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and in writing, partly implied or understood and unwritten. But, in these cases, a restriction is established on the soundest principle, that the evidence received must not be of a particular which is repugnant to, or inconsistent with, the written contract. Merely that it varies the apparent contract is not enough to exclude the evidence; for it is impossible to add any material incident to the written terms of a contract without altering its effect, more or less; neither, in the construction of a contract among merchants, tradesmen or others, will the evidence be excluded because the words are in their ordinary meaning unambiguous; for the principle of admission is, that words perfectly unambiguous in their ordinary meaning are used by the contractors in a different sense from that."-Brown v. Byrne (1854), 3 El. & Bl. 703, at pp. 715, 716; 23 L. J. Q. B. 313, at p. 316, Coleridge, J., delivering the judgment of the Court (Coleridge, Wightman, Erle and Crompton, JJ.).

Peculiar Commercial Meaning of Words.

"I agree with my brother Hill that the words of a written commercial contract are to be understood in the sense which they have acquired in the trade to which the contract relates. It is a primâ facie presumption that, if the parties to such a contract use expressions which bear a peculiar meaning in the trade, they use them in that peculiar meaning; which can be ascertained only by parol evidence. I do not think that it is necessary, in order to render such evidence admissible, that there should be any ambiguity on the face of the phrase which has to be construed. . . . That [the rule laid down in Smith's Leading Cases, Vol. 1, p. 529 (ed. 5)] I take to be the true rule of law upon the subject; that when it is shown that a term or phrase in a written contract bears a peculiar meaning in the trade or business to which the contract relates, that meaning is, primâ facie, to be attributed to it, unless, upon the construction of the whole contract, enough appears, either from express words or by necessary implication, to show that the parties did not intend that meaning to prevail.”—Myers v. Sarl (1860), 3 El. & El. 306, at pp. 319, 320; 30 L. J. Q. B. 9, at p. 14, Blackburn, J.

"I wish to say, with the utmost respect for the arguments of counsel, I cannot agree in what I think was the contention, that there is a canon of construction by which the rigour of interpreta

tion in some commercial documents must be proportioned to the importance of the stipulation to be construed. I know of only one standard of construction, except where words have acquired a special conventional meaning, namely, what do the words mean on a fair reading having regard to the whole document.”—Nelson Line (Liverpool), Ltd. v. James Nelson & Sons, Ltd., [1908] A. C. 16, at p. 20; 77 L. J. K. B. 82, at p. 84, Lord Loreburn, L. C.

"The only observation I wish to add is one on the subject which the Lord Chancellor has just dealt with in reference to the language used by commercial men. Lord Blackburn used to say that the contest between commercial men and lawyers was that the commercial man always wished to write it short and the lawyers always wished to write it long; but a mixture of the two renders the whole thing unintelligible. I can quite understand that among commercial men documents passing from hand to hand, from hour to hour very often during the day, acquire a peculiar meaning, and when that is expanded the Courts will give effect to what is the known interpretation of such words.”—Ibid., at pp. 20, 21; L. J. at pp. 84, 85, Earl of Halsbury.

(See also ante, p. 124, "Contracts-Customs and Usages.")

Intention.

Ascertain the intention of the parties through the words they have used.

"In mercantile contracts, and indeed in all contracts where the meaning of language is to be determined by the Court, the governing principle must be to ascertain the intention of the parties, through the words they have used. This principle is one of universal application. It is seldom, in mercantile contracts, that any technical or artificial rule of law can be brought to bear upon their construction. The question really is the meaning of the language, and must be the same everywhere."-McConnel v. Murphy (1873), L. R. 5 P. C. 203, at pp. 218, 219, Sir Montague E. Smith (delivering the judgment of their lordships).

Accepted interpretation should not be in the least altered.

"Now charterparties, bills of lading, and policies of marineinsurance are documents which do not materially differ from an ordinary daily form of each. As mercantile business has been

enlarged they have differed from time to time, but they do not differ from day to day, and in their substantial structure, which is very peculiar, they are much the same as they have been from the beginning. Where documents are in daily use in mercantile affairs, without any substantial difference in form from time to time, it is most material that the construction which was given to them years ago, and which has from that time been accepted in the courts of law, and in the mercantile world, should not be in the least altered, because all subsequent contracts have been made on the faith of the decisions. Therefore, whether one thinks that one would oneself have come to the same conclusion as the judges did in the beginning is immaterial. One ought to adhere strictly to the construction which has been put upon such documents. Moreover, if those documents, construed as the judges have construed them for many years, have also for many years been applied in a particular way to facts similar to those which are in question at this day in a cause, it is equally material, in my opinion, to adhere to that application, or else mercantile business becomes wholly uncertain.”—Pandorf v. Hamilton (1886), 17 Q. B. D. 671, at pp. 673, 674; 55 L. J. Q. B. 546, at p. 547, Lord Esher, M. R.

Bill of Lading.

A bill of lading expresses the terms of the contract between shipper and shipowner.

