contract that their falsehood should destroy the ground of agreement between the parties (b).

The breach of a condition precedent being waived by one party in so far that he does not repudiate the contract converts the condition precedent into a simple term of the contract, its breach giving an action for damages.

If the party claiming to repudiate for breach of a condition precedent has already after knowledge of the breach received substantial benefit under the contract, for which he will give no equivalent if he is allowed to repudiate the contract, he will not be entitled to repudiate, but will only have an action for damages (c).

It is for the Court to determine whether a representation is a condition precedent, the jury finding the surrounding circumstances, from which the intention of the parties to the charter can be inferred (d).

Note. It is unusual to have any dispute about conditions precedent to a bill of lading: (1) because such disputes usually arise when the ship has sailed, and the shipper has no opportunity of reclaiming his goods; and (2) because statements in a bill of lading are rarely important to original shippers. It is submitted that the description of the vessel in the bill of lading and any statement as to her destination or route (e), probably also any statement as to her date of sailing on shipping cards, are, if insisted upon, conditions precedent, and that substantial inaccuracies in these matters, if discovered before the ship sails,

(b) Behn v. Burness (1863), 3 B. & S. 751 (Ex. Ch.).

Behn v. Burness (1863), 3 B. & S. 751; Ohlsen v. Drummond (1785), 4 Dougl. 356; Havelock v. Geddes (1809), 10 East, 555; Graves v. Legg (1854), 9 Ex. 709, 716; Pust v. Dowie (1864), 5 B. & S. 20; Mc Andrew v. Chapple (1866), L. R. 1 C. P. 643; Bentsen v. Taylor (1893), 2 Q. B. D. 274.

See

(d) Behn v. Burness, vide supra; Oppenheim v. Frazer (1876), 34 L. T. 524. (e) Thus in Leduc v. Ward (1888), 20 Q. B. D. 475, a statement in a bill of lading that the ship S. was now at X. and bound for Z., was held to contain a contract that the S. would proceed from X. to Z. by the ordinary route: Semble, that if a shipper under such a bill of lading had subsequently and before sailing discovered the shipowner's intention to proceed by another and longer route, he could have demanded his goods back on failure of a condition precedent. Peel v. Price (1815), 4 Camp. 243, where the shipowner, after delivering a card giving destination, Z. by way of Y., subsequently altered it to Y. by way of Z., and it was held that he was bound to give specific notice of the alteration to each shipper under the first card. In Armstrong v. Allan (1892), 8 T. L. R. 613, the clause in a shipping note, "no goods to be received on board unless a clean receipt can be given," was treated as a condition precedent, the breach of which entitled the shipper to redemand his goods.

would entitle the shipper to require his goods back, free of freight and expenses.

In Frazer v. Telegraph Co. (f) a statement in the bill of lading, "shipped on board the steamship S., from X. to Z.," was held to constitute a contract that the goods should be carried by a vessel whose principal motive power was steam: the ship was a sailing vessel with an auxiliary screw, and made the voyage entirely under sail. Held, that the contract was broken. Semble, that if the shipper had discovered the character of the ship and her intended mode of progress, after he shipped the goods, but before she sailed, he could have demanded his goods back, free from freight and expenses, on failure of a condition precedent.

Case 1.-A ship was chartered on October 19 as "the S. now in the port of Amsterdam . should with all possible despatch proceed to Newport and there load." On October 15 the S. was at Dieppe, sixtytwo miles from Amsterdam, and could have arrived there in twelve hours; but, owing to contrary winds and absence of steam-power, she did not arrive at Amsterdam till the 23rd. She discharged as quickly as possible, and reached Newport on December 1. The charterers refused to load. Held, that it was or the judge to construe this contract and decide as to the materiality of its statements, being influenced not only by its language, but also by the circumstances under which, and the purposes for which, it was entered into, which circumstances and purposes were to be found by the jury. That in this case the evidence shewed that the time of the ship's arrival to load was an essential fact for the charterer to know, and that the position of the ship at the time of entering into the charter was the only datum from which the charterer could calculate the time of the ship's arrival. That the truth of the words "now in the port of A." was, therefore, a condition precedent to the obligation of the charter, and their untruth entitled the charterer to repudiate it (g).

