WARRANTIES.

If the shipowner does not carry out the provisions of the charter, it is often a matter of considerable importance to decide whether a merchant has the right to abandon the charter altogether, or whether he still remains bound to fulfil his own part of the contract, with the right to bring an action for damages against the shipowner. This will depend upon whether the stipulation which has been broken by the shipowner is a condition precedent (or warranty) or not. A condition precedent is a condition which is, by the terms of the charter, to be performed by the one party before the other party becomes liable to perform his part of the contract at all. If any stipulation, therefore, which amounts to a condition precedent, has not been complied with by the shipowner, the merchant has the right to abandon the contract altogether, and he can also sue the shipowner for damages for his breach of contract; but, on the other hand, if the matter does not amount to a warranty, the merchant will be bound to carry out his part of the contract, and can only sue the shipowner for damages.

Statements in the charter party which amount to a warranty, must be strictly complied with. Thus, if the charter describes the ship to be classed A 1, that is considered to be a warranty that the vessel is A 1, and if she is not so, the charterer can repudiate the contract. It is, however, a sufficient compliance with the warranty if the vessel is A 1 at the time the charter is signed; for a statement to the above effect does not imply that she shall continue so during the voyage, or even until she arrives at her place of loading. If the ship is described to be then at a certain place, that is also considered a warranty, and her locality must be correctly stated. In a case where

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the vessel was described to be "now at sea, having sailed three weeks ago," the vessel having only sailed a fortnight, the charterer was released from his contract. In another case, the vessel was stated in the charter to be now in the port of Amsterdam," whereas, in fact, she was not there on the day the charter was signed, but was at sea sixty-two miles distant, and reached Amsterdam the next day. In that case also it was held that the merchant had a right to abandon the charter. In another case, when the ship was wrongly described to be at sea, when, in fact, she had not left port, the statement was held to amount to a warranty, and the merchant was discharged from all liability.

If the charter says the ship shall sail to her port of loading, or arrive there on or before a certain specified day, that is a warranty or condition precedent; and if she does not comply with the condition within the time named, the merchant will be entitled to repudiate the contract; for if a certain day is named, that time is always considered an essential element in the contract. If the warranty is to sail before a certain day, it is a sufficient compliance if the ship quits her moorings before the day named, provided she is then quite ready for sea, and also provided that it is done with the bonâ fide intention of commencing the voyage.

But if the charter only states generally (without naming any particular day) that the ship shall sail to a particular port to receive a cargo, then the sailing of the vessel without delay or deviation is not a condition precedent, the non-performance of which would discharge the charterer from all liabilities to furnish a cargo, but the charterer would be liable to furnish the cargo, and could recover damages from the shipowner to compensate him for the lcss sustained by the delay. But if the delay was so un

reasonably long that the charterer loses all benefit from the intended voyage, or has thereby been prevented from obtaining the cargo, then he will be released altogether from his liability to perform the contract, and he can sue the shipowner for damages.

Or if the charter says the ship is to arrive at her port of loading before a certain day, unless prevented by stress of weather or unavoidable impediment, then, if ordinary diligence is used to reach the port of loading, the merchant will continue bound by the charter if the ship is detained until after the time stipulated, even if the detention is from causes which extraordinary exertion might have overcome, for ordinary diligence is all that the shipowner is bound to exercise.

Or if the charter says the ship is to sail with all convenient speed, or in a reasonable time, then that is not a condition precedent.

If the merchant is entitled to abandon the con. tract, and wishes to do so, he must declare off at once, as soon as the breach of warranty occurs. If he has afterwards done anything in part performance, for instance, if he has shipped a portion of the cargo, or if he has accepted any benefit from the contract, or if the voyage has been performed, he will then be compelled to complete also his part of the contract by paying the freight. Even if the carrying capacity of the ship is warranted, and the merchant is unable to discover whether the ship will actually carry the quantity of cargo named until after he has loaded the cargo, still the merchant cannot after loading the ship refuse to carry out the charter.

If the size of the ship is described to be a certain number of tons, or thereabouts, that is considered a representation only, and not a warranty; and therefore, although the description be not strictly correct, if it is

made bona fide, and without any intention to deceive, the merchant will be bound to carry out the charter, notwithstanding that the ship is larger or smaller than described in the charter, unless the difference is very unreasonable. In a case where the ship was described to be of the measurement of 180 to 200 tons, or thereabouts, but was actually 257 tons, the statement of the tonnage was held not to be a warranty or an unreasonable difference, and it was held that the merchant was bound to load the ship with a full cargo according to his contract. Whether the difference is unreasonable or not is a question for the jury to decide.

The statement in the charter, also, that the ship is "tight, staunch, and strong, and every way fitted for the voyage," is not by itself a warranty; therefore, if she is not seaworthy, or fit for the voyage, the charterer is not justified in repudiating the charter altogether; but he must load the ship and recover damages for any injury which he can show he has suffered by reason of the ship's unseaworthiness, unless such unseaworthiness will prevent the charterer from deriving any benefit whatever from the voyage proposed. Other additional provisions in the charter party, however, may have the effect of making the seaworthiness of the ship a condition precedent; thus, in the case of Gillhespie v. Thompson, the charter stipulated that part of the freight should be paid in advance, subject to insurance, and as the insurance could not be legally and properly effected, unless the ship was seaworthy, it was held that the seaworthiness of the ship was warranted, and was therefore a condition precedent, which must be complied with before the charterer was bound to carry out the charter.

In a charter which provided that the ship should proceed to Alexandria, "with all convenient speed (on being

ready), having liberty to take an outward cargo for owners' benefit direct or on the way;" that was held not to create a condition precedent, the breach of which would justify the merchant in refusing to load the ship at Alexandria, but it only gave him a right of action against the shipowner for damages; the Court being of opinion that it was not the intention of the parties that the merchant should be altogether exonerated if the ship made a slight deviation.

As the question of whether any stipulation is a warranty or not, depends on the intention of the parties, as shown in the charter party, each case must depend on the words which the parties make use of. If the words do not amount to a warranty, or if the whole object of the voyage is not lost, the stipulation is considered merely a collateral agreement, the breach of which by one party will not justify the other in refusing altogether to carry out his own part of the contract, but it will only give him a right to sue the other party for damages for his breach of the contract.

INTERPRETATION OF CHARTER PARTIES.

In construing the meaning of the terms adopted by the parties in the charter, the Courts endeavour to adopt an interpretation which is liberal and according to the true intention of the parties. The contract will not be construed so as to lead to absurd or unreasonable results, for the law will not presume that the parties intended to make an absurd or unreasonable contract; but if the words are clear and positive, they will be adhered to, however hard they may prove; the parties should be more cautious before they enter into the contract.

It will also be construed to make it conformable to