BOOK REVIEWS
REVUE DE LIVRES
A Journey through “Scrutton on Charter Parties”
(18th Edition) General Editors Sir Alan Abraham Mocatta, Michael J. Mustill,
Q.C. and Stewart C. Boyd, London: Sweet & Maxwell Limited, 1974, Pp.ci, 624
($31.90).
The late Lord Justice Scrutton, in the year 1886, completed
Scrutton on Charter Parties and Bills of Lading which, in the course
of many editions, has become a classic among legal writings on the
subject of contracts of affreightment, and an authority which has
endured as such (thanks to the stature of its successive editors) into
the nineteen seventies.
When we were invited to contribute a review of this textbook; we
demurred –
in part because when a legal writing has reached its
eighteenth edition and run the gamut of ten previous reviews and
notices, only an aspirant possessed of the most entrenched temerity
would tread such a path, and in part, because the reviewing of a
professional opus, it seems to us, should essentially be aimed at
recipients who already possess at least a working knowledge of the
subject matter.
In its stead, we proposed that we should contribute something in
the nature of a discursion through the actual text of this work, which
would.be directed exclusively at the neophytic traveller to the realm
of Affreightment, with the idea in mind of attempting to emphasize
for him those portions of the book which are fraught with Stygian
gloom for all but the most professionally advanced in time and
accomplishment, and those parts which ignite, even for the beginner,
an almost instantaneous recognition of meaning and worth.
In sum, we shall picnic through Scrutton, endeavouring to guide
around its pitfalls, visit its reassuring glades, and withal, to reveal
the crisp clarity and apposite approach of the present editors, not
only in their elucidation of acknowledged difficulties and unsettled
points, but also in their forthright submissions aimed at dispelling
the darkness for us.
Lest we appear to be unduly dour about the complexities which
might be sat upon the unwary student who would attempt to run to
Scrutton rather than to stroll in his direction, we would offer the
comments of one reviewer of a prior editior: “Scrutton, of course,
is not a work to be recommended to students at the outset of their
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study of shipping law. On the other hand, its use of clearly-stated
propositions, followed by illustrations and notes, adapts its subject
matter perfectly to the practioners’ need for a ready reference”,
On the brighter side that reviewer added: “Shortly put, a more useful
book of its kind is not to be found, and a better one is not likely to
be written”.’ But another reviewer snapped and sniped: “For most
practitioners the contract of affreightment is an uncharted sea”.2
Finally, if only for the purpose of sheltering ourselves from an
accusation of having made a perfunctory examination of the present
edition, we advert to the fact (possibly a shameful admission) that,
for the first time, we have read and studied Scrutton in its entirety,
and we hope, in the freshening process, digested sufficient reawar-
eness of his teachings to justify the slogging match it was, and to
pass on something of value.
But first, what of the author himself? He was a man of many
legal parts. He won the Yorke Prize at Cambridge twice in three
years for essays on “The Influence of the Roman Law on the Law
of England” and “Laws relating to Commons and Enclosures”. In
1894, he produced the first complete handbook to the (then) new
Merchant Shipping Act, 1894,3 anticipating Temperley4 (the present
“bible” on that subject) by one full year. He wrote two other legal
texts, The Law of International Copyright and The Elements of
Mercantile Law, and finally, he was consulting editor for the com-
pilation, The Commercial Laws of the World.
The charm of the work itself lies in the simplicity of its format;
it has twenty-three divisions referred to as Sections rather than
Chapters. The first eight relate to the “Nature and Construction of
the Contract” of affreightment, the “Parties to [that] Contract”,
“Agency”, “Charterparties”, “The Bill of Lading as a Contract”,
“Bills of Lading for Goods on a Chartered Ship”, the “Terms of the
Contract” and “Representations” (touching also upon misrepresen-
tation). Sections fourteen, fifteen, sixteen, seventeen, eighteen,
twenty-one and twenty-two cover “Demurrage”, “Freight”, “Time
Charters”, “Through Bills of Lading, Combined Transportation and
Containers”, “Lien”, “The Carriage of Goods by Sea Act”, and “Ju-
risdiction”, respectively. The remaining sections relate, inter alia, to
the performance of the contract, and the various rights and oblig-
ations arising out of it, beginning with the steps preparatory to
1 (1911) 27 L.Q.R. 129.
