soon as they have shipped the cargo; and further, that the vessel shall be cleared at the Custom-house by them." The contention on the other side is, that the words in the present charter-party have the same effect as those in each of the two cases I have cited; but they are merely "the charterers' liability on this charter to cease when the cargo is shipped." Besides, this case is distinguishable because, by the decision of the Ex. Ch. in Smith v. Sieveking, 5 E. & B. 589, there is no lien provided by this charter-party for this demurrage. In the case of Bromhead v. Johnassohn, argued before the Court of Ex. on the 16th Jan. last, not yet reported (see 42 L. T. Business of the Week, 253) it was held that this provision was no defence to an action for not shipping within a specified time.

Brown, Q.C.-This provision is always introduced by the defts. into their foreign charter-parties on account of their being agents only, and their object is, as it was in the cases mentioned, to transfer the shipowner's remedy, in case of dispute, to their principals abroad. Our answer to the action is in effect that, from the shipping of the cargo, the plt. must look for recompence in all matters of complaint to the consignees at Antwerp. Smith v. Sieveking decided that the consignee, under a bill of lading, "paying for the said goods as per charter-party,' had nothing to do with the provisions of the charterparty concerning demurrage. In Milvain v. Perez, (p. 500), Crompton, J. said: "If the argument for the plts. were well founded, the defts. would be liable for everything that occurred either before, during, or after the loading, if the loading was not in regular turn. But it is evident that the defts. were not to be in any way responsible, provided the loading took place under the contract, although the cargo might be shipped a day or two later than was regular." [BYLES, J.-Is it customary to pay demurrage before the ship sails?] I believe not. The freight and demurrage are generally paid together. Here the captain has an absolute lien for freight, dead freight, and demurrage, which he or the owner shall be bound to exercise. The charterers undertake no more than to put the cargo on board.

Keane, in reply, referred to the case of Pearson v. Göschen, 17 C. B., N. S., 352; 10 L. T. Rep. N. S. 758, an action for freight and demurrage, in which Williams, J. said: "The words relied on (viz., master and owners to have an absolute lien for all freight, dead freight, demurrage, and other charges) in support of this claim are the printed words inserted in all these documents; and

.. if there are no special provisions they are not to be regarded. There are many words in most mercantile instruments which have no meaning at all if the contract in hand does not fit them."

BYLES, J.-I am of opinion that this is a good plea. It certainly does not contain so express a provision for the charterers' exemption after shipment as there was in each of the two cases of Oglesby v. Yglesias and Milvain v. Perez; but expressions similar to that in this charter-party intended to include demurrage before the sailing of the ship are not I believe unusual. In construing this stipulation literally, we are not therefore doing anything contrary to the custom of merchants. Here the cargo is to be loaded with all dispatch; this creates a liability on the deft.'s part to exercise dispatch in loading. By this plea the deft. does not dispute this, but he says that his liability ceased when the cargo was shipped, according to the express terms of the charter-party, provided the cargo, upon which the captain had a lien for such charges as this, is worth the freight at the port of discharge. This condition the plea goes on to aver was satisfied, and

[Ex.

I think that the demurrage, for which the captain or owner is to exercise an absolute lien, includes delay in loading and unloading. This plea then is within the express condition of the charter-party, and is therefore good.

KEATING, J.-I am of the same opinion, and looking at this charter-party I think the plea was intended by both parties to be good. The words are certainly less expressive than those in the cases mentioned by Mr. Keane, but they are sufficient to make the condition clear, and also the proviso which has to be fulfilled. It was the general intention of the parties to have recourse to the charter-party to settle any question of liability, and we shall not be straining its language by holding that it exempts the defts. by this condition. I agree with the remarks of my brother Byles.

M. SMITH, J.-I am of the same opinion. We must arrive at the intention as well as we can from the words of the document. They might have been more specific, but the clause is sufficiently clear to exempt the charterers from liability after the ship was loaded, on condition that the cargo was worth the freight. The exemption is from liability on the charter-party; Mr. Keane says the charterers' liability does not comprehend this claim, which arose prior to the ship's sailing. It seems, however, to me that the liability includes demurrage at loading port as well as at discharging port. The cargo was to be loaded and discharged with all dispatch, and both are charterers' liabilities under the charter-party. Judgment for defts.

