the assured is again had recourse to in those cases in which a material fact is not stated by the assured to the insurer, • even though the assured may not Tcnow of the existence of the fact, or may believe that the fact luas not in any way material. " The keeping hack," said Lord Mansfield, " any circumstance in the knowledge of the insured is a fraud; . . . although the suppression should happen through mistake, and without any fraudulent intention" (s). (o) See 1 Amould, 5th ed. 510 ; Ist ed. 513. ed. 490 ; 1 Park, 432. ()•) 2 Arnould, 588. {p) Vol. 2, pp. 717 to 720, Leot. {a) Carter v. Boehm, 3 Burr, at 1909, XIV. Note 1. cited in Bates v. Hewitt, L. K., 2 Q. B. (?) 2 Duer, Leot. XIV. sect. 2, pp. at 609. 644 and 645 ; see also 1 Arnould, 5th 202 MARINE POLICIES. Book IV. "Warranty" in queetions arising out of marine insur- ance is ordi- narily used as equivalent to " condi- tion." There seems little hope thai the commercial code of" the greatest commercial and maritime country in the world" (<) will he accepted hy other nations as long as it is disfigured hy the retention of such fictions. It is perfectly easy to avoid the use of language imputing fraud where no fraud in the ordinary sense of the word exists. Instead of saying that if the assumed has not made known a material fact the fraud furnishes the insurer with a defence, it may be said that the ground of defence is that the assured has not complied with the condition which the law implies in the case of all agreements for marine insurance, that he shall state to the insurer every fact which has a tendency to influence his judgment as to the nature of the risk. This is the language which is employed in this work. " The legal fiction of imputing fraud to the assured whose act wants one of the principal moral ingredients of fraud," namely, the intention to c?e- ceive (u), is iiot the only anomaly arising from the ordinary mode of con- sidering a representation not to he one of the terms of an agreement relating to marine insurance ; for a promissory representation is in truth not a repre- sentation at all, hut an undertaking or promise (x), and it would seem that the doctrine that a person who hy a misrepresentation has misled another is hound hy his misrepresentation does not, in agreements not relating to in- surance, apply to a case in which there is a representation not of a fact, hut only of an intention [y) ; whereas an undertaking given hefore the execution of the policy, if it is as to a material matter, will avoid the policy if it is not suhstantially performed (z). As the word "representation" is used in questions arising out of agreements relating to marine insurance in a different sense from that in which it is used in questions arising out of other agreements, and as the iiiriter has aimed in this work at always using the same word or expression in the same sense, the expression "a statement made hefore the execution of the policy" will he used instead of " an affirmative representation," and the expression "an under- taking given hefore the execution of the policy" instead of " a promissory representation," > A policy is an agreement of such a nature that the expression "a war- ranty," in the sense in which it is used in other agreements, is inapplicahle to it (see § 49) ; and although the expression is very generally used in the discussion of questions arising out of policies, it is used as equivalent to " a condition" (a). (For definitions of " a warranty" and " a condition," see §§ 41 and 42.) (t) Svensdm v. Wallace, 13 Q. B. D. at 73. («) 1 Amould, 1st edit. 497. See Beattie v. Lord JUbury, L. E,., 7 Ch. App. at 804, lines 18 to 21. [x] 2Duer, p. 768; Proofs and Illus- trations, Note VI. {y) Jorden v. 3[oney, 5 H. L. Cas. at 214 and 215 ; 23 L. J. Cli. at 869, per Lord Cranworth, L. C. See also Jlem- mingway v. Hamilton, 4 M. & W. at 1 22 ; reist V. Sill, 16 C. B, at 226, last 6 lines of judgment of Maule, J. ; and 227, last 5 lines of judgment pf Orow- der, J. ; 23 L. J., C. P. at 190. («) JEdwardsy. Footner, 1 Camp. 530, cited in § 14. (ffl) See Lothian v. Henderson, 3 B. & P. at 515, lines 7, 11, and 12 ; Behn v. Burness, 3 B. & S. at 753, lines 5, 6, and 7 ; 32 L. J.i Q. B. at 205, first sen- tence of the judgment. For instances of the confusion of ideas which would arise from using "warranty" instead MARINE POLICIES. 203 In the present portion of this work the expression "a condition" is used Book IV. where most writers would proiahly use the expression " a warranty." As a statement made and an undertaldng given before the execution of the policy are — contrary to the rule in the case of other mercantile agreements — considered in the interpretation of the policy (see § 14), and as it is imma- terial whether the statement or undertaldng is oral or written, it becomes necessary in this portion of this work to depart from the principle hitherto observed of discussing the effect of written words only. In like manner, as it is an implied condition in agreements relating to marine insurance that the assured shall state every fact which it is material for the insurer to know, a treatise on the interpretation of such agreements necessarily involves an inquiry into those facts which it is material for the insurer to know. If statements made and undertakings given before the execution of the policy are terms of the policy, it necessarily follows that the arrangement of a work in 'n.vhich this view is taken must be different from that of a work the author of which adheres to the legal fiction that the defence of an insurer to whom an untrue, though not fraudulent, statement has heemnade, or an undertaking has been given which lias not been performed, is solely on the ground of fraud. Such statements and undertakings are treated of in the present work under the head of — "Evidence admissible in the Interpretation of Policies." of "condition" unless explanatory 32 L. J., Q. B. at 206, first colmnn; "words are added, see Behn v. Bur- Wheelton v. Sardisty, 8 E. & B. at ness, 3 B. & S. at 755, lines 7 to 20 ; 302, 204 Book IV. MARINE POLICIES. Part I. OF THE EVIDENCE ADMISSIBLE IN THE INTEEPE]?- TATION OF POLICIES. CHAPTEE I. Of Statements (a) made, and Undertakings (6) given beeore THE ElSK IS ACCEPTED. The slip. Note. — The insurer usually accepts the risk by initialing the slip or memorandum, of the leading particulars of the proposed risk (c), and this " is in practice and according to the understanding of those engaged in marine insurance the complete and final contract between the par- ties, fixing the terms of the insurance and the premiums ;" but as the slip is not stamped, and no agreement for insurance entered into in the United Kingdom can be given in evidence unless duly stamped, the slip cannot be given in evidence as an agreement, " but it may be given in evidence wherever it is, though not valid, material" {d). Statements (i.) Of Statements made hefore the Risk IS Accepted, made before ac^epted!^ § 294.— (i.) Evidence of a statement as to a fact made before Evidence of the risk is accepted {e) by the assured to the insurer, which has statement (a) Such, statements are commonly called "affirmative representations." (4) Such undertakings are commonly called ' ' promissory representations." (c) Xenos v. Wichham, 14 C. B., N. S. at 437. ( violation of the warranty, because the risk" (in port) "terminates on the day the ship is to sail, whether she commences her voyage or not " (s). Note. — A dictum of Lord Mansfield appears to support this vieio. In giving judgment in an action brought for the recovery of a premium, he said: — "-4 case of general practice was put hy Mr. Dunning, where the words of the policy are, 'At and from, provided the ship shall sail on or before the 1st of August' ; and Mr. Wallace considers in that case that the ichole policy would depend upon the ship sailing before the stated day. I do not think so; on the contrary, I think with Mr. Dunning, that cannot be. A loss in port before the day appointed for the ship's departure can never be coupled with a contingency after the day; but if a question were to arise about it, as at present advised, I (?) Mide v. Bruce, 3 Dougl. 213. (s) Sendricks v. Commereial Insur- er) 1 Phillips, No. 771. anee Co., 8 Johns. N. T. 1. 238 Book IV. MARINE POLICIES. should incline to he of opinion that it would fall luithin the reasoning of the determination in Stevenson v. Snow ; and that there were two parts or contracts of insurance with distinct conditions. The first is, I insure the ship in port, provided she is lost in port before the \st of August ; and secondly, if she is not lost in port, I insure her then during her voyage from the Xst of August till she reaches the port specified in the policy. The loss in port must happen hefore the risk upon the voyage could commence, and vice versa the risk in port must cease the moment the risk upon the voyage began " {t). However, in Arnould on Insurance, the opinion is expressed that "the subsequent breach of a warranty, promising that a given thing shall take place, as completely avoids the policy at) initio as the con- temporaneous falsehood of a warranty affirming that a given thing does exist, or has existed" {u). Note A. see § 334, p 233. — According to the opinion expressed by Mr. Phillips {v), this rule should be qualified by adding after the word "fact " the following words : — (" Unless the fact evidently cannot have any relation to the risk, and provided the statement does not purport, on the face of the policy, to he a stipulation.") He refers to MacMe v. Pleasant (x), where two of the judges of the Supreme Court of Pennsylvania thought that in a policy on " the good British brig called The John" against "real risks only, the risk to end on capture,'^ it was not a condition that the vessel should be British, as her nationality could not affect her liability to the perils of the sea. Their decision, however, rested on the ground that the expression " British brig " meant merely that she should belong to a British sub- ject (not that she should have been registered as a British ship), which it ivas proved that she did. In Arnould on Marine Insurance {y), the opinion of Mr. Phillips is thus commented on : — " On the whole, it appears better to avoid entering, in any case, into the question of the materiality of the fact alleged, both because it is a departure from what has hitherto been regarded as a fixed principle of decision with regard to tvarranties as distinct from representations^^ {that is, statements made or under- takings given before the execution of the policy) ; " and, secondly. {t) Tyrie v. Fletcher, Co-wp. at 670. (ic) 2 Bioney, 363. {«) Vol. 1, p. 583 (1st ed.) ; vol. 2, (y) Vol. 1, pp. 580, 581 (1st ed.) ; p. 592 (5th ed.). Vol. 2, pp! 589, 590 (6th ed.). ip) Vol. 1, p. 415, No. 758. INTERPRETATION OF EXPRESS CONDITIONS. 239 because it calls upon the Court and jury to decide upon a point most r^^^ H difficult to he ascertained — viz., the impossibility of the underwriters Ch. I. having been influenced by the fact thus alleged. Who, for instance, in the very case cited, would take upon himself to say that the underwriter might not have been more inclined to insure a British ship against sea- risks than one of any other national character? I think it better, then, to discard this distinction, and to lay it down generally that every allegation contained in the policy, whether direct or indirect, of the national character of the thing insured amo%mts to a warranty " {that is, to a condition), "and as such must be literally fulfilled.^' In Mackie v. Pleasants, the following dictum of Mr. Justice Le Blanc in Le Masurier v. Vaughan (ss) : — " If the decision would induce underwriters and brokers to read policies before they were subscribed, and to see whether what was written contained matter of warranty or description, it would have a good effect " — is cited as an authority to show that every allegation of a fact in a policy is not necessarily a warranty, that is, a condition, but may be merely a description. In Carr v. Monteflore (a), Erie, C. J., said that in Belia v. Bur- ness (5), the Exchequer Chamber laid it down that "it is a question of construction whether a descriptive statement in a policy of insurance is a mere representation or a substantive part of the contract ; " or, according to another report (c) : — " The question whether a description in a commercial instrument " (he had previously cited, with approba- tion, a decision " that the same general rules of construction apply to policies as to other instruments") "is to be interpreted as a condition or a representation, or as a mere description, was a good deal considered in Behn v. Burness. There my brother Williams, who delivered the judgment, goes into a consideration of the rules of law by which written instruments containing words of description are to be construed." He was of opinion that the provision in the policy as to the adventure begin- ning from the loading on the River Plate " was a mere description and not a condition precedent " (d). (2) 6 East, at 387. {d) 5 B. & S. at 430: "mere de- («) 5 B. & S. at 430. soription and not a stipulation," 33 (J) 3 B. & S. at 761. L. J., Q. B. at 259. (e) 33 L. J., Q. B. at 259. 240 Book IV. MARINE POLICIES. OHAPTEE II. Of Express Conditions as to the State or Situation of THE Ship, the Time of Sailing, Neutrality, Convoy, AND other Matters. The condition that the vessel shall not deviate from the course of the voyage described in the Policy is treated of in Part IV. " Of the Duration of the BisJe." As to "warranted " being often used in policies where no warranty or con- dition is implied, see " Warranted" in " Words and Expressions." Statement as § 341. When, a polioy contains a statement as to the state or situation of Situation of the ship on a certain day, the condition is complied we ship. -with if she was in that state or situation on any part of that day. Thus, where at the bottom of a policy on goods "lost or not lost" were written the words "warranted well December 9th" (that day being the day on which the policy was imderwritten), the insurers were held liable, although the ship was lost at eight o'clock in the morning of that day, since she was safe during a part of that day (a). Note. — But {as Ashurst, J., observe^ this was the only mode of interpretation by which the clause, *' warranted well 9ih December, 1784," could have effect given to it without making it inconsistent with the clause "lost or not lost," for if the meaning of the former clause had been that the ship was well during the whole of the 9th December, it would have been impossible that she could have been " lost" at the time the policy was underwritten, as it was underwritten on that day. If the policy had not been executed until the afternoon of the IQth, {«) BlaeJchurst v. Coehell, 3 T. R. 360. CONDITIONS AS TO THE SITUATION OF THE SHIP, SAILING, ETC. 241 it might have heen held that the ship was ivarranted well during the ^J* ^■^^• whole of the 9th, without making the clause "lost or not lost" Chap. II. inoperative. § 342. When the insurance is " at and from " a port named, Meaning of and the policy contains a statement that the ship was " in port " on a certain day, the condition is not complied with if she was then in a port, but not in that named (b). § 343. (i.) In an insurance " at and from " a port, the word "At" a port; " at " does not import that the vessel is at the port at the time imports. when she is insured (c). (ii.) But it imports a condition that she shall arrive at the port within such a time that the risk at the time at which she arrives shall not vary materially from what the risk would he if she were at the port at the time when she is insured (d) : At all events, if the fact that the vessel is on a preliminary voyage has not been made known to the insurers before the insurance. Whether, if the fact that the vessel u on a preliminary voyage is made hnown to the insurers hefore the insurance, the condition is not merely that she shall arrive at the port without unnecessary delay seems not to have heen determined (e). § 344. Where the vessel was described as "at sea," it was "At sea." held by the Supreme Court of the Colony of Victoria that the condition was complied with, as she had then left port, although she was in a navigable river which had at its mouth a bar diffi- cult to cross (/). § 345, (i.) If by the policy the ship is to sail from an island To sail on or or region before a certain day, and she sails from her final place certain day. of loading, in that island or region before that day for another port in that island or region for the sake of convoy, and sails thence with convoy after the day named, the condition that she shall sail before the day named is complied with [g), if the convoy was lying there ready when she sailed for that port. [h] ColUy V. Suntw, 3 C. & P. 7 ; §§162 and 167. 1 Moo. & M. 81. (e) De Wolf v. Archangel Insurance {c) Hull V. Cooper, 14 East, at 480 ; Co., L. E., 9 Q. B. at 455 and 456. De Wolf V. Archangel Inswcmce Co., (/) Wisher v. Adelaide Insurance Co., L. E.., 9 Q. B. at 453. 2 Victorian Eeports (Law), 90. (d) Be Wolf V. Archangel Insurance (^) Wright v. Shiffner, 2 Camp. Co., L. E., 9 Q. B. 451. Compare with 247 ; 11 East, 515. W. B 242 MAEINE POLICIES. Book IV. A ship does not sail on a day if any- thing neces- sary for the voyage has to be done sub- sequently. Voyage divided into (ii.) But it is not complied with if she sailed for the port in hopes of convoy coming to it, none being ready (A). See Note, p. 247. A ship, warranted to sail from Jamaica after the 12th of January, completed her loading at one port in the island, and before the 12th of January sailed for another port in the island, intending to wait there for convoy, and was lost on the voyage thither. It was held that she had not sailed before the 12th of January (i). § 346. A condition that a ship will sail or has sailed hy a certain day is not complied with by her sailing or having sailed on that day if anything necessary for the performance of the (/(•) voyage has or had to be done on a subsequent day ij). Thus, if she sails by the day named with so much of the cargo as she can take on board before crossing a shoal at the mouth of the river in which she is lying, and takes in the rest of the cargo outside the shoal after that day, the condition is not complied with (m). See Nelson v. Salvador, cited in § 337, p. 236. (ii.) But if the voyage is divided into distinct stages, the condition is complied with if she sails or sailed before or on the day fit for the performance of the first stage of the voyage, although something has or had subsequently to be done to make her fit for the performance of a subsequent stage of the voyage, and she does or did not sail on that stage until after the day. Compare with § 326. A vessel insured at and from Lyons to Galatz, with liberty to call at all ports in the Mediterranean, and warranted to sail on or before the 15th of August, sailed from Lyons on the 2nd of August with everything necessary for the performance of the voyage down the Ehone from Lyons to Aries at the mouth of that river, but not equipped for the performance of the voyage from (A) Bond V. Nutt, 2 Co-wp. 601, at 609, lines 1 and 2, and 8 to 13 ; 1 Dougl. at 370, ool. 2, lines 28 to 34 ; Ewle V. Sarris, 1 Dougl. at 368, judg- ment of Bidler, J. (i) Cruickahank v. Jmnsm, 2 Taunt. 301. (i) Por examples of what are con- sidered things necessary for the per- formance of the voyage, see Thompson V. Gilleapy, 6 E. & B. 209 ; Eudson v. Silton, 6 E. & B. 566 ; Frice v. Livk^- atone, 9 Q. B. D. at 681, last line, and 682, first line. [l) Ltmg V. Anderdon, 3 B. & C. at 499 ; 6 Dowl. & Ry. at 681, last line ; and 682, first line. (»») 3 B. & C. at 449, lines 19 to 25. CONDITIONS AS TO THE SITUATION OF THE SHIP, SAILING, ETC. 243 Marseilles to Galatz, it being impossible for a vessel eqtiipped for ^^5* ^^^• tbe performance of a sea voyage to sale down the Ebone ; at Aries q^' jj she was properly equipped for a voyage from tbat port to Mar- seilles, but not for a voyage to Gralatz ; and at Marseilles sbe was properly equipped for tbe voyage to Galatz, on wMch sbe sailed after tbe 15tb of August. It was held tbat tbe condition as to sailing by tbe 15tb of August bad been complied witb (n). " if the voyage is dmded into distinct stages." A vessel was insured at and from Portneuf to London, warranted to sail on or before tbe 28tb October : Portneuf is a place on tbe river St. Lawrence, about thirty-six; miles above Quebec, but there is no custom-bouse there, and no vessels can clear at any place higher up the river than Quebec : the vessel completed her loading at Portneuf, and sailed thence with a crew sufficient for the navi- gation to Quebec, but not for that across the Atlantic : she arrived at Quebec on the 28th ; on the 29tb sbe obtained (according to the usual practice) the additional seamen required for the remainder of the voyage, and sailed on the 30tb. It was held that tbe con- dition that sbe should sail by tbe 28th had not been complied witb (o). As to impossibility of sailing by the day not being an excuse, see §337,i9. 235. As to the meaning of " leave" in a charter-party, see " Words and Expressions." § 347. A ship sails within the meaning of the condition that What is sail- she shall sail by a certain day if on that day she makes a move- "^^" ment for the purpose of proceeding on the voyage, and not merely for the purpose of complying with the condition. A ship, which was warranted not to sail for British North Ame- rica after the loth of August, being in all respects ready for sea, was hauled out of tbe dock in tbe Biver Liffey in tbe afternoon of that day, when the wind was blowing so bard up the river tbat the master and crew knew that it was impossible for her to get out of the harbour, and was warped half a mUe down tbe river, when through the tide ebbing she grounded and could proceed no further tbat day. The jury having found that tbe master and crew in- tended by hauling out of the dock and warping down the river to put themselves in a better situation for the prosecution of the voyage, and not merely to fulfil the condition {warranty), judg- («) Bouillon Y^Lupton, 15 C. B., N. 140 and 141 ; and Van Buggen y. S. 113. Baines, 9 E:^. at 528, per Parke, B. (o) Eidsdale v. Neicnham, 4 Camp. See also Fettigreto v. Fringle, 3 B. & 111 ; 3 M. & S. 456 ; referred to in Ad. 514. Bouillon V. Ziipton, 15 C. B., N. S. at r2 244 MAKINE POLICIES. Book IV. jjjgjjt ^^g given in favour of the assured, the judges in the Court of Exchequer holding that even if the motive was mixed, being partly to comply with the condition, the condition was complied with ( p). When a ship § 348. Wlieii by the policy a ship insured from a port is to ^^* ^' depart by a certain day, the condition is not complied with by her sailing, if she does not get out of the port, on that day. A vessel insured at and from Memel, and warranted to depart on or before the 15th of September, sailed on the 9th and got a mile on her voyage, but on account of the wind changing it became impossible for her to pass the bar at the mouth of the port, and she was obliged to lie at anchor within the port until after the 15th. It was held that she had not departed on or before the 15th (q). Condition as to aailing from an in- termediate port by a certain day. Statement as to ship or goods being neutral. § 349. When a vessel is insured from a port to an interme- diate port, and thence to a third port, a condition that she shall sail from the intermediate port by a certain day does not pre- vent the assured from recovering if she is lost after that day on the voyage to the intermediate port, even if she sailed for that port at so late a period that she could not reasonably have been expected to sail thence by the day (r). § 350. A statement in a policy that the ship or goods are neutral property, or a description of it or them in time of war («) as the property of a neutral nation, amounts to an undertaking by the assured (that is, to a condition) that it or they is or are owned by persons resident in a country at peace when the risk commences, and who have the commercial cha- racter of subjects of such country, and that the ship or goods shall be accompanied with such documents (t) {compare with § 330), and shall be so managed by the assured and their agents as to be entitled, as far as depends on them, to all (p) Goohrcme v. Fisher, 2 Cr. & Mee. 681 ; 4 Tyr. 424 ; in Ex. Ch., 1 Cr. M. & B. 809 ; 6 Tyr. 496. (j) Moir v. Soi/al Exchange Assur- ance Co., 4 Camp. 84; 3 M. & S. 461 ; 16., 6 Taunt. 240 ; Lang v. Anderdon, 3 B. & 0. at 501. (r) Baines v. Holland, 10 Ex, 802. («) Behn v. Bumess, 3 B. & S. at 767, lines 14 to 22. (t) Baring v. Clagett, 3 B. & P. at 215, lines 7 to 13; Baring v. Christie, 6 East, 398. CONDITIONS AS TO THE SITUATION OF THE SHIP, SAILING, ETC. 245 the privileges of property belonging to the subjects of such ^^*i?' country (m). Chap. II. During a time of war between Prance and Britain, in wMch. the United States of America were neutral, a ship and goods were insured on a voyage from London to Guernsey, and thence to the Coast of Africa, and were warranted American property, as in fact they were ; the ship sailed from London to Guernsey without the sea-letter which was required by the treaty between France and the United States, but at the time of her sailing from Guernsey, and thence contiDually afterwards, she was furnished with such a sea-letter. It was held that the assured could not recover, even although the not having had a sea-letter on the voyage between London and Guernsey might have had nothing to do with the loss {x). § 351. If there is a condition that the vessel shall depart Condition to with convoy she must, to comply with it, not only sail with voy. convoy but have (except in the case mentioned in the next section) throughout the voyage (y) the convoy usually ap- pointed for vessels making that voyage (s). Therefore, where a part of the premium was to be returned if the ship saUed with convoy from Gibraltar and arrived at London, the assured could not recover the stipulated part of the premium, although the ship sailed with convoy from Gibraltar and arrived at London; because the convoy, not being appointed for vessels making the voyage to London, separated from her about Cape Finisterre (a). " the convoy usually appointed for vessels making that voyage." Corollary. — If the vessel has the convoy usually appointed for vessels making the voyage, the condition is complied with, although the convoy does not, and is not intended to, accom- pany vessels during the whole course of that voyage. Thus, if from there being no convoy from the place from which the vessel sails she has not convoy at the commencement of the voyage, but has it from the place where convoys for vessels on that voyage are to be had, the assured can recover (6). iu) 1 Phillips, No. 783 ; 2 Amould, (z) Shower, at 193, note {g) ; 2 Salk. 609. 