Glynn v Margetson & Company
Jurisdiction | UK Non-devolved |
Judgment Date | 01 May 1893 |
Court | House of Lords |
Date | 01 May 1893 |
Ship - Bill of Lading, Construction of - Deviation Clause - Printed Words - Liberty to deviate from Specified Voyage - Extent of Deviation Authorized.
Oranges were shipped on board a steamship under a bill of lading which stated that the ship was then “lying in the port of Malaga, and bound for Liverpool, with liberty to proceed to and stay at any port or ports in any station 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 bill of lading contained a clause whereby the shipper expressly agreed to all its stipulations whether written or printed. The deviation clause was printed with the name of the port of shipment left blank and filled up in writing.
The ship left Malaga for a port on the east coast of Spain and out of her course for Liverpool, then returned and made for Liverpool, where the oranges were delivered in a damaged condition owing to the delay. In an action by the shipper against the shipowner for damages for breach of contract:—
Held, affirming the decision of the Court of Appeal ([
APPEAL from an order of the Court of AppealF1.
Oranges were shipped on board the steamship Zena under a bill of lading stating that the Zena was “now lying in the port of Malaga, and bound for Liverpool, 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 last clause of the bill of lading ran thus:— “Notice. — In accepting this bill of lading the shipper or other agent of the owner of the property carried expressly accepts and agrees to all its stipulations, exceptions and conditions, whether written or printed.” The Zena left Malaga for Burriana, a port about 350 miles from Malaga on the east coast of Spain, took in cargo, retraced her course to Valencia and thence to Liverpool, thus occupying more days in reaching Liverpool than if she had proceeded there direct from Malaga. Owing to the delay the oranges arrived in a damaged condition. The respondents, who were the consignees, having brought an action for damages for breach of contract against the appellants, the owners of the Zena, the defence was that the deviation was justified by the bill of lading. Hawkins J., who tried the action with a special jury, held that the deviation was not justified and gave judgment for the plaintiffs for £589, and this decision was affirmed by the Court of Appeal (Lord Esher M.R., Bowen and Fry L.JJ.)F2.
April 28, May 1. Bigham Q.C. and H. F. Boyd (W. S. Glynn with them) for the appellants:—
The Courts below have introduced a qualification into the bill of lading for which there is no justification. The words of the bill of lading must be taken in their natural sense. They were intended to give the shipowner a discretion, and it is convenient for shippers that the owner should have this discretion, because it reduces freight. This is a common form of bill of lading, well known in the trade and familiar to all the appellants' customers. The clause is intended, among other purposes, to meet the case of stress of weather. If the Court of Appeal is right, all the steamers trading in the Mediterranean are deviating from their bills of lading. The same question has arisen in cases of marine insurance. In Leathly v. HunterF3, Grant v. PaxtonF4, Metcalfe v. ParryF5, the principle has been applied for which the appellants contend. Every word of the bill of lading ought to receive its grammatical meaning. The Court of Appeal relied on Leduc v. WardF6, in which Lord Esher M.R. speaking of a bill of lading in which liberty was given to call at any ports in any order, and a ship bound from Fiume for Dunkirk called at Glasgow, said (p. 481): “Business could not be carried on upon those terms.” The answer is that it has been so carried on for many years. All that is meant by the ship's being “bound” for Liverpool is that Liverpool is the ultimate destination. It does not preclude the vessel from calling at intermediate ports. Leduc v. WardF7 is distinguishable, and the terms there were not so wide. The construction adopted by the Court of Appeal gives no meaning to the words. It ignores the actual contract and makes a new contract for the parties which they might have made for themselves but did not.
Joseph Walton Q.C., C....
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