In general, therefore, the term "loading" will be construed by the usages of the port of loading (o), "discharge by the usages of the port of discharge (p), the method of payment of freight by the usages of the port where freight is payable (q); for where the performance of a contract has reference to a particular trade the party contracting is necessarily obliged to make himself acquainted by due inquiry with the usages of that trade (r).

Usages or customs to be enforced by the Courts must be-1. reasonable; 2. certain; 3. consistent with the contract; 4. universally acquiesced in; 5. not contrary to

law.

Note. In a charter to discharge "according to the custom of the port," the jury were directed "that custom' in the charter did not mean custom in the sense in which the word is sometimes used by lawyers, but meant a settled and established practice of the port," and the House of Lords approved this direction (8). This seems to require a less rigorous standard of proof than in the case of a legal custom. The nature of a binding custom has been thus illustrated: "In order that the shippers should be taken to have impliedly given leave to stow the goods on deck, the shipowners must prove a practice so general and universal in the trade, and in the particular port from which the goods were taken, that everyone shipping goods there must be taken to know that other people's goods, if not his goods, might probably be stowed on deck" (t).

I. Cases in which evidence of usage has been held admissible.

Case 1.-Charter between A. and C., a foreigner, from Riga to Liverpool, containing clauses : "the steamer to be discharged in ten working days.

(0) E.g. The Skandinav (1881), 51 L. J. P. 93; Fullagsen v. Walford (1883), 1 C. & E. 198; Cuthbert v. Cumming (1855), 11 Ex. 405; Leidemann v. Schultz (1853), 14 C. B. 38; Lawson v. Burness (1862), 1 H. & C. 396.

(p) Marzetti v. Smith (1883), 49 L. T. 580; Petrocochino v. Bott (1874), L. R. 9 C. P. 355; Aste v. Stumore (1884), 1 C. & E. 319.

(7) See ante, note (1), p. 18; post, note pp. 21, 22.

(r) Per Willes, J., in Russian Co. v. De Silva (1863), 13 C. B., N. S. 610, 617, and see cases and rules laid down in notes to Wigglesworth v. Dallison, 1 Smith, L. C., 8th ed., pp. 602-626.

(3) Postlethwaite v. Freeland (1880), 5 App. C. at p. 616.

(t) Newall v. Royal Exchange Shipping Co. (1885), 33 W. R. 342, 868, at p. 869; on the facts of which see Royal Exchange Co. v. Dixon (1886), 12 App. C. at p. 18. But the practice of the only shipper at the port for 30 years has been held not to constitute a custom of the port; Clacerich v. Hutchison (1887), 15 Sc. Sess. C. 4th ser. 11.

Discharging dock to be ordered on arrival at Liverpool." Evidence was tendered of a custom of the port of Liverpool, that in the case of timber ships lay-days commenced on the mooring of the ship at the quay where she was to discharge. Held admissible, as explaining the meaning of "arrival at Liverpool"; inadmiss ble, if its effect was to vary or add to the terms of the charter, unless it was proved to have been known to both parties (u).

Case 2.-D. entered into a charter with A. " as agents for merchants," and signed it "as agents for merchants." Evidence was tendered of a custom that if D.'s princip al were not disclosed within a reasonable time, D. was personally liable. Held admissible, as not inconsistent or irreconcilable with the written contract, but as adding in a certain contingency a collateral provision for liability (v).

Case 3.-A charter was made "On condition of the ship's taking a cargo of not less than 1000 tons of weight and measurement." Held, that the proportions of weight and measurement tonnage were to be ascertained by oral evidence of the usage of the port of loading (w).

Case 4.-A ship was chartered "to proceed to a port in the Bristol Channel or so near thereto as she may safely g t at all times of tide and always afloat, and deliver the same, eight running days to be allowed for discharging the cargo." The ship was ordered to Z., and entered the port of Z. a custom of the port of Z. was proved that vessels too heavily laden to proceed in the port beyond Y., were lightened at Y., and proceeded by canal to Z. and there finished unloading; and that the times of unloading at Y. and Z. counted in the lay-days, but not the time spent in proceeding along the canal. Held admissible, as not inconsistent with the charter (x).

Case 5.-Wool was shipped from Odessa under a bill of lading, "freight to be paid in London on delivery at 80s. per ton, gross weight, tallow, grain, or seed in proportion as per London Baltic printed rates." Held, that evidence of the customs of the Russian trade was admissible to explain this bill of lading, though the defendant, the consignee under it, was wholly unconnected with the Russian trade (y).

Case 6.-A bill of lading stated that goods shipped at X. were deliverable at Z., "he or they paying freight for the said goods, five-eighths of a penny per pound-with 5 per cent. primage and average accustomed." Held, that evidence of a custom of Z. to deduct three months' discount on freights on goods from X. was admissible (z).

