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Seven Rules of Interpretation (Construction) of Bills of Lading

(published in Liber Amicorum Robert Wijffels, Antwerp, 2001, at pp. 359-379)

Prof. William Tetley, Q.C.*


Preface - Homage to Robert J. Wjffels

I.            Introduction - Construction/Interpretation

II.        Seven Rules of Interpretation (Construction)

            1) First rule - "contra proferentem"

            2) Second rule - strict construction of exception clauses

            3) Third rule - precedence of handwritten over
            printed words

            4) Fourth rule - custom and usage

5) Fifth rule - surrounding circumstances

6) Sixth rule - small-print clauses

7) Seventh rule - "ejusdem generis"

III.            Conclusion


Prof. William Tetley, Q.C.*

Preface - Homage to Robert J. Wijffels

An article which deals with the civil law, the common law and maritime law is especially fitting in a book in homage to Robert J. Wijffels, because his practice of law, as well as his writings and scholarship, cross all national borders.

            Robert Wijffels is above all an internationalist, as his beloved series of international law reports, "European Transport Law", testifies. In fact, "ETL", as it is widely and affectionately known, has headnotes in five languages and case reports in many languages and from many countries. Canadian cases often appear in the reports, as well as obscure and often ignored decisions, which Wijffels wisely decides to publish. ETL is eclectic, because it deals with all transport law - maritime, air, road and rail—and besides the reported judgments, many important articles also appear in its pages. There is nothing else like it.

            We in Canada, like persons from all around the world, are indebted deeply to Bob for what he has done for international law and its uniformity. I am particularly indebted to Bob for his kindnesses and generosity over the years. "Friends are the masterpieces of nature" and Bob Wijffels is a masterpiece, and an international one, with friends and admirers from all over.

I. Introduction - Construction/Interpretation

Bills of lading should be construed or interpreted [1] (the civil law term) by the courts in the same manner as any other contract. [2] Nevertheless, some of the numerous rules of interpretation used in construing written documents are especially pertinent to bills of lading. The following seven rules are frequently encountered in Hague and Hague/Visby Rules cases and are therefore very appropriate to contracts of carriage of goods by sea. They are applicable as well to other contracts.

There is, however, a preliminary fundamental principle to be borne in mind ‑ the seven rules only apply if the bill of lading is ambiguous. [3]   Ambiguity in a contract has been defined in an American decision as involving language which is:

"capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business." [4]

Conversely, however: "Contractual language is unambiguous when it has a definite and precise meaning, unattended by any danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion." [5]   Traditionally, in the common law, two types of ambiguity have been identified: "patent ambiguity", resulting from the language of the contract; and "latent ambiguity", which becomes apparent when the language is applied to a factual situation. [6]

To the question of knowing what is ambiguous and what is not, the House of Lords, in Higgins v. Dawson, [7] held that mere difficulty of construction is not ambiguity and that a document is only ambiguous when, after full consideration, it is determined judicially that no interpretation can be given to it.

It should be remembered that courts construe bills of lading in the same manner as they do other contracts. [8] Courts try to give a natural construction of the whole bill of lading, [9] and they try to give a meaningful effect to every individual clause it contains. [10]   Of course, because the bill of lading is not in itself the contract of carriage, but only the best evidence of it, [11] when construing the contract of carriage between the shipper (or consignee) and the carrier, "it may be necessary to inquire what the actual contract between them was; merely to look at the bill of lading may not in all cases suffice". [12]

            In all cases, judges strive to interpret contracts according to the common intention of the parties to it. [13]   In common law jurisdictions, common intention is determined according to an objective standard: what a reasonable person would have intended if he had been in the position of the actual parties to the contract at the time of contracting. [14]   In civil law countries, on the other hand, common intention is understood subjectively, as what the parties to the contract at hand really intended, but did not express clearly, when they concluded their agreement. [15]   The common intention is determined first and foremost by the words used by the parties, [16] read in the context of the contract as a whole [17] and its object, [18] in the light of surrounding circumstances, [19] and taking account, where applicable, of pertinent customs and trade usages. [20]

II.        Seven Rules of Interpretation (Construction)

1)         First rule - "contra proferentem"

            In the case of doubt, a contract is construed against the interest of the author of the contract. [21] Thus, Strayer J. in Ontario Bus Lines v. The Federal Calumet, [22] noted that because "the defendants drafted this bill of lading any inconsistency between paragraph 3 and paragraph 18 must be interpreted against them and in favour of the plaintiff." In particular, a bill of lading, being a standard form contract [23] printed by the carrier, is normally interpreted against the carrier. [24] Thus in Mormaclynx (Leather's Best v. S.S. Mormaclynx), [25] Judd D.J. held that: "A bill of lading, as a contract of adhesion is construed strictly against the carrier." In the relatively unusual situation, however, where the shipper uses his own form of bill of lading, the interpretation is against the shipper. [26]

            The contra proferentem rule has often been applied in bill of lading cases, notably in American decisions, where the court has had to decide whether to give effect to the $500. U.S. package limitation of COGSA or to the more generous package/kilo limitations of the Hague/Visby Rules of the country of shipment. [27]

2)         Second rule - strict construction of exception clauses

            Exception clauses in bills of lading are to be strictly construed. A negligence or exception clause in a contract, as in a statute, should be strictly construed. [28]   The plain meaning of the exemption, the nature and object of the contract read as a whole, and the surrounding circumstances can all be taken into account in construing such clauses. [29]

            In the United Kingdom and Canada, the strict enforcement of exemption and limitation clauses in bills of lading is particularly evident in the approach of courts to clauses which purport to relieve the carrier or stevedores from liability for their own negligence and that of their servants and agents. The courts apply three tests laid down by the Privy Council in Canada Steamship Lines Ltd. v. The King. [30] Under those tests, if negligence is not expressly stated as being a ground of exemption in the clause in question but the clause, reasonably interpreted, is wide enough to extend to negligence, the exemption will only relieve the defendant from liability for negligence if the court is satisfied that there is no other non-fanciful ground of liability on which the clause could reasonably bite. [31] The decision will then give effect to the clause, on the basis that excusing the carrier from liability from negligence must have been within the reasonable contemplation of the parties when they included the clause in their contract. [32]

France similarly interprets non-responsibility clauses and limitation clauses in bills of lading restrictively. [33]

3)         Third rule - precedence of handwritten over printed words

            Handwritten or typewritten clauses in a bill of lading take precedence over printed clauses. [34] This for two reasons: written clauses are posterior to printed clauses, [35] and, secondly, written words are the immediate language selected by the parties themselves to express their meaning, while the printed words are a general formula applicable to all parties who may use the bill of lading form. [36] Where the rule applies, the special clause will override the printed clause to the extent of the inconsistency. [37] The special clause in the bill, however, only takes precedence when it is in direct contradiction with the printed clause. [38]

4)         Fourth rule - custom and usage

            It has long been settled that in commercial transactions extrinsic evidence of custom and usage is admissible to embellish and on occasion to supplement written contracts in matters with respect to which they are silent. [39] Hence, customs and practices before loading and after discharge at the ports of loading and discharge may be considered by the court as part of the contract of carriage even though they are not specifically referred to in the bill of lading. [40] The custom, however, must be consistent with the bill of lading. [41] During the period of application of the Hague or Hague/Visby Rules (tackle to tackle), custom and practice are of much less importance because the rights and responsibilities of the parties are rigidly defined by the Rules, which, in virtue of art. 3(8), are of public order. Custom itself can also change over time. [42]

Custom and usage are often considered in bill of lading cases in determining whether or not a geographical deviation is reasonable. It has been held, for example, that: "Conduct that is customary in the trade is not a deviation from the contractual voyage because such contracts ordinarily presume that the parties will follow the customs and usages of the maritime trade." [43] Custom of the port of destination has also been found capable of modifying the usual understanding of "proper delivery" of the cargo under the U.S. Harter Act and U.S. COGSA. [44] In Europe, trade usage is an important consideration in determining such issues as whether a consignee is deemed to have consented to a jurisdiction clause in a bill of lading designating the court of another European Union state. [45]

A notion closely linked to custom and usage is that of a "previous course of dealing" between the parties to a bill of lading. Where, for example, the shipper and carrier are "sophisticated" business people who have concluded previous contracts of carriage, using the same bill of lading form, or who should be aware of the form because of its common use in the trade concerned, they are treated as being familiar with the terms of that bill. In consequence, courts often hold them to those terms, and in particular to clauses on the package limitation of the carrier and on a "fair opportunity" to declare a higher value so as to avoid that limitation. [46]

5)         Fifth rule - surrounding circumstances

            A bill of lading, like every other contract, must be construed in relation to the circumstances in which it was entered into. [47] As Lord Wilberforce explained in The Diana Prosperity: [48]

"No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as 'the surrounding circumstances' but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the Court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating."

