or Salt House Dock] a full and complete cargo of lawful merchandize, not exceeding 400 tons in weight, and therewith proceed to [Hong Kong or Shanghai], as ordered before sailing, or so near thereunto as she may safely get, and there deliver the same agreeably to bills of lading; after which she shall load there, or, if required, proceed to one other safe port in [China], and there load in the usual and customary manner from the agents of the said charterers a full and complete cargo of tea or other lawful merchandize, the cargoes being brought to and taken from alongside the vessel at charterers' risk and expense (e): which the said merchants bind themselves to ship,-not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions and furniture, and being so loaded shall therewith proceed to [Liverpool or London], as ordered on signing bills of lading abroad, or so near thereunto as she may safely get (ƒ), and there deliver the same in the usual and customary manner to the said charterers or their assigns, they paying freight for the same at the rate of [77. 10s. sterling per ton of fifty cubic feet] for tea delivered, for the round out and home; a deduction of [5s. per ton] to be made if ship be discharged and loaded at [Hong Kong]: other goods, if shipped, to pay in customary proportion; in consideration whereof the outward cargo to be carried freight free; payment whereof to become due and be made as follows:-[8007. on sailing, by charterer's acceptance at three months' date, what money the master may require for the ordinary disbursements of the vessel at her port of discharge and loading abroad, free of interest, paying two and a half per cent. commission, subject to insurance, at the current rate of exchange, and the balance on the unloading and right delivery of the cargo, by good and approved bills on London at two months' date, or cash equal thereto.] Ship is to have liberty to put on board eighty tons of kentledge copper drop or other dead weights, and (e) In the place of this clause the following is sometimes made use of:"Cargo to be brought to and taken from alongside free of expense and risk to the ship." See Wright v. New Zealand Shipping Company, 4 Ex. D. 165. (f) See as to the meaning of this clause, Parker v. Winlow, 7 E. & B. 942; Bastifell v. Lloyd, 1 H. & C. 388; Nelson v. Dahl, 12 Ch. D. 568; Capper v. Wallace, 5 Q. B. D. 163, and the cases there cited. See also Hayton v. Irwin, 5 C. P. D. 130. See also post, P. 316. Construction of contract. to retain it on board during the voyage. Thirty running days (Sundays excepted) are to be allowed the said merchant, if the ship is not sooner despatched, for loading in [Liverpool], and forty-five like days for all purposes abroad, and ten days on demurrage over and above the said laying days and time herein stated [at 101. sterling per day], paying day by day as the same shall become due (g). The time occupied in changing ports not to count as laying days. Should it be necessary for the vessel to take in dunnage the same to be provided by the owners. The master to sign bills of lading at such rates of freight as may be required by the agents of the charterers, without prejudice to this charter-party (h); and the owners to have an absolute lien upon the cargo for the recovery of all freight, dead freight, demurrage, &c., due to the ship under this charter-party. The act of God, the Queen's enemies, fire, and all other damages and accidents of the seas, rivers and navigations, of what nature and kind soever, throughout the voyage being excepted. The vessel to be consigned to the charterer's agents abroad free of commission. On the return of the ship to [Liverpool] she shall be addressed to [G. H. & Co.] brokers, or to their agents at any port of discharge. Penalty for non-performance of this agreement the estimated amount of freight (¿). Charter-parties are construed liberally and reasonably, so as to carry out the intention of the parties as apparent on the instrument (). It is often, however, difficult to apply this rule in It (g) A clause to the following effect (h) See as to the construction of this clause, Shand v. Sanderson, 4 H. & N. 381; Kern v. Deslandes, 10 C. B., N. S. 205; Pearson v. Goschen, 17 C. B., N. S. 352, and post, p. 319. (i) See Gilkison v. Middleton, 2 C. B., N. S. 134, and post, p. 402. (k) Oshey v. Hicks, Cro. Jac. 263; Marshall v. De la Torr, 1 Esp. 368. See also the judgment of Lord Mansfield in Hall v. Cazenove, 4 East, 477, Soames v. Lonergan, 2 B. & C. 564, the judgment of Maule, J., in