and 66

or

Lord Chancellor (Cairns) in delivering judgment in the above case referring, to the words " said:-"These words are not without some significance, because they appear rather to show that this specification of different kinds of cargo was to be read either disjunctively or conjunctively; it might be all of one kind, or it might be a mixture of the two kinds mentioned, not exceeding what the vessel can reasonably stow and carry over and above her tackles."

By a charter-party the defendant, the charterer, undertook to load at Archangel, "a full and complete cargo of oats or other lawful merchandise," and the plaintiffs, the shipowners, to deliver the same on being paid freight as follows:-" 4s. 6d. sterling per 320 lbs. weight delivered, for oats, and if any other cargo be shipped, in full and fair proportion thereto, according to the London Baltic printed rates." The defendant put on board at Archangel a full and complete cargo of flax, tow, and codilla, being three of the articles mentioned in the Baltic printed rates, and paid to the plaintiffs the freight earned by the goods thus shipped, according to a scale derived from the tables which constitute the Baltic rates. The plaintiffs claimed in addition the difference between this amount and the larger amount which would have been earned by a full and complete cargo of oats. Held, that flax, tow, and codilla being "lawful merchandise" within the meaning of the charter-party, the defendant had fulfilled his contract by loading a full and complete

cargo of those articles, and therefore, was not, on the true construction of the charter-party, liable for the additional freight claimed by the plaintiffs as upon a full cargo of oats.1

By the terms of a charter-party, "the ship P. was to proceed to Port Phillip, and there load a full and complete cargo of wool, tallow, bark, or other legal merchandise, the bark not to exceed 180 tons, the tallow and hides not to exceed 80 tons, and being so loaded to proceed therewith to London and deliver the same on being paid freight as follows: for wool pressed, twelve-eighths of a penny per pound, unpressed thirteen-eighths of a penny per pound, tallow 31. per ton, bark 47. per ton, hides 27. per ton, one-third to be paid in cash on unloading, the remainder by bills at two months." The ship took on board a few goods at Port Phillip, and obtained leave without prejudice to the charter to go to Sydney where she was loaded full, and returned to London with 61 tons of wool only, and a large quantity of dead weight. In an action for not loading at Port Phillip according to the tenor of the charter.-Held, that the terms of the charter-party meant that the shipowners should be paid freight for a full homeward cargo, consisting of 180 tons of bark, tallow and hides, and the residue of wool; and that damages were to be calculated on that basis. Held also, that under the words "other legal merchandise," the charterer was at liberty to ship any lawful articles he pleased (due regard being paid Southampton Steam Colliery Co. v. Clarke, L. R. 6 Ex. 53.

1

to the safety of the vessel,) but was bound to pay the same amount of freight as the vessel would have earned if loaded within the terms of the charter.1

Wilde, C. J., in giving his judgment said: "Though it is palpable that under the words 'other legal merchandise' (whether those words are to be construed as authorising the shipment of articles ejusdem generis as those before enumerated, or whether as an authority to ship at large any lawful merchandise), the shipment of unenumerated articles was contemplated."

So far as the calculation of the freight is involved in the construction of a charter-party to carry a cargo of lawful merchandise, and the rates of freight for certain enumerated articles are specified, the liberty "to fill up with other lawful merchandise" has been stated to mean "other lawful merchandise" ejusdem generis with the articles enumerated.2

Where the question is, whether the statement in Now in the a charter-party that the ship is "now in the port port of A. of A" is a "representation" or a "warranty," using the latter word as synonymous with "condition," in which sense it has been for many years understood 'with respect to policies of insurance and charterparties, it may be expedient to commence the consideration of the question by some examination into the nature of representations. Properly speaking, a representation is a statement or assertion made by one party to the other, before or at the time of the

1 Cockburn v. Alexander, 18 L. J. C. P. 74.

2 Capper v. Forster, 3 Bing. 938.

contract, of some matter or circumstance relating to it. Although it is sometimes contained in a written instrument, it is not an integral part of the contract, and, consequently, the contract is not broken, though the representation proves to be untrue, nor (with the exception of the case of policies of insurance, at all events marine policies, which stand upon a peculiar anomalous footing) is such untruth any cause of action, nor has it any efficacy whatever, unless the representation was made fraudulently, either by reason of its being made with a knowledge of its untruth, or by reason of its being made dishonestly with a reckless ignorance whether it was true or untrue. If this be so, it is difficult to understand the distinction which is to be found in some of the treatises, and is in some degree, perhaps, sanctioned by judicial authority," that a representation, if it differs from the truth to an unreasonable extent, may affect the validity of the contract. Where, indeed, the representation is so gross as to amount to sufficient evidence of fraud, it is obvious that the contract would, on that ground, be voidable. Although representations are not usually contained in the written instrument of contract, yet they sometimes are, but their insertion therein cannot alter their nature. A question, however, may arise whether a descriptive statement in the written instrument is a mere representation, or whether it is a substantive part of the contract.

1 Elliott v. Von Glehn, 13 Q.B. 632; Wheclton v. Hardisty, 8 E. & B.232. 2 Barker v. Windle, 25 L. J. Q. B. 319.

This is a question of construction which the Court, and not the jury, must determine. If the Court should come to the conclusion, that such a statement by one party was intended to be a substantive part of his contract, and not a mere representation, the often discussed question may, of course, be raised, whether this part of the contract is a condition precedent, or only an independent agreement, a breach of which will not justify a repudiation of the contract, but will only be a cause of action for compensation in damages. In the construction of charter-parties this question has been often raised with reference to stipulations that some future thing shall be done, or shall happen, and has given rise to many nice distinctions. Thus, a statement that a vessel is to sail, or be ready to receive a cargo, on or before a given day, has been held to be a condition;1 while a stipulation that she shall sail with all convenient speed, or within a reasonable time, has been held to be only an agreement. With respect to statements in a contract descriptive of the subject matter of it, or of some material incident thereof, the true doctrine established by principle, as well as authority, appears to be, generally speaking, that if such descriptive statement was intended to be a substantive part of the contract, it is to be regarded

1 Glaholm v. Hays, 2 M.&G. 257; Oliver v. Fielden, 4 Ex. 135; Crookewit v. Fletcher, 1 H. & N. 893; Seeger v. Duthie, 8 C. B. N. S. 45.

2 Tarrabochia v. Hickie, 1 H. & N. 183; Dimech v. Corlett, 12 Moo. P. C. 199; Clipsham v. Vertue, 5 Q. B. 265.