1. The facts of this case are m follows: Messrs. Volkart entered into two contracts to supply the plaintiff, a coal merchant in Bombay, with 500 tons of coal in lots of 400 and 100 tons respectively. The contracts were in writing, and their terms were identical. The coal was to be 'South Hutton Double screened Smithy Nuts,' at Rs. 16-14 per ton, and the delivery was to be 'per steamer July-August shipment into purchaser's boats alongside.' The last clause of the contract runs as follows: 'In the event of the ship being lost, this contract to be null and void.' From the evidence of Mr. Ward or Messrs. Killick, Nixon & Co., this is the ordinary form used in Bombay for coal shipment contracts. The vendor undertakes to deliver the goods in the ordinary course of navigation, but protects himself from any obligation to deliver if that ordinary coarse is interrupted by the loss of the ship on which he has put the goods.
2. A commission was issued at the instance of the defendants, and the evidence taken at Sunderland proves that 1,032 tons of coal of the quality stipulated was put on board the S.S. Rubens on the 30th and 31st August; that a bill of lading given for the 1,032 tons included 500 tons purchased by the defendants' house in England for the purpose of fulfilling this contract and that the S.S. Rubens was chartered for Bombay to carry this coal. On the 1st September the Rubens was sunk by collision in lock at Sunderland, and remained at the bottom in 23 feet of water for 16 hours, when she was raised and her cargo discharged. Extensive repairs were found necessary, and she was useless till the 6th October. On the 3rd September, before the defend-ants became aware of this disaster, the plaintiff wrote asking the name of the ship by which the coal was to arrive. The defendants gave the name Rubens, but said they would not guarantee that name until the telegram giving it was confirmed by letter. That telegram is a most important piece of evidence in the cage. It was received by the defendants on the 30th August in cypher, and when interpreted it informed them that 'the two contracts for 500 tons South Hutton Smithy Nut coals were shipped per S.S. Rubens.' The evidence on the commission confirmed this telegram. Thus the vendor had put on hoard a certain vessel, before the end of August certain specific goods for the performance of these two contracts. But the plaintiff refused to consider the contract null and void under these circumstances, although the ship was flunk. On the 8th September he offered in Bombay to receive the damaged coal. That offer would reach England about the 25th. But on the 26th the coal at Sunderland was surveyed and pronounced unfit for a voyage to Bombay on account of its damp condition, and the surveyor further said he must have held this opinion had he surveyed the coal immediately after that accident, as the coal which had been under water any length of time must be wet and consequently unfit for a long voyage. Such are the material facts. The defendants claimed under the last clause of the contract to be discharged from their obligations by the sinking of the ship. The plaintiff says the case is not within the last clause, and has brought this suit for damages.
3. It was first argued that there was no July-August shipment within the meaning of the contract. But, I think, this contention fails. Bowes v. Shand 2 App. Ca. 455 decides that such a contract is satisfied (I use the words of Lord Blackburn, p. 481; 'where (in a contract for March shipment) a parcel of goods is begun to be put on board, so that the shipping is entirely completed before the 31st of March, there can be no doubt that this is a March shipment.' It is sufficient, as Mr. Benjamin says in his work on Sales (4th ed.), p. 568, 'that the goods shall be placed on board ship during the time specified.' The defendants, therefore, performed their contract as regards July-August shipment. They also performed their contract as regards the quantity and quality of coal to be shipped.
4. The next question to be considered is whether--supposing the ship was lost--the case comes within the last clause, It was argued that until the ship was declared to the purchaser, that clause did not come into force. The first answer to that argument is that the parties made their own agreement by which they. provided in express terms that upon the happening of a certain to event--to wit, the loss of the ship--the contract is determined and is discharged. There is no clause to the effect that the name of the ship must be declared to the purchaser. The plain meaning of the contract is that the agreement is at an end if the ship carrying the goods is lost. The burden of proof lies on the defendants to show that the Rubens was the ship carrying the goods. But on satisfactory evidence of that fact I think the last clause applies, If the parties had not intended the condition contained in the last clause to operate in the case of the non-declaration of the ship they would have made that an express condition. Such was done by the parties in the two cases of Busk v. Spence 4 Camp. 329 and Graves v. Legg 9 Ex 709 : 23 L.J. Ex. 228 and an express stipulation that ' as soon as the seller knows the name of the vessel be is bound to mention it to the buyer' was held a condition precedent. But I find no such stipulation in the present agreement. No doubt the coal was brought for the purpose of reselling it in the course of the plaintiff's business, and if it was to be sold in large quantities before arrival, it might be necessary to have the name of the vessel. But, as Mr. Ward's evidence shows, that difficulty is met by the practice, in the trade, of obtaining the name as soon as the period of shipment is past. Still such a practice does not create a legal obligation to declare, as long as such an obligation is not made a term of the contract. It was argued that until declaration of the ship to the purchaser neither the ship nor the coal was assigned to the contract, and, therefore, the loss could not be within the contract. I cannot follow that argument. If such a condition was required it should have been expressed, as in Bush v. Spence. It seems to me that the appropriation of certain goods to the contract by the vendors, the placing them on board the Rubens and doing all that lay in their power to despatch them to Bombay in fulfilment of the contract, was enough to entitle them to the protection of the last clause.
5. To sum up my opinion, the defendant, in order to entitle him Ho the benefit of the 'loss' clause, was bound to prove (a) that he had put on board a certain ship chartered for Bombay before the 1st September 500 tons, of the coal specified for delivery to the plaintiff; and (b) that the ship was lost. I do not think it was the intention of the parties, so far as that intention may be gathered from the written terms to which they agreed, that the defendant was also bound to prove that he declared the name of the ship to the plaintiff. I believe that if in this case the defendants had bought other coal and shipped it in another ship the plaintiff would have at once, if the coal market had gone down, taken shelter under the terms and repudiated the consignment. When parties put their contracts into writing, they must be held bound to the terms agreed upon.
6. It was also agreed that the accident which occurred did not amount to a 'loss.' I think the word must be taken in its ordinary sense, and not in the technical sense in which it is used by the underwriters. That being so, the evidence of Mr. Pharson on commission is conclusive. He says the ship had a hole knocked on her side big enough for a man to walk in, and that she was useless and remained useless until the 7th October. I think that must be held to be a loss, in the sense that she was lost for the purpose required--that is, for a voyage in fulfilment of July-August shipments. It was contended that the defendants ought to have found other coal and another ship. But I think they were released from any such obligation by the terms of the contract. My judgment is for the defendants with costs.