II. Cases where evidence of usage has been held inadmissible.

Case 7.-A bill of lading contained the clause "freight payable in London.' Evidence was tendered that this meant by the custom of the steam shipping trade "freight payable in advance in London." Held

(u) S. S. Norden v. Dempsey (1876), L. R., 1 C. P. D. 654, and see note, post, p. 22.

(v) Hutchinson v. Tatham (1873), L. R. 8 C. P. 482; see p. 26, post. (u) Pust v. Dorie (1864), 5 B. & S. 20; see Article 25, post.

(x) Nielsen v. Wait (1885), 14 Q. B. D. 516; 16 Q. B. D. 67 (C.A.)

(y) Russian Stam Navigation Company v. De Silva (1863), 13 C. B.. N. S. 610. (z) Brown v. Byrne (1854), 3 E. & B. 702. See also Falkner v. Earle (1863), 3 B. & S. 360; and The Norway (1865), 3 Moore, P. C., N. S. 246, and compare case 7, sub.

inadmissible, the word "freight" being unambiguous, and there being nothing in the context to qualify it (a).

Case 8.-A charter "to a sa e port, or as near thereto as she can safely get, and always lay and discharge afloat." Evidence was tendered of a custom of the port of Z., to lighten ships outside the port, if they were laden too deep to enter the port, and then to require them to proceed into port. Held inadmissible, as inconsistent with the contract, and as being a custom "to apply to a contract where the ship was only bound to go into Z., something to be done before she got to Z." (b).

Cuse 9.-A charter to deliver "at Z., or so near thereto as the vessel could safely get." Evidence was tendered of a custom of the port of Z. by which the consignee was only bound to take delivery at Z. inadmissible, as inconsistent with the charter (c).

Held

Case 10.-Evidence was tendered of a "universal custom" of merchants to deduct from the bill of lading freight, the value of goods which, though mentioned in the bill of lading, have never actually been put on board. Held inadmissible, as a mere mode of carrying on business and of settling accounts, and not a practice of merchants creating rights between the parties to the contract (d).

Case 11.-In an action by the indorsee of mate's receipts given at X., against an English captain for delivering goods laden at X. to indorsees of a bill of lading, evidence was offered of a custom at X., that mate's receipts are negotiable instruments, passing the property in the goods by indorsement without notice to the shipowner, aud that the master is bound only to sign bills of lading on delivery of the mate's receipts, or if he has already signed bills of lading, should sign a second set for the holder of the mate's receipt, to whom alone he must deliver the goods. Held, unreasonable and not binding on captains or shipowners (e).

Case 12.-A charter required the freighter to pay "95s. per ton on goods shipped at X. for Z., cotton to be taken at fifty cubic feet per ton." Evidence was tendered of a custom at X., that the measurement before the goods were shipped should be accepted. Held admissible, but displaced by proof of the objection of the captain to so receive them, of their measurement on board by the captain, and his delivery to the shippers of a note of his measurement (f).

Note. The line between admissibility and rejection of evidence of custom is very difficult to draw, and some of the cases, notably Hutchinson v. Tatham (g), are hard to reconcile with any clear principle. In one sense the contract must always be varied by the admission of evidence of custom, inasmuch as the construction of the contract by the Court would not be the same without the parol evidence, or else such evidence would be un

(a) Krall v. Burnett (1877), 25 W. R. 305. See also Lewis v. Marshall (1844), 7 M. & G. 729, where evidence that "freight" included " passage money," was rejected; and Cockburn v. Alexander (1848), 6 C. B. 791.

(b) The Alhambra (C.A.) (1881), L. R. 6 P. D. 68.

(c) Hayton v. Irwin (1879), 5 C. P. D. 130. Cf. The Nifa (1892), P. 411.

(d) Per Willes, J., in Meyer v. Dresser (1864), 16 C. B., N. S. 646, 662.

(e) Hathesing v. Laing (1873), L. R. 17 Eq. 92.

(f) Bottomley v. Forbes (1838), 5 Bing. N. C. 121.

(1867), L. R. 2 Ex. 125.

(g) Vide supra, case 2, and post, p. 26.

See also Buckle v. Knoop

necessary. The whole question has been fully discussed in Robinson v. Mollett (h). Another difficulty arises from the apparent conflict between the dicta in Kirchner v. Venus (i) and S.S. Norden v. Dempsey (k) to the effect that customs do not bind one ignorant of them; and such cases as Robertson v. Jackson (1) and Hudson v. Ede (m), where customs of a port were held to bind persons ignorant of them. The explanation seems to be that, in the latter class of cases, custom is introduced to explain the meaning a word bears in the charter; e.g., the parties are presumed to have meant by "loading," "loading as carried out at the port of loading," but what this is can only be construed by the customs of the port of loading. The fact that a person who has contracted to "load" at a certain port, is ignorant of how " loading" is conducted at that port, cannot save him from being bound by the ordinary method of loading there. On the other hand, when, as in the former class of cases, something is sought to be added to the charter, beyond the language the parties have used, it may fairly be required that both parties be shewn to have known of this addition, and therefore to have contracted with regard to it.

