UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 lTheCARSWEUCO.1 
 
 V;BI=^TBrB00EB,KI>F.-.ET0.- 
 
 TORONTO, tail.
 
 
 . y 
 
 • UEP'T." 
 
 A TREATISE 
 
 OX Tin: LAW OF 
 
 BILLS OF LADING, 
 
 BY 
 
 EUGENE LEGGETT, 
 soltcitot; and notary prnLir 
 
 SECOJVD EDITIOA''. 
 
 LONDON : 
 
 STEVENS & SONS. Ltd.. ll!» Chancery Lane. W. C. 
 
 CALCUTTA :— Thaokek. Spink el Co. 
 
 BOMBAY— Thackeu ct Co.. Ld. 
 
 1893.
 
 T 
 
 L_ 55 45' Jo 
 
 PRTNTKB AT TTIE "MERCANTILE" PRESS, 
 
 ELPHINSTONE STREET, CAMP, 
 
 KURRACHEE, 

 
 3 
 I 
 
 \ 
 
 F 
 
 rUEFACE 
 
 TO THE SECOND EDITION. 
 
 TuE unavoidable delay "wliicli has taken place in 
 responding to the many requests which have been 
 made for a second edition of my Treatise on the 
 Law of Bills of Lading, is attriljutahle in a great 
 measure to circumstances entirely beyond my 
 control. Moreover, whilst the insertion or rejection 
 of many important stipulations and conditions, and, 
 in fact, the very form of the Bill of Lading itself, 
 were being actively discussed, not only by Chambers 
 at llome, but also by the Colonial and Indian 
 Chambers of Commerce, and by Continental 
 Congresses, it was not improbable that some radical 
 change might be effected which would materially 
 interfere with the lines upon which my Treatise 
 was based. However sceptical I may have been as 
 to such a result occurring, I hesitated, imtil further 
 delay in my opinion was useless. This delay, 
 however, has enabled me to avail myself of many 
 important decisions of the Ilouse of Lords wliicli 
 have finally settled the law regarding several 
 questions upon which much diversity of opinion 
 had previously existed. 
 
 The favourable reception my work has met with 
 has induced me to adhere as nearly as possible to 
 the original system and method of the work, Avliieh
 
 IV rREPACE TO THE SECOND EDITION. 
 
 has been carefully revised and brought up to date, 
 and though, comparatively, but few changes have 
 actually been effected in the law relating to bills of 
 lading during the past few years, doubts and 
 uncertainties on many points, are now set at rest 
 by the recent decisions of our Courts. Some of the 
 judgments of the Lords in these cases have so clearly 
 and satisfactorily exjilained the law, that I have 
 cited them in extenso, believing that by so doing, 
 they will be of much greater practical use both to 
 the profession and to those interested in Mercantile 
 and Maritime matters, than bv 2:ivin2,- brief extracts 
 from the same. 
 
 I have again to tender my acknowledgments to 
 those gentlemen who have furnished me with copies 
 of the various forms of bills of lading, as well as 
 with much valuable information on the subject of 
 this work. Several of these forms have been selected 
 as best representing the contracts entered into in 
 the principal Steam Ship Lines and trades. 
 
 An examination of these forms will serve to show 
 the continual and varying changes which bills of 
 lading are undergoing at the hands of shipowners 
 in order to keep pace ^\\{h the decisions of our 
 Courts. 
 
 I have received material assistance in the prepara- 
 tion of the Table of Cases and general revision of 
 tliis ^\'ork , from my ison Sidney P. Leggett, of the 
 Middle Temple, Barrister-at-la^v. 
 
 i:Jth June 1893.
 
 PREFACE 
 
 TO THE FIRST EDITION. 
 
 Or all commercial documents Avitli Avhicli we arc 
 acquainted, none, prohaLly, is more familiar than 
 the Bill of Lading- ; hut, owing to the numerous 
 chano'cs and additions Avhich have of late years 
 heen made to this instrument, the difficulty of 
 interpretiug its clauses and stipulations, and of 
 ascertaining the rights and liahilities of the parties 
 to it, has much increased. 
 
 The standard Avorks on Shipping Laws all treat 
 more or less of such rights and liahilities, hut in so 
 U'eneral a manner as to render it difficult, even for 
 those possessing such works, to determine what is 
 the legal effect of the different clauses and stipula- 
 tions in the modern Bill of Lading. 
 
 It is endeavoured in the present a\ ork to compre- 
 hend the various principles and cases hy which 
 the construction of the Bill of Lading must he 
 governed, and so to make it of practical utility to 
 all interested in the suhject. It does not purport 
 to he more than a handy-hook for easy reference on 
 the seA'cral hranchcs of law intimately connected 
 with the Bill of Lading, an acquaintance with the 
 principles of which cannot fail to he of value alike 
 tu the owners and agents of vessels engaged or
 
 Xi PREFACE TO THE FIRST EDITION. 
 
 iutercstctl in the various trade routes, as well as to 
 the merchaut and the ship-master. It is hoped it 
 may also prove acceptable, and be of service, to the 
 legal practitioner. 
 
 In tlie Appendices Avill bo found forms of Bills 
 of Lading, carefully selected from a large number, 
 representing almost every trade throughout the 
 commercial world. For these the author is indebted 
 to the kindness and courtesy of the several 
 Secretaries of the Ship-owners' Associations, Cham- 
 bers of Commerce, and Agents of the various Ship 
 and Steam-sliip Companies in England as well as 
 in India.
 
 CONTENTS. 
 
 PAGE 
 
 List of Abbreviations. 
 Table of Cases cited. 
 
 PART I. 
 The nature of a Bill of Lading and its legal incidents. 
 
 A bill of lading and its nature ... 
 Applies from time goods ave sliipixnl 
 
 Operation of 
 
 Date 
 
 Form of 
 
 Stamji on 
 
 Copies need not be stamped 
 StamiJ by whom j)ayable . . . 
 Bills of lading in sets 
 
 Mate's receipts 
 
 Assignment of 
 
 Bills of lading sliould be signed only on production of the 
 
 mate's receipts 
 
 Master is bound to sign bills of 1 ading 
 
 Master to sign bills of lading as presented 
 
 Course where master refuses to sign 
 
 Etfeet of signing bills of lading per proeurati(m 
 
 Title to bill of lading 
 
 Master's right to a copy of bill of lading . . 
 
 Effect of master, who is also charterer, signing bills of lading. 
 
 Master cannot legally sign two sets of bills of lading for the 
 
 same goods 
 Master cannot legally sign bills of lading for goods not on 
 
 board 
 
 1 
 2 
 
 4 
 4 
 
 8 
 10 
 11 
 11 
 14 
 IG 
 
 IG 
 19 
 20 
 
 .10 
 
 2t) 
 
 28 
 29 
 
 30 
 
 3-^
 
 Vin CONTP.NTft, 
 
 PA.riK 
 
 Shippers liability in not piVRontinp; bills of ladinj::; for sig-na- 
 
 tnve '^^ 
 
 When bill of ladiug is revocable ... ... ... ... . . •>•> 
 
 Goods shipped by mistake on wrong vessel and lost oS 
 
 An intending shipper is not bound to inquire whether the 
 
 ship is chartered .. . ... ... ... ... ... ■■• 38 
 
 Owner's liability when ship is chartered 40 
 
 Personal liability of party signing bills of lading 44 
 
 Effect of bill of lading as evidence 54 
 
 Bill of lading in hands of consignee or indorsee for value ... 58 
 Ship's agents cannot bind owner or charterer for greater 
 
 quantity than shipped 6- 
 
 E\idence of usage and custom admissible to determine effect 
 
 of bill of lading C>^ 
 
 Sale of ship does not affect bills of lading signed before 
 
 notice thereof 6G 
 
 On arrival the master must deliver bill of lading to the 
 
 Cxistoms' Collector *^''' 
 
 Measure of damages for unreasonable detention of goods ... G7 
 
 Limitation ... ... ... ... .•• ••■ ••• ••• 83 
 
 PART II. 
 
 Through Bill of Lading 87 
 
 English Carriers' Act. 1 Wm. IV. Cap. LXVIII 124 
 
 Indian Carriers' Act, III of 1865 128 
 
 PART III. 
 
 The legal effect of the several Clat7se.s and Stipulations 
 IN the Bill of Lading. 
 
