1861. MILLER v. TETHERING TON. he advised the plaintiff to withdraw a juror, the premium. having been paid into Court, to which he consented." The learned author then says, "And in a more modern case (a), Mr. Justice Chambre and a special jury decided that goods stowed on deck were not within a general policy on goods (b).” These replications admit that the custom still exists at Liverpool. The insurance of timber on deck by the words "on and over all," shews that deck cargo would not be included in the policy without those words. Then, if by custom deck cargo may be excluded, by the same custom general average in respect of it may also be excluded. If an ordinary policy upon goods is not contradicted by shewing a custom that a cargo on deck is not included, à fortiori such a policy is not contradicted by shewing that jettison of deck cargo is not included in general average. The only difficulty arises from the case of Blackett v. The Royal Exchange Insurance Company (c). There Lord Lyndhurst said:"Usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain. The cases which are collected in 1 Phillipps and Starkie upon Evidence (d) clearly establish this position; and a reference is made to the same subject in the second volume of Mr. Phillipps's book (e):-"If, however, those words are to be taken literally, many usages would be overthrown." The authorities on this subject were commented on in Myers v. Sarl (f). That was an action on an agreement under seal, by which the plaintiff contracted to build for the defendants a house and premises for a certain sum, and it was provided no alterations or additions should be admitted unless directed by the defendant's architect, by writing under his hand, and a weekly account of the work done thereunder that " (a) Backhouse v. Ripley, Sit- (c) Pp. 553 to 559. (f) 30 L. J., Q. B. 9. should be delivered to the architect every Monday next ensuing the performance of such work :" it was held that parol evidence was admissible to shew that, by the usage of the building trade, "weekly accounts" meant accounts of the day work only, and did not extend to extra work capable of being measured. The Court then called on Broun, who replied. MARTIN, B.-We are all of opinion that the pleas are good. The declaration is on a policy of insurance in the ordinary form on a ship and cargo, and no doubt in such case the underwriter is responsible for general average properly so called. The defendant by his plea says, "I admit that the underwriter is responsible for general average; but there is at Liverpool an usage and custom to the effect that, when a claim for general average arises by reason of jettison of deck cargo, the underwriter is not responsible; and the plaintiffs and defendant had notice of the usage at the time of making the policy, and made the policy with reference to it." No doubt, the rule of law is that an underwriter is responsible for general average, but here it is admitted by the demurrers that the policy was made on the express understanding which I have mentioned, and it is for Mr. Broun to shew that this understanding cannot take effect. He has failed to do so; and I think the real answer is that given by Mr. Mellish, viz., that the usage is in truth no contradiction of the policy in the sense of the rule that evidence is inadmissible to contradict a written contract, but merely explains it and shews the species of general average for which the underwriter is responsible. Where the words of a contract are not those ordinarily used, but such as are used in a particular trade, it is always competent to shew the sense in which they are used. There are a variety 1861. MILLER v. TETHERING TON. 1861. MILLER v. TETHERING TON. of contracts with respect to which gross injustice would be done unless the parties were allowed to shew what the terms of them really meant. The case of Blackett v. The Royal Exchange Insurance Company (a) is supposed to be an authority for the plaintiffs, but Lord Lyndhurst, in his judgment, points out that the case of goods lashed upon deck is plainly distinguishable and stands upon a different principle, and that an underwriter may shew that he is not responsible for a cargo loaded on deck. The principle is this, that the term "shipped on board" means shipped in that part of the vessel usually appropriated to the stowage of goods, and consequently the underwriter is not liable for jettison unless the goods are shipped in the ordinary way. I agree with Mr. Mellish that from the use of the words "on and over all," in the replications, the parties well knew what they were doing; and that, for the purpose of making the underwriters responsible, those words must be inserted in the policy. For these reasons I am of opinion that the pleas are good. CHANNELL, B.