2 (1939) 55 L.Q.R. 603.
3 57-58 Vict., c.60.
4 R. Temperly, The Merchant Shipping Act 7th ed. (1976).
McGILL LAW JOURNAL
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loading, and ending with a discussion of the rules regarding the
damages recoverable for breaches.
As a bonus, there are seven Appendices, commencing with excerpts
from the principal English statutes affecting the Contract of Af-
freightment and ending with the text of the British Maritime Law
Association Agreement of August 1, 1950 (more popularly known as
the “Gold Clause Agreement”), all with commentaries and footnotes
by the editors.
The method adopted by the author, and continued by successive
editors to date, is to state the principles and rules of law in the
form of Articles running continuously through the Sections, and
numbered consecutively. Each Article, in turn, gradates to a concise
summary in smaller type of the decided cases from which the rule
has been extracted and which serve as examples of the principles laid
down. Some of the Articles also contain a Note, also in smaller type,
in which the editors deal with any matter relating to the particular
Article or to the cases, which seems to require elucidation, and which
they marry with their own submissions. Finally, each Article is
salted with copious but beautifully abbreviated footnotes, which, in
their content, range from further points emphasized by the editors
to additional supporting judgments.
The subject matter of the book, in short, is about one man’s goods
being transported by water for a price by another man’s vessel, and
of the tribulations one falls prey to while fortune (of fact and in law)
smiles upon the other.
Portions of the book, because of the easy, flowing style of author
and editors and their patent ability to discuss even difficult prin-
ciples clearly will be more readily grasped not only by those with
some grounding in affreightment but even by those with none. Here
are a few samples which we have chosen at random.
In the family of affreightment contracts, the demise charter is
a distant cousin of the others since under it the vessel owner leases
out the ship, on occasion complete with its Master and crew, and at
other times, the charterer himself puts a Master and crew aboard.
In either case, the entire possession, control and authority over the
vessel passes to the demise charterer, so that he becomes temporary
owner, and as such alone answers in tort and contract to third per-
sons. The summary (p.48) of the consequences which stem from this
particular contract, is readily understandable even to the beginner.
Excepted perils or exceptions in the contract of affreightment
(i.e., perils which are stated in a charterparty as excusing the vessel
owner, and sometimes the charterer, from performing their con-
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tractual duties where such perils have prevented performance) are
dealt with at page 204. The query is then raised as to whether a
“fundamental breach” of the contract will nullify the excepted perils
as protective excuses for the shipowner or charterer. At this juncture,
the editors offer a clearer explanation of “fundamental breach” and
“fundamental term” than, we venture to say, you will find in many
another legal text dealing with those concepts. It is a joy to follow
in its compactness and simplicity of exposure. Small wonder that one
past reviewer of Scrutton observed: “[T]he General Law of contract
owes much to the law maritime (witness the proportion of shipping
cases in any text book on the principles of contract), and the veriest
landlubber, in quest of cases on such topics as agency, construction,
custom and frustration, may get his bearings from Scrutton”Y
A practitioner will sometimes be vixened and vexed with a case
where he must determine, as a matter of construction,’ whether his
charterer-client is or is not protected under an exception or exemp-
tion clause in the particular charterparty; it may well be that its
wording protects the vessel owner, but whether the clause may avail
his own client can frequently seem a toss-up. Scrutton discusses with
ease and clarity this -difficult aspect of mutuality of contractual pro-
tection (p.207).
There are twin imps who often dwell within the precincts of a
voyage charterparty – Messrs “Demurrage” and “Dispatch Money”.
