Liberty Export & Import Corp. v. Swift & Co.

Mr. Presiding Justice Gridley

delivered the opinion of the court.

The contract between the parties of February 12, 1920, on which the present action is based, is what is known as a “c.i.f.” contract (cost, insurance and freight). By the decided weight of authority in England and in the United States, the rule is that a contract of sale of goods on “c.i.f.” terms is to be executed by the delivery to the buyer of certain documents, viz., a bill of lading, an insurance policy and an invoice (sometimes a consular invoice, when required by the customs’ regulations of the port of entry as apparently was the case at Havana, Cuba, in 1920.) Many years ago in England in the case of Ireland v. Livingston, L. R. 5 H. L. 395, Lord Blackburn stated what was meant by a contract of sale on “c.i.f.” terms. A portion of his opinion is quoted with approval in the case of Staackman, Horschitz & Co. v. Cary, 197 Ill. App. 601, 605, as follows:

“The terms at a price to cover cost, freight and insurance, payment by acceptance on receiving shipping documents, are very usual and are perfectly understood in practice. The invoice is made out debiting the consignee with the agreed price (or the actual cost and commission, with the premiums of insurance, and the freight, as the case may be), and giving him credit for the amount of the freight which he will have to pay to the shipowner on actual delivery, and for the balance a draft is drawn on the consignee which he is bound to accept (if the shipment be in conformity with his contract) on having handed to him the charter party, bill of lading and policy of insurance. Should the ship arrive with the goods on board he will have to pay the freight, which will make up the amount he has engaged to pay. Should the goods not be delivered in consequence of a peril of the sea, he is not called on to pay the freight, and he will recover the amount of his interest in the goods under the policy. If the nondelivery is in consequence of some misconduct on the part of the master or mariners, not covered by the policy, he will recover it from the shipowner. In substance, therefore, the consignee pays, though in a different manner, the same price as if the goods had been bought and shipped to him in the ordinary way.”

In the case of Harper v. Hochstim, 278 Fed. 102, decided by the U. S. Court of Appeals for the Second Circuit in December, '1921, it is said (p. 103):

“If that contract is for what is now widely known as a ‘sale c.i.f.,’ such sale was by specific agreement to be accomplished or executed by the delivery of documents by vendor to vendee, and not by the physical delivery of the actual goods for which the documents are the evidence of title. The bargain must be kept as made; the buyer can no more refuse the documents and ask for the goods than can the seller withhold the documents and tender the goods; and the documents necessary are a bill of lading and policy of insurance, although additional papers, especially an invoice, are usual. The foregoing is now too well settled to need more than reference to Thames & M. Marine Ins. Co. v. United States, 237 U. S. 19, 26, and cases there cited.”

In the Thames case (237 U. S. 19) it is said (p. 26):

“It is true that the bills of lading represent the goods, but the business of exporting requires not only the contract of carriage, but appropriate provision for indemnity against marine risks during the voyage. The policy of insurance is universally recognized as one of the ordinary ‘shipping documents.’ Thus, when payment is to he made in exchange for such documents, they are held to include not only a proper bill of lading, but also a ‘policy of insurance for the proper amount. ’ Tamvaco v. Lucas, 1 Best & S. 185, 197, 206. It is not sufficient to tender the bill of lading without the policy. Benjamin on Sales, sec. 590, note; Hickox v. Adams, 34 L. T. (N. S.) 404. The requirements of exportation are reflected in the familiar ‘c.i.f.’ contract (that is, at a price to cover cost, insurance and freight), which has ‘its recognized legal incidents, one of which is that the shipper fulfills his obligation when he has put the cargo on board and forwarded to the purchaser a bill of lading and policy of insurance with a credit note for the freight, as explained by Lord Blackburn in Ireland v. Livingston, L. R. 5 H. L. 395, 406’, Ströms Bruks Aktie Bolag v.Hutchison, [1905] A. C. 515, 528. See also, Mee v. McNider, 109 N. Y. 500.”