442, note (a): 1 PhilHps, No. 780, {x) Rich V. Farker, 2 Esp. 614; 7 p. 431. T. E. 705. (a) Lilly v. Ewer, 1 Dougl. 72. (y) Jeffery or Jeffries y . Legender or (J) Zethulier's Case, 2 Salk. 443; Zegandra, 3 Lev. 321. Warwick v. Scott, 4 Camp. 62 ; 2 Park. 701. 246 MARINE POLICIES. Book IV. gg^ where a vessel wHcli, on a voj'age from London, to St. Sebas- tian, was "warranted to depart with convoy for the voyage," sailed with a man-of-war, whose captain had instructions to take the vessels bound to Bilbao (which is a port near and in the course of the voyage to St. Sebastian) and St. Sebastian under his convoy, and see them in safety ofE Bilbao, and if there were any vessels there bound to England to take them under convoy to Spithead, and was captured between Bilbao and St. Sebastian, it was held that the assured was entitled to recover (d). § 352. If the vessel sails for the appointed place where convoy is to be had for vessels making the voyage she intends to make, and while on the way thither is lost by capture or other perils of the seas, or if she has convoy when she sails, but is separated from it by the perils of the seas or other inevitable accident, and afterwards proceeds on her voyage without con- voy, even although by waiting she might have procured other convoy (e), the condition of sailing with convoy is complied with(/). § 353. To comply with a condition that the vessel shall sail with convoy, the master must before or at the time he sails with the convoy obtain sailing orders or instructions from the com- mander of the convoy, if they can be obtained by using due diligence (g). As to delaying or going out of the direct course of the voyage to obtain convoy not being a deviation, see § 367, p. 259. Meaning of § 354. If a vessel is insured " in any lawful trade " against ■ade'^^" t^^^^^try (among other perils), the words of the condition mean " during employment by the owner in lawful trade." Therefore, where a vessel was sent by the owners on a voyage in a lawful trade, from a foreign to an English port, where she was seized because the master — without the knowledge and against the will of her owners — ^had shipped dutiable goods which he in- tended to smuggle into England, it was held that the condition in the policy as to her being "in lawful trade" had been complied with (A). (. Janson is suggested, viz., that " where a ship is in- sured ' at and from,'' an island the whole island is considered as one terminus a quo, and the ship under the word ' at ' is protected in coasting round the island from port to port, and is not considered as having sailed on her voyage till she has entirely cleared away from the island with the purpose of proceeding directly for the terminus ad quern." It is to be observed, however, that in Thellusson v. Fer- guson {k). Bond v. Nutt and WrigM v. SliifEner {in each of which it was held that the ship had sailed before the day named), the insurance was " at and from" the island, and that, therefore, if it had been con- sidered that the ships had not sailed on their respective voyages until they had entirely cleared away from the island the decisions m,ust have been against the assured, as the ships did not entirely clear away from the island until after the days named. (i) Vol. 1, p. 590 (1st ed.) ; Vol. 2, {k) 1 Dougl. 360. p. 598 (Sth ed.). 248 Book IV. MARINE POLICIES. Part IV. OP THE DUEATION OF THE EI8K. As to the meaning of " Bisk " see " Words and Expressions J' Goods in boats not covered by the words "from tte loading' thereof." OHAPTBE I. Of the Commencement of the Eisk in Voyage Policies. ON GOODS. § 355. When the risk on goods insured is expressed to begin from the loading thereof on board the ship, goods in course of being carried in boats or lighters to the ship's side are not covered by the policy (a) . PhiUips(b) says, "under a policy on goods at and from a place against marine, river, or lake risks, the risk begins on their being there on board of the vessel by which they are transported, or boats where that is the customary way of taking them on board." He refers to Hurry v. Eoyal Exchange Assurance Co. (c), where Heath, J., said, "the insurance commences before the freight, for it commences when the goods are put on board the boats at Petersburgh ; " but in that case, by the express words of the policy, the risk of boats was included, and the adventure was to begin from and immediately following the loading of the goods on board the boats at Petersburgh (d). Only goods § 356. When the risk on goods insured is expressed to begin TOnstru^-*"^ f^oi^ t^s loading thereof on board the ship, only goods actually SS^ °^ constructively (see post, p. 250) loaded at the place named (a) 1 Arnould, 377 ; 1 Park, 32. lb) Vol. 1, No. 938, p. 521. (c) 2 B. & P. 436. {d) SEsp. 288 [289] ; 2B. & P. 430. COMMENCEMENT OF RISK IN VOYAGE POLICIES. 249 as that at which the voyage is to begin are covered by the 5^"^* ^^" policy (e) ; Thus, where there was an insurance at and from Gottenburgh, beginning the adventure upon the goods from the loading thereof aboard the ship, and the goods had been loaded in London and had not been unloaded on her arrival at Grottenburgh, but continued on board without being shifted until her capture, it was held, although it was then customary, in order to evade the operation of Napoleon's Berlin and Milan decrees, to insure produce really shipped in England as though shipped in some Baltic port(/), and the insurer at the time of his executing the policy knew that the cargo had been put on board at London, that the assured could not recover (g). Unless there are words in the policy which show that the Exceptions to loading referred to is a loading at a time prior to the beginning of such voyage (h) ; As if the policy is expressed to' be in continuation of a former policy, and that policy was on a voyage beginning at another place (i) ; Or to be a re-insurance, and to be subject to the clauses and conditions of the original policy, and the original policy covered goods not loaded at the place named in the policy of re-insurance ■ as that at which the voyage is to begin (y ) ; Or as if such words as " wheresoever loaded " are introduced (k) ; Or that the parties intended that goods loaded at a place after the voyage had begun were to be covered. Thus, where there was an insurance on a voyage at and from Plymouth to Malta, with liberty to touch at Penzance for any pur- pose whatever, upon goods, " beginning the adventure from the loading thereof on board the ship as above," and some goods were {«) SpittuY. Woodman, 2Ta\XD.t. il6 ; overruled, and has heen frequently Mellish T. AUnutt, 2 M. & S. 106 ; reoognized in the United States : 1 Horneyer \. Luahington, 15 East, 46. In Phillips, p. 523, No. 939. Carr v. Montefiore (33 L. J., Q. B. at (/) 1 Aruould, 378. 63; 5 B. &S. at 423), Cookburn, C. J., {g) Lcmghorn v. Hardy, 4 Taunt, expressed a hope that the doctrine 628. laid down in these and other cases (A) Joyce v. Eealm Insurance Co., li. might be reviewed in a Coiu^ of Error. E,., 7 Q. B. at 583, last line, and 584. In the same case, in the Exchequer (i) Hell-v. Hohson, 10 East, 240. Chamber, 33 L. J., Q. B. at 259; 5 B. & {j) Joyce v. Sealm Insurance Co., L. S. at429, Erie, C. J., said thatitseemed R., 7 Q. B. 580. to him that the construction put upon {k) Bell v. Hobson, 3 Camp, at 273, the policies in these cases had defeated last 3 lines ; Gladstone v. Clay, 1 M. & the intention of the parties. The S. 418. doctrine has, however, never been 250 MARINE POLICIES. Book lY. loaded at Plymouth and others at Penzance, it was held that the goods loaded at the latter place as well as those loaded at the former were covered by the policy (I). "goods . . . constructively loaded at the place named as that at tchich the voyage is to begin are covered by the policy." Where the goods had been loaded at a port from which the vessel had sailed to the place named as that at which the voyage was to begin, but on her arrival at that place a sufiScient quantity of them had been taken out of the hold and landed on the quay to enable the custom-house oflBcers to iospect and examine the whole cargo on board, the duties on it were paid, and the goods which had been taken out were replaced, it was held that the goods had been constructively loaded at the place named (m). It was held that there had been a constructive loading at a place where a portion of the cargo (which had been loaded elsewhere) was taken out for the purpose of repairing the vessel, and was then reloaded; and where the assured had purchased the cargo and the vessel and re-named the latter, partially changing her destina- tion (n). When " risk | 357. When goods are insured from the loading thereof on spedfied. board the ship, including risk of craft, the risk commences not merely when the goods are on board the ship, but as soon as they are afloat (o). § 358. If cargo is insured from the loading thereof aboard the ship, a clause in the policy giving the assured liberty to load, exchange, or barter goods with any vessels or factories, and to transfer interest from the ship named in the policy to any other, does not make the risk commence on goods before they are shipped, although they may have been obtained by barter of the cargo carried outwards by the ship, and are lying in a factory ready to be shipped on her {p). Compare with § 366, p. 254. As to "at and from" not importing that the vessel is at the port when she is insured, and as to what it imports, see % 343. (I) Violett T. Allnutt, 3 Tannt. 419. («) Carr v. Montejwre, 5 B. & S. 408; See also BanUy v. Stirling, 5 M. & S. 33 L. J., Q. B. 57 and 256. 6 ; Hunter v. LeathJey, 10 B. & C. (o) Marrison v. Mlu, 7 E. & B. at 858, afBimed, V Bing. 317. 480, per Erie, J. {in) Xonnen v. KettUwett, 16 East, (p) Marriatm v. Ellit, 7 E. & B. 465. 176. COMMENCEMENT OF RISK IN VOYAGE POLICIES. 251 Part IV. DECISIONS AS TO WHETHER THE SUBJECT OF INSURANCE WAS AT Chap. I. THE PLACE NAMED. § 359. An insurance at and from a place named does not "At and from IT.. . . a place ' ' cover the suD]ect of insurance at a place which is not under- named: it is stood [q) by mercantile men as being within the limits of the ^hat^they place named, although it may be within the limits of a port ^T^^^ merely having the name of the place named. that name. Thus, an insurance at and from Lyme to London was held not to cover goods shipped at Bridport, although it is a member of the Port of Lyme, and nearer than Lyme to London (r). § 360. If the place from which the ship sails is ordinarily known by the name of the place named, although according to a strict interpretation it would not be the place named, the policy attaches. Thus, where the policy was "at and from the ship's loading port or ports in Amelia Island to London," the assured recovered, al- though the ship sailed not from Amelia Island but from Tigre Island, which lies a little further up the river at the mouth of which Amelia Island lies, as it was proved that in mercantile con- tracts Amelia Island denominated a region in which Tigre Island was comprehended (s). So, a policy " at and from London " would attach if the ship sailed from the East India Docks, though they are not within the city or liberties of London (f). As to " the Baltic " comprehending the Oulf of Finland, see " Words and Expressions." § 361. When the subject of iasurance is insured at and from "At" means a place, the risk commences on the vessel's first arrival at that ^^al at ■ place {u) {see Note), Unless by a usage of trade the risk is not to commence until 'unless usage ■i , . J to the con- a subsequent period. trary. " the risk commences on the vessel's first arrival." Therefore, where a ship which was insured at and from Havana {q) For an instance of a place so un- (s) Moxon v. Atkins, 3 Camp. 200. derstood, see Moxon v. Atkins, 3 Camp. (t) Constable v. Noble, 2 Taunt, at 200. 404, last 10 lines; Moxon y. Atkins, 3 {r) Constable v. Noble, 2 Taunt. 402. Camp, at 201, last 7 lines, and 202, Compare with Kingston - upon - Hull first 3 lines. Dock Co. V. Browne, 2 B. & Ad. 43 ; («) Motteaux v. London Assurance and Brou-n v. Tayleur, 4 A. & B. 241. Co., 1 Atk. at 548. 252 MARINE POLICIES. Book IV. had entered the harbour of Havana, and while being towed to a clear anchorage received an injury, the assured was entitled to recover {x). " unless by a usage of trade the risk is not to commence until a period subsequent to the vessel's first arrival at the place." By the usage of the Newfoundland trade, vessels on their arrival upon the coast are employed in fishing on the banks of that coast, and while so engaged are covered by a separate poHcy ; and a policy ' ' at and from any port or ports in Newfoundland to any port in the United Kingdom " is understood to attach only when the ship begins to take in her homeward-bound cargo : therefore under it the insurers would not be liable for any antecedent loss {y). « For an example of the converse usage, that is, that although the inswrance is to an island the risk is not determined when she arrives at the island, hut only when she arrives at the last port in that island {z). If vessel not NoTE. — If the vessel is not in a state of sufficient seaworthiness to seaworthy ^^ ^^ ^^^ place in safety the risk does not commence there, as the implied does not condition that she shall he seaworthy has not been complied with {a). attach. g^^ gg 324 and 462 When the § 362. If the insurance is "from" (not "at and from") a under an port the risk begins only when the vessel sails from the port {b). insurance "from" a ^j fo fjig condition that the vessel must sail within a reasonable place. time, see % 343 (ii). Under "from § 363. If the insurance is "from" a port "beginning from theri^™^ the loading" the risk begins from the time the loading is com- ^eg!?8 when plgte, although the vessel has not sailed (c). complete. {x) JSaughton t. Empire Insurance Co., L. K., 1 Ex. 206. See also Foley T. United Insurance Co. of Sydney, L. E., 5 C. P. 165. (y) Vallance v. Sewar, 1 Camp. 503. (2) See Camdenv. Cowley, IW. Bl. 417. (a) Farmeter \. Cousins, 2 Camp. 233 ; Eaughton v. Empire Insurcmce Co., L. R., 1 Ex. at 210. (J) Jones T. Neptime Marine Insu/r- anee Co., L. K., 7 Q. B. at 707, lines 10 to 25 ; 709, lines 3 to 12, and 710, lines 4 to 8. [e] This was held in Jones v. Neptune Marine Insurance Co., L. R., 7 Q. B. 702, by Mellor and Lush, J J. Blackburn, J. , held, that the words, "begiuningfrom the loading" did not make the risk, which but for them would have begun only from the sailing begin from the loading, and that the meaning (the poUoy being on freight) was that the insurers would be responsible for da- mage to the freight if the goods be put on board diiring the voyage from the port named. COMMENCEMENT OF RISK IN VOYAGE POLICIES. 253 § 364. If by the policy the risk is to commence on the Part iv. vessel's preparing for her voyage, it commences when the master takes steps in order to procure a cargo for her on that for the*"°^ voyage. voyage." A privateer was insured at and from Pernambuco or any other port or ports in Brazil to London, beginning the adventure on the termination of her cruise and preparing for her voyage to London : her cruise terminated when she was to the north of Pernambuco, and the captain sent an officer ashore to inquire whether a cargo could be obtained at Pernambuco ; finding that it could not he sailed past Pernambuco for San Salvador, another Brazilian port further distant from London, intending to try for a cargo there, and on the passage thither she was lost. It was contended that as she had not begun discharging her ballast, or taking in her stores, she was not "preparing for her voyage to London;" but it was held, that as she was to go to England not in ballast but with a cargo, she was preparing for the voyage when she was sailing to get the cargo (e). § 365. An insurance at and from a named port (or two or Effect of an 1 i. \ 1 -I I i. • J.1 insurance at more named ports), or any other port or ports m the same and from a country or region, to the port of discharge, covers the subject of P"""' °^ P°^'^ insurance not only at and on a voyage from the named port — any other or the named ports or either or any of the named ports (/) — but at and on a voyage from the named port — or the named ports or either or any of the named ports — and any other port or ports in the country or region (g), although such other port or ports may be further than the named port or ports from the port of discharge ; See the example given in the last preceding section ; or at or on a voyage from any port or ports in that country or region to which she may go in order to take in a cargo (h). See Note I., p. 255. (e) Lamhert v. Liddard, 5 Taunt. the places, see Stone v. Marine Insur- 479 ; 1 Marsh. 149. ance Co., 1 Exch. Div. at 85, first 5 (/) Clapham v. Cologm, 3 Camp. lines, and 86, lines 17 to 20. 382; Sillar v. McVioar, 1 B. & P. N. (?) Lambert y. Liddard, 5 Taunt, at B. at 23, lines 3, 4 and 5, and 25, 486, lines 8 to 16. fines 11, 12 and 13. For an example, {h) Lambert v. Liddard, 5 Taunt, where it was doubtful whether the 479 ; 1 Marsh. 149 ; Sroffg v. Ander- words used imported both or either of son, 4 Taunt. 229. risk on freight commences 254 MARINE POLICIES. Book IV. • WHEN RISK ON FREIGHT BEGINS. As to what may he recovered under a description of the subject, of insurance as "freight" see §§ 310 — 313. Wien the ^^ § 366. The risk on freight commences (according to the respective meanings of the word "freight") either when the assured has his own goods {i) on hoard or (the. ship being in a condition to receive them {k) ) ready to be shipped, or when some person who has agreed with him by a binding agreement {I) to ship goods has them on board or (the ship being in a condition to receive them) ready to be shipped {m), See Note II. next page. or when the ship for the use of which, or a part of which, some person has agreed with him by a binding agreement {commonly called a charter-party (n) ) to pay him a sum of money has com- menced the voyage described in that agreement (o), if it is not different from that described in the policy (p). " goods . . ready to he shipped :" " the ship being in a condition to receive them." Where the cargo was deposited in a warehouse for the purpose of being put on hoard, although the warehouse was seven miles dis- tant from the place where the vessel was at the time of the loss, the assured was held entitled to recover on an insurance of freight, as the cargo was in a state of readiness to be put on board when the vessel arrived at the place of deposit. The ship had been placed iu dock to be repaired, but the repairs had been completed, and she was quite ready to go to sea and receive the cargo on board, and nothing remained to prevent her sailing but the getting her out of dock, and the inability to receive the cargo was occasioned solely by her being lost while endeavouring to get out of the dock (q). (i) Flint V. Flemyng, 1 B. & Ad. 45 ; 519. Bevaux v. T Anson, 5 B. N. 0. at 537 ; («) Truscott v. Christie, 2 B. & B. Denoon v. Home and Colonial Assurance 320, at 330. Co., L. E., 7 C. P. at 349. (o) Barber v. Fleming, L. R., 5 Q. [k) Forbes v. Aspinall, 13 East, at B. 59 ; Foley v. United Ins%irance Co, 331, lines 13 to 3 from the bottom ; of Sydney, L. E., 5 C. P. 155 ; Mercan- Devaux v. J'Unson, 5 B. N. 0. from 538, tile Steamship Co. v. Tyser, 7 Q. B. D. Une 4, to 539, line 13 ; 1 Amoiild, 431 at 75. and 435. (p) Sellar v. Mcricar, 1 B. & P. (1) Fatrieh v. Fames, 3 Camp. 441 ; N. E. 23 ; 1 Amonld, 482 and 483 Flint V. Flemyng, 1 B. & Ad. 45 ; 1 (1st ed.), 444 (5th ed.). Amould, 434. (?) Devaux v. T Anson, 5 B. N. C. (m) Devaux v. J' Anson, 5 B. K. C. 519, at 539. COMMENCEMENT OF EISK IN VOYAGE POLICIES. 255 The case -was therefore distinguished from one where the policy ^^^ ^^• was on freight upon the homeward voyage, and where the home- ward cargo was to be made hy harter of the outward cargo, and part of the outward cargo was still on board at the time of the loss, in which it was held that the assured could not recover, as the immediate and proximate cause which prevented the com- mencement of the right of the assured to the freight was not the perils insured against, but the inability of the ship to receive the homeward cargo by reason of her being partly loaded vrith the outward cargo (r). " if the voyage described in the agreement is not different from that described in the policy." Freight was insured on a voyage from Demerara to London, or from Berbice to London (s) : the master of the vessel entered into an agreement to carry a cargo from Demerara to Berbice, and another cargo from Berbice to London : the vessel took in at Deme- rara the cargo to be carried to Berbice, and was lost after she had broken ground on that voyage. It was held that as she was not on a voyage to London the assured could not recover {<). Note I., see § 365, p. 253. — Whether the vessel must go to the ports in an order having reference to progress to the port of discharge [unless a different order is justified by the nature of the voyage, or some provision in the policy or usage) may be open to doubt. Where a vessel is insured to ports of discharge which are not specifically named in the policy, the general principle is that the ship must visit such ports in an order having reference to progress towards the specified ulterior ports {u) ; and it may he thought that a similar rule should apply as to the order in which the ship should visit ports of loading. See Harrower v.. Hutchinson, cited post, § 372. Note II., see § 366, p. 254. — There arepassages in some judgments which might he cited as authorities for the position that the risk com- mences, not simply when the assured has entered into an agreement binding upon the other party, upon performance of which by the assured he will have the right to freight, but only when something has been done by the assured under the agreement. Thus, in Thompson v. Taylor {x), Lord Kenyon said: — " Here, as the plaintiff had begun [r] Forbes v. Aspinatt, 13 East, 323, [t) lb., at 23. at 331 ; Sevaux v. J' Anson, 3B. N. C. («) 1 Phillips, No. 1013, p. 580 ; 1 at 538. Arnould, 460. (s) Sellar v. McVicar, 1 B. & P. N. {x) 6 T. E. at 482. R. at 25, lines U and 12. 256 Book IV. MARINE POLICIES. to perform his part of the contract, as he had done something tinder it which if matured would have entitled him to his freight, I think he may recover on this policy, which was an insurance on that freight." So, m Barber v. !Pleming(y), Blackburn, J., said : — "Mr. Phillips, in his book on Insurance, at § 328, says : ' In regard to the commence- ment of the interest in freight, it is a general rule that it commences not only by the vessel sailing with the cargo on board, but also when the owner or hirer, having goods ready to ship on a contract with another person for freight, has commenced the voyage, or incurred expenses, and taken steps towards earning the freight.^ I think that is the accurate rule. When a shipowner has got a contract with another person under which he will earn freight, and has taken steps and incurred expense upon the voyage towards earning it, then his interest ceases to be a contingent thing, but becomes an inchoate interest, and is an interest iohich, if afterwards destroyed by one of the perils insured against, is lost, and ought to be paid for by the underwriters." The question whether the risk commences upon the mere making of the agreement, or only on something being done under it, would become of importance if one of the perils insured against were to happen so soon after the making of the agreement that there had been no time for the assured to incur expense, or take any steps towards earning the freight. It would seem strange that if the assured has laid out even a few shillings in expenses he may recover ; but that if there has been no opportunity for him to do so he cannot. " The shipowner having got a contract had an interest, unquestionably, in earning the freight secured to him by it ; and, having such an interest, it is manifest that that interest is insurable," observed Cockburn, C. J., in Barber v. Fleming {z). It is submitted that this interest first arises not upon the assured expending some money in carrying out the agreement, but immediately upon the making of the agreement ; and that when the agreement has been made it is not a contingent, but an inchoate, interest. There is, it is believed, no case in which it has been decided that the assured who has entered into a valid agreement, upon the performance of which he would be entitled to freight, cannot recover on an insurance affreight if he has not incurred expenses under the agreement. In Tonge v. Watts (a), which was referred to by Lord Kenyon in Thompson v. Taylor, it does not appear {as was pointed out by Wilde, (y) L. E., 5 Q. B. at 71. (a) 2 Stra. 1251. («) lb., at 67. COMMENCEMENT OF EISK IN VOYAGE POLICIES. 257 Serjt. (i) in Devaux v. I' Anson) that there was any contract to put a chati I cargo on hoard, and, if there was not, there could he no right to freight until it was put on hoard, which it never was. As regards the passage from Phillips quoted hy Blackburn, J., " it would appear that this is rather the ratio of a particular decision than the statement of a general rule " (c). (i) 5 B. N. 0. at 528. (c) 1 Amould, 430 and 431. 