FEDERAZIONE ITALIANA DEI CONSORZI AGRARI v. FEDERAL COMMERCE & NAVIGATION COMPANY, LTD.
(1948) 82 Ll.L.Rep. 717
KING'S BENCH DIVISION.
Before Mr. Justice Morris.
Charter-party - Rectification - Mutual mistake-Custom of the trade- Charter-party on "Centrocon" form entered into between plaintiff charterers and defendant shipowners for carriage of grain from the Argentine to Italy-Negotiations carried out by agents-Ship on voyage to Santos to discharge coal- "Expected ready River Plate about 5th March, 1948"-Cancelling date: Mar. 15-Further provisions of charter (passages in square brackets being deleted from normal "Centrocon" form):
2. That the said steamer being tight, staunch and strong, and in every way fitted for the intended voyage, shall with all convenient speed, after arrival at Montevideo or at an Argentine port, not south of Bahia Blanca, [and after discharge of her inward cargo, if any,] proceed as ordered by the charterers or their agents . . .
11. Orders for the first loading port or place shall be given within four running hours after receipt of written or telegraphic application of the master or agents to the charterers or their agents in Buenos Aires, between 9 a.m. and 6 p.m., Saturdays 9 a.m. to noon (Sundays and holidays excepted), [upon the completion of discharge of the inward cargo,] or upon notice of arrival in ballast in free pratique at Montevideo or at an Argentine port not south of Bahia Blanca . . .
Request to nominate first loading port made to charterers by master on voyage from Santos to River Plate-Master notified by charterers that he must "apply for orders as per charter-party" -Message sent by master to charterers on Saturday, Mar. 13:
Federazione Italiana dei Consorzi Agrari v. Federal Commerce & Navigation Co.
K.B.
718
"Received free pratique off Buenos Aires 1515 request loading instructions"-Instructions sent to master on Monday, Mar. 15, nominating Rosario as first loading port-Arrival at Rosario after cancelling date-Right of charterers to cancel-Contention by charterers that by mutual mistake between their agents and the agents of shipowners the word "or" (following the passage set out in square brackets in Clause 11) was not deleted as was intended; further, that in the particular circumstances the word "or" should have been deleted by the custom of the trade; and that accordingly they were entitled to rectification-Evidence of negotiations leading up to fixture-Particular terms (which did not include a consideration of Clause 11) discussed, "otherwise terms and conditions of s.s. Milton H. Smith charter-party" (which included Clause 11 in identical terms)-Proof of custom-Practice of shipbrokers.