By a charter-party the merchant covenanted to furnish a full cargo at Charles Town or New Orleans, at his option, for which freight was to be paid, if the goods were shipped at New Orleans, for cotton, in round bales, 3d. per pound, and in square bales, 24d. per pound; and for rice, of which he was at liberty to load not more than one hundred and fifty tons, 81. 8s. per ton. The ship did not obtain a cargo at Charles Town, and was ordered to New Orleans. It was the established and uniform practice of the latter place, though not of Charles Town, to re-compress, by means of steam-engines, all cotton intended for exportation, unless the ship was unable to get a full cargo; the merchant loaded the ship with cotton only, of which, if re-compressed, the ship would have contained one hundred and seventy tons above the cargo actually shipped. The quantity actually shipped was not a sufficient cargo, even of bales not re-compressed, and the merchant was held liable to pay the value of the freight of the additional one hundred and seventy tons, and without any allowance in respect of the lower rate of freight for rice. Rice, if laden, must have been put into the ship before cotton, and therefore the merchant was considered to have elected to furnish an entire cargo of cotton (0).

Where a charterer of a ship engaged to pay a certain sum per diem for her detention at Algiers, to reckon from the time of her being ready to unload and in turn to deliver, it was held that evidence was admissible to show that these words had, by the usage of the particular trade, acquired a known meaning, but that the testimony of three or four witnesses, speaking to a course of business that had only grown up within about five years, and with reference to charterparties, the language of which was not identical with that of the charter-party in question, was insufficient to establish such general usage (p). So evidence was admitted to show that the words " regular turns of loading" had obtained by usage at the particular port, in respect of an article not affected by any statutory regulation, the same meaning as in respect of an article the loading of which by turns was regulated by Act of Parliament (q).

But evidence that by the custom of a particular port a ship was bound to wait its turn to load until the customers of a certain coke manufacturer, whose names were entered in a list or turn book kept by him, had loaded, provided reasonable despatch was used, was held, in an action against the shipowner for not loading in regular turn, inadmissible to control or qualify a clause by which he had agreed that the ship should, with all convenient despatch, load in the customary manner (7).

Where a charterer agreed to load a vessel when it arrived at a certain port with a cargo of coals in a customary manner, on a

(0) Benson v. Schneider, 7 Taunt. 272. Haynes v. Halliday, 7 Bing. 587.

(p) Robertson v. Jackson, 2 C. B. 413; Taylor, 9 Q. B. 713, as to the meaning of loading in turn.

(9) Schultz v. Leidemann, 14 C. B. 38; 23 L. J. C. P. 17. (r) Hudson 213.

v. Clementson, 18 C. B.

question whether he had done so in a reasonable time, it was held that the jury had been properly directed not to take into consideration a delay occasioned by a strike among colliers, and a dispute with a railway company along whose line the coal had to be brought to the port of shipment, these matters not being in the contemplation of either party when the contract was made (s).

But in an action on a charter-party by the master of a ship for not loading in a reasonable time, the delay complained of having been caused by an accident to the steam-engine of a colliery, by which accident it was known to both parties at the time of their contract that some delay would be caused, it was held that if the colliery got to work within a reasonable time, and the vessel was loaded within a reasonable time after, the charterers were not liable (†).

By a charter-party the merchant engaged to pay 47. 15s. per ton for goods shipped at Bombay for London, cotton to be calculated at fifty cubic feet per ton. In an action brought by the shipowner it was held, that evidence was admissible for the defendant of a usage to pay according to the measurement taken at Bombay before the goods were loaded; but that, in answer to it, the plaintiff was at liberty to prove that the master had objected to receive the goods at the Bombay measurement, measured them himself on board, and delivered an account of that measurement to the shippers (u). Evidence had also been offered at the trial of a bill of lading delivered to the shippers, stating the measurement on board as well as the measurement at the screw, but the learned judge was of opinion that this should have formed part of the original case.

"With respect," said Tindal, C. J., "to the evidence tendered by the plaintiff in the way of reply, we think such evidence ought to have been received; for, as it appears to us, the evidence tendered had a direct bearing upon the point, whether the usage set up was a reasonable usage or not. Evidence of the extent of the difference between measurement on the merchant's premises and measurement at the time of shipment, might be material to enable the judge to form his opinion upon the reasonableness of the usage; and if the usage should appear to be in a high degree unreasonable on this account, such evidence might also have weight with the jury, on the question whether the usage did or did not exist in fact."

A person who had engaged a passage in a ship advertised to sail on a particular day, and refused to go with her after that day, was, on proof of a usage that in such cases half the passage money becomes forfeited, held liable to that extent (x).

Where proof was given that by the custom of a port three months interest and discount is deducted from freights payable under bills of lading on goods coming from certain ports, it was held in an action by

(8) Adams v. Royal Mail Steam Packet Company, 28 L. J. C. P. 33. Humfrey v. Dale, 26 L. J. Q. B. 140; and Cuthbert v. Cumming, 11 Ex. 405.

(t) Norris v. Dresser, 9 Ex. 485; 23 L. J. Ex. 210.

(u) Bottomley v. Forbes, 5 Bing. N. C. 121; 6 Scott, 866. See also Gould v. Oliver, 2 Scott, N. C. 241.

(x) Yates v. Duff, 5 C. & P. 369.

the shipowner to recover the full freight under a bill of lading, "he or they paying freight for the said goods five-eighths of a penny sterling per pound, five per cent. primage and average accustomed;" that the contract in the bill of lading was qualified by the local usage (y).