In Francosteel Corporation v. M.V. Pal Marinos, [49] Carter D.J. stated:

"To resolve the ambiguity in the bill of lading, the court must first turn to the extrinsic evidence offered by the parties regarding their intent in signing it."

6)         Sixth rule - small-print clauses

Courts have traditionally been hostile to clauses appearing on the backs of bills of lading in minuscule type, which terms, being virtually illegible, fail to give adequate notice to the shipper of the provisions they contain. In Crooks v. Allan, [50] for example, it was held:

"The clause in question comes in about the middle of thirty closely packed small type lines, without a break sufficient to attract notice. If a shipowner wishes to introduce in his bill of lading so novel a clause as one exempting him from general average contribution-... he ought not only to make it clear in words, but also to make it conspicuous by inserting it in such type and in such a part of the document as that a person of ordinary capacity and care could not fail to see it."

The small-print clauses on the backs of bills of lading are nevertheless usually declared valid but often test the patience and goodwill of the courts. In Paterson, Zochonis & Co. v. Elder, Dempster & Co., [51] Scrutton L.J. stated:

"Like many other Judges, I desire to protest against the extremely illegible condition of this bill of lading. Shipowners have had a good deal of warning from the courts; and some day they will find themselves deprived of the protection of their exceptions on the ground that they have not given reasonable notice of them as terms of the contract."

In 1954 the Supreme Court of New South Wales, in dealing with illegible bill of lading clauses, noted Scrutton L.J.'s dictum but did not believe that the "day" had arrived. [52] Nevertheless, the day has arrived in some courts. The Bundesgerichtshof, [53] for example, has ruled that bill of lading clauses which can only be read with the aid of a magnifying glass do not form part of the bill of lading contract even if they are standard clauses in the trade. Similarly, U.S. courts do not in general enforce fine-print COGSA limitation clauses in a carrier's long-form bill of lading. [54] Courts seem reticent, however, to strike down small-print clauses, particularly where the parties have done business previously using the same form of bill of lading and where the bill, on its face, clearly refers to the small-print clauses on the back as embodying the terms of the contract. [55] They do strike them down at times, however. [56]

7)            Seventh rule - "ejusdem generis"

Ambiguity in a bill of lading is sometimes resolved by applying the "ejusdem generis" rule of contractual construction, whereby "...where several words preceding a general word point to a confined meaning the general word shall not extend in its effect beyond subjects ejusdem generis (of the same class)...." [57] A classic application of this rule is found in the well-known decision of the English Court of Appeal in Foscolo Mango v. Stag Line, [58] where it was held that a liberty clause in a bill of lading authorizing the vessel to "...call at any ports in any order, for bunkering or other purposes..." did not authorize a geographic deviation for the purpose of landing two engineers who had been aboard the vessel in order to test a superheater.

Scrutton L.J. applied the ejusdem generis principle as follows: [59]

"... the presence of the word 'bunkering' shows that there is a limitation on the general words following. If they were unlimited its mention would be unnecessary. To land a maker's engineer and a ship's engineer who have been detained on the ship, while making a trial trip not authorized by the contract of affreightment, because of the drunkenness of the firemen, and to land them at a port on a dangerous coast and not in the course of the voyage does not seem to me to be a purpose or voyage permitted by the contract."

In a similar vein, Greer L.J. decided: [60]

"In my judgment, construing these words in light of the general objects of the contract recorded in the bill of lading and of the contiguity of the word 'bunkering', I think the true meaning of the words is that the purposes must be purposes relevant to the furtherance of the joint adventure, and that they are not wide enough to include the visit of the ship to St. Ives Bay, a visit which was not in any way essential to the carriage of the respondents' goods from Swansea to Constantinople."

Ejusdem generis has been applied in other bill of lading cases as well. [61]

The ejusdem generis rule only applies, however, where the particular words appearing before the general word belong to some identifiable genus. Consequently, where no such genus exists, the meaning of the general word is not restricted by the preceding particular words.  Thus, for example, in Effort Shipping Co. Ltd. v. Linden Management S.A. (The Giannis K), [62] the House of Lords, interpreting art. 4(6) of the Hague Rules on the shipping of "goods of an inflammable, explosive or dangerous nature", held that: "...it would be wrong to apply the ejusdem generis rule to the words 'goods of an inflammable, explosive or dangerous nature.' These are disparate categories of goods. Each word must be given its natural meaning, and 'dangerous' ought not to be restrictively interpreted by reason of the preceding words."  In consequence, the term "dangerous goods" in art. 4(6), taken in its ordinary sense, was found wide enough to include a cargo of ground nuts infested with Kharpa beetles.

III. Conclusion

"Poetry is what is lost in translation. It is also what is lost in interpretation."

Louis Untermeyer, Robert Frost, 1964 at p. 18

Like other ambiguous contracts, maritime bills of lading must be construed (interpreted) by courts in order to ascertain what was the true intent of the parties to the contract evidenced by the bill, or, at least, what their intent would probably have been had they considered the proper meaning of the unclear terms of that instrument. The seven rules of interpretation set forth above are useful precepts for clarifying those intentions. They are universal, being understood and applied frequently and with remarkable consistency, in common law, civil law and maritime law, by judges and arbitrators around the world. In international maritime commerce, these rules continue to be indispensable tools for giving effect, in a sensible and equitable fashion, to the rights and obligations of shippers, carriers, consignees, endorsees and their underwriters. They thus contribute immeasurably to promoting uniformity in international trade law and resolving shipping and commercial disputes in every jurisdiction.

* Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Kronström Desjardins of Montreal. The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A., B.C.L., in the preparation and correction of this article.

* Professor of Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Gaudreau O'Connor of Montreal. The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A., B.C.L., in the preparation and correction of this article.

[1] In Anglo-American law, the word 'interpretation' is often used in the same sense as the word 'construction'.  The Fifth Circuit, however, in Williams v. Humble Oil & Refining Company 432 F.2d 165 at p. 179 (5 Cir.1970), held that: "In the law of contracts (conventional obligations) a proper distinction exists between the 'interpretation' of written instruments and their 'construction'. 'Interpretation' refers to the process of determining the meaning of the words used; that process is traditionally thought to be a function of the jury. On the other hand, the process of determining the legal effect of the words used ‑ once we know their meaning ‑ is properly labelled 'construction'; it is peculiarly a function of the court" (citations omitted).  But see also E.A. Farnsworth, Contracts, 3 Ed., 1999, para. 7.7 at p. 453 (hereinafter "Farnsworth, 3 Ed., 1999"), referring to the distinction as "a difficult one to maintain in practice" in the United States.  In England, the tendency is to use "construction" in both senses.  See Chatenay v. The Brazilian Submarine Telegraph Co. Ltd. [1891] 1 Q.B. 79 at p. 85 (C.A.): "The expression 'construction' as applied to a document, at all events as used by English lawyers, includes two things: first the meaning of the words, and secondly their legal effect, or the effect which is to be given to them."  See also Kim Lewison, The Interpretation of Contracts, 2 Ed., 1997, para. 1.01, note 2 at p. 2 (hereinafter: "Lewison, 2 Ed., 1997"): "It is doubtful whether this distinction serves any useful purposes, particularly since in practice 'construction' and 'interpretation' are used interchangeably".  Accord: Chitty on Contracts, 28 Ed., vol. 1, 1999, para. 12-041 at p. 603.

