of transportation of the goods by rail to the seaboard, including lighterage. In this case, the proper term is: "f.o.b. Cars (named port) LIGHTERAGE FREE" Under this quotation: A. Seller must 1. place goods on or in cars 2. secure railroad bill of lading 3. pay all transportation charges to, including lighterage at, the port named 4. be responsible for loss and/or damage until goods have arrived on cars at the named port B. Buyer must 1. be responsible for loss and/or damage incurred thereafter 2. handle all subsequent movement of the goods 3. take out the insurance necessary to the safety of the goods after arrival on the cars 4. pay the cost of hoisting goods into vessel where weight of goods is too great for ship's tackle 5. pay all demurrage and other charges, except lighter age charges 7. The seller may desire to quote a price covering delivery of the goods alongside overseas vessel and within reach of its loading tackle. In this case, the proper term is: "f.a.s. vessel (named port)" Under this quotation : A. Seller must 1. transport goods to seaboard 2. store goods in warehouse or on wharf if necessary, unless buyer's obligation includes provision of shipping facilities 3. place goods alongside vessel either in a lighter or on the wharf 4. provide the usual dock or ship's receipt 5. be responsible for loss and/or damage until goods have been delivered alongside the ship or on wharf B. Buyer must 1. be responsible for loss and/or damage thereafter, and for insurance 2. handle all subsequent movement of the goods 3. pay cost of hoisting goods into vessel where weight of goods is too great for ship's tackle 8. The seller may desire to quote a price covering all expenses up to and including delivery of the goods upon the overseas vessel at a named port. In this case, the proper term is: "f.o.b. vessel (named port)" Under this quotation: A. Seller must 1. meet all charges incurred in placing goods actually on board the vessel 2. provide the usual dock or ship's receipt 3. be responsible for all loss and/or damage until goods have been placed on board the vessel B. Buyer must 1. be responsible for loss and/or damage thereafter 2. handle all subsequent movement of the goods 9. The seller may be ready to go farther than the delivery of his goods upon the overseas vessel and be willing to pay transportation to a foreign point of delivery. In this case, the proper term is: "c.&f. (named foreign port)" Under this quotation: A. Seller must 1. make freight contract and pay transportation charges sufficient to carry goods to agreed destination 2. deliver to buyer or his agent clean bills of lading to the agreed destination 3. be responsible for loss and/or damage until goods have been delivered alongside the ship and clean ocean bill of lading obtained (seller is not responsible for delivery of goods at destination) B. Buyer must 1. be responsible for loss and/or damage thereafter and must take out all necessary insurance 2. handle all subsequent movement of the goods 3. take delivery and pay costs of discharge, lighterage and landing at foreign port of destination in accordance with bill of lading clauses 4. pay foreign customs duties and wharfage charges, if any 10. The seller may desire to quote a price covering the cost of the goods, the marine insurance on the goods, and all transportation charges to the foreign point of delivery. In this case, the proper term is: "c.i.f. (named foreign port)" Under this quotation: A. Seller must 1. make freight contract and pay freight charges sufficient to carry goods to agreed destination 2. take out and pay for necessary marine insurance 3. deliver to buyer or his agent clean bills of lading to the agreed destination, and insurance policy and/or negotiable insurance certificate 4. be responsible for loss and/or damage until goods have been delivered alongside the ship, and clean ocean bill of lading and insurance policy and/or negotiable insurance certificate have been delivered to the buyer, or his agent. (Seller is not responsible for the delivery of goods at destination, nor for payment by the underwriters of insurance claims) 5. provide war risk insurance, where necessary, for buyer's account B. Buyer must 1. be responsible for loss and/or damage thereafter, and must make all claims to which he may be entitled under the insurance directly on the underwriters 2. take delivery and pay costs of discharge, lighterage and landing at foreign ports of destination in accordance with bill of lading clauses 3. pay foreign customs duties and wharfage charges, VI. Diamond Alkali Export Corp. vs Bourgeois Law Reports, Kings Bench Division, July 1, 1921, Vol. III, p. 443. Mr. Justice MCCARDIE: By a written contract of August 7, 1920, the Diamond Alkali Export Corp. of New York sold to F. Bourgeois of London 50 tons of soda ash. Shipment was to be September-October from American seaboard. Terms of payment were cash against documents under confirmed bankers' credit at London. Price was c.i.f. Gottenburg. The contract contained (inter alia) this condition: "Seller not liable for failures or delays "in delivery due to strikes, lockouts, fire, accident, embargoes, stoppage of "navigation, lack of transportation, war restrictions or seizures by any "governmental agency or any contingencies whatever beyond seller's con"trol. In case any deliveries are delayed owing to any such contingency, "the delayed shipments shall be made as soon as possible after such con"tingency has been removed or such shipments may be canceled at seller's "option. Date