431, note 1. W. 258 Book IV. MARINE POLICIES. Deviation. WBat is a deviation. OHAPTEE II. Of the Course of the Voyage as contemplated by the Policy, and of the Determination of the Eisk by A Departure from that Course ; also of the Eisk not attaching by reason of Delay in commencing the Voyage. As to an insurance at and from a named port or any other port or ports covering the subject of insurance on a voyage from another port or other ports than the named port, as well as on a voyage from the named port, see §.365. § 367. The description of the voyage given in the policy amounts to a condition that the vessel which, or the freight to be earned by, or the goods (a) on board of, which, is or are insured shall not deviate, that is, shall not unduly delay commencing (J) or performing (c) the voyage, nor depart without necessity or proper excuse from the usual course of that voyage {d). Compare with § 168. (l.) It is a deviation, if tte vessel delays or departs from the course of the voyage for the purpose of saving another vessel or her cargo when the Hves of those on board that vessel are not in danger («) ; if the vessel takes in or discharges cargo at a port which she is JTistifled in entering by stress of weather, the necessity of wait- ing for convoy, or by other cause, or the terms of the policy, and is delayed in her voyage by so taking in or discharging cargo (/); [a] Williams v. Shee, 3 Camp. 469. (J) Mount T. Larkina, 8 Biag. 108 ; De Wolf V. Archangel Insurance Co., Is. E., 9 Q. B. 451. {c) Sariley v. Buggin, 2 Park, 652, cited in Mo%mt v. La/rkins, 8 Biag. at 121. {d) 12 Park, 619; 1 PHllips, 653, No. 977 ; 1 Amould, 341 (1st ed.). («) Scaramanga v. Stamp, 5 C. P. D . 295(0. A.). (/) Raine v. Sett, 9 East, at 201, last 2 lines, and 202, first 8 lines. COURSE OF THE VOYAGE AND DEVIATION. 259 if the vessel goes out ,to sea from tte port wtere she is lying to ^*'^* ^^* examine a strange sail by order of the captain of a man-of-war who does not use force or threats [g) ; if the vessel departs from her proper course through the ignorance of the master {h). (ii.) It is not a deviation, if the vessel delays in, or departs from the course of, the voyage to save life (i) ; if the vessel delays the commencement or departs from the course of the voyage from necessity ; as, for example, from stress of weather ; or from the invincible refusal of the crew to commence the voyage at the proper time {Ic), or to proceed to the port of destination (l) ; or from being carried out of her course by a public ship (m) : if the master in the exercise of a reasonable judgment [n) delays the commencement, or departs from the course of the voyage to avoid any perU of the seas (o), whether that perU is insured against or not [p ) ; {See Note p. 265.) as, for example, if he departs from the direct course of the voyage to obtain convoy which he could not by the exercise of proper care have obtained without such a departure (j) ; or puts into a port to make repairs rendered necessary by a storm, if there is no unreasonable delay in making the repairs (r), or to procure men to supply the places of those of the crew who have died or become disabled since the commencement of the voyage (s) : if the vessel takes in or discharges cargo at a port which she is justified in entering by stress of weather, the necessity of waiting for convoy, or by other causes, or the terms of the policy, pro- vided she is not delayed in her voyage by so taking in or discharging cargo (<) ; . if the vessel, having from any justifiable cause departed from the course of the voyage, proceeds to her port of destination without returning to the point at which she departed from her course (m). ((7) FAelps V. Auldjo, 2 Camp. 350. (0) 1 Phillips, No. 1023. (A) Phyn T. Soyal Exchange Asaur- {p) Ibid. No. 1025. ance Co., 7 T. E. 505. [q) D'AquUar v. Tobin, 1 Holt, 185; (j) Scaramanga v. Stamp, 5 C. P. D. 2 Park, 644, 645 ; 1 Amoiild, 501 ; 1 295 (C. A.) Phillips, No. 1023. {/c) DriscoU v. Passmore, 1 B. & P. (>•) Motteux v. London Assu/rance Co., 200; DriscoU Y. Sovil, ib. 313. 1 Atk. at 547; 1 PhUlipa, No. 1018, (?) Mton V. Brogden, 2 Stra. 1264 ; 1019, and 1021 ; 1 Amould, 497. 2 Park, 635. (s) Woolf v. Clagett, 3 Esp. 268 ; 1 (m) Scott V. Thoi^son, 1 Bos. & P. Phillips, No. 1018 ; 1 Amould, 498. N. E. 181. (t) Zaroche v. Owen, 12 East, 131; («) Sond V. Gonsales, 2 Salk. 445; Ashley v. Fratt, 16 M. & W. at 483, Bond V. Nutt, 601 ; 1 Amould, 497 ; 1 last paragraph. Phillips, No. 1022. («) Belaney v. Stoddart, 1 T. E. 22. S3 260 MARINE POLICIES. Book IV. Evidence aa to -what is tlie usual course of the voyage. Deviation before the risk was accepted. Abandon- ment of the voyage. " shall not unduly delay commencing , . the voyage, nor depart . . from the usual course of the voyage" As there is a usage in the Newfoundland trade that when vessels arrive on the coast they are employed in banking, that is, fishing on the banks of that coast, it was held that the assured under a policy at and from Newfoundland to a port in Europe, were entitled to recover, although the vessel, in consequence of being employed in banking, did not begin to take in her homeward cargo until more than a month after the policy had been effected (as). So if there is ia the trade a usage that an intermediate voyage is taken, going on such an intermediate voyage, although no leave is given in the policy to do so, is not a deviation, as it is not a departure from the usual course of the voyage [y). § 368. — (i.) The fact that the deviation took place before the risk was accepted, and was known to the insurer, will not enahle the assured to recover if this condition has not been complied with. (ii.) Nevertheless the assured may recover in respect of a loss (necessarily a partial loss) which happened before a deviation, even although after the assured or the master had determined to deviate. Thus, where goods were insured on a voyage from Liverpool to London, and the master having taken in at Liverpool goods for Southampton as well as London, put into Southampton (which was a deviation), and afterwards contiaued the voyage to London, it was held that the assured could recover in respect of damage done to the goods which was proved to have happened before the ship left the direct course from Liverpool to London {z), (ill.) But if there has been not a deviation but an abandon- ment of the voyage, that is, if the assured or the master has determined to go to another terminus than that named in the policy, the assured cannot recover in respect of any loss which happened after such determination (a). Thus, where a ship which was insured from Maryland to Cadiz cleared out for Palmouth, and was taken by an enemy in the course from Maryland to both Cadiz and Falmouth before the dividing {x) ValUnee v. Bewar, 1 Camp. 503 ; De Wolf V. Archangel Insurance Co., Ii. R., 9 C. P. at 456, lines 6 to 12. iy) 1 Amouia, 458 ; I Park, 101 to 106 ; Fearson v. Commercial Union As- swanoe Co., 1 App. Ca^. at 508, first 11 lines. («) Bare v. Trmis, 7 B. & C. 14. {a) Woolridge Y.^oydell, Dougl. 16, cited in Way v. Modigliani, 2 T. R. at 32 ; Tasker v. Cunningham, 1 Bligh's P. Cas. 87, COUESE OF THE VOYAGE AND DEVIATION. 261 Part IV. point, it was held that the assured coiild not recover (J), because chap. XI. she had never sailed on the voyage insured (c). • A ship which was originally intended to sail from Cadiz to Liverpool, and there load a cargo of salt for Newfoundland, was insured " at and from Cadiz to Liverpool," but the agents of the assured, in consequence of her being long delayed in discharging her cargo at Cadiz, subsequently determined to load her with salt at Cadiz and dispatch her thence direct to Newf oimdland : after they had so determined she was lost at Cadiz before she had en- tirely discharged her cargo ; and it was held that the assured could not recover, upon the ground that the insured voyage to Liverpool had been given up {d), Mr. Phillips (e) makes the following reinarhs on the above case: — " This ground does not seem to he sufficient; it required that the rish should not have commenced, and that the assured might have recovered hack his premium, or that the underwriters had heen discharged by the delay to proceed to Liver- pool ; and the circumstances seem to have justified one or both of these de- fences. If the risk had commenced, and the right to retain the premium had accrued, the assured had a right, notwithstanding his own intentions or those of his agents, to the protection of the policy so long as the subject was practi- cally within the specified risks." See further, as to Bemation, § 392, Corollary, p. 274. 8 369. If a vessel is insured at and from a " port of lading" ■*■* and from "... . ^ a port, it is a deviation if slie takes in cargo at more than one port, even although all the places at which she takes it in should be subject to the same custom-house jurisdiction (/). § 370. But if she is insured at and from a country or place it is not a deviation if she takes in cargo at different parts of the same country or place (g). Thus, if a vessel were insured at and from Liverpool, and merely removed from one quay to another quay a mile or two off, this would not be a deviation because she would be all the time in one port and place {h). § 371. If several ports of loading or discharge are named in Where the policy the vessel is not bound to visit them all(*), but those n^ed. she visits she must visit in the order named (/c) ; (5) WooMdgeM. Boy dell, 1 Dougl. 17. _301 ; Miller v. Warre, 1 0. P. 237; 4 [c) Sure T. Travis, 7 B. & C. at 17, B. & 0. 538 ; Brown v. TayUur, 4 A. per Bayley, J. & E. at 248 and 249, last 6 lines. [d) Tasker r. Cmminghmn, 1 Bligh's [h) Brown v. Tayleur, 4 A. & E. at P. Gas. 87. 249, first 5 lines. [e) No. 937, p. 521. (i) Marsden v. Beid, 3 East, 672 ; 1 (/) Brown v. Taylem, 4 A. & E. Phillips, 578, No. 1010. 241. {Ic) Beatson v. Haworth, 6 T. E. 531 ; (^) Gruiekahimk Y. Jcmson, 2 Taunt. referred to in Marsden v. Beid, 3 East, 262 MARINE POLICIES, Book IV. Unless, as would probaUy be held, there is a regular and settled order different from that named {I). Therefore, wliere the vessel, which, was insured " to G-ottenburg and back again to Leith and Cockenzie," had sailed direct from Gottenburg to Cockenzie, where she was lost, it was held, there being no settled course of trade as to the order in which Leith and Cockenzie were visited, that the assured could not recover, although Cockenzie is nearer than Leith to Gottenburg (m). Mr. Phillips apparently disapproves of this decision {n). Compare with Note I., p. 255. § 372. If hy the policy leave is given to call or discharge at several ports, which are not named, the vessel must visit them in the order of their distance from the port of departure (o) ; Unless, as would probably be held, there is a regular and settled order different from the order of their distance from the port of departure; Or, tmless the words of the policy show an intention that they may be visited in any order the assured pleases {p). Thus, if an insurance is at and from a port named, or any other port or ports in that country or group of islands, to a named port of discharge, the vessel may load part of her cargo at the port named and the rest at a port or ports more distant than the named port of loading, and not in the direct course of a voyage from it to the port of discharge {q). Q-oods were insured on board a vessel at and from Buenos Ayres / and port or ports of loading in the province of Buenos Ayres to port of discharge in the United Kingdom : she took in part of her cargo at Buenos Ayres, and then went to another port to complete . the loading her cargo : not being able to complete the loading there, she sailed for Buenos Ayres to complete it, and was lost on the voyage there. The Court of Queen's Bench held that there was no deviation, as the liberty to go to a port or ports of loading gave the captain permission to go from port or ports, even to a port at which the vessel had partially loaded before, until he had completed his cargo: the Coiirt of Exchequer Chamber reversed the judg- at 577 and 579; Ashley v. JPratt, 16. (o) Gairdner v. Senhouse, 3 Taunt- M. & W. at 482, last 6 lines, and 16. 483, first line. {p) Metcalfe v. Tarry, 4 Camp. 123, {Vj Beatson v. Saworth, 6 T. R. at cited in Ashley v. Fratt, 16 M. & W, 633, lines 2 and 3 ; Ashley v. Fratt, at 483 ; Bragg v. Anderson, i Taunt. 16 M. & W. at 482, fourth line from 229. the bottom ; 1 Amould, 461 and 462. (y) Bragg v. Anderson, 4 Taunt. 229 ; {m) Beatson r. Saworth, 6T. R. 531. Lamhrt v. Ziddard, 5 Taunt. 479. («) 1 Phillips, p. 680, No. 1012. COURSE OF THE VOYAGE AND DEVIATION. 263 ment of the Queen's Bencli upon otter grounds, the majority of J?*"^' ^t' the Court saying nothing on the question of deviation, although ' L_ one judge was of opinion that there was a deviation, as the policy did not include voyages backwards and forwards from port of loading to port of loading (r). § 373. If a ship is insured diiring her stay and trade in a stay and country, the risk does not extend to a stay not connected with a trading purpose. The plaintiffs insured a ship from Liverpool to the "West Coast of Africa, "during her stay and trade there" and back to a port in the United Kingdom: she discharged her outward cargo and took in homeward cargo at several places : when ready to sail on her homeward voyage a vessel sank near her, whose cargo was purchased by the plaintiffs, and the ship stayed some time for the sole purpose of saving the cargo so purchased : she then sailed for Liverpool, being perfectly seaworthy, and was lost on the home- ward voyage. It was held that the stay contemplated by the policy must be one for the purpose of trade, otherwise the words "and trade" would be superfluous (see § 7); that in the absence of any evidence that by the usage of the African trade a delay to salve a cargo belonging to another owner was a trade purpose, it could not be so considered (s). § 374. If a vessel is insured while she is lying at a particular Insurance at place, with liberty to go to another place for a particular pur- uferf^to go pose that is stated in the policy, either expressly or by implica- *iaoe°fOT^a tion, the policy covers her while on her transit to that other particular place and thence back to the place where she was lying, and whUe doiQg what is necessary for that purpose. " and while doing what is necessary for that purpose" that is, for the purpose stated in the policy. A policy against fire was effected on a steamship "lying in the ' Victoria Docks, London, with liberty to go into dry dock :" it was necessary to repair her, and as from her size she could not enter the dry dock as she was, it became necessary to take off the lower halves of her paddle-wheels, which was done in the Victoria Docks : she was then towed to a dry dock and there repaired, and was then towed to a point some hundred yards from the Victoria Docks, where the work of replacing the halves of her paddle- (r) Bamwer v. Sutehmon, L. B.., 4 (s) Company of African Meroha/nts v. Q. B. 523 ; 5 Q. B. 584, at 597. Sritish and Foreign Marine Insurance Co., L. E., 8 Ex. 164. 2^* MARINE POLICIES. ° wheels was commenced : it was proved that it was the custom of all great shipbuilders in similar cases to replace the paddles outside the docks : this work could haye been carried on in' the Victoria Docks, but the cost would haye been four times as great : before the halves of the paddles were quite replaced the ship was destroyed by fire. It was held that although if it had been usual for steamships to lie a certain time in the river outside the docks, whUe the halves of the paddle-wheels were being removed, the vessel would have been covered by the policy, because it would have been taking the usual course for the purpose of going into the dry dock to be repaired, yet, as the repairs had been completed, all that remained to be done within the liberty conceded by the poHoy was to return to the Victoria Docks in the usual course of vessels moving from the one dock to the other, and as she had remained in the river for a purpose which had no connection with returning to the Victoria Docks, and was in no way even auxiliary to getting there, the insurers were not liable (<). § 375. To ascertain wliether a policy covers the goods in- sured wliile on land as well as at sea the usual course of business in such transactions is to be regarded (m). When goods SUks were insured " at and from Japan to Marseilles and randarwelT" C°^^ (^^ London, via Marseilles and [or] [x] Southampton, and as at sea. whilst remaining there for transit in the good ship or vessel called the steamers or steamer, per overland or visl Suez Canal": the perils insured against were, amongst others, "arrests, restraints, and detainments of all kings, princes, and people." The silks were carried from Japan to Marseilles in successive steamers, and were placed in railway carriages at Marseilles in order to be carried through France to Boulogne, and there to be shipped for London : they were carried as far as Paris, but after their arrival there Paris was besieged by the German armies, and in consequence it became impossible to remove them: the insurers contended (y) that the policy did not coyer the goods in their transit by land ; but as it was proved that it was well known among underwriters that goods sent from Japan to London via Marseilles were always carried overland through Prance, it was held that the insurers were liable : it was remarked that the words {t) Pearson v. Commercial Union As- more, i T. E. 206 ; Rodocanaehi v. surance Co., 15 0. B., N. S. 304; 33 Miott, L. E., 8 C. P. at 669. L. J., 0. P. 85 ; (Ex. Ch.) L. E., 8 G. («) See "Words and Expressions," P. 548 ; (H. L.) 1 App. Ca. 498; re- "And ferred to in Wingate v. Foster, 3 Q. B. Or." D. at 586, 588, and 593. [y) They also contended that the de- («) Felly T. lioyal Exchamge Assur- tention m Faris was not a loss hy " re ance Co., 1 Burr. 341 ; Brough v. Whit- straints of princes." As to this point, see § 408. COURSE OF THE VOYAGE AND DEVIATION. 265 "steamer or steamers per overland" clearly indicated tliat the ^'''^* ^^' goods were intended to go overland during a portion of the journey (z). As to an insurance of pumps intended to be used in raising a wrecked vessel not covering them on hoard that vessel on a voyage to a port of safety, see Wingate v. Foster («). Note, see § 367, p. 259. — In O'Eeilly v. Eoyal Exchange Assur- ance (5), the policy contained the following words: — " Warranted free of capture and of seizure and the consequences thereof in port in La Ouayra." The vessel, "to avoid a loss of that sort," cut her cahle and proceeded to sea when only half loaded. From being too light she fell to leeward, and having received damage to her helm tvent out of the direct course of the homeward voyage to a port (being the most con- venient port for that purpose), partly for the purpose of getting her helm repaired and partly for that of completing the homeward cargo, and having sailed thence was wrecked, Gibbs, C J., held that the assured could not recover. "He attached particular weight to the warranty in the policy against ' capture and seizure in port,' and to the fact that it was ' to avoid a loss of that sort, for which the defendants would not have been liable,' that the ship proceeded to sea in a state in which she was not properly ft to perform the voyage home." In a case decided the same day, O'Eeilly v. Gonne (c), the same Judge, upon a policy on the freight of the ship inentioned in the last pre- ceding case, held that the insurers were liable. " This case is widely different from the last. There the ship was warranted free of seizure in port, but this policy is without any such exception." In the 1st edition of Arnould on Insurance [d) the author deduces from these two cases the rule that a digression to avoid an excepted peril is a deviation, though the being irresistibly compelled out of the course by the operation of such a peril is not so ; but Mr. Phillips (e), in his Treatise on Insurance, maintains {apparently with justice) that the Chief Justice rested his rulings in the two cases wholly upon the distinction that the risk was excepted in one case and not so in the other, but observes that " this distinction cannot be deemed tenable) («) Bodocanachi v. Mliott, L. R., 8 (from line 22; and (c) Boyd v. Duiois, 3 Camp. 133; 597; 1 Phillips, No. 1086, p. 624; Koeiel y. Saunders, 17 C. B., N. S. at 2Amould, 708. 78. (4) Magnus v. Buiiemer, 11 C. B. (d) Fatersonv. Sarris, 1 B. & S. at 876, Compare with lie Mattos v. 352 and 353. t3 276 MARINE POLICIES, Book IV. Insurers are not liable for losses only indirectly caused by perils insured against. § 395. The insurers are not liable for losses which are not directly caused by a peril insured against (e). Compare loith § 427. Thus, if a voyage is delayed by a tempest, and in consequence of the delay meat, the subject of insurance, becomes putrid and is necessarily thrown overboard, the insurers are not liable (/). See Note, pp. 304 and 305. Note. — But if the meat had been directly damaged by the tempest, and in consequence had become putrid, and its putrefaction had caused injury to other goods insured, the insurers of those goods would have been liable (g). So, if the goods, the subject of the insurance, are sold by the master of the ship (-who has no other means of raising money) to defray the expenses of repairs rendered necessary by a tempest to which the ship and goods haye been, exposed, the insurers are not liable (7i). For other instances where the insurers have been held not liable, on the ground that the perils insured against were not the direct cause of the loss, see the cases cited in the foot-note (i). See Note, p. 278, on Barratry. As to the meaning of an insurance against " the consequences of" a peril nam.cd, or against a "loss originating from" a cause named, see § 413. [e) lonides v. Universal Marine In- surance Co., 14 C. B., N. S. at 285, 289, and 296. (/) Taylor v. Punbar, L. E., 4 0. P. 206. (^) Montoya v. London Assurance Co. , 6 Ex. 451 ; Thompson v. Hopper, E. B. & E. at 1046, 1048, and 1053. [h) Powell V. Gudgeon, 5 M. & S. 431 ; Sarquy v. Sohson, 4 Bing. 131 ; Qreen v. Foole, 5 Q. B. D. 272. (i) Tatliam v. Eodgson, 6 T. JR. 666, referred to in Lawrence v. Aberdeen, 5 B. & Aid. at 110 and 117 ; and Taylor V. Dunbar, L. R., 4 C. P. at 209 ; lonides v. Universal Marine Insurance Co., 14 0. B., N. S. 259 ; De Vaux v. r, 4 A. & E. 420 (cited in Tay lor v. Dewar, 6 B. & S. at 63) ; Had- Mnson v. Robinson, 3 B. & P. 388 Cator V. Great Western Insurance Co of New Tork, L. R., 8 C. P. 552 : Mercantile Steamship Co. v. Tyser, 7 Q, B. D. 73 ; Inman Steamship Co. t, Bischoff,1 App .Cas.670. See also Xenos V. Fox, cited in §§ 424 and 425 (2;. In the following oases the subject of in- surance was freight : Mordy v. Tones, 4 B. & C. 394 (approved in Fhilpott v. Swan, 11 C. B. at 2^ and 282) ; Moss T. Smith, 9 C. B. 94 ; Inman Steamship Co. V. Msehoff, 6 Q. B. D. 648 ; 7 App. Cas. 670. See the next Chapter. THE PERILS INSURED AGAINST. 377 § 396. The insurers are liable for losses directly caused by Jjf ''* ^• the perils insured against, although they would not have hap- pened but for the negligence of the master or crew [k), or the of insurers concTirrence of some other cause, even if that other cause is not cludecTby insured against (l). *^^ '^«'g'ii- '=' ^ ' ■ gence oi the TliTis, where explosion was a peril insured against in a time policy (see § 324) on a steamer, the insurers were held liable for a loss occasioned by the explosion of the boiler, which took place in ordinary weather under ordinary pressure of steam, and would not have happened if the boiler had not become worn to such an extreme degree of thinness as to be unable to resist a degree of steam pressure not otherwise improper, and although its state might have been discovered by ordinary care (m). That this loss could not have been recovered under an insurance against "perils of the sea," see § 412. So, if goods insured against loss by perils of the sea are landed in consequence of the loss of the ship, and the people of the coast refuse to deliver them up either absolutely or only on payment of a ransom, the insurers are liable (m). " The insurers are liable for losses directly caused hy the perils insured against, although they would not have happened but for the .... concurrence of some otJier cause. Corollary. — It follows that, if that other cause is insured against, the assured can in the written pleadings in the action allege the loss to have been caused by either cause. A ship insured against losses by capture or by barratry was cap- tured by a privateer in consequence of an agreement between the captain of the ship and the captain of the privateer : the declara- tion in the action alleged the loss to have been caused by capture. It was held that the assured could recover, although he could also [k) Bush V. Eoyal Mxchange Aisurance and Colonial Insurance Co., 6 Q. B. D. Co., 2 B. & Aid. 73 ; Dixon v. Sadler, 51 (C. A.). See JSamiUon v. Thames 5 M. & W. 405 ; affirmed, 8 M. & W. andMerseyInauranceCo.,l1Q,.'h.'D.l'ib. 895 ; Redman v. Wilson, 14 M. & W. {n) Bondrett v. JSentigg, 1 Holt's N. 476 ; West India Telegraph Co. v. Home P. 149 ; lonides v. Univiraal Marine In- and Colonial Insurance Co., 6 Q. B. D. surance Co., 14 0. B., N. S. at 292; at 58 and 61. Tient v. Smith, L. R., 4 Q. B. at 433, [1) B-adgeony.Femh-oTce, 2 App. Cas. 451, and 452; Inman Steamship Co. v. 284, at 297, lines 7 to 9. Bischoff, 7 App. Cas. at 675, last 3 lines, [m) West India Telegraph Co. v. Home and 676, first 4 lines. 278 MARINE POLICIES. Book IV. jiaye recovered if the loss had been alleged to have been caused by- barratry (o). As to a loss caused by a peril insured against, but which would not have happened except foi" the concurrence of an excepted peril, see % 427. BARRATRY. Note, see § 395. — In Arnould on Insurance {p), it is said: "Loss ly barratry seems to form an exception to the general rule of causa proxima non remota spectatur : it is not necessary {in fact it hardly ever is the case) that the barratrous act should be the proximate cause of the loss ; if there have been barratrous conduct on the part of the master and mariners, and a loss subsequently happens as a remote though not as a direct consequence of the act of barratry, or if the barratrous act have only been a co-operative cause of loss in conjunction with some other peril, this is still enough to entitle the assured to recover under a count for barratry. . . . Thus, if a ship were dashed to pieces by the winds and waves owing to drifting on the rods in consequence of the barratrous act of the captain in cutting her cable, this might be recovered either as a loss by perils of the seas or a loss by barratry (§■). So where a ship was captured by the enemy through a barratrous agreement between her captain and the captain of the enemy. Lord Ellenborough held that this might be recovered either as a loss by capture or a loss by barratry (?