[2] Amoco Overseas Co. v. S.T. Avenger 387 F. Supp. 589 at p. 594, 1975 AMC 782 at p. 789 (S.D. N.Y. 1975): "The bill of lading, in addition to being a negotiable instrument, is the contract governing the rights of the cargo owner vis-à-vis the shipowner. As such it is to be interpreted according to principles of contract law." For a succinct summary of the common law contractual construction see Lord Steyn, "Contract Law: Fulfilling the Reasonable Expectations of Honest Men" (1997) 113 L.Q.R. 433.

[3] The Helvetia [1960] 1 Lloyd's Rep. 540 at p. 546: "... One refers to rules of construction... in the last resort, if one cannot arrive at a clear view on the proper construction otherwise." Similarly, under French law, a contract must govern so far as clear: "Lorsque le texte est clair, les tribunaux ne peuvent en principe, refuser son application: un texte clair ne s'interprète pas, il s'applique; le juge qui se livrerait à  l'interprétation d'un texte clair le dénaturerait." (Mazeaud, Leçons de Droit Civil, t. 2, vol. 1, 9 Ed., Paris, 1998, para. 344, at p. 334). See also art. 2046 of the Civil Code of Louisiana where it stated: "When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." In Belize Trading Lim. Procs. 1991 AMC 2947 at pp. 2950-2951 (S.D. Fla. 1991), Moreno D.J. held: "In order for this Court to consider the additional information in the invoices, WDEX forms and other documents, claimants must establish that the language of the bills of lading is ambiguous."  See also J. Aron & Company v. Cargill Marine Terminals, Inc. 2000 AMC 533 at p. 535 (E.D. La. 1999), where an insured bill of lading clearly excluding liability for delay caused by acts of God was found to clearly exclude liability for delay resulting from flooding.

[4] Walk-In Medical Centers, Inc. v. Breuer Capital Corp. 818 F.2d 260 at p. 263 (2 Cir. 1987), cited with approval in International Knitwear Company Limited v. M.V. Zim Canada 1997 AMC 1290 at p. 1292 (S.D. N.Y. 1994).  See also Lewison, 2 Ed., 1997, para. 7.01 at p. 193: "A statement may be said to be ambiguous when it has two (or more) primary meanings, each of which may be adopted without distortion of language."

[5] John Hancock Mutual Life Ins. Co. v. Amerford Int'l Corp. 22 F.3d 458 at p. 461 (2 Cir. 1994), cited with approval in International Knitwear Co. Ltd. v. M.V. Zim Canada 1997 AMC 1290 at p. 1292 (S.D. N.Y. 1994).

[6] Great Western Railway v. Bristol Corp. (1918) 87 L.J. Ch. 414 at p. 429; Lewison, 2 Ed., 1997, para. 7.02 at pp. 194-195.

[7] [1902] A.C. 1 at p. 10 (H.L.).  See also Schuler (L.) A.G. v. Wickman Machine Tool Sales Ltd. [1974] A.C. 235 at p. 261 (H.L. per Lord Wilberforce dissenting on other grounds): "But ambiguity ... is not to be equated with difficulty of construction, even difficulty to a point where judicial opinion as to meaning has differed."  See also Ailsa Craig Fishing Co. Ltd. v. Malvern Fishing Co. Ltd. [1983] 1 W.L.R. 964 at p. 967, [1983] 1 Lloyd's Rep. 183 at p. 184 (H.L. per Lord Wilberforce): "The possibility of construction of a clause does not amount to ambiguity."  In the United States, see also Taisho Marine and Fire Ins. Co., Ltd. v. Maersk Line, Inc. 796 F. Supp. 336 at p. 343 note 12, 1993 AMC 705 at p. 716 note 12 (N.D. Ill. 1992), aff'd 7 F.3d 238, 1994 AMC 608 (7 Cir. 1993): "But simply because the reading of a complex document demands a meticulous attention to its terms, that does not somehow render the document 'ambiguous' so as to trigger any contra proferentem principles."

[8] Associated Metals & Minerals Corp. v. M.V. Arktis Sky 1991 AMC 1499 at p. 1507 (S.D.N.Y. 1991), rev'd on other grounds, 978 F.2d 47, 1993 AMC 509 (2 Cir. 1992); Union Steel America Co. v. M/V Sanko Spruce 14 F. Supp. 2d 682 at p. 685, 1999 AMC 344 at p. 347 (D. N.J. 1998): "... since the bills of lading constitute a contract, the question of who the parties meant to identify by 'the carrier' in the forum selection clause is one concerning the expressed contractual intent."

[9] See art. 2047 c.c. (Louisiana): "The words of a contract must be given their generally prevailing meaning...." See also Motis Exports v. Dampskibsselskabet AF 1912 [1999] 1 Lloyd's Rep. 837 at p. 847, referring to the "natural meaning" of a bill of lading clause.

[10] Francosteel Corp. v. M/V Kapetan Andreas G. 1993 AMC 1924 at p. 1927 (S.D.N.Y. 1993); Fabrica de Tajidos la Bellota S.A. v. M.V. Mar 799 F.Supp. 546 at pp. 557-558, 1993 AMC 721 at p. 730 (D. V.I. 1992); Seguros Comercial Americas S.A. de C.V. v. American President Lines, Ltd. 910 F.Supp. 1235 at p. 1243 note 19, 1996 AMC 1441 at p. 1449 note 19 (S.D. Tex. 1995), judgment vacated on other grounds, 105 F.3d 198, 1997 AMC 1566 (5 Cir. 1996). In International Knitwear Co. Ltd. v. M/V Zim Canada 1997 AMC 1290 at p. 1293 (S.D. N.Y. 1994), the court said: "…the preferred interpretation of a contract is one that gives a reasonable and effective meaning to all terms of a contract as opposed to having a part unreasonable or of no effect." See also Finagra v. O.T. Africa Line [1998] 2 Lloyd's Rep. 622 at p. 630.  See also arts. 1157 c.c. (France), 1157 c.c (Belgium); 1428 c.c. (Quebec 1994); art. 2049 c.c. (Louisiana).

[11] The Ardennes [1951] 1 K.B. 55 at p. 59, (1950) 84 Ll. L. Rep. 340 at p. 344.  See W. Tetley, Marine Cargo Claims, 3 Ed., 1988 Chap. 1: "Application of the Rules Generally". In addition to the bill of lading, the contract may comprise such components as the booking note, the carrier's advertisement and tariff, the oral arrangements and correspondence between the parties, and even customs and usages of the ports of loading and discharge which are known to, and accepted by, the shipper.

[12] Cho Yang Shipping Co. Ltd. v. Coral (UK) Ltd. [1997] 2 Lloyd's Rep. 641 at p. 643 (C.A. per Hobhouse L.J.).