"The primary office and purpose of a bill of lading, although by mercantile law and usage it is a symbol of the right of property in the goods, is to express the terms of the contract between the shipper and the shipowner."-Glyn, Mills & Co. v. East and West India Dock Co. (1882), 7 App. Cas. 591, at p. 596, Lord Selborne, L. C. (cited in Leduc v. Ward (1888), 20 Q. B. D. 475, at p. 480; 57 L. J. Q. B. 379, at p. 381, by Lord Esher, M. R.).

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Clause exempting a Shipowner from Liability.

Unquestionably, if in a clause in a bill of lading exempting a shipowner from liability there is an ambiguity, the document must be construed in favour of the shipper."-Baerselman v. Bailey, [1895] 2 Q. B. 301, at p. 305; 64 L. J. Q. B. 707, at p. 710, Rigby, L. J.

General common law liabilities will not be held to have been excepted unless it plainly appears that it was intended to except them.

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"With great deference to the opinion of the learned judge (Walton, J.) especially in a case of this kind [a bill of lading], I have come to the conclusion that he did not give sufficient effect to certain broad considerations, which should be borne in mind in construing documents. It appears to me to be true with regard to a bill of lading, as with regard to any other legal document, that, where there are several clauses, as far as possible they must be construed consistently with one another, and one of them ought not to be treated as surplusage, and rejected, unless it is impossible to read it with other clauses. Another general consideration is that which was expressed by Vaughan Williams, L. J., in Rathbone Brothers & Co. v. McIver, Sons & Co., [1903] 2 K. B. 378, at pp. 383, 384; 72 L. J. K. B. 703, at p. 705, in the following terms: Before I go into the case in detail I wish to point out the broad principle, which I think ought to be applied in the construction of a bill of lading, or indeed of any other contract relating to the carriage of goods by sea-for instance, a charterparty. The principle was laid down by Bigham, J., and by the Court of Appeal, in Owners of Cargo on Waikato v. New Zealand Shipping Co., [1898] 1 Q. B. 645, at p. 647; 67 L. J. Q. B. 514, at p. 515; to the effect that, with reference to the carriage of goods by sea, the law implies certain warranties on the part of the shipowner. It puts upon him certain obligations, which will always bind him, unless there are in the contract clear and express words, which without ambiguity relieve him from that which I may call his common law obligations.' Romer, L. J., in that case (at pp. 388, 389; L. J. at p. 708), also expressed the same principle as follows: As I understand shipowners have been for a long time endeavouring to limit the general liability cast upon them as carriers by sea, by inserting special exceptions, without going the length of excepting their liability in respect of the warranty of seaworthiness, and they have been, as I understand, from time to time extending the special exceptions. I think, however, I am right in saying that,

principle of construction, the warranty of seaworthiness will be held not to have been excepted, unless it plainly appears that it was intended to except it. In other words the Court will not readily infer an exception of that warranty.' Those two passages

appear to me to state in clear language the general principle of construction applicable to these documents."-Borthwick v. Elderslie Steamship Co., [1904] 1 K. B. 319, at pp. 324, 325; 73 L. J. K. B. 240, at p. 243, Lord Alverstone, C. J.

Charterparty.

"It is to be borne in mind that we are here dealing with a mercantile instrument, in the interpretation of which we must look at the substance of the matter, and are not restrained to such nicety of construction as is the case with regard to conveyances, pleadings and the like."- Cockburn v. Alexander (1848), 6 C. B. 791, at p. 814; 18 L. J. C. P. 74, at pp. 82, 83, Maule, J.

"It appears to me that this case [of a charterparty] is to be determined by the general rule of construction, so often referred to as the golden rule, which is equally applicable to Acts of Parliament and to private contracts-viz., that the grammatical sense of the words must be adhered to, unless such a construction would be contrary to the expressed intention of the parties, or would involve some absurdity, repugnance, or inconsistency."-Gether v. Capper (1855), 15 C. B. 696, at p. 706; 24 L. J. C. P. 69, at p. 71, Maule, J.

"Moreover, to use the words of Lord Ellenborough, in Barker v. Hodgson [(1814), 3 M. & S. 267, 270], the merchant is 'the adventurer who chalks out the voyage, who is to furnish at all events the subject-matter out of which the freight is to accrue.' He is, in most cases, as he certainly was in the present instance, the party best acquainted with the trade for which the ship is taken up, and with the difficulties which may impede the performance by him of his contract; words, therefore, in a charterparty, relaxing in his favour a clause by which an allowance to him of time for a specified object is in the interest of the ship precisely limited, must be read as inserted on his requirement, and construed at the least with this degree of strictness against him, that they shall not have put upon them an addition to their obvious meaning. Nevertheless, where the meaning is ambiguous, as it is in the present case, we think that it must be gathered from the surrounding circumstances to which the charterparty was intended to apply."Hudson v. Ede (1867), L. R. 2 Q. B. 566, at p. 578; 36 L. J. Q. B. 273, at p. 281, Blackburn, J., delivering the judgment of the Court (Cockburn, C. J., Blackburn, Mellor, and Shee, JJ.).

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