Be Careful Where You Put Your Commas

[major_clanger]

In Osmium Shipping v Cargill the High Court has ruled that the placement of a comma was crucial in deciding whether or not seizure by pirates fell within a crucial clause of the shipping contract*.

The clause provided that if the vessel should “be put back whilst on voyage by reason of any accident or breakdown, … or capture/seizure, or detention or threatened detention by any authority including arrest, the hire shall be suspended”.

The Charterers said that 'capture/seizure' stood alone as one of a number of events that would suspend hire. The Owners said that it was qualified by the 'any authority' wording afterwards, and that as Somalian pirates were not any sort of authority, the clause had not come into effect.

Not surprisingly, when the matter went to arbitration it was held that the Charterers' interpretation was correct, and on appeal to the High Court Mr Justice Cooke agreed. This sort of thing is why I am sympathetic to my friend T's views (based on his experience as a programmer) that laws and legal documents ought to adopt a structured programming approach and clearly indicate by their layout which parts apply to what. I often have to draft Orders of Court recording decisions or agreements regarding matters such as child contact with separated parents, and it can take a lot of care and sub-paragraphs to ensure that what you end up with is clear and unambiguous.

The full judgment is here, with the relevant discussion being at paragraphs 16 onwards. However, I must note the mention at paragraph 6 of Clause 16 of the contract:

"…The act of God, enemies, fire, restraint of Princes, Rulers and People, and all dangers and accidents of the Seas, Rivers, Machinery, Boilers and Steam Navigation, and errors of Navigation throughout this Charter Party, always mutually excepted."

I rather suspect that clause was drafted quite a long time ago and may have been copied as standard wording since the days of, oh, Queen Victoria?



* Yes, I know the correct term is 'charterparty', but I assume that most of my friends haven't done a module in shipping law.

Comments

[legionseagle]

I assume that most of my friends haven't done a module in shipping law.

A-hem. "International Trade" at Oxford - taught by pretty much the entire editorial board of Chitty of Contracts, from what I could tell - was pretty much a module in advanced shipping.

And, incidentally, I think a lot too much fuss is made about commas. Even without the comma, it seems clear to me that "capture/seizure" has to be construed against redundancy, and that the only reasonable meaning to give it which adds to "detention/arrest" is that one is a lawful detention and the other is not.

[major_clanger]

Yes; when you look at the entire clause, it's very clearly setting out a set of conditions and it would take a strained construction, comma or not, to concatenate 'capture/seizure' with the subsequent one.

I took the shipping law module on the BVC in part because it was relevant to many other areas of international trade, but also because it was not an area of law I was likely to pick up in the normal course of pupillage or early practice. It was quite fun, and I'm glad I did it, although I have yet to see anything resembling a CIF contract or Bill or Lading, or apply the Carriage of Goods by Sea Act 1971. Which is a pity, as a canal runs right underneath my flat...

[legionseagle]

I was enormously assisted by having, in my relatively formative years, a secretary who had spent 15 years working in the London Rubber Company's despatch office, so she knew everything worth knowing about the practical application of LoCs, Incoterms etc. It started to come in very useful in counterfeiting cases (for example, if someone dispatches counterfeit product from a country where enforcement is iffy it can be crucially important whether they did it ex works, fob, or DDP to the question of whether they've committed an act of infringment in the jurisdiction ).

[perlmonger]

I agree with T: I continue to be astonished at the paucity of parentheses in legal documents; ambiguity could be removed (and legal fees reduced significantly) by redrafting all legislation in LISP.

[legionseagle]

Programmers always say this; I had an ex who thought that things should be written in C (admittedly, I had just confronted him with the RTPA 1976, which had an example of the world's most perfect logical loops in its drafting).

When programmers realise what it would take to have each software drop go through two houses of Parliament and committee on each iteration of bug-testing, it might be a feasible proposition.

[major_clanger]

On the basis of my own, very limited, experience of legislative drafting I am fully inclined to agree with the remarks often attributed to Bismarck.

[legionseagle]

Oh, God, yes. The real problems seem to me to stem from the following:

a) Tunnel vision; that is, identifying a problem, deciding that the law must catch every single instance of this problem which appears in future, not working out what else you'll catch if you apply that approach to drafting.
b) Not respecting the professionals on the team; ie ditching things parliamentary draughters have put in for good technical reasons in pursuit of some chimaera of "plain English".
c) The need for MPs to be seen to have made a mark; interference from committee members just, apparently, for the sake of it.

[multiclassgeek.livejournal.com]

I'm just wondering how they'd mark up the comments when code-ifying (sorry) in LEGAL

[coth.livejournal.com]

Agreed. But noting that you can make the clauses as clear and unambiguous as you like inside the frame of your conversation, but you can't control how it will be read outside of that frame, and you can't prevent it being misread and/or ignored!

On a related point, I once showed by CV to a non-technical person, who handed it back with the comment that she did not understand any of the (industry- and role- specific) jargon and I should rewrite it without. Which if I had done would of course guaranteed I would not get interviews for any of the jobs it was written to get.

[hairyears.livejournal.com]

Hmmm... I wonder which of those Victorian clauses is applicable to software failure, or DDOS attack by a botnet.

[davidwake.livejournal.com]

I'm editing an anthology at the moment and I've just had an email about a comma.

[pauldormer.livejournal.com]

Was a Mr Albert Haddock involved?

Didn't it use to be the case that some legal documents had to be drafted without commas, because they were printed/typed on low quality paper, and you didn't want a blemish being mistaken for a comma.

[owlfish]

Wills appear to be comma-free in England. At least, in my limited experience of them.

[ffutures.livejournal.com]

In Paul Gallico's The Adventures of Hiram Halliday the hero (a sub-editor I think) earns the gratitude of the newspaper's proprietor by inserting one comma into a story, which results in the failure of a big lawsuit against the paper. For his reward hero asks to be sent to Europe as a roving reporter, which drives the rest of the plot.

[ffutures.livejournal.com]

http://en.wikipedia.org/wiki/The_Adventures_of_Hiram_Holliday

Apparently it was made into a TV series, which I never knew. Very pleased to see I remembered the McGuffin correctly.

[pauldormer.livejournal.com]

I remember that TV series well. Or I well remember I enjoyed the series. On the BBC 1960-61, I see from that article, so I would have been 7. Had the hero in a suit of armour duelling using a rolled umbrella as a sword in the opening credits, I think.

[sesquipedality.livejournal.com]

I cannot for the life of me understand why Paul Gallico is largely forgotten today. He is, in my view, one of the finest writers of the 20th Century.

[handslive.livejournal.com]

I would say that the trick is not in the structure of the text, but in the parsing and compilation of it. From my software testing days, I had a very long argument with a programmer who felt his code should pass testing because the code walkthrough hadn't identified any bugs. The problem identified in testing was of the form:


if (some_comparison)
perform(step);
perform_another(step);


Instead of:


if (some_comparison) {
perform(step);
perform_another(step);
}


The eye is so easily fooled by so many things.

[dorispossum.livejournal.com]

Back in my legal secretary days, I recall the practice was to ban commas entirely from legal documents. Conjunctions were assigned all the work of connecting or distinguishing items in a contract, and the only punctuation allowed was the full stop. But that was the 1980s. Maybe the comma has been rehabilitated since then?

[sesquipedality.livejournal.com]

This is why I am a bit fan of ordered lists in legal drafting.