So a custom to allow discount on freight proved to have been established in all the ports of North and South America, but not of Central America, was held incorporated in a contract for a voyage from a new state of Central America, which had been lately annexed to the United States (z).

от

Evidence was held admissible to prove that by the usage of trade at Trinidad, a stipulation in a charter-party to provide a "full and complete cargo of sugar, molasses and other produce," was satisfied by providing a full cargo of molasses and sugar, packed in hogsheads and puncheons, with a few tons of other produce; although that mode of packing molasses and sugar left broken stowage, which might have been filled with tierces of sugar, or other small packages (a); and proof being given that those articles could be conveyed with greater safety in that way, the usage was decided to be a legal and reasonable one. But where a ship was chartered to Hong Kong, "the ship to be consigned to the charterer's agents there free of commission on that charter," a declaration alleging that by the usage of the London and China trade the word consigned imported an engagement on the part of the shipowner that the charterer's agents should be entitled to commission on a return cargo, if procured, whether through their agency or not, was held inadmissible (b).

Lord Eldon, in the case of Anderson v. Pitcher (c), regretted the subtlety to which the application of usage to the construction of contracts had given rise, and seemed to think it would have been better had parties been left to express their meaning in their own terms. The practice, his lordship thought, had been carried to an inconvenient length. But though it may be difficult to state with exactness and precision how far a mercantile contract reduced to writing and signed by the parties, which is silent on a particular point, may have that silence supplied by evidence of the general course and usage of the trade to which it relates, it is clear that such evidence (d) will never be available to contradict, either expressly or by implication, the terms of a written instrument. Accordingly, when on the trial of an action on a policy upon ship, &c., boat and other furniture, evidence had been offered that it was not the usage of underwriters to pay for boats slung on the davits on the larboard quarter, the Court of Exchequer was of opinion that it was rightly rejected. "The objection," said Lord Lyndhurst, "to the parol evidence is,

(y) Brown v. Byrne, 3 E. & B. 703; 23 L. J. Q. B. 313.

(z) Falkner v. Earle, 3 B. & S. 360; 32 L. J. Q. B. 134.

(a) Cuthbert v. Cumming, 11. Ex. C. 405, 553, and 3 W. R., Q. B. 471.

(b) Phillips v. Briard, H. & N. 26; 25 L. J. Ex. 233.

(c) 2 Bos. & Pull. 164.

(d) Whittaker v. Mason, per Tindal, C. J., 2 Bing. N. C. 369.

not that it was offered to explain any ambiguous words in the policy, or any words which might admit of doubt, or to introduce matter upon which the policy was silent, but that it was at direct variance with the words of the policy, and in plain opposition to the language it used— that whereas the policy imported to be upon ship, furniture, and apparel generally, the usage is to say that it is not upon furniture generally, but upon part only, excluding the boat. Usage may be admissible to explain what is doubtful, but is never admissible to contradict what is plain" (e); and though contracts are to be construed liberally, the courts will not insert in them by inference implied provisions with respect to a subject which the contract has expressly provided for: therefore, where the declaration stated a bargain for the sale by the defendants to the plaintiff of a cargo of Indian corn, to be shipped in "good merchantable condition,' and the judge desired the jury to say whether the corn was in good and merchantable condition for a foreign voyage, it was held a misdirection (f).

In Cockburn v. Alexander (g), there being no ambiguity in the words of the charter-party by which a different rate of freight was stipulated for pressed and unpressed wool, evidence was held inadmissible to show that by the custom of the place of loading the cost of pressing wool was to be borne by the shipowner.

7. Bills of Lading for Goods shipped under Charter-party.

When goods are put on board in pursuance of a charter-party, the master is to sign for them bills of lading to the effect mentioned in the fourth chapter of this part, the charter-party being the instrument and evidence of the contract for the conveyance, and the bill of lading the evidence of the shipping of the particular merchandise, to be conveyed in pursuance of the contract. The master cannot be required to express in the bills of lading a less rate of freight than is mentioned in the charter-party. And in a case in which the agent of a charterer tendered at Jamaica a cargo of sugar, but insisted that the master should sign bills of lading for it, at the rate of 10s. per cwt. only, the freight agreed upon in the charter-party being 10s. 6d. per cwt., and the master refused to receive the cargo on those terms, the merchant was held to have broken his covenant to load the ship, in the same manner as if no cargo had been tendered (h). Where it was agreed by charter-party that the ship should be at the disposal and direction of the merchant, that the master should

(e) Blackett v. Royal Exchange Assurance Company, 2 Tyrwh. 266. See also Magee v. Atkinson, 2 M. & W. 442; Adams v. Wordly, 1 M. & W. 374. And see Smith's Leading Cases, Wigglesworth v.

Dallison, vol. 1; Hutton v. Warren, 1 M. & W. 475.

(f) Dickson v. Zizinia, 10 C. B. 602. (g) Ante, p. 214.

(h) Hyde v. Willis, 3 Campb. 202.

receive a cargo at London, and proceed therewith to any port or ports in Spain and Portugal, or either, as he should be ordered by the merchant, and there deliver the cargo agreeably to the bills of lading that should have been signed for the same; the merchant having loaded the ship for Lisbon, and the master signed bills of lading for delivery there-it was held that the merchant could not change the destination and send the ship to Gibraltar, without giving up the bills of lading to the master, or at least offering a sufficient indemnity against any claims that might be made upon him by the holder thereof (i).

(i) Davidson v. Gwynne, 12 East, 381.