Page images

that there is no difference in the construction to be given to the printed and the written words of an instrument of this nature, and that both are to be considered of equal force. I cannot assent to that argument. I have always understood that in the case of policies of insurance partly printed and partly written, if there was any variance or inconsistency between the two parts, most regard was to be paid to the written part."

A. greater effect is to be attributed to the written words, if there should be any reasonable doubt upon the sense and meaning of the whole instrument, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects.1

The part which is actually and specially inserted in a printed instrument is naturally more in harmony with what the parties are intending than the other parts, although it must not be used so as to reject the residue, or to make it have no effect.


Thus, in Scrutton v. Childs, a written clause, that the cargo was to be loaded at Trinidad "as customary" (i. e. the shipowner paying for lighters,) prevailed over a printed clause, by which the cargo

1 Robertson v. French, 4 East, 136; Deslandes v. Gregory, 30 L.J.Q.B. 36. 2 Joyce v. Realm Mar. Ins. Co., L. R. 7 Q. B. 583; 41 L. J. Q. B. 356. 33 Asp. M. L. C. N. S. 373.

was to be brought to, and taken from, alongside at merchant's risk and expense.

Referring to the above case, the President in the case of the Nifa1 observed:-" Reliance has been placed upon the case of Scrutton v. Childs." There as here, part of the material language was in print, and part in writing, and the question was argued which was to prevail. Mr. Justice Mellor said :"The parties appear to have forgotten to strike out the printed words which contradicted the written ones, and the question for us to decide is, which is to prevail of two contradictories"? "and it was held that of the two the written words were to be preferred. But the question appears to me to be whether there is a contradiction between the two? If not, we need not strike out one or the other." He further added "I am not going to say that if there be a contradiction between the two, that rule may not apply; but if there is no contradiction, the rule does not apply."

[ocr errors]

Where oranges were shipped on board a steamship under a bill of lading which stated that the ship was then lying in the Port of Malaga, and bound for Liverpool, with liberty to proceed to and stay at any port or ports in any station in the Mediterranean &c. for the purpose of delivering coals, cargo, or passengers, or for any other purpose whatsoever. The bill of lading contained a clause 1 L. R. (1892) P. 411; 62 L. J. Ad. 12.

23 Asp. M. L. C. N. S. 373.

Holman v. Wade, Times, May 11, 1877; Hayton v. Irwin, L R. 5 C. P. D. 130; Lishman v. Christie, L. R. 19 Q. B. D. 333; 56 L. J. Q. B. 538,

whereby the shipper expressly agreed to all its stipulations whether written or printed. The deviation clause was printed with the name of the port of shipment left blank and filled up in writing.

The ship left Malaga for a port on the East coast of Spain and out of her course for Liverpool, then returned and made for Liverpool, where the oranges were delivered in a damaged condition owing to the delay. In an action by the shipper against the shipowner for damages for breach of contract, the House of Lords held that the printed clause must not be construed so as to defeat the main object and intent of the contract, which was to carry the oranges from Malaga to Liverpool.1

Lord Herschell, L. C., remarking:-that "where general words are used in a printed form which are obviously intended to apply, so far as they are applicable, to the circumstances of a particular contract, which particular contract is to be embodied in or introduced into that printed form, I think you are justified in looking at the main object and intent of the contract and in limiting the general words used, having in view that object and intent."

Although a clause, by way of condition or warranty, contained in a charter-party, cannot be got rid of by reason of its being part of a printed form, not adverted to expressly by the parties, and intended by one of them to be omitted; yet, if the

1 Glynn v. Margetson, L. R. (1893) A. C. 351.

Notes, effect of.

other party was aware at the time that it could not be complied with, and after showing that it was broken, treated the charter as subsisting, it will afford him no defence to an action on the charter.1 Where by a charter-party, it was agreed that the Marginal vessel should proceed to Glasgow and there "load all such goods and merchandise as the charterers should tender alongside for shipment not exceeding what she could reasonably stow and carry, &c.," it was provided that the freight should be a lump sum of 2,2007., and the charter-party contained this guarantee:-"Owners guarantee that the vessel shall carry not less than 2000 tons dead weight," and this provision, "should the vessel not carry the guaranteed dead weight as above, any expenses incurred from this cause to be borne by the owners, and a pro rata reduction per ton to be made from the first payment of freight." The cargo intended to be carried was a general cargo consisting in part of railway locomotive machinery, and a note was by consent of the parties written upon the margin of the charter-party specifying the "largest pieces" of machinery which were to be included in the cargo by number, weight, and measurement. The charterers tendered a cargo not in excess of 2000 tons dead weight, consisting of railway machinery, including locomotives and tenders, two parcels of coals, and general goods. The large pieces of machinery were much more numerous than specified

1 Dixon v. Heriot, 2 F. & F. 760.

in the marginal note. The vessel sailed with only 1691 tons dead weight. It was not disputed that she contained a carrying capacity up to the guarantee; and it was admitted that 2000 tons dead weight of the cargo tendered could not have been carried on the vessel unless the coal had been packed with the machinery, which was not done. The charterers claimed a deduction in the freight.

It was held by the House of Lords (reversing the decision of the Court of Session), that the marginal note amounted to a representation, and the cargo being such a cargo as was not contemplated, and the fact being that the vessel carried less than the guaranteed dead weight because the charterers tendered large machinery in excess of their representation, they were not entitled to the benefit of the stipulation for reduction of the freight, and the whole lump freight was payable.'

Lord Watson said:-It was to be a general cargo, consisting in part of railway locomotive machinery, some portions of which occupy an extent of stowage room out of all proportion to their dead weight. During the same meeting at which the charter-party was signed (whether before or after signature does not clearly appear) a note, unauthenticated by their subscription or otherwise, was by consent of both parties written upon its margin, specifying the "largest pieces" of machinery which were to be included in the cargo by number, weight and

1 Mackill v. Wright, L. R. 14 App. Cas. 106.

« EelmineJätka »