[13] See, for example, Pioneer Shipping Ltd. v. B.T.P. Tioxide (The Nema) [1982] A.C. 724 at p. 736, [1981] 2 Lloyd's Rep. 239 at p. 243 (H.L.); Chitty on Contracts, 28 Ed., vol. 1, 1999, para. 12-042 at p. 604; Lewison, 2 Ed., 1997, para. 1.02 at pp. 2 et seq.  For the United States, see. Farnsworth, 3 Ed., 1999, para. 7.09 at p. 466.  See also art. 1156 c.c. (France), art. 1156 c.c. (Belgium); art. 1425 c.c. (Québec 1994); art. 2045 c.c. (Louisiana).

[14] See, for example, The Diana Prosperity [1976] 1 W.L.R. 989 at p. 996, [1976] 2 Lloyd's Rep. 621 at p. 625 (H.L.); Investors Compensation Scheme Ltd. v. West Bromwich Building Society [1998] 1 W.L.R. 896 at pp. 911-912 (H.L.), referring (at p. 912) to "...the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract."  See also Lewison, 2 Ed., 1997, para. 1.05 at pp. 8-13; Chitty on Contracts, 28 Ed., vol. 1, 1999, para. 12-043 at p. 604.  For the United States, see. Farnsworth, 3 Ed. 1999, para. 7.9 at pp. 465-466.

[15] See Mazeaud, Leçons de Droit Civil, 9 Ed., t. 2, vol. 1, Paris, 1998, para. 344 at pp. 334-335 and para. 357 at p. 343.  The civilian insistence on subjective intent reflects the theory of autonomy of the will of the contracting parties underlying the civil law of contractual obligations.  See art. 1108 c.c. (France), arts. 1385-1386 c.c. (Quebec 1994); art. 1927 c.c. (Louisiana).  See also Tetley, "Mixed Jurisdictions: Common Law vs. Civil law (Codified and Uncodified)" (Part II) 1999-4 Unif. L. Rev. 877 at p.88, reprinted (2000) 60 La. L. Rev. 677 at p. 746.

[16] Lewison, 2 Ed., 1997, para. 1.03 at pp. 4-6; Chitty on Contracts, 28 Ed., vol. 1, 1999, para. 12-043 at p. 604.  See also The Peonia [1991] 1 Lloyd's Rep. 100 at p. 103 (C.A.); Melanesian Mission Trust Board v. Australian Mutual Provident Society [1997] 1 N.Z.L.R. 391 at p. 394 (P.C.).  Words are normally taken in their natural or ordinary sense, unless there is an indication that a special sense was intended, or unless they are technical terms.  See Chitty on Contracts, supra, para. 12-050 at p. 607.  For the United States, see Farnsworth, 3 Ed., 1999, para. 7.10 at p. 469.  See also art. 2047 c.c. (Louisiana), providing, in pertinent part: "Words of art and technical terms must be given their technical meaning when the contract involves a technical matter."

[17] The Nerano [1996] 1 Lloyd's Rep. 1 at p. 4 (C.A.).

[18] In Elderslie Steamship Company Limited v. Borthwick [1905] A.C. 93 at p. 96 (H.L.), the Earl of Halsbury L.C. held: "each of the parts of this contract must be read so as to give effect to the whole if it can." See also Glynn v. Margetson & Co. [1893] A.C. 351 at p. 357 (H.L. per Lord Halsbury L.C.); G.R. Renton & Co. Ltd. v. Palmyra Trading Corporation of Panama [1957] A.C. 149 at pp. 163-164, [1956] 2 Lloyd's Rep. 276 at pp. 386-387 (H.L. per Lord Morton of Henryton); Chitty on Contracts, 28 Ed., vol. 1, 1999, para. 12-061 at p. 611, and decisions cited there; Lewison, 2 Ed., 1997, para. 6.02 at p. 160. For similar U.S. and Canadian authorities, see Sun-Bar Materials International, Inc. v. American President Lines, Ltd. 1993 AMC 2639 at p. 2643 (N.D. Cal. 1993); Can-Am Produce and Trading Ltd. v. The Senator (1996) 112 F.T.R. 255 at p. 259, 1997 AMC 206 at p. 209 (Fed. C. Can.); Transatlantic Marine Claims Agency, Inc. v. M/V OOCL Inspiration 137 F.3d 94 at p.103, 1998 AMC 1327 at p. 1337 (2 Cir. 1998); Farnsworth, 3 Ed., 1999, para. 7.10 at p. 467, and decisions cited there.  See also art. 1161 c.c. (France), 1161 c.c. (Belgium); art. 1427 c.c. (Québec 1994); art. 2050 c.c. (Louisiana).

[19] Prenn v. Simmonds [1971] 1 W.L.R. 1381 at p. 1384 (H.L.); The Diana Prosperity [1976] 1 W.L.R. 989 at pp. 995-996, [1976] 2 Lloyd's Rep. 621 at p. 624 (H.L.), referring to the "factual matrix" of the contract.  See also art. 1426 c.c. (Quebec 1994), referring, inter alia, to the circumstances in which the contract was formed and the interpretation which has already been given to it by the parties or which it may have received.  See also art. 2053 c.c. (Louisiana), referring, inter alia, to the conduct of the parties before and after the formation of the contract and of other contracts of a like nature between the same parties.  See also Farnsworth, 3 Ed., 1999, para. 7.10 at p. 467.

[20] See Chitty on Contracts, 28 Ed., vol. 1, 1999, para. 12-055 at pp. 609-610 and para. 12-130 at p. 641, and decisions cited there.  For the United States, see Farnsworth, 3 Ed., 1999, para. 7.13 at pp. 483-490, and decisions cited there.  See also arts. 1159 and 1160 c.c. (France), arts. 1159 and 1160 c.c. (Belgium); art. 1426 c.c. (Québec 1994) and art. 2053 c.c. (Louisiana).

[21] For the rule as it applies to contracts in general, see arts. 1162 c.c. (France), 1162 c.c. (Belgium), 1432 c.c. (Québec 1994) and 2057 c.c. (Louisiana). In its English version, art. 1432 c.c. (Québec 1994) reads:  "In case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it. In all cases, it is interpreted in favour of the adhering party or the consumer." Under French law, the contra proferentem rule codified at art. 1162 c.c. is not absolutely binding on the judge. He can decide in favour of either party. The discretion remains his at all times. (Cour de Cassation, May 10, 1948 Gaz. Pal. 1948.2.41, Bull. civ. 1948, p. 470, No. 137.) Art. 1162 c.c. will be applied with greater force (avec une rigueur accrue) in the case of adhesion contracts. (Cour d'Appel de Colmar, January 25, 1963 Gaz. Pal. 1963.1.277.) Art. 2056 of the Louisiana's Civil Code deals specifically with standard-form contracts. For the application of the contra proferentem rule in Anglo-American contract law, see generally Farnsworth, 3 Ed., 1999, para. 7.11 at pp. 473-474. For the U.K., see Lewison, 2 Ed., 1997, para. 6.07 at pp. 168-174 and para. 11.05 at pp. 316-319; Chitty on Contracts, 28 Ed., vol. 1., 1999, para. 12.08 at pp. 619-620.