Attorney for plt., J. S. Bennett.
Attorneys for defts., G. and W. Webb.

COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristers-at-Law..

Thursday, Jan. 17, 1867,

BUCKLE v. KNOOP AND ANOTHER.

Charter-party-Measurement of cargo at port of loading or of delivery-Calculation and payment of freight accordingly-Construction of charter-party-Custom of trade at Bombay—Admissibility of evidence of— Knowledge of.

By the terms of a charter-party between plt. and the defts., the plt.'s ship was to load a cargo of cotton at Bombay and proceed with and deliver the same at Liverpool, "on being paid freight as follows, viz., 758. per ton of 50 cubic feet delivered." The ship was duly loaded at Bombay with the stipulated cargo, the measurement of which was, in accordance with the established custom there, ascertained by submitting the bales, immediately before shipping them, to powerful hydraulic pressure, whereby they were compressed into the smallest possible compass and, so compressed, occupied a space of from six to eight tons of fifty cubic feet each less than the entire capacity of the ship, but when unloaded at Liverpool, and released from the restraint of the hold, they expanded to an extent exceeding by some 180 tons the capacity of the ship to contain them. The plt. claimed to be paid freight on the measurement of the cotton as "delivered" at Liverpool, which the defts. resisted, contending that the payment was to be calculated on the measurement of the cargo at the port of shipment. Evidence was admitted at the trial of a custom in the Bombay trade to pay freight on measurement of the cargo at Bombay, ascertained as above mentioned, which custom was found by the jury to exist, but there was no direct proof that the plt. was cognisant of its existence :

Held, first, that, upon the construction of the charterparty, and without reference to any question of usage, the amount payable for freight was to be ascertained by the measurement of the cotton at Bombay, the port of loading, and not at Liverpool, the port of delivery: Secondly, that evidence of the custom was properly admitted. Parties entering into a contract relating to a particular trade must be assumed to be cognisant of all the usages connected with that trade.

Gibson v. Sturge, 10 Ex. 626; 24 L. J. 121, Ex.; and Coulthurst v. Sweet, L. Rep., 1 C. P. 649, discussed and distinguished.

The plt. in this action was a shipowner residing at Bristol, and the owner of the ship Gloucestershire, and the defts. were merchants at Manchester, carrying on business under the trading name of De Jersey and Co. The action was brought to recover the balance of freight of a cargo of cotton from Bombay to Liverpool, due to plt. under a charter-party of the ship Gloucestershire, made and dated at London, 18th Jan. 1864, and by which, so far as is material to this report, it was mutually agreed between the plt. and defts. that the said ship should forthwith proceed to Bombay and there load from the factors of the said affreighters a full and complete cargo of cotton and [or] wool and being so loaded, shall therewith proceed to Liverpool, and deliver the same in any dock freighters may appoint on being paid freight as follows, viz., seventy-five shillings per ton of fifty cubic feet delivered for cotton and [or] wool, in full of all port-charges and pilotages (restraint of princes, &c.) The freight to be paid on unloading and right delivery of cargo (in the manner therein specified). The captain to sign bills of lading, if requested, at any rate of freight, but at not less than chartered rate. without prejudice to this charter, and the owner to have an absolute lien on the cargo for all freight, dead-freight, and demurrage.