The first refers to the agreed (liquidated) damages a charterer will
pay the vessel owner or carrier in the event he holds the vessel at
loading or discharging stages beyond the time allotted, and the
second to the rebate of freight the charterer will earn for loading
or discharging in less than the time allotted. The author deals suc-
cinctly with both (p.303) and follows with one or two simple exam-
ples of demurrage clausing (p.304).
In respect of the rather complex subject of through bills of
lading (documents which frequently involve two or more separate
stages in carrying the same goods, i.e., land, sea and occasionally
air transit, as well as two or more distinct carriers) the author’s
treatment (p.371)
is so lucid that it removes a good deal of the
confusion and intellectual frustration which normally accompanies
this subject. In the same Section (p.374) the questions raised by
the various international conventions governing carriage by sea, road
and air are examined. Particular attention is paid to the “CMR Con-
vention”, including its provisions for roll-on/roll-off traffic (i.e.,
G (1949) L.Q.R. 399, 401.
McGILL LAW JOURNAL
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lorries which drive onto a ship at loading port, and off her at dis-
charge end). There is also a discussion of the use of cargo containers
(now common in the field of combined transportation) which are
described as “essentially no more than a sophisticated form of
package” (p. 379 ).
A final example of clear, straightforward handling by Scrutton
may be found in the exposition on damages which may arise from
breaching the contract of affreightment (p.387). Those who have
suffered at the hands of less adept authors on this subject will be
truly grateful for the relative ease of treatment. The author is
particularly succinct when dealing with mitigation, observing:
A party claiming damages must assess them on a reasonable basis, and
the phrase that he must mitigate damages has often been used. There is,
however, some ambiguity and confusion in its use. If a man allege that he
has sustained 100 damages, it may be shown that if he had acted some-
how differently, or had taken a certain course, his loss might have been
only 50. It may be said, and in older cases was more commonly said,
that he must mitigate his damages and so reduce them to 50. But in
most cases it may equally be said, and in modem times probably would
be said, that 50 was, and 100 was not, the true measure of his damages.
The extra 50 “loss” has resulted, not from the breach of contract, but
from his own action or abstention (p.389).
However, on the other side of the coin, there are principles and
rules having to do with facets of the contract of affre.ightment which,
although well and truly expounded in this book, still leave a feeling
of unease and at best semi-comprehension even for the experienced
practitioner; for the beginner they will seem at times unfathomable.
A prime example of these difficult items will be found at the very
outset of the Section on “Bills of Lading for Goods on a Chartered
Ship” (p.56) where the author poses six separate queries regarding
the relative standings, rights and obligations of the vessel owner, the
charterer, and the endorsees and holders of a bill of lading which
has been issued for goods on a chartered ship. Suffice it to say, the
author does manage an admirable disentangling.
An important part of the book concerns the Carriage of Goods
by Sea Act, 19246 which is given masterful treatment. This is English
domestic legislation based on the rules which many national bodies
agreed (at Conventions at the Hague during 1921-23) should govern
the relations between the sea carrier, whether vessel owner or
charterer, and the party with active rights to the cargo being carried
and transported (commonly referred to as the holder of the bill
of lading); the latter might be the shipper of the cargo, the consignee
6 14-15 Geo. V, c.22.
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or an endorsee for valuable consideration. The “Introductory Notes”
to the topic emphasize that a few years prior to the Conventions,
the initial idea in England was to introduce legislation based on the
lines of, inter alia, the already existing Canadian Water Carriage
of Goods Act, 19107 but this approach never received popular ac-
ceptance. These notes explain, simply and clearly, the sections of the
Act, which take the form of articles -and rules, and the international
rules which form part of it. The rules apply automatically to the
venture” where the goods are carried under a contract falling within
the express definition of “contract of carriage” as set out by the Act,
and they will also apply where the parties to a voyage charterparty
have expressly stated that all of the terms and conditions of the Act
shall form part of the charterparty. These rules saddle the carrier
with certain responsibilities and liabilities, at the same time clothing
him with compensating rights and immunities. Scrutton characterizes
this legislation as follows: “The purpose of the Act is to standardize
within certain limits the rights of the holder of every bill of lading
against the shipowner” (p.402).