 Introduction 131 
 
 Law of the Flag 136 
 
 Shipped ... ... ... ... . . ... ■•■ ••• 139 
 
 In good oi'der and condition ... ... ... ... .•■ 144 
 
 By A. B. (the shlpperi 149
 
 PAGE 
 
 On board ; in or upon . 151 
 
 Ship; Stcam-sliip . 153 
 
 Name of ship ... ... ... ... ... . 150 
 
 Wlievoof (A. B.) is iiiastov for till' proRt-nt voy:ip;o I'JO 
 
 Lyiui^ ill tlio port <>i' ; Lyin^' in or oil' ; Now ridiiin' at aiidior in li'<2 
 
 Safe port .103 
 
 AntI liound fur ... 109 
 
 And_ ■) jyo 
 Or i 
 
 Via the Snez Canal 173 
 
 Extracts from tlie Regulations for the Navigation of the 
 
 Suez Maritime Canal 179 
 
 Or so near thereunto as she might safely get 182 
 
 Calling at intermediate ports .191 
 
 To sail with or without pilot -06 
 
 And to tuw and assist vessels in all situations of distress ... 210 
 
 Being marked and numbered as per margin 225 
 
 And to be delivered, subject to the exceptions and conditions 
 
 hereinafter contained --^2 
 
 In the like good order and condition 232 
 
 From the ship's deck, when the ship's responsibility sliall 
 
 cease 2-tn 
 
 From the ship's tackh' 241 
 
 AtL 247 
 
 To A. B. or order or assigns 248 
 
 He or they paying freight for the saiii.' 252 
 
 Freight . , '-55 
 
 Dead freight 256 
 
 Lump freight 257 
 
 When freight becomes payable 200 
 
 Cases in which it has been held freight is not payable ... 272 
 
 Freight how calculated -'^ 
 
 By and to whom freight is payable "288 
 
 The effect of freight being made payable in a particular 
 
 manner 
 When the owner is estopped l>y the rate of freight mentioned 
 
 in the bill of lading 292 
 
 Primage and average accustomed ... . . ... 2i'3 
 
 Ship lost or not lost 29 
 
 291 
 
 OQJ
 
 f'oXTr\'TS. 
 
 Conditions as por cliartev-party 
 
 Demurrage ... 
 
 Act of God ... ... 
 
 The Queen's enemies 
 
 Pirates, Rovers 
 
 Robbers 
 
 Thieves 
 
 Resti-aint of Princes, Rulers, or People 
 
 People... 
 
 Strikes 
 
 Bai'ratry of master and mariners 
 Loss or damage from luaeliinery .. 
 Boilers, steam 
 
 Fire 
 
 Sweat ... 
 
 Petroleiim damage ... 
 
 Heat 
 
 Goods cari-ied on deck are solely at tlie merchant's risk 
 
 Jettison 
 
 General Average 
 
 Particiilar Average 
 
 Place and time of Adjustment 
 
 Various cases of transhiijment 
 
 Case 1 — Cargo forwarded under original contract 
 Case 2 — Cargo forwarded under shipowner's lien 
 Case 3 — Cargo forwarded by cargo owner 
 
 Security for Average Contribution 
 
 Items of expenses chargeable to general average 
 
 Rules of Association of Average Adjusters 
 
 Average to be adjusted according to York-Antwerp Rules 
 
 York-Antwerp Rules 
 
 Rats, vermin... 
 Coal-dust 
 
 Not accountable for short delivery 
 
 Letters of Mar( ^ue 
 
 Collision 
 
 Transhipment ; Reshipment 
 
 Risk of boats so far as shij)s are liable tliereto 
 Rust 
 
 PAGE 
 3UG 
 313 
 329 
 332 
 332 
 334 
 334 
 340 
 345 
 346 
 348 
 354 
 360 
 362 
 364 
 369 
 371 
 377 
 383 
 395 
 396 
 396 
 398 
 398 
 399 
 400 
 403 
 405 
 405 
 406 
 407 
 413 
 415 
 417 
 418 
 421 
 428 
 434 
 437
 
 CONTENTS. 
 
 XI 
 
 Leukago ;iud ljrcuk;i;j,'o 
 
 Decay, corruptiou, iulieront detcnoi'ati<jn 
 
 Loss arising from injurious effects of other goods 
 
 Dangerous goods 
 
 36 & 37 Vict., c. 85 ' 
 
 46 & 47 Vict., c. 3 
 
 Neglect of master, pilot, or crew... 
 Dangers and perils of the sea 
 Oblitei'ation of mai-ks 
 Insufficient packing, wear and tear 
 Bursting of bags 
 
 Gold, silver, bullion, &c 
 
 Loss of, or injury to, horses or cattle, &.c. 
 
 Cargo may be landed and warehoused, if not taken delivery 
 
 of within a reasonable time after arrival 
 
 Blockade 
 
 Quarantine; Praticpie 
 
 Lien ... 
 
 Bill uf Lading to be gi\'en up before delivery of the cargo i 
 
 granted 
 One bill being executed, others void 
 Right and true delivery ... 
 Customary delivery... 
 
 Claims for damage must be made Avithin a specified j)eriod.. 
 Weight, quality, contents, and value unknown 
 Bottomry 
 
 l-AGE 
 
 438 
 4t2 
 447 
 451 
 454 
 455 
 456 
 474 
 490 
 496 
 502 
 505 
 513 
 
 518 
 534 
 537 
 544 
 
 561 
 565 
 586 
 587 
 592 
 594 
 603 
 
 PART IV. 
 
 The eights and liabilities op the several parties under 
 THE Bill of Lading. 
 
 Effect of 18 A: 19 Vict., cap. Ill till 
 
 Delivery under contract ... ... ... ... ... ... lil2 
 
 Assignment of goods without transfer of the bill of lading ... 613 
 Original shipper's rights conferred to consignee by vesting 
 
 of the property 615
 
 Xll 
 
 CONTENTS. 
 
 Wheu the iudovsemeut cloos not transfer tlie property, tlie 
 
 consignee coutinnes liable for freight 
 
 Implied promise to pay freight 
 
 All rights of a consignor may be passed by indorsement 
 
 Intention of Statnte 
 
 To render an indorsee liable, he must be the holder of th 
 
 bill of lading 
 Indorsement of bill of lading 
 Holder without notice not affected l^y conditions 
 Indorsement to recover previous advances 
 Conditional intention to pass property ... 
 Shipper may attach conditions to the shipment 
 Indorseuient does not pass the pi-operty in the goods to 
 
 mere agent of the shipper 
 Where the consignee has no property in the goods, action f ( 
 
 damages must Ije l)rouglit in the name of the consignor . 
 Right ONvner to sue in toi't 
 
 24 Vict., 1861, c. 10, s. G 
 
 Agent can transfer the property in the goods by indorse 
 
 ment for valuable consideration 
 Indian Contract Act, IX. of 1872, s.s. 99-100 
 
 PAGE 
 
 618 
 622 
 626 
 626 
 
 627 
 620 
 631 
 633 
 635 
 639 
 
 614 
 
 61.3 
 610 
 617 
 
 618 
 656 
 
 APPENDICES. 
 
 Statute 18 A; 19 Viet.. 1855, cap. cxi. ... 
 Bills of Lading Act. No. IX. of 1856 , . . 
 Statute 39 &. 40 Vict., cap. xxxvi., s. 52 
 
 25 & 26 Vict., cap. 63, s. 54 
 
 Factors' Act, 1889, (52 & 53 Vict., cap. 15) 
 
 Forms of Bills of Lading 
 
 Index 
 
 
 661 
 
 
 . 663 
 
 
 665 
 
 
 666 
 
 
 667
 
 LIST OF ABBREVIATIONS. 
 
 Al'ijott on Sli. .. 
 
 Ad. SiE 
 
 Acl. iE. N. S. ... 
 
 Al.i. 
 
 Aug. on Car. 
 
 Arn. 
 
 Arnoukl on M. 1 . 
 
 Asp. Mar. L. Ca . 
 
 Atk. on Sh. 
 
 Baker on Qua)'. 
 
 B. v^ Acl 
 
 B. ctAlcl 
 
 B. .tB 
 
 B.iC 
 
 B.&L 
 
 B. ct P. . . 
 Ben. L. R. 
 
 Ben. on Sale . . 
 BelFs Priu. 
 
 Best & S 
 
 Black 
 
 Blatehf. C. C. R. 
 
 T^iiig 
 
 Bing. N. C. 
 Boui. H. C. Rep 
 Bourke's Rep. 
 
 Burr 
 
 Cal. W. R. Civ. R. 
 Cal. W. R. Ree. Ref. 
 
 Camp 
 
 C. B 
 
 Abbott on Shipping. 
 
 Adolpluis and Ellis' Reports. 
 
 Adolpbus and Ellis' New Series, Queen's 
 
 Bench Reports. 
 Alabama Report.s. 
 Angell on Carriers. 
 Ai-uold's Reports. 
 Arnould on Marine Insurance. 
 Aspinall's Maritime Law Cases. 
 Atkinson on Shipping Laws. 
 
 Baker on the Laws of Quarantine. 
 
 Barnwall and Adolphus's Re])orts. 
 
 Barnwall and Alderson's Reports. 
 
 Broderii> and Bingham's Reports. 
 
 Barnwall and Cresswell's Reports. 
 
 Browning and Lnshington's Reports. 
 