It was proved at the trial before Lush, J. and a special jury, at the last summer assizes at Liverpool, that the ship sailed to Bombay, where she was loaded by the defts.' factors with the stipulated cargo of cotton, and that, in conformity with the established custom in such cases at Bombay, the measurement of the cotton with reference to the capacity of the hold of the ship was ascertained by submitting the bales immediately before shipping them on board to powerful hydraulic pressure, whereby they were compressed into the smallest possible compass; and it appeared that on the present occasion the cotton when so compressed occupied a space of from six to eight tons of fifty cubic feet each less than the entire hold of the ship was capable of containing; and also that, when unloaded at Liverpool and released from the pressure and restraint of the hold, it expanded to such an extent that it attained a bulk exceeding, by some 180 tons, the capacity of the ship to contain it. The captain was requested by the defts.' Bombay agent to sign bills of lading, in which the freight was expressed to be "as per margin," and there the measurement of the cotton was stated to be made in the manner above mentioned; and this he in the first instance declined to do on account of the measurement stated therein, contending that the measurement was to take place under the special terms of the charter-party at the port of discharge, and not at Bombay, but ultimately he consented to sign them without prejudice to the owner's interests and rights.

The question at issue was as to the mode of calculation to be adopted, whether it was to be according to the defts.' calculation on the measurement at Bombay at the time of shipment, or, as plt. maintained it should be, on the measurement at the port of discharge upon the cargo being unloaded and

[Ex.

delivered at Liverpool. If the plt. was right he was entitled to a sum beyond that which defts. upon their construction of the charter-party had paid him according to the Bombay measurement, and for that sum he had brought the present action. The custom in the Bombay trade to pay freight on measurement at Bombay, as above named, was found by the jury to exist, but there was no direct proof that the plt. was cognisant of its existence. The verdict was entered by direction for the defts., leave being reserved for the plt. to move to enter it for himself for 1401. 7s. 3d., the balance of freight so claimed by him as aforesaid on the ground that the freight was to be calculated on the measurement of the cargo as delivered at the port of discharge.

E. James, Q. C. accordingly in Michaelmas Term moved for and obtained a rule nisi to set aside the defts.' verdict, and to enter it for the plt. for 1401.78.3d on the above-named ground, also for a new trial on the ground that evidence of the usage had been improperly admitted, first, because it contradicted the terms of the charter-party; and, secondly, because it was not proved affirmatively that the plt. was aware of the alleged usage; and against that rule

Mellish, Q. C. and Potter, for the defts., now showed cause.-The Bombay measurement contended for by the defts. as the correct one actually represents the cubical contents which the bales occupied in the hold throughout the voyage, and which came to within six or seven tons of the ship's capacity, whereas by the plt.'s measurement the cargo would represent some 180 tons more than the ship could contain. The question turned on the meaning of the word" delivered" in the charter-party. That word had nothing to do with the measurement, but was inserted only to show that any cotton not delivered was not to be paid freight for. Even if there were no usage in the matter, the words " per ton of fifty cubic feet" must mean the space occupied in the hold by the cargo which the Bombay measurement accurately represents, and which the Liverpool measurement does not. The plt.'s witnesses proved that printed forms of charter-parties in the precise form of the present one, with the word "delivered" in them, had for years been used, and freight been invariably paid under them, according to the Bombay measurement. The word "delivered" meant only that freight was not be paid for what was not delivered. On the other hand, no doubt, the learned judge, Lush, J., at the trial said, that in our construction the word "delivered" would be superfluous, as it would be implied by law, to which the answer is, that it is not unusual to find superfluous expressions in a mercantile instrument. Brokers stick to printed forms as if magic were in them, and will not use other words, for fear the courts should put some non-natural interpretation on them. It is not as if the document had been drawn by a lawyer, who would know what the law would and would not imply. Then as to the admissibility of evidence of usage. The usage proved extended to this particular form of charter, and not only to charters generally, and therefore it was binding. It will be said not so, for want of notice on plt.'s part; but the law assumes that a person entering upon a certain trade knows the custom of that trade, and that a shipowner trading to Bombay must know the usage of that port.