of 'Bill of Lading' is to be considered date of shipment." The buyers rejected the documents when tendered in London upon several grounds, namely, (1) That the sellers had not shipped the goods until Nov. 8 and 9, 1920. (2) That a proper Bill of Lading was not presented. (3) That a proper policy of insurance was not presented. The sellers assert that their non-shipment of the goods in SeptemberOctober, 1920, is met by the strike clause. They also assert that the documents tendered to the buyers complied with the contract. It is admitted, and the Award states, that the points are to be decided by English Law. I shall not narrate the circumstances whereby (as is admitted) the goods were not shipped on board till Nov. 8 and 9, 1920. The facts found fall, I think, within the strike clause. The Arbitrators state that the delay was at all times beyond the sellers' control. The strike clause is very broadly worded. It is not confined to prevention. It refers to delay also. The words "or any contingencies whatever" seem to exclude the operation of the ejusdem generis rule. See, for example, Larsen vs Sylvester, 1908 Appeal Cases, at page 295, and Travers vs Cooper, 1915, 1 King's Bench at page 73. That being so, the next question is whether the effect of the strike clause was merely to save the sellers from liability, or whether it operated also to debar the buyers from insisting that the goods had not been shipped in the months specified in the contract. Upon the whole I think that the effect of the clause was to enable the seller (if facts within the strike clause prevented shipment SeptemberOctober) to ship at a later date. I am not aware of any direct authority on the point. The case of Brown vs Turner Brightman, 1912 Appeal Cases at page 12 and the like decisions do not really touch the point. The decision in Brooke Tool Co. vs Hydraulic Co. (1920) 122 Law Times at page 126 turned upon different considerations. The clause must be read in a fair business sense. It effects two things, I think. It firstly saves the vendor from liability for delay, &c., caused by circumstances within the clause; and secondly, it enables the seller, as a matter of right, to ship as soon as possible after the cause of delay has ceased to operate. It gives power to the seller to cancel. It gives no like power to the buyer. In the case of J. Aron & Co. vs Comptoir Wegimont, I yesterday stated my views on the meaning and contractual effects of a condition for shipment at a specified time. I do not repeat them as a matter of right to ship at a later date than that expressed in the earlier part of the contract of sale. Here an express clause of the bargain enables the sellers as a matter of right to ship at a later date than that expressed in the earlier part of the contract of sale. I therefore find in favor of the sellers on the first objection of the buyers. It thus becomes my duty to consider the serious and powerfully argued contention of the buyers, that the documents tendered did not conform to the contract. I will deal with those documents separately. I take first what I will call for convenience the bill of lading. That document was issued by the Swedish American Mexico Line, Ltd., of Gothenburg, Sweden. It is dated Nov. 8, 1920. It contains many clauses. The arguments before me turned on the earlier words of the bill of lading, and those only I set out. They are these: “Received in apparent good order and condition from D. A. Horan to be transported by the S.S. Anglia, now lying in the Port of Philadelphia and bound for Gothenburg, Sweden, with liberty to call at any port or ports in or out of the customary route or failing shipment by said steamer in and upon a following steamer, 280 bags Dense Soda." Perhaps I should add that the first of the many clauses in the bill of lading is this: "It is mutually agreed that this shipment is subject to all the "terms and provisions of and all the exemptions from liability contained "in the Act of Congress of the United States approved on the 13th day of "February, 1893, and entitled 'An Act for the Navigation of Vessels.'" This Act of 1893 provides by Section 4: "That it shall be the duty of the "owner or owners, master or masters, or agent of any vessel transporting "merchandise or property from or between ports of the United States and "foreign ports to issue to shippers of any lawful merchandise a bill of "lading or shipping document stating, amongst other things, the marks "necessary for identification, number of packages or quantity, stating "whether it be the carrier's or shipper's weight, and apparent order or con"dition of such merchandise or property delivered to and received by the “owner, master or agent of the vessel for transportation, and such document "shall be prima facie evidence of the receipt of the merchandise therein "described." I call attention to the words "Bill of Lading or shipping documents." The Act recognizes that there may be shipping documents fulfilling the requirements of the section and yet not bills of lading. Now the buyers strongly contend that the document here tendered was not a bill of lading at all, and that in any event it was not such a bill of lading as was required by the contract. They call attention to the fact that the document does not acknowledge the goods to have been actually placed on board. It merely says that the goods have been received "to be transported by the S.S. Anglia." They further call attention to the words "or "failing shipment by said steamer in and upon a following steamer." I |