Ct. o p Ap p.] Br e n d a St e a m s h i p Co m p a n y Li m i t e d v. Gr e e n.
load from a p articula r colliery at which there is a strike at the tim e of the notification ? I t appears to me th a t the existence of the strike at th a t tim e is n i h il ad rem. The shipowners m ust send th e ir ship to the place a t which they have undertaken to load, and at which the charterers have undertaken to ship a cargo; i t is not u n til the ship has arrived at th a t place, and the question arises as to the obligation o f the charterers to ship the carg >, th a t the existence o f a strike becomes m aterial.
The charterers are entitled to say th a t the ship
owners must do th a t which they have contracted to do, and m ust place th e ir ship in position at the place which they, the charterers, have indicated, and th a t then, and not u n til then, the question w ill arise whether they, the charterers, are relieved from the obligation which they have undertaken by reason of the existence of a strike. In my opinion i t would be unreasonable, having regard to the uncertain duration of strikes, to impose upon the charterers an obligation to name a colliery where there is not at the tim e any strike, for, although there m ight he a strike existing at the colliery which is named, th a t strike m ig ht be at an end at the tim e when the obligation of the charterers to ship the cargo attached. I th in k that, upon the true construction of the charter- party, there is no such fe tte r imposed upon the option given to the charterers as is suggested by the appellants. I agree, therefore, th a t this appeal fa ils and m ust be dismissed.
Ho m e r, L .J .—I am of the same opinion. I agree th a t the charterers were, fo r the purposes of th is charter-party, bound to select what I w ill call a reasonable colliery, and I w ill assume, although I do not decide the question, th a t the tim e fo r ascertaining whether the colliery which is selected is such a colliery is the tim e a t which the selection is notified to the shipowners. Assuming that, however, I come to the conclusion, having regard to the terms of th is charter-party, and especially to those w ith reference to strikes, th a t the colliery in question was not an unreasonable colliery fo r the charterers to select at the tim e when they notified the selection to the shipowners merely because there was at th a t tim e a strike in existence which, so fa r as could be judged, m ight have come to an end at any moment. The selec
tio n of th a t colliery, then, not being an unreason
able selection, the shipowners were by the terms o f the charter-party bound to accept the colliery guarantee o f th a t colliery. I agree, therefore, th a t this appeal must be dismissed.
A pp ea l dismissed.
Solicitors fo r the appellants, W alker, Son, and F ie ld , fo r W eightm an, Pedder, and W eightm an.
Liverpool.
Solicitors fo r the respondents, P a rk e r, G arre tt, and H olm an.
[ Ct. o f Ap p.
T hursd ay, Feb. 22, 1900.
(Before Sm i t h, Co l l i n s, and Ro m e r, L .JJ.) Br e n d a St e a m s h i p Co m p a n y Li m i t e d v.
Gr e e n, (a)
A P P E A L P R O M T H E Q U E E N ’ S B E N C H D I V I S I O N .
C h a rte r-p a rty — Discharge o f cargo — “ To be taken f r o m alongside the steamer a t charterer's r is k a n d expense, an y custom o f the p o r t to the co n tra ry n o tw ith s ta n d in g ” — D u tie s o f owners and charterers.
A c h a rte r-p a rty , by w hich a steamer was to load a cargo o f tim b e r and the re w ith to proceed to the S u rre y Com m ercial Docks, London, a n d deliver the same, contained a clause th a t the cargo was
“ to be brought to and taken f r o m alongside the steamer a t cha rte re r’s r is k and expense, any custom o f the p o rt to the c o n tra ry n o tw ith stan din g.”
H e ld, th a t by th is clause the custom o f the p o rt o f Lo nd on as to the discharge o f tim b e r cargoes was excluded, and therefore i t was the d u ty o f the charterer to be ready to receive the cargo a t the ship’s r a il.
Th i s w as a n a p p e a l f r o m th e ju d g m e n t o f M a th e w , J . a t th e t r i a l o f th e a c tio n w it h o u t a ju r y .
The action was brought by the owners of the steamship B re n d a against the charterer to recover the money paid by them under protest fo r dis
charging a tim ber cargo at the Surrey Com
m ercial Docks from the ship’s ra il into barges and on to quay.
B y the charter-party i t was provided th a t the B re n d a should proceed to ports in the B a ltic and there load a tim ber cargo, and, being so loaded, should therew ith proceed to the Surrey Com
m ercial Docks, London, and deliver the same, always afloat.
