Page images

stipulated that, "should the vessel not carry the guaranteed weight as above, any expense incurred from this cause to be borne by the owners, and pro ratá reduction per ton to be made from first payment of freight." The latter clause simply imports that should the charterers furnish a suitable cargo, within the meaning of the guarantee, and the vessel prove incapable, with proper stowage, of fulfilling it, her owners must allow a deduction from the lump freight, proportioned to the tonnage of cargo short shipped, together with the costs occasioned by their breach of contract.

"The construction of the guarantee is attended with more difficulty. The appellants undertake, in common form, to load "all such goods and merchandise as the charterers or their agents shall tender alongside, not exceeding what the vessel can reasonably stow or carry." To hold that the terms in which that obligation is conceived are necessarily conclusive in determining the kind of cargo which comes within the scope of the guarantee, would, in my opinion, neither be consistent with mercantile usage, nor with the principles of the law merchant. Business men are in the habit of making shipping contracts in these general terms for the purposes of a particular adventure; and wherever it appears that the precise nature of the cargo which the charterers had it in their contemplation to ship was mutually understood, and was in the view of both parties at the time when they contracted, it becomes a matter

of reasonable inference that such an obligation as is involved in the guarantee given by the appellants was meant to apply only to cargo of that description. Of course no such inference can be admitted when it is inconsistent with the express or implied conditions of the charter-party. But in cases like the present, it is competent to investigate the whole facts and circumstances attendant upon the execution of the charter-party, with the view of ascertaining what particular kind of goods, if any, it was then in the contemplation of both parties should be shipped and carried, that being the cargo with reference to which it must be presumed, in the absence of express or implied stipulation to the contrary, that the guarantee was given and accepted. If the fact that the "Lauderdale" did actually stow and carry only 1,690 tons dead weight of cargo was attributable to the respondents having sent forward large machinery in excess of their representation, their claim to a rateable deduction from freight is as effectually barred as if the representation had been embodied in the contract, and made an express condition of the guarantee. It appears from the evidence of the witnesses for the appellants, that over and above the twenty-three pieces specified in the marginal note, there were forwarded for shipment by the respondents, and carriage by the "Lauderdale," no less than sixty pieces of large machinery, of the same description, consisting of ten tenders and ten tender frames, weighing about four tons a

piece, the other forty pieces each weighing from two to four tons. That extra machinery was an awkward species of cargo, and if stowed by itself was calculated to interfere seriously with the dead weight carrying capacity of the ship. When so stowed, the tenders alone must according to the estimates given by different witnesses, have occupied from 186 to 210 tons of measurement space in excess of their dead weight. It was said that whenever it became known to those engaged in loading the ship that she could not, owing to the character of the goods sent forward, carry 2,000 tons dead weight, they were bound to make an intimation to that effect, so as to give the respondents an opportunity of substituting other goods for the extra machinery. But the respondents were fully aware of the terms of their contract, and of the representation which they had made in regard to the larger machinery. In my apprehension, it was for them to consider what amount or description of cargo they would furnish. So long as the goods which they chose to send alongside were capable of being properly stowed and carried, without danger to the ship or her navigation, the appellants could not reject them on the ground that they were not of the precise description contemplated in the guarantee. The appellants might be thereby released, either in whole or in part, from their undertaking to carry 2,000 tons dead weight, but they would not have been justified in refusing to carry any safe and otherwise suitable cargo which the charterers might find it possible or convenient to ship."

This view was followed in Wood v. Allen, tried at Liverpool, August 1st, 1890,' without a jury. The charter there provided for a cargo of "deal ends, firewood, and fifty standards of broom handles." And it stated that the ship had "carried 510 standards." The judge held that this was a guarantee that she could carry 540 standards of the agreed cargo. So that it was not satisfied by showing that she had carried 540 standards of planed boards, a lighter cargo. The ship in fact took on board only 472 standards, and was then fully deep. It was suggested that the wood was wet and heavy. The evidence showed that she had on previous occasions carried 520 standards of the kind of timber agreed; and damages were accordingly given for the loss on 20 standards.

A charter-party provided that the ship should load a cargo of creosoted sleepers and timbers, the charterers to have the option of shipping 200 tons of general cargo, and contained the following words: "Owners guarantee ship to carry at least about 90,000 cubic feet, or 1,500 tons dead weight."

A lump sum was payable as freight. The ship was in fact able to load no more than 65,000 cubic feet, equivalent to 1,120 tons dead weight of such cargo. In an action by the charterers against the owners for damages,-It was held that the clause "owners guarantee ship to carry at least about 90,000 cubic feet, or 1,500 tons dead weight of cargo," did not mean that the ship would be able to

1 Cited in Carver s. 141a.

"Or other lawful Merchandise."

carry that amount of the cargo specified, but merely that she had an actual carrying capacity of 90,000 cubic feet, or 1,500 tons.1

The general rule in construing a contract which gives an alternative, is that the party who is to do the first act which cannot be done without determining which it shall be, shall have the election; and applying this where there is a contract that the shipper shall supply a full cargo consisting of one or more of several articles, the shipper has the right to elect which of those articles he will supply. The shipper may supply a full cargo of any one or more of the articles enumerated in the charter party, and the shipowner must protect himself against any hardship that may arise from an extreme use of this privilege by a stipulation on his part.

So, a charter-party containing the words "the ship to load the following cargo of lawful merchandise . . ., a full and complete cargo of sugar in bags, hemp in compressed bales measurement



goods not exceeding what the vessel can reasonably stow and carry over and above her tackles," gives the charterer the option in what form he will tender the cargo, provided he tenders some or all of the goods named and no others, and does not present a cargo of any kind or of all kinds together, which is unreasonable, as regards the nature of the goods he presents.2


1 Carnegie v. Conner, L. R. 24 Q. B. D. 45; 59 L. J. Q. B. 122.

2 Stanton v. Richardson, 3 Asp. M. L. C. N. S, 23.

« EelmineJätka »