The author then proceeds to take the Act, section by section and
rule by rule, and to discuss and explain. An example of the easy
fashion in which this is done is the treatment of the problem raised
in attempting to determine what constitutes a “package” or “unit”r
for the purposes of the 100 limitation figure in article IV, rule 5.
The author comments that there is no direct English authority as
to their meaning, so that he has been forced to refer to American,
Continental and Canadian authorities. For example, in 1967, a U.S.
Appeal Court ruled that a pallet (a rectangular cargo tray construc-
ed like a grating, which, with its load, is hoisted into or out of the
ship’s hold) with a number of cartons strapped to it, constituted a
packageY However, it should be noted that in 1975, the Federal Court
of Canada found that it was not the pallet which constituted the
“package” but rather each carton.’ Scrutton then observes that as
7 S.C. 1910, c.61.
8 This word, with its frequently encountered companions viz., “Adventure”,
“Common Maritime Adventure”, means roughly the Seller-Shipper, let us say,
having the goods transported via the sea to his Buyer-Consignee on the Ocean-
Carriers’ vessel at the price of the freight, all of which will be exposed to
sea perils whilst on passage, the perils imparting to the combined commercial
undertakings of sale and delivery of goods with their carriage to destination
the element of adventure or risk.
9 Standard Electerica S.A. v. Hamburg Sud-amerikanische D.G. [1967] 2
l International Factory Sales Service Ltd v. The Ship Alexander Serafino-
Lloyd’s Rep. 193.
vich (1976) 1 F.C.R. 35.
McGILL LAW JOURNAL
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for “units”, the alternatives are either “freight units”, i.e., the unit of
measurement used to calculate the freight, or the “shipping unit”,
i.e., the physical unit received by the carrier from the shipper, but
that “[w]hichever solution is adopted anomalies are bound to arise,
as the cases show” (p.443).
The author devotes some space to discussing certain important
changes which will come about when the new English Carriage of
Goods by Sea Act, 1971 comes into force (p.450). In this connection,
however, the Law Quarterly Review 1975 comments: “It seems un-
likely that the Carriage of Goods by Sea Act 1971 will, in the near
future, be brought into force since work on the drafting of a new
convention on Bills of Lading is currently being carried out in the
United Nations. The new draft places a very different emphasis on
the relationship between the Shipper and the Carrier”.1
One illuminating aspect of the book is that the historical back-
ground of a certain point of law is sometimes traced. A good instance
is where the author, in commenting on excepted perils in the contract
of affreightment and, in particular, the exception to the carrier’s
liability for “the King’s enemies”, explains that this stemmed from
the old English rule that the bailees had no action against such
enemies since they were not amenable to civil process, and that
therefore it was not fair that the bailor should sue him, the bailee,
alias the carrier (p.202, fn.26).
Another helpful feature that is set out in Appendix I are extracts
from the principal English statutes affecting the contract of af-
freightment, to which references are made at various intervals
throughout the text. Amongst these statutes is the Merchant Shipping
Act, 189412 upon which our own Canada Shipping Act’3 was initially
based. These statutes constitute domestic legislation entirely outside
any international rules, and they supplement the contract of carriage
with rights and duties in respect of both the vessel owner or char-
terer, and the party whose goods are being transported. A practical
example from these supplemental statutes is the provision in the
English Bills of Lading Act’14 whereby every consignee of goods named
in a bill of lading and every endorsee of the bill, to whom the pro-
perty in the goods passes by reason of the consignment or endorse-
ment, has vested in him all rights of suit and is subject to the same
liabilities in respect of the goods as if the contract contained in the
11 (1975) 91 L.Q. 158.
