Later decisions that cite Schuler
Lorp HerscHe.u L.C. :— My Lords, the question raised by this appeal is the construc- tion to be put upon a bill of lading by which the shipowners agreed to carry certain goods of the respondents. The ship- owners, who are the appellants, alleged that the Court below erred in so construing their liability under the bill of lading as to hold that they had broken their contract by proceeding to a port called Burriana after they had taken on board the cargo shipped by the respondents. A cargo of oranges was shipped at Malaga, and the bill of lading is in these terms: “Shipped in good order and con- dition” “in and upon the good steamship called the Zena, now lying in the port of Malaga, and bound for Liverpool. Hight third cases oranges.” The port to which the vessel proceeded after she left Malaga was not in the direction of Liverpool, but in the contrary direction, taking the vessel farther away from Liverpool than she was at Malaga. Of course it could not be disputed that, if the words which I have read to your Lordships were the only words to be found in the bill of lading relating to the voyage, the shipowner could not justify his act in thus deviating from the stipulated voyage (1) 20 Q. B. D. 475. 303 LH. L. (E.) 1893 —~ GLYNN v MAarGetson & Co. 304 H. L. (%.) 1893 —m~_ GLYNN 1G. AARGETSON & Co. Lord Herschel], LG: HOUSE OF LORDS [1893] and would be liable to the shipper in respect of any damage to his goods sustained in consequence of such deviation. In the present case, owing to the delay which took place before the vessel arrived at Liverpool, the oranges were much damaged, and loss was consequently sustained. But the shipowner seeks to justify the act of proceeding to Burriana by reason of the words which follow those which I have read, “with liberty to proceed to and stay at any port or ports in any rotation in the Mediterranean, Levant, Black Sea or Adriatic, or on the coasts of Africa, Spain, Portugal, France, Great Britain and Ireland, for the purpose of delivering coals, cargo or passengers, or for any other purpose whatsoever.” The contention of the appellants is, that under those words the voyage to Burriana was justified by the terms of the contract between the parties. My Lords, it is admitted that the contention of the appellants goes this length, that after the oranges were taken on board at Malaga upon a vessel said to be bound for Liverpool, the ship might have been sent to any port within the limits named, or any number of those ports in any order, staying there any time she pleased, for the purpose of taking in cargo or delivering it at any of those ports. And it is true that if their full and complete meaning be given to the words used, that will be the consequence of giving them that meaning. The question is whether they ought to be so construed, or whether there is any reason for putting a restriction upon them. These words are printed words in a document evidently intended to be used in relation to a variety of contracts of affreightment. The name of the particular port of shipment, as well as the goods to be shipped, is left in blank, and the words in question are treated as a liberty which is to attach to the particular voyage which is agreed upon between the parties. But the main object and intent of the charterparty is the voyage so agreed upon; and although it would not be legitimate to discard the printed words (indeed here the shipowner requires the shipper to undertake to be bound by them as well as by the written words), yet it is well recognised that in construing an instrument of this sort, in considering what is its main intent and object, and what the interpretation of words connected with A.C. AND PRIVY COUNCIL. that main intent and object ought to be, it is legitimate to bear in mind that a portion of the contract is on a printed form applicable to many voyages, and is not specially agreed upon in relation to the particular voyage. My Lords, the main object and intent, as I have said, of this charterparty is the carriage of oranges from Malaga to Liverpool. That is the matter with which the shipper is concerned; and it seems to me that it would be to defeat what is the manifest object and intention of such a contract to hold that it was entered into with a power to the shipowner to proceed anywhere that he pleased, to trade in any manner that he pleased, and to arrive at the port at which the oranges were to be delivered when he pleased. Then is there any rule of law which compels the construction contended for? JI think there is not. Where general words are used in a printed form which are obviously intended to apply, so far as they are applicable, to the circumstances of a particular contract, which particular contract is to be embodied in or intro- duced into that printed form, I think you are justified in looking at the main object and intent of the contract and in limiting the general words used, having in view that object and intent. Therefore, it seems to me that the construction con- tended for would be an unreasonable one, and there is no difficulty in construing this clause to apply to a liberty in the performance of