The charter- party contained the follow ing printed clause :
The cargo shall be supplied as fa st as required by the steamer and be received a t p o rt of discharge as fast as steamer can deliver during the o rdinary w orking hours of the port. . . . The cargo to be brought to and taken from alongside the steamer a t charterer’s ris k and expense, any custom of the p o rt to the contrary notw ithstanding.
The charterer refused to accept delivery of the tim ber a t the ship’s ra il, and the shipowners, having paid under protest the expenses of dis
charging the cargo into barges and on to quay, now sought to recover the sum they had thus expended.
F or the purposes of the action the p la in tiffs adm itted that, in the absence of any provision in the charter-party negativing it, there is a custom in the port o f London w ith regard to tim ber ships which enlarges the ordinary meaning of “ along
side ” and “ delivery ” by requiring the shipowner to do work outside his ship in placing the tim ber in to barges or on to quay, b ut th a t such custom does not require him to stow the tim ber in the barge or to stack it on the quay.
A t the tria l o f the action the follow ing ju d g ment was delivered:—
Ma t h e w, J.—I have no doubt as to the mean
ing of the clause in question in th is charter- party, having regard to the controversy which has existed between shipowners and charterers on this subject. There have been several decisions as to
(o) Reported by E. Ma n l e y Sm i t h, E sq., Barrister-& t-Law .
56
Ct. o f Ap p.] Br e n d a St e a m s h i p Co m p a n y Li m i t e d v. Gr e e n._________[ Ct. o f Ap p.
the meaning of the words “ cargo to be taken from alongside a t merchant’s risk and expense.”
and the interpretation placed upon those words by L o rd Esher, M .R ., apart from the point as to the custom, is th a t in which they are commonly understood, and th a t interpretation is, o f course, binding upon me, and I entirely agree w ith it.
In the case o f Aktieselskab Helios v. E k m a n and Co. (76 L . T. Rep. 537; 8 Asp. Mar.
Law Cas. 244; (1897) 2 Q. B. 83) L ord Esher, M .R . used these words: “ I f the w ritte n terms o f the charter-party stood alone, i t has been held, and I th in k rig h tly held, th a t, upon the true construction of a charter-party in those terms, the delivery of the cargo from the ship in to barges or on to a quay is a jo in t operation; th a t is to say, neither party is bound to do i t alone. I t is to be a jo in t act, and therefore i f one p a rty is not there to perform his p a rt in it, th a t prevents the other p arty from perform ing his part.
Therefore, upon the w ritte n terms of the charter- p a rty standing alone, the captain o f the ship would not be bound to begin to deliver the cargo in to the barges unless the charterers had men there to assist in the jo in t operation; and if they were not ready and w illin g to take p a rt in it, the captain being ready and w illin g to do so, he would be prevented by the default o f the charterers from discharging the ship, and demurrage would be payable fo r the consequent delay.” T hat being the proper interpretatio n to be placed upon the charter-party, apart from any evidence as to custom, there have been three or fo ur cases in succession, the result of which, a fte r a long struggle in which the evidence as to custom was in many respects doubtful, has been th a t the charterers succeeded in establishing th a t there was an obligation on the shipowner to do more than he would be required to do if the charter- party was in the form referred to by L o rd Esher.
These cases show th a t the charterers were ad
hering w ith great pertinacity to th e ir view of th e ir rig h ts w ith regard to the discharge of tim ber cargoes; and, on the other hand, the cases show th a t the shipowners were determined if possible to restore the old construction of the charter-party, and to get rid of the custom which had been established by the charterers. I am clearly of opinion th a t the shipowners have succeeded in doing so by the form which they have adopted in th is case. I t is said th a t th is charter-party is one which is intended to be used a ll over the world, b ut I have no doubt th a t the fram ers of it had the custom of the p ort of London in th e ir minds. They were dealing w ith a tim ber cargo, and, w ith the object of getting rid o f the effect of the custom, they have adopted phraseology which appears to me not to adm it of a shadow of a doubt. The language of th is clause is as clear and pla in as it possibly can be, and I am unable to accept the interpretation which, it was con
tended fo r the defendants, ought to be placed on the clause. The custom is now by the terms of th is charter-party fin a lly excluded, and I hope th a t th is w ill be the last litig a tio n on th is subject.
I give judgm ent fo r the p la in tiffs w ith costs.
Prom th is judgm ent the defendant appealed.
