S f ' y . S n. 's’ o t' « a«i’
W a r d (b S L . T. D iv ’ 475) i t was
held t C t S t , to i d ,** “ ?.br ‘th,” S
order f L
of voyage. The words a ll ts
are v e ry much a * the Mediterranean which are such as a s h ip m ^ tQ trade w ould call at, aud ca , Even i f ports between Malaga and L i P ; j ^ e(^ u c v these words are to be constru unreas0nable w («M ~ P ) . i f ™ C “ . ™ ° “ S e th in g fo r th is vessel to go to . , trade objects of the voyraS L atI ^ ev^ t io ii is ju s tifie d by are considered, and th a t devia j n ourt the clause of the b ill of lad mg. L ^ O o u r t referred to G ' g M 277; 5 Taunt. 496;
i ^ T
¿ . “ “ ¿ A i n » «MM
B a r n e s , Q.C. and G . 0 . S c o tt, fo r the pla in tiffs, were not called upon to argue.
t i To -»*- "R_T th in k th a t we are bound L o rd Esher, ■ • j d ing according to the
w ith
I n t h i s case we have to consul u. b ill of fo rm of contract w hich 1 8 0 th a t here the lading. I have not the lease j la in tifis and contract of carriage betw P namelv the defendants is a
b ill of lading, an lading is a contract w ritte n contract. A M I 0 & The fo r the carriage ot goods uy j alld the
th in g w hich t o
shipowner agree u p o n is t y fc th a t the
m L e d u c v . ^ h " ^ 0ods Conveyed fro m one shipper m a y get his goo ed y whioh is>
f c r h S j e S w hile as regards the ship-owner the fre ig h t he w il^receive depend^upon f o r e ! w £ h ° fistha lw S s Ssettled between shippers S e S S of S i n ^ T f o r S in w hich the voyage was described, and i t was s a id in ie d u c v^
W a r d ( u b i s u p . ) that, where you find words describing the voyage as being from ^ P ° [t f c 0 ^ nl»cn to w hich the goods are to be carried, m i<
?s to be taken t o g be the voyage agreed upon between the parties. The voyage is not always,
of course, from the p o rt where the goods are shipped d ire ct to the place w h ith e r the goods are to be carried, because there may be a charter- p a rty under which the vessel is engaged to go to some other p o rt before proceeding to the p o rt of destination of the goods. In the case of a b ill ot lading, however, given a fte r the goods have been shipped, the voyage agreed upon between the shipper and shipowner must, in the absence ot anything to the contrary, be taken to be fro m the p o rt where the goods are shipped to the p o rt of destination. The voyage in th is case, therefore, was fro m Malaga to Liverpool, and, i f there was n o thing else in the b ill of lading, the vessel wf>«
bound to go fro m Malaga to L iverpool according to the ordinary course w hich a steamer would take on such a voyage, and w ould not be e n titled to call or stop at any p o rt on th e way. I n th is b ill of lading we find the voyage described, and then this provision, “ w ith lib e rty to proceed to and to stay a t any p o rt or ports in any ro ta tio n in the Mediterranean, Levant, Black Sea, or A d ria tic , or on th e coasts of A fric a , Spain, P ortugal, Prance, Great B rita in , and Ireland, fo r the purpose of delivering coals, cargo, or passengers, or fo r any other purpose whatso
ever ” That provision follows a fte r the descrip
tio n of the voyage, and is a lib e rty to do some
th in g w ith regard to th a t voyage as described.
