MARITIME LAW CASES. 89

Ct. o f Ar p. ] Th a l m a n n a n d o t h e r s v . Te x a s St a r Fl o u r Mi l l s. [ Ct. o f Ap p.

on which date the vessel sailed. She was delayed on her voyage by a breakdown of machinery, and consequently did not arrive in Havre u n til the 1st July, a day too late to enable the p la in tiffs to secure the benefit of the remission o f the duty.

Meanwhile, the p la in tiffs had paid the defendants drafts fo r the price of the wheat and had obtained the shipping documents. This action was brought to recover back the money so paid, on the ground th a t the vessel had not “ cleared ” on the 28th May according to the contract.

How, “ clearance,” in my opinion, has a well- known and definite meaning. I t is a certificate issued by the Customs showing th a t the vessel named in i t has complied w ith the Customs requirements and is authorised to proceed to sea, and the acts which have to be done at the Customs to procure such a certificate con­

stitu te the process of “ clearing the vessel.”

In th is case the clearance was issued to the H ig h fie ld on the 28th May. The document, or a certified copy o f the document, was produced to me. and it reads as follow s: “ (Clearance.) The U nited States of America. Clearance of vessel to foreign port. D is tric t of Galveston, P o rt of Galveston. These are to ce rtify a ll whom it doth concern th a t W. Richardson, Master or Com­

mander of the B ritis h steamship H ig h fie ld , burden 164 tons or thereabouts, mounted w ith guns, navigated w ith 26 seamen a ll told, steel b u ilt, andbi und fo r Havre, v ia Newport, Ya., having on board hath here entered and cleared his said vessel, according to law.” I t is true th a t th is document was issued before a ll the cargo was on board, b ut i t was issued at a tim e when a ll the cargo was alongside and w aiting to be p u t into the ship. The affidavits from America, which were read at the tria l, satisfy me th a t i t was issued in the ordinary course of busi­

ness, and th a t it is customary to obtain the clear­

ance o f vessels before the loading is actually com­

plete, so th a t there need be no delay in p u ttin g out to sea. I believe the practice is the same in this country and elsewhere, and i t is obviously convenient because, i f the form alities at the customs could not be gone through u n til every package was on board, great delay would be occasioned. A d ilig e n t captain, therefore, obtains his clearance as soon as his cargo is in such a position as to enable him to make out his m anifest fo r use at the Customs, and th a t course was followed in th is case. I t was said th a t by the U nited States statute regulating the granting of clearances (sect. 197) the master of a ship is required to furnish the custom authorities w ith a m anifest of the cargo, “ on board . . . whereupon the collector shall grant a clearance.”

A nd it was suggested that, inasmuch as the cargo was not a ll on board, the clearance in th is case was n u ll and void. I cannot, however, listen to such a suggestion. F or the purpose of the section in question i t is obvious to me th a t the authorities trea t cargo as on board if in fa ct it is already alongside the ship and in such circum ­ stances th a t i t m ust in the ordinary course of business find its way on board. The clearance obtained in th is case was the only clearance ever issued, and the affidavits satisfy me beyond a ll doubt th a t i t was issued in accordance w ith the usual practice, and th a t i t authorised the vessel to sail whenever it pleased her master to p u t to sea. There is an affidavit by M r. Rosenthal, the

V o t. TH N . S.

special deputy collector or chief executive officer of the p ort of Galveston. In th a t affidavit he says :—“ I t is the custom, and fo r very many years has been the custom, of th is port and other ports of theU nited States to clear vessels at the Customs House before they have completed loading; and such clearance is and has been regarded by the Treasury Departm ent as regular, legal, valid, effective and fin al.” He fu rth e r says, w ith reference to the clearance of th is particular vessel: “ Ho other clearance of the said vessel was issued by this Custom House; the vessel required no other clearance; and the clearance so issued was the fin a l and valid and only clearance of the vessel fo r the voyage issued by the Custom House.” He fu rth e r says: “ The vessel was entitled to sail imm ediately, and a t the convenience o f her master, after the issuance of the said clearance.”

He goes on fu rth e r to say : “ I t is a common and well known recognised practice, and one of long standing both in the p ort of Galveston and other ports of the U nited States, and law ful under the rules and regulations of the Treasury Departm ent of the U nited States to grant a clearance to a vessel whose cargo is delivered and alongside, and i f known can be manifested before the whole cargo is actually placed on board of the vessel;

th a t such a clearance is not provisional, there being no such clearance in the Am erican usage as a tem porary or provisional clearance; but th a t such a clearance is immediate, effective, and valid, and entitles a vessel to sail w ith the whole or any p art of the cargo comprised in the m anifest.”