For cases where the contra proferentem rule was applied in construing bills of lading see: The Caledonia 157 U.S. 124 at p. 137 (1895); Encyclopaedia Britannica Inc. v. S.S. Hong Kong Producer 422 F.2d 7 at p. 15, 1969 AMC 1741 at p. 1752 (2 Cir. 1969); Cabot Corp. v. S.S. Mormacsan 441 F.2d 476 at p. 478, 1971 AMC 1130 at p. 1133 (2 Cir. 1971); Associated Metals & Minerals v. M/V Visha Shoba 530 F.2d 714 at p. 718 (6 Cir. 1976); Antillean Marine Shipping Co. v. La Universal 359 So.2d 516 at p. 517 (D.C. of App., Fla. 1978); Atlantic Consolidated Foods Ltd. v. M.S. Doroty [1978] ETL 550 at p. 561 (Fed. C. Can.).  American courts frequently allude to the contra proferentem principle, by holding that bills of lading must be strictly construed against the carrier.  See Mitsui & Co. Ltd. v. American Export Lines, Inc. 636 F.2d 807 at pp. 822-823, 1981 AMC 331 at p. 354 (2 Cir. 1981); West India Industries, Inc. v. Tradex 664 F.2d 946 at p. 951 note 9, 1983 AMC 1992 at p. 1999 note 9 (5 Cir. 1981); Allied Chemical International Corp. v. Comphanhia de Navegacao Lloyd Brasileiro 775 F.2d 476 at p. 482, 1986 AMC 826 at p. 832 (2 Cir. 1985), cert. denied 475 U.S. 1099, 1986 AMC 2700 (1986); Interocean S.S. Corp. v. New Orleans Cold Storage and Warehouse Co. 865 F.2d 699 at p. 703, 1989 AMC 1250 at p. 1254 (5 Cir. 1989); C-Art, Ltd. v. Hong Kong Islands Line America, S.A. 940 F.2d 530 at p. 532, 1991 AMC 2888 at p. 2890 (9 Cir. 1991), cert. denied 503 U.S. 1005, 1992 AMC 2701 (1992); EF Operating Corp. v. American Buildings 993 F.2d 1046 at p. 1050 (3 Cir. 1993); All Pacific Trading, Inc. v. M/V Hanjin Yosu 7 F.3d 1427 at p. 1431, 1994 AMC 3565 at p. 370 (9 Cir. 1993); Fox and Associates, Inc. v. M/V Hanjin Yokohama 977 F. Supp. 1022 at p 1030, 1998 AMC 1090 at pp. 1099-1100 ( C.D. Cal. 1997).  For decisions where the contra proferentem rule was not applied because no ambiguity was found in the bill of lading, see, for example, Institute of London Underwriters v. Sea-Land Services, Inc. 881 F.2d 761 at p. 767, 1989 AMC 2516 at p. 2525 (9 Cir. 1989); Tokio Marine v. Nippon Express 2000 AMC 810 at p. 815 (C.D. Cal. 2000).

[22] (1992) 47 F.T.R. 149 at p. 156 (Fed. C. Can.).

[23] A contract of adhesion is much like a train ticket, a bus ticket or a coat check ticket.  Nothing is added to the form by the parties. A standard form contract, on the other hand, requires that certain details be added to the form such as in the case of a bill of lading, the name of the ship, the description of the cargo and the voyage. This distinction is sometimes disregarded, unfortunately, in decisions treating a bill of lading as a contract of adhesion.  See, for example, Allied Chemical International Corp. v. Companhia de Navegacao Lloyd Brasileiro 775 F.2d 476 at p. 482, 1986 AMC 826 at 832 (2 Cir. 1985): "…bills of lading are contracts of adhesion and, as such, are strictly construed against the carrier;" Crowley American Transport, Inc. v. Richard Sewing Machine Corp. 1997 AMC 1798 at p. 1802 (S.D. Fla. 1996): "The terms and conditions of a bill of lading are terms of adhesion, as they are a standard part of the contract between the parties and are not subject to negotiation."

[24] See, for example, The Caledonia 157 U.S. 124 at p. 137 (1895); Navieros Oceanikos, S.A. v. S.T. Mobil Trader  554 F.2d 43 at p. 47, 1977 AMC 739 at p. 746 (2 Cir. 1977); Vistar S.A. v. M/V Sea Land Express 792 F.2d 469 at p. 471, 1986 AMC 2382 at p. 2384 (5 Cir. 1986).

[25] 313 F. Supp. 1373 at p. 1380, 1970 AMC 1310 at p. 1322, [1970] 1 Lloyd's Rep. 527 at p. 534 (E.D. N.Y. 1970).

[26] Alcoa S.S. Co. v. U.S. 80 F. Supp. 158 at p. 161, 1948 AMC 1421 at p. 14301 (S.D. N.Y. 1948): "The government (the shipper) prepared the form of its own bill of lading. If it is indefinite or ambiguous, that is not the fault of the plaintiff (the shipowner). If it permits of more than one interpretation, the plaintiff is entitled to the more favourable interpretation."

[27] See, for example, Daval Steel v. M/V Acadia Forest 683 F. Supp. 444 at p. 447, 1988 AMC 1669 at p. 1672 (S.D. N.Y. 1988); A.T.I.C.A.M. v. Cast Europe (1983) Ltd. 662 F. Supp. 1443 at p. 1449, 1988 AMC 305 at p. 313 (N.D. Ill. 1987); Francosteel v. M/V Deppe Europe 1990 AMC 2962 at p. 2967 (S.D. N.Y. 1990); Associated Metals & Minerals Corp.v. M/V Arktis Sky 1991 AMC 1499 at p. 1507 (S.D. N.Y. 1991), summary judgment for defendant, 1992 AMC 1217 (S.D. N.Y. 1992), rev'd on other grounds, 978 F.2d 47, 1993 AMC 509 (2 Cir. 1992); Associated Metals v. M/V Star Skarven 1995 AMC 505 at pp. 515-516 (S.D. Fla. 1994); J.C.B. Sales Ltd. v. M/V Seijin 921 F. Supp. 1168 at p. 1172, 1996 AMC 1507 at p. 1514, aff'd 124 F.3d 132, 1997 AMC 2705 (2 Cir. 1997). But see also Francosteel v. M/V Kapetan Andreas G 1993 AMC 1924 at p. 1928 note 3 (S.D. N.Y. 1993), were the Court refused to interpret an ambiguous bill of lading clause against the drafter where both parties were "sophisticated business entities" and not in "markedly different bargaining positions".

[28] See, for example, Rutter  v. Palmer [1922] 2 K.B. 87 at p. 92 (C.A.); Foreman & Ellams Ltd. v. Federal Steam Navigation Co. (1928) 30 Ll. L. Rep. 52 at p. 59, [1928] 2 K.B. 424 at p. 439, where Wright J. said: "A negligence or exception clause in a statute, as in a contract, ought, I think, to be strictly construed." In Motis Exports Ltd. v. Dampskibsselskabet AF 1912 Aktieselskab [2000] 1 Lloyd's Rep. 211 at p. 216 (C.A.), Stuart-Smith L.J. said: "I also agree with the Judge that even if the language was apt to cover such a case, it is not a construction which should be adopted, involving as it does excuse from performing an obligation of such fundamental importance. As a matter of construction the Courts lean against such a result if adequate content can be given to the clause." See also W. Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 3, "Interpretation and Construction of the Rules" at sect. VII(6), and generally ibid., Chap. 39, "Limitation, Non-Responsibility and Disclaimer Clauses".

[29] The "fundamental breach" doctrine, understood as a rule of substantive law, was repudiated in England by the House of Lords in Photo Production Ltd. v. Securicor Transport Ltd. [1980] A.C. 827, [1980] 1 Lloyd's Rep. 545 (H.L.), in favour of regarding "fundamental breach" as a mere principle of construction. See generally Lewison, 2 Ed., 1997, para. 11.11 at pp. 328-331. Other Commonwealth countries followed the lead of the House of Lords. In Australia, for example, the High Court, in Darlington Futures Limited v. Delco Australia Proprietary Limited (1986) 161 C.L.R. 500, held that:"…the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature of and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity" (ibid., p. 510). In Nissho Iwai Australia Limited v. Malaysian International Shipping Corporation, Berhad (1989) 167 C.L.R. 219, the High Court applied this approach to the construction of an exception clause in a bill of lading. In Canada, see ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. (The Buenos Aires Maru) [1986] 1 S.C.R. 752 at p. 799, 1986 AMC 2580 at p. 2619. See generally W. Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 5: "Fundamental Breach, Deviation, Quasi-Deviation and Rupture of the Contract".