Case 2.-A contract was made for the sale of such rice as may arrive by the ship S. " now at Rangoon." The ship was not then at Rangoon, and the buyers repudiated the contract. Held, that evidence that the presence of ship and cargo at Rangoon was of vital importance to the parties, as the prohibition of the export of rice from Rangoon was expected in consequence of famine in India, was admissible. Per Blackburn, J.: "It is never a fact to go to the jury what the words of a contract mean, but it is a fact to go to them under what circumstances are they made, and to what do they relate ;" and the contract must be construed by the judge in connection with the findings of the jury on these points (h).

Case 3.-A ship was chartered for twelve months certain, from December 24; and the owner covenanted that the ship should be at his expense forthwith made seaworthy for a voyage of twelve months and kept seaworthy during the voyage. She was not in fact seaworthy, but the charterer employed her for several months. Held, that under the circumstances seaworthiness was not a condition precedent to the payment of freight (i).

(f) (1872), 7 L. R. Q. B. 566.

(g) Behn v. Burness (1863), 3 B. & S. 751.

(h) Oppenheim v. Frazer (1876), 34 L. T. 524. See also Gorrissen v. Perrin (1857), 2 C. B., N.S. 681.

(i) Havelock v. Geddes (1809), 10 East, 555,

Case 4.-A ship was chartered at a freight of £1500, on condition of her taking a cargo of not less than 1000 tons of weight and measurement; she could not carry such a cargo; but the charterers loaded a cargo and the ship sailed with it. Held, that even if the condition was broken, it was only under the circumstances a ground for damages and not a condition precedent (j).

Case 5.-A ship was chartered to proceed to a safe port near Cape Town. The charterer did not name a port, but offered to send a supercargo with the ship to do so. Held, that his naming a port was a condition precedent to the obligation of the shipowner to commence the voyage (k).

Case 6.-A ship was chartered to be ready on or before November 10, or charterers to have the option of cancelling the agreement. Held, that such readiness was a condition precedent to the charter.

The charter also contained a clause that the captain should attend daily at the broker's office to sign bills of lading. Held, that such daily attendance was not a condition precedent to obligation under the charter (1).

Article 24.-Ship's Class on the Register.

A statement in the charter of the ship's class on the register amounts only to a condition precedent that the ship at the time of making the charter is actually so classed (m) and not that she is rightly so classed (n), or that she will continue to be so classed during the term of the charterparty (0).

Case 1.-A ship was chartered as the " A 1 British brig, S. of Liverpool." Held, a condition precedent to the charter that at the time of its making the ship was classed A 1 at Lloyd's (m).

Case 2.-On September 4, a ship was chartered as "A 14 record of American and foreign shipping book . . . the ship S. newly classed as above." At that date the statement was correct. On November 13 she arrived at New Orleans to receive her cargo, and on November 25 her classification was cancelled for unseaworthiness (p). Hell, that the statement was only a warranty of the ship's being so classed at the making of the charter, and was not a continuing warranty of her being rightly in such class, or remaining so classed (n).

Case 3.-A ship was chartered as "the good ship S. A 1." During her voyage she ran off her letter. Held, to amount to a warranty of her class

(j) Pust v. Dowie (1864), 5 B. & S. 20.

(k) Rae v. Huckett (1844), 12 M. & W. 724. See also Ohlsen v. Drummond (1785), 4 Dougl. 356; Bradford v. Williams (1872), L. R. 7 Ex. 259.

(1) Seeger v. Duthie (1860), 8 C. B., N.S. 45.

(m) Routh v. Macmillan (1863), 2 H. & C. 750.

(n) French v. Nergass (1878), 3 C. P. D. 163.

(0) Hurst v. Usborne (1856), 18 C. B. 144, approved in French v. Newgass, vide supra.

(p) The charterer could throw up the charter for unseaworthiness, if it could not be remedied within a reasonable time. See Article 29, post. Hurst v. Usborne (1856), 18 C. B. 144, approved in French v. Newgass, vide supra.

at Lloyd's at the time of her charter, but not to a warranty that she should continue of that class during the charter, or that the owners would omit no act necessary to retain her in that class (o).

Article 25.-Ship's Tonnage, or Dead Weight Capacity.

A variation from the ship's tonnage as named in the charter will not be a breach of a condition precedent, unless the jury find the difference unreasonably great, or such as to be of material importance to the contract (q).

Where a charter contains a guarantee that a ship shall or can carry a certain number of tons dead weight, or is of a certain dead weight capacity, such a guarantee is of the vessel's carrying capacity with reference to the contemplated voyage, and the description of cargo proposed to be shipped, so far as that description was made known to the owners (r).