There is not only the affidavit of the collector of Customs, b ut there is the affidavit of the master of th is ship, W illia m Richardson, in which he says: “ I anticipated and hoped th a t I should have been able to complete the loading of the cargo by the 30th May or early on the 31st. The 29th was a Sunday, and the 30th was a public holiday, on which days I should have been unable to obtain clearance, and I was anxious to be in a position to sail w ithout unnecessary delay and at the earliest possible moment, especially in view of the promise of a g ra tu ity which had been offered to me by the above-named Messrs. Thalman Freres if I arrived in French waters by or before a certain date. The said clearance was issued to me regularly in accordance w ith the usual prac­

tice, and was fin a l and complete when so issued, e n titlin g me to sail whenever I chose after the said clearance and when loading was completed.

I t was applied fo r by me in the ordinary and usual course of my business fo r convenience of sailing. I t has been my regular practice in American ports when, as in th is case, I am in a position to give a complete m anifest of my cargo as known to me, and it is, I believe, the almost universal practice of masters in sim ilar circum ­ stances, to obtain clearance before the completion of the loading, so as to be able to sail at the earliest possible moment a fte r the loading is com­

pleted, which sailing m ight and often would be unnecessarily delayed by reason of the Customs office being closed at the tim e of the completion of the loading i f it were com­

pulsory to w ait u n til th is was completed.”

I t was said that, having regard to the object of the stipulation as to clearance, I ought to put upon the terms a meaning different to th a t which I believe to be its ordinary meaning, and th a t I should read the words of the contract as meaning

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Th a l m a n n a n d o t h e r s v. Te x a s St a r Fl o u r Mi l l s. [Ct. o f Ap p. Ct. o f Ap p.]

“ cleared and ready to sail ” not later than the 31st May. B u t it is not my duty to read in to the contract words which the parties have not chosen to use; my duty is to give to the words wnich I find in the contract th e ir ordinary signification and to interpret the contract accordingly. I f the p la in tiffs had chosen to do so, they could have stipulated th a t the vessel should sail by the date named—a very ordinary stipulation in contracts such as this. Such a stipulation, however, is by no means the same as clearing. Clearing and sailing are two quite d ifferent things, and clearing and being ready to sail are by no means neces­

sarily the same thing. The p la in tiffs chose th e ir own expression—an expression, the meaning of which is to my m ind not in the least doubtful

— and, having chosen th e ir own expression, th e ir contract must be interpreted according to the meaning which I a ttrib ute to the word they have used. In these circumstances it appears to me th a t the condition in the con­

tra c t has been performed, and the p la in tiffs m ust therefore abide by th e ir bargain, and having paid th e ir money and taken th e ir cargo, in my opinion the best th ing they can do now is to abide by it. There w ill be judgm ent fo r the defendants.

Judgm ent f o r the defendants.

Carver, Q.C. and J. A . H a m ilto n fo r the appel­

lants.—The learned judge was wrong in holding th a t the certificate of clearance given in this case was a “ clearance ” w ith in the meaning o f the contract. The statute of the U nited States pro­

vides th a t a clearance is to be given when the cargo is on board, and th a t clearance is obtained upon a sworn statement of the master declaring a ll the cargo which is on board. A certificate of clearance can only be obtained before the loading o f the cargo is completed if the master makes a false declaration th a t a lt the cargo is on board. The intention o f the parties in this con­

tra c t was th a t a “ clearance ” should be obtained in accordance w ith the law of the U nited States, and not th a t a certificate of clearance im properly obtained before a ll the cargo was loaded should satisfy the contract. The object of the pur­

chasers was to make i t certain th a t the vessel should sail soon enough to reach Havre before the end of June, and by “ clearance” the parties meant th a t the vessel should have a ll the cargo on board so as to be ready to sail. Bigharn, J.

relied upon the practice in England as to giving clearances before a ll the cargo is loaded, but the statutory provisions in th is country are not the same as those of the U nited States statute. The Customs Laws Consolidation A c t 1876 (39 & 40 V ie t. c. 36), by sect. 128 provides th a t “ before any ship shall be cleared outwards the master . . . shall deliver to the collector a content of the ship ” in the prescribed form , and by th a t form the master declares th a t the content is a true account of a ll goods “ shipped and intended to be shipped on board; ” and therefore a clearance may be given before the cargo is a ll loaded.