1257-58 Vict., c.60.
13R.S.C. 1970, c.S-9.
14 18-19 Vict., C.111.
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bill of lading had been made with him. Accordingly, it could be one
of three persons (the shipper, the consignee or the endorsee) whom
the vessel owner or charterer might sue for unpaid freight, or it
might equally be one of those three who sues the vessel owner or
charterer for goods delivered short in quantity or arriving in
damaged condition.’5
Another strength of the book lies in the clarity and ease with
which perplexing questions of law and fact arising from the very
nature of the contract of affreightment are dealt with, together with
the myriad situations that contract seems unendingly capable of
spinning; the following sample should help to underline the dexterous
approach of the author and his current editors.
One of the excuses available to the vessel owner (both by virtue
of the Carriage of Goods by Sea Act and of any charterparty which
includes such a clause) is there cargi damage is incurred through
the neglect or default of the pilot, master or servants of the vessel
owner, in the navigation or management of the ship. A difficulty
frequently arises as to whether a particular situation of neglect can
be brought under the rubric of “navigation” of the ship. In Car-
michael v. Liverpool S.S. Association” a cargo of wheat was damaged
through improper caulking of a cargo-port (i.e. an opening) by the
vessel owner’s servants before the voyage began. The English Court
of Appeal held that this was “improper navigation”, because it
affected the safe sailing of the ship. However, in another case,
Canada Shipping Co. v. British Shipowners’ Association,7 a cargo of
wheat was damaged by being stowed in a dirty hold at voyage com-
mencement, and again, the vessel owner pleaded neglect in navigation
as a defense to the claim. The Court of Appeal, in this instance, found
the facts did not amount to neglectful navigation. The author ob-
serves that “[t]he distinction between these two cases -appears to
1 5 We, of course, are more interested in the Canadian Acts which will affect
a contract of affreightment. These are federal acts, such as the Canada
Shipping Act, R.S.C. 1970, c.S-9; Carriage of Goods by Water Act, R.S.C.
1970, c.C-15; Bills of Lading Act, R.S.C. 1970, c.B-6; Federal Court Act, S.C.
1970-71-72, c.1; Customs Act, R.S.C. 1970, c.C-40; Interpretation Act, R.S.C.
1970, c.I-23; Shipping Conferences Exemption Act, R.S.C. 1970 (1st Supp.),
c.39; National Harbour Board Act, R.S.C. 1970, c.N-8; National Transportation
Act, R.S.C. 1970, c.N-17; and the Nuclear Lability Act, R.S.C. 1970 (1st Supp.),
c.29. Provincial Acts such as the Frustrated Contracts Act, R.S.O. 1970, c.185;
the Sale of Goods Act, R.S.O. 1970, c.421; and the Civil Code articles on Af-
freightment and of Carriers (arts.2407-2460; 1672-1682b) would also appear
to affect the contract.
16 (1887) 19 Q.B.D. 242.
1T (1889) 23 Q.B.D. 342.
McGILL LAW JOURNAL
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depend not upon the time when the negligence first took place …
but upon the fact that in the former case the safe sailing of the
ship was affected whereas in the latter the safe sailing of the ship-
was not, but the proper and careful carriage of the cargo along was
interfered, with” (p.234).
As one would by now expect, author and editors display a forth-
right and confident mastery in their reactions where a point of law
is difficult or has been left open. In Article 43, the observation is
made that substantial accuracy in the name of the vessel will be a
condition of -the contract of affreightment, but the present editors,
acknowledging that this statement has appeared in all previous
statements of the work, comment: “We know of no case supporting
it, but substantial inaccuracy might seriously affect insurance of
cargo” (p.76, fn.17).