I t has been held by the courts in m ercantile cases that, where lib e rty is reserved to call at any port, i t means lib e rtv to call at any ports on the course of the agreed voyage, though they may not be ports exactly on the o rdinary sea course w hich a vessel would take on such a voyage, and to call a t them in geographical order. Then the ship
owners made agreements th a t they should be at lib e rty to call at ports in any order so as to get r id of the effect of those deci
sions. In th is case we fin d the words m any rotation,” b u t those words are used w ith regard to the voyage described, and mean any p o rt on the described voyage. Is th a t the only reasonable and fa ir construction which can be placed upon those words coupled w ith the descrip
tion of the voyage? They cannot reasonably mean th a t there is to be lib e rty to go anywhere to any p o rt w hich has nothing whatever to do w ith the voyage described. They m ust mean such of the places named as are substantially on the course of the voyage described, and th a t was the ru le laid down in L e d u c v. W a r d { u b i s u p . ) . I f th a t be so, the re su lt is th is : th a t the voyage agreed upon was from Malaga to Liverpool ; th a t the vessel went in the contrary d ire ctio n to B urnana about tw o days’ voyage fro m Malaga, and the appellants adm it that, if th e ir argum ent is correct, she m ig h t have gone in th a t direction as fa r as the Black Sea. Now, can any reasonable person say th a t fo r the vessel to go from Malaga to B urriana, and then back again, was a voyage from Malaga to L iv e rp o o l; o r th a t i t was in the course of such a voyage ? I th in k not ; i t was a w h o lly and absolutely different voyage fro m th a t de
scribed in the b ill, of lading. I f a shipowner means to ship goods at different ports, some, say, at Malaga and some at ports fu rth e r east, he should make up his m ind at firs t, and begin at the ports fu rth e s t east before shipping goods at M a la g a ; or, i f he does as in th is case, he m ust take care to describe the voyage in the b ill of lading given at Malaga as a voyage fro m Malaga
Ct. op App.] Sansinena and Co. v. R. P. Houston and Co. [Ct. op App. to B u rria n a and thence to Liverpool, and then
the shipper of goods w ould know where the vessel was going to and w hat he was agreeing to. I see no d iffic u lty whatever in the way of shipowners doing th e ir business in th a t manner. I am clearly of opinion that, according to the rules of con
stru ctio n la id down in L e d u c v. W a r d ( u b i s u p . ) ,
the tru e construction of this b ill of lading is what I have stated, and th a t there was no lib e rty to go to places not on the course of the voyage from Malaga to Liverpool. The decision of the learned judge who trie d the action was correct, and the decision of th is question determines the action in favour of the pla in tiffs. This appeal m ust be dis
missed.
Bowen, L .J .—I am of the same opinion. A cargo of oranges was shipped on board a steamer at Malaga fo r Liverpool, under a contract con
tained in a b ill of lading. Instead of proceeding from Malaga to Liverpool, the steamer proceeded in a north-easterly direction to Burriana, which was two days’ sail from Malaga. Owing to the delay the oranges were spoiled, and the shippers claimed damages fro m the shipowners. The ship
owners seek to ju s tify th a t delay by the terms of the contract of carriage itse lf. The question now is whether the p a rtic u la r provision in the contract of carriage can be p u t forw ard to ju s tify th a t delay. The b ill of la d in g stated th a t the ship was on a voyage fro m Malaga to Liverpool “ w ith lib e rty to proceed to and stay at any port or ports in any rotation in the Mediterranean, Levant, B lack Sea, or A d ria tic , or on the coasts of A frica , Spain, Portugal, Prance, Great B rita in , and Ir e land, fo r the purpose of delivering coals, cargo, or
P
assengers, or fo r any other purpose whatsoever.”he shipowner asserts th a t this clause gave lib e rty to go anywhere except to Asia, Am erica, or A u stra lia . The question is, whether these general words can be construed as g iv in g th a t very large lib e rty , or whether there is not a ru le of construc
tio n of such contracts as these w hich w ill give a more reasonable meaning to those words. The general words are thus large and wide in th is b ill of lading, because these ships in the M edi
terranean trade, w hich coast around to collect cargo, have p rin te d forms of b ills of lading con
ta in in g terms wide enough to apply at any p o rt where they ship goods. As soon, however, as the voyage is described in the h ill of lading, th a t description of the voyage m ust cu t down the mean
in g of the general words to such as is reasonably applicable to the voyage w hich has been agreed upon. A n y other construction is impossible, for otherwise shippers could not insure th e ir goods, n o t know ing how long the voyage m ig h t be.
The general words, therefore, m ust be lim ite d by the voyage agreed upon. I t w ould be co n tra ry to any reasonable ru le of construction to give to such general words th e ir widest meaning a fte r the insertion of the description of the voyage w hich lim its the contract. There is, besides, the a u th o rity of the case of L e d u c v. W a r d ( u b i s u p . ) ,
w ith w hich I most em phatically agree, and the rules of construction la id down in th a t case show th a t our construction of this contract is the proper one. I n the case of O a i r d n e r v. S e n h o u s e ( u b i s u p . ) L o rd Mansfield, C.J. adopted the same k in d of lim it of construction in construing the general words in a policy of marine insurance, a contract of a s im ila r business k in d as a b ill of lading. The courts, therefore, have always
insisted on lim itin g such general words as these by the context, and by the objects of the contract.