•). Where goods were seized in consequence of the captain! s barratrous breach of blockade, it was held that the foreign sentence by which they were condemned could not prevent the assured from recovering as for a loss by barratry, for even if the sentence were conclusive of the fact of enemy'' s property, still it was by the barratrous act of the captain that the goods had assumed that character" {s). In Cory v. Burr(<), Field, J., said that " to recover for a loss caused by barratry it is not necessary that the barratrous act should be, and indeed it hardly ever is, the proximate cause of the loss, and therefore a loss traceable remotely to, may be recovered as a loss by, barratry." (o) Areangelo v. Thompson, 2 Camp. {r) Aremigeh v. Thompson, 2 Camp. 620 ; Cory v. Bwrr, 9 Q. B. D. (C. A.) 620. at 467 and 468. («) GoMschmidi v. Whitmore, 3 Taunt. (p) Vol. 2, p. 838 {1st ed.) ; p. 773 508. (5th ed.). {t) 8 Q. B. D. at 314. (y) Seyman v. Farkh, 2 Camp. 149. THE PERILS INSURED AGAINST. 279 In the Court of Appeal {li) a similar opinion was expressed by Z^ J Brett, L. J. ^^' But in the House of Lords Lord Blackburn said that there was no other authority than the passage in Arnould for the existence of the supposed exception to the rule, that in insurance the proximate cause and not the remote one is to he loohed to, and expressed his opinion that in the instances there given the proximate cause of loss was bar- ratry (x). In the first case (y) referred to in Arnould the loss stated in the declaration, and for which the plaintiff recovered, was a loss by the perils and dangers of the seas : the defence, tvhich teas utterly dis- believed by the Jury, ivas that the barratrous act of the captain was the cause of the vessel being lost. What Lord Ellenborough held luas that the plaintiff could recover on such a declaration notwithstanding that the loss arose from barratry, if barratry was insured against. In the second case (a) the assured recovered on a count laying the loss by cap- ture. Lord Ellenborough said, that as the capture arose from barratry the plaintiff might have recovered if the loss had been laid by barratry. In the third case (a) the loss was laid as being that the master in a barratrous manner toolc the ship to places lohereby the goods became subject to capture and confiscation, and were accordingly captured and confiscated. The Court held that it was the rnaster's barratrous act in carrying the vessel near the enemy^s coast that made it enemy's pro- perty, and that it was this barratrous act which caused the loss. None of the three cases contain any hint as to barratry forming an exception to the general rule as to the proximate cause of the loss being alone regarded. That a loss may be laid as having been occasioned either by barratry, or by the perils of the seas, or capture, or other causes, is apparently the ground on which Sir Joseph Arnould arrived at the conclusion that a loss remotely caused by barratry is (contrary to the rule in the case of other perils) recoverable, but the premises do not warrant the conclusion. It seems that a taking by men-of-war is a peril of the sea {see Eussell v. Niemanii, and other authorities cited in foot-note (A), § 399), though such a loss could of course be laid as by men-of-war ; so a loss by lightning is, according to some authorities (b), a loss by the perils of the seas, though it may be laid as by fire (c) ; so (m) 9 Q. B. D. at 467. («) Arcangelo v. Thompson. {x) 8 App. Cas. at 398. Lord Biam- (a) Goldschmidt t. Whitmore. ■well also expressed doubts as to there (J) 1 Phillips, No. 1099, p. 635 ; 1 being any such exceptions ; see p. Park, 136. 404. [o) Gordon v. Himmingtoiz, 1 Camp. {y) Heymcmx. Parish. at 124, Une 2. 280 Book IV. MAEINE POLICIES. where a veisel has been arrested and taken in tow by a man-of-ibar, and from having to put on a press of sail to keep up with the captor ships water which injures the goods, the subject of insurance, it seems that the loss may be laid either as by perils of the seas or by capture and detention(d) ; so where goods are jettisoned to prevent their falling into the enemy^s hands the loss may be laid as being caused either by jettison or by enemies (e) ; so a loss by jettison may be laid as a loss either by jettison or by perils of the seas{f). {d) Sagedom v. Whitinore, 1 Starkie, and 9. 157. (/) Buthr V. WiUmm, 3 B. & Aid. (e) Butler v. WUdm), Or unless perhaps the cargo would perish if she were not re- paired. See the part of the preceding section, p. 295, in italics, commencing " Perhaps." Sub-class 2. — Of Payments made by the Assured under Compul- sion to mitigate or avert, or in consequence of the hap- pening of, a Loss by a Peril insured against. (I.) OF PAYMENTS MADE ON ACCOUNT OF SALVAGE. For the definition of" Salvage," see " Words and Expressions." Salvage, § 421. If a loss caused by a peril insured against occasions the payment of salvage the payment is recoverable as a loss caused by that peril (c). («/) Svensdm v. Wallace, 13 Q. B. D. (i) Attwood v. Sellar, i 0. P. D. at at 87. 362. («) Ibid, at 90. (c) Cart/ t. Mnff, Gas. temp. Hard- fa) Flmnmer v. Wildman, 3 M. & S. wicke, 304, cited in Aitchison v. Lohre, 482 ; referred to in Svensdm v. Wallace, 4 App. Oas. at 765. See also 2 Aruould 13 Q. B. D. at 88, 90 and 91 ; Attwood (Ut ed.), p. 847. In the 5th edition, V. Sellar, 5 Q. B. D. at 291 to 294 ; Vol. 2, p. 778, the editor, Mr. Mao- Eallett V. Wigram, 9 C. B. at 603. lachlan, erroneously (as the House THE PERILS COMMONLY INSURED AGAINST. 297 Part V. (II.) OF PAYMENTS MADE UNDER A GENERAL AVERAGE ''ci?ss"l CONTRIBUTION. See " General Average Contribution" in " Words (md Expres- sions," and §§ 416 and 419. § 422. The amount wHoh the assured is obliged to pay as a A payment general average contribution to the person who has made a general aver- general average sacrifice of the ship or cargo, or voluntarily Sj"""*"" incurred extraordinary expenses for the common preservation recoverable of ship and cargo, is recoverable as a loss caused by the perils poUoy. insured against (d), if a peril insured against occasioned the sacrifice or the expenses (e). " The amount which the assured is obliged to pay as a general average contribution . . . is recoverable." Therefore, if the voyage terminates at a foreign, port, the in- Foreign surers are bound hy the foreign adjustment, if made according to adjustment the law of the country in which it is made, although the contribu- tions are apportioned between the different interests in a manner different from the English mode, or though matters are brought into or omitted from general average which would not be so treated in England (/). Compare with §§ 415 ano, 423. " The amount which the assured is obliged to pay . . . to the person who has made a general average sacrifice . . . is recover- able." Therefore, although the voyage terminates at a foreign port, and if there has bv the law of that country a sum is recoverable as a general ^een a general J •' ° average loss. of Lords held, see i App. Gas. at the words " the assured, their factors, 764) states that salvage is recover- servants and assigns;" the ground of able under the clause as to suing and the decision being that the work done labouring. This statement appears to by salvors is not work done by the have misled the Court of Appeal in assured, their factors, servants or Xohre y. Aitchison, and Lindley, J., assigns. Com-paie with. TTzrelli Y.Boston, in Dixon v. WhiUoorth, 4 C. P. D. at Marine Insurance Co., cited in § 418. 376. Mr. Maolaohlan in the 3rd [d) 2 Phillips, Nos. 1409 and 1414 ; edition of his work on Merchant Ship- 2 Amould, 877 ; Miller y. Titherington, ping (see Preface, and pp. 644 to 652), 31 L. J., Ex. at 221 ; 6 H. & N. at finds great fault with the decision in 287, per Martin, B. Aitchison v. Lohre, and gives instances (e) 2 PhiUipa, 1353 ; SarrisY. Scara- of the sense in which the words " sue, manga, L. E., 7 C. P. at 496. labour and travel" were formerly (/) SarrisY. Scaramanga, L. R., 7 used. But Lord Blackburn's judg- C. P. at 495, per Brett, J. ; at 488, per ment in Aitchison v. Lohre seems to BovUl, C. J. ; 2 Phillips, No. 1414 ; 2 turn not upon these words, but upon Amould, 873 and 874. 298 Book IV. MARINE POLICIES. average contribution, it is not, under a policy in the common form [see next section), recoverable from tbe insurers if there has not been what, according to English law, is considered a general average loss{sf). When loss is considered by foreign law, though not by English law, one by the perils insured against, it may be recoverable under the policy. (in.) OF PAYMENTS MADE IN COMPLIANCE WITH FOREIGN LAW. § 423. A loss which the law of a foreign country whose courts have jurisdiction in the matter considers a loss caused hy a peril insured against, though it would not he so considered hy the law of England, is recoverable from the insurers if the lan- guage of the policy shows that the insurers did not intend that their liability should be determined exclusively by the law of England. Thus, if a policy contains such words as " general average as per foreign statement," the insurers are liable for a loss which the law of the country where the adjustment takes place considers a general average loss, though the law of England would not consider it such (A). Compare mth §§ 415 and 422. (IV.) OF PAYMENTS MADE TO THE OWNERS OF A SHIP WHICH HAS BEEN INJURED BY THE INSURED SHIP. For the form of the usual running -down clause, see Form of Policy at the beginning of this work. Insurers not § 424, The insurers are not, if there is no special provision damages paid in the policy making them liable in such a case, liable to in- colhSng ^ ° demnify the assured for a payment which he, as an owner of ship. the ship insured, has been compelled to make to the owners of another ship which has been sunk or damaged by his ship («). ((/) Harris v. Scaramanga, L. R., 7 0. P. at 488, second and third sentences of BoviU, C. J.'s, judgment; 496, lines 12 to 20 ; Mavro v. Ocean Marine Insurance Co., L. R., 10 0. P. at 418 ; 2 Amould, 875. See Mavro v. Ocean Marine Insurance Co., L. E. 9 0. P. 595 ; afBrmed, Vol. 10, p. 414. (A) Harris v. Scaramanga, L. R., 7 C. P. 481 ; Mavro v. Ocean Marine In' surance Co., L. R., 9 C. P. 595 ; affirmed, Vol. 10, p. 414. See also Hendricks v. Australasian Insurance Co., L. R., 9 C. P. 461. (i) Se Vaux v. Salvador, 4 A. & E. 420; 2 PhilUps, p. 158, No. 1416; Taylor v. Dewar, 6 B. & S. at 63 ; Xenos V. Fox, L. R., 3 C. P. at 635, lines 11 to 13. THE PERILS COMMONLY INSUEEID AGAINST. 299 § 425. Under a policy providing that if the ship insured shall ^^^^^ Jj run down or damage any other ship and the assured shall thereby "lass ii. become liable to pay, and shall pay, any sum as damages, the What sums insurers -will pay the assured a certain proportion of the sum so assured can- paid by him, the assured cannot recover "°* ^^ , '■ " recovered . . ^jy^ , I I- f under the (1) Ihe damages paid to the personal representatives of any usual of the crew of the ship run down who were drowned by reason a.own'oiause. of the collision, Sums paid to the represen- Because, as the policy is silent as to personal injury, and speaks tatives of only of the ship insured running down or injuring any other ship, and drowned thereby becoming liable to pay damages, the more reasonable con- struction is to consider the damages referred to as limited to damages payable in respect of the damage done to the ship run down or damaged; and because, as policies of marine insurance have never been applied to the purpose of insurance against loss of life, it is reasonable to Hmit the general language of the clause to those matters which have alone been the subject of marine insurance {j ). (2) Or the costs of defending, whether successfully or un- Costa. successfully, any suit brought by the owners of the ship run down or damaged, Because costs incurred are not damages paid {k). (3) Or more than that proportion of the amount of the pro- ceeds of the sale which have been paid to the owners of the ship run down or damaged upon a sale of the ship insured under a decree in a suit brought by them, notwithstanding that she was sold for less than her value, Because the insurers undertake to pay only a certain proportion of " the sum so paid," and the value of the ship has not been paid to the plaintiffs in the suit {I). (J) Taylor v. Dewar, 5 B. & S. 58 ; and at p. 276, foot-note (i). Quare, 33 L. J., Q. B. 141. There were whether the assured could claim from other provisions • in the policy in this the insurers the costs paid by him to case which were referred to by the the plaintiff. See L. E., 3 0. P. at Court as fortifying the interpretation 636, lines 11 to 14. placed upon it. (0 Thompson v. Eeynolda, 7 E. & B. [k) Xmos V. Fox, L. E., 3 0. P. 630 ; 172 ; 26 L. J., Q. B. 93. i 0. P. 665; referred to in § 424, 300 Book IV. MARINE POLICIES. CHAPTEE IV. Of Perils from liability for Loss occasioned by which THE Insurers are exempted by the Express Provi- sions of the Policy, either absolutely, or unless the Loss exceeds a certain proportion of the Value of the Subject of Insurance. As to the meaning of"' warranted free from" see " Warranted," in " Words and Expressions," and § 453. Exceptions. § 426. The clause in wMch the perils iasured against are enumerated, and the clause containing the exceptions, are to be read together, and the latter is to be interpreted as limiting the former ; For example, if barratry is a peril insured against, and tte policy contains a clause " warranted free from capture and seizure," the policy is to be interpreted as if it ran thus : " the insurers are liable for loss by barratry except such barratry as causes capture or seizure " (a). Exceptions § 427. The clause containing the exceptions will not, when a the direct^ ° ^oss has occurred which but for that clause would be a loss in "f'the^^'^"^* respect of which the assured could recover, exempt the insurers excepted from liability if the loss was not directly caused by one of the causes mentioned in that clause (6). Goods were insured, "warranted free from all consequences of hostilities " : the vessel in which they were was sailing near a coast (a) Coryv. Burr, 8 Q. B. T>. 313, at 316, lines 19 and 20, and 30 to bottom; afErmed, 9 Q. B. D. 463 ; 8 App. Cas. 393. (b) Marsden v. City and County As- surance Co., L. R , 1 C. P. 232, cited ia § 413. See Eahn v. Corbelt, 2 Biug. 206. EXCEPTED LOSSES. 301 on which stood a lighthouse : the light had, unknown to the I'art V. captain, been extinguished for hostile purposes: the vessel was C^^ap. IV. out of her course, and it is probable (c) that if the light had not been extinguished the captain would have seen it and turned about and saved the vessel : she went ashore. It was held that, as her going ashore was the direct consequence not of the extinction of the light, but of the captain being out of his reckoning, the loss was not a consequence of hostilities (d). Ill the case where this point was decided other examples were given of what would not be a loss from the consequences of hostilities (e). Compare with §§ 395 and 413. § 428. The words " warranted free from average unless Meaning of general," mean that the insurers wiU not he liable for any but fr^^from*^'^ a total loss of the subject of insurance, or a partial loss occa- average unless sioned by a general average sacrifice {see " Words and Expres-, sions") of a part of the subject of insurance, or a payment by the assured as a general average contribution (/). See " Words and Expressions." Com, the subject of insurance, was warranted free from average unless general ; there was a general average sacrifice of the ship's cable and anchor ; the corn was injured by the perils of the seas. It was admitted that the insurers were liable for the general average contribution, but the assured contended that they were liable also for the injury to the com, on the ground that the meaning of the clause was that the insurers were not to be liable for a loss unless there should be a general average loss, in which case they should be liable for any loss; but the Court held that "unless" had the same meaning as " except," and was not to be construed as intro- ducing a condition, and that, therefore, the insurers were not liable {g). § 429. The words " unless the ship be stranded " in the Meaning of clause {commonly called the memorandimi) as to certain goods stranded." being " warranted free from average," mean that if the ship be stranded while the goods, the subject of insurance, are on (c) See judgment of Byles, J., 32 at 175 ; 14 0. B,, N. S. at 286, from L. J., C. P. at 179 ; 14 C. B., N. S. line 12, and 287. af 295 and 296. (/) Ma/oro v. Ocean Marine Insur- {d) lonides v. TTniversal Marine In- ance Co., L. E.., 10 0. P. at 418, lines surance Co., 32 L. J., 0. P. 170 ; 14 9 to 16. 0. B., N. S. 259. {£/} Wilson v. Smithj 3 Burr. 1550; («) Per Jervis, C. J., 32 L. J., C.P. 1 W. Bl. 507. 302 . MARINE POLICIES. ^°°^ ^^- board (A), the insurers are liatle for all losses caused by the perils insured against, although the losses may not have been caused by the stranding («), and even if no injuries either to ship or cargo were caused, by the stranding, all losses having been caused by subsequent perils (k), Because tlie object of the memorandum is to prevent questions arising as to whether the damaged state of the perishable goods therein enumerated arose from the perils insured against or from the perish- able nature of the goods themselves, and the insurers agree that if a stranding occurs the state of the goods shall be attributed to it as the most probable cause, and to require proof that it was the cause would be to introduce the doubt which the memorandum was intended to remove (l). Ship must § 430. A ship to be stranded within the meaning of the- OTound^i an d^use must take the ground in an unusual manner, and other- imusual ^igg ti^an was intended, whether or not it be in the ordinary track mamier. '' of the voyage (m). § 431. A ship is not stranded within the meaning of the clause unless she remains stationary for some space of time where she took the ground (n). Therefore, where a vessel struck upon a sunken rock, but did not remain upon it more than a minute and a half, it was held, although a plank in her bottom where she had struck was shattered, and in consequence she made water and the cargo was injured, that she had not been stranded within the meaning of the memorandum (o). As to a policy under which the question whether there has been a stranding is to he determined hy the law of a foreign country, see §416. § 432. The stranding of a lighter in which the insured What is a stranding. Stranding of a lighter in [h) Soux V. Salvador, 1 B. N. C. at 636 and 537 ; 3 B. N. 0. at 276, lines 4 to 3 from the bottom. (i) Burnett v. Kensington, 1 Esp. 416; 7T. E. 210. (k) Burnett v. Kensington, 7 T. E. at 223, last 4 lines ; 2 Amonld, 794. (i!) Neshitt V. Lushington, 4 T. E. at 787; Burnett v. Kensington, 7 T. E. at 224 ; Kidston v. Empire Marine Insurance Co., L. E., 1 C. P. at 545. [m) Letchford v. Oldham, 5 Q. B. D. 538. See Corcorcm v. Gurney, 1 E. & B. 456 ; and Magnus v. Buttemer, and other oases cited in § 394. («) 1 Park, 239. (o) McDougle v. Eoyal Exchange As- surance Co., 4 Camp. 283 ; 1 Starkie, 180 ; 4 M. & S. 503. EXCEPTED LOSSES. 303 goods are being conveyed from tlie sMp to tlie shore is not a ^^* '^• stranding within the meaning of the clause in a policy which includes " risk of craft to and from the ship " (p). goo^s are oarrying is § 433. The words "warranted free from average unless the not within the clause. ship be stranded," or words equivalent, which standing by them- Meaning of selves would prevent the assured from recovering in respect of l"'^^?^^,. any loss if the ship is not stranded, may be so modified by words maybe modi- foUowing the word "average" that the assured may, although context, the ship be not stranded, recover in respect of aU but one class of loss. A policy contained tlie following memorandum: — "Pree from all average or claim arising from jettison or leakage unless conse- quent upon stranding": a loss, not arising from, jettison or leakage, happened, but as tlie ship was not stranded the insurers contended that they were not liable : the Court, however, held that, as a claim arising from jettison or leakage is average, the insertion of the words " or claim arising from jettison or leakage " would have been superfluous if they were not to be taken as ex- plaining the word "average," and that the words " arising from jettison or leakage " must be held applicable to the whole of the earlier part of the sentence : the insurers were therefore held liable (j). § 434. Where animals are " warranted free from mortality," Meaning of the insurers are liable for deaths not arising from natural mortality." causes if caused by perils of the seas. Thus, if animals are insured against perUs of the seas, but " war- ranted free from mortality and jettison," and in consequence of a storm they either are so knocked about by the pitching of the vessel that they are killed at once or receive injuries from which they subsequently die, or kill each other through the partitions separating them being broken down, the insurers are liable (r). 8eeN'ote,p.304:. § 435. The words "port of discharge" in a policy by which Meaning of goods are " warranted free of capture and seizure in the ship's charge." (p) Soffman v. Marshall, 2 B. N. C. B. 63. 383. (r) Lawrence v. Aberdeen, 5 B. & (?) Carr v. Royal Exchange Insur- Aid. 107 ; Gabay v. Zloyd, 3 B. & C. ance Co., 5 B. & S. 433 ; 33 L. J., Q. 793. 304 MARINE POLICIES. Book lY. pQjj. q£ (Jiscliarge " are to be read in a large sense, and in con- tradistiaction to the high seas, Because the object of the clause is to exempt the insurers from any liability for a capture from the land (s). [although " the circumstance of a seizure by a force from the sea or from the land will not decide the question of locality as to where the seizure was made" [t).) § 436. When goods are "warranted free from confiscation by the government in the ship's port of discharge," the insurers are liable if the ship and the goods on board are seized in the port of discharge by the crew of the ship of a country other than that in which the port of discharge is situated (even although the seizure be by the permission of the government of the country in which the port of discharge is situated), and are afterwards condemned, Because "confiscation" is of more confined meaning than seizure, and imports an act done by and in some way beneficial to the govern- ment of the country where it is done («). Note, see § 434,p. 303. — The insurers in Lawrence v. Aberdeen(a;), ' contended that to put such an interpretation upon the clause rendered it inoperative, inasmuch as if the policy had not contained the clause they would not have been liable for deaths arisiny from natural causes, as this would not be a loss by the perils insured ayainst. To this Abbott, C.J., answered, that if the ship had been driven out of her course by the perils insured against, and the voyaye had thereby become so protracted that all the food intended for them became exhausted, and so the ani- mals died, their deaths would have been caused by perils of the seas ; hut the words " warranted free from mortality" would in such a case save the insurers from liability [y). Suppose that the animals tcere carnivorous ; that the meat intended for them was insured; that through the protraction of the. voyage it (s) Jarman v. Coope, 2 Camp. 613 ; lish v. Staniforth, 3 Taunt. 499 ; Levy 13 East, 394; Salgleish v. Brooke, 15 v. VaugJum, Keyaer v. Seott, levin sr. East, 295 ; Maydhew t. iScott, 3 Camp. Newnham, 4 Taunt. 387, 660, and 722 205 and 206, note. (m) Levin v. Allnutt, 15 East, 267. {t) DaU/leish, v. Brooke, 15 East, at [x] 5 B. & Aid. 107. 301, last 2 lines, and 302. See Mel- [y) 6 B. & Aid. at 109 and 111. EXCEPTED LOSSES. ^^^ Part V. became putrid and had to be throton overboard, the assured could not chap IV recover for the loss of the meat (z). Yet the loss of the animals, arising from the loss of the meat, could, according to Abbott, C. J., be recovered for as a loss caused by the perils of the seas, which seems strange. Littledale, J., said, in Gabay v. Lloyd (a), that he doubted whether he should have concurred in the decision in the case of Lawrence v. Aberdeen. {«) Taylor v. Dunbar, L. R., 4 G. P. (a) Gabay v. Lloyd,, 3 B. & C. at 201 ; cited in \ 395. 728. W. 306 Book IV. MARINE POLICIES. Part VI. OF THE AMOUNT EECOVEEABLE IN CASE OP A LOSS BY A EISK INSUEED AGAINST, AND OE THE PEE- CENTAGB OF LOSS WHICH MUST HAVE BEEN SUFFEEED TO MAKE THE INSUEEES LIABLE. CHAPTER I. Of the Statement of Value in a Valued Policy and of THE Amount recoverable dnder a Valued oe an Open Policy, and in case of Double Insurance. For the meaning of " Valued Policy," " Open Policy," and " Double Insurance," see " Words and Expressions." The value stated in a valued policy is conclusive as to the amount recoverahle, but not for other pur- poses. VALUED POLICIES. § 437. The value stated in a valued policy (see Note) is the conclusive standard [a) by which to determine the amount re- coverahle upon the policy in respect of a loss, total (&) or par- tial (c) ; But it is not conclusive for any other purpose {d) . Therefore, if a ship, the subject of insurance in a valued poUcy, is injured by the perils insured against, and the cost of repairing her would be more than her marketable value when repaired, though less than the value stated in the policy, the assured can recover for a constructive total loss (e). (fl) Barlcer v. Jcmson, L. R., 3 C. P. 303 ; North of England Insurcmce As- sociation V. Armstrong, L. E., 5 C. P. 244, at 248. (J) Shawe v. Feltm, 2 East, 109. (c) Lewis V. JRueker, 2 Burr. 1167. [d) Burnmd v. Rodocanachi, 7 App. Cas. at 335 and 342 ; dorr v. ; Instance Co. of New Zealand, 7 Vic- torian Law Reports (L.) at 538. (e) Manning v. Irving, 1 M. & G. 169 ; (in Ex. Ch.) 6 M. & G. 784 ; (in H. L.) 6 M. & a. 391, and 1 H. L. Oa. 287 ; 2 Amould, 1009, 1010, and 1011. THE AMOUNT EECOVERABLE. 