Furthermore, the author does not hesitate to disagree where he
believes a case has been incorrectly decided. On the subject of
damages, having quoted certain authorities requiring the vessel
owner to mitigate his damages by accepting substituted employment
for his vessel in the event of the charterer refusing to load, he
comments by footnote that the case of Smith v. McGuire
… suggests a doubt whether the shipowner is bound to find substituted
employment for his ship, or to give credit for what he could earn on such
substituted employment. This cannot be correct. Of course, the shipowner
need not employ the ship unless he likes, just as a servant wrongfully
dismissed may take a holiday if he likes. But if the charterer refuses to
load under a charter on which the shipowner would earn 1000, and,
freight having risen when he refuses, the shipowner could at once get a
cargo for the same voyage on which he would earn 1,200, clearly the ship-
owner’s damages are only nominal, just as would be those of a wrongly
dismissed servant suing for 100 as six months’ salary, if it be shown that
instead of taking a holiday he could have earned 120 in the same period
(p. 389, fn.17, emphasis added).
At one point, when discussing’ the question of the charterer having
failed to load within a fixed time, the author refers to a case and
comments: “The headnote of the report is inadequate and in-
accurate” (p.315, fn.88). Scrutton offers this same comment in con-
nection with quite a number of other cases cited in the text. It goes
without saying that such forewarning is of great value to both be-
ginner and practitioner.
For the Canadian reader, a welcome discovery is that from time
to time the author informs us of the reactions of Canadian courts on
certain points of law. Thus, in Article 108, dealing with the operation
of exceptions which may excuse the vessel owner from liability for
loss or damage to goods, the author observes that the term “Perils
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of the Sea”, whether in policies of marine insurance, charterparties
or bills of lading, has the same meaning. He comments that the
Supreme Court of Canada, in Goodfellow Lumber Sales v. Verrault, 8
arrived at a view of the law very similar to his own. Again, in Article
87 on “Loading and Stevedores” the author comments that “[a]
shipper who takes an active interest in the stowage [of the goods]
cannot afterwards be heard to complain of patent defects in the
stowage of which he made no complaint at the time”. He emphasizes
that this statement of law was approved by the Supreme Court of
Canada in Mannix v. Paterson’ (p.167, fn.8).
At the risk of seeming to bite the hand that has fed us, and even
of being accused of counselling a counsel of perfection, we must
pause here to cast a more critical eye over some of the specific
instances in the book where there is room for improvement.
One example is in connection with the discussion on classification
of charterparties. The author comments that whether or not a
charter amounts to a demise must depend on the particular terms
of the charter, and that the old cases on demise charters are not of
great assistance since their authority has been shaken by more
recent decisions (p.45). Unfortunately, he leaves us completely in the
air as to the identities of those decisions and as to their specific
effect. For the practitioner, at least, it -is manifestly an important
point which could produce far-reaching consequences.
Another instance arises in the description of the aspects of
chartered and substituted tonnage; chartered tonnage is the actual
vessel which the shipowner agrees to deliver under the charter, and
substituted tonnage is another, like vessel, which a clause in the
charter party permits him to provide in substitution for the first.
It is pointed out that the option to substitute does not survive the
total loss of the chartered vessel (p.51). It seems to us that the author
or editors might profitably have added here the reason for this, as
explained in Niarchos v. Shell Tankers: “Since to ‘substitute’ is used
in the charterparty in the sense of replacing an existing vessel by
another and withdrawing the first, that other vessel can only be
substituted for a live vessel, and, accordingly, with the occurrence
of the total loss, the time charterparty, being then frustrated, the
contractual right to substitute would lapse”
In dealing with the charterer’s obligation (where there is an
express provision in the charterparty) to order the vessel only to
18 [19713 1 Lloyd’s Rep. 185
19 [1966] 1 Lloyd’s Rep. 139.
20 [1961] 2 Lloyd’s Rep. 496.
