have filled the ship up if she had not caught fire. The first difficulty raised by the defendant is that the vessel having met with this calamity and being two months under repair, the voyage became a different voyage, and the case came within the rule that the original voyage being frustrated and the voyage becoming a different voyage, the charterer is exonerated from loading. It would be the same question as if no cargo at all had been put on board, and after the ship was ready to take a cargo, a fire had broken out which led to the necessity of her being under repair for two months; would the charterer be exonerated from putting a cargo on board? I think not. There is no warranty here, no condition precedent that the vessel should be ready by any particular time. There is only the stipulation that she shall with all convenient speed sail and proceed to Pernambuco, getting as near as she can, and then load a cargo after having discharged the outward cargo. If without any voluntary neglect or wrongful act on the part of the shippers, she was delayed by an accident of this sort, and no cargo could be put on board at all, it appears to me that the charterer would not be excused, and he would be bound to furnish a cargo. That is the first point. Another point made was one not very easy to state as a distinct proposition. It was something like this:-That inasmuch as the vessel could not take the whole of the cargo to England, and inasmuch as the Captain had sold a portion of the cargo, and had sent another portion

of the cargo by another vessel to Liverpool, the plaintiff was under no obligation to do what in one sense had become impossible, that is, load a full and complete cargo, because all that he could do would be to put half the cargo on board, leaving the rest of the vessel to be wasted or not filled up, which was not in the original contemplation of the parties. It struck me at first that there was considerable weight in this objection; but upon consideration, I have come to the opinion that the charterer's relations to his consignees in England, or his own objects and views in entering into this charter-party, are things which ought not to affect its construction, and that this expression, to load a full and complete cargo,' means bring as much merchandise as will be 'a full and complete cargo;' and if instead of the words a full and complete cargo,' there had been what is clearly its equivalent, so many bales of cotton and so many bags of sugar, it would have been manifest that there would have been no difficulty in the way of his bringing the residue, although 1,000 of the bales and 1,000 of the bags had gone to the bottom and been destroyed. It seems to me, therefore, although the case is involved, that the plaintiff is entitled to our judgment on this short ground, that the defendants undertook to load on board so much as was in quantity a full and complete cargo; that he has not done it, and although a portion of it has been destroyed and never will come to England as cargo, and although the voyage has been delayed two months by this accident having taken place, his

6

obligation as to the rest of the cargo is not discharged, and consequently, I think, the plaintiff is entitled to our judgment.”

or

On a charter-party, by which a shipper agrees to load a full and complete cargo of sugar, molasses, and other lawful produce, evidence is admissible to prove that by the custom of merchants at the port of lading, a full and complete cargo of sugar and molasses in puncheons and hogsheads, is a com. pliance with such contract, although the same quantity of sugar, if packed in tierces, would not constitute such full and complete cargo.1

By a charter-party the owners agreed that a vessel, being then tight, staunch and strong, and wellconditioned for the voyage, should sail from Callao and load a cargo of guano at the Chincha Islands, calling on her way at Pisco, to obtain the necessary pass to load, to "be given to the captain by the charterer's agents, free of expense, within twentyfour hours of his application." To an action against the charterers for loading an insufficient quantity of guano, the defendants pleaded, that by the laws of the Republic of Peru, every vessel proceeding from Callao to the Chincha Islands for guano was obliged to procure from the government a written pass or permit, and that on inspection of the vessel the government refused to give a pass or permit; but on the plaintiffs repairing the vessel a permit was granted to load a limited quantity of guano, which was accordingly loaded, and that if a greater quantity had been loaded, the vessel and cargo would

Cuthbert v. Cumming, 21 L. J. Ex. 310.

have been liable to seizure:-Held on demurrer, that the plea was no answer to the action, for the defendants undertook to procure the pass, and were not prevented from so doing by any act of the plaintiffs, there being no allegation that in point of fact, the vessel was in an improper condition to load a greater quantity.'

Where the charterer is on board from time to time during the loading of a vessel, as also the broker, who has a duty to perform both towards the charterer and shipowner, if the charterer objects to the arrangements which are being made for the stowage of the cargo, it is his duty to protest at the time, and if he does not do so, the question for the jury will be whether the charterer's conduct induced the shipowner to suppose that he consented to the manner of stowage. So, where the cause of complaint in an action on a charter-party by the freighters against the owner of a vessel was, that a full cargo was not taken in, in consequence of arrangements in the stowage varying from those contemplated by the charter-party; it was held, that the plaintiff's were not entitled to recover.2

So much of the clause in the charter-party as states that the ship shall load from the factors of the charterers a full and complete cargo, is an agreement binding on the shipowner, and compels him to take a full and complete cargo on board, if procured by the factors of the freighters, and ready for delivery on board at the proper time. But the condition thereto

1 Kirk v. Gibbs, 26 L. J. Ex. 209.

2 Hovill v. Stephenson, 4 C. & P. 469.

"About," meaning of

annexed, that it shall not "exceed what the ship can conveniently stow and carry," is a condition introduced solely and exclusively in favor of the shipowner, in order to define and limit the extent of the general terms, "a full and complete cargo." An action cannot be brought against the shipowner for not loading a full and complete cargo, if he can shew, that no more of the ship was left empty than was sufficient to stow her tackle, apparel, provisions, and furniture. But, on the other hand, the clause does not contain any words obligatory on the shipowner that he shall not load more than the covenant compels, if the freighters require it and the shipowner assents to it. The captain and the crew may, by putting themselves to personal inconvenience, be able safely to load on board a larger cargo than the shipowner can be compelled to take; and such loading on board, if unattended with danger to the voyage or injury to the charterers, cannot be considered as a ground of action upon the breach of a condition introduced entirely for the shipowner's security. In short, the words are words of exemption in favor of the shipowner, and cannot be construed as words of obligation against him; they merely qualify the shipowner's engagement to carry a full cargo, and are not a substantive engagement on his part to stow the cargo in a reasonable manner.1

In Morris v. Levison, it was stated that 3 per cent. would be a fair estimate for satisfying the word

1 Gould v. Oliver, 2 M. & G. 208.

2 L. R. 1 C. P. D. 155; 45 L. J. C. P. 409.