the stipulated voyage to call at a particular port or ports in the course of the voyage. That port or those ports would differ according to what the stipulated voyage was, inas- much as at the time when this document was framed the parties who framed it did not know what the particular voyage would be, and intended it to be equally used whatever that voyage is. The ports a visit to which would be justified under this contract would, no doubt, differ according to the particular voyage stipulated for between the shipper and the shipowner; but it must, in my view, be a liberty consistent with the main object of the contract—a liberty only to proceed to and stay at the ports which are in the course of the voyage. In saying that I am, of course, speaking in a business sense. It may be said that no port is directly in the course of the voyage (indeed that was argued by the learned 300 He 1.(E,) 1893 ——~ GLYNN v. MARGETSON & Co. Lord Herschel, LC, 306 HL CE.) 1893 —_—m— GLYNN Vv. Marerrson & Cov. Lord Herschell, L.c. HOUSE OF LORDS [1893 | counsel for the appellants), inasmuch as in merely entering a port or approaching it nearly you deviate from the direct course between the port of shipment and the ultimate port of desti- nation. That is perfectly true; but in a business sense it would be perfectly well understood to say that there were certain ports on the way between Malaga and Liverpool, and those are the ports at which I think the right to touch and stay is given. Then it is said that this may be done “in any rotation.” Ido not think that that carries the matter any further. When once the conclusion which I have indicated is arrived at, if the meaning to be given to those words is that the vessel may take those ports in any order she pleases in a reasonable sense, nevertheless the ports referred to must still, in my opinion, be ports lying between Malaga and the port of destination, Liver- pool, even although there might be a justification for her not touching at any particular one of those ports, or more than one of them, in the exact order in which they would come in the voyage between those two places. It is not necessary to decide what effect should be given to those words “in any rotation” ; but even giving to them the fullest possible effect they do not seem to me to enlarge the number of ports at which it would be justifiable for this vessel to touch during the course of her voyage. My Lords, it is to be observed that the liberty which is given is not a liberty simpliciter to proceed to those ports. Purposes are mentioned; and the first which is mentioned is “for the purpose of delivering coals, cargo or passengers.” That clause seems to me to throw light upon the construction which ought to be put upon the language used in the other part of the instrument, because the delivering of coals, cargo or passengers. points to the carrying out of a voyage already determined upon in relation to a cargo already on board. I do not put that before your Lordships as by any means the governing consideration, because I am led to the conclusion at which I have arrived upon the same grounds as those which have been so very clearly and fully expressed by the learned judges in the Court below. I find myself so completely in agreement with the reasons which they have given that I do not think it necessary to trouble your Lordships with any further observation. A. C. AND PRIVY COUNCIL. I move your Lordships that this appeal be dismissed with costs. Lorp Ha.sBury Go My Lords, I am entirely of the same opinion. It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole of the instrument and not at one part of it only. Looking at the whole of the instrument, and seeing what one must regard, for a reason which I will give in a moment, as its main purpose, one must reject words, indeed whole provisions, if they are in- consistent with what one assumes to be the main! purpose of the contract. The main purpose of the contract was to take on board at one port and to deliver at another port a perishable cargo. I do not think the learned counsel who argued this case on the part of the appellants gave sufficient effect in the argu- ment which he addressed to your Lordships to the difference between the ordinary and formal parts of the document which are to be found in print and the written parts—indeed I gathered from him at one time that he rather contested the legitimacy of considering the difference whether the words were in print or in writing; he appeared to intimate that that doubt was justified by the terms of this particular document, because that in the ordinary construction of a commercial document such a principle as I have mentioned has been adopted certainly for something like a century cannot be a matter of doubt, and the reason for it appears to me to be very cogent and relevant to the case before your Lordships. I have in my hand the report of a case in the Court of King’s Bench in the year 1803, Robertson and Another vy. French (1), in which Lord Ellenborough, as it appears to me, gives with great precision the ground upon which one part of a document may be relied upon as controlling and cutting down the generality of the words in the other. His Lordship says: “In the course of the argument it seems to have been assumed that some peculiar rules of construction apply to the terms of a policy of assurance which are not equally applicable to the terms of (1) 4 East, at p. 136. 