Article 9.-Printed Forms of Contract.

Questions of mistake in the expression of intention frequently arise in the case of charters effected by filling in printed forms, where parts of the printed form, left in by inadvertence, are in direct contradiction to clauses written in the form (n) in these cases the written clause should usually prevail, as clearly expressing the intention of the parties (o). It is unnecessary to find a meaning in the particular charter for every word of a common printed form (p), and the Court

(h) (1875), L. R. 7 H. L. 802.

(i) (1859), 12 Moore, P. C. 361, 399.

(k) (1876), L. R. 1 C. P. D. at p. 662. Cf. Holman v. Peruvian Nitrate Co. (1878), 5 Sc. Sess. C., 4th Series at p. 663.

(1) (1845), 2 C. B. 412.

(m) (1868), L. R. 3 Q. B. 412.

(n) Curious charters result from the filling in of time charters on printed forms intended for voyage charters, and vice versa. A similar result in a policy of insurance puzzled the Courts in Stewart v. Merchants Insurance Co. (1885), L. R. 16 Q. B. D. 619.

(0) Scrutton v. Childs (1877), 36 L. T. 212: per contra Charles, J. in Baumvoll v. Gilchrest (1891), 2 Q. B. at p. 317; citing Alsager v. St. Katherine's Docks (1845), 14 M. & W. 794, which hardly supports the learned judge's view.

(p) Per Brett, J., and other Judges in Gray v. Carr (1871), L. R. 6 Q. B. 522, 536, 550, 557; Pearson v. Goschen (1864), 17 C. B., N. S. 353, 373, 376; but see Maclean v. Fleming (1871), 2 L. R. H.. L. (Sc.) 128.

may look at erasures from the printed form as shewing the intention of the parties (q).

Case 1.-A charter contained a printed clause that carro at Z. "should be brought to and taken from alongside at owner's risk and expense;" and a written one; "cargo at Z. as customary." The custom at Z. is that the ship pays for the lighterage. Held, that of these contradictory clauses the written one should prevail (as being obviously intended by the parties) (r). Case 2.-A charter contained a printed clause: "The cargo to be taken from alongside the ship at merchant's risk and expense, where she can lie always afloat"; and a written clause: "The cargo to be discharged .... according to the custom of the respective ports." Held, that a custom of Yarmouth was not admissible to put on the shipowners the cost of pulling cargo from the ship "always afloat" to the quay (a).

Case 3.-A charter for outward voyage from X. only, on a printed form, had a printed memorandum in the margin: "commission to be paid to C. to whom the vessel is to be addressed on her return to X." Held, that oral evidence was essential to shew that the memorandum was part of the contract (s).

Case 4-A printed charter between A. and C. contained a clause in print: "the ship being now warranted tight and strong." No evidence of inadvertence in both parties as to this clause was given, and Erie, C.J., cautioned the jury against getting rid of a clause by oral evidence of misunderstanding (t).

Article 10.-Alterations in Contract.

An alteration, addition, or erasure in a charter after signature, made and assented to by one party only, voids the charter (u); mutual assent may effect such alteration (x).

(4) Per Lord Esher in Baumvoll v. Gilchrest & Co. (1892), 1 Q. B. 256; cf. per Lord Herschell (1893), A. C. p. 15. See also Glynn v. Margetson (1892), 1 Q. B. 337; (1893) A. C. per Lord Halsbury.

(r) Scrutton v. Childs (1877), 36 L. T. 212. See also Alsager v. St. Kath. Docks (1845), 14 M. & W. at p. 799: Moore v. Harris (1876), L. R. 1 App. C. 318, 327; where the written clauses required the ship to deliver to a railway and forward to Toronto, and there was a printed clause "goods to be taken from alongside by consignee immediately the vessel is ready to discharge, or otherwise they will be landed and stored at expense of consignee."

(a) The Nifa (1892), P. 411, in which A. L. Smith, J., doubted Scrutton v. Chids, (v. s.); rather thinking that the clauses did not contradict, than objecting to the principle here stated.

(8) Hibbert v. Owen (1859), 2 F. & F. 502; see Mackill v. Wright (1888), 14 App. C. at p. 117.

(t) Dixon v. Herist (1862), 2 F. & F. 760.

(u) Croockewit v. Fletcher (1857), 1 H. & N. 893, 912. (x) Hall v. Brown (1814), 2 Dow, H. L. 367.