In the English case of Diamond Alkali Export Corporation v. Bourgeois, L. R. [1921] 3 K. B. 443, plaintiff agreed to sell to Bourgeois of London, England, 50 tons of soda ash for September-October shipment from American seaboard at $4.70 per hundred pounds “c.i.f. Gothenburg.” The terms of payment were cash against documents under confirmed banker’s credit at London. Under this contract the seller tendered, with an invoice for the goods: (a) a document purporting to be a bill of lading in the following form: ‘ ‘ Beceived in apparent good order and condition from D. A. Horan to be transported by the S. S. Anglia, now lying in the port of Philadelphia and bound for Gothenburg, Sweden, with liberty to call at any port or ports in or out of the customary route, or, failing shipment by said steamer, in and upon; a following steamer, 280 bags Dense soda”; and also tendered (b) a certificate of insurance issued by an insurance company of San Francisco, California, which, as the certificate stated, “represents and takes the place of the policy and conveys all the rights of the original policyholder (for the purpose of collecting any loss or claims) as fully as if the property was covered by a special policy direct to the holder of this certificate. ’ ’ It was held that the buyer was entitled to reject upon the ground that proper documents had not been tendered by the seller in conformity with the contract, and upon the grounds, in substance, that document (a) was not a bill of lading, and that document (b) was not a policy of insurance, within the purview of a “c.i.f.” contract of sale. In the opinion of McCardie, J., it is said (p. 448):

‘ ‘ The contract decides the rights of the buyer. The question is not as to the meaning of the phrase in a particular Act of Parliament or as to the possible meaning under other forms of contract. Nor is it material that a buyer objects to the document for ulterior motives: See, for example, Lord Cairns’ judgment in Bowes v. Shand (2 App. Cas. 455, 465, 476), and Lord Hatherley’s judgment in the same case. A buyer, as these noble lords pointed out, is entitled to insist on the letter of his rights. As Lord Hatherley said: ‘If you seek to fasten upon him the engagement, you must first bring him — the buyer — within the four corners of the contract. ’ A buyer, moreover, may have obvious business reasons for so insisting, as he may have to implement his own bargain with rigorous subvendees. Now I consider that the phrase ‘bill of lading’ as used with respect to a c.i.f. contract means a bill of lading in the sense established by a long line of legal decisions. Unless this meaning be given the matter is thrown into confusion.” (p. 454): “Is this certificate a proper policy of insurance within the c.i.f. contract here made? * * * In all the cases a ‘policy of insurance’ is mentioned as an essential document. The law is settled and established. * * * I ventured in Manbre Saccharine Co. v. Corn Products Co., [1919] 1 K. B. 198, to discuss the relevant authorities, including the lucid judgment of At-kin, J., in C. Groom, Ltd. v. Barber, [1915] 1 K. B. 316 —a judgment which I have again most carefully read. It- seems plain that a mere written statement by the sellers that they hold the buyers covered by insurance in respect of a specified policy of insurance is not itself a policy of insurance within a c.i.f. contract: See the Mcmbre Saccharine case. It seems plain also that a broker’s cover note or an ordinary certificate of insurance are not adequate agreements within such a contract: See Bailhache, J., in Wilson, Holgate & Co. v. Belgian Grain & Produce Co., [1920] 2 K. B. 1, 7.”

In the above-mentioned Manbre Saccharine Co. case, also reported in 88 L. J. K. B. (1919) 402, plaintiff, the buyer, sued for damages for breach of a c.i.f. contract to deliver certain goods and recovered a judgment. It was held that the buyer under such a contract was legally entitled to demand a policy of insurance which covered, and covered only, the goods mentioned in the bill of lading and invoice, and that, where the seller sent with the shipping documents a letter stating, “We hereby hold you covered by insurance for the amount of 4,322 pounds sterling, in accordance with the terms of policy of insurance in our possession re shipment Ex. S. S. Algonquin,” the seller had not fulfilled his obligation under the contract. McCardie, J., said (p. 406):

