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another of less specific gravity, and the freighter would therefore pay freight in proportion to the specific gravity of the goods. Upon the whole I am of opinion, that the owner was bound to take on board such a number of tons of goods as the ship was capable of containing without injury."
Where by a charter-party the freighter covenanted to provide for the ship a full and complete cargo consisting of copper, tallow, and hides, or other goods, on which separate rates of freight were to be paid:-held, that having supplied her with as large a quantity of tallow and hides as she chose to take on board, he was not bound to provide any copper, although the vessel did not make so advantageous a freight as she otherwise would have done.1
By an agreement to proceed to the East Indies, and there load a full and complete cargo, the forecabin was to be filled with light goods; freight 47. 158. per ton of 20 cwt. for sugar, coffee, and rice; and for pepper at 18 cwt. to the ton; 100 tons of rice or sugar to be shipped previous to any other part of the loading, to ballast the vessel :-It was held, that the owner was obliged to furnish what further ballast was necessary, and that the freighter, after shipping the 100 tons of rice or sugar, was at liberty to complete the cargo with light goods."
Where by a charter-party it was agreed that the ship, the measurement of which was not given,
1 Moorsom v. Page, 4 Camp. 103.
2 Irving v. Clegg, 1 Bing. N. C. 53.
should proceed to the port of loading and there load a full and complete cargo of iron ore about 1,100 tons." The defendant loaded 1,080 tons, whereas the vessel could carry 1,210 tons safely and securely. The Court held that the charterer ought to have put on board a full and complete cargo, which under the charter-party would have been 1,133 tons.' Brett, J. stating in his judgment:"The question depends on the construction of the charter-party. By this charter-party the defendant undertakes to load a full and complete cargo, but with this phrase written under it, say about 1,100 tons,' and the question is what is the meaning of a charter-party so drawn, with regard to the circumstances which arose in this case. The cargo which the defendant loaded was 1,080 tons and no more. The vessel could carry 1,210 tons, and therefore it is obvious that the defendant did not load a full and complete cargo for that ship; but the question is whether the plaintiff is entitled to claim the difference between what the defendant loaded and what would be a full and complete cargo.
"Now a contract of this kind must be construed with regard to the relation of the parties to the subject matter of the contract, and the state of the law at the time it is made. As to the relation of the parties, the shipowner ought to know the capacity of his ship, whilst the charterer who has to provide a cargo for her at a specified time, and who may
1 Morris v. Levison, L. R. 1 C. P. D. 155; 45 L. J. C. P. 409.
have to pay demurrage for keeping the vessel if a sufficient cargo be not then ready, cannot know the capacity of the ship so accurately as the owner. Then as to the law, it had been held in Thomas v. Clarke,' and Hunter v. Fry, that where in a charterparty there was a stipulation for the charterer to load a full and complete cargo, and a statement at the commencement of the capacity of the ship, such a statement had no effect on the contract to load a
full and complete cargo. That being then the state of the law, we find it became afterwards usual to insert in the sentence in which the charterer undertakes to load a full and complete cargo, these words, 'say about' so many tons. It is the duty of the Court to construe this contract, and it is a governing rule in construing a contract to give effect if possible to every part of it. Taking into account the former decisions and the relation of the parties, it seems to me impossible to say that these words 'say about 1,100 tons' are mere words of expectation. I think that they are words of limitation and therefore words of contract. It seems to me that
words and also to the
we can give effect to these other words of the contract by saying that they constitute an undertaking by the shipowner that he will be satisfied with a cargo of about 1,100 tons, if the ship can carry more. If the ship can only carry less than that amount, then of course the charterer fulfils his contract by loading a full and complete cargo. If the construction be what the plaintiff
12 Stark. 150.
22 B. & A. 421.
has contended for, and if no meaning be given to the words,' say about 1,100 tons,' the hardship on the charterer might be very great; he might be misled by these words, and therefore not have a cargo sufficient to load the vessel at the port of loading, and consequently might have to pay demurrage for keeping the ship until a full cargo was obtained, or to pay damages for not loading a full cargo. I therefore think it sufficient to say that the more reasonable construction is that the shipowner undertakes that if the capacity of his ship be much larger than 1,100 tons he will, as between him and the charterer, accept a cargo of about 1,100 tons as a full and complete cargo."
It is for the jury to say whether a ship or cargo complies with its description in a particular case,' and therefore, the decision of the Court in Morris v. Levison that "about" would be satisfied by a margin of 3 per cent., is not a hard and fast rule which settles definitely the meaning of that word in all contracts, but it is probable that judges will advise juries to follow this ruling, just as they formerly directed juries, "that the deviation must not be very large.":
In the case of Alcock v. Leeuw, however, where the defendant contracted to ship about 5,000 barrels, and did load 5,017, a jury found the shipowner was entitled to demand 5,500 barrels.
See per Martin, B. in Windle v. Barker, 25 L. J. Q. B. 351.
By a charter-party entered into between the plaintiff, the owner, and the defendant, the charterer of the ship E. M., it was agreed that the said ship should proceed to P, and there load "a full and complete cargo of cotton," with a certain amount of sugar as ballast. The ship procceeded to P, and after a portion of the cargo had been loaded, and while another portion was in a lighter lying alongside ready for loading, the ship caught fire accidentally, and the portion of the cargo on board was so injured that the master necessarily sold it. IIe forwarded the portion alongside to its destination by a different ship. After the ship had been repaired, the plaintiff tendered it to the defendant's agents, and required them to load the residue of the cargo, which they refused to do:-Held, that the defendant was not exonerated by the circumstances from his obligation to complete the loading of a full and complete cargo.1
Bramwell, B. said: "This is an action on a charter-party for the home voyage of a vessel which was to go out, with liberty to take a cargo on her outward voyage. She went out, delivered her outward cargo, and took on board part of the cargo which the defendant was bound to ship. A fire accidentally broke out, and the cargo which was then on board was so damaged that it was necessary to sell it. The Captain sold it, and then the charterer's agents were called upon by him to give him what would be equivalent to the remainder of the cargo, and would
Jones v. Holme, 36 L. J. Ex. 192.