E n g lis h H a rris o n , Q.C. and Leek fo r the defendant.—D elivery of the cargo includes p u t
tin g i t over the ship's side into the barges or on
to the quay. “ Prom alongside ” in th is clause in the charter-party deals only w ith taking the cargo away ; the clause refers to what is to be done to the cargo when i t has been put into the barge in accordance w ith the custom of the port. The clause does not e ntirely exclude the custom of the port. The expression “ any custom of the p ort to the contrary notw ithstanding” refers, not to ihe whole clause preceding it, but only to the words
“ a t charterer’s ris k and expense.” There is a difference between customs as to “ delivery ” and as to ta king “ from alongside ” :
A ktieselskab H e lio s v. E k m a n a n d Co., 76 L . T . R *p . 537 ; 8 A sp. M a r. L a w Cas. 244 ; (1897) 2 Q. B. 83.
[ Sm i t h, L .J . referred to The N ifa (69 L . T. Rep.
56: 7 As d. M ar. Law Oas. 324 ; (1892) P . 411).]
S cru tto n , fo r the p la in tiffs, was not called upon.
Sm i t h, L .J .—I th in k th a t the judgm ent of Mathew, J. was rig h t. The question is one as to the construction of a charter-party, and the parties have inserted the clause under discussion in order to exclude the custom of the p o rt where the cargo is to be delivered. A p a rt from any custom a shipowner would have to deliver the tim ber by p u ttin g i t over the ship’s ra il, and i t is the duty of the consignee to be there w ith his men to receive the tim ber from the ra il. As Lord Esher, M .R. said in Aktieselskab Helios v. E k m a n and Co. (u b i sup ), the delivery of the cargo from the ship in to barges or on to a quay is a jo in t operation by the shipowner and the consignees.
Now, the parties to th is charter-party have agreed as fo llo w s: “ The cargo to be brought to and taken from alongside the steamer a t charterer’s ris k and expense, any custom of the p o rt n otw ith standing.” T hat is to say, the words of the charter-party are to be read in th e ir ordinary sense, excluding any custom of the port. That exclusion of custom applies to the whole clause, and is not to be lim ited to apply only to the words “ charterer’s ris k and expense.” T hat being so, the duty of the charterer here was, as I have said, to take the cargo when the shipowners put i t over the ship’s ra il. He did not do so, and must therefore refund to the shipowners the ex
penses incurred by them in taking the cargo from the ship’s ra il to the barges and on to the quay.
The appeal m ust be dismissed. In Aktieselskab Helios v. E k m a n and Co.(u b i sup ) the question in dispute had reference to the custom of the port.
In the present case the custom of the port, whatever i t may be, has been excluded from consideration.
Co l l i n s, L .J .—I am of the same opinion. I t must be conceded th a t, apart from any custom of a port, the words “ brought to and taken from alongside” mean brought to and taken from the ship’s ra il, and th a t meaning can only be altered by the custom of any p articula r port. In th is charter-party the custom of the p ort has been excluded from consideration, and therefore the duties of the shipowners and the charterer under these words of The charter-party remain unaf
fected.
Ro m e r, L .J .—I agree. I th in k th a t the argu
ment th a t has been addressed to us on behalf of the defendants is too fine. The meaning o f the clause in the charter-party th a t has been under discussion is that, in considering the relative o b li
gations of the shipowners and the charterer as
M ARITIME LAW CASES.
57 Q.B. D rv .] Ge d g e a n d o t h e r s v. Ro y a l Ex c h a n g e As s u r a n c e. [Q .B. Di v. regards the loading and discharging o f the cargo,the custom of the port is not to be taken into
consideration. , , ,. . ,
A ppeal dismissed.
Solicitors fo r the p la in tiffs, B o tte re ll and Roche.
Solicitors fo r the defendant, Lowless and Co.
HIGH C O U R T OF JUSTICE.
Q U E E N ’S BEN CH D IV IS IO N . Wednesday, A p r il l l , 1900.
(Before Ke n n e d y, J.)
Ge d g e a n d o t h e r s v. Ro y a l Ex c h a n g e As s u r a n c e, (a)
M a rin e insurance— P o lic y on a ship— G am ing or w agering transaction—“ p .p .i.” clause— Ille g a lit y not pleaded— R e fu sal to enforce c la im—19 Geo.
2, c. 37, s. 1.
A p o lic y o f insurance agreeing to p a y a to ta l loss in the event o f a ship not a r r iv in g at a p o rt by a certain date is a p o lic y “ on a ship ” w ith in 19 Geo. 2, c. 37.