307 H, L. (E.) 1893 ee GLYNN v. Mancerson & Co. 308 H. L. (E) 1893 —~ GLYNN Vv, AITARGETSON & Co. Lord Halsbury, L.C. ee HOUSE OF LORDS [1893] other instruments and in all other cases. It is therefore proper to state upon this head that the same rule of construction which applies to all other instruments applies equally to this instrument of a policy of insurance, viz. that it is to be construed according to its sense and meaning as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary and popular sense unless they have generally in respect to the subject-matter, as by the known usage of trade or the like, acquired a peculiar sense distinct from the popular sense of the same words, or unless the context evidently points out that they must, in the particular instance and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense. The only difference between policies of assurance and other instruments in this respect is that the greater part of the printed language of them being invariable and uniform has acquired from use and practice a known and definite meaning, and that the words superadded in writing (subject indeed always to be governed in point of construction by the language and terms with which they are accompanied), are entitled nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, in- asmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formality adapted equally to their case and that of all other contracting parties upon similar occasions and subjects.” Now if one applies the principle of what Lord Ellenborough there says to the present case, in which the parties have in writing expressed the intention that there should be a delivery of goods (and the particular class of goods is not to be omitted from consideration—they were perishable goods taken from one port to another) .it seems to me that to apply these general printed words (which might in a particular case receive complete fulfilment) as regards each of these stipulations, to the particular contract as between carrier and customer would manifestly defeat the very object which both the parties had in view. oles(@s AND PRIVY COUNCIL. My Lords, I also concur with my noble and learned friend on the woolsack that the particular words which give the liberty are to be construed to refer to a liberty to deliver in the course of a voyage which has been agreed upon between the parties. Under these circumstances I do not desire to add anything except to point out that Mr. Bigham’s argument, lucid and able as it was, did somewhat of injustice to Bowen L.J.’s observa- tion when he said that Bowen L.J. had assumed something when he stated that it would make it impossible to insure the cargo if such a construction was adopted as was then insisted upon. “Tt would make it impossible,” says Bowen L.J. “to insure the cargo. It would make it impossible for the consignees of the cargo to know what to do as to taking delivery and to know what they were to do with the bills of lading.” My Lords, it seems to me that that which the learned counsel attributed to Bowen L.J. he has been guilty of himself. If he assumes that the construc- tion is that which he contends for, his answer that nevertheless business does go on would be good enough; but he seems to forget that the question which we are considering is whether that is the construction; because he must not first assume that that is the true construction, and that business does go on nevertheless, which was his answer, but he must consider whether mercantile men when they do business in this form do not recollect that a business sense will be given to business documents, and that therefore they are not under the peril of leaving it absolutely to the shipowner himself to do what he will with the cargo. Indeed the argument seems to me to assume this, that you might get rid of written documents altogether, inasmuch as both carrier and customer have such complete con- fidence in each other that however wide and unreasonable may be the construction attributed to a written instrument between carrier and customer they are not likely to disagree. My Lords, if that is the argument I am afraid that the records both of your Lordships’ House and of all other Courts do not favour that view. Undoubtedly both carrier and customer differ very widely sometimes as regards what is reasonable and what is not, and for that reason they call upon Courts of Law to construe sometimes somewhat loose and irregular instruments. 309 H. L. (E.) 1893 em GLYNN vz. Manrerrson & Co. Lord Halsbury, L.C. 360 HOUSE OF LORDS [1893] H. L. (E.) My Lords, for these reasons I agree in the motion which my 1893 noble and learned friend on the woolsack has made. Nornmet GLYNN Mangerson & LORD MACNAGHTEN :— Co. went My Lords, I agree. Lorp SHAND.:-— My Lords, I am also of the same opinion. Order appealed from affirmed and appeal dismissed with costs. Lords’ Journals 1st May 1893.