Incorporation – “other conditions” not including negligence exception
Coal was shipped to Sicily from a port on the Tyne.
The charterparty was entered into between the owners and the shippers, purportedly acting on behalf of the charterers.
The vessel stranded at Mazzara, and its cargo was lost due to negligence of the master.
The charterparty included an exception absolving the owners from liability for the master’s negligence.
The Bill of Lading contained various exceptions of its own they paying freight for the said goods “all other conditions as per charter”. In issue was whether the provisions of the Bill of Lading as expanded by reference to the charterparty included the negligence exception.
Baron Huddleston held that “other conditions” was qualified by the proceeding reference in the Bill of Lading to payment of freight and did not include the negligence exception.
Baron Huddleston fortified his conclusion by the observation that because certain specific exceptions had been referred to in the Bill of Lading, the wider exceptions contained in the charterparty were excluded by inference – expressio unius est exclusio alterius.
In the Court of Appeal (Lord Esher MR, Lopes and Kay LJJ) the decision of Baron Huddleston was confirmed.
All three judges of appeal delivered separate concurring judgements in which they supported the reasoning of Baron Huddleston.
It is noteworthy that no distinction was made between “conditions” and “terms”.
“Conditions” were synonymous with “terms” and the extent of the incorporation was read down by employing canons of construction, eiusdem generis and expressio unius est exclusio alterius.
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