307 So, if the same subject of insurance is valued at (/), and insured Part VI. in, different amounts in and by two policies, and the assured re- ^^^^- ^' covers upon the policy in -which the subject of insurance is valued at the lower amount, he is not precluded, even if the sum he has recovered is equal to the value stated in the policy upon which he has recovered, from afterwards recovering upon the other poKcy the difference [see § 441) between the sum recovered upon the formef policy and the value stated in the latter {g). So, the statement of value does not settle the question what the subject insured is (A). Note. — If the statement of value is fraudulent the assured cannot recover even the real value of the subject of insurance (i). If the valuation is excessive (that is, very greatly over the real value of the subject of insurance, with — if goods — profits added), and the assured does not maize this known to the insurers, he cannot recover even if the valuation was not fraudulent, because he has not made known to them a matter lohich it ivas material thai they should have made known to them{j). See § 322. § 438. The fact that after the words " shall be valued at " in the ordinary printed policy the words " as under" are written, and that in the margin opposite the description of the subject of insurance a sum of money is written, will not make the policy a valued policy. The words "as under" were written after the printed words " shall be valued at," and following the three per cent, memoran- dum clause were written the words "On freight, ' ' and in the margin , nearly opposite, but a little above, was written " 1,300Z." It was held that the "1,300Z." was a statement not of the value, but of the total sum insured [h). (/) Irving V. Richardson, 1 Moo. & Shea, J., expressed his approval of Eob. 153 ; Morgan v. Prioe, i Ex. 616. Bouafleld v. Barnes, notwithstanding (j') Briiee v. Janes, 1 H. & C. 769. the case of Brxice v. Jones. This case overrides Bousfield v. Barnes, (A) Williams v. North China Insur- i Camp. 228, in which it was decided ance Co., 1 0. P. D. at 765, hnes 4 to 8 that the assured, who had recovered of judgment of Jessel, M. E. This 6,000/. upon a policy in which the case is referred to ^Jos^, in § 450. subject of insurance was valued at (i) Maigh v. Be la Com, 3 Camp. 8,000?. (which was less than its actual 319 ; 2 Phillips, No. 1182 ; 1 Arnould, value), could subsequently recover 600Z. 303. upon a poKcy in which the same sub- (j) lonidefv. Pender, L. R., 9 Q. B. jeot of insurance was valued at6,000Z., S31. aa he would stiU be a loser to the (Ic) Wilson v. Nelson, 33 L. J., Q. B. amount of 1,400?. lii.WiUon\. Nelson, 220 ; 5 B. & S. 354. 33 L. J., Q. B. 220 ; 9 Jur. N. S. 628, X2 308 MARINE POLICIES. Book IV. Insurable value under an open policy, of goods ; ship; freight. § 439. If the assured in a policy on goods to he declared and Talued does not declare and value he may still recover as on an open policy (/). OPEN POLICIES. § 440. The insurable value (that is, the amount recoverable in case of a total loss) in an open policy, is taken to be — in the case of an insurance of goods, their invoice price at the port of loading, with aU expenses until put on board, premium (m) and cost of insurance added («) ; in the case of an insurance of a ship, what she is worth to her owner at the port where the voyage commences, in- cluding all her boats, tackle, stores, outfit, and money ad- vanced for seamen's wages, with premium and cost of insurance added (o) ; in the case of an insurance of freight, the sum payable to the shipowner for freight, with premium and cost of insurance added {p). Double insur- ance. DOUBLE INSUKANCE. § 441. When there is a double insurance the assured may, in case of a loss, recover upon all or any of the policies the fuU amoimts thereby respectively insured, provided that he does not recover on the whole more than the amount of his loss {q). As to the return of a part of the premiums, see §§ 464 and 465. Thus, if the subject of insurance is insured by two policies, in each of which it is valued at the same amount, which, however, is less than its real value, and the assured recovers upon one policy a certain proportion, say three-fourths of the value stated, he cannot recover upon the other more than one-fourth, because the statement of value is conclusive {see § 437) as to the amount recoverable. {l) Ba/rman v. Kingston, 3 Camp. 160 ; Craufurd v. Hmiter, 8 T. E. at 15, note. (m) As to the arithmetical rule for calculating the addition of premium on premium, see Lowndes, 27, note (rf). (») Amould, Vol. 1, pp. 299, 319, and 320 ; Vol. 2, p. 890 ; 1 Park, 223 ; 2 Phillips, Nos. 1221, 1226, 1229, and 1232 ; Usher v. Noble, 12 East, 639 ; Lowndes, 27, sect. 31, (o) Amould, Vol. 1 (1st ed.) 328 ; (5th ed.) 321 ; Vol. 2 (1st ed.) 978 ; {5th ed.) 900 ; 2 PhiUips, Nos. 1222 and 1223 ; Lowndes, 27, sect. 31. {^) 1 Amould, 322; Lowndes, 27, sect. 31 ; Forbes v. Aspinall, 13 East, at 325. (?) 2 Park, 600 ; 1 Amould, 329 ; 1 Phillips, No. 361 ; Newby v. Reed, 1 W. Bl. 416 ; Lowndes, sects. 35, 36, and 37. THE AMOUNT RECOVERABLE. 309 So, if the subject of insurance is valued in one policy say at ^*''* '^• 8,000?., and in another at 6,000Z., and the assured has recovered " 6,0007. upon the former, he cannot recover anything upon the latter, although if he had recovered 6,000Z. upon the latter he could have subsequently recovered 2,OO0L upon the former, if the amount in- sured thereby was so much (r). Note. — WTien there is a double insurance, and the assured has re- covered from the insurers under one policy the full amount of his loss, those insurers are entitled to recover from the insurers under the other policy or policies a rateable sum by way of contribution {s). AMOUNT RECOVERABLE IN CASE OF A TOTAL LOSS. § 442. If a total loss (either actual, or, if constructive (^), Totalloss. followed by notice of abandonment («), when there is anything to abandon {x) ) {see § 333), not preceded by a partial loss, occurs, the assured is entitled to recover — if the policy is an open one, the value of his insurable interest {see § 440) ; if the policy is a valued one, the value stated in the policy {y) ; provided that the value proved or stated respectively does not exceed the amount insured, and if it exceeds it then the amount insured {z). § 443, If a partial loss, which has been repaired, and sub- Partial loss sequently a total loss, occur during the duration of the risk, the i^een repaired insurer is liable, under the suing and labouring clause, for to^aUo^s'^''' * the amount of the expenses incurred by the assured in repairing (r) Irving v. Hichardson, 1 Moo. & («) Martin v. CroTcatt, 14 East, 465 ; Rob. 153 ; Morgan v. trice, 4 Ex. 615; Knight v. Taitli, 15 Q. B. 649 ; Kal- Bruce v. Jones, 1 H. & C. at 774, lines tenbach v. Mackenzie, 3 C. P. D. at 471. 4 to 13 ; 776, last line ; 777, first [x] Rankin v. Potter, L. E., 6 H. 5 lines, and lines 7 to 4 from the hot- L. 83. torn; 32 L. J., Ex. at 134, 2nd col. [y] Shawe v. Felton, 2 East, 109; last 5 lines; 135, 1st line ; 136, Ist BurnandY. BodocanacU, 6 C. P. D. at ool. last 9 lines, and 2nd col. lines 420, and cases there cited ; 6Q. B. D. 16 to 8 from the bottom ; 1 Arnonld, at 638 and 639 ; 7 App. Gas. at 335 ; 310. 1 Amould, 302 ; 2 PhiQips, p. 3, No. (s) Davis V. Geldart, 2 Park, 601 ; 1183. Newby v. Heed, 1 W. Bl. 416 ; 1 Ar- (z) 2 Phillips, p. 225, No. 1486, p. nould, 329 and 330; Lowndes, 35, 418, last paragraph ; American cases sect. 38. cited at p. 419, foot-note 1 ; Lolwe v. {<) Adams v. Mackenzie, 13 0. B., Aitchison, 3 Q. B. D. at 565 ; 4 App. N. S. 442. See " Constructive Total Cas. at 763 ; 1 Park, 215 ; 1 Amould, Loss" in " Words and Expressions." 321. 310 Book IV. MARINE POLICIES. tile loss, and also (under the other part of the policy) for the amoimt of the total loss {a). See Note I. p. 318. Unrepaired § 444^ jf ^ partial loss which the assured has not iucurred partial loss . . ■■ . followed by a expense in repairing, and suhsequently a total loss, occur during the duration of the risk, the insurer is not liable in respect of the partial loss (J), whether the total loss was or was not (c) caused by a peril insured against ; Because, in tlie first case, lie is liable in respect of the total loss, and lie never agreed to pay more than the amount of a total loss [d) ; and because, in the second case, the assured has not been prejudiced by the partial loss (e). " during the duration of the risk" Corollary. — If the total loss does not occur during the duration of the risk the insurer is liable in respect of the partial loss. Thus, where a ship which was insured by one policy on a voyage to Calcutta and for thirty days after her arrival, and by another policy at and from Calcutta to London, was injured by the perils of the seas on the outward voyage, and after the expiration of the thirty days was totally destroyed while at Calcutta, it was held, notwithstanding that the insurer under both poHcies was the same person, that he was liable under the first policy for the partial, and under the second for the total loss (/). IN CASE OF A PARTIAL LOSS — I. Of Goods. Partial loss of § 445. When there is a partial loss of the goods insured, the assured, provided that he was interested in the whole of the sub- ject of insurance (fif), and the whole of the subject of iusurance has been at risk (see §§ 450 a««?451), is entitled to recover on the policy a total amount bearing the same proportion — if the sum goods. (a) Livie v. Jamsm, 12 East, at 6S5, at 197. from line 17; Zidgett v. Secreian, L. (c) lidgetty. Secretm,li.'R.,e C. F. E., 6 C. P. at 625, lines 23 and 24, at 626, last 7 lines; and 626, first 4 and 26 to 28 ; Zohre v. Aitchison, 3 lines. Q. B. D. at 566, lines 9 to 24, omitting {d} Zidgett v. Secretan, L. R., 6 C. P. lines 15 and 16, and the first three at 625. words of the 17th line. See 4 App. (e) Zivie y. Jansm, 12 East, at 654; Cas. 755. ' Knight v. Faith, 15 Q. B. at 668. (J) Knight v. Faith, 15 Q. B. at 668, (/) Zidgetfv. Secretan, L. R., 6 C. P. lines 19 to 21 ; Zidgett v. Secretan, L. 616. E., 6 C. P. at 625, lines 22 to 31 ; and {g) WilUamsv. North China Insurance 650, lines 24 to 30; Fitman v. Vni- Co., 1 P. D. 757. versal Marine Insurance Co., 9 Q. B. D. THE AMOUNT RECOVERABLE. 311 insured does not exceed the value stated in a valued policy cha*^i' {see §437), or the insurable value in an open policy {see § 440) — to the sum insured {h), or — if the sum insured exceeds the value of the goods — to the value stated in the policy if the policy is a valued one (^), or to the insurahle value if the policy is an open one, — as the difference between the price (taken from the gross produce {k)) at the port of discharge of the goods damaged by the perils insured against and the price at which they would have sold {I) if not so damaged bears to the latter price (m) ; Or if some of the goods have been wholly lost, as by being consTimed by fire or washed overboard, as the value of the goods so lost bears to the value of the whole of the goods (including the goods so lost) of that description, the subject of the insurance (w). See Note II. p. 322. " When there is a partial" down to " bears to the latter price." Thus, suppose that goods valued at 500Z. and insured for 400Z. have been damaged by the perils insured against, and first, that coming to a losing market they would, if undamaged, have sold for 400/. (a loss of 20 per cent, on the value stated), but being damaged they sell for 300Z. ; and next, that coming to a, gaining market they would, if undamaged, have sold for 600Z. (a profit of 20 per cent, on the value stated), but being damaged they sell for 450L ; the proportion in either case which the difierence between the proceeds of the damaged sales and the proceeds of the sound sales bears to the proceeds of the sound sales is 25 to 100 : there- fore the assured is entitled to recover 100?., that is, 25 per cent, of the sum insured (o). " the price (taken from the gross produce) ." Because if the net proceeds were taken as the basis of the calcu- lations the insurers, where equal charges are paid on the damaged and {h) 2 Amould, 894, lines 5, 6, and?; (?) This hypothetical price is ordi- Lohre v. Aitchison, 2 Q. B. D. Com- narily referred to as the proceeds of pare p. 501, sixth line from the hot- the "sound sales," and the price of torn, and p. 506, Hnes 12 to 9 ; lb., the damaged goods as the proceeds of Vol. 3, at 565, lines 4 to 11. the " damaged sales." (i) The case of the sum insured ex- [m] Lewis v. Suoher, 2 Burr. 1167 ; oeeding the value stated in a valued Xlsher v. Noble, 12 East, 639 ; 2 Ar- poUcy is of course unlikely to occur. nould, 895 ; Stevens, 83 ; 2 Phillips, (k) Johnson v. Sheddon, 2 East, 561 ; No. 1460. Hurry v.Ro'i/al Exchange Assurance Co., («) 2 Arnould, 895; Stevens, 150; 2 B. & P. at 309 ; 2 Amould, 894 ; 1 Lowndes, 172, sect. 261. Park, 235 ; Marshall, (4th ed.), 507 ; [o) Stevens, 120-122. Stevens, 93. 312 MARINE POLICIES. Book IV. |.jjg undamaged goods, would be affected by the fluctuations of the market (q). Thus, suppose that the charges are 1001., and that the goods coming to a gaining market would, if undamaged, have sold for 600Z. but being damaged sell for 300Z. : the difference between the net proceeds is 300Z., or three-fifths of the net proceeds of the goods if undamaged; next, that coming to a losing market they would, if undamaged, have sold for 300Z., but being damaged sell for 1501. : the difference between the net proceeds is 1501., or three-fourths of the net proceeds of the goods if un- damaged, whereas the proportion of the difference between the gross proceeds would, in each case, be the same {r). " the assured . . . is entitled to recover . . . a total amount bearing the same proportion . . . to the sum insured . . . if some of the goods have been wholly lost, as the value of the goods so lost bears to the value of the whole of the goods {including the goods so lost) of that description, the subject of the insurance." Corollary. — Wlien some of the goods have heen damaged and others of the same description (s) have been totally lost, the loss in respect of the damage and of the total loss need not be adjusted separately. Thus, suppose {f) that of twenty hogsheads of sugar, valued at and insured for 5001., ten have been damaged, and ten have been washed out, The adjustment of the two losses together, as follows : 20 hogsheads if arrived sound would have pro- duced ...... £600 Being damaged did produce . . . . 150 Loss and depreciation in value 75 per cent, . £450 £500 (amount of interest) at 75 per cent. . . £375 Gives the same result as if they were adjusted separately, as below : 10 hogsheads if arrived sound would have pro- duced ...... £300 Being damaged did produce Depreciation in value 50 per cent. £250 (amount of the interest damaged) at 50 per cent. ...... The value of 10 hogsheads (half the interest) 150 £150 £125 250 £375 (j) For the objeotions which may be menoing, " But where ;" Stevens, 152, taken to this principle, see Lowndes, last 2 Hnes; 163, 154, and 156, first 176 and 176. 3 Unes; Benecke's Principles of In- {r) Johnson v. Sheddon, 2 East, at demnity, 440 and 441. 584. [t) This example is taken from Ste- (s) 2 Arnould, 895, paragraph com- vens, 151 and 152. THE AMOUNT RECOYERABLH. 313 § 446. If the insurance is upon goods to be carried during chan^ a certain period by several vessels, witli liberty to change the cargoes, the assured is entitled to recover such a proportion of insuranoe is the loss as the sum insured bears to the value not of the whole carried by° ^ of the goods carried by the vessels during that period but of several YGSS6iS. the goods which are being carried at the time when the loss happens (m). Carriers by canal made an insurance upon goods to be carried by canal boats backwards and foiVards as interest might tbere- after appear, -with liberty to change tbe cargoes, for 12,000Z. during a period of twelve months; 3,000Z. only to be covered by the policy in any one boat on any one trip. Between the commence- ment of that period and the day of the loss the canal boats had carried goods of the value of more than 12,000Z. : on a day within the period a canal boat carrying goods of the value of 1,700Z. was accidentally sunk, and there was a partial loss of the goods : it was contended that the underwriters were liable only to that propor- tion of the loss which 12,000Z., the sum insured, bore to the whole amount of the goods carried by the boats in the twelve months ; but it was held that it was not intended that their liability should go on diminishing throughout the year, and become less in propor- tion as more goods were carried, and that the assured was entitled to recover such a proportion of his loss as 12,000Z. bore to the value of all the property on board aU the boats at the time of the accident, if that value exceeded 12,000?., and if not, the whole amount lost (as). Compare with § 449. II. Of Ship. See also § 444, Corollary. § 447. — (i-) When there is a partial (not followed by a total) Sumrecovor- {see § 444) loss of the ship insured the assured is entitled to partial loss recover on the policy an amount bearing the same proportion — ° ^ V- if the sum insured does not exceed the value stated in a valued policy, or the insurable value {see § 440) in an open policy — to the sum insured {•t/), or — if the sum insured exceeds the value — to the value stated in the policy if the policy is a valued one (z), or the insurable value at the commencement of the risk {see 7 th line of % 440) if the policy is an open one, as, if the damage has («) Crowley v. Cohen, 3 B. & Ad. at 302 and 321. 486, last 14 lines of Lord Tenterden's {y) 2 Arnotdd, 901, lines 3 and 4. judgment. («) In practice it is unlikely that [x) Crowley v. Cohen, 3 B. & Ad. the ship would ever be insured for an 478 ; 1 Amould, 324—326 ; vol. 2, amount exceeding its stated value, p. 898. This case is referred to in ^§ Book IV. MARINE POLICIES. been repaired, the amount expended in executing the necessary- repairs in a reasonable and proper manner (a), or, if the damage has not been repaired and the ship has not been sold, as the amount which it is estimated that the execution of such repairs will cost (6) — less in each case one-third of the actual or esti- mated cost of the repairs if the vessel is a wooden one and not new (c) — bears to the stated value in a valued policy, or the insurable value at the commencement of the risk on an open policy (d) ; Or — if the vessel has been sold by the assured without having been repaired — as the difference between the value of the ship in her damaged condition at the port of distress and the value she would have had there if she had been undamaged bears to the latter value, her value in her damaged condition not being taken at less than her value as determined by the sale (e). " less . , . one-third ofthe... cost of the repairs." Tliis deduction is made because the substitution of old for new materials is a benefit to the assured, who would therefore be a gainer if the whole expense of repairs were estimated as a loss to him ; and a uniform proportion is fixed to prevent controversy in each particular case (/). " If the vessel is . . . not new." Corollary. — A vessel is considered new if she is on her first voyage {g) ; Or, perhaps, if she is less than a year old (A). («) Fitman t. Universal Marine In- [d) 2 Amould, 901 ; Benecke, Piin- swrance Co., 9 Q. B. D. at 196, lines 23 oiples of Indemnity, 460 ; JPitman v. to 25, and last 2 lines ; 197, first 4 Universal Marine InsuroMce Co., 9 Q. lines ; 215, lines 21, 22, and last 2 ; B. D. 192. and 216, lines 1, 13, 14, and 15 ; (c) Fitman v. Universal Marine In- Stewart v. Steele, 5 So. N. B. at 948. surance Co., 9 Q. B. D. 192. See p. (S) 2 Amonld, 901 ; Kniffht v. Faith, 202, lines 18 and 19 and 25 to 30, and 15 Q. B. at 669, lines 8 to 4 from the p. 218, last 4 lines ; Lowndes, 193, bottom ; Lidgett v. Secretan, L. R., 6 note (c). 0. P. at 626, last line, and 627, first 5 (/) 2 Amould,, 901 ; 2 Phillips, lines; Fitman -v. Universal Marine In- No. 1431; Lohre v. Aitehism, 3 Q. surance Co., 9 Q. B. D. at 217, first 8 B. D. at 564 ; 4 App. Oas. at 762, last lines. 10 lines ; Fenwick v. Robinson, 3 C. & (c) Lohre \. Aitehison, 2 Q. B. D. P. at 324, Unes 13 to 15 ; Firie v. at 608 ; 3 Q. B. D. at 563 and 564 ; Steel, 8 C. & P. 200. 4 App. Oas. at 762 and 763. In the {g) Fenwiele t. Mobinson, 3 0. & P. United States of America the deduc- 323 ; 2 Moo. & Rob. 49. tion is made on new, no less than on {h) lohre v. Aitehison, 2 Q. B. D. at old, ships : 2 Phillips, p. 178, No. 1431. 508, lines 18 to 21. THE AMOUNT RECOVERABLE. 3lS Part VI. Chap. I. Note. — As to what is the first voyage, see cases cited in the foot- note («). As to the meaning of the following clause, " iM usual deductio^i of one-third of the amount of repairs will not he made until, 8fe.," see Byrne v. Mercantile Insurance Company [k). HI. Of Freight. § 448. — (i.) When there is a partial loss of freight (see § 398) Sum recover- the assured, provided that he was interested in the whole of the partial loss of subject of insurance, and the whole of the subject of insurance ^^^^ ' has been at risk {see §§ 450 and 451), is entitled to recover on the policy a total amount bearing the same proportion — if the sum insured does not exceed the stated value in a valued policy or the insurable value in an open policy — to the sum insured, or — if the sum insured exceeds the stated value in a valued policy (l), or the insurable value in an open policy — to the stated value or the insurable value, as the difference between the gross (m) freight which has been earned and the gross {m) freight which would have been earned if there had been no loss of freight by the perils insured against bears to the latter gross (m) freight (w). As to expenses incurred in sending on the goods by another ship, see Kidston v. Empire Insurance Company, cited in § 417, p. 293. (ii.) If the insurance is against a loss of freight which may WHere pro- arise under a provision in a charter-party or bill of lading that a deduction in certain proportion of the freight shall be deducted in respect of dlmaged* any portion of the cargo which shall be sea-damaged, the portion. " freight, which would have been earned " within the meaning of this rule is only that proportion of the freight which is liable to be so deducted. A ciarter-party contained the folio-wing clauses : ' ' The charterers shall pay freight on true delivery of the cargo after the rate of 3Z. "is. Qd. per ton, subject to the deduction hereafter specified :" . . . " if any portion of the cargo be delivered sea-damaged, the freight on such sea-damaged portion to be two-thirds of the above rate." At the foot of the policy -was the following clause: "To cover only (i) Fenwiek v. Robinson, 3 0. & P. [m] Falmer v. Blackbrnn, 1 Bing. 61 ; 323 ; Firie v. Steele, 8 0. & P. 200 ; 2 1 Park, 237 ; Lowndes on Marine In- Moo. & Rob. 49. surance, p. 176, sect. 313 ; 2 AiDould, (A) Byrne v. Mercantile Insttrcmce Co., 908, last 2 lines, and 909. 4 H. & C. 506. («) 2 Phillips, p. 196, No. 1454 ; 2 (/) This is not likely to happen. Arnould, 908; Lowndes on Marine Insurance, p. 176, sect. 313. 316 MA&INE POLICIES. Book IV. tjjg one-third loss of freight in consequence of sea-damage, as per charter-party." The amount insured was 1,200Z.: the total freight onthecargowas3,871?.16s.3(i., one-third of which is 1,2902. 12s. Id. A portion of the cargo was delivered sea-damaged ; one-third of the freight of such sea-damaged portion amounted to 29SI. 15s. Id. The insurers contended that the assured were entitled only to the proportion of the loss which the amount insured bore to the whole freight, but the Court held that the proper proportion was that which the amount insured bore to 1,2902. 12s. Id., as this one- third was the only subject of insurance (o). INSURANCE BY CARRIEES. Insuraiiceby § 449. If the insurance is against losses for which the against their assured may be liable, as carrier, to the owners of goods carried HabiKty to ttie -jjy j^j^ j^^ vessels within certain limits during a certain period, owners of the •' . goods. he is entitled to recover the actual amount of a loss for which he is so liable occurring within those limits and that period (not exceeding the sum insured), and not merely a sum bearing the same proportion to the loss as the sum insured bears either to the total value of all the goods carried during that period, or to the value of the goods which he is carrying within those limits in the vessel on which the loss happens. By a clause in a time policy the policy was to cover all losses in each craft to goods carried by the assured as lightermen from Wandsworth to the Victoria Docks, and- for which losses they might be liable to the owners thereof, the amount of each under- writer's liability not to exceed the amount of his subscription: the total amount insured was 2,0002., and the am.ount under- written by the defendant was 1002. : the value of the goods which at the time of a loss on board of the A. he was carrying from Wands- worth to the Victoria Docks in the A. and other craft was 20,0002. : the value of the goods in the A. at the time of the loss was 2,9002., and the amount of the loss was 1,1002. The defendant contended that he was liable to pay only a sum bearing the same proportion, to 1,1002. as 1002. bears to 20,0002., or, at all events, not more than a sum bearing the same proportion to 1,1002. as 1002. bears to 2,9002., but it was held that the underwriter was liable to pay 552., the defendant's proportion of 1,1002. {p). Compare with § 446. OVER INSURANCE. Where the § 450. If the assured has not an interest in the whole of the iQtarestedhi subject of insurance included in the valuation he is not entitled (o) Griffiths v. Sramley Moore, 48 [p) Joyce v. Kennard, 41 L. J., Q. B. L. J., Q. B. 201 ; 4 Q. B. D. 70. This 17 ; L. E., 7 Q. B. 78. This case has case is cited in § 313, p. 216. been cited in § 316. THE AMOUNT EECOVEEABLE. 