[30] [1952] A.C. 192 at p. 208 (P.C.). See generally Lewison, 2 Ed., 1997, para. 11.06 at pp. 319-320.

[31] The colourful term "bite" in this context is found in several (primarily U.K.) decisions on exemption clauses, including, for example, The Raphael [1982] 2 Lloyd's Rep. 42 at p. 49 (C.A.), cited by the Supreme Court of Canada in The Buenos Aires Maru, supra, [1986] 1 S.C.R. at p. 797, 1986 AMC at p. 2617.


[32] For decisions applying the three tests of Canada Steamship Lines v. The King, see ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. [1986] 1 S.C.R. 752, 1986 AMC 2580; Upper Lakes Shipping Ltd. v. St. Lawrence Cement Inc. (1992) 89 D.L.R. (4th) 722 (Ont. C.A.); Mackay v. Scott Packing & Warehousing (Canada) Ltd. [1996] 2 F.C. 36 (Fed. C.A.); Belships (Far East) Shipping (Pte.) Ltd. v. Canadian Pacific Forest Products Limited - Tahsis Pacific Region 1999 AMC 2606 (Fed. C.A.).  For England, see in particular The Raphael [1982] 2 Lloyd's Rep. 42 (C.A.), citing various earlier English authorities, notably, Alderslaide v. Hendon Laundry, Ltd. [1945] K.B. 189 (C.A.).

[33] Cour d'Appel d'Aix, May 28, 1991 (The Norasia-Pearl), Revue Scapel 1991, 101; commentary by P. Bonassies, DMF 1993, no. 93 at pp. 156-157.

[34] Burdines Inc. v. Pan-Atlantic S.S. Corp. 199 F.2d 571 at p. 573, 1952 AMC 1942 at p. 1944 (5 Cir. 1952): "It is a well established general rule that when a contract is partly printed and partly written, the writing controls. This rule extends to the use of a rubber stamp as a means of writing". A rubber-stamped Hague Rules paramount clause was placed over a printed two-year time for suit clause, and it was held that the one-year time for suit of the Hague Rules applied. (Cited with approval in Antillean Marine Shipping Co. v. La Universal 359 So.2d 516 at p. 518 (D.C. of App., Fla. 1978).) In The Steel Inventor 35 F. Supp. 986, 1941 AMC 169 (D. Md. 1940), a U.S. paramount clause stamped on the face of the bill of lading was given precedence over an Indian paramount clause found among the printed clauses. See also Hof van Beroep te Brussel, February 10, 1966, [1966] ETL 432, where special conditions stamped on a bill of lading and agreed to after the settling of the general provisions were given precedence over printed clauses by the Belgian Court of Appeal; B. Elliott (Canada) Ltd. v. John T. Clark & Son of Maryland, Inc. 704 F.2d 1305 at p. 1308, 1983 AMC 1742 at p. 1745 (4 Cir. 1983) (stamped "pier to pier" provision re delivery on face of bill of lading took precedence over printed clause providing for delivery upon discharge); Crowley American Transport, Inc. v. Richard Sewing Machine Corp.1997 AMC 1798 at p. 1802 (S.D. Fla. 1996) (typed term on face of bill of lading stating freight payable "collect" - i.e. on delivery - prevailed over printed clause on rear of bill stating freight earned on loading), aff'd without discussion of this point, 172 F.3d 781, 1999 AMC 1723 (11 Cir. 1999). See also Finagra v. O.T. Africa Line [1998] 2 Lloyd's Rep. 622 at p. 629; The Starsin [2000] 1 Lloyd's Rep. 85 at pp. 89-90. For the rule as it applies to contracts in general, see Chitty on Contracts, 28 Ed., vol 1, London, 1999, para. 12-068 at p. 614, and to charterparties, see The Brabant [1967] 1 Q.B. 588, [1965] 2 Lloyd's Rep. 546; The Voltaz [1997] 1 Lloyd's Rep. 35 at p. 38 and Tribunal de Commerce de Rouen, December 18, 1957, DMF 1958, 285.

[35] Cour d'Appel de Rouen, January 31, 1980, DMF 1980, 589. See also A. Vialard, Droit Maritime, P.U.F., Paris, 1997, para. 444 (hereinafter "Vialard, 1997").

[36] Glynn v. Margetson & Co. [1893] A.C. 351 at p. 358 (H.L. per Lord Halsbury), cited by McNair J. in The Brabant [1967] 1 Q.B. 588 at p. 601, [1965] 2 Lloyd's Rep. 546 at p. 553. See also Lewison, 2 Ed., 1997, para. 8.10 at pp. 250-253.

[37] G.R. Renton & Co. Ltd. v. Palmyra Trading Corporation of Panama [1956] 1 Q.B. 462 at p. 511, [1955] 2 Lloyd's Rep. 722 at p. 741 (C.A. per Jenkins L.J.): "... the court will limit or modify the conflicting printed condition to the extent necessary to enable effect to be given to such main object and intention, or in a case of complete repugnancy wholly reject it."  See also the House of Lords' judgment on this point, [1957] A.C. 149 at p. 168, [1956] 2 Lloyd's Rep. 376 at pp. 389-390 (H.L. per Lord Morton of Henryton), citing Margetson & Co. v. Glynn [1892] 1 Q.B. 337 at p. 344 (C.A. per Fry L.J.).

[38] Cour d'Appel de Paris, February 5, 1962, DMF 1962, 345: the names of the loading and discharging ports were typewritten, but it was held this did not contradict the printed clause giving the carrier the right to choose other ports of call along the regular liner route. The Court, however, recognised that typewritten clauses normally have precedence over printed clauses.  See also Kum v. Wah Tat Bank Ltd. [1971] 1 Lloyd's Rep. 439 at p. 445 (P.C.) (printed term "not negotiable" on a mate's receipt was not inconsistent with any written words on the document; so the receipt could not be treated as a negotiable document of title). In Glebe Island Terminals Pty. Ltd. v. Continental Seagrams Pty. Ltd. (The Antwerpen) [1994] 1 Lloyd's Rep. 213 (N.S.W. C.A.), clear and explicit typed words on a printed bill of lading were ignored as they were inconsistent with the factual background. The Court called their inclusion a "patent error."

[39] Brown v. Byrne (1854) 3 El. & Bl. 701, 118 E.R. 1304; see also Parke B. in Hutton v. Warren (1836) 1 M. & W. 466 at p. 475, 150 E.R. 517 at p. 521, cited in London Export Corp. v. Jubilee Coffee Roasting Co. [1958] 1 Lloyd's Rep. 367 at p. 374, [1958] 2 All E.R. 411 at p. 418 (C.A.); Caterpillar Overseas, S.A. v. Marine Transort, Inc. 900 F.2d 714 at pp. 721-722, 1991 AMC 75 at p. 85 (4 Cir. 1990); Berkshire Fashions, Inc. v. M.V. Hakusan II 954 F.2d. 874 at p. 881, 1992 AMC 1171 at p. 1180 (3 Cir. 1992); Olympo Transport Company of Puerto Rico, Inc. v. Certain Insurance Companies at the Institute of London Underwriters 103 F.3d 1 at p. 2, 1997 AMC 964 at p. 965 (1 Cir. 1996); Konica Business Machines, Inc. v. Vessel Sea-Land Consumer153 F.3d 1076 at p. 1078, 1998 AMC 2705 at p. 2707 (9 Cir. 1998);Great American Insurance Companies v. M.V. Romeral 1999 AMC 2542 at pp. 2549-50 (E.D. La. 1998), aff'd by unpublished opinion (No. 98-31164, 5 Cir.1999). For the U.K., see Lewison, 2 Ed., 1997, para. 5.09 at pp. 138-140 and decisions cited there. The rule is the same in civilian jurisdictions, see arts. 1135 and 1160 c.c. (France), arts. 1135 and 1160 c.c. (Belgium), art. 1426 c.c. (Québec 1994) and arts. 2053-2055 c.c. (Louisiana). In its English version art. 1426 c.c. (Québec 1994). states: "In interpreting a contract, the nature of the contract, the circumstances in which it was formed, the interpretation which has already been given to it by the parties or which it may have received, and usage, are all taken into account." See also Mazeaud, Leçons de Droit Civil, t. 2, vol. 1, 9 Ed., Paris, 1998, para. 349 at p. 337 and P.-A. Crépeau, "Le Contenu Obligationnel d'un Contrat" (1965) 43 Can. Bar Rev. 1 at pp. 26-27.

