CITATION:  2 QB 366
Plaintiff shipped on the defendant’s ship an estimated quantity of wheat from Rotherhithe in the port of London to Gosport in Portsmouth. The words, “full and complete” which preceded the word “cargo” in the printed form of charterparty had been struck out. The charterparty contained the usual exception of sea perils. It was also thereby provided that the ship should have “liberty to call at any ports in any order.” Having loaded the wheat, the ship proceeded to Millwall, which is also located in the port of London, where she took on board from another shipper some wire torpedo netting for carriage to Portsmouth Dockyard. The ship then proceeded to Portsmouth Dockyard, where she discharged the netting, and was crossing the harbour to Gosport when by an accident arising from sea perils she sprang a leak, whereby the wheat was damaged. The plaintiff claimed to recover damages for the injury to the wheat on the ground that the ship had deviated in not proceeding direct to Gosport.
- The plaintiff’s argued that on the terms of this charterparty the defendant was not entitled to take on board any other shipper’s goods because the defendant contracted to load a “cargo” of the plaintiff’s wheat, where a “cargo” imports a hiring of the full carrying capacity of the ship. As such the voyage to Portsmouth Dockyard instead of direct route to Gosport is a deviation which precludes the shipowner from reliance on sea perils exclusion.
- The defendant pointed out that the capacity of the ship was stated to be 125 tons, while the wheat only represented 102 tons; and since the words “full and complete” before the word “cargo” were struck out the vessel was at liberty to load other goods, which was confirmed by incorporation of “a liberty to call at any ports in any order” clause.
ISSUE: If charterparty is to be regarded as a hiring of the full carrying capacity of the ship, to the exclusion of any other shipper’s goods, that would strongly support the contention advanced by the plaintiff. But is it to be so regarded?
The barge was to proceed to Rotherhithe, and there load, not a full and complete cargo of wheat, but “a cargo or estimated quantity. No doubt the printed words proceed “and/or other lawful merchandize” but seeing that the only freight named is at per quarter of wheat, the clause when read in connection with the statement as to the dead weight capacity, points clearly to the conclusion that what the parties intended was, not that the plaintiff should be entitled to the full capacity of the vessel, but merely that the defendant should carry the estimated quantity of wheat, and should have the right of filling up the vessel with any other merchandize, provided it was not of such a character as to be likely to be injurious to the wheat, or to be otherwise inconsistent with the performance of the defendant’s contract with the plaintiff.
The defendant knowing that the wheat would not fill the vessel, intended to reserve the right to load other goods on board. And to my mind it was mainly with the object of supplementing and giving effect to that right that the parties agreed to the clause giving the vessel “liberty to call at any ports in any order.” The intention was that she should call at other places for the purpose of loading discharging such other goods as in the exercise of the right reserved the defendant contracted to carry for other shippers.
In the Supreme Court of Judicature the Court of Appeal affirmed decision of lower court.
LORD ESHER M.R
The word “cargo” is capable of either of the meanings contended for according to circumstances. To see what it means here, we must look to the charterparty in this case, and to that alone. The word “cargo,” as the Lord Chief Justice pointed out, may mean a full and complete cargo, or it may, under the circumstances, mean that which is to be carried for the particular shipper – namely, in this case the wheat. It is obvious on the terms of the charter party that it did not here mean a full and complete cargo. In order to see what it meant one must look at the rest of the document. The words “full and complete,” which were originally in the printed form, had been struck out. Therefore, there was never any intention to carry full and complete struck.
The ship is to have liberty to call at any ports in any order. What could be the meaning of such a clause if she was only to carry this wheat from Rotherhithe to Gosport? That clause appears to me to have been put in because the parties knew that what was to be loaded under the charterparty would not fill up the ship, and therefore she was to be at liberty to carry other cargo, and for that purpose to call at intermediate ports. The port where she called was clearly such an intermediate port.