 Bosanquet and Puller's Reports. 
 
 Bengal Law Reports. 
 
 Benjamin on Sale. 
 
 Bfll's Pj-ineiples of the Law of Scotland. 
 
 Best and Smith's Reports. 
 
 Black's United States Supi-eme Court 
 Reports. 
 
 Blatchford's United States -Jnd Circuit 
 Court Reports. 
 
 Bingham's Reports. 
 
 Bingham's Reports, New Cases. 
 
 Bombay High Court Reports. 
 
 Bourke's Reports, Supreme Court. Cal- 
 cutta. 
 
 Burrows' Reports. 
 
 Calcutta Weekly Repoiter. Civil Rulings. 
 Calcutta Weekly Reporter, Recorder's 
 
 References. 
 Campbell's Rej)orts. 
 Common Bench Reports.
 
 XIV 
 
 LiyT OF ABBKEVrATIONS. 
 
 C.&F 
 
 C. &J 
 
 C. L. R 
 
 C. &M 
 
 C.S:V 
 
 Cross on Lieu 
 Com. Ca 
 
 C. Rob 
 
 Ch. ct Tern, ou Ci 
 
 Carver 
 
 Cowp. 
 
 Crump's Priu. of 
 
 of Marine Ins 
 
 Avr. 
 Cur. 
 
 De Gex c^ J. 
 
 Denio 
 
 Dods. Ad. Rep. . 
 
 Doug. 
 
 Dow. &R.. 
 
 Dow. &. L. 
 
 East Rep. 
 
 E. &B 
 
 E. &E 
 
 Esp 
 
 Ex 
 
 F. & F 
 
 Gray 
 
 Hagg 
 
 H. &R 
 
 H. Blkbt 
 
 Hilton ... 
 H. L. Cas. 
 Hodges 
 Holt 
 
 How 
 
 H. &C 
 
 H. &N 
 
 Humpli, ,., 
 
 Clark and Finnelly's Reports. 
 
 ... Crompton and Jervis' Reports. 
 
 ... Common Law Reports. 
 
 ... Carrington and Marshman's Nisi Prius 
 Reports. 
 
 ... Carrington and Payne. 
 
 ... Cross on the Law of Lien. 
 
 ... Commercial Cases, Supreme Court, Cal- 
 cutta. 
 
 ... Cliarles Robinson's Admiralty Reports, 
 ir. ... Cliitty & Temple on tlie Law of Carriers. 
 
 ... Carver on Carriage by Sea. 
 
 ... Cowper's Reports. 
 the Law Crumii's principles of the Law of Ma- 
 . & Gen. rinc Insurance and GeneralAverage. 
 
 ... Curtis's New York Rejwrts. 
 
 ... De Gex and Jones' Reports. 
 
 ... New York Reports. 
 
 ... Dodson's Admiralty Reports. 
 
 ... Douglas' ReiDorts. 
 
 ... Dowling and Ryland's Reports. 
 
 Dowling and Lowndes' Practice Cases. 
 
 ... Term Reports. East's Reports. 
 Ellis and Blackburn's Reports. 
 
 Ellis and Ellis' Reports. 
 
 ... Espinasse's Rcjoorts. 
 ... Exchequer Reports. 
 
 Foster and Finlason's Reports. 
 
 Gray's Reports. 
 
 Haggard's Admiralty Reports. 
 
 Harrison and Rutherford's Reports. 
 
 H. Blackstone's Rej)orts. 
 
 ... Hilton's Reports. 
 
 ... House of Lords' Cases. 
 
 ... Hodges' Rej)Orts. 
 
 ... Holt's Reports. 
 
 Howard's Reports. 
 
 Hurlstone and Coltman's Reports. 
 
 Hurlstone and Norman's Reports. 
 
 Humphrey's Reports.
 
 T.TsT OF AP.BT^rVTATTON'S. 
 
 TV 
 
 Tnd. .T.ir. X. S. .. 
 
 I. L. II. Bom. ., 
 I. L. R. Cal. 
 
 I. L. R. MiuL .. 
 
 Jur. 
 
 Jiu-. N. S 
 
 Kay on Sh. 
 Kent's Com. 
 Kern 
 
 L. T 
 
 L. J. Q. B. 
 L. J. C. P. 
 L. J. Adni. 
 
 L.J. Ex 
 
 L.J. Ch 
 
 L. R. A.c'i:E. .. 
 L. R. App. Cas. .. 
 L. R. C. P. 
 L. R. C. P. D. .. 
 
 L. R. Eq 
 
 L. R. H. L. 
 L. R. P. C. 
 L. R. Q. B. 
 L. R. Q. B. D. .. 
 
 Lex. Mor 
 
 Lowndos on G. A. 
 Lnsb. Atlm. Rep. 
 
 Mad. H. C. R. . 
 
 M. c<;; G 
 
 M. &P 
 
 M. .tRob 
 
 M.ct Scott 
 
 M.& W 
 
 Mooro 
 
 Moore P. C. C. 
 
 Mason 
 
 M. & R 
 
 M. &S 
 
 McLacb. on Sb. ... 
 Mit. Mar. R. 
 Mit. Mar. X. 
 
 .. Indian Jurist, New Series. 
 . Indian Law Reports, Boinbny Series. 
 ... Indian Law Reports, Calcutta Series, 
 ... Indian Law Reports, Madras Series. 
 
 ... Jurist Reports. 
 
 ... Jurist Reports, Xew Series. 
 
 ... Kay on Sbipping. 
 
 ... Kent's Commentaries. 
 
 . . . Keniadi's Xew York Reports. 
 
 . . . Tbe Law Times Reports. 
 
 ... Law Journal, Qiieen's Bench Reports. 
 
 ... law Journal, Common Pleas. 
 
 ... Law Joui'nal, Admiralty. 
 
 . . . Law Journal, Exebequer. 
 
 . . . Law Journal Clianeery. 
 
 ... Law Reports, Admiralty. 
 
 . . . Law Reports, Appeal Cases. 
 
 . . . Law Reports, Common Pleas. 
 
 ... Law Reports, Common Pleas Division. 
 
 ... Law Reports, Equity. 
 
 . . . Law Repoi'ts. House of Lords. 
 
 ... LaAV Reports, Privy Council. 
 
 ... Law Reports, Queen's Bench. 
 
 ... Law Rej^orts, Queen's Bench Division. 
 
 . . . Lex Mei-catoria. 
 
 ... Lowndes on General Averai^e. 
 
 ... Lusbington's Aduiiralty Reports. 
 
 ... Madras High Court Reports. 
 
 ... Manning and Granger's Reports. 
 
 ... Moore and Payne's Reports. 
 
 . . . Moody and Robinson's Re^iorts. 
 
 ... Moore and Scott's Reports. 
 
 , . Meesou and Welsby's Reports. 
 
 ... Moore's Reports. 
 
 . . Moor"'s Privy Council Cases. 
 
 ... Mason's Circuit Court Reports. 
 
 . . . Manning and Rj-land's Reports. 
 
 ... Maule and Selwyn's Reports. 
 
 ... McLachlan on Sbipping. 
 
 ... Mitchell's Maritime Register. 
 
 ... Mitchell's Maritime Notes,
 
 XVI 
 
 r.TST OF abbt?t:vtations. 
 
 N. &M. ... 
 N. ct p. 
 N.R. 
 
 Olcott Ad. R.^p. 
 
 Park's M. I. 
 Parsons ou Sb. 
 Peate 
 Per. .<^ D. 
 
 Q. B 
 
 C.Rob 
 
 W.Rob 
 
 Wharton on Nog. 
 
 Whart 
 
 Wils 
 
 W. R 
 
 Wis. 
 
 Neville and Manning's Reports. 
 Neville and Perry's Reports. 
 Bosanqnet and Puller's New Reports. 
 
 Olcott's Admiralty Reports. 
 
 Park on Marine Insiirace. 
 Parsons on Shipinng. 
 Peake's Nisi Priiis Repoi-ts. 
 Perry and Davison's Reports. 
 
 Queen's Bench Reports (Adolphns and 
 Ellis N. S.) 
 
 Rail, and Can. Ca. 
 
 . . . Railway and Canal Cases. 
 
 Roll. Abr. 
 
 ... Rolle's Abridgement. 
 
 Scott 
 
 ... Scott's Reports. 
 
 Scott N. R. 
 
 . . . Scott's New Reports. 
 
 Sess. Ca.ses 
 
 . . . Sessions Cases (Scotch . ) 
 
 Sc 
 
 . . . Scotch Cases. 
 
 Sm.L. C 
 
 ... Smith's Leading Cases. 
 
 Smitli 
 
 ... Smith's Reports. 
 
 Stark 
 
 . . . Stai'kie's Reports. 
 
 Story on Ageiicy 
 
 . . . Story on Agency. 
 
 Story on Bail. ... 
 