The decision of H awkins, J. was rig h t, and the appeal m u st be dismissed.
Fe y, L .J. — I am of the same opinion. I t appears to me that, in th is case, we have to apply an old and well-established ru le of construction, w hich is illu s tra te d by the recent case of L e d u c v.
W a r d ( u b i s u p .) . This ru le of construction is applicable to a ll kinds of contracts, and not to th is k in d of contract only. Here the case is of th is description : specific words are used as to the object of the contract, which are followed by words of such generality as to be in consistent w ith, and destructive of, the special object of the contract if they are given th e ir widest meaning. The principle to be applied in construing such a contract is, th a t the general words are to be lim ite d so as to be consistent w ith, and not destructive of, the p a rtic u la r object.
That ru le must be applied here, and I agree w ith the M aster of the Rolls in his application of it to th is contract. A p p e a l d is m is s e d .
S olicitors : fo r the appellants, W . A . C r u m p and
S o n ; fo r the respondents, S n o w , S n o iv , and C o .
M o n d a y , F e b . 29, 1892.
(Before L o rd Esher, M.R., Fry and Lopes, L.JJ.) Sansinenaand Co. v . R. P. Houstonand Co. ( a )
appeal from the queen’s bench division.
C h a r t e r - p a r t y — B i l l o f l a d i n g — I n c o r p o r a t i o n o f te r m s a n d c o n d it io n s o f b i l l o f l a d i n g i n t o c h a r t e r - p a r t y .
B y a c h a r t e r - p a r t y i t w a s p r o v i d e d t h a t th e s h ip o w n e r s s h o u ld f i x , i n a s u it a b l e p la c e o n b o a r d , p r o p e r r e f r i g e r a t i n g m a c h i n e r y a n d i n s u l a t e d c h a m b e r s , a n d s h o u l d d u r i n g th e v o y a g e k e e p th e i n s u l a t e d c h a m b e rs a t a t e m p e r a t u r e n o t e x c e e d i n g 28 d e g re e s F a h r e n h e it , a n y a c c id e n t , b r e a k d o w n , o r m i s h a p to th e m a c h i n e r y , o r c a u s e b e y o n d th e o w n e r s ’ c o n t r o l n o t p r e v e n t i n g ; a n d i t w a s f u r t h e r p r o v i d e d t h a t “ th e p e r f o r m a n c e b y th e o w n e r s o f t h e i r p a r t o f th e a g r e e m e n t is s u b je c t to th e e x c e p tio n s a n d p e r i l s m e n t io n e d i n th e b i l l o f l a d i n g a c c o r d in g to f o r m a tta c h e d h e r e to , a n d th e a g r e e m e n t h e r e i n c o n t a in e d o n th e p a r t o f th e o w n e r s s h a l l be r e a d a s i f s u c h c la u s e s a n d c o n d it io n s w e r e h e r e i n r e p e a t e d ; a l l c a r g o s h ip p e d b y th e c h a r t e r e r s i n p u r s u a n c e o f t h is a g r e e m e n t s h a l l be re c e iv e d a n d c a r r i e d s u b je c t to th e te r m s a n d c o n d i t i o n s i n th e s a id b i l l o f l a d i n g , e x c e p t a s a lt e r e d b y th e se p r e s e n ts .” B y th e te r m s o f th e b i l l o f l a d i n g a n y lo s s o r d a m a g e w a s e x c e p te d w h i c h m i g h t r e s u l t f r o m “ th e c o n s e q u e n c e o f a n y d a m a g e , b r e a k d o w n , o r i n j u r y to , o r d e fe c t i n , h u l l , t a c k le , b o ile r s , o r m a c h in e r y , o r t h e i r a p p u r t e n a n c e s , r e f r i g e r a t i n g e n g in e s , o r c h a m b e r s , o r a n y p a r t th e r e o f , o u t f i t , t a c k le , o r o t h e r a p p u r t e n a n c e s , h o w e v e r s u c h d a m a g e , d e fe c t, o r i n j u r y , m i g h t be c a u s e d , a n d n o t w i t h s t a n d in g t h a t th e s a m e m i g h t h a v e e x is te d a t , o r a t a n y t im e b e fo re , th e l o a d i n g o r s a i l i n g o f th e v e s s e l . . . o r b y u n s e a w o r t h in e s s o f th e s h ip a t th e b e g i n n i n g o r a n y p e r i o d o f th e v o y a g e , p r o v i d e d a l l r e a s o n a b le m e a n s h a d b ee n t a k e n to p r o v i d e a g a i n s t s u c h u n s e a w o r th v n e s s .”