“In my opinion a purchaser under a c.i.f. contract is entitled to demand, as a matter of law, a policy of insurance which covers, and covers only, the goods mentioned in the bills of lading and invoices. This, I think, was settled by the decision of the Court of Appeal * * * in the case of Hickox v. Adams (34 L. T., N. S. 404). Unless the purchaser gets a policy limited to his own interests he would become only one of those who are interested in the insurance, and he is entitled, in my view, to refuse to occupy a position which may give rise to obvious complications. See, per Turner, L. J., in Ralli v. Universal Marine Ins. Co. (31 L. J. Ch. 318; 4 De G., F. & J. 15). I should have dealt with the above points in a few words only, but for the fact that counsel for the defendants boldly and vigorously argued that a vendor’s duty under a c.i.f. contract, whatever it may have been in former times# had been modified by recent practice amongst insurance men. It may be that the requirements of a c.i.f. contract can be altered by generally established custom. For, inasmuch as the meaning of such a contract was created by custom, it may likewise, I presume, be altered by custom. But the evidence of a modifying custom must be clear indeed ere the well-known incidents of such a bargain as a c.i.f. contract can be changed. ’ ’

In the above-mentioned Wilson, Holgate & Co. case (also reported in 89 L. J. K. B., 1920, p. 300), plaintiffs sued for the price of, or, alternatively, for damages for the nonacceptance by defendants of 300 tons of Brazilian manioc starch. By the contract in writing plaintiffs sold the starch at 105 pounds sterling per ton, “c.i.f. Havre,” to be shipped from Brazil November-December, 1918, “and/or January, 1919,” payment “net cash in London against shipping documents,” on arrival of goods at port of discharge. (In the contract in the present case one of the provisions is “Payment: On arrival and inspection of the goods.”) On February 3, 1919, the starch arrived at Havre, and on February 5 plaintiffs tendered to defendants shipping documents and claimed the price. Defendants, however, refused to pay on the ground, inter alia, that the documents were not in order, as they did not include a policy of insurance on the goods, but instead a broker’s cover note or certificate of insurance. In giving judgment for defendants, Bailhache, J., in his opinion, said (pp. 300-1) :

“I am about to deliver a judgment which * * * I am almost ashamed to deliver, because I am going to give effect to an objection so technical that I think commercial men might well complain that effect is given to it in a commercial court. But, to my mind, I am bound to do it. * * * The only question for my decision is whether there was an effective legal tender of the documents to the defendants. It has been settled for nearly fifty years that under a c.i.f. contract the documents which must be tendered are a bill of lading, an invoice and a policy of insurance. That was laid down in Ireland v. Livingston in 1872. In the present case evidence has been given that it is the common practice, nowadays, instead of tendering a policy of insurance, to tender a broker’s cover-note or a certificate of insurance. A certificate of insurance is usually, but not always, used in a case where the seller has an open or a floating policy upon other goods or goods to a larger extent than those which are the subject-matter of the sale, and a certificate of insurance is used to show that the goods, the subject-matter of a particular sale, are. covered by an open or a floating policy for a larger amount. The evidence is that these brokers’ cover-notes and the certificates of insurance as issued by brokers in this country are constantly accepted by buyers and taken by them in place of policies of insurance. * * * I am not satisfied that any custom has arisen since Ireland v. Livingston was decided, which obviates the necessity for a seller tendering a policy of insurance if the buyer requires it. There are obvious differences between the buyer’s position under a policy of insurance and his position under a broker’s cover-note or a certificate of insurance. * * * Under a policy of insurance, which deals, as it should do, with the buyer’s own contractual goods, and with nobody else’s, a buyer has a direct right of action under the underwriters to the policy. Under a broker’s cover-note he has no right of action, so far as I can see, against anybody. * * * The same thing applies to the certificate of insurance. * * * In my judgment, it has not been proved to me that the buyer was bound to take under a e.i.f. contract anything other than a policy of insurance relating to the goods which are the subject-matter of his own contract of sale, and not to any other goods at all.”

