Usage admis sible to ex for the sale of a cargo of Indian corn which had been shipped abroad contained an express warranty that it had been shipped "in a good and merchantable condition," it was held to be a misdirection to leave to the jury the question whether, at the time of the shipment, it was in a good and merchantable condition for a foreign voyage (p). Charter-parties may, like other mercantile contracts, be explain contract. plained but not contradicted, by evidence of the usage of the particular trade to which the contract relates (9). Measurement and stowage of cargo. Thus, where the contract was to pay so much freight for cotton, to be calculated at a certain number of feet per ton, evidence was admitted to show that there was an usage in the trade to pay according to the measurement taken at the shipping port before the goods were loaded (r). So, evidence of this kind is admissible to show that a particular mode of stowing the cargo is Full and com- proper in a certain trade (s). In a case where the charter-party plete cargo. provided that "a full and complete cargo of sugar and molasses" should be laden on board the ship at Trinidad, it was held that evidence was admissible to show that a custom existed at that place to load sugar and molasses in puncheons, and consequently, that a cargo loaded in this way was a sufficient compliance with the contract, although in this mode of packing there was necessarily some diminution of the cargo by reason of broken stowage. In the judgment in this case, the principle laid down in the earlier decisions, namely, that the evidence in order to be admissible must explain the contract, and not contradict or control it, was clearly recognized (†). It must however be recollected, that the character and description of evidence admissible in these cases is the fact of a general usage and practice prevailing in the particular trade or business, (p) Dickson v. Zizinia, 10 C. B. 602. Chap. VII. INSURANCE. (r) Bottomley v. Forbes, 5 B. N. C. 121; see also Benson v. Schneider, 7 Taunt. 271; Haynes v. Holliday, 7 Bing. 587; The Russian Steam Navigation Company v. Silva, 13 C. B., N. S. 610; Buckle v. Knoop, L. R., 2 Ex. 125, 333. (s) Gould v. Oliver, 2 M. & Gr. 208; see Petrocochino v. Bott, L. R., 9 C. P. 355. See post, p. 313, n. (v). (t) Cuthbert v. Cumming, 10 Exch. 809. This judgment was affirmed in the Exchequer Chamber, 11 Exch. 405. deliver. not the judgment and opinion of the witnesses (u). Where a Turn to question arose as to the meaning of the words, "in turn to deliver" at the port of Algiers, it was held that the testimony of three or four witnesses, speaking to a course of business that had grown up within only about five years, and with reference to charter-parties differing in language from the charter-party in question, was not sufficient to establish such a general usage as to enable the Court to construe these words in a particular way (v). Where it was required by a charter-party that a ship should Regular turns of loading. proceed to Newcastle and be ready to take on board a cargo, consisting partly of coals and partly of coke, " in regular turns of loading." It appeared that at Newcastle the loading of coal was by act of Parliament regulated by "turns," but that there was no statutory regulation as to the loading of coke. An action having been brought upon the charter-party in the County Court for delay in loading the coke, it was held by the Court of Common Pleas that the meaning of the contract was that the coal should be loaded according to the provisions of the statute, and that evidence ought to have been admitted to show that there was a practice or usage at Newcastle to load coke in a similar manner (x). In an action (y) by a shipowner against the charterer for demur (u) Cunningham v. Fonblanque, 6 C. & P. 44; Lewis v. Marshall, 7 M. & Gr. 729. (v) Robertson v. Jackson, 2 C. B. 413. See as to the meaning of the expression "loading in turn," Taylor v. Clay, 9 Q. B. 713; and Lawson v. Burness, 1 H. & C. 396. See as to the meaning of "load in the usual and customary manner," Tapscott v. Balfour, L. R., 8 C. P. 46; and as to the meaning of 66 to be loaded with the usual despatch of the port," Ashcroft v. The Crow Company, L. R., 9 Q. B. 540. And see generally as to stipulations respecting loading cargo, post, p. 312. As to the meaning of a clause in a charter-party that cargo should be "discharged with all despatch according to the custom of the port," see Postlethwaite v. Freeland, 4 Ex. D. 155, and Dom. Proc. 