 . . . Story on Bailments. 
 
 Str 
 
 ... Strange 's King'* Bench Report 
 
 Style 
 
 ... Style's Reports. 
 
 Sumner ... 
 
 . . . Sumner's Reports. 
 
 Taunt 
 
 ... Taunton's Reports. 
 
 T. R 
 
 ... Term Reports, DurnfordJL' East' 
 
 Tyr 
 
 ... Tyrwhitt's Reports. 
 
 Charles Robinson's Reports, Admiralty 
 Cases. 
 
 William Robinson's Reports, Admiralty 
 
 Cases. 
 Wharton on Negligence. 
 Wharton's Pennsylvania Reports. 
 Wilson's Reports. 
 Weekly Reporter. 
 Wisconsin Reports. 
 
 T. & J. 
 
 Younge and Jervis' Reports,
 
 TABLE OF CASES 
 
 Acatos V. Burns 
 Accomac, The 
 
 Affiues, The 
 
 Aivey v. Merrill 
 Alexander, The 
 Alexander v. Malcolmson 
 
 Alexander v. M'Kenzie 
 Alexandra, TLe 
 Alexiadi v. Robinson 
 Alhambra, Tlie 
 
 Allen I'. Coltiirt 
 
 18 
 U 
 
 L. R. 3 Ex. D. 282 ; 47 L. J. 
 
 Ex. 566 ; 26 W. R. G2-i. 
 L. R. 15P. D. 208; 59 L.J. 
 
 Ad. 91 ; 39 W. R. 133 ; 63 
 
 L. T. 118. 
 Mit. Mar. N. Vol. 1, p. 135... 
 
 Cur. C. C. 8 
 
 Dods. Ad. Rep. 278 
 
 Jr. R. 2 C. L. 621 ; 3 Asp. M. 
 
 L. C. 245. 
 L. J. C. P. 94 ; 6 C. B. 766... 
 L. T. 742; 14W.R.466 ... 
 
 F. &F. 679 
 
 L.R.6P.D.68; 50 L.J. Ad. 
 
 36; 43L.T.636; 29 W. R. 
 
 6o5;4 Asp. M. L. C. X.S. 
 
 410. 
 L. R. 11 Q. B. D. 782; 52 L. 
 
 J. Q. B. 686 ; 48 L. T. 944 ; 
 
 31 W. R. 841 ; 5 Asp. M. L. 
 
 C. N. S. 104. 
 
 I'AOE 
 
 278, 44 i 
 
 471 
 
 374 
 363 
 161 
 
 468 
 
 24 
 372, 447 
 565 
 164 
 
 169,314,622 
 
 Allison V. The Bristol Mar. L. R. 1 App. Cas. 209 ; 43 L. 
 
 256,302,303 
 
 Ins. Co. J. C. P. 311 ; 3 Asp. M. L. 
 
 
 C. 178. 
 
 
 Allsopp y. Thouias Com. Ca. 396 
 
 416 
 
 Alsager v. St. Katheriue's 14 M. .t W. 794; 15 L. J. Ex. 
 
 292 
 
 Doek Co. 34. 
 
 
 Alston i'. Herring 25 L. J. Ex. 177; 11 Ex. 822 ... 
 
 452 
 
 Anieriean lusuraneo Com- 1 Hill 25 (1841) 
 
 oo7 
 
 pany of New York v. Bryan 
 
 
 Amies 1-. Stephens 1 Str. 127 
 
 329 
 
 Anderson v. Clark 2 Bing. 20 
 
 633 
 
 Andrew v. Moorhouso ... 5 Taunt. 405 ; 1 Muish, 122 ... 
 
 256, 299
 
 XVlll 
 
 TABLE OP CASES. 
 
 Andrews v. Mcllisli 
 
 Anna Maria, The 
 
 Annapolis, The, & The 
 
 Johanna StoU 
 Ansett V. Marshall 
 
 Arcangelo V. Thonijison ... 
 
 Arctic, The 
 
 Arklow, The 
 
 Ashcrof ti;. The CrowOrcharcl 
 Col. Co. 
 
 Ashley v. Pratt 
 
 Atkinson v. Cotesworth 
 
 Atkinson v. Ritchie ... 
 Atlantic Insurance Co. v. 
 
 Stori'ow 
 Atlantic Mutual Ins. Co. v. 
 
 Huth 
 
 Attwood V. Sellar 
 
 August, The 
 
 Australasian Ins. Co. v. 
 
 Jackson 
 Australasian Steam Nav. Co. 
 
 V. Morse 
 
 5 Taunt. 496 ; 2 M. & S. 27 ; 
 IG East 312. 
 
 Adm. Ct. 31st July 1871 ... 
 
 Lush. 295 ; 30 L. J. Ad. 201 ; 
 
 4 L. T. 417. 
 
 22 L.J.Q.B. 118; 17 Jur. 114; 
 1 B. C. C. 147. 
 
 2 Camp 620 
 
 Unreported 
 
 L. R. 9 App. Cas. 136 ; 53 L. 
 
 J. P. C. 9 ; 50 L. T. 305 ; 
 
 5 Asp. M. L. C. N. S. 219. 
 L. R. 9 Q. B. 540 ; 43 L. J. Q. 
 
 B. 194;31L.T.266; 22 W. 
 R. 825; 2 Asp. M. L.C.N. 
 S. 397. 
 17 L. J. Ex. 135; 16 M. & W. 
 471 ; 1 Ex. 257. 
 
 3 B. & C. 647 ; 5 D. ,t R. 552 ; 
 
 1 C. & P. 339. 
 
 10 East 530 
 
 5 Paige, Chancery (New York, 
 
 1835) 293. 
 L. R. 16 Ch. D. 474 ; 44 L.T. 
 
 67 ; 29 W. R. 387 ; 4 Asp. 
 
 M. L. C. N. S. 309. 
 L.R. 5 Q. B. D. 286 ; 49 L.J. 
 
 Q.B. 515; 42 L.T. 644; 28 
 
 W. R. 604 ; 4 Asp. M.L.C. 
 
 N. S. 283; L.R. 4 Q.B. D. 
 
 342 ; 48 L. J. Q. B. 465. 
 L.R. (1891) P. 328; 7 Asp. 
 M.L.C. 110; 60L.J.Ad.57; 
 
 66 L. T. 32. 
 33 L. T. 286 ; 3 Asp. M. L. C. 
 
 N. S. 26. 
 
 L. R. 4 P. C. 222; 27 L.T. 257; 
 20 W. R. 728 ; 8 Moo. P. C. 
 N. S. 482 ; 1 Asp. M. L. C. 
 
 N. S. 407. 
 
 PAGE 
 
 202 
 
 374 
 
 208 
 
 76 
 
 351 
 503 
 422 
 
 201 
 
 289, 546 
 
 342 
 337 
 
 610 
 405 
 
 139, 608 
 
 354 
 445
 
 TABLE OF CASKS. 
 
 Six 
 
 B 
 
 B.ags of Linscod 
 
 Bahadoor v. British India 
 
 Steam Nav. Co. Ltd. 
 Bahia, The 
 
 Bakhviu r. L. C. vfc D. Rai 
 
 Co. 
 Bailey r'. Do Arvoyave 
 
 Banner, Ex parte ... 
 
 Barber v. Meyersteiu 
 
 Barber v. Taylor 
 Barker v. Hodgson . . 
 Barker v. M'Audrew 
 
 Burnett v. Brandao . . . 
 Barciue Carlotta, The 
 Barrow i'. Coles 
 Bast if ell 1'. Lloyd ... 
 
 Bates V. Todd 
 
 Baxendale v. G. E. Rail. Co 
 
 Beatson v. Ha worth 
 
 Beaver, Tbe 
 
 Belfast and Ballymena Bail 
 Co. i'. Keys. 
 
 PAGE 
 
 1 Black 108 548 
 
 Mit.Mar. Rcg.30Ang.lS78 170 
 
 B.&L.61,292;12L.T.145; 42 
 14W.R.411;llJur.N.S. • 
 90 ; 2 Asp. M. L. C. 174. 
 
 L. R. 9 Q. B. D. .582 ... 78 
 
 7 A.Sc E. 919; 3 N. & P. 539' 
 114 ; 7 L. J. Q. B. 91. 
 L. R. 2 Ch. D. 278 ; 45 L. 654,G55 
 J. Bk. 73 ; 34 L. T. 199 ; 
 24 W. R. 476. 
 L. R. 4 H. L. 317 ; L. R. 566,507,571 
 2 C. P. 38, 661 ; 39 L. J. 572,573,575 
 C. P. 187 ; 22 L. T. 808 ; 578,579 
 18 W. R. 1041 ; 3 Asp. 
 M. L. C. 449. 
 