317 to recover more than an amount bearing the same proportion to ^'F*' "" • the value stated in the polioy as that portion of the subject of insurance included in the valuation in which he has an interest the sub°'ec°of bears to the whole of the subject of insurance included in the "is^ranos. valuation (q). As to a return of part of the premium, see § 464. Thus, if freight is insured by a valued policy, and the subject- matter of the valuation is the whole freight, including advances against freight, but the assured is interested only in the freight less the advances, the assured is entitled to recover only such a propor- tion of the value stated as the amount of freight less the advances bears to the amount of freight including the advances (r). SHORT INTEREST. § 451. — (i.) If the whole of the goods or freight which it Where the was intended should be insured have not, or has not, been, or goods have at the time of the loss are not, or is not, at risk, the assured ^"t^^®'^ ** is not entitled to recover upon a valued policy more than an amount bearing the same proportion to the value stated in the policy as the value of the goods or freight which have or has been, or at the time of the loss are or is at risk, bears to the value of the whole of the goods or freight which it was intended should be insured (s) (if the value of the whole of the intended cargo or freight can be ascertained (t) ). (it.) If the value of the whole of the intended cargo or freight cannot be ascertained the assured must recover as upon an open policy, except that the amount which he can recover can- not exceed the proportion which the amount insured bears to the value stated. As to a return of part of the premium, see § 463. Ulustrations of (l.) : Thus, if it is intended that the cargo shall consist of 500 tons, and the intended cargo or the intended freight is valued at and insured for 5,000?., but the ship by accident takes on board only 100 tons, and is afterwards lost with only them on board, the assured can recover only 1,000?. (m). So, if the insurance is on goods as well those originally shipped (?) Williams v. Mrtfi China Insur- 306 ; Forbes v. Aspinall, 13 East, 327. ance Co., 1 C. P. D. 757.' [t) Tobin y. Harford, 13 C. B., N. S. (r) Williams v. North China Inswr- at 803. dime Co., 1 0. P. D. at 769, lines 14 to [u) Forbes v. Aspinall, 13 Bast, 323 ; 1 8. see 327 ; Mickman v. Carstairs, 5 B. & (s) 2 Phillips, No. 1196 ; 1 Amould, Ad. 651. 318 Book IV. MAEINE POLICIES. as those whict may from time to time be substituted by barter, and a full cargo is shipped, but one-third of it is landed -without any other goods being substituted, and the ship is afterwards lost ■with only the two-thirds on board, the assured can recover two- thirds of the stated value (assuming that the sum insured was the same as the stated value) and no more {x). Jllustration of (ir.) : The amount insured was 1,OOOZ. upon freight valued at 2,000Z., and there was a total loss of freight, the loss amounting to 1,412Z., but a full cargo had not been shipped ; the insurers were not aware that the valuation was of less than the freight of a full cargo : it could not be ascertained what the freight would have been if there had been a full cargo. It was held that a valuation of freight refers prima facie to the freight of a full cargo or the charter of the entire ship; that the assured was not entitled to recover 1,000?., as he would have been if a full cargo had been shipped, and that the policy as applicable to a partial cargo was an open policy for half the loss of freight, not exceeding in any case l.OOOZ., and that, therefore, as 1,4122. was lost, 1061. was recoverable, being the same proportion as the amount insured bore to the amount of the valua- tion (y). LIABILITY OF EACH UNUERWKITEE. § 452. The assured is entitled to recover from each individual insurer an amount bearing the same proportion to the amount insured hy that insurer as the total amount which the assured is entitled to recover on the poUoy hears to the total amount insured by the policy (s). Thus, if the aggregate of the sums underwritten is 1,0002., and the total amount which the assured is entitled to recover on the poKcy is lOOZ., he is entitled to recover 101. from an underwriter who has underwritten for 1002. {a). Note I., see § 443, p. 309. — It has been said that the effect of the English decisions is, that the insurers of a ship would be " liable for cumulative losses by particular averages, or by those and a total loss, to an amount exceeding the amount insured by the policy^' (5), even if the policy did not contain the usual clause as to suing and labouring. In Aitchison t!. Lohre (c), Lord Blackburn said: — "In PMUips on Insurance, that very experienced authority finds great fault with {x) Tobm V. Rarford, 32 L. J., C. P. (z) WiUm v. Nehon, 5 B. & S. at 134 ; 13 C. B., N. S. 791 ; affirmed, 366, per Blackburn, J. 34 L. J., C. B. 37 ; 17 0. B., N. S. (a) 1 Amould, 321. See " Ownlu- 528. surer " in " Words and Expressions." (y) Denom v. HmM and Colonial As- (j) 2 PMUips, p. 417 No. 1743. suraace Co., L. K., 7 C. P. 341, at 350, (c) 4 A.pp. Cas. at 763. last 6 lines, and 3S1. THE AMOUNT RECOVERA.BLE. 319 the decision of the Court of Common Pleas in Le Cheminant (f^), Part VI. . ^ ' Chap. I. that more than the subscribed amount may be recovered wherb there are successive losses, which he seems to think can only be supported on the ground of inveterate practice. No question, however, of that hind arises here, for this is the case of one single loss, as to which he says that we knotv ' the liability of insurers in a single loss is, without ques- tion, limited to the amount insured, and the expenses of suing ' (e). No authority in contradiction to this was cited, and 1 am not aware of any." The English cases {besides Le Cheminant v. Pearson.) referred to by Mr. Phillips are Livie v. Jaiisen(/) and Stewart v. Steele {g). In Livie v. Jansen the ship insured was damaged by one of the perils insured against, but the damage ivas not repaired; and she was subsequently lost by seizure, which was an excepted peril. It was held that the insurers were not liable for the loss by the seizure, although it was indirectly caused by the damage she had sustained, nor for the partial loss, because that loss " never produced any pecuniary loss to the plaintiff" {h). (See § 444.) Any expression of opinion by Lord Ellenborough on the question whether actual disbursements for repairs may be recovered in addition to the full amount insured was therefore merely an obiter dictum. What Lord Ellenborough said was as follows : — " There may be cases in which, though a prior damage be followed by a total loss, the assured may nevertheless have rights or claims in respect of that prior loss, which may not be ex- tinguished by the subsequent total loss. Actual disbursements for repairs in fact made in consequence of injuries by perils of the seas prior to the happening of the total loss, are of this description ; unless, indeed, they are more properly to be considered as covered by that authority, with which the assured is generally invested by the policy, of 'suing, labouring, and travailing, Sfc., for, in, and about the defence, safeguard, and recovery of the property insured' : in which case the amount of such disbursements might more properly be recovered as money paid for the underwriters under the direction and allowance of this provision of the policy than as a substantive average loss to be added cumulatively to the total loss which is aftertoards incurred in consequence of the sea risks" {i). As Mr. Phillips says: — "Such an opinion being merely an obiter one, and, besides, being put upon the ground of the authority to sue, labour, Sfc, may be considered as of no weight whatever in reference to our present inquiry " (k). {d} 4 Taunt, at 380. 155. {e) 2 PMUips, p. 419. (A) 12 East, at 656, lines 4, 5, and 6. (/) 12 East, 64S. W 12 East, at 655. (?) 5 Sc. N. R. 927; 11 L. J., 0. P. (k) Vol. 2, p. 476. 320 Book IV. MAKINE POLICIES. In Le Cheminant v. Pearson the defendant had underivritten 200/. The first 'count of the declaration alleged that the ship was damaged by the perils insured against, and that "thereupon the assured, their factors, servants, and assigns, did sue, labour, and travail, for, in, and about the defence, Sfc. of the ship, and thereby incurred ex- penses to the amount of S7SI. 13s. lOd.," of which the proportion con- trihutable by the defendant amounted to 121. 9s., and that there was afterwards a total loss, " by reason whereof the defendant became liable to pay 2121. 9s., according to the effect of his policy." There was also a count for money paid. The defendant paid the 121. 9*. into Court upon the first count. There was a verdict for the plain- tiff for 200/. more. A rule nisi was obtained to reduce the verdict to 187/. lis. — the difference between the amount paid into Court and 200/. — upon the ground that the utmost liability of the underwriter upon the contract of insurance did not exceed the sum of 200/. for which he had subscribed the policy (o). The plaintiffs counsel, on showing cause, cited the above-quoted passage from the judgment in Livie V. Jansen, and said: — "It is indifferent to the plaintiff under which count he recovers the sum he expended in the repairs, as he has counts in his declaration which will embrace either of them " {p). The defendant's counsel admitted that an assured might be entitled to recover more than the sum insured, either entirely upon the common counts or partly on the special count on the policy and partly on the money counts, but contended that the special count would be bad if it claimed more than the sum insured, " because it sets out by averring " that sum " to be the limit of the defendants liability " (y), and that the plaintiffs in that action could not recover upon the common counts, as under them an assured cannot recover payments which he can recover upon the special count on the policy as a loss arising from a peril insured against (o payment for repairs being such a loss), and can recover only payments which cannot be recovered as a loss by a peril insured against, us, for instance, pilotage paid when a vessel is driven by currents into a situation from which the captain knows not himself how to extricate her[r). Mansfield, C. J., in delivering judgment, said{s): — "As to the point respecting the double loss, this policy of insurance is a very strange instrument, as we all know and feel. In practice, I know of (o) 4 Taunt, at 370 [371]. amount not exceeding the sum in- (p) i Taunt, at 373 [374]. snred, the amount of any charges in- {}) If the count were properly drawn ourred by the assured in suing, labour- it would make no such averment ; it ing, &e. would aver that the defendant con- (r) 4 Taunt, at [377], and [378]. tracted to pay, in addition to an (s) 4 Taunt. 380. THE AMOUNT RECOVEEABLE. 321 ■ cases in the Court of King's Bench where such expenses have been ^J^^ ^^• recovered as an average loss, without making any distinction whether it was recoverable as an average loss from damage repaired, or within the words of the permission to sue, labour, and travail, ^c. ; and as no such distinction has been made we find it safer to adhere to the practice which has obtained, and to call it all average damage ; and therefore the rule must be discharged." It is submitted that this case is really merely an authority for the position that, in addition to the sum insured, charges incurred in suing, labouring, 8fc. may, under a policy containing the usual clause, be recovered, without considering whether these payments could or could not have been recovered as losses arising from a peril insured against. As regards Stewart v. Steele (<), Mr. Phillips says{u) that it was held in that case that the " insurers were liable for a partial loss for re-coppering and subsequent total loss," but this is a mistake. There were two issues left to the jury. The first, whether the assured were entitled to recover the expenses of re-coppering and certain other ex- penses, and on this issue the verdict was in the plaintiff' s favour . The second was, whether there was a total loss by the perils insured against, and on this the verdict was for the defendants {x). This case, there- fore, is no authority upon the question. Maule, J., however said, " expenses of this sort," i. e. for repairs actually and fraudulently done, "fall within that clause of the policy which enables the assured to lay out money for the benefit of all concerned" (y). In the 5th edition of Arnould on Marine Insurance it is said{z) : " If a ship have been actually repaired in a port of distress, and be afterwards totally lost before arriving at her port of destination, the cost of such repairs may be recovered cumulatively in addition to the total loss, either qua average or [it has been said(a)^, per Lord Ellen- borough, Livie V. Janson, 12 East, 656, as money laid out and ex- pended in labouring for the safeguard and recovery of the ship, under the general printed clause in the policy (b). Le Oheminant v. Pearson, 4 Taunt. 367. [The former is surely the proper mode of laying the claim : I should not like to say the latter is wrong."'\ The words within brackets, however, express the opinion of the editor not of the author (c). (<) 5 Scott, N. E. 927 ; 11 L. J., [y) 5 Scott, N. R. at 949, Unes 2, 3 C. P. 155. and i. («). Vol. 2, p. 417, No. 1743. (2) Vol. 2, p. 907. See also p. 943, (x) 11 L. J., C. P. at 156, second footnote 2. column ; 5 Scott, N. K. at 942, per {a) This reference is in a footnote. Tindal, C. J. {i) Vol. 2, p. 907, footnote 3. (c) See Ist ed., vol. 2, p. 986. W. Tf 322 Book IV. MARINE POLICIES. There are passages in at least two judgments {besides Livie v. Jan-- son) tvhich apparently support the position that it is only hy virtue of the clause as to suing and labouring that more than the sum insured can ever be recovered. In Jumel v. Tlie Marine Insurance Company {d), Kent, C. J., said, " According to the settled construction of the general permission granted by the policy to labour, &c. the insurer is liable to expenses incurred in the attempt to recover the captured property in addition to the payment of a total loss." In the Judgment of Willes, /., in Lidgett v. Secretan(e), occurs the following passage : " The authorities tvhen looked at will be found to amount to this : — A partial loss is not paid for if there is a total loss of the vessel during the period covered by the policy ; because when the undericriter pays the total loss he actually discharges all partial losses occurring during the voyage — except such as fall within the suing and labouring clause, wHch are apart from the sum insured." Note II., see § 445, p. 311. — In one passage in Arnould on Insur- ance{f^ the rule as to the amount recoverable is stated as follows : — " If the damage amounts to half the sound value of the goods the under- writer pays halfihB sum he has agreed to insure ; if to a third, then he pays a third o/that sum, and so on in exact proportion to the extent of the depreciation :" but elsewhere {g) it is said: — " When this" {i. e., whether the commodity is one-half one-fourth, or one-tenth the worse for the sea-damage) "is ascertained, the liability of the under- writer is ascertained also, for he pays the same proportional part, whether it be one-half one-fourth, or one-tenth of the prime cost or value on the policy." To the same effect is the following passage {h) : — " That which the assured loses by the depreciation of his goods is an aliquot part of the market value for which they would have sold had they arrived sound at their port of destination : that which the underwriter pays in respect of such loss is the same aliquot part of their prime cost or value in the policy." The doctrine in the above passages is, it is submitted, stated too generally, as they seem strictly correct only when the value stated in a valued policy, or the insurable value in an open policy, is of the same amount as the sum insured. {g) 7 Johnson's New York Sup. (/) Vol. 2, p. 894, Unes 5 to 9. Court Ca. 412, at 423, last 2 Hnes, and Iff) Vol. 2, p. 893, lines 3 to 7. 424. (A) Vol. 2, p. 893, lastUne, and 894, («) L. R., 6 C. P. at 625. first 5 lines. ( 323 ) Pan VI OHAPTEE II. Of Provisions in the Policy exempting the Insurers FROM Liability for the Loss of certain Gtoods, or WHEN THE Amount of the Loss does not exceed a certain Proportion of the Value of the Subject of Insurance. For the clause in a policy that certain articles are warranted free from average unless general or from average under certain per- centages, see Form of Policy at the beginning of this icork. As to the meaning of " Warranted" " Memorandum Articles," " Corn," "Salt," see " Words and Expressions." As to the "perils, from liability for loss occasioned by which the insurers are exempted by the express provisions of the policy, either absolutely, or unless the loss exceeds a certain proportion of the value of the subject of insurance," see Part V. Oh. IV. of this Book." As to " general average," see Note, p. 290, and §§ 416, 419, 420, 422 and 428. As to the meaning of " warranted free from average unless general," see § 428. As to the meaning of " unless the ship be stranded," see §§ 429—433. § 453. The insurers in case of a total loss of only part of Insurers not , , , ,1 ,1 , • 1 n / \ . liable for total the goods insured (whether those goods are m bulk [a) or m loss of part of (a) Mills V. London Asswanoe Corporation, 5 M. & W. 569 ; 9 L. J., Ex. 27. y2 324 MARINE POLICIES. "' packages), even althougli the part lost consist of one or more memorandum entire packages or other distinct portions, are not liahlo if the goods were warranted free of average unless general, or, if they were warranted free of average under a certain percentage, and the value of the part lost does not amount to that percentage, calculated on the whole of the goods, unless the Unless the goods are of different species, and not even in that different case if they are descrihed in the policy as goods of one species, species, Q^^ unless it appears, either from there heing a separate valua- rately vTlued. tion of the packages {See Note A., p. 327), or other distinct portions {hut see Note B., p. 327), or in some other way, that it was intended that the insurers should be liable for a loss of part {b). "even although the part lost consists of one or more entire paehages" Therefore, where, by a policy containing the usual memorandum, as to "seed," inter alia, being "warranted free from average unless general," an insurance was effected upon "2,688 bags linseed, 1,600?.," of which 1,023 bags were so damaged by the perils insured against that a large portion of the linseed in them was thrown into the sea as rotten and worthless, and the rest when sold brought only a few shillings at the port of distress, and if sent on to the port of discharge would have lost the character of linseed, it was held that the assured was not entitled to recover (c). " unless the goods are of different species." Thus, where the insurance was " on goods valued at 240Z. against total loss only," and the goods were of different kinds and descrip- tions, and in separate cases and packages, and among others a waggon, three packages of fittings, a case containing circular saws, four cases containing sheet glass, and were all lost, with the exception of the case of circular saws, and two of the cases of sheet • glass, the assured were held entitled to recover, notwithstand- ing that the description of the subject of insurance was merely " goods "(cZ). (S) Hagedorn v. WTiitmore, 1 StarHe, ( c ) Salli v. Janson, 6 E. & B. 422. 157 ; Sills V. London Assurance Oorpo- (d) Wilkinson v. Syde, 3 C. B., N. ratim, 5 M. & W. at 671, per Lord S. 30. See also Duff v. Mackenzie, ih. Abinger, C. B., and 576, hnea 12 to 16. Both oases are cited in the judg- 16 ; Ralli v. Jcmson, 6 E. & B. at 436, ment in Cater v. Great Western Insur- 437, and 446 ; Oppenhdm v. Fry, 3 B. ance Go. of New York, L. R., 8 0. P, & S. 873 ; and 5 B. & S. 348 (Ex. Ch.) at 559. THE MEMORANDUM. 325 " and not even in that case if they are described in the policy as p^^^ jj; goods of one species" Thus, where oranges and lemons (in themselves different species of goods) were described in a policy as of one species, viz. , " fruit," " fruit " being (as usual) warranted free from particular average, it was held that, although the whole of the boxes of oranges were lost, the insurers were not liable for that loss, as the whole of the boxes of lemons were not lost (e). So, the whole of the non- enumerated articles described as "all other goods " in the ordinary memorandum, " sugar, tobacco, &c., are warranted free from average under five pounds per cent., and all other goods are warranted free from average under three pounds per cent.," are regarded as forming together one mass of property, on the aggregate value of which the percentage is to be calculated (/). § 454. If it appears from tlie policy that it was intended The percent- that the insurers should be liable for a loss of each package, calculated or a certain number of packages, they are liable if the loss total quantity amoimts to the stated percentage, calculated either on the or on each package, whole of the goods or on the damaged packages {g). Thus, supposing ten cases of goods to have been insured for 1,000Z., valued at 100?. on each case, warranted free from average under three per cent., and one of the cases to arrive damaged fifty per (jent. and the rest to arrive damaged only one per cent., the assured may recover the amount of damage on the nine cases as well as on the one, 59Z. being more than three per cent, on the value of the whole (A). The reason is, that this clause having been introduced for the benefit of the assured must be interpreted in his favour (i). . . Successive § 455. li there are successive losses, m the course of a losses in the voyage, each under, but in the aggregate amounting to, the ammmt^ngto percentage stated, the insurers are liable {k). ^^^ peroeut- § 456. If during the period covered by a time policy there ™ider a . voyage are successive losses, each in the course of a distinct voyage, and policy ; under a time __^ policy. (e) Humphreys v. Union Insurance 882, lines 8 to 11 of Crompton, J.'s Oo., 3 Mass. C. C. Eep. 429, 440, cited judgment. in Wilkinson v. Syde, 3 C. B., N. S. (A) 2 Arnould, 805. at 41 and 45 ; 27 L. J., C. P. at 119 (i) Magedorn v. Whitmore, 1 Starkie, and 120. at 160. (/) 2 Amould, 803 ; 2 PhUlips, No. [k] Blackett v. Royal Exchange As- 1786. mranee Co., 2 Cr. & J. 244 ; 2 Tyr, (y) Sagedorn v. Whitmore, 1 Stark. 266. 157 ; Oppenheim v. Fry, 3 B. & S. at 326 MAEINE POLiaES. Book IV. The percent- age is calcu- lated on tte amount at risk at the time of the loss. each under, though in the aggregate amounting to, the per- centage stated, the insurers are not liahle (l). § 457. If a loss occurs which if calculated on the amount at risk at the time of the loss is equal to, though if calculated on the amount at risk at an earlier (m) or a later period is less than, the percentage mentioned, the insurers are liable : As, -where a cargo to be loaded was insured " warranted free from average imder five per cent.," and before the whole of the cargo was loaded a loss took place which was more than five per cent, on the cargo then loaded, although less than five per cent, on the full cargo {n). Expenses in- § 458. Expenses incurred by the assured which he is entitled the suing and to recover under the suing and labouring clause cannot be added labouring clause cannot he added to the loss to make up the percentage. EjBEect of the clause cannot be altered by a declaration. to the amount of the loss so as- to raise the loss to the stated percentage. Thus, if the stated percentage is five per cent, and the expenses amount to two per cent., and the loss or damage to three per cent., only the expenses are paid (o). . § 459. If the insurance is upon goods of a kind stated, in any ship or ships, goods and value to be declared, warranted free of particular average, or of particular average under a certain percentage, the assured cannot, by putting in a declara- tion a separate valuation of each package or any other separate portion of the goods carried in any ship, make the insurers liable for a total loss of a package or other separate portion (when the warranty is against particular average), or for a loss not amounting to the stated percentage, calculated on the whole of the goods insured carried in the ship {p) (when the warranty is against particular average under a certain percentage). Note. — It is doubtful whether if there are two of goods insured the assured can put a separate of the kind upon each {t) Stewart v. Merchants Marine In- surance Co., 16 Q. B. D. 619 (C. A.) (m) Maryland Insurance Co. v. Bosley, 9 Gill & J. Ind. 337, cited in 2 Phil- lips, p. 445, No. 1774. (») Eohl V. Farr, 1 Esp. 445. (o) Kidston v. Umpire Marine Insur- ance Co., 35 L. J., C. P. 250 ; L. E., 1 C. P. 535, at 545. The rule stated in this section would have furnished » defence to the underwriters in Oppen- heim v. Fry, 3 B. & S. 873 ; affirmed, Vol. 3, p. 348, but in that case the counsel for the defendants were not called upon, and a decision against the plaintiff was given on other grounds. (ij) Entwistle v. Ellis, 27 L. J., Ex. 105 ; (not so fully reported in) 2 H. & N. 549. THE MEMORANDUM. 327 species so as to make the insurers liable {as the case may be) for a ^^'^^ jj' total loss of one species, or for damage done to one species exceeding the stated percentage, if calculated on that species alone, though not if calculated on the whole of the goods {q). Note A., see § 453. — If there is a statement of the number of pack- ages of a particular kind of goods and of the value of each package {the value of each package being the same), followed hy the statement of a sum arrived at by multiplying the number of packages by the value of each package. As for example, " 500 bags rice at 8s. 3d. per bag, 2061. 