If there is nothing in the contemplated voyage or the contemplated cargo to give any special meaning to the guarantee, it will be treated as a guarantee of the carrying capacity of the ship without reference to any particular cargo (8).

Case 1-A ship was chartered to carry all such goods as the charterers should send alongside; "owners guarantee that the vessel shall carry not less than 2000 tons dead weight. Should the vessel not carry the guaranteed dead weight as above. .. a pro rata reduction per ton to be made from the first payment of freight." The cargo intended to be carried was a general cargo, in part composed of machinery, and there was a marginal note on the charter, specifying the numbers and measurements of the largest pieces of machinery. The ship was in fact of a carrying capacity of 2000 tons dead weight; the charterers tendered a cargo of less than 2000 tons weight, but which largely exceeded 2000 tons weight and measurement, and which included more large pieces of machinery than were specified in the marginal note. The vessel in fact sailed with only 1,691 tous weight on board.

(9) So held in Barker v. Windle (1856), 6 E. & B. 675, where the chartered tonnage was from 180 to 200 tons, the actual tonnage 258 tons; and Gibbs v. Grey (1857), 2 H. & N. 22, where the difference was between 470 and 350 tons. See Article 46, post.

(r) Mackill v. Wright (1888), 14 App. C. 106, per Lord Macnaghten at p. 120, Lord Watson, at pp. 116, 117, Lord Halsbury at pp. 114, 115.

(s) See Carnegie v. Conner (1889), 24 Q. B. D. 45, in which case, however, Mackill v. Wright (v. s.) does not appear to have been cited.

Held, that as the cargo was not that contemplated in the charter, and the cause of the vessel's not carrying 2000 tons dead weight was attributable to the charterers, they were not entitled to any deduction from the freight (ss).

Case 2.-A ship was chartered to carry a general cargo, including measurement goods, on a line running from Antwerp to the Plate, to pay freight at so much per ton on guaranteed dead weight capacity, with a guarantee that the ship should carry 2430 tons dead weight, or a pro rata reduction to be made. The charterers tendered a cargo of 2430 tons weight, containing the usual proportions of weight and measurement goods on such a voyage. The vessel could carry 2430 tons of coal, but in fact only carried 2314 tons weight of the cargo tendered, and there was no evidence .that the deficiency was attributable to the charterers.

Submitted that the charterers were entitled to a deduction from the freight (t).

Note. The term "tonnage" refers to register tons of 100 cubic feet, and has no reference to weight.

The term "tons" by itself would mean a weight of 20 cwt., but the full phrase "ton of 20 cwt." is generally used. For payment of freight the ton is sometimes calculated at some specified number of cwt. less than twenty.

The term "tons weight or measurement," means that goods shipped are to be taken either by weight of 20 cwt., or by measurement of 40 cubic feet, a measure probably derived from the measure of 20 cwt. of salt water (= 35.7 cubic feet, the balance being the allowance for the hull carrying it). Whether goods are to be treated as weight or measurement goods for freight, is at the option of the shipowner. See, for the meaning of the phrase in a charter, Pust v. Dowie (u).

The number of tons of 20 cwt. a vessel will lift is called her "dead weight capacity," for short, "dead weight,” “d. w.,” or "capacity." "Capacity" is also applied to the "room" or number of cubic feet available for stowage in the holds of a ship, which may differ materially from the weight she can lift, without putting her Plimsoll mark or load-line under water.

The primary meaning of "dead weight" appears to be simply "weight"; it has, however, acquired a secondary meaning as applied to goods which measure less than 40 cubic feet per ton weight, and therefore pay freight by weight. But it is submitted that "dead weight" may include goods measuring more than 40 cubic feet per ton, which certainly have a weight, and that it is only not usually applied to them, because for freightpaying purposes this weight is immaterial. The case of Mac

(s) Mackill v.. Wright (1888), 14 App. C. 106, per Lord Macnaghten at p. 120, Lord Watson at pp. 116, 117, Lord Halsbury at pp. 114, 115.

(t) This point arose in Hamilton v. Grant (1889) referred to the arbitration of a Queen's Counsel, but was not decided owing to a finding in favour of the charterers, of improper stowage by the master.

(u) Pust v. Dowie (1864), 5 B. & S. 20.