 5 M. & W. 527 650 
 
 3 M. & S. 267 542 
 
 34 L. J. C. P. 191 ; 18 C. B. 341 
 K S. 759 ; 12 L. T. 459 ; 
 13 W. R. 779 ; 11 Jar. 
 N. S. 637 ; 2 Asp. M. L. 
 C. 205. 
 
 6 M. & G. 630 ; 2 Scott N.R. 96. 64 
 
 3 Asp. M. L. C. N. S. 456, . . . 369,414,488 
 
 3 Camp 92 632 
 
 1 H. Jt C. 388 ; 31 L. J. Ex. 187, 317 
 413 ; 10 W. R. 721. 
 
 1 M. &Rob. 106 54,228. 
 
 L.R. 4 Q.B. 244; 38 L.J.Q. 119 
 B. 137;14 W. R. 458. 
 
 6 T. R. 531 200 
 
 3 C. Rob. 292 217 
 
 9 H.L.C.356 ; 4 L. T. N. S. 82 
 
 841;9 W.R.793; 8 Jnr. 
 N. S. 367.
 
 XX 
 
 ^ABLE OP CASES. 
 
 Benecke v. An£;lo-Aiistrala. 
 
 sian S. N. Co. 
 Beresforcl r. Mont^omerie... 
 
 Berkley v. Watliag.. 
 Bernina, The 
 
 Best V. Saunders 
 Biccard v. Shepherd 
 Birkley v. Presgravo 
 Bishop V. Ware 
 Black V. Rose 
 
 Blakey v. Dixon 
 Blakie v. Stemhridge 
 
 Blanehet v. Powell's Llantiv 
 it Collieries Co. 
 
 Blasco V. Fletcher 
 
 PAGE 
 
 2 TimesL. R. 7U 4^3 
 
 34 L. J. C. P. 41 ; 10 L. T. 519 
 
 814;12 W. R. 1060; 17 
 
 C. B. KS. 379;10 Jur. 
 
 N. S. 823. 
 7 A. & E. 29 ; 6 L. J. K. B. 5G, 58,144, 
 195 ; 2 N. & P. 178. 228 
 
 L. R. 11 P. D. 31 ; L. R. 433 
 
 12 P. D. 36; L. R. 13 
 
 App. Cas. 1; 57 L. J. 
 
 Ad. 65; 58 L. T. 423; 
 
 36 W. R. 870 ; 52 J. P. 
 
 212;6 Asp. M. L. C.N. 
 
 S. 257. 
 M. & M. 208 ; 3 M. & R. 4. 
 
 14 Moo. P. C.C. 471 
 
 1 East 220 
 
 3 Camp 360 
 
 2 Moo. P. C. C. N. S. 277 ; 
 
 12 W. R. 1123 ; 11 L. T. 
 31 ; 10 Jnr. N. S. 1009 ; 
 2 Asp. M. L. C. 89. 
 2B. &P. 321 
 
 28 L. J. C. P. 329 ; 29 L. J. 
 
 C. P. 212; 36 L. T. 570; 
 
 8 W. R. 239;6 C.B.N. 
 
 S. 894, 911; 5 Jur N. 
 
 S. 1128; 6 Jur. N. S. 
 
 825. 
 L. R. 9 Ex. 74 ; 43 L. J. 259 
 
 Ex. 50 ; 30 L, T. 28 ; 22 
 
 W. R. 490; 2 Asp. M. 
 
 L. C. N. S. 224. 
 32 L. J. C. P. 284 ; 14 C. B. 271, 275 
 
 N. S. 147 ; 9 L. T. 169 ; 
 
 11 W. R. 997 ; 1 Asp. 
 
 M. L. C. 380 ; 9 Jur. N. 
 
 S. 1105. 
 
 294 
 
 240 
 
 395 
 
 241,546,559 
 
 265 
 
 550 
 456, 457
 
 TATiT.r OF CASFS. 
 
 XXI 
 
 Blonliolm, Tlio 
 
 Blight V. Page 
 Bonapavto, The 
 
 Bommann v. Tooke 
 Bottonilcy v. Bovill... 
 
 Bottomloy v. Nuttall 
 
 Bourne V. Gatlilf ... 
 
 Bradley v. Dunipaee 
 
 Bragg V. Andorson ... 
 Brandt v. Bowlby ... 
 
 Brass v. Maitland 
 
 Bremncr v. Biirroll it Sons... 
 Broreton v. Cliapman 
 Briudley v. The Cilgwyn 
 
 Slate Co. 
 Bristol and Exeter Rail. Co. 
 
 V. Collins 
 Bristol and West o£ Eng- 
 
 land Bank r. Mid. Ry. Co. 
 
 British Colniubia Saw Mill 
 r. Nettlesliip 
 
 British India Steam N. Co. 
 r. Hajee Mahomed Esack. 
 Brouncker T. Scott ... 
 Bro^\^^ v. Hare 
 
 PAGE 
 L.R. lOP.D. 10,7; .WL..T. 70,4.34 
 Ad. 81; r.r>L.T.ftl(:;.34 
 W. R. 154; 5Asp.M.L. 
 C. 522. 
 3 B. &P. 295n 75,341 
 
 3 W. Rob. 298 ; 8 Moo. B.C. 003 
 
 C. 459. 
 
 1 Camp 377 236 
 
 5 B. &C. 210;4L. J. K. B. 205 
 
 237; 7Dow. &R. 702. 
 28 L.J.C.P. 110; 5 C. B.N. 45 
 
 S. 122. 
 7 M. & G. 850; 11 C. & F. 45 ; 363 
 
 8 Scott N. R. 604. 
 31 L. J. Ex. 210 ; .82 L. J. Ex. 229, 595 
 
 22 ; 5 L. T. 350 ; 1 H. 
 
 & C. 521. 
 
 4 Taimt. 229 200 
 
 2 B. & Ad. 932 38,250,640 
 
 644, 654 
 
 6 E. A B. 470; 26 L. J. Q. 447,448,452 
 
 B. 49 ; 2 Jur. K S. 710. 
 4 Sess. Cds. (4th Ed.) 934 .. . 190 
 
 7 Bing. 559 ; 5 M. & P. 526. 317 
 55 L. J. Q. B. 67 569 
 
 7 H.L.C. 194 ; 29 L.J. Ex.41 ; 100, 509 
 
 5 Jur. N. S. 1307. 
 
 L. R. (1891) 2 Q. B. 653 ; 618 
 
 52L.T. 234;61L. J. Q. 
 
 B. 115. 
 L.R.3C. P.499; 37L.J.C. 33, 74, 143 
 P. 235; 18L.T. 291; 10 W. 
 R. 1046;3Asp. M.L.C.65. 
 I. L. R. 3 Mad. 107 ... 84, 593 
 
 4 Taunt 1 316 
 
 27 L. J. Ex. 272 ; 29 L. J. Ex. 637,639.6.54 
 6; 3 H. &N. 484; 4 H. 
 
 6 N. 822; 8 Jiir. N. S. 
 711 ; 7 W. R. 619,
 
 XXll 
 
 TABLE OF C'xVSES. 
 
 Brown V. Johnson ... 
 
 Brown v. Powell Dnffryn 
 Steam Coal Co. 
 
 Brown Shipley & Co. v. 
 Kouiijh. 
 
 Bruce v. Nicolopulo. . . 
 Bruce v. Wait 
 Bryans v. Nix 
 
 Buckle V. Knoop 
 
 Buclg-ett V. Binninc^ton 
 
 Bull V. Robinson 
 
 Buller V. Fislier 
 
 Bullock Bros. v. Toay Amvj; 
 
 Burdick v. Sewell 
 
 Burgon v. Sharpe ... 
 Burmcster v. Hodgson 
 Burton r. English 
 
 Bu shire, The... 
 Bynio V. Schiller 
 
 10 M. &W. 331;11L,J. Ex. 
 
 373 ; C. & M. 440. 
 L.R.IOC.P. 562;44L.J.C. 
 
 P. 289; 23W.R. 549;32 
 
 L. T. 621 ; 2 Asp. M. L. 
 
 C. K S. 578. 
 L. R. 29 Ch. D. 848; 54 
 
 L. J. Ch. 1024 ; 52 L. T. 
 
 878;34 W. R. 2;5Asp. 
 
 M. L. C. N. S. 433. 
 
 11 Ex. 129 ; 24 L. J. Ex. 321. 
 
 3 M. & W.15;7L. J. Ex.17. 
 
 4 M. &W. 775; IH. & H. 
 
 480 ; 8 L. J. Ex. 137. 
 L. R. 2 Ex. 333 ; 36 L. J. 
 Ex. 223; 16 L. T. 571; 
 15 W. R. 999 ; 2 Asp. M. 
 L. C. 491, 519. 
 L. R. 25 Q. B. D. 320; L. 
 R. (1891) 1 Q. B. 35 ; 60 
 L. J. Q. B. 1 ; 39 W. R. 
 131 ; 6 Asp. M. L. C. N. 
 S. 592. 
 