E. James, Q. C. and J. A. Russell, contra, for the plt. (the shipowner), supported their rule.-The construction that the defts. contend for is not the true and logical one, as it renders necessary the striking out from the contract of the material word │“ delivered," which makes it a different contract for

the parties from that which they made for themselves. The court will look at the instrument and endeavour to ascertain its meaning, as if no evidence of usage had been given, although after it has been given it is difficult to prevent its importation into the case. In the absence of such evidence, can there be a doubt as to the right construction of the charter? The words "deliver," "delivered," and "delivery" occur in the charter-party three times in close connection, and without doubt in the first and third instances the words "deliver" and "delivery" mean ex necessitate at the port of discharge; and there is no reason either on the face of the document or otherwise for putting a different construction on the word "delivered." If more goods were delivered at the port of discharge than were apparently received at the port of lading, freight would be payable on the increased quantity at the port of discharge. That was settled by Gibson v. Sturge, 10 Ex. 626; 24 L. J. 121, Ex., in which the majority of the Court of Ex. (dissentiente Martin, B.) held, that the freight was payable on the measurement at the port of shipment. That case, no doubt, was commented on in the C. P., in the case of Coulthurst v. Sweet, L. Rep., 1 C. P. 649, in which there was the word "delivered," which did not occur in Gibson V. Sturge, thus showing that in a charter-party like the present that word makes all the difference. The shipper at the port of shipment of course endeavours to get as much on board as possible; but, even after leaving the press and before getting on board, it expands, and so the whole expansion does not, as is assumed by defts., take place in the interval between unloading and delivery. [KELLY, C. B.-You, in fact, claim freight for 178 tons more than the ship would actually hold.] The true principle of construction is to give effect to the words used, and not to treat any of them as surplusage. Here, not giving a different construction to the word "delivered" from that given to the words "deliver" and "delivery," in the same instrument, and not rejecting it as superfluous, it clearly means and shows the parties contemplated payment on the quantity upon delivery. If that be so, no usage or evidence of usage inconsistent with or varying or contradicting the charter can be admissible. And even where it is admissible it cannot prevail unless it be shown, which was not done here, that both parties to the contract were cognisant of the usage:

Kirchner and others v. Venus, 12 Moo. P. C. C. 361. KELLY, C. B.-I am of opinion that the defts. are entitled to retain their verdict, and to the judgment of the court upon this rule. The first question de pends upon the construction of a clause in the charter-party entered into between the plt. and the defts. The contract was for the conveyance of a cargo of cotton from Bombay to London or Liverpool, as the charterers might order on signing the bills of lading, at a certain freight which is thus provided for by the charter-party, which says that the master, on signing bills of lading, shall "deliver the same in any dock the freighters may appoint, on being paid freight as follows, viz., 75s. per ton of 50 cubic feet delivered." Now, I am of opinion that the true construction of that clause, supposing there is nothing to qualify the words of it, is that the amount of freight is to be calculated upon and determined by the quantity of cotton as measured and shipped at the port of loading, and not the quantity as delivered at the port of discharge. There can, I think, be no doubt, taking the words themselves, namely, that freight is to be paid at the rate of 75s. per ton of 50 cubic feet, that, if they stopped there, the payment would be upon the quantity as ascertained by measure at the port of loading. But then it is said, and especially on the authority of the

[Ex.