1880. (x) Leidmann v. Schultz, 14 C. B. 38. But in a subsequent case where it was agreed by the charter-party that the ship should "load with all possible despatch, in the customary manner, a full and complete cargo of coke, to be loaded in regular turn;" the Judge at the trial held that evidence was not admissible to show that, according to (y) Steam Company Norden v. Demp- Commencement of demurrage days. Discount. As near as get. rage, it appeared that the cargo consisted of railway sleepers loaded at Riga, under a charter-party made there, by which it was agreed that the ship should carry a cargo of timber to Liverpool. By the charter-party it was provided, that the cargo should be loaded and discharged in ten days, and that for every day beyond demurrage should be paid. It was held that evidence was admissible on behalf of the defendant, notwithstanding that the plaintiff was a foreigner, to establish a custom at the port of Liverpool, that in the case of timber ships the lay days commenced only from the mooring of the vessel at the quay where by the regulations she was allowed to discharge. In one case, goods were shipped at New Orleans, and by the terms of the bill of lading they were deliverable at Liverpool to order or assigns, "he or they paying freight for the said goods five-eighths of a penny sterling per pound, with five per cent. primage and average accustomed." It was admitted, that by a custom prevailing at Liverpool in the trade in question three months' interest or discount was deducted from freights payable under bills of lading on goods coming from New Orleans, but it was contended by the shipowner that he was entitled to the full freight, the custom being inconsistent with the written contract. It was, however, held by the Court of Queen's Bench, that the custom was not repugnant to the written contract, but might well be annexed to the terms of the bill of lading (a). In a recent case, where by a charter-party a vessel was to she can safely deliver goods at one of certain ports, 66 or as near thereto as she can safely get," and she was ordered to Hamburg, and the draught of the vessel with the cargo on board was too great to allow her to get up the river to Hamburg, and a portion of (a) Browne v. Byrne, 3 E. & B. 702. It may be questioned whether, consis tently with the principles sanctioned by the decisions on this subject, the evidence was not in this case inadmissible. See the observations on this case in Cuthbert v. Cumming, 10 Exch. 815; and Phillipps v. Briard, 1 H. & N. 26. See also Hall v. Janson, 4 E. & B. 500; and Falkner v. Earle, 3 B. & S. 360. In Pust v. Dowie, 33 L. J., Q. B. N. S. 173, 34 L. J., Q. B. 127, it was stipulated by charter-party that a ship should proceed from Liverpool to Sydney with cargo such as charterer should direct, and that a specified lump sum should be paid by the charterer for the use of the vessel on condition of her not taking less than 1,000 tons of weight and measurement; it was proved that a cargo of weight and measurement was usually one third weight goods and two thirds measurement goods, but that the ordinary proportions of weight and measurement cargo for the Sydney market were two thirds weight and one third measurement. It was held that the words in the charterparty were to be considered as introduced as a test of the general capacity of the ship, and with reference to or dinary goods, and were not to be construed as having reference to a cargo for the Sydney market. her cargo was discharged at Stade, which was as near Hamburg as the vessel with her full cargo could safely get, the defendant pleaded that by the custom of the port of Hamburg he was not bound to take delivery elsewhere than at Hamburg. This defence was held bad, on the ground that such a custom was inconsistent with the written contract (b). Where a declaration stated that a charter-party had been New term entered into between the plaintiffs as charterers, and the de- cannot be annexed by fendant as the owner of a ship, under which the ship had carried custom. a cargo from London to Hong Kong, consigned to the agents of the plaintiffs at Hong Kong free of commission on the charter, and then proceeded to allege, that under such a charter the agents of the plaintiffs at Hong Kong were, by the custom of merchants in London, entitled to procure a charter or cargo for the ship for any voyage from Hong Kong, being paid thereon a broker's commission on any freight payable under such charter, unless this right was excluded by express contract, it was held