In the case of Orient Co., Ltd. v. Brekke & Howlid, [1913] 1 K. B. 531, also reported in 82 L. J. K. B. (1913), p. 427, plaintiffs agreed to sell to defendants 20 cases of French walnuts, “e.i.f. to Hull,” on the terms “30 days net.” The walnuts were shipped under a bill of lading, which was sent together with an invoice to defendants, but plaintiffs did not tender to defendants a policy of insurance. They had not in fact effected any insurance on the goods, which finally arrived at Hull, though sometime after the date at which in the ordinary course they would have arrived. Defendants refused to accept them because no insurance policy was tendered with the documents, and plaintiffs sued to recover the agreed price, and judgment was rendered in their favor in the trial court. On appeal this judgment was reversed and judgment in favor of defendants entered. Plaintiffs argued in substance that, the goods having arrived safely, the facts that they were not insured against the perils of the sea, etc., and a policy not tendered to defendants with the shipping documents, were immaterial and of no importance, but the Appellate Court held that the goods had not been delivered in accordance with the “c.i.f.” contract and that plaintiffs could not recover. Lush, J., said (p. 430): “I have come to the conclusion * * * that the plaintiffs have never discharged the obligation which was upon them of proving the complete delivery of the goods, the proof of which was essential to their success in the maintenance of this action.” (Citing and discussing the decision in the case of Biddell Bros. v. E. Clemens Horst Co., [1911] 1 K. B. 214, reversed in the Court of Appeal, [1911] 1 K. B. 934, but restored in the House of Lords, [1912] A. C. 18.)

In the English case of Re Denbigh, Cowan & Co. and R. Atcherley & Co., decided by the Court of Appeals in 1921, and reported in 125 Law Times Reports, New Series, at page 388, the judgment of Rowlatt, J., in the lower court in favor of the sellers was reversed. By the “c.i.f.” contract between the parties the sellers sold to the buyers certain tapioca to be shipped at Java for Liverpool, “to be taken on c.i.f. terms, net landing weights, war risk included.” It was provided in clause 5 of the contract: “Payment cash (before delivery, if required) against documents or delivery order, less usual rebate, but not later than arrival of vessel or vessels.” When the tapioca arrived in Liverpool the sellers tendered to the buyers a delivery order, but no insurance policy, and the buyers refused to take delivery of the goods without a policy of insurance, contending that, the contract being on ‘ ‘ c.i.f. ’ ’ terms, they were accordingly entitled to a policy as well as a delivery order. It appears from the several opinions of the three judges that the court held in substance (a) that the usual documents required by a “c.i.f.” contract are a bill of lading, a policy of insurance and an invoice; (b) that when the parties agree that goods are to be taken on “c.i.f.” terms, if it is desired to substitute something different the intention must be expressed in clear language; (c) that a delivery order cannot be tendered in lieu of any of the usual documents except by express stipulation to that effect in the contract; (d) even though the parties incorporate in their contract a specific provision that payment is to be made “against documents or delivery order,” the sellers, if they tender a delivery order, must tender also a policy of insurance and an invoice; and (e) that, no policy of insurance on the tapioca having been tendered, the buyers were entitled to refuse to take delivery thereof.

In the present case, by the ‘ ‘ c.i.f. ’ ’ contract of February 12, 1920, the defendant did not agree that it would accept any delivery order for the rice in lieu of the usual bill of lading, or that it would accept any letter of guaranty as to the insurance, or insurance certificate, in lieu of the usual policy of insurance; and plaintiff did not tender either a bill of lading or an insurance policy for the particular 100 tons of rice contracted to be sold to defendant. Furthermore, it does not appear that the bags containing the rice were marked “S.A.C.” (Swift & Company) or that the shipping documents were mailed “direct to Swift & Company, Havana,” as provided in the contract. And while it appears that a commercial invoice for the rice, at the price agreed upon (to which was added an amount for a banker’s commission), was tendered to defendant, it does not appear that a so-called ‘ ‘ consular” invoice was tendered, as provided by article 98 of the Customs Regulations for ports in the Island of Cuba, introduced in evidence, the possession of which invoice, in addition to a bill of lading or delivery order, was necessary to “clear” the goods.