Crozier v. Smith, 1 M. & Gr. 415, Browne v. Burton, 17 L. J., Q. B. 49, the judgment of Byles, J., in Valente v. Gibbs, 6 C. B., consequence of the short and ambiguous terms in which these contracts are not uncommonly expressed. If the charter-party is under seal, the parties, as in the case of other deeds, are not estopped from showing that it was executed on a day different from the day of its date. It will also, in this case, like any other deed, speak from its delivery or execution, and not from its date; and words indicating time by relation will be construed to relate to the delivery or execution, and not to the date, unless it be referred to in terms; and even then, the same rule of construction will be applied if the date is an impossible one (m). It is for the Court to construe all written contracts, but if particular words have obtained by mercantile or other usage a peculiar meaning, it is for the jury to say what the meaning of these expressions is, and then for the Court to decide on the meaning of the contract (n). In charter-parties, as in other mercantile contracts, the expression "a month" is construed to mean a calendar month (0). It is important to recollect, that although mercantile contracts. are construed liberally and reasonably, their express terms cannot be extended by implication. N. S. 286, and Dimech v. Corlett, 12 Moo. P. C. C. 199. It is important to bear in mind, that although in the earlier cases the Courts of law not unfrequently rejected, or explained away harsh and oppressive stipulations contained in agreements, thus, in effect, making new contracts for the parties, the rule acted upon at present is to give to clear and unambiguous stipulations their obvious meaning, without reference to the possible hardship of the consequences. This rule, which is founded in good sense, and tends to make persons careful at the time when they are entering into contracts, is thus referred to in a recent judgment of the Court of Queen's Bench. "We are clear," said that Court in Stadhard v. Lee, 3 B. & S. 364, "that where from the whole tenor of the agreement it appears that however unreasonable and oppressive a stipulation or condition may be, the one party intended to insist upon and the other to submit to it, a Court of justice cannot do otherwise than give full effect to the terms which have been agreed upon between the parties. It frequently happens in the competition which notoriously exists in the various departments of Therefore, where a contract business, that persons anxious to obtain contracts submit to terms which when they come to be enforced appear harsh and oppressive. From the stringency of such terms, escape is often sought by endeavouring to read the agreement otherwise than according to its plain meaning, but the duty of a Court in such cases is to ascertain and give effect to the intention of the parties as evidenced by the agreement, and though where the language of the contract will admit of it, it should be presumed that the parties meant only what was reasonable, yet if the terms are clear and unambiguous, the Court is bound to give effect to them without stopping to consider how far they may be reasonable or not." (m) Hall v. Cazenove, 4 East, 477; Steele v. Mart, B. & C. 272; Styles v. Wardle, ib 908. See (n) Smith v. Bland, Ry. & M. 260; Hutchison v. Bowker, 5 M. & W. 535; Smith v. Thompson, 8 C. B. 44. Alexander v. Vanderzee, L. R., 7 C. P. 530; Ashforth v. Redford, L. R., 9 C. P. 20; Shand v. Bowes, 1 Q. B. D. 470, 2 App. Ca. 455. (0) Jolly v. Young, 1 Esp. 186; see also Simpson v. Margitson, 11 Q. B. 23. Usage admis sible to ex plain contract. Measurement and stowage of cargo. 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 explained but not contradicted, by evidence of the usage of the particular trade to which the contract relates (q). 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. (4) See Palmer v. Blackburn, 1 Bing. 61, which was a case of a policy of insurance; Magee v. Atkinson, 2 M. & W. 446; and Spartali v. Benecke, 10 C. B. 212. In Field v. Lelean, 6 H. & N. 617, doubts were expressed in the Exchequer Chamber as to the correctness of the decision in Spartali v. Benecke, although the principle upon which that case was intended to be decided was recognized. See also the rules laid down in the judgments in Mallan v. May, 13 M. & W. 517, and Cockburn v. Alexander, 6 C. B. 791; and post, 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 "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- |