R . M . B ra y , Q.C. and E . B ra y , fo r the respon­

dents, were not called upon to argue.

Sm i t h, L .J .—This is an appeal by the plain­

tiffs from the judgm ent of Bigham, J. The action is brought by the purchasers of some

wheat against the vendors fo r not delivering the wheat according to the contract. The term o f the contract which i t is alleged has been broken is th a t the vessel, by which the wheat was to be carried from Galveston to Havre, should be cleared not la te r than the 31st May. The plain­

tiffs say th a t they have suffered great damage by reason of the breach o f th a t condition, because, if the wheat had arrived a t Havre before the 1st July, it would have been free from im port duty, and as the vessel did not arrive u n til the 1st Ju ly i t was not in tim e and the im port duty had to be paid.

The only question in th is case is whether, w ithin the meaning of the contract, the vessel was cleared not later than the 31st May. The vendors say th a t i t was, because the document known as a “ clearance ' was obtained by the master of the vessel on the 28th May, and there­

fore not later than the 31st May, and th a t i t was an effective and valid clearance under which the vessel could sail at any tim e from Galveston, and under which she did in fact sail. WUat is the meaning of “ clearance ” in the contract ? In my opinion it clearly means the obtaining of a ce rti­

ficate o f clearance. The appellants say th at it means a clearance according to the law of the U nited States, which cannot be given u n til a ll the cargo is on board, and th a t in th is case the cargo was not a ll on board on the 28th May, when the certificate in question was given. I do not th in k th a t the meaning of th is contract is th a t there must be a certificate o f clearance given in s tric t accordance w ith the statute of the United States.

I read the contract as meaning a clearance in accordance w ith the practice in vogue a t Galves­

ton, under which certificates of clearance are given by the Custom House authorities at Gal­

veston. The certificate of clearance in this case was given in accordance w ith the practice at Galveston and a t many other ports of the U nited States, and documents so given are valid and effective clearances which would e ntitle a vessel to sail from the port. The statement in the affidavit of the official at Galveston is th a t this clearance was regarded as “ regular, valid, effec­

tive, and fin a l ” ; th a t the vessel required no other clearance; th a t it is not provisional but is immediate, effective, and valid, and entitles a vessel to sail at the convenience of the master.

W hat then is the meaning of “ clearance ” in this contract ? I t is not contended th a t i t means th a t the ship shall sail not later than the 31st May.

“ Clearance” means the document of clearance which is usually given when the vessel is about ready to sail. I t means the certificate of clear­

ance, and Bigham, J. was rig h t in so holding. I th in k , therefore, th a t the judgm ent of Bigham. J.

was rig h t and th a t th is appeal must be dis­

missed.

Wi l l i a m s, L .J .—I agree. The p la in tiffs did not enter into a contract by which i t was agreed th a t the vessel should sail not later than the 31st May. The agreement is fo r “ clearance not later than the 31st M ay.” I th in k th a t th a t means a certificate of clearance, an exeat, which perm its the vessel to leave the port. I t seems to me th a t the condition was performed in th is case. I t is adm itted th a t a certificate of clearance was obtained not later than the 31st May, and th a t th a t certificate was valid and effective in the United States. Under those circumstances i t seems to me th a t th is condition was performed, and th a t

M ARITIME LAW CASES.

there is nothing in the defence which has been set up.

Ro m e r, L . J. I agree. A pp ea l dismissed.

Solicitors fo r the appellants, H ollam s, Son, Coward, and Mawlcesley.

S olicitor fo r the respondents, T illeard s.

H IG H C O U R T OF JU STIC E.

Q U E E R ’S B E N C H D IV IS IO N . M onday, M a rc h 12, 1900.

(Before Ke n n e d y, J.)

Ha r r o w in g St e a m s h ip Co m p a n y Li m i t e d v. To o h e y. (a)

Shares in ships — T ransfer — R e g is tra tio n o f tra n s fe r— Fees payable on re g is tra tio n — Mode o f c a lc u la tin g — M e rc h a n t S h ip p in g A c t 1894 (57 & 58 Viet. c. 60), s. 26—M e rc h a n t S h ip p in g (M e rc a n tile M a rin e F u n d ) A c t 1898 (61 & 62

Viet. c. 44), s. 3, sched. 1.