 24L. J. Ex. 165 
 
 3 Esp. 67, 2 Peake, 183 
 24 Cal. W. R. C. R. 74 
 L. R. 10 Q. B. D. 363 
 
 2 Camp. 529 
 
 2 Camp 488 
 
 L.R.10Q.B.D.426;L.R. 
 12Q.B. D. 218; 52 L.J. 
 Q. B. 386 ; 53 L. J. Q. B. 
 133;48L. T. 730; 49 L. 
 T. 768 ; 31 W. R. 566 ; 
 32 W. R. 655 ; 5 Asp. M. 
 L. C. 187. 
 52 L. T. 740;5 Asp. M. L. C. 
 N. S. 416. 
 L. R. 6 Ex. 319 ; 40 L. J. 
 Ex.177; 25 L. T. 211; 
 19 W. R. 1114 ; 1 Asp. 
 M. L. C. N. S. 111. 
 
 PAOE 
 
 317, 320 
 
 561 
 
 341 
 
 639 
 33, 613, 634 
 
 269, 286 
 
 346 
 
 500 
 486 
 436 
 623 
 161 
 526 
 388, 393 
 
 426 
 297
 
 TABLE OF CASES. XXIU 
 
 PAGE 
 
 Ciiffarini y. Walker Ir. R. 10 C. L. 250 ... 320 
 
 Caltl well y. Ball 1 T. R. 205 2,240,567 
 
 Campion u. Colv in 3 Biiig. N. C. 17; 3 Scott 56,228,21)3 
 
 338; 5 L. J. C. P. 317; 
 
 2 Hodges 116. 
 Canada Shipping Co., v. L. R. 23 Q. B. D. 342 ; 58 485 
 
 British Shipowners' L. J. Q. B. 462 ; 61 L. 
 
 Mutual Protection Asso- T. 312 ; 38 W. R. 87 ; 6 
 
 elation. Asp. M. L. C. N. S. 388. 
 
 Cannan v. Meaburn ... 1 Bing. 243, 465 ; 2 Moo. P. 489 
 
 C. C. 633. 
 Capper I'. Wallace L. R. 5 Q. B. D. 163; 49 186 
 
 L. J. Q. B. 350 ; 42 L. 
 
 T. 130; 28 W. R. 424; 
 
 4 Asp. M. L. C. N. S. 
 
 223. 
 
 Carali V. Xcnos 2 F. & F. 740 432 
 
 Cargo ex Argos L. R. 5 P. C. 134 ; 42 L. 262,207.445, 
 
 J. Ad. 49 ; 28 L. T. 745; 551,561,588 
 
 21 W. R. 707; 2 Asp. 
 
 M. L. C. N. S. 6. 
 Cargo ex Galam 33 L. J. Ad. 97 ; 9 L. T. 550 ; 395, 545 
 
 12 W. R. 495 ; B. & L. 
 
 167 ; 2 Moo. P. C. C. N. 
 
 S. 216 ; 10 Jur. N. S. 
 
 477. 
 Cargo ex Laertes L. R. 12 P. D. 187 ; 56 L. 359, 468 
 
 J. Ad. 108 ; 57 L. T. 502 ; 
 
 36 W. R. Ill ; 6 Asp. 
 
 M. L. C. N. S. 174. 
 
 Carmichael r. Brodic ... L. R. 1 P. C. 454 220 
 
 Carmichael v. The Liver- L. R. 19 Q. B. D. 242 ; 56 483 
 
 pool Sailing Shipowners L. J. Q. B. 428 ; 57 L. T. 
 
 Mutual Indemnity Asso- 550; 35 W. R. 793; 6 
 
 elation. Asp. M. L. C. N. S. 184. 
 
 Can-on Park, The L. R. 15 P. D. 203 ; 59 L. 473 
 
 J. Ad. 74; 63 L. T. 356; 
 
 6 Asp. M. L. C. X. S. 
 
 543.
 
 XXIV 
 
 TABLE OF CASES, 
 
 Case f. Davidson 
 
 Castle V. Playford 
 
 Castlegate Steam-ship Com- 
 pany V. Dempsey. 
 Catherine Chalmers, The ... 
 
 Caiighey v. Cordon 
 
 Cawasjee v. Thorn i)sou 
 Cawthron c. Triekett 
 
 Cederbei-g v. Borries Craig 
 
 & Co. 
 Chappel V. Comfort 
 
 Charluton v. Cotesworth . . . 
 
 Chartered Mercantile Bank 
 of India v. Netherlands 
 India Steam Nav. Co. 
 
 Chasca, The ... 
 
 Chaurand v. Angei stein . . . 
 Ching Hong & Co. v. Seng 
 
 Moh & Co. 
 Christy v. Row 
 Citizen's Bank of Louisiana 
 
 V. Wcndeliu 
 
 5 M. ic S. 79 ; 2 B. A: B. 370 ; 
 5 Moore, 116 ; 8 Priee 
 51-2. 
 L. R. 7 Ex. 98 ; 41 L. J. 
 Ex. 44; 26 L. T. 315; 
 20 W. R. 440. 
 L. R. (1892) 1 Q. B. 854 ; 
 61 L. J. Q. B. 620. 
 
 32 L. T. 847; 2 Asp. M. L. 
 
 C. N. S. 598. 
 L. R. 3 C. P. D. 419 ; 27 
 W. R. 50. 
 5 Moo. P. C. 165 ; 3 Moo. 
 Ind. App. 422. 
 
 33 L. J. C. P. 182 ; 9 L. T. 
 
 609 ; 12 W. R. 311 ; 15 
 C. B. N. S. 754 ; 1 Asp. 
 M. L. C. 414. 
 2 Times L. R. 201 
 
 31 L.J. C. P. 58; 10 C. B. 
 
 N. S. 802 ; 4 L. T. 448 ; 
 
 9 W. R. 694;.8 Jur. N. 
 
 S. 177. 
 
 R. &M. 175 
 
 L. R. 10 Q. B. D. .521 ; 52 
 
 L. J. Q. B. 220 ; L. R. 
 
 9 Q. B. D. 118 ; 48 L. T. 
 
 546; 31 W. R. 445; 5 
 
 Asp. M. L. C. N. S. 65. 
 L. R. 4 A. & E. 446 ; 44 
 
 L.J. Ad. 17; 23 L. T. 
 
 838 : 2 Asp. Mar. L. C. 
 
 N. S. 600. 
 1 Peake43; 2 C. B. 412 
 L L. R. 4 Cal. 736 
 
 1 Taunt, 299 
 
 2 Times L.R. 210 
 
 PAGE 
 
 289 
 
 613 
 
 348 
 475 
 294 
 17 
 531 
 
 639 
 
 295 
 426 
 
 132 
 
 65 
 364, 532 
 
 283 
 605
 
 TABLE OF CASKS. 
 
 XXV 
 
 Cito, The 
 
 City of Cumbiidgo, The 
 
 City of Manchester, The 
 
 Chiu Macdomild, The 
 
 Chirk I'. Barnwell 
 
 Clarke v. Rochester Railway 
 
 Chisou I'. Simmonds 
 
 Clink t'. Radford 
 
 Cobban v. Downc ... 
 Cochran v. Retberg 
 Cockburn v. Alexander 
 Cockoy i\ Atkinson... 
 Coleman i'. Riches ... 
 
 Colt V. M'Mechcn 
 
 Cohnnbia, The 
 
 Colunibiis, Tlie 
 
 Commercial Steam-ship Co. 
 V. Boulton 
 
 Constable v. Noble ... 
 Cook V. Taylor 
 Cooke V. Wilson 
 
 L. R. 7 P. D. 5 ; 51 L. J. 
 
 Ad. 1 ; 45 L. T. 663 ; 30 
 
 W. R. 836 ; 4 Asp. M. 
 
 L. C. N. S. 468. 
 L. R. 5P. C. 450; 43 L. 
 
 J. Ad. 11 ; 30 L. T. 439 ; 
 
 22 W. R. 578. 
 L. R. 5 P. D. 221 ; 49 L. 
 
 J. Ad. 81 ; 4 Asp. M. L. 
 
 C. N. S. 106, 261. 
 L. R. 8 P. D. 178; 52 L. 
 
 J. Ad. 89; 49L.T. 408; 
 
 32 W. R. 154; 5 Asp. 
 
 M. L. C. N. S. 148. 
 
 PAGE 
 
 277 
 
 459 
 
 424, 426 
 243, 521 
 
 12 How. 272; 19 Car. 130 ... 
 
 148, 367, 
 
 
 486, 598 
 
 4 Kern 570 
 
 517 
 
 6 T. R. 533 
 
 202 
 
 L. R. (1891) 1 Q. B. 625 ; 
 
 313, 315 
 
 60 L. !J. Q. B. 388 ; 64 
 
 560 
 
 L. T. 491 ; 39 W. R. 355. 
 
 
 5 Esp. 41 
 
 140 
 
 3 Esp. 121 
 
 65 
 
 6 C.B.791; 18 L. J. C. P. 74. 
 
 283 
 
 2 B. & A. 460 
 
 163 
 
 24 L. J. C. P. 125 ; 1 Jiir. N. 
 
 63, 152 
 
 S. 596 ; 16 C. B. 104 ; 3 
 
 
 C. L. R. 795. 
 
 
 6 Johns 160 
 
 330 
 
 1 Rob. 138 
 
 535 
 
 3 W. Rob. 158 
 
 76 
 
 L. R. 10 Q. B. 346 ; 44 L. 
 
 320, 328 
 
 J. Q. B. 219 ; 33 L. T. 
 
 
 707; 23 W. R. 854; 3 
 
 
 Asp. M. L. C. N. S. 111. 
 