McGILL LAW JOURNAL
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a safe port (there being an express provision in the charter party
to that effect), the author specifically states that “[i]f it is not safe,
the ship can refuse to obey the order” (p.122). But almost im-
mediately he qualifies this statement by adding, in footnote 24: “This
is as yet uncertain … [though] there are dicta to be found to this
effect”. It seems to us that this is such an important and material
qualification it might well have been included in the text. This
would be an infinitely safer course, because many a reader who does
not actually consult the footnote, might well jump to the conclusion
that its content was confirmante rather than dubitante.
When the author reaches his topic of “Charterer’s Undertaking:
to Load or Unload in a Fixed Time”, the actual text for Article 154
commences: “Charterparties, in regard to the time for loading or
discharge, fall into two classes, (1) for discharge within a fixed
time, (2) for discharge in a time not definitely fixed” (p.3 14). We
are somewhat at a complete loss to understand why the first three
lines of the text did not read: “Charterparties, in regard to the time
for loading or discharge, fall into two classes, (1) for loading or
discharge in a fixed time, (2) for loading or discharge in a time not
definitely fixed”. The time factors of “fixed” or “not definitely fixed”
relate in content and sense throughout the Artiole, as they must and
should, to both processes –
loading and discharge. For what valid
reason, then, in the two-fold description of classifications, is one of
the processes omitted? When, additionally, this Article is read along
with the footnotes and with Article 155 (loading or unloading where
the time is not fixed), all of which again bear specific relation and
reference to both processes, our puzzlement is compounded. Yet
precisely the same wording appears in former editions of Scrutton,
at least as far back as the 1923 edition, the earliest to which we had
access.
A more general criticism of the book concerns the difficulties
which the student rather than the practitioner will stumble over.
Earlier we quoted a reviewer of Scrutton who cautioned that this
was not a work which realistically could bring intellectual profit to
the beginner, but ‘solely to the at least partially-enlightened prac-
titioner, because essentially it lacked a narrative or teaching recital.
It is true enough that the book has no narrative in the sense that
there is no readily understandable unfolding of the law, developed
with continuity, stage by stage, with all of the pieces dropping into
place in logical order and according to primary teaching etiquette.
There are many chinks in the instructional armour, and sudden sus-
pensions of the reader in the air, for example, by the interpolation
of a later-tobe-explained concept or principle, which is temporarily
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noticed by brief references only, but without, at that stage, substance,
skeletal or otherwise, and yet which comprises a definite qualifica-
tion to the concept, principle or rule then being developed.
In what ways, then, does this absence of uninterrupted narration
place the beginner at a disadvantage, if not in a yawning vacuum?
Some examples of the difficulties will illustrate the problem.
In discussing incorporating provisions (i.e., the process of in-
cluding in bills of lading, issued in respect of goods carried on a
chartered ship, a provision purporting to incorporate into the bill
of lading some or all of the terms of the charterparty) the author
comments that a wide variety of these provisions is in common use,
several of which have been discussed by the courts (Article 35). He
then particularizes that, in each instance, and even if the clause is
wide enough to produce a prima facie incorporation, it will be
ineffective unless the incorporated term makes sense in the context
of the bill of lading and is consistent with its terms; as an example,
he declares that a “cesser clause” makes no sense in a bill of lading.
How is the beginner to appreciate the true force of this declara-
tion when up to this point in the text, no mention, let alone ex-
planation, of such a clause has appeared? He is in no position, firstly,
to know that the nature of the cesser clause in a charterparty is to re-
lieve the charterer of all liabilities under the contract upon shipment
of the cargo, the quid pro quo being the granting to the shipowner of
a lien on the cargo for, inter alia, dead freight; secondly, to accept
that the reason the cesser clause would make no sense in a bill of
lading is that it would cancel out the obligation of the consignee
holding the bill of lading to pay the freight or any demurrage which
might be incurred, so that the vessel owner would end up without
reimbursement for the carriage performed or for the money-losing
delay of his ship; in sum, that what would amount to an acceptable
arrangement under one form of document would become a patent
absurdity under another.