Sect. 3 o f the M e rc h a n t S h ip p in g (M erca ntile M a rin e F u n d ) A c t 1898 provides th a t “ such fees sha ll be p a id in respect o f the re g is tra tio n , tra n sfe r, and mortgage o f B r it is h ships as the B o a rd o f Trade determ ine, not exceeding those specified in the f ir s t schedule to the A c t” ; and by the ls f schedule the fees to be p a id on the tra n s fe r o f ships are to be “ according to the gross tonnage represented by the ships or shares o f ships transfe rre d.”

M eld, th a t, where shares in a ship are transferred by d iffe re nt b ills o f sale to the same transferee, each b ill o f sale is a separate tra n s fe r o f in te ­ rest, and on the re g is tra tio n o f such b ills o f sale by the transferee a separate fee, according to the scale, is payable on the tonnage represented by the shares transfe rre d by each b ill o f sale.

F ifty - e ig h t shares in a ship were transferred by tw enty b ills o f sale to the p la in tiffs :

M eld, tha t, on the re g is tra tio n o f these b ills o f sale, the p la in tiffs were bound to pa y a separate fee on each b ill o f sale calculated on the tonnage tra n sfe rre d by such b ill o f sale, and not m erely one fee on the to ta l tonnage represented by a ll the shares transferred.

Ac t io n trie d before Kennedy, J. in the Com­

m ercial Court.

The action was brought to recover damages fo r the alleged w rongful refusal of the defendant to register the p la in tiffs ’ name as transferees and owners of certain shares in six ships.

The action was trie d upon an agreed statement of facts as follow s :

T h e d e fend ant is, o r was re c e n tly , c h ie f office r o f C ustoms a t th e p o rt o f W h itb y , w ith in th e m eaning of sect. 4 (1) (a) o f th e M e rc h a n t S h ip p in g A c t 1894, and is o r was re c e n tly th e re fo re re g is tra r o f B r itis h ships a t th e said p o rt.

O n th e 4 th J u ly 1899 th e p la in tiffs produced to th e defend ant as such re g is tra r 166 b ills o f sale fo r the tra n s fe r to th e p la in tiffs o f in a ll 316 shares in six re g is­

te re d ships, w ith th e d e cla ra tio n s o f tra n s fe r re q u ire d by sect. 26 o f th e M e rc h a n t S h ip p in g A c t 1894, and requested th e d e fend ant to e n te r th e ir name as tra n s ­ ferees in th e re g is te r book as owners o f the said shares, and indo rse on th e said b ills o f sale th e fa c t o f such

e n try h a v in g been made in accordance w ith th e p ro v i­

sions o f th e la st-m e n tio n e d section. T he b ills o f Bale represented th e u n der-m en tione d shares in respect o f th e six vessels :

Name of vessel. Gross

tonnage.

No. of 64th shares.

No. of bills sale.of

Gross tonnage

repre­

sented by such number

of 64th shares.

Fees.

E th e lb u rg a 2223 58 20 2015 Æ4 0 0

E th e lre d a 2160 47 28 1589 £ 3 7 6

[T h e names, gross tonnage, &c., w ith re g a rd to the fo u r o th e r ships w ere g iv e n in the same w ay, and th e to t a l am o u n t o f th e fees in th e la s t colum n was 241. 10s., w h ic h was th e sum tendered b y th e p la in tiffs in respect o f th e six vessels.]

Th ere was o n ly one d e la ra tio n o f tra n s fe r tendered in th e case o f each ship, w h ic h d e cla ra tio n in clu d e d a ll th e shares d e a lt w ith b y th e separate tra n s fe rs re la tin g to shares in such ship. I t was n o t a d m itte d , on th e p a rt o f th e defendant, th a t separate d e cla ratio ns in respect o f each tra n s fe r cou ld n o t, s tr ic tly speaking, have been

Th ere was o n ly one d e la ra tio n o f tra n s fe r tendered in th e case o f each ship, w h ic h d e cla ra tio n in clu d e d a ll th e shares d e a lt w ith b y th e separate tra n s fe rs re la tin g to shares in such ship. I t was n o t a d m itte d , on th e p a rt o f th e defendant, th a t separate d e cla ratio ns in respect o f each tra n s fe r cou ld n o t, s tr ic tly speaking, have been