1866.

V.

CHAPPLE.

a voyage from Newcastle to Alexandria; London is not on the way to Alexandria, and it is conceded that Con- MACANDREW stantinople is not. This contract would not have entitled the Plaintiffs to have sailed from Newcastle to Hamburgh, and there to take on board an outward cargo. In Behn v. Burness (a), a statement that a ship was at a particular place was construed as a condition precedent. The charter-party in Clipsham v. Vertue (b) is differently framed from the present. If the stipulations here are conditions precedent the argument on the other side has shown no waiver by the Defendants of their right to rely on them.

Mellish was not called on to reply.

ERLE, C. J. In this case the charterers have not performed their part of the contract; but they say by way of defence that a condition precedent has been broken by the Plaintiffs, and that they the Defendants have therefore a right to throw up the charter-party. It is clear that a clause contained in a charter-party may either be such as to bind merely as an agreement, or that it may be a condition precedent; and the question is, whether this clause is a condition precedent, which, if broken, exonerates the charterer, or a stipulation merely for a breach of which an action is the remedy; and this depends upon the construction of the instrument and the intention of the parties. The charter-party says, that the Ephesus, being “every way fitted for the voyage, shall with all convenient speed (on being ready), having liberty to take an outward cargo for owners' benefit, direct or on the way, proceed to Alexandria," and there load. That is the part which is relied on for the Defendants as containing a condition precedent; but I am of opinion that there is nothing to show that it was the intention of the parties that this should be such a

V.

CHAPPLE.

1866. condition. If it was a condition precedent that the ship MACANDREW should proceed direct from Newcastle to Alexandria, I certainly agree that it was broken by either of the deviations suggested, namely, by the voyage to London in the first instance, and afterwards to Constantinople; but it is clear that it was a stipulation only. In Behn v. Burness (a) it was held by the Exchequer Chamber that the words "now in the port of Amsterdam" amounted to a warranty or condition precedent to the contract that the ship was there at the time of making the charter-party. But that case was decided upon the construction of the instrument with reference to the intention of the parties, and not with reference to the consideration of whether the whole object of the voyage had been frustrated by the breach; and, as it is admitted here that the whole object of the voyage was not frustrated by the breaches complained of in this case, it is unnecessary to consider that question now. The present case turns on the construction of the contract. If in consequence of the Plaintiffs neglecting to go direct to Alexandria the Defendants suffered injury, their remedy for that is by an action for breach of the agreement.

WILLES, J. I am of the same opinion. The Defendants seek to answer this claim by setting up deviation and delay. It seems to be now settled that deviation stands on the same footing as delay. It is also settled (at least in this Court) that a deviation or delay which has the effect of depriving the charterer of the whole benefit of his charter, which goes to the "whole root and consideration,” as Lord Ellenborough says in Davidson against Gwynne (b), at p. 389, and frustrates the object of the charter-party, would be an answer; but that a bare deviation short of that gives an action for damages, but has not the effect of avoiding the contract. In Boone v. Eyre (c),

(a) 3 B. & S. 751.

(b) 12 East, 381.

(c) 1 H. Blacks. 273, n. (a).

1866.

CHAPPLE.

Ritchie v. Atkinson (a), and Davidson v. Gwynne (b), that principle was recognized, and it seems that the phrases MACANDREW which have been used in the more recent cases are not new ones. In the present case the deviation does not go to the whole root and consideration, but is a non-performance of the contract which may be compensated in damages. It is enough to say that this vessel was not engaged for a particular cargo; that it is consistent with the facts stated, that the transaction was a speculation on the rise and fall of freight, and that the freights having been continuously falling from the month of January to the 1st of May, when the vessel was ready to load at Alexandria; and the vessel not having been ready to load there until a few days later than she would have been if there had been no deviation, the injury from delay is matter for a cross-action.

