Deed varied by Printed and written words. PENAL CLAUSE. as to exclude the usage, any evidence thereof is inadmissible, as the effect of that would be to contradict the manifest intention of the parties and the tenor of the written contract.' The terms of a contract under seal cannot be varied or dispensed with by a parol agreement. But if such a contract be to take effect from a particular time, a contract relating to an earlier period of time will not be a variation or dispensation of the other, and may be good and binding notwithstanding. Thus, where a ship, by charter-party under seal, was let at a certain rate per month, to commence and be computed from the day of her departure from Gravesend, and was to take in her cargo at a port in the Channel, and sail therewith on the intended voyage; a subsequent verbal agreement for loading the ship in the Thames and commencing the payment from the day of her clearing out at the Custom House, was held to be binding, and the merchant was compelled to pay for the interval between clearing out and sailing from Gravesend.' In a case upon the common printed form of charter-party, an attempt was made to attribute greater effect to the written than to the printed words of the instrument, according to an established usage among merchants, and now a recognised rule of the courts,' with regard to policies of insurance in the common form, but the Court held it to be inapplicable to a charterparty, there being no usage among merchants that would require a departure, in respect of this instrument, from the ordinary rules of construction applicable to all instruments.* It is usual for the parties to these contracts to bind themselves and their personal representatives respectively, the ship and freight on the one hand, and the cargo to be laden on the other, in a pecuniary penalty, for the true performance of their respective covenants. This is commonly done by a clause at the end of the instrument. Such a clause, however, is not the absolute limit of damages on either side. The party may, if he thinks fit, ground his action on the other clauses or covenants, and recover damages beyond the amount of the 1 Lewis v. Marshall, 7 M. & Gr. 729. Robertson v. French, 4 East, 130, 136. Alsager v. St. Katherine's Dock Co., 14 M. & W. 794. penalty, should they, in justice, be found to exceed it;' but if he sue on the penal clause, he cannot recover more than the damage actually sustained, or even so much if the penalty be less. But although the ship and freight are in terms bound for performance of the covenants on the part of the owners or master, conformably to the principles of the maritime law, there appears to be no mode of obtaining in this country the benefit of that security. It seems also, that the operation of such a clause as a lien on the cargo must be restrained to enforcing the payment or security of sums capable of being ascertained by computation, and which are, according to the terms of the instrument, properly payable in some form on the delivery of the goods,' and that it is not to be applied to the breach of a covenant which gives an action for unliquidated damages. It has been held that the master could not detain the cargo for the breach of a covenant to furnish a full lading, nor for demurrage, in a case where the charter-party did not contain this clause, and nothing was said in argument as to the omission of it." BY BILL OF When a vessel is put up as a general ship for a particular AFFREIGHTMENT voyage, she is intended for a miscellaneous cargo composed of LADING. the goods of any person that chooses to send; and whether it be the owners or charterers that thus dispose of the vessel, the contract of affreightment actually made is usually with the master; but both he and they are, in consideration of law, separately bound to the performance of it. Bailment. This contract, however, is seldom reduced into writing, or Contract by even orally stipulated. More frequently it is to be implied from the shipment of the goods, and a variety of circumstances attending thereon. There is an advertisement in the newspapers, or an announcement at Lloyd's, or by handbills, of the vessel as a general ship, laid on at such a port for such another port, stating her name and description, her burthen, and in 1 Harrison v. Wright, 13 East, 343. Per Lord Campbell, Tindall v. Taylor, 24 L. J. (Q. B.) 12, 15. 3 Philips v. Rodie, in B. R. Easter T. 1812. Warranty by public Adver tisement. Seaworthiness implied. times of war her force, and whether she is to sail with convoy. Particulars are personally learned from those who are authorised to supply them. There is then a bailment of goods to the master of the ship, and, in the absence of any express contract, the rights and liabilities of shipper and owner are founded upon the contract implied in the bailment, modified, it may be, by these oral particulars, and those printed representations and warranties. The charterer of a vessel put her up as a general ship at Lloyd's, with notice that she would sail with convoy, and the plaintiffs having put goods on board, obtained policies of insurance on them, with warranty to that effect; the ship, however, sailed without convoy, the preliminaries of peace having been gazetted in the meantime, and was lost the day after; but this particular of the notice at Lloyd's was held to be a warranty, and the plaintiffs recovered for loss of their insurance against the charterer.' In a similar case, Lord Kenyon held the owners bound, although there was no evidence of their having authorised or assented to the insertion of the clause,' and although it did not appear in the bill of lading.' The seaworthiness of the ship is an implied stipulation in every contract of this nature, and for breach thereof and injury sustained in consequence, an action by the shipper will lie against the charterer to recover damages; which the charterer may have a right to recover over against the owner, together with 1 Phillips v. Baillie, 3 Doug. 374. 