 
 2 Taunt. 403 
 
 162 
 
 13 East. 399 
 
 624 
 
 1 C. B. N. S. 153 ; 26 L. J. 
 
 47 
 
 C. P. 15 J 2 Jur. N. S. 
 
 
 1094. 

 
 XXVI 
 
 TABLE OF CASES. 
 
 Cope V. Dolicrty 
 
 CoikDistilleriesCo. v. Great 
 
 Soutlieni R. Co. 
 Cormack v. G ladstonc 
 Cory V. Burr ... 
 
 Cosmopolite, The ... 
 Cossim Hoosein Soortu v. 
 
 Lee Phec Chaan. 
 Cossinant?. British American 
 
 Assurance Company 
 Coultliurst r. Sweet 
 County of Lancaster S. S. v. 
 
 Sharp. 
 
 Covington v. Roberts 
 Cox V. Bruce ... 
 
 Cox V. London and North 
 
 "Western Ry. Co. 
 Cox V. Peterson 
 Cox V. The Star Navigation 
 
 Co. 
 
 Coxe V. Harden 
 
 Craven v. Ryder 
 
 Cressington, The 
 
 Crocker v. Jackson. . . 
 Crooks V. Allan 
 
 27 L. J. Ch. 600 ; 2 De G. & 
 
 J. 614; 4Jur.N.S.699; 
 
 4 Kay & J. 367. 
 L. R. 7 H. L. 269 ; 8 Ir. 
 
 C. L. 334. 
 
 11 East 347 
 
 L. R. 8 App. Cas. 393 ; 52 
 
 L. J. Q. B. 657 ; 49 L. 
 
 T. 78 ; 31 W. R. 894 ; 5 
 
 Asp. M.L. C. N. S. 109; 
 
 L. R. 8 Q. B. D. 313 ; 
 
 L. R. 9 Q. B. D. 463 ; 
 
 51 L. J. Q. B. 95, 468. 
 
 2 Mit. Mar. N. 86 
 
 L L. R. 5 Cal. 477 
 
 57L. J. P. C. 17 
 
 PAGE 
 
 428 
 
 653 
 
 205 
 350 
 
 242 
 
 246 
 
 352 
 
 L. R. 1 C. P. 649 286 
 
 L. R. 24 Q. B. D. 158 ; 59 52, 3i5 
 
 L. J. Q. B. 22 ; 61 L. T. 
 
 692. 
 
 2 B. &P. N. R. 378 ... 395 
 
 L. R. 18 Q. B. D. 147 ; 56 230, 612 
 L. J. Q. B. 121 ; 57 L. 
 T. 128 ; 35 W. R. 207 ; 
 6 Asp. M. L. C. 152. 
 
 3 F. &r. 77 497 
 
 30 Ala. 608 
 
 363 
 
 Mit. Mar. Reg. 2 Jane 
 
 361 
 
 1876. 
 
 
 4 East 211; 1 Smith 20 ... 
 
 250,637,644 
 
 6 Taunt. 433 ; Holt, 100 ; 2 
 
 7,26 
 
 Marsh. 127. 
 
 
 L. R. (1891) P. 152 ; 60 L. 
 
 473 
 
 J. Ad. 25 ;"; 64 L. T. 329, 
 
 
 Sprague, R. 141 
 
 221 
 
 L. R. 5Q. B. D.40; 49 L. 
 J. Q. B. 201 ; 41 L. T. 
 
 800 ; 28 W. R. 304 ; 4 
 Asp. M. L. C. N. S. 216. 
 
 55, 13 1, 403
 
 TABLF OF OASES. XXVll 
 
 PAGE 
 Cross r. Board 20 N. Y. Rop. (12 Smith's 528 
 
 App; 85. 
 Crouch V. L. Si N. W. Ry. 23 L. J. C. P. 73 ; 18 Jur. 509 
 Co. 148; 14 C. B. 255; 7 
 
 Rail. Cas. 717 ; 2 C. L. 
 
 R. 188. 
 Crow V. Falk 8 Q. B. 4G7 ; 15 L. J. Q. B. 341 
 
 183 ; 10 Jnr. 374. 
 Cullcn V. Butk-r 5 M. & S. 461 ; 1 Stark 138; 480 
 
 4 Camp 289. 
 
 Ciiming V. Brown 9 East. 506 ; 1 Camp 104 .. . 631 
 
 Curlinj:,' ?'. Long 1 B. & P. 634 280 
 
 Cursetjee Rustonijec Setna I. L. R. 5 Bom. 313 ... 286,307 
 
 V. Williams. 
 Curtis V. Williamson ... L. R. 10 Q. B. 57 ; 44 L. 45 
 
 J. Q. B. 27 ; 31 L. T. 
 
 678; 23 W. R. 236. 
 Cuthbcrt r. Cumming ... 21- L. J. Ex. 198, 310; 1 Jur. 64, 279 
 
 N. S. 686 ; 11 Ex. 405. 
 Czech i\ G. S. N. Co. ... L. R. 3 C. P. 14; 37 L. J. 2.34, 355, 
 
 C.P. 3; 17 L. T. 246; 440, 461,, 
 
 16 W. R. 130 ; 3 Asp. 462, 514 
 M. L. C. 5. 601 
 
 D 
 
 Da Costa v. Edmunds ... 4 Camp. 142 ; 2 Chit. 227 ... 392 
 Dakinv. Oxh'y 33 L. J. C. P. 115 ; 15 C. B. 236,263,272 
 
 N. S. 646 ; 10 L. T. 268 ; 
 
 12 W. R. 557 ; 2 Asp. 
 
 M. L. C. 6 ; 10 Jur. N, 
 
 S. 655. 
 
 Dale V.Hall 1 Wils. 282 41.3. 488 
 
 Daunmll v. British India I. L. R. 12 Cal. 477 ... 83,84 
 
 Steam Nav. Co. 
 Davidson v. Burnand ... L. R. 4 C. P. 117 ; 38 L. J. 487 
 
 C. P. 73 ; 19 L. T. 782 • 
 
 17 W. R. 121 ; 3 Asp. M. 
 L. C. 207. 
 
 Davidson V. G Wynne ... 12 East 381 170,236,270 
 
 586
 
 XXTUl 
 
 TABLK OP CASES. 
 
 Davies v. MeYea"li, 
 
 Davis V. Garrett 
 Dawes v. Peck 
 Dean v. M'Gliie 
 De Cuadra v. Swann 
 Delaney v. Stoddart 
 Delaurier v. Wyllie ... 
 
 Delaware, The 
 
 De Mattos v. Gibson 
 
 Do Nichols V. Saunders 
 
 Dhunjeebhoy Byranijoe 
 
 Mehta V. Betbam 
 Diana, The 
 
 Dickenson v. Jardine 
 
 Dickson v. Buchanan 
 
 Dimech V. Corlett 
 
 Diplock V. Blackburn 
 Dixon V. Reid 
 
 Dixon V. Royal Exchange 
 Shipping Co. 
 
 Dixon V. Sadler 
 
 Dods V. Stewart 
 Domett V. Beckf ord 
 
 Doolan v. Mid. Rail. Co. . . . 
 
 PAOE 
 
 L. R. 4 Ex. D. 2G8 ; 48 L. 20 
 
 J. Ex. 686 ; 28 W. R. 
 
 143; 4 Asp. M. L.C.N. 
 
 S. 149. 
 6 Bing 716 ; 4 M. & P. 540. 214,225,458 
 8 T. R. 330; 3Esp. 12 ... 653 
 
 4 Bing. 45; 2 C. &P. 387... 289 
 16 C.B.N. S. 772 430 
 
 1 T. R. 22 205 
 
 27 Sc. L. R. 148; 17 Sess. Ca. 646 
 
 (4th Series) 167. 
 14 Wall 579 380 
 
 28 L. J. Ch. 498 ; 4 De G. 156 
 
 & J. 276 ; IJ. & H. 79. 
 L.R. 5C. P. 594; 39L. J. 583 
 C. P. 297. 
 