Where a p o licy is ille q a l by statute, the court w ill not enforce such p o lic y , although the ille g a lity has not been pleaded.
Ex tu rp i causa non o ritu r actio.
Co m m e r c i a l cause trie d before Kennedy, J.
w ithout a ju ry .
A ll the m aterial facts appear in the w ritten jud g ment.
R u fu s Isaacs, Q.C. and J . A . H a m ilto n fo r the p la intiffs.
J. W alton, Q.C. and S c ru tto n fo r the defen
dants.
Ke n n e d y, J.—This action is brought by the p la in tiffs, who are insurance brokers suing really on behalf and fo r the benefit of a M r. Rouse and certain other gentlemen associated w ith him , against the defendants on an alleged policy of marine insurance, dated the 14th Nov. 1898, upon the B ritis h steamship R adnorshire, belonging to the Shire Line. The policy, as pleaded by the p la in tiffs, is a policy fo r 4007. on the said steam
ship at and from London to Yokohama, to pay a to ta l loss in the event of the vessel’s not arriving at Yokohama on or before m idnight on the 31st Dec. 1898. I t is pleaded by the p la in tiffs th a t the vessel did not arrive at Yokohama on or before m idnight the 31st Dec. 1898, and the amount insured is claimed by the p la in tiffs. In fact, as appeared when the document was pro
duced by the p la in tiffs in evidence, the alleged policy is what is known as a “ p.p.i.” or honour policy, one of its terms being that, in the event of loss, “ it is hereby agreed th at th is policy shall bn deemed as fu ll and sufficient proof of interest.” The defendants, in the points of defence, do not ple-id the in v a lid ity of the alleged policy, under the provisions of 19 Geo. 2, c. 37, s. 1. Their pleaded defences, in addition to a refusal to adm it the correctness of the statement of the p la in tiffs as to the terms of the alleged policy, are (1) concealment o f m aterial fa c ts ; (2) th a t the persons on whose behalf the p la in tiffs effected the alleged policy had no insurable interest in the subject-m atter insured.
(a ) Reported by W d b B. He r b e r t, Esq.. B »rriater-& t-Law .
VOL. IX ., N. S.
The alleged policy was, in tru th , so fa r as regards the purpose o f M r. Rouse and certain other gentlemen fo r whom i t was effected, a mere wager or wagering speculation. I t appears th a t some tim e before the 14th Nov. 1898 the Government o f Japan had made an ordinance whereby goods im ported into Japan a fte r the 31st Dec. 1898 should be liable to a higher duty than had pre
viously been levied. This was known to M r. Rouse, who was employed in the London office of a Japanese insurance company called the N i ppon, an d he had a conversation w ith a M r. Pound (who was an insurance clerk in the p la in tiffs ’ office) upon the subject o f insurances being, in consequence of the ordinance, effected in regard to the a rrival in Japan of vessels carrying goods to th a t country.
I t occurred to M r. Rouse th a t there was an oppor
tu n ity of having what he called “ a spec.” He asked M r. Pound if he thought he would be able to do a “ spec.” fo r him . Pound said he thought he m ight be able. They then parted. M r. Rouse returned to his office and read in Llo yd ’s S h ip p in g Gazette th a t the R adnorshire was the vessel of the line of steamships running between London and Japan under the management of Messrs. Jenkins and Co. which had last sailed fo r Japan ; and th a t she was reported to have passed the Downs on the 30th Oct. Believing th a t a vessel of th a t type m ight be expected to take roughly about two months on the voyage, he saw from her reported position that, to use his own words, her arrival before the 1st Jan. 1899 was obviously a close thing, and what he wanted fo r a “ spec.” He mentioned his project to certain other gentlemen in the Nippon office, and they agreed to share w ith him in the speculation. In the result, through M r. Pound, acting as th e ir agent to pro
cure an insurance, M r. Rouse and his fellow speculators carried out th e ir project by obtaining from the defendants the policy in question, the slip fo r which was in itia lle d by M r. Toulm in on behalf of the defendant company. Had M r. Toulm in known the real nature o f the transaction—namely, th a t i t was a mere bet or speculation w ithout any interest on the part of those fo r whom in re a lity the insurance was effected — he would have declined the risk altogether. I t is at the same tim e only ju s t to M r. Rouse and his friends to add th a t they appear to have desired throughout the transaction to act in a candid and straightforw ard manner.
I t was not through any fa u lt of theirs th a t the purely speculative nature of the transaction was
I t was not through any fa u lt of theirs th a t the purely speculative nature of the transaction was