In view of the above-mentioned authorities in England and in this country, and it appearing that the law in the Republic of Cuba relative to “c.i.f.” contracts is in substantial accord therewith, and in view of the facts of the present case, as outlined in the above statement of facts, we are of the opinion that defendant was fully justified in its refusal to pay the draft or accept the documents tendered or accept delivery of the 100 tons of rice, and that plaintiff, not having performed the conditions of the said “c.i.f.” contract on its part to be performed, cannot recover any damages from defendant in this action because of such refusal. Furthermore, plaintiff, in its statement of claim, pleaded substantial performance of the conditions of the contract on its part and did not allege a waiver of any of them by defendant, and in such case it is the general law that a plaintiff must prove such performance or an offer to properly perform before he can recover damages. (Gould’s Pl., 5th Ed., p. 67; 2 Encyc. Pl. & Pr. p. 999; Songer v. Lynch, 72 Ill. 498, 499; Expanded Metal Fireproofing Co. v. Boyce, 233 Ill. 284, 287, 289; Walsh v. North American Cold Storage Co., 260 Ill. 322, 331.)

Counsel for plaintiff here contends in substance that the contract of February 12, 1920, should not be construed as a “c.i.f.” contract, because the words “Payment: On arrival and inspection of the goods,” are inconsistent and repugnant to the words “We confirm our purchase of yesterday: 100 tons Siam Usual Bice #1 at $12.50 per 100#, c.i.f. Havana. ’ ’ We are unable to agree with the contention. (Harper v. Hochstim, 278 Fed. 102, above cited; Orient Co., Ltd. v. Brekke & Howlid, 82 L. J. K. B., 1913, p. 427, above cited; Arnhold Karberg & Co. v. Blythe, Green, Jourdain & Co. [1916], 1 K. B. 495, also reported in 85 L. J. K. B., 1916, p. 665.) In the Harper case it appears that Balph Harper & Company, a copartnership at Tientsin, China, entered into a written contract at New York in February, 1920, with Hochstim & Bossak, a copartnership at New York, for the sale by the former to the latter of about 30,000 Shantung weasel skins. It was provided in the contract: “Shipments from China per steamer direct or indirect to New York during March and/or April. Price: $2.45 each c.i.f. New York. Import duty, if any, to be paid by the buyer. Payment: Four m/s confirmed banker’s letter of credit $73,500 to be opened by the buyer in favor of and to be approved by the seller. * * * In case of a c.i.f sale and the goods are damaged while in transit, the buyer agrees to accept in settlement thereof the same percentage of allowance as the seller may secure from the insurers by way of settlement of recovery.” The sellers (plaintiffs) never shipped any weasel skins under the contract, but on June 25 obtained in New York 10,000 skins of the kind contracted for and tendered them to the buyers, who refused them. The sellers then commenced the action for damages, alleging in their complaint as a breach of the contract the refusal of the buyers to accept the skins tendered, and their refusal to accept any skins so obtained in New York, and also alleging that the skins tendered had been shipped from China (though not by them) to New York, via Seattle, and that they “would and could have obtained and delivered to defendants” the remaining skins “within the reasonable time for delivery in New York of March or April shipments by steamer from China,” and further alleging that the skins actually tendered “were insured in the amount and against the risks usual in an ordinary c.i.f. contract under a policy payable to the plaintiffs.” To the complaint the buyers (defendants) demurred on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained in the trial court and defendants had judgment, which judgment was affirmed by the U. S. Circuit Court of Appeals for the Second Circuit. The court, after making the statements quoted earlier in this opinion, further said (278 Fed. 104):

“This question of construction is one of general law, if not general commercial law, and unaffected by any statute of New York, especially the Sales of Goods Act * * * even assuming that the place of execution of agreement furnishes the law of the contract. That the Sales Act left c.i.f. contracts_ ‘ as before’ was specifically held in Smith Co. v. Moscahlades, 193 N. Y. App. Div. 126, 183 N. Y. Supp. 500.

“We are thus required to construe or interpret a commercial or mercantile agreement partly written and partly printed, wherein at the very beginning it is written that the price is to be ‘c.i.f. New York,’ and the shipment from China; but later follow printed words plainly implying that the seller is not only to procure insurance, but collect from the insurers, and therefore suggesting that such insurance would naturally be in the seller’s name. It is urged that this latter proviso is so repugnant to the nature of a c.i.f. contract as to transform it into something else, and justify a tender of goods in New York, instead of a delivery of documents by mailing in China.