recent case of Coulthurst v. Sweet, that the introduction here of the word "delivered " creates a difference, and that it clearly must mean that the cotton was to be measured and paid for according to its measurement upon its delivery at the port of discharge. To my mind, however, the contract is clear, that freight is to be paid upon the quantity measured and shipped at Bombay, and that the word "delivered" simply refers here to the actual quantity delivered at the port of discharge, and means no more than the word "deliver" in the previous part of the clause, "and deliver the same in any dock freighters may appoint," and is used merely to complete the sentence. I do not think the word can be struck out, because it has, I think, a reasonable meaning, although I by no means think it was at all necessary to the full effect of the contract. But it is not uncommon in mercantile contracts of this character to find expressions used which are wholly superfluous and unnecessary. Upon looking at the cases which have been cited in the course of the argument, we find, in the first place, the case of Gibson v. Sturge, 10 Ex. 626; 24 L. J. 121, Ex., which is a stronger case than the present one now before the court; for there the freight was held to be payable on the quantity of corn as shipped only, although the bulk of it had increased in size from various causes in the course of the voyage, and the shipowner there might naturally and justly have said: "I have conveyed a larger quantity of goods than you, the shipper, supposed were shipped, or than you imagined you were bound to pay freight upon, and I am entitled to a larger freight for the increased space so occupied." But in the present case the increase in bulk was not proved to have taken place during the voyage; and though my brother Martin differed from the rest of the court in Gibson v. Sturge, we must take that case as we find it, and consider it, as decided by the majority of the court, as an authority in favour of the defts. With regard to the other case of Coulthurst v. Sweet, L. Rep., 1 C. P. 649, it appears that, with reference to this very point, the words "nett weight delivered" were expressly introduced into the charter-party in that case, in order to avoid the very difficulty which occurred in Gibson v. Sturge, and on which Mr. James has relied, the freight being, in Coulthurst v. Sweet, expressed in the bills of lading to be payable at so much per ton “nett weight delivered," conclusively showing the intention of the parties that payment of the freight was to be made upon the actual weight of the cargo at the time and place of delivery. That case, therefore, is not, so far as it goes to the point, an authority against our decision in the present case. It appears that the quantity of cotton shipped in the present case, and on which it is admitted that freight is payable, amounts to within some seven or eight tons of the total Cuantity of cotton which the ship could by possibility contain, and that the larger quantity, upon which the plt. seeks to be paid freight, exceeds that total quantity by some 180 tons. Now, it seems to me, in the absence of express authority, and looking at the merits of the case as between the parties, that it would be inequitable to permit a claim to be sustained for freight upon a far larger quantity, not merely than was actually carried and delivered, but than the ship could have contained. Under these circumstances, therefore, I think that upon authority, and also upon principle and justice, the right construction of this particular clause in this charter-party is, that the amount payable for freight is to be ascertained by the measurement of the cotton at Bombay. Then, secondly, with regard to the evidence of the custom which was given at the trial. It has been argued before us to-day that it was not admissible in the present case, but I cannot accede to that proposition. I think, on the

contrary, that it was properly admitted. In mercantile contracts, when words are used that are capable of various interpretations, they must be construed by the meaning which is put upon them by mercantile men of experience conversant with the subject-matter. This course has been followed to such an extent as in some cases almost to contradict the natural meaning of the words used. But, in the present case, the evidence of the usage only gave effect to what, even without the aid of such usage, would seem to be the plain and natural construction of the contract, and as such it was clearly admissible. The decision of the Privy Council in the case of Kirchner v. Venus, 12 Moo. P. C. Cas. 361, shows merely that persons in Liverpool may well be supposed to be ignorant of rules that exist at Sydney, on the other side of the globe, and that in such a case they are not bound to be acquainted with them. But in this case the contract, which related to a matter connected with London, Liverpool, and Bombay, was entered into between merchants of London and Liverpool, who were cognisant, or must be assumed to have been cognisant, of the customs of the Bombay trade. Under these circumstances, I think evidence of usage, in proof of the ordinary interpretation put upon such a contract by parties in the constant habit of entering into similar contracts, was admissible, although there was not, as it was contended by Mr. James there should have been, affirmative proof first given that both parties had previously heard or were aware of the existence of the custom in question. I think that the jury were not only right, but bound, to presume knowledge on the part of all the parties to such a contract of all the usages connected with or bearing upon it. Therefore, upon all the above grounds, whether with respect to the terms of the contract itself, or the admissibility of the evidence of usage, I am of opinion that the defts. are entitled to retain their verdict, and that this rule should be discharged.

