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, consistently 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 ordinary 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). Usage may render broker liable as In a case where goods had been purchased by a broker for an undisclosed principal, but a note was signed at the time of the 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. (ƒ). (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. (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. of ship. made at New York between British subjects, a ship was described as the A1 Br. brig Hannah Eastee of Liverpool, it was Class, posiheld that this was an undertaking that the ship was then classed tion and kind A 1 at Lloyd's (h). Where a charter-party contained the words "expected to be at Alexandria about 15th December," it was held that these words were not mere words of description, but were in the nature of a warranty that the ship, at the time of the making of the charter-party, was in such a part of the world that she might reasonably be expected to be at Alexandria on the day named (i). Where goods were shipped under a bill of lading which contained the words, shipped on board "the steamship" H., with liberty to tranship the goods into any "other steamer," it was held that the shipper of the goods was entitled to have them carried by a vessel, the principal motive of which during the voyage should be steam. The same rule would hold good with respect to similar words in a charter-party (j). PRECEDENT. It is often difficult in construing charter-parties to ascertain CONDITIONS whether particular stipulations amount to conditions precedent. This is to be determined by seeking for the intention of the parties as apparent on the instrument, and from the surrounding circumstances, and by applying the ordinary rules of construction to each particular case. It does not depend on any formal arrangement of the words, but on the reason and sense of the thing, as it is to be collected from the whole contract (). Generally speaking, any stipulation which goes only to a portion of the consideration, or, in other words, the breach of which would deprive the party who has a right to insist upon it of a portion only of the benefit of his contract, will be construed not to be a condition precedent (7). It must, how (h) Routh v. Macmillan, 33 L. J., Exch. 38. Where a ship is described in the charter-party as A 1, this is not a warranty that she shall continue so; Hurst v. Osborne, 18 C. B. 144; French v. Newgass, 3 C. P. D. 163. (i) Corkling v. Massey, L. R., 8 C. P. 395. (j) Fraser v. Telegraph Construction Company, L. R., 7 Q. B. 570. See also The Parana, 1 P. D. 452; 2 P. D. 118. (k) "The law will rather invert the words than pervert the sense," Bacon's Law Tracts, 236. Case of Revocation of Uses. See also the judgment of the Privy Council in Dimech v. Corlett, 12 Moo. P. C. C. 199, where it is said, "It (1) Boone v. Eyre, 1 H. Bl. 273, n. (a); sail before a named date. ever, be recollected that this rule, although a very useful one, is The following cases will show the application of these rules. Stipulation to Where a memorandum of charter contained the words "the vessel to sail from England on or before the 4th of February next;" it was held that this stipulation formed a condition precedent, as the whole success of a mercantile adventure depends ordinarily on the commencement of the voyage by a given time (o). So, where the charter-party provided that the ship should sail from Amsterdam for Liverpool" on or before the 15th March next," it was held that the sailing of the ship on or before that day was a condition precedent to the obligation of the charter to load the vessel at Liverpool, although the sailing of the ship was prevented by one of the perils excepted in the charter-party, and the ordinary exception of perils of the seas &c. contained in the charter was followed by the words "through 3 Bligh, 561; Glaholm v. Hays, 2 M. & (m) Bright v. Cooper, 1 Brownl. 21; some matter, apparently of essential importance, and prima facie a condition precedent, is not really vital, and may be compensated for in damages; and if they sufficiently expressed such an intention it will not be a condition precedent." Per Blackburn, J., Bettini v. Gye, 1 Q. B. D. 186. (n) See the judgment of Lord Ellenborough in Hall v. Cazenove, 4 East, 477; Bornmann v. Tooke, 1 Camp. 377; Puller v. Staniforth, 11 East, 232; Thompson v. Inglis, 3 Camp. 428; and Cranston v. Marshall, 5 Ex. 395; Waugh v. Morris, L. R., 8 Q. B. 202; Cargo ex Argos, L. R., 5 P. C. 134. (0) Glaholm v. Hays, 2 M. & Gr. 257. It was held to be otherwise where the charter-party had not been executed until after the day named; Hall v. Cazenove, 4 East, 477. |