Volume Eleven - Pre-Victorian to the Present Day - some more aspects - A Dispute at Yokohama -  1889 . . .

Taking the coal bill of lading and incorporating in it the clause relating to freight in the charter party his argument that the cost was at the place of performance still held good. But there were other rules of construction to be applied in this case because in the first place under the coal bill of lading the defendants would have been entitled to the market value of the coal delivered short, but a clause was inserted which reduced the market value to the cost - so that they could not have any profit by it.

That clause, therefore, was for the benefit of the ship’s owner and ought to he construed strongly against him. In support of this, Mr. Walford referred again to Wood’s “Interpretations,” pointing out that as the master’s obligation had been reduced from the market value to the cost, this modification, being in his favour must be construed most strongly against him — as meaning c.f.i. cost and not the cost in Cardiff.

Counsel referred further to the case of Burton against English reported in 12 Q. B. Division, page 218, and on that authority, and the general proposition stated in Wood, and the fact that the stipulation was introduced for the benefit of the shipowner, held it must be construed to mean the cost in Yokohama. That was a reasonable construction of the word “cost.”

Was it reasonable that the consignee, having paid for this coal and coke, should lose three-fourths or five-sixths of the value from the fact that the master had failed to deliver it — that he should take, say 5s. 6d., Cardiff cost, when the coal had cost him 35s. per ton?

Incorporating the same clause with the coke bill of lading the objections were much stronger. If the other side intended to contend that the word “coals” did not include coke, and therefore the defendants should not get anything for the coke that construction would surely be a most unreasonable one because it would allow the master to throw the coke overboard or sell it at any intermediate port and treat it as his own, and then when he arrived here simply say - " I have no coke on board,” and then when an action was brought under, the bill of lading that document would be found to be nugatory.

Counsel quoted a case on page 317, 13 Q. B. Division, to show that no construction could be put on a charter party which would render the bill of lading nugatory.