5s.," it would probably be held that there is not a separate valuation of each package so as to make the insurers liable {as the case may be) for a total loss of a package, or for damage to a package exceeding the stated per- centage {r). Note B., see § 453. — An eminent average adjuster {s) makes the following remarks on " the question whether a distinct valuation of the article insured at so much per bale or package is to be taken as indicat- ing an intention to treat each package as if separately insured" : — " There is in the first place nothing in the loords themselves which apart from, custom, or a general understanding ivould carry that meaning. A separate valuation is, on the face of it, nothing but an agreement that the value of each several package shall be taken as so much, an agreement very convenient for avoiding dispute and facili- tating an adjustment. Is there then any custom or general under- standing importing a meaning not obvious on the surface, viz., that a distinct valuation constitutes a separate insurance ? Custom in this direction there is none : before Ealli v. Janson such total losses of part were paid without distinction, whether the goods were valued in the lump or in detail ; since Ealli v. Janson such losses have, in either case, been in practice excluded ; so that there never has been a time when the suggested distinction has been acted on in practice. As to a general understanding, that is certainly the other way, as is proved by the fact that whenever it is intended to divide the subject-matter of insurance {q) JEntioisiU v. Mlis, 27 L. J., Ex. at 108, 2nd oolumn, last 16 lines; 109, at 108, 1st column, lines 20 to 13 from Ist line, and 110, lines 10 to 23 ; 2 H. the bottom, and 109, 2nd column, & N. at 555, last 2 lines, and 556, first lines 11 to 4 from the bottom ; (less 2 lines, and lines 2 to 4 of OhanneU, fully) 2 H. & N. at 655, sentence be- B.'s, judgment, ginning " It is possible." («) Svensdemr. Wallace, lOApp. Cas. [r) Eiitwistle v. Ellis, 27 L. J., Ex. at 413, lines 4 and 5. 328 Book IV. MARINE POLICIES. into parcels, each of which shall he treated as a distinct insurance, this is done hy means of special clauses called ' average clauses.^ In insuring cotton, for example, the usual course is to value it in the policy at so much a hale, and to insert the clause ' average on each ten bales, running numbers, as if separately insured.' This clearly implies an under- standing that, though each bale is separately valued, the question of average or total loss must be dealt with by a reference to the whole, unless this rule be relaxed by an average clause. Neither the gram- matical construction of the words, then, nor any usage or understanding, carries the wider meaning contended for " (<). («) Lowndes, Appendix B. 237 and 238. ( 329 ) Part VII. Part VII. OF THE PEEMIUM. Division I. Of the Receipt for the Premium contained in the Common Form of Policy. § 460. Tlie words in the common form of policy "confessing Eeoeipt for ourselves paid the consideration due unto us for the assurance couX^r by the assured " prevent the insurer (except in case of fraud by the assured) {a) from denying, in any question between himself and the assured, that the premium has been paid {b). Ikaa, if the assured sues for a return of premium on the ground that the risk insured against has never been run, the insurer cannot show that the premium was never paid to him, either by the plaintiff or the insurance broker (c). "in any question between the insurer and the assured." Corollary. — As the receipt is an estoppel only between the as- sured and the insurer, the insurance broker, who is the agent {d) both of the assured and the insurer, may sue the assured (e) and {a) Fry v. Bell, 3 Taunt. 492 ; Mavor Wickham, 14 C. B., N. S. at 456. V. Simeon, it. 497 ; 1 Amould, 195 ; (e) Dalzell v. Campbell, 1 Camp. 532. 2 Park, 811. {d) 8hee v. Olarkson, 12 East, 507; (J) 1 Amould, 194 ; Marshall, 233 Lowndes, 69, sect. 81. and 269 ; Lowndes, 69, sects. 80, 115 ; (e) Olive v. Smith, 5 Taunt. 55; Da Oamindo v. Figou, 4 Taunt. 246 ; Power v. Buteher, 10 B. & 0. 329 ; Fower v. Butcher, 10 B. & 0. at 340, Airy v. Blwnd, 1 Park, 811 ; Lowndea, lines 8 to 5 from the bottom ; Xenoa v. 63, sect. 120. 330 MARINE POLICIES. Book IV. Covenant by- broker to pay premium. . be sued by the insurer (/) for a premium wbicb, though acknow- ledged in the policy to have been paid, is actually unpaid (g). § 461. If the policy contains not an acknowledgment of the receipt of the premium but a covenant by the insurance broker to pay it to the insurer, the latter cannot sue the assured for it (A). (/) Jenkins v. Power, 6 M. & S. 282, at 287 ; 2 Park, 816 et seq. (y) For descriptions of the course of business as to tbe payment and re- covery of premiums, see Power v. Butcher, 10 B. & C. at 339 and 340 ; 1 Amould, pp. 192—195; Marshall, Part I., chap. 8, sect. 2 ; Lowndes, sects. 81 and 82. [h) Power v. Butcher, 10 B. & C. 329, at 340 and 341 ; 1 Arnould, 196. ( 331 ) Part VII. Division II. Of Recovering Back the Premium. CHAPTEE I. Of Eecovering back the Premium or Part of it when there is ko express provision in the policy for a Return of a Portion of the Premium. § 462. If no part of tlie subject of insurance has ever been Eetum of pre- at risk (except when, altbougb the risk had terminated before the subject of the insurance was effected, the policv is such that it would have "^^^^^^^ ^^^ ' JT ./ never been at applied to a loss that might- have happened before the insurance risk or a oon- . , ... dition has not was efEected («) ), even if it s not having been at risk is owing to been fulfilled, the fault of the assured, or if a condition, express or implied, which had to be fulfilled before the liability of the insurers arose, has not been fulfilled {h), the assured is entitled to a return of the premium (c), less one-half per cent. ; {d) See Note I. p. 335. Because it would be inequitable that the insurer should receive the price of running a risk if he runs none (e). "if . . . the subject of insurance ha,s" never " been at risk." Therefore, if a vessel is insured at and from a port the assured cannot recover the premium if she was in such a state as to be fit to lie in safety at that port (/), although she was not seaworthy when she sailed {g). (a) 2 Park, 766; 2 Philhps, No. sect. 11; 2 Arnould, 1077. j^82g_ _ («) Stevenson v. Snow, 3 Burr, at (J) 2 Amould, 1063 ; 2 Phillips, No. 1240 ; 1 W. Bl. at 319. ig^^ (/) Cohn\. Davidson, 2 Q. B. D. at (c) Tyrie v. FUtcher, Cowp. at 668 ; 461, Hues 4, 3, and 2 from the bottom. 2 PhiUips, No. 1819. W ^«««« v. Woodmm. See foot- {d) Stevens, 205 and 206 ; Marshall, note [1) of this section. 540 ; 1 Parsons, 506, note 4, chap. xv. 332 Bt)ok IV. MARINE POLICIES. So, if a vessel is insured for twelve months for a premium of a certain amount, but calculated at a certain rate per month, and is lost within the first two months, the assured cannot recover five- sixths, or any other portion of the premium, for the insurance is for the whole period for a gross premium (A). " except when . . . the policy is such that it would have applied to a loss that might ham happened before the insurance was effected." Therefore, where an insurance company had become the insurers of a cargo on a voyage, lost or not lost, and after the cargo had arrived safely, but before the company or the underwriters knew of the arrival, effected a re -insurance with underwriters §a the same cargo and risk, the insurance company was held not entitled to recover the premium («'). "if a condition, express or implied, which had to be fulfilled before the liability of the insurers arose, has not been fulfilled." " a condition express," Thus, if a ship warranted to have been in a certain port on a certain, day, and she was not, the assured is entitled to a return of the premium {k). "a condition implied." So is he if the ship insured by a voyage policy never was sea- worthy (see § 324) at any time during the risk ( I). So is he if a material statement (as, for instance, as to the time of the sailing of the ship) made at the time the agreement for insurance is entered into (see § 322) is, though not fraudulent, incorrect (m). " If no part of the subject of insurance has ever been at risk . . . the assured is entitled to a return of the premium." Corollary!. — The assured cannot rescind tlie agreement and claim a return of the premium by giving the insurers notice of his desire to put an end to the agreement if he does not abandon the voyage {n). (h) Tyrie v. Fletcher, Cowp. 666; [l] Annen v. Woodman, 3 Taunt. Loraine v. Thomlinson, 2 Dougl. 685. 299, cited ante in this section (see foot- That there is no return of premium in note (y) ) ; 2 Phillips, p. 507, No. 1844 ; case of a deviation, see Tait v. Levi, 14 2 Amould, 1065. East, 481. {m) Anderson v. Thornton, 8 Ex. 425. .(«) Bradford v. Symondson, 7 Q. B. (») New York Fire and Marine Insur- D. 456. anee Co. v. Moberts, 4 Duer's Cases in (A) Colby V. Hmler, Moo. & M. 81 ; the Superior Court of the City of New 3 C. & P. 7. York, cited in 1 Parsons, 506. RETURN OF PREMIUM WITHOUT AN EXPRESS PROVISION. 333 Corollanj 77.— If it is one of the terms of the policy, whether ^^^^ '^^■ by an express provision or by usage, that one part of the pre- Chap. I. mium is paid in respect of one part of the risk and the rest in respect of another part of the risk, it is the same thing in legal eif ect as if there were separate policies, each effected for a different premium and insuring against a different risk. Therefore, if the risk in respect of one part of the voyage never attached, the assured is entitled to a return of the part of the premium paid in respect of that part of the risk. A vessel was insured at five guineas per cent, at and from Lon- don to Nova Scotia, warranted to depart -with a vessel named as convoy from Portsmouth for the voyage : she sailed from London, but before she arrived at Portsmouth the convoy had sailed : it was proved that by usage the voyage from London to Portsmouth and that from Portsmouth to Halifax were considered as two distinct voyages. It was therefore held that as the risk in respect of the voyage from Portsmouth to Nova Scotia never attached, the assured was entitled to a return of the premium paid for that voyage (o). § 463. If part only of the subject of insurance has been at Eetumofpart risk, the assured is entitled to a return of a part of the amount ^^ ^-hlvQ of the premium or premiums bearing the same proportion to the P5^' °^7 °* „ whole amount of the premium or premiums as the value of the insuraiioe has part of the subject of insurance which has not been at risk bears to the value of the whole subject of insurance {p). This is called a return of premium for short interest [q). Compare with § 451 (i.). § 464. If the amount of the sum, or the aggregate of the Return of part sums, insured by an open policy, or the aggregate of the sums mium in case insured by two or more open policies which attached (r) at the °n°J'^'^ ^^^^' same time (whatever their dates may be), exceeds the value of the subject of insurance, the assured (whether or not there has been a loss) is entitled to receive from the insurers a part of the premium, or of each of the premiums, bearing the same propor- tion to the whole amount of the premium or each of the pre- miums, as the difference between the value and the amount of the sum insured or the aggregate of the sums insured bears to (o) Stevenson v. Snow, 3 Burr. 1237; {p) 2 Phillips, Noa. 1830 and 1831. 1 W. Bl. 318; explained TyrieY.Flet- [q] 2 Phillips, No. 1835; Lowndes, eher, 2 Cowp. at 669 ; BermmiY. Wood- 34, sect. 36 ; 2 Amould, 1068. bridge, 2 Dougl. at 789 [790] ; Zoraine (r) See " Attaches" in "Words and V. Thomlinson, 2 Dougl. 587 [588]. Expressions." ^^^ MARINE POLICIES. L_ the amount of the sum insured or the aggregate of the sums insured {^). Compare with §§ 441 and 450. Thus, if the aggregate ol the sums insured by two open policies is 1,0002., the premiums on -which amount to 100?.; and the value of the subject of insurance is only loOl., the difference between the value and the aggregate of the sums insured being thus one-fourth of the sums insured, the assured is entitled to a return of one-fourth of such premium, or 261. in the whole («). "two or more open policies which attached at the same time, whatever their dates may he" Thus, if one policy is effected on one day and another on another day on the same subject of insurance, but the risk does not com- mence until a day subsequent to the date of the last policy, the assured, in case of an over insurance {x), is entitled to recover a proportionate amount of the premiums from the insurers by each policy {y). But if policies are eflected on one day to cover a risk then exist- ing, and the aggregate of the sums insured by them does not exceed the value of the subject of insurance, and policies are effected on a subsequent day, the sums insured by which, added to the sums insured by the former policies, exceed the value of the subject of insurance, the assured is entitled to recover a proportionate part of the premiums only from the insurers by the later policies (z). " whether or not there has been a loss." Thus, suppose that the aggregate of the sum insured is 5,0002., that the value of the subject of insurance is 4,000?., that the pre- miums (at ten per cent.) amount to 5002., and that a loss of 4002. has occurred ; the insurers pay 4002. for the loss, and return 1002. as the premiums on 1,0002., the difference between the value and the aggregate of the sums insured (o). " if the amount of the sum, or the aggregate of the sums, insured by an open policy," 8fc. Corollary. — As the assured, in case of a total loss, is entitled under a valued policy to recover the whole amount of the sum insured {see § 442), if the sum insured is equal to or less than if) 2 Park, 766 and 767 ; 2 Amould, last 2 lines, and 171, first line ; 2 Ar- 1067 and 1069 ; Stevens, 200, 203 ; noiild, 1070 ; 1 Parsons, 512, note 1, Lowndes, sect. 36. chap. xv. sect. 2. («) 2 AmoTild, 1068. («) Msk v. Mastermm, 8 M. & W. te) See " Words and Expressions." 165; Lowndes, 36. \y) Fish V. Mastermm, 8 M. & W. (a) Lowndes, p. 34, sect. 36, foot- at 169, last 6 Knes ; 170, first, and note (4). RETURN OF PREMIUM WITHOUT AN EXPRESS PROVISION. 335 the value stated, notwithstanding that the actual value may he ^jJ5^ ^j^- less than the stated value, he is not entitled, in case there is no "hap. I. loss, to a return of any part of the premium, even if the actual value of the subject of insurance by a valued policy was much less than the stated value (5). § 465. If the aggregate of the sums insured by two or more Return in valued policies which attached at the same time (c) exceeds the insurance by- value of the subject of insurance as stated in the policy con- valued poli- taining the highest valuation, the assured (whether or not there ''^'^^• has been a loss (d) ) is entitled to receive from the insurers a return of a part of each of the premiums, bearing the same pro- portion to the whole amount of each of the premiums as the difference between the value stated in the policy containing the highest valuation and the aggregate of the sums insured bears to the aggregate of the sums insured (e). Compare with §§ 441 and 450. § 466. If the assured is entitled to recover a part of the pre- Assured may, , , in case of miums he may recover the sum to which he is entitled from the over insur- different insurers in such proportions as he pleases, so long as premiums^^'^ no insurer is required to pay a greater sum than the premium *™™ ^^?} ^ r •' a i. underwriters he received. See Note II. next page. lie pleases. Thus, suppose that the assured has insured 5,000Z. by one poUoy and 2,000?. by another, that the insurable value of the subject of insuiance is 4,000Z., and that the rate of premiums on each policy is ten per cent. : he may recover the. 300?., the amount of the pre- miums on the difference between the value and the sums insured, from the insurers in such proportions as he pleases, except that the insurers by the policy for 2,0007. cannot be required to pay more than200L (/). Compare with § 441. Note I. See § 462, p. 331. — In the United States of America there is no usage that one half per cent, or any other amount shall, in the absence of any express provision in that behalf in the policy, be deducted from the amount of the premium, if returned {g). According to Pothier the deduction of a half per cent, is not to be made if the agreement becomes void not by the act of the assured but (J) 2 Amould, 1069; 2 Marshall, ((?) See Illustration in preceding 518 and 519 ; Stevens, 200. section, preceding page. («) See Fish v. Maaterman, cited in [e) Lowndes, p. 29, sect. 54 (1st ed.) the preceding section. {/) Lowndes, p. 35, note (m). [g) 1 Parsons, 506, chap. xv. sect. 2. 336 MARINE POLICIES. Book IV. In that case the under- writer who has paid in excess has a right of con- tribution. owing to some cause which he could not prevent, as if the ship insured were burnt hy lightning before the risic commenced { g) ; but according to Emerigonih) there is no such distinction. Note II., see § 466, preceding page. — An insurer, who has been compelled to repay to the assured a greater proportion of the premium received by him than that insurer would have paid if each of the insurers had been called on by the assured to repay him a proportionate part of the premiums paid to them respectively, is entitled to recover from the other insurers hy way of contribution such a sum as will make all the insurers pay in equal proportion. Thus, if in the case supposed in the section referred to the assured has claimed 2507. from the underwriters of the 5,000Z. policy, and 501. from the underwriters of the 2,000Z. policy, then as the repayment of the 3001. should be home by the underwriters under the two policies in the proportions of five and two, that is 214Z. 5s, 9d. and 851. 14s. 3d., the underwriters by the policy for the smaller amount must pay the sum of 351. 14s. 3^. to the underwriters by the other policy («). (y) Marshall, 540. (A) Des Assurances, tome 2, chap, xvi. sect. 6, p. 201 (ed. 1827, Eeunes et Paris) ; Marshall, 676. (i) Lowndes, p. 35, note (x). ( 337 ) Part VII. Div. II. CHAPTER II. Of recoveking back a Portion of the Premium in a certain Event according to a Provision in the Policy. § 467. If a policy on goods provides for the return of a por- Where the tion of the premium if the ship sails with convoy and arrives, buTiioUh? the assured is entitled to a return of that portion if the ship S°°^' arrives, although the goods are damaged or lost («) . § 468. If a policy provides fol* the return of a portion of the where the premium if the ship sails with convoy and arrives, the assured is fro^^the entitled to a return of that portion if the ship sails with convoy convoy. and arrives in the course of the voyage, although she does not arrive in company of the convoy {b), even if, after having been parted from her convoy, she has been captured, and the insurers have had to pay the salvage paid by the owners to the re- captors (c). " arrives in the course of the voyage." Therefore, if the ship arrived in the possession of the enemy at a neutral port, or at her port in the country of the assured, as the property of other persons than the assured after a capture, the assured would not be entitled to a return of the portion of the pre- mium, as she would not have arrived within the meaning of the policy ((^). § 469. If a return of a portion of the preniium is stipulated Where the for on the happening of a certain event, but that event is pre- vented by a [a] Simonds v. Boydell, IDougl. 268. (c) Aquilar v. Rodgers, 7 T. E. 421. (b) Ibid, at 271, lines 15 to 19 ; {(?) iJW. at i22, lineso to 12 of Lord Audlei/ V. J)uf, 2 Bos. & P. 111. Kenyon's judgment. W. Z 338 MARINE POLICIES. !_ vented by a loss not insured against, it seems that the assured insiired ^^® entitled to a return of that portion ((^). against, A policy was effected on goods to continue "until the said ship and goods and merchandize should be arrived at, &c., upon the said ship until she had moored at anchor twenty-four hours in good safety, and upon the goods and merchandize until the same should be there discharged and safely landed," and there were the following clauses : — " To return seven per cent, of the premium for ari'ival," and " Warranted free from capture or seizure in the ship's port of discharge." The ship and goods arrived at the Prussian port of discharge, but — more than twenty-four hours after the ship had moored at anchor — the cargo, before it was landed, was seized by Prussian soldiers; and was afterwards con- demned as prohibited goods for the benefit of the Prussian govern- ment. It was held that the assured was entitled to recover the seven per cent. (e). Bayley, J., said : " The ship has in fact reached that which was her port of discharge, and the goods have ultimately reached the place of their destination, though not for the benefit of the assured in the eyent : both the ship and the goods, however, have arrived safely for the purpose of exonerating the underwriters from all risks of the voyage, to answer which they had received a large portion of the premium, part of which they engaged to return for arrival: an arrival has taken place, and they have had the benefit of it, but they say that because some persons have taken from the assured the goods after arrival, though the underwriters are not to be at the loss, yet they are to keep the whole premium : this does not seem to me to be the fair meaning of the con- tract" (/). Lord EUenborough (j'), however, thought it doubtful whether there was not an " arrival" within the strict meaning of that word in the clause for return of a portion of the premium, the question being whether the word had reference to the arrival of the ship, in which case there was an arrival, or to the goods being " safely landed," in which case there was no arrival, although the non-arrival was, as regarded the insurers, the same thing as an arrival. But in an earlier case [h) it was decided that the assured was not entitled to a return of a portion of the freight "under a stipulation for return on arrival, though the arrival was prevented by a cap- ture which was not insured against, which made the case as good a one for the underwriters as if the vessel had arrived" (t). This point, however, does not appear to have been taken in argument. (d) 2 PhilKps, No. 1841. (y) 15 East, at 305. («) BalgUish v. Broohe, 15 East, 295. [h) Kellner v. Le Mesurier, i East, {/) 15 East, at 308 : 1 Arnould (1st 396, oitedLpost, ^ 471. ed.), 1235 and 1236, («) 2 PhiUips, p. 505, No. 1841. EETUEN" OF PREMIUM ACCORDING TC? EXPRESS PROVISION. 339 § 470. If a policy provides tliat a portion of the premium is Part VII. to be returned if the ship sails with convoy and arrives, the chap. il. assured, if she has arrived, is entitled to recover that portion if ' there has been a sailing which- would have been a compliance with a condition as to sailing with convoy if the policy had con- tained such a condition (/r). A vessel was insured "at and from Oporto to Lynn, witli liberty to touch and stay at any ports on the coast of Portugal to join con- voy, particularly at Lisbon, at a premium of 12 guineas per cent., to return Ql. if the Oeres sail with convoy from the coast of Portugal and arrive : " the coast of Portugal being infested with privateers, the admiral on the Lisbon station sent two vessels of war to Oporto to convoy the shipping there to Lisbon, whence the whole fleet was to sail for England : the Oporto shipping, in proceeding to Lisbon, being dispersed, lost the convoy, and the Oeres, then judging for the best, ran for England and arrived : it was argued that the pro- vision as to a return of premium related to her final departure "from the coast of Portugal," but it was held that it required merely a sailing with convoy from some part of the coast of Por- tugal, which there had been [l). As to conditions as to sailing ivith convoy, see §§ 351 — 353. § 471. If a policy provides that a portion of the premium is Where there to be returned if the ship sails with convoy for an intermediate for return of port, and a further portion if with convoy from the intermediate ^arX^rates. port to the final port and arrives, the assured is not entitled to a return of the first-mentioned portion if she sails with convoy for and arrives at the intermediate port, but is captured before arriving at the final port. The words " and arrives" govern all the stipulations as to a return of premium ; for it would be unreasonable to suppose that it was in- tended that the insurers should return a portion of the premium for a partial convoy from which they had derived no benefit whatever, having to pay (m) for the loss by capture (n). § 472. If a policy provides that a portion of the premium is Provision for to be returned if the vessel is laid up, the assured is not entitled vessel is laid up. (/c) Audley v. Duff, 2 Bos. & P. at have had to pay for other captures, 115, hues 20 to 26, and 116. this fact does not affect the argument. [l] Ihid. at 111. See i East, at 400, lines 16 to 17. (m) Under the actual circumstances [n) Kellner v. Le Mesurier, i East, the insurers had not to pay for the loss at 396. See, however, 2 PhilKpa, No. by capture, as the capture was by a 1841 ; Leevin v. Cormac, 4 Taunt. 482, British ship of war ; hut as they would at 486. z2 840 Book IV. MARINE POLICIES. to a return of that portion if she is merely temporarily laid up and is afterwards employed, At all events, if there is anything in the context favouring such an interpretation. A policy by which a ship was insured for a twelvemonth con- tained a provision that a part of the premium should be returned, if the ship was sold or laid up, for every uucommenoed month : she was some time after the twelvemonth had commenced laid up for several months for the purpose of repair, but was again employed within the term. It was held that the words " laid up," coupled as they were with the word " sold," meant a laying up of the ship without any intention of employing her again during the twelvemonth (p). APPENDIX. Of the Right to recover or retain the Premiums in the case of Fraud, or where the Insurance is illegal, or, although not illegal, void, or has been effected without authority. Although the consideration of the effect of fraud or illegality on the rights of the parties to an agreement does not fall within the scope of a work on Interpretation, yet as it may be convenient to the reader that this chapter should contain a complete statem,ent of the circumstances under which the assured has a right to a return of the premium, the following paragraphs have been appended to Division II. Fraud. (I.) The assured cannot recover (q), nor can the insurer retain (r), the premium if the party seeking to recover or retain has by his fraud induced the other party to enter into the agreement for insurance, provided that the party defrauded has, after he became aware of the fraud, done nothing showing that he elected to affirm the agreement. (p) Eunter v. Wright, 8 L. J. (Old 525 (8tli ed.), chap. xv. sect. 1 (3). Ser.), K. B. 259 ; 5 Mann. & Ey. 611 ; (r) Zkiffell v. Wilson, 1 Camp. 400 ; 10 B. & C. 714. 