—I am also of opinion that the pleas are good, and that they are not answered by the replications; therefore the defendant is entitled to judgment. The pleas do not deny that upon an ordinary policy the underwriter is liable for general average, and the question is whether a custom that he shall not be responsible for jettison in respect of a cargo shipped on deck contradicts the language of the policy. I am of opinion that it does not. The defendant is liable for general average by virtue of the policy, but the effect of this custom is to limit his liability in respect of a particular portion of the cargo. I have great difficulty in reconciling the decision in Blackett v. The Royal Exchange Insurance Company (a) with that of Ross v. Thwaite (b), but I am of opinion that in this case there is no such contradiction of the policy as to exclude the custom. I am disposed to (a) 2 C. & J. 244. (b) 1 Park on Ins. 23, 8th ed. adopt the view of my brother Blackburn in Myers v. Sarl(a), that the true test is whether the custom is applicable to the language used; and that where a custom is well known to exist, the parties must be taken to have contracted with reference to it. Here the words of the policy shew that the parties meant to exclude the custom. Of course each case must depend on its particular circumstances. WILDE, B.-I am also of opinion that the pleas are good. They shew that, although an underwriter is usually liable for general average, there is a custom at Liverpool, which the plaintiffs and defendant knew, that an underwriter is not responsible for general average in respect of a cargo loaded on deck, and the first question is whether that is a reasonable custom. I should have said it was reasonable if the matter had stopped there. An underwriter who receives a premium without knowing whether there will be a deck cargo, and who receives no more if a deck cargo is carried, may well say "I will not be exposed to loss by reason of a deck cargo." But the second plea discloses another matter which makes this more reasonable, viz., that by custom the owners of under deck cargo are not liable to contribute. But the main objection is that the custom contradicts the terms of the contract. I think it does not. Where general words are used, evidence which shews that in a particular trade they have a more limited meaning is not contradictory. The words "general average" are in a certain sense terms of art, and capable of being explained by custom as having a peculiar meaning. It is not unreasonable to hold that custom good, which was well known to both parties and upon the faith of which they contracted. Judgment for the defendant, (a) 30 L. J., Q. B. 9. 1861. MILLER v. TETHERING- VOL. VI.-N. S. A A EXCH. 1861. J. Jan. 16. A charterparty stipulated that the ship should load a cargo of coal at Cardiff and proceed to Pernambuco and there deliver the same, and afterwards receive a full cargo of sugar and othe merchandise, and therewith proceed to a safe port in the United deliver the same on being SANTOS V. BRICE and Another. DECLARATION. That by a charter party of affreightment, dated the 10th day of December, 1859, and made between the plaintiff, master of the ship "St. Jargo d'Aviero 5/6 Veritas," of the one part, and the defendants, merchants and freighters, of the other part, it was, amongst other things, agreed that the said ship should with all convenient speed sail and proceed to Cardiff or Newport as ordered, and there load from the factors of the defendants a full and complete cargo of coal with which she should proceed to Pernambuco and there deliver the same, according to the custom of the port, to the agents of the defendants; and Kingdom, and afterwards, in the customary manner, receive a full and complete cargo of sugar in bags, and other lawful merchandize, it being understood that no cargo was to be taken but that supplied by the agents of the charterers on their account, not exceeding what she could reasonably stow and carry over and above her tackle, apparel, provisions and furniture; and being so loaded should therewith proceed to Cork, Falmouth or Cowes for orders, which were to be "The freight given by return of post, or the lay days to count: to dis of 60s. per ton of 20 cwt. nett for sugar, and for other produce at a rate proportionate thereto, being to be paid in the following manner:-1507. on signing bills of lading at Cardiff, cash for disbursements abroad at the current rate of exchange, and the remainder on the delivery of the cargo. The master to sign bills for each cargo at any rate of freight that might be tendered. The owners to have a lien on the homeward cargo for all freight and demurrage that might accrue thereon, to the extent of the bill of lading freight, but the difference, if any, to be paid at the port of loading by captain's draft on charterers, at usance, which they agreed to accept and pay on consignee at loading port agreeing amount."-Held, that the two clauses were not inconsistent, their meaning being that if the bill of lading freight was less than the charter freight, the difference was to be paid at the port of loading by the captain's draft on the charterers, at usance, if the consignee settled the amount, otherwise at the port of delivery. |