(a) Reported by J. H. Wil l ia m s, Esq., Barrister-at-Law.
m a r it im e l a w c a s e s
.
151"hI ^ M A AMD C ^ X pT HoDSTQN AND Oo.
Ct. of App.] ________ __
The charterers sued the owners
beyond the owners’ control, prevented,
H e ld (affirm ing the W ^ ^ J ^ f o n e ^ i n the
g a tio n im p o s id b y th e
ownere to provide proper j y • n8Ui ai e^
and insulated chambers a n d to keep the in s u la chambers at the agreed temperature.
T ins was an appeal from r eifmhm ry°poin°d of law of Charles, J. upon a P
raised by the pleadings^in th re00ver The action was an action Hroug tQ the damages fo r b re a n h of con r , gy^an agree- carriage of . g w t he '9 th May, 1889, ment in w ritin g , maae o def endants, i t was between the p la in tiffs anid t h ^ defendantSj who provided b y clause 3 , th pr0Tide a service were steamship owners, s P meat f rom of steamers for the carriage o£ tro “ onu ld at th e ir South Am erica to Liverpool, and sbou ^ &
own cost fix m each of two st re frig e ra tin g suitable place on the la tte r to machines and insulated th a t du rin g be placed under the mam deck, and t ^ g
so much of the voyages of the ^ s a ^ ^ such steamers should ha ghould supp?y the charterers on board, ^ kin£, the said machinery, steam necessary fo r wor g chambers, in which and should keep the insulated chamo ’ tu re not such meat ¿ - ^ r ^ h r e n h e i t . A n y acci- exeeeding 28 de8rees : hap to the machinery,
£ . » ? . • • » “ * » * »
-16 o! ■ S " “ * “ * “
t h a t : , ,w th e owners of their part of this The pe rform ance by the e tion8 and perils men-agreement is subject to „,,„or(j i ng to form attached tioned in the b ill of lad'“ Sf e-n contained on the part hereto, and the agreeme .{ auch clauses and con-of the owner shall be rea cargo shipped by the ditions were herein repea • agreement shall be charterers in pursuance to the terms and conditions received and carried subject to me ^ altered by these of the said b ill of lading, e P form shall be given presents, and bills of lading
therefor. dg mentioned in the b ill The exceptions and perns menu
of lading were : . damage re8 ult-The act of G°d- Q u ^ n ® en^ decay. leakage ing from effects of climat , f rom Bt 0Wage, or by or breakage, or damage gaaaence 0f any damage, contact with leakage; the «“ ^ u e n c .^ ^ ^
breakdown, or injury_ t , ° appurtenances, refngera-boilers, or machinery, or t P t hereof, outfit, ting engine or cbamber, r however such damage, tackle, or other appurtena ’ d and notwithstanding defect, or injury might “ t or at any time tha t the same might h * r iu e vessel, and whether
before, the therefrom, were
such perils, or the los® ° r„ , J / default, negligence, or occasioned by the wrong owners, master, officers,
[Ct. or A pr.
nr after or during the voyage, or for whose acts the shipowners would otherwise be liable, or by unsea.
worthiness of the ship at the beginning, or at any neriod of the voyage, provided a ll reasonable means had been taken to provide against such
unseaworthi-The defendants received on board one of the steamers a cargo of frozen meat to be carped to Liverpool, and there delivered to the p la in tiffs.
The p la in tiffs alleged, in th e ir statement of claim, th a t the frozen meat was delivered at Liverpool in a damaged condition, and th a t such damage was not caused b y any p e ril excepted by the terms of the agreem ent; th a t the steamer was not, at the commencement of the voyage, in a fit and seaworthy condition to receive and ca rry the said cargo, owing to the re frig e ra tin g engines being u n fit and in s u ffic ie n t; and th a t the defendants failed to keep the insulated chambers, in w hich the cargo was stowed, at a temperature not exceeding 28 degrees Fahrenheit, although not prevented by any accident, breakdown, or mishap to the machinery, or by any cause beyond the owners’ control.