“It cannot be doubted that it is only when parts of a written agreement are so radically repugnant that ‘ there is no rational interpretation that will render them effective and accordant that any part must perish. ’ (Rushing v. Manhattan Life Ins. Co., 224 Fed. 74, 139 C. C. A. 520.) * * *

“But a dependence upon rules, which, detached from the circumstances surrounding and justifying their formulation, often seem arbitrary, is unsatisfactory; every rule should be one of reason. Here the first and reasonable inquiry is: What is the dominant or leading thought revealed by this writing, read with the eye of experience? Plainly that seller was to ship the furs and send the documents ahead by mail, so that buyer could, if he wanted, sell the goods again ‘to arrive.’ That is a c.i.f. contract. Therefore the parties intended to make that sort of agreement, and the ‘rules’ are resorted to to effect their intent.

“This is the fundamental guide in construction; it is well put (with an extreme application thereof) in Morrill & Whiton Const. Co. v. Boston, 186 Mass. 217, by saying that, where ‘a repugnancy is found between clauses, the one which essentially requires something to be.done to effect the general purpose of the contract itself is entitled to greater consideration than the other which tends to defeat a full performance; and the repugnant words may be rejected in favor of a construction ivhich makes effectual the evident purpose of the entire instrument. ’

“The evident purpose of this agreement was to give the buyer substantially what a c.i.f. sale would have given him; the seller never even attempted to put the buyer in that desired and agreed upon position, and the decision below was right, because the contract was of the kind known as c.i.f. Judgment affirmed, with costs.”

In the light of these rules of construction, we do not think, as to the contract in the present case, that there is any inconsistency or repugnancy between its provision “C.I.F. Havana” and its provision“Payment: On arrival and inspection of the goods.” The case of Orient Co., Ltd. v. Brekke & Howlid, supra, is in point, wherein the plaintiffs contracted with the defendants for the sale of 20 cases of French walnuts, “c.i.f. to Hull,” payment to be made 30 days after arrival. The clauses in that contract and in the .contract in the present case are substantially the same. In both the goods were sold on “c.i.f.” terms. In the Orient Co. case the buyer had the right to inspect before payment, because payment was not to be made until 30 days after the goods had arrived. In the present case, payment was to be made on “arrival mid inspection” of the goods. In both the buyer had the right to inspect before payment. In the Orient Co. case it was held that the seller could not recover because, as in the present case, no insurance policy on the goods contracted for was tendered with the documents and, hence, there had not been a delivery of the goods in accordance with the “c.i.f.” contract. The case of Arnhold Karberg & Co. v. Blythe, Green, Jourdain & Co., supra, is also in point, where there was sold on “c.i.f.” terms, as stated in the judgment of the trial judge, “a quantity of grain, with a liberty to vary it within limits, to be shipped at a time specified, and place specified, at a price specified, with allowance for foreign substances to be ascertained at the port of discharge.” The contract was construed to be a “c.i.f.” contract, notwithstanding the fact that the quantity sold could not be ascertained until the goods had been inspected for foreign substances at said port.

Plaintiff’s counsel makes the further contention in substance that, the time of payment being fixed, “on arrival and inspection of the goods,” inspection and acceptance of the rice by defendant was a condition precedent to the passing of the title to the rice. The real question for determination in the present case, as we see it, is, whether, under the “c.i.f.” contract sued upon, defendant under the facts in evidence and under the law was justified in its refusal to accept the tendered documents and the goods. If defendant was so justified, and we think it was, plaintiff cannot recover any sum as damages in this action. And we do not think that a discussion of counsel’s last-mentioned contention is material or necessary for a determination of the issues involved.

Various other points are urged hy counsel for defendant as grounds for a reversal of the judgment. They relate mainly to the excessive amount of the verdict and to certain rulings of the trial court, claimed to be erroneous, but, in view of our holdings, a discussion of them is unnecessary.

Our conclusion is that the judgment of the municipal court should be reversed, and it is so ordered.

Reversed with finding of facts.