The author, in dealing with the vessel owner’s undertaking as to
seaworthiness of his vessel, states that “he [the -shipowner] will not
be liable on the ground of unseaworthiness if the latter does not
cause the loss”, Then the author instructs the reader to contrast
the cases of deviation in which the deviation need not cause the loss
(p.85, fn.88, emphasis added).
How is the beginner to understand the contrast when, at this stage
in the book, the concept of deviation (i.e., the vessel being diverted
out of its agreed course on the voyage) has not even been raised?
He lacks any basis for knowing that, in deviation cases, the explana-
McGILL LAW JOURNAL
[Vol. 22
tion for it being unnecessary to trace the loss to the deviation, or, in
other words, why the link of causation is immaterial, is that the
effect of the deviation is to go to the root of the contract and displace
it, together with any exception clause the vessel owner might
otherwise have relied upon.
Then the reader is advised that as regards “most vessels sailing
in a line the master has no authority to alter the printed bill of lading
or to vary the rate of freight or to make engagements to carry
goods” (p.38, emphasis added). How is the beginner to reach the
significance of the statement unless he is aware that “vessels sailing
in a line” refers to those of liner companies which operate several
vessels as distinct from the single vessel, i.e. a tramper, which is
the sole vessel trading for her owner.
The author submits “that a statement of the ship’s class is a
condition of the contract, breach of which entitles the charterer to
treat the contract as discharged” (p.74, emphasis added). Obviously,
the beginner cannot follow the thrust of this submission if he is
unaware that a “ship’s class” refers, inter alia, to the grading, high
or low, a vessel may be given by a Classification Society, such as
Lloyds of England or the Norwegian Bureau Veritas, after a survey
of the vessel has been made.
The unenlightened reader will also have to grapple with the
observation that “as regards the supply of bunkers the obligation of
seaworthiness has … been adjusted to meet commercial necessities
by substituting … for the single obligation to make the vessel sea-
worthy once and for all at the commencement of the voyage a re-
curring obligation at the first port of each bunkering stage to supply
the vessel with sufficient bunkers for that stage” (p.81). The beginner
must first understand that “bunkers” refer to a vessel’s fuel, be it
oil, coal or a nuclear variant, which drives her main engines, and
that “bunkering” is the taking on of such fuel, before his mind can
fall into line with this particular aspect of a vessel’s state of sea-
worthiness.
So the beginner –
before tackling Scrutton –
requires prodding
with texts such as Ronald Bartle’s Introduction to Shipping Law21
or Chorley & Giles The Law of Shipping.?2 But even by the time he
has finished his labours with either or all of these gentlemen –
at
least on the first occasion –
he is, in all likelihood, still not suffi-
ciently knowledgeable to follow immediately through into Scrutton.
2 1 R. Bartle, Introduction to Shipping Law 2d ed. (1963).
22 R-S.T. Chorley, Shipping Law 5th ed. (1963).
19761
BOOK REVIEWS – REVUE DES LIVRES
Moreover, there are many technical and other terms relating to the
sea-carriage of goods which the beginner will encounter in Scrutton
but which these “introductory” authors do not define or explain.
The millenium would be reached if someone were to compose a
“Scrutton Primer”, aimed specifically at an immediate jump into
Scrutton proper. It could even take the form of a special introductory
chapter or Section, simple and lucid, yet reasonably all-embracing of
the various principles, concepts and rules shortly to be encountered
in expanded and -detailed form, and replete with an intelligible
glossary of terms.
Despite its suggested shortcomings, Scrutton on Charterparties
is a superb text-book, abiding in the kind of thinking that elevates.
It is nothing less than a work of art, cited regularly and religiously
as an authority by the courts of major sea-trading nations of the
world.
Blake Knox*
Bruno Desjardins, Q.C.**
* One-time lecturer in Admiralty Law, McGill University, of the Quebec Bar.
** Of the Quebec Bar.