[40] Marcelino Gonzalez y Cia v. James Nourse Ltd. (1935) 53 Ll. L. Rep. 151 at p. 154, [1936] 1 K.B. 565 at p. 573: "Where there is a custom of the port, a bill of lading is always construed as having been entered into with reference to that custom and, unless express words appear in it excluding that custom, discharge in accordance with that custom has been held over and over again to be a proper discharge in accordance with the contract." Thus, the Court permitted discharge at Havana into lighters, although the vessel could have come alongside.

[41] Kum v. Wah Tat Bank Ltd. [1971] 1 Lloyd's Rep. 439 at p. 445 (P.C.): "The rule is plain and clear that inconsistency with the document defeats the custom." In this case, despite a finding that a mate's receipt was, by custom, treated as a negotiable document of title equivalent to a bill of lading in trade between Sarawak and Singapore, the custom could not make such receipts, marked "non-negotiable", into negotiable instruments.


[42] In Konica Business Machines, Inc. v. Vessel Sea-Land Consumer 153 F.3d 1076 at p. 1078, 1998 AMC 2705 at p. 2707 (9 Cir. 1998), the court held that while historically a clean bill of lading meant storage below deck, this did not apply to containers, as it was a recognized custom to store them above deck. See also Alternative Glass Supplies v. M/V Nomzi 1999 AMC 1080 at p. 1086 (S.D. N.Y. 1999); Deltamax Freight System v. M/V Aristotelis 1999 AMC 1789 at pp. 1795-1796 (C.D. Cal. 1998).  But should it alter a clear provision of law or Supreme Court ruling? See also W. Tetley, Marine Cargo Claims, 3 Ed., 1988, Chapter 34 on "Deck Cargo".

[43] SPM Corporation v. M.V. Ming Moon 965 F.2d 1297 at p. 1304, 1992 AMC 2409 at pp. 2418-2419 (3 Cir. 1992); Comfort A. Anyangwe v. Nedlloyd Lines 909 F. Supp. 315 at p. 321, 1996 AMC 1083 at p. 1089 (D. Md 1995).

[44] See, for example, Constable v. National Steamshp Co. 154 U.S. 51 at p. 63 (1894); Tan Hi v. United States 94 F. Supp. 432 at p. 435, 1951 AMC 127 at p. 131 (N.D. Cal. 1951); Tapco Nigeria, Ltd. v. M/V Westwind 702 F.2d 1252 at p. 1256 (5 Cir. 1983) (citing Allstate Ins. Co. v. Imparca Lines 646 F.2d 166 at p. 168, 1982 AMC 423 at p. 427 (5 Cir. 1981)); Capital Converting Equipment, Inc. v. LEP Transport, Inc. 965 F.2d 391 at p. 395, 1993 AMC 1609 at p. 1615 (7 Cir. 1992); Independent Machinery, Inc.  v. Kuehne & Nagel, Inc. 867 F. Supp. 752 at pp. 764-765 (N.D. Ill. 1994); U.N./F.A.O. World Food Programme v. M.V. Tay 138 F.3d. 197 at p. 200, 1998 AMC 2729 at p. 2732 (5 Cir. 1998) (interpreting a waybill incorporating U.S. COGSA); Servicios Expo-Arma, C.A. v. Industrial Maritime Carriers, Inc. 135 F.3d 984 at p. 993, 1998 AMC 1453 at p. 1465 (5 Cir. 1998); Ace Bag & Burlap Co, Inc. v. Sea-Land Service, Inc. 40 F.Supp.2d 233 at pp. 237-238, 1999 AMC 837 at pp. 841-843 (D. N.J. 1998); Rothfos Corp.v. M/V Nuevo Leon 2000 AMC 2054 at p. 2060, note 15 (S.D. Tex. 2000); Pacific Tall Ships Co. v. Kuehne & Nagel Inc. 102 F.3d. 923 at p. 924, 2000 AMC 879 at p. 880 (N.D. Ill. 2000) and 94 F.3d 928 at p. 934 (N.D. Ill. 2000).

[45] See Court of Justice of the European Communities, March 16, 1999, (Trasporti Castelletti), DMF 2000, 11, observations Ph. Delebecque. See also Cour d'Appel d'Aix, January 11, 1990, Bulletin des Transports 1991, 140 (bill of lading drafted in English upheld in France, despite internal law on use of French, because English is a matter of usage in international contracts).

[46] See, for example, Carman Tool & Abrasives, Inc. v. Evergreen Lines 871 F.2d 897 at p. 901 note 10, 1989 AMC 913 at p. 918 note 10 (9 Cir. 1989); Institute of London Underwriters v. Sea-Land Service, Inc. 881 F.2d 761 at p. 766, 1989 AMC 2516 at p. 2522 (9 Cir. 1989); Caterpillar Overseas, S.A. v. Marine Transport, Inc. 900 F.2d 714 at p. 719, 1991 AMC 75 at p. 83 (4 Cir. 1990); Travelers Indemnity Co. v. Vessel Sam Houston 26 F.3d 895 at p. 899, 1994 AMC 2162 at p. 2167 (9 Cir. 1994); Royal Ins. Co. v. Sea-Land Service, Inc. 50 F.3d 723 at p. 727, 1995 AMC 1189 at p. 1192 (9 Cir. 1995); Steel Warehouse Co., Inc. v. Abalone Shipping Ltd. of Nicosai 141 F.3d 234 at p. 237, 1998 AMC 2054 at p. 2057 (5 Cir. 1998).

[47] This was pointed out by Lord Buckmaster in Frenkel v. MacAndrews & Co. (1929) 33 Ll. L. Rep. 191 at p. 193, [1929] A.C. 545 at p. 549 (H.L.), where the bill of lading acknowledged receipt of cargo at Malaga "with destination to Liverpool". The House of Lords noted that there were two customary routes, one of which was "via Levante", and that the agents of the shipper knew that the vessel was proceeding "via Levante", and thus the contracted voyage was "via Levante". See also International Drilling Co. v. M/V Doriefs 291 F. Supp. 479 at p. 483, 1969 AMC 119 at pp. 122-123 (S.D. Texas 1968) and Isthmian Steamship Co. v. California Spray-Chem. Corp. 300 F.2d 41 at p. 44, 1962 AMC 1474 at p. 1477 (9 Cir. 1962), where it was held: "in giving effect to the provisions of a bill of lading, the conditions and circumstances which the evidence proves were known to the parties and contemplated by them in making it, are to be taken into consideration." See also Jian Sheng Co. v. Great Tempo S.A. [1998] 3 F.C. 418 at p. 432 (Fed. C.A.), application for leave to appeal dismissed with costs without reasons, December 10, 1998, [1998] S.C.C.A. No. 287 (Supr. C. of Can.).