2 Rinquist v. Ditchell, post, M. T. 40 Geo. 3, at Guildhall; briefly stated by Gibbs, C. J., in Sanderson v. Busher, 4 Camp. 54, in order to correct the mistaken supposition that there was otherwise any express warranty in the case; reported imperfectly, Esp. 64; see Christin v. Ditchell, Peake Add. Cases, 141. The learned reporter appears by his note to 4 Camp. 54, not to understand Gibbs, C. J., as intending to deny that the warranty to sail with convoy appeared also in the bill of lading, although his language is large enough to convey that meaning. The learned reporter says that such a case was still undetermined, and refers to the undecided case of Snell v. Marryatt, B. R. Mich. T. 48 Geo. 3, stated by Abbott, 4 ed. Add. p. 644, where the Court on granting a new trial direct counsel's attention to what may be the ineaning of such a clause in the adver tisement only, and what would be the effect of the bill of lading which made no mention of it. 3 Said to be so understood among merchants by the jury in the case of Rinquist v. Ditchell, Abbott; and as that case is reported in 3 Esp. 64, Lord Kenyon founds his decision against the owners wholly on the appearance of this clause in the public advertisement. the necessary costs of defending the prior action, the owner at Upon the shipment of goods for conveyance on payment of freight, whether the contract of affreightment be by charterparty or without it, bills of lading are to be signed by the master. The custom is, upon the goods being sent on board, for the master, or person acting for him, to give a receipt, and afterwards for the master, on the receipts being given up to him, to sign two, three, or even more parts of a bill of lading for the goods of each freighter. One part is sent with the ship, one by post to the consignee or vendee, a third perhaps to an agent or factor of the shipper in the same country with the vendee, and a fourth the shipper retains for his own use.3 Of this document the following is the form in blank at USUAL FORM OF present commonly in use: Shipped in good Order and well conditioned by in and upon the good Ship called the whereof is Master for this present Voyage and now riding at Anchor in the and bound for being marked and numbered as in the Margin, and are to be delivered in the like good Order and well conditioned at the aforesaid Port of (the Act of God, the Queen's Enemies, Fire, and all and every other Dangers and Accidents of the Seas, Rivers, and Navigation 1 Blythe v. Smith, 5 M. & Gr. 405. Per Lord Holt, Coggs v. Bernard, 2 Ld. Raym. 909, 918; Dale v. Hall, 1 Wils. 281; Laveroni v. Drury, 8 Exch, 166; 22 L. J. (Ex.) 2; Gillespy . Thompson, 2 Jur. N. S. 712 n. 3 In Lickbarrow v. Mason, 2 T. R. 63, 72, some demur to there being four parts of the bill of lading and not three only, is made by Buller, J., but I am not aware that law or custom has defi- By the French Ord. liv. 3, t. 2, art. 3 BILL OF LADING, Stamp. BILL OF LADING. EVIDENCE OF A BAILMENT. of whatever nature and kind soever excepted) unto or to Assigns Freight for the said Goods1 with primage and average accustomed. In Witness whereof the Master or Purser of the said Ship hath affirmed to Dated in to stand void. Bills of Lading all of . Bills being accomplished In the case of ships homeward bound from the West India islands, that send their boats to fetch the cargo from the shore, there is introduced a saving out of this exception "of risk of boats, so far as ships are liable thereto." And in that case the whole clause is as follows: "The act of God, the King's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, save risk of boats, so far as ships are liable thereto, excepted." A bill of lading for goods, merchandise, or effects to be exported or carried coastwise, is liable to a stamp duty of sixpence. It cannot be stamped after being executed or signed, and any one who makes or signs a bill of lading not duly stamped, forfeits 501.3 This instrument is evidence of a contract safely to carry the goods, whereof bailment is acknowledged, and to deliver the same at the destined port to the person or his assigns, and upon the terms therein mentioned." It is not to be confounded with the receipt already spoken of; that is more commonly signed by the mate, but even so, it is nevertheless binding on the owners; and for that reason bills of lading in respect of the same goods should never be given except in exchange for the receipts." 1 Stipulations for demurrage are sometimes inserted here, the advantage of which will be considered post, c. x.Demurrage. 1 T. R. 205; 216; per Bramwell, B., Foster v. Colby, 28 L. J. (Ex.) 81, 85. 5 Craven v. Ryder, 6 Taunt. 433; Fraganov. Long, 4 B. & C. 219; Thompson v. Traill, 2 C. & P. 334; 6 B. & C. 36, S. C.; Schuster v. M'Kellar, 7 E. & B. 704; 26 L. J. (Q. B.) 281, S. C.; see Cowasjee e. Per Buller, J., in Caldwell v. Ball, Thompson, 5 Moore, P. C. 165. 25 & 6 Viet. c. 79; as to Ireland, 5 & 6 Vict. c. 82. 35 & 6 Vict. c. 79, § 21; 5 & 6 Vict. c. 82, § 34. |