that the declaration was bad, since the custom did not explain the charter, but added a new term to it (c). liable as In a case where goods had been purchased by a broker for an Usage may undisclosed principal, but a note was signed at the time of the render broker purchase representing that the goods so purchased were sold by principal. the broker to his principal (not however naming him) for the persons who acted as the brokers of the sellers, it was held that evidence was admissible to prove an alleged custom or usage in the particular trade, that when a broker purchased without disclosing his principal, he was himself liable as purchaser (d). So, where the defendants, acting as agents for an undisclosed principal, chartered a ship and signed the charter as "agents to merchants," they were held bound by the charter-party, upon proof of a trade usage in such cases, that if the principal's name is not disclosed within a reasonable time after the signing of the charter-party, the agent shall be personally liable (e). But it has been recently decided by the House of Lords, that where a person instructs a broker to buy for him goods in a particular market, a usage of the market of a peculiar character, converting (b) Hayton v. Irwin, 5 C. P. D. 130. As to the meaning of these words generally, see post, p. 320, n. (f). (c) Phillipps v. Briard, 1 H. & N. 21. (d) Humfrey v. Dale, 7 E. & B. 266. Affirmed Cam. Scacc., Martin, B., and Willes, J., dissentientibus, 1 E., B. & (e) Hutchinson v. Tatham, L. R., Words of description. Quantity of cargo. Capacity of ship. the broker employed to buy into a principal selling for himself, of which the person who has employed the broker is ignorant, is not binding upon him (e). It sometimes happens that words are used in a charter-party which are mere words of description, and do not form any part of the contract. Thus, when by charter-party it was agreed that a ship should proceed alongside a hulk at a foreign port and take on board therefrom "the cargo put on board thereof and forming the cargo brought by The Oriente, being 470 tons of guano more or less," and deliver the same in the United Kingdom, freight to be paid at a certain rate per ton, it was held that the words "being 470 tons of guano" did not form part of the contract, but amounted to a mere representation, and that, although the cargo turned out to be only 344 tons, yet as the representation was made without fraud, the shipowner could maintain no action against the shipper (f). Where a merchant agreed by charter-party to load a full cargo, the ship being within his reach for the purpose of examination, and the burthen mentioned in the description of the ship at the commencement of the charter-party was "261 tons or thereabouts," which was, in fact, considerably below the real tonnage, it was held that he was not discharged by loading the number of tons by which the burthen had been described (g). But, as a general rule, words used in a charter-party, if not qualified by the context, must be regarded as forming part of the contract, and the parties to the charter-party must be understood as stipulating that the description or representations contained in the charter-party are correct. Where, in a charter-party (e) Robinson v. Mollett, L. R., 7 H. L. 802, and see Sweeting v. Pearce, 9 C. B., N. S. 534. 66 (f) In Gibbs v. Grey, 2 H. & N. 22; Barker v. Windle, 6 E. & B. 675, the charter-party described a ship as of the measurement of 180 to 200 tons or thereabouts," the Court was of opinion that this statement did not amount to a warranty as to the tonnage, but was a matter of description only, and consequently that the charterer, who had contracted to put on board a complete cargo, could not refuse to load on discovering that the tonnage, in fact, slightly exceeded 257 tons. In that case Willes, J., said, I think there was no warranty of the tonnage; the state ment in the charter-party was nothing more than a representation of the belief of the owners upon that point. (g) Hunter v. Fry, 2 B. & A. 421; but see Morris v. Levison, L. R., 1 C. P. D. 155, and see post, 313; see also Molloy, B. 2, c. 4, s. 8. See as to the meaning in contracts for the sale of goods of the expressions "say from 1000 to 1230 gallons," and "say not less than 100 packs," Gwillim v. Daniell, 2 C., M. & R. 61, and Leeming v. Snaith, 16 Q. B. 275. As to the meaning of the word "about," when prefixed to a quantity, see Cross v. Elgin, 2 B. & Ad. 106; Bourne v. Seymour, 16 C. B. 337; Moore v. Campbell, 10 Exch. 323. |