2 Amoiild, 1064 ; Carter v. Boehm, 3 {q) Feise v. Farhinson, 4 Taunt, at Burr, at 1900 ; Marshall, 522 (8th ed.), 641, 1st line of the judgment ; Ander- chap. xv. sect. 1 (3). ion T, Thornton, 8 Ex. 420 ; Marshall, RETURN OR RETAINEIt OF PREMIUMS IN CASE OP FRAUD, ETC. 341 and has be/ore action (s) repudiated the agreement, and not by his ^^^ ^■^' delay in repudiating it, after he became aware of the fraud, preju- ^^^V- '^'^- diced the position of the other party {t). (II.) If the insurance is illegal or void, Where the insurance is As for example, if the insurance is on a voyage from a port belong- illegal or void. ing to an enemy of the United Kingdom, or the assured has no interest in the subject of insurance («), the assured may recover the premium, in case he knew at the time when he entered into tJie agreement tliat it was illegal or void, if lie repudiated the agreement (cc) before the risk commenced (y) and before action [x) ; Or in case he did not know, and was not bound to know (z), at the time %ohen he entered into the agreement that it was illegal, if he did nothing after he became aioare of the illegality showing that he elected to affirm the agreement [a), and before action, even although after the risk had commenced {b), repudiated the agreement (c) ; Provided {in either case) the policy does not cover losses which might have happened before the event which made the agreement illegal [d). " provided the policy does not cover losses which might have happened before the event which made the agreement illegal." Thus, if the agreement for insurance is illegal because before it was made the sovereign of the country in which is situated the port from which the voyage insured was to begin had (though the fact was not (s) Palyart v. Zeehu, 6 M. & S. 290. at 295, last 4 Hues. (i) Morrison v. Universal Marine In- (s) As to a foreigner's ignorance of surance Co., L. R., 8 Ex. 197 (Ex. Ch.). the law of England being no answer (m) M'Culloch T. Royal Exchange As- if the agreement is illegal, see Morck surance Co., 3 Camp. 406. v. Ahel, 3 B. & P. 35, at 38, lines 21 [x) Palyart r. Lechie, 6 M. & S. 290. to 26, and 39, lines 4 to 8 of Chamhre, (y) Lowry v. Bourdieu, 2 Dougl. at J.'s judgment. 471, per BuUer, J.; Tappenden v. (a) Morrison y . The Vniversal Marine Randall, 2 B. & P. at 471, per Heath, Insurance Co., L. E., 8 Ex. 197 (Ex. J., and Eooke, J. ; Auhert v. Walsh, Ch.). 3 Taunt. 275 [276], at 282 [283] ; (M Oom v. Bruce, 12 East, 225 ; Morch V. Alel, 3 B. & P. at 38, last Eentig v. Staniforth, i Camp. 270 ; 5 line, and 39, first 5 lines ; Sastelow v. M. & S. 122. Jackson, 8 B-. & C. at 224, per Bayley, (c) Falyart v. LecTcie, 6 M. & S. 290. J., and 226, per Littledale, J.; Bone [d] Bradford v. Symondson, 7 Q. B. V. Eckless, 5 H. & N. at 928, per Bram- D. 456 ; Eentig r. Staniforth, 5 M. & -well, B. : Hampden v. Walsh, 1 Q. B. S. at 124, lines 6 to 9. D. 189 ; TayUr v. Dowers, 1 Q. B. D. MARINE POLICIES. hnown to either assured or insurer) commenced hostilities against the United Kingdom,, yet if the voyage had begun before hostilities had been commenced, and the insurance was on the subject ofinswrance " lost or not lost," the asswred cannot recover the premium, because he could have recovered for a loss if it had happened before the commence- ment of hostilities (/). Insurance effected on behalf of another with- out his authority. (III.) A person ivlio has effected an insurance on behalf of, but with- out authority from, another person who has an interest in the subject of insurance, cannot (^unless the insurer has resisted payment for a loss on the ground that the assumed principal had not previously autho- rized or subsequently ratified the insurance (g) ) recover the premium, although that other person has disclaimed the insurance (h), ^Because if he had ratified the insurance, even after a loss, the insurers would have been liable{i), and they, therefore, have incurred a risk. Where sue- (IV.) If the insurer has successfully resisted payment for a loss on the cessful defence on the ground that the assured had no interest in the subject of the insur- wa^of*inte- <'''*ce(Z;), or {in the ease where the insurance is effected by an agent) (/) Oom v. Bruce, 12 East, at 227, first 6 lines of Le Blanc, J.'s judg- ment. Assuming that the facts are correctly stated in the report, it would seem that the assured ought not to have recovered the premium, which it was held that he could do. Le Blanc, J. , admitted that the underwriter would - have been entitled to retain the pre- mium i£ he could "have shown that the policy would have attached on any loss to the cargo on board the lighters on their way to the ship before the commencement of hostilities." If the policy had been in the common form it would not have covered a loss on board the lighters, but it is stated to have been " on goods on board the ship Elbe, lost or not lost, at and from St. Petersburgh to London, including the risk of craft and lighters from St. Petersburgh to Cronstadt from shore to ship." (As to the eifeot of such a clause, see Hurry v. Royal Exchange Assurance Co., 2 B. & P. at 430, lines 3 to 5 of the report ; and 435, lines 4 and 5 ; and 2 Arnould, 377 and 378.) Hostilities were commenced by the Eussian Grovemment on -the 16th of October, the vessel sailed from " the Russian port" on the day following, and the policy was effected on the 20th of November [qu. October). It may be assumed from the goods being on board that "the Russian port" was Cronstadt, and from Le Blanc, J.'s judgment that they were taken in lighters to Cronstadt, while, as the vessel " was nineteen days in load- ing," the greater part, at all events, of the cargo must have been " on board the lighters on their way to the ship before the commencement of hostilities." [g) See next section. [h] 2 PhiUips, p. 490, No. 1827 ; 1 Parsons, 510, chap. xv. sect. 2. [i) Hagedm-n v. Oliverson, 2 M. & S. 485 ; Williams v. Worth China Insur- ance Co., 1 C. P. Div. 757. {k) South Y. Thompson, 11 East, 428; M'Culloch V. Soyal JExchange Assurance Co., 3 Camp, at 409, last 3 lines, and 410, first 3 lines. RETURN OR RETAINER OF PREMIUMS IN CASE OF FRAUD, ETC. 343 on the ground that his assumed principal had not p)remously autho- dw* n^' rized or subsequently ratified the insurance (l), the assured in the C'^^P- "• first instance, and the agent in the latter, is entitled to recover rest or of the premium. Zut^^ty to effect insurance. Observations upon Lowry v. BoiiTdieu(m), Andree v. Fletcher {n), Routh v. Thompson (o), and M'Oullooh V. Eoyal Exchange Assurance Company {p). In Andree v. Fletcter the assured was held entitled to recover neither the sum iiisured [q] nor the premium (o), because the policy was a re-insurance, policies of re-insurance being prohibited by an enactment then in force (r). The Court said that the case could not be distinguished from Lowry v. Bourdieu(?i), whereit was held that the assured, who sued for a return of the premium on the ground that the agreement for insurance was void as they had no interest in the subject of insurance, could not recover, because they had " waited till the risk {such as it was, not, indeed, founded in law, but resting on the honour of the defendant) had been completely run " (s). In Eouth V. Tliompsoii {p) the insurance was on behalf of the captors of a Banish vessel, and it was held that the assured could not recover the sum insured because the captors, having merely an expectation that the Crown might make them a grant of the vessel, had no insurable interest in it, but "as there was no fraud in the captors in effecting the policy ; as there was no illegality in the voyage or insurance ; and as the resistance of the underwriters to the claim, proceeded upon the ground that there was no risk [t], the plaintiff was entitled to his premium " (m). In M'Oulloch V. Eoyal Exchange Assurance Company (a)), Lord Ellen- borough said : — " In Eouth. i;. Thompson a loss had happened, and an action [I) Foster •V. United States Insurance case of Josier v. United States Insurance Co., 11 Pickering's Massachussets Re- Co., the underwriters set up the want ports, 85, cited in 2 Phillips, p. of authority, and urge that there is no 490, No. 1827. This decision is im- contract on that ground, it is obvious pugned by Phillips, hut defended in that there is no reason why the agent 1 Parsons, 510, note 3 (ed. of 1868), should not recover the premium." chap. XV. sect. 2, as follows: "The [m) 2 Dougl. 468. principle upon which the cases cited («) 3 T. R. 266. by Phillips must rest seems to be (o) 11 Bast, 428. that of estoppel. As the agent does [p) 3 Camp. 406. not assume to contract for himself but ( "contents unknown," effect of, 186, 188. statement as to quantity not conclusive evidence against ship- owner, 187. " not responsible for weight," when will not protect the master, 189. whether it applies to a statement of weight, pp. 113, 114. GOODS (SALE OF). See Sale of Goods. HOLIDAYS. See Lying-Dats. IMPLIED TEEM, meaning of, p. 356. when time or price not fixed by the agreement a reasonable time or price is implied, 5, 104, 123. 382 INDEX. IN TUEN. See Loadin-g akd Unioading Caego. INSUEANCE. See Policies. INTEEPEETATION, general principles of, 1 — 9. what evidence is admissible in, 10 — 15. by whom to be determined, 16 — 18. JUEY, what the jury may determine, 17, 18. may say what is the meaning of an expression fixing the time of payment, 139. KNOWLEDGE OE PAETIE8 TO AN AGEEEMENT. whether it affects the interpretation of the agreement, p. 138, Note I. LANDED, UNTIL. An insurance on goods, " including all risk of craft until the goods are discharged and safely landed," does not cover the risk while the goods are waiting on lighters at the port of delivery for transhipment into an export vessel. Houlder Brothers v. Merchant Marine Insurance Co., 17 Q. B. D. 354 (0. A.)* LAWFUL TEADE. See Conditions (in a Policy). LAY-DAYS or LAYING-DAYS. See Lyinq-Days. LEAKAGE. See Exceptions, &o. LEAVE, meaning of "to leave" (in a charter-party), p. 357. LIEN EOE DEAD PEEIGHT. See Dead Fkeight. LIEN EOE DEMUEEAGE. See Demtjeeage. LIEN EOE PEEIGHT. when the shipowner has no lien, 284, 286, 287. when he has none against indorsee of biU. of lading, 285. LIGHTEES. See Conditions (in a Policy) ; Landed, until. LIQUIDATED DAMAGES, meaning of, p. 357. whether a sum named is liquidated damages or a penalty, 27, 28. LOADING AND UNLOADING CAEGO, as to the manner in which the cargo is to be loaded, 191 — 196. in which it is to be unloaded, 197 — 199. the duty of loading the cargo rests on the shipowner, 191. provisions as to the charterer employing stevedores, 192, 193. " to load" or " to deliver in the usual and customary manner," meaning of, 194, 198. * Decided since this work went to Press. INDEX. 383 LOADING AND UNLOADING GAB,QO— continued. shipowner must provide ballast, 195. which may he merchandise, 196. delivery to he according to the usage of the port, 197. ease where Consignee was not ready to take delivery, 199. provisions as to the place of loading and unloading, 200 — 2i4. " as near thereto as she may safely get" meaning of, 201 — 207. as to the charterer's obligation to name a port, 209 — 213. charterer is liable if he detains the vessel beyond the period named, 215. ^ meaning of "to be loaded with usual dispatch," 216. all dispatch according to the custom of the port, 217. "in turn," meaning of, 218, if no time mentioned, reasonable dispatch must be used in loading and discharging, 220, 221. as to the time named as that within which the cargo must be loaded or unloaded, see Lying-Days. " from the loading " when risk commences. See Policies. LYING-DAYS. See also Loading and Unloading Cargo ; Demtjr- B.AGE. demurrage payable although the charterer has not been in default, 222. when the lying-days commence, 223, 224. a fraction of a day counts, 226. days mean consecutive days, 225. Sundays and holidays are included, 225. provision that days of detention or prevention are not to be reckoned as lying-days, effect of, 228 — 230. demurrage limited to delay at an intermediate port, 231. or at port of discharge, 232. other special cases as to demurrage, 233, 234. MAEKET VALUE. See Pbice of Goods. MEMOEANDUM, THE See Amount Eecoveeable, &o. MEEOHANTABLE. See Sale oe Goods. MONTHS, means calendar months, 137. NEUTEALITY. See Conditions ; Conditions* (in a Policy). OBSEEVATIONS on certain Judgments, Judicial Dicta, and Opinions of Text- writers, on the doctrine supposed to have been laid down in Yates v. Pi/m, pp. 56 — 58. on Brett, J.'s dictum that the knowledge of the parties is im- material in questions of interpretation. Note I. p. 234. on Willes, J.'s dictum that Gilkeson v. Middleton, and Kirchner V. Venus, are reconcilable, p. 177. 384 .INDEX. O'BS'ERYATIO^S—contmued. on Chancellor Kent's criticism of tke judgment of Chancellor "Walworth as to the meaning of "thieves," in a poUoy, pp. 154, 155. . on the confining " demurrage," and " dead freight," to claims for liquidated damages, pp. 181 — 187. on Small r. Moates, pp. 192 — 198. on observations of North, J., as to a vessel having to unload "within the ambit of the port," pp. 125, 126. on the fiction of imputing fraud (in discussing the rights of the assured) where none exists, pp. 201, 202, xiii, xiv. on reasons suggested in Arnould for the decision in Cruichshank V. Janson, p. 247. on decision in O'Reilly v. Royal Exchange Assurance, as to deviation to avoid a peril not insured against, p. 265. on dictum of Abbott, C. J., in Lawrence v. Aberdeen, as to death of animals from want of food arising from protracted voyage being a loss by perils of the sea, p. 304. on dicta that cumulative losses beyond the sum assured could be recovered independently of the suing and labouring clause, pp. 319—322. on statements in Arnould as to the amount recoverable, pp. 308, 309. on the decision in Oom v. Bruce, that the premium was recover- able, p. 342, footnote (/). on Phillips's disapproval of the decision in Foster v. United States Insurance Co., p. 343, footnote {I). on Lovering v. Bourdieu and other cases as to recovering back premium where the insurance is illegal or void, pp. 343, 345. OPEN POLICIES. See Amount Eecovbeablb. OVEE-INSUEANCE. See Amoxtnt Eeooverablb, &c. ; Peemium. PAETIOULAE AVEEAGE, meaning of, p. 360. PENALTY. See Liqtjidated Damages. PEEEOEMANCE OF AN AGEEEMENT. See also Exceptions. when excused, 21, 235, p. 142, Note I. what circumstances do not excuse non-performance of a charter- party or bill of lading, pp. 141, 142. PEEILS excepted either absolutely, or under certain limita- tions from the Insurance, interpretation of clauses containing exceptions, 426, 427. of " warranted free from average unless general," 428. of "unless the ship be stranded," 429 — 434. of " warranted free from mortality," 434. of " warranted free of seizure in the ship's port of dis- charge," 435, 436. PEEILS INSUEED AGAINST. See also Collision; General Average ; Salvage ; Siting and Labouring Clause. for what losses insurers are not liable, 394, 395, 397, 413. INDEX. 385 PEEILS INSUEED AGAINST— contmuod. for what losses they are, 396, 414. when for loss of freight, 397, 398. perils of the seas, 399. fire, 400. pirates, rovers, and thieves, 401, 402, 403. jettison, 404, 405. stranding, 415, 429 — 433. PEEILS OF THE SEAS (in Charter-parties and Bills of Lading). See Exceptions, &c. PIEATES. See Exceptions, &c. ; Perils insubed against. POLICIES. See also Amount Eecoteeable ; Conditions (in a Policy); Deviation; Evidence; General Average; Pre- mium; Perils insured against ; Slip. meaning of "policy," p. 360. the subject of insurance, description of, 300 — 321. clause describing, is narrowed by the words written in the margin, &e., 300. where mistake in description of, is immaterial, 301. nature of interest need not be described, 302. description of, as " ship," 303. "goods," 304, 305, 306,316 321. See Eespondentia. " profits," 307, 308. freight must be expressly insured, 309. what an insurance of freight covers, 310 — 313. description of subject of insurance as a share in a company, 314. insurance on goods to be declared, 319, and see Declared, to be, in Appendix, p. 352. insurance on ships to be declared, 320. against liabilities under Passengers Acts, 317, 318. the risk, commencement of, on goods, 355 — 365, " from the loading," 355—358. "from a place, port, or ports," 359—365. on freight, 366. goods when covered during land transit, 375. time policies, upon goods to be carried in vessels, when not exhausted, 321. " open policies," 440. " valued policies," 437 — 439. See Appendix, pp. 359 and 366. POET, according to the custom of. See Loading and Unloading Cargo. in port, at and from a port, safe port. See Conditions ; Con- ditions (in a Policj'). POSSESSION, right to possess only on payment of price, 59, p. 45. PEEMIUM, receipt for, conclusive between insurer and assured, 460. not between insurance broker and assured, 460, Corollary. w. ^ ^ ;i86 INDEX. 'PWEMIUM.— continued. effect of covenant to pay, 461. recovering back the premium where there is no express pro- vision in the policy, 462 — 466. in case of fraud or illegality or where the insurance was effected without authority, pp. 340 — 343. when no part of the subject of insurance has been at risk, 462. recovering part, when only part of the subject of insurance has been at risk, 463. in case of over-insurance, 464 — 466. according to a provision in the policy as to convoy, 467 — 471. vessel being laid up, 472. PEICE or GOODS. See also Usage. if none mentioned a reasonable price is implied, 120. evidence that words as to the price have a particular meaning in the business, 122. meaning of market value, 126. price to be taken from a document, 123. fixed by valuers, 124. price, how fixed, when goods have perished before they are weighed or measured, 127. time of payment, how fixed, when the goods have perished before act done, which was to be done, with regard to them, 140. when the buyer is liable for price although goods have perished while in the seller's possession, 129. when he is not, 130. buyer having option to return not liable for price if he returns the goods within the stipulated period, 132. he is not liable if they perish within that period, 133. payment of price is concurrent with the delivery, 135. the day when the agreement was made is excluded in the com- putation of the time for payment of the price, 138. PEINOIPAL. See also Agent. may generally sue and be sued on an agreement made by his agent, 29. but not if resident abroad, 30. nor if the agreement states that the agent makes it on his own account, 31. when his right to sue, and liability to be sued, upon an agree- ment made by his agent ceases, pp. 28 — 30. PEOPEETY, when property in goods sold does not pass, 52, 54, 60. when it passes, 53, 65, 56, 58. QTTEEN'S ENEMIES. See Exceptions, &c. ; Perils insxibed AGAINST. EATS. See Exceptions, &c. EEADY BEETH. See Loading and Unloading Cakgo. EEPEESENTATION. See also Conditions. definition of, 40. has a special meaning in marine and fire policies, pp. 36, 199. INDEX. 387 BEP:RE8mTATI0N— continued. and in some non-mercantile agreements, p. 36. a fraudulent representation gives a cause of action, pp. 36, 37. statement as to quality of goods may be a representation, 80. when a statement as to number or quantity is a representation, a statement in a charter-party of the capacity of the ship is a representation, 152. when a statement of the amount of the cargo is a representa- tion, 153. representations in poKcies are divided into affirmative and promissory, p. 199. what expressions are in this work used in lieu of representation (in policies), p. 202! RESPONDENTIA, meaning of, p. 361. in loan on respondentia or bottomry the interest of the assured must be stated, 302. observation upon this rule, pp. 219 — 221. EESTEAINT OF EULEES. See Exceptions, &c. EOADS, dangers of. See Exceptions, &c. EOBBEES. See Exceptions, &o. EUNNING DOWN CLAUSE. See Collision (in Insurance). SAEE POET. See Loading and Unloading Cargo. SAILING-. See Conditions ; Conditions (in a Policy). SALE OF GOODS. See also Cargo ; Property ; Possession ; Price of Goods ; Usage ; Warranty. conditions or warranties implied on, that goods (on sale of goods not identified) shall answer the description, 61. (on sale of identified goods) that they are of the kind described, 69. that they shall be merchantable, 63, 71. that if the seller is a manufacturer they shall be of his manufacture, 68. that they exist, 69. that the seller has a title to the goods sold, 91 — 93. conditions or warranties not implied, (on sale of goods which the buyer may inspect) that they are merchantable, 72. when goods not answering description, &c., must be returned, 84, 85. quantity or number of the goods sold, 86 — 90. the buyer is not bound to accept a greater or less quantity than that sold, 102. or to separate the goods bought from others, 115. is bound to accept a parcel shipped in time although other parcels are not, 103. seller excused from delivering part of the goods is excused altogether, 101. cc2 388 INDEX. SALE OF GOODS— conimued. effect of failure to deliver an instalment of the goods or pay an instalment of the price, pp. 69, 70. the time when or within which goods must be delivered, 104 —113. the mode of delivery, 114. the place of delivery, 116 — 119. SALVAGE, caused by a peril insured against is recoverable, 421. not recoverable under suing and labouring clause, p. 296, n. (c). SAMPLE. See Waeeanty. " SAY ABOUT ;" " SAY FEOM." See also Eepeesentation. as to the percentage, 89. SEAWOETHINESS. See Vessel. 8EIZUEE. See Oaptuee. SHIP. meaning of, p. 364. includes boats, tackle, &c., 303, p. 364. See Vessel. SLIP. meaning of, p. 364. is considered the contract, p. 204. matters becoming tnown to the assured after the slip is signed need not be disclosed, 322, Corvllary. STEAMSHIP. See Vessel. STEVEDOEES. See Loading and Unloading Oaego. SUBJECT OF INSUEANCE. See Policies. SUING AND LABOUEING CLAUSE, what expenses are recoverable under, 417. where labour not done by the servants of the assured, 418. expenses under, not to be added to make up the percentage of loss, 458. SUNDAYS. See Lying-Days. THIEVES. See Exceptions, &c. TIME OF PAYMENT. See Price of Goods. TITLE. seller's title to goods. See Sale of Goods. TO AEEIVE. sale of goods to arrive, 94 — 99 TUEN (IN). See Loading and Unloading Caego, INDEX. ,389 UNDEEWEITEE. meaning of, and why so oaUed, p. 366. UNTIL LANDED. See Landed, . USAGE. See also Evidence. evidence of usage to add a term to an agreement is admissible, 13. usage that an agent not disclosing his principal shall be liable, 37. a warranty is implied, 77. claims for breach of warranty shall be made within a certain period, 82. goods not answering warranty must be returned within a certain period, 84, p. 56. to declare name of vessel to broker, 100, Corollary. that seller need not deliver until time for payment, 105. pays warehouse rent for a certain period, 128. USUAL AND CUSTOMAEY MANNEE; USUAL DISPATCH. See Loading amj Unloading Cargo. VALUED POLICY, meaning of, p. 366. See Amount Eecoverablb. VESSEL, when seller must inform the buyer of the name of the vessel by which the goods are shipped, 100. statements in a charter-party, as to the class of the vessel, 154 ; place where she is lying, 155 ; time when she sailed, 156 ; win be loaded, 157 ; sail, 158; are conditions, description of the vessel as a steamship, effect of, 166. a statement as to her being seaworthy is a condition that she is so at the date of the charter-party, 159. implied undertaking that the vessel shall be seaworthy, 161. See also Conditions (in a Policy). when she sails after being loaded, 169. no implied undertaking to repair the vessel, 173. that the vessel shall be free from sus- picion of unfitness to carry cargo, 174. VOYAGE (in Charter-parties), during the. See Exceptions. VOYAGE (in Insurance), deviation from usual course of. See Deviation. WAEEANTY— WAEEANTIES. See also Conditions ; Sale of Goods; Usage. definition of, 42. as to seller's belief as to quality of goods, 73. what words will or will not exclude a warranty of quality of goods, 74. evidence of oral warranty on sale inadmissible, 76. usage as to warranty admissible, 77. 390 INDEX. WARRANTY— WAH^ANTTES—cofitinued. warranty not to be extended by implication, 78. " warranted" need not be used, 79. statement as to quality ol goods not necessarily a warranty, 80. " on the sample of " A., is a warranty that the goods are equal to the sample, 81. meaning of " warranted sound for a month," 83. whether a provision which would otherwise be a warranty will be held a condition because preceded by "on condition of," 160. undertakings as to vessel's sailing with aU convenient speed, with the first favourable wind, &c., are warranties merely, 164. warranty as to convoy. See CoisrvoT. implied warranty that there shall be no unusual delay. See Deviation. that if the voyage is interrupted the ship- owner will do his best for the goods owner, 170. no impKed warranty as to character of dead weight, 175. in questions arising upon charter-parties and bills of lading, warranty is often used as synonymous with "condition," pp. 37, 202. better to use the word " condition," pp. 37, 38, 202, 203. WEIGHT, not responsible for. See Goods. WITHOUT PEEJUDICE TO THE CHAETEE-PAETY, meaning of, 293, Corollary, p. 191. WRITINGS, purporting to be agreements may not be agreements, because not intended to bind the persons who apparently are parties to them, 23. or because they were not to operate until something had been done, 24. or because there was no agreement as to the subject- matter, 25. or because there is a material difference between two writings, 26. LONDON : PRINTED EY C. F. EOWOETH, OEEiT NEW STEEET, FETTEE LANE, B.C.