CHANNELL, B.-I also am of opinion that this rule should be discharged, and have but little to add to what has fallen from the Lord Chief Baron. Three questions have been submitted to us. I think that the construction of the charter-party contended for by Mr. Mellish is, without reference to any question of usage, the true one; and that on the authority of Gibson v. Sturge. I do not, I confess, feel at all pressed by the case of Coulthurst v. Sweet, which in my judgment by no means proves that the decision of the majority of the court in Gibson v. Sturge was wrong. As to the second point, I am of opinion that the evidence of usage was properly admitted. It was not offered to contradict, but to explain the contract, and I think that the case of Bottomley v. Forbes, 5 Bing. N. C, 121; 8 L. J., N. S., 85, C. P., is an authority showing its admissibility. But then it was objected, thirdly, that even if such evidence were admissible as a general rule, nevertheless it was improperly admitted in the present case, for the reason that it was not proved that both parties to the contract were aware of the existence of the usage, and the case of Kirchner v. Venus, in the Privy Council, was cited as an authority to that effect. Now this objection to my mind amounts only to saying, not that the evidence was inadmissible but, that it was incomplete for want of other evidence that the usage was known to both parties; being, in fact, an objection rather to the weight or value of the evidence than to its admissibility. The three points originally made are thus reduced in fact to two, namely, first, the construction of the contr. ct itself; and, secondly, whether the verdict can be set aside, and a new trial had on the ground of that evidence having been admitted. Upon the first question I concur entirely with the Lord Chief

[Ex.

Baron. With respect to the second, it is to be observed that the rule in this case was obtained only on the ground of the improper reception of evidence, and therefore the verdict cannot be set aside upon this rule, because evidence was properly admitted which possibly was incomplete. But being of opinion that, although the evidence was admissible, yet that it was not at all necessary to the arriving at a true construction of the contract, its incompleteness could form no ground for a new trial, even had the rule been obtained in a different form.

PIGOTT, B.-I am of the same opinion. I enter. tain not the least doubt with regard to the views expressed by my Lord Chief Baron and my brother Channell with regard to this contract, but I desire to rest my judgment upon the second ground that the evidence of usage was admissible, rather than upon the construction of the contract apart from that evidence. I am of opinion that such evidence was admissible here. The case of Bottomley v. Forbes, which has been referred to by my brother Channell. was very like the present case; and indeed in principle there is no difference between them. There was nothing said in this charter-party as to where the measurement was to be made. The parol evidence, both here and in Bottomley v. Forbes, was offered in explanation, and not in contradiction of the terms of the written contract.

Rule discharged. (a)

Attorneys for the plt., Clarke, Woodcock, and Ryland, 14, Lincoln's-inn-fields, agents for C. Taddy, Bristol.

Attorneys for the defts., Upton, Johnson, and Upton, 20, Austin-friars, agents for Lowndes and Co., Liverpool.

April 18 and May 11, 1867.

BURTON V. PINKERTON.

Contract to employ as seaman-Ordinary voyage— Nature of voyage altered by declaration of warIncrease of risk-Illegality-Breach of contract59 Geo. 3, c. 69.

The deft. agreed to employ the plt, on board a ship called the Thames, for a period not to exceed twelve months, on a voyage from London to Rio de Janeiro or any port or ports in North and South America, or certain other places specified by the contract, ana back to a port of discharge in the United Kingdom or continent of Europe between the Elbe and Brest.

The vessel in question was let under a charter-party, which stipulated that the said vessel being intended for the service of the Peruvian Government, in case of her capture or loss, the charterers should pay to the owners a certain sum as her agreed value. She started from the Thames having on board coal, ammunition, and two launches, and being under the orders of a Perician on board. At this time the Peruvian Government was at peace with Spain, but soon after the departure of

(a) The defts. in this action, the charterers, brought a crossaction (Knoop and another v. Buckle) against the present på, the shipowner, to recover money paid to him over and above the sum due for freight according to their calculation by the time and as one action with the present case, and a verdict Bombay measurement, which action was tried at the same was taken for the plts. (the charterers) for 5921. S&. d., and leave was reserved to the shipowner, the deft, to move to ingly obtained by E. James, Q. C., to that effect, and it was arranged that, inasmuch as the two cases depended entirely upon the same point, the decision on the arge ment of the rule in the one case should bind and deride the Consequently the last-mentioned rai obtained by the deft. (the charterer) in Knoop and another v. Buckle was also discharged.

reduce that amount to 641. 188. 9d., and a rule was scoord

rule in the other.