The defendants pleaded, in t h e ir sta te m e n t o f defence, th a t th e fa ilu r e to keep th e in s u la te d chambers a t a te m p e ra tu re n o t exceeding 28 degrees F a h re n h e it, and th e damages com plained of, were in each case caused by breakdow ns o r defects in th e r e fr ig e r a tin g engine and cham bers, a n d in th e o u tfit, tackle , and appurtenances w ith in th e m eaning o f th e exceptions m en tion ed m th e b ill o f la d in g ; and th a t th e alleged unfitness and unseaworthiness o f th e steam er existed n o tw ith s ta n d in g a ll reasonable means had been ta k e n to p ro v id e ag ainst th e same, and la y w h o lly in defects w h ic h came w ith in th e exceptions m en
tio n e d in th e b i l l o f la d in g .
The p la in tiffs replied (in paragraph 3 of th e ir reply) th a t, upon the tru e construction of the agreement and b ill of lading, the defendants were bound to keep the insulated chambers at a tem perature not exceeding 28 degrees Fahrenheit, any accident, breakdown, or mishap to the machinery, or cause beyond the owners co n tro l not preventing, and th a t fa ilu re to keep the said chambers a t the tem p e ra tu re re q u ire d as aforesaid was not excused or excepted by reason th a t i t arose from defects in the re frig e ra tin g engines or chambers, or in the o u tfit, tackle, or appurte- nances.
A t the hearing before Charles, J., the learned judge decided th is question of law in favour of the pla in tiffs.
The defendants appealed.
S ir G . B u s s e ll , Q.C., B i g h a m , Q.C., and C a r v e r ,
fo r the appellants.
B a r n e s , Q.C. and J o s e p h W a l t o n , fo r the respon
dents, were n o t heard.
L o rd Esheb, M .R .—I agree w ith the ju d g m e n t of Charles, J. Here there is an agreement in the nature of a charter-party, and a b ill of lading or a document in the nature of a b ill of lading. This b ill of lading is to be, to a certain extent, incor
porated in to the charter-party. I t is necessary, therefore, to construe the charter-party, having firs t introduced in to i t all, or p a rt of, the terms of the b ill of lading. I f the th ir d clause of the charter-party contains an absolute undertaking by the shipowners to do the things therein men
tioned, subject only to the exceptions therein
pro-Cx. o r Ap p.1 Sa n s i n e n a a n d Go. v.R. P. Ho u s t o n a n d Go.
vided, and i f in the b ill of lading there is a clause w hich would impose only a more lim ite d lia b ility upon the shipowners in respect of those things, then the charter-party and the b ill of lading are conflicting. U nder such circumstances, what m ust be the true reading of the contract P A re a ll the clauses of the b ill of lading to be read in to the charter-party, or not ? T u rn in g to the charter-party, clause 16 provides th a t cargo shipped under the ch arter-party is to be received and carried subject to the terms and conditions of the b ill of la d in g “ except as altered ” by the charter-party. The b ill of la d in g is, therefore, p u t first, and the cargo is to be received and carried under i t “ except as a lte re d ” by the charter-party. So fa r as the b ill of lading is altered by the charter-party, i t is not to be read into it. I t has been argued th a t the words “ subject to the terms and conditions in the b ill of lading except as altered by these presents ” do not apply in the present case. Upon whom is the lia b ility imposed by the words “ all cargo shipped by the charterers in pursuance of this agreement shall be received and carried subject to the terms and conditions of the b ill of la d in g except as altered
vided, and i f in the b ill of lading there is a clause w hich would impose only a more lim ite d lia b ility upon the shipowners in respect of those things, then the charter-party and the b ill of lading are conflicting. U nder such circumstances, what m ust be the true reading of the contract P A re a ll the clauses of the b ill of lading to be read in to the charter-party, or not ? T u rn in g to the charter-party, clause 16 provides th a t cargo shipped under the ch arter-party is to be received and carried subject to the terms and conditions of the b ill of la d in g “ except as altered ” by the charter-party. The b ill of la d in g is, therefore, p u t first, and the cargo is to be received and carried under i t “ except as a lte re d ” by the charter-party. So fa r as the b ill of lading is altered by the charter-party, i t is not to be read into it. I t has been argued th a t the words “ subject to the terms and conditions in the b ill of lading except as altered by these presents ” do not apply in the present case. Upon whom is the lia b ility imposed by the words “ all cargo shipped by the charterers in pursuance of this agreement shall be received and carried subject to the terms and conditions of the b ill of la d in g except as altered