[48] Reardon Smith Line v. Hansen-Tangen (The Diana Prosperity) [1976] 2 Lloyd's Rep. 621 at p. 624, [1976] 3 All E.R. 570 at p. 574 (H.L.). Later in the same judgment, Lord Wilberforce, after having set out a number of cases which dealt with the interpretation of "surrounding circumstances", articulated the following proposition (Lloyd's Rep. at p. 625, All E.R. at p. 575): "I think that all of their Lordships are saying, in different words, the same thing ‑ what the Court must do must be to place itself in thought in the same factual matrix as that in which the parties were." In M.B. Pyramid Sound M.V. v. Briese Schiffahrts G.M.B.H. and Co. K.G. M.S. 'Sim' and Latvian Shipping Association Ltd. (The Ines) [1995] 2 Lloyd's Rep. 144 at p. 149, Clarke J. said: "… in order to ascertain who the true contracting parties were it is necessary to examine the whole document and indeed consider the whole context in which it came into existence." See also The Flecha [1999] 1 Lloyd's Rep. 612 at p. 618, insisting on the need to look at the bill of lading as a whole and "its wider context", in determining whether it was an owner's or a charterer's bill.

[49] 885 F.Supp. 86 at p. 88, 1995 AMC 2327 at p. 2331 (S.D.N.Y. 1995).

[50] (1879) 5 Q.B. 38 at p. 41.

[51] (1922) 13 Ll. L. Rep. 513 at p. 517, [1923] 1 K.B. 420 at p. 441 (C.A.).

[52] Wilson v. Cie des Messageries Maritimes [1954] 1 Lloyd's Rep. 229 at p. 235, (1954) 54 State Reports (N.S.W.) 258 at p. 263. While acknowledging that the conditions on the back of the bill of lading were, by reason of the size of the print and the colour of the paper, a "particularly bad example of an illegible clause in a contract" the court noted, however, that the face of the bill of lading bore in large, clear and legible print a reference to the clauses and conditions on the back.

[53] May 30, 1983, [1984] ETL 217. See also Tribunal de Commerce de Marseille, Oct. 15, 1976, DMF 1977, 295 at p. 296 where a jurisdiction clause printed on the bill of lading was rejected because it was "almost totally illegible". In The Iran Vojdan [1984] 2 Lloyd's Rep. 380, the court held that, under applicable German law, the exclusive jurisdiction clause in the bill of lading would be treated as invalid because the conditions were not decipherable.

[54] Encyclopaedia Britannica v. S. S. Hong Kong Producer 422 F.2d 7, 1969 AMC 1741 (2 Cir. 1969); Nemeth v. General S.S. Corp. 694 F.2d 609, 1983 AMC 885 (9 Cir. 1982); Calmaquip Eng. West Hemisphere v. West Coast Carriers 650 F.2d 633, 1984 AMC 839 (5 Cir. 1981); Allstate Ins. Co. v. Int'l. Shipping Corp. 703 F.2d 497, 1985 AMC 760 (11 Cir. 1983); See, however, EM Chemicals v. Sloman Najade 1987 AMC 1689 (S.D. N.Y. 1987), where the Court held that it was immaterial that the ocean carrier's long-form bill of lading was printed in small type since its short-form bill of lading contained a clearly legible COGSA package limitation clause. In Mori Seiki USA, Inc. v. M.V. Alligator Triumph 990 F.2d 444 at p. 449, 1993 AMC 1521 at 1527 (9 Cir. 1993), the Court approved legibility to the naked eye as the appropriate standard of legibility. In Cour d'Appel de Rennes, September 26, 1990, DMF 1993, 309, the Court held a clause "imprimée en caractères minuscules, difficilement déchiffrables à l'oeil nu" (translation: printed in minuscule type, difficult for the human eye to decipher) to be unopposable (i.e. unenforceable). See also P. Bonassies "Le droit positif français en 1993" DMF 1994, 174 at para. 79.

[55] In P.S. Chellaram & Co. Ltd. v. China Ocean Shipping Co. (The Zhi Jiang Kau) [1991] 1 Lloyd's Rep. 493 (N.S.W. C.A.), for example, Kirby P. found that even on an enlarged copy of the bill, "the print was difficult to read. The lightweight paper upon which the conditions appear permits bold letters on the face of the bill of lading to penetrate to the reverse side, almost completely blacking out some the provisions there appearing" (ibid., at p. 520). He nevertheless refused to strike the clauses down as they formed part of a standard-form bill of lading; the cargo interest, on previous occasions, had received the same bill of lading from the shipper without complaint; the front of the bill of lading clearly indicated that it was subject to conditions; and, thus, if the cargo interest had really wanted to, it could have asked the shipper for a clear copy of the bill of lading. See generally, Lewison, 2 Ed., 1997, para. 4.12 at p. 113 and para. 8.11 at p. 253 and U.K. decisions cited there. See also Insurance Co. of North America v. M/V Ocean Lynx 901 F.2d. 934 at p. 938, 1991 AMC 64 at pp. 70-71 (11 Cir. 1990), where a clause that the court of first instance found was only legible with "the aid of a magnifying glass" was nevertheless upheld, because the shipper had dealt with the carrier on numerous prior occasions and had in his possession many copies of the relevant bill of lading and thus had ample opportunity to examine it if so inclined. A similar de facto acceptance of small-print clauses exists in France.  See A. Vialard, 1997, para. 444.

[56] See, for example, Sumitomo Corp. of America v. M/V Saint Venture 683 F.Supp. 1361 at p. 1369 (M.D. Fla. 1988); Plywood Panels, Inc. v. M/V Sun Valley 804 F.Supp. 804 at pp. 809-811, 1993 AMC 516 at p 526 (E.D. Va.. 1992), aff'd 4 F.3d 986, 1994 AMC 304 (4 Cir. 1994), where the small-print nature of a "Rust Clause" in the first case and a "Lumber Clause" in the second case, provided one of two reasons for striking down the clauses.

[57] Chitty on Contracts, 28 Ed., vol. 1, 1999, para. 12-085 at p. 621. See also Lewison, 2 Ed., 1997, para. 6.11 at p. 179: "If it is found that things described by particular words have some common characteristic which constitutes them a genus, the general words which follow them ought to be limited to things of that genus." This canon of construction depends on the "assumed intention of the framer of the instrument that the general words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extend to objects of a wholly different kind." (Chitty on Contracts, ibid.). See also United States v. Powell 423 U.S. 87 at p. 91 (1975), citing Gooch v. United States 297 U.S. 124 at p. 128 (1936), stating that ejusdem generis serves as "an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified."

[58] [1931] 2 K.B. 48, (1931) 39 Ll. L. Rep. 101 (C.A.).

[59] Ibid., K.B. at p. 58, Ll. L. Rep. at p. 106.

[60] Ibid. K.B. at pp. 67-68, Ll. L. Rep. at p. 110. See also Slesser, L.J., who found: "... that the setting down of these two men for their convenience and for the convenience of the shipowner was not a calling for the purpose of bunkering or any other similar purpose." (ibid., K.B. at p. 76, Ll. L. Rep. at p. 114.).

[61] See Rainbow Navigation, Inc. v. U.S. 741 F. Supp. 171 at p. 188, 1990 AMC 1828 at p. 1852 (D. N.J. 1990), where a carrier failed to recover extra costs resulting from its vessel being strikebound at a discharge port under a specific clause in the bill of lading providing for the vessel being unable to discharge because of strikes or work stoppages. Having failed to recover under that specific (strike-related) clause, the carrier was precluded by the ejusdem generis rule from recovering the extra costs under a more general clause in the bill providing for "any" situation where the vessel could not discharge.

[62] [1998] 2 Lloyd's Rep. 337 at p. 346, 1998 AMC 1050 at p 1063 (H.L. per Lord Steyn). Although the decision involved the interpretation of art. 4(6) of the Hague Rules, rather than a clause in a bill of lading, the principle it expounded with reference to the ejusdem generis rule appears equally applicable to bill of lading clauses.