BYLES, J. I am of the same opinion. The principles which govern cases of this kind are laid down by the Lord Chief Justice in Seeger v. Duthie (c) :-" The construction to be put upon contracts of this sort depends upon the intention of the parties to be gathered from the language of the individual instrument. Whether particular stipulations are to be conditions precedent or not, must in all cases solely depend upon that intention as it is to be gathered from the instrument itself." That is the true and just result of all the decided cases. In this case there is an express stipulation that the ship shall, "with all convenient speed (on being ready), having liberty to take an outward cargo for owners' benefit, direct or on the way, proceed to Alexandria." If that is to be construed as a condition not to deviate, it is a condition to be implied; and, in order to see whether it should be so construed, we must look to the question of inconvenience and the intention of the parties. If such a stipulation were to be con

(a) 10 East, 295.

(b) 12 East, 381. (c) 8 C. B., N. S. 45, 64.

1866.

v.

CHAPPLE.

strued as a condition, any actionable delay would avoid MACANDREW the contract, and would defeat most charter-parties. This is au express stipulation that the ship shall proceed with all convenient speed to Alexandria; and it is to be implied that she shall not deviate, but it is not a condition that she shall not do so. In Freeman v. Taylor (a), cited by Mr. Mellish, the deviation was by going round by the Mauritius on the way to Bombay, where the ship arrived many weeks later than she would have done if she had proceeded thither direct, and was such as to deprive the freighter of the benefit of the contract, which was not the case here. As far as I can see my way in this case, the voyage to London was nothing more than the trial trip; and the deviation to Constantinople was only an actionable breach of the stipulation in question.

SMITH, J. I am of the same opinion. There is only one question, and that is one of construction, namely, whether this clause is a condition precedent, or a stipulation merely which, if broken, would be a ground for a crossaction. No doubt words might have been inserted in the charter-party sufficient to make this a condition precedent, if the parties had so intended. But if we were to hold this stipulation to be so, we should frustrate that intention. For any damage that has ensued, compensation is recoverable by a cross-action. The breach complained of does not go to the whole consideration; and that being so, the question as to what might have been the result, if the whole object of the charter-party had been frustrated by it, does not arise.

Judgment for the Plaintiffs.

(a) 8 Bing. 124.

1866.

In the Matter of the Complaint of DANIEL PAL-
MER V. THE LONDON AND SOUTH-WESTERN
RAILWAY COMPANY.

By a regulation of the London and South Western Railway Company, the gates Common carof their goods station at Nine Elms were closed against the public in rier. general at half past six in the evening; but though the complainant's The Railway vans loaded with goods intended to be forwarded by the railway on the and Canal same night were excluded after that hour, the railway company after Traffic Act, that hour admitted their own vans loaded with similar goods, and like. 1854 (17 & 18 wise those of Messrs. Pickford & Co., affidavits of the officers of the Vict. c. 31, s. 2). company positively affirming that this was done without any partiality Undue preferor improper motive. Upon an application under "The Railway and ence in receivCanal Traffic Act, 1854," for an injunction to restrain the company ing at railway from subjecting the complainant to undue prejudice, the Court was station goods equally divided; Erle, C. J., and Smith, J., holding that the applica- for forwarding tion ought not to be granted: Willes and Keating, JJ., contrà. the same night.

IN

N Michaelmas Term Henry James, on behalf of David Palmer, the complainant, who was a carrier, obtained a rule calling on the South-Western Railway Company to show cause why a writ of injunction should not issue against them, pursuant to "The Railway and Canal Traffic Act, 1854" (17 & 18 Vict. c. 31, s. 2), to restrain them from violating or contravening that Act, and enjoining obedience to the same; and to restrain them from subjecting the complainant and his traffic to undue and unreasonable prejudice and disadvantage in refusing to receive goods collected by him at the company's station at Nine Elms after the time fixed by the company, viz. halfpast six o'clock in the evening, whilst they received at that station at a later time goods collected by themselves and certain persons trading as Pickford & Co.; and to restrain them from giving an undue and unreasonable preference and advantage to themselves and Pickford & Co., by receiving goods at that station collected by themselves and