 2 Ind. Jur. N. S. 305 ... 508 
 
 1 W. Rob. 135 ; 11 W. R. 459 
 
 189 ; 9 Jur. N. S. 26 ; 7 
 
 L. T. N. S. 397 ; 32 L. J. 
 
 Ad. 57. 
 L. R. 3 C. P. 639 ; 3 Asp. 395 
 
 M.L.C. 126;37 L. J. C. 
 
 P. 321 ; 18 L. T. 717 ; 16 
 
 W. R. 1169. 
 
 13 Sc. L.R. 401 273 
 
 12 Moo. P. C. 199 75 
 
 3 Camp. 43 294 
 
 5 B. & A. 597; 1 D. & R. 207 333, 351 
 1 Times L, R. 490 ; 56 L. J. 381 
 
 Q.B.266;L.R. 12App. 
 Cas. 11. 
 
 5 M. & W. 414 ; 8 M. ct W. 206,207,240 
 
 895 ; 9 L. J. Ex. 48. 486 
 
 8 Ben. L. R. 340 259 
 
 5 P. & Ad. 521 ; 3 L. J. K. 253, 265 
 
 B. 10. 
 L. R. 2 App. Cas. 792; 101 
 
 37 L. T. 317 ; 25 W. R. 
 
 882.
 
 TAP.T.r OF CARES. 
 
 XXIX 
 
 DracacLi v. Anglo-Egyptliin 
 Nuv. Co. 
 
 Diiero, The 
 
 Diiko of Mancliestor, The 
 
 Dunlop V. Lamheit ... 
 Dunnage v. JoUiffe ... 
 Diithie V. Hilton 
 
 Diitton r. Powles ' ... 
 
 Button V. Solomonson 
 Dwarkadass Lalnhhai v. 
 Adamali Sultanali. 
 
 L.R.3C. P. 190; 37 L.J. 
 
 C. P. 71; 17L. T. 172; 
 
 hi W. R. 277. 
 L. R. 2 A. & E. 393 ; 38 
 
 L. J. Ad. 69 ; 22 L. T. 
 
 37 ; 3 Asp. M. L. C. 323. 
 
 2 W. Rob. 470; G Moo. P. C. 
 
 90. 
 
 6 CI. & Fin. 600 
 
 Abbott, on Sh. 13th ed.448 
 L. R. 4 C. P. 138 ; 38 L. J. 
 
 C. P. 93 ; 19 L. T. 285 ; 
 
 17W. R. 55; 3Asp. M. 
 
 L. C. 166. 
 31 L. J. Q. B. 191 ; 2 B. d S. 
 
 174 ; 6 L. T. 224 ; lu W. 
 
 R. 408; 8 Jnr. N. S. 
 
 970; 1 Asp. M. L. C. 9; 
 
 30 L. J. Q. B. 169. 
 
 3 B. &P. 582 
 
 3 Bom. H. C. Rep. A. c. J. 1 
 
 PAGE 
 
 61(! 
 
 459 
 
 649, 
 544 
 
 46- 
 
 653 
 
 1. 28 
 
 653 
 334 
 
 Eagle V. "White 
 Earle I'. Rowcroft ... 
 Ebenezer, The 
 Eliza Cornish, The ... 
 
 Ellershaw v. Magniae, 
 Elliott Lowrey t'. Doljell 
 
 Eiuilien Mavie, The... 
 
 Energie, The 
 
 English V. Oeean Steam 
 Nav. Cj. 
 
 GWhart. 505 
 
 512 
 
 8 East. 126 
 
 349 
 
 2 W. Rob. 206 
 
 422 
 
 17 Jur. 738 ; 1 Spk. Ecc. cl 
 
 161 
 
 Ad. R. 36. 
 
 
 6 Ex. 570 n 
 
 6, 37, 654 
 
 Douglas M. L. Decisions 
 21. 
 44 L. J. Ad. 9 ; 32 L. T. 435 ; 
 
 587 
 
 252 
 
 2 Asp. M L. C. N.S. 514. 
 
 
 L. R. 6P. C. 306; +1L. J. 
 
 602 
 
 Ad. 25 ; 32 L. T. 579 ; 
 
 
 23W.R. 932; 2 Asp. M. 
 
 
 L. C. N. S. 296. 
 
 
 2 Blatehf. C. C. 425 
 
 500
 
 XXX 
 
 TABLE OF CASES. 
 
 Ericbsen v. Bavkwovtli 
 
 Evans v. Forster 
 Evans V. Nicliol 
 
 Evcrard v. Kendall 
 
 Express, The... 
 
 PAGE 
 
 28 L. J. Ex. 95 : 27 L. J. Ex. 561, 5G3 
 472;3H. &N. 601, 894; 
 5 Jur. N. S. 517. 
 
 1 B. & Ad. 118 7, 313, 316 
 
 3 M. & G. 614; 4 Scott, N. 2, 16, 633 
 R. 43 ; 11 L. J. C. P. 6 ; 
 5 Scott, N. R. 614. 
 L. R. 5 C. P. 428 ; 39 L. 156 
 J. C. P 234 ; 22 L. T. 
 408 ; 18 W. R. 892. 
 L. R. 3 ■ A. & E. 597 ; 41 137 
 L. J. Ad. 79 ; 26' L. 
 T. 956 ; 1 Asp. M. L. 0. 
 N. S. 355. 
 
 Fairlie v. Fenton 
 
 Faith V. Tlie East India Co. 
 
 Faithful, The 
 
 Falke v. Fletcher 
 
 Fari'ant v. Bai-nes , . . 
 
 Fear on v. Bowers . . . 
 Featherston v. Wilkinson 
 
 Feise v. Wray 
 Felix, The 
 
 Fenwiek r. Boyd 
 
 L. R. 5 Ex. 169 ; 39 L. J. 
 Ex. 107; 22 L.T. 373; 
 18 W. R. 700. 
 
 4 B. & Aid. 6.30 
 
 31L. J. Ad. 81 
 
 34 L. J. C. P. 146 ; 13 W. R. 
 346; llJur. N. S. 176; 
 18 C. B. N. S. 403. 
 31 L. J. C. P. 137 ; 11 C. B. 
 N. S. 553 ; 8 Jur. N. S. 
 868. 
 1 H. Bl. 364 n. ; 1 Sm. L. C. 
 8th ed. 782. 
 L. R. 8 Ex. 122 ; 42 L. J. 
 Ex. 78 ; 28 L. T. 41.8 ; 21 
 W. R. 422 : 2 Asp. M. 
 L. C. 31. 
 
 3 East 93 
 
 37 L. J. Ad. 48; L. R. 2 A. 
 & E. 273 ; 18 L. T. 587 ; 
 17 W. R. 102. 
 15 M. & W. 632 
 
 49 
 
 546,549,559 
 
 603 
 
 17, 20, 654- 
 
 453 
 
 249, 567, 580 
 582, 585 
 
 78 
 
 650 
 
 588,615,617 
 
 618 
 
 280
 
 TABLE OF CASES. 
 
 XXXI 
 
 Feiiwick r. ScLmulz 
 
 Ferguson Exparte 
 
 Ferro, The 
 
 Figlia Maggiorc, Tho 
 
 Finlay v. Livcvpool Sc G. 
 
 W. S. S. Co. 
 Fletclier v. Alexander 
 
 Fletcher v. luglis 
 Flying Fish, The 
 
 Forbes V. Aspinall 
 Forbes v. Cowie 
 Ford V. Cotes worth 
 
 Forward v. Pitlard 
 Foster i'. Colby 
 
 Fowler r. Knoop 
 
 Fowlcs V. G. W. Rail. Co. 
 
 Fox V. Nott 
 
 Fragano V. Long 
 
 France v. Gaudet ... 
 
 PAGE 
 
 L. R. 3 C. P. 313; 37 L. 327 
 
 J. C.P. 78;18L.T. 27; 
 
 16 W. R. 481; 3 Asp. 
 
 M- L. C. G4. 
 L. R. 6 Q. B. 280 ; 4 L. l-^u 
 
 J. Q. B. 105 ; 24 L. T. 
 
 96 ; 19 W. R. 746. 
 
 L. R. (1893) P. 38 472 
 
 L. R. 2 A. & E. 106; 37 42, 449, 618 
 
 L. J. Ad. 52 ; 18 L. T. 
 
 532; 3 Asp. M.L. C. 97. 
 3 Asp, M. L. C. 487 ; 23 L. 344,613,646 
 
 T. 251. 
 L. R. 3 C. P. 375; 37 L. J. 397,400 
 
 C, P. 193; 18 L.T. 432; 
 
 16 W. R. 803; 3 Asp. 
 
 M. L. C. 69. 
 
 2 B & Aid. 315 486 
 
 31. L.J. Ad. 113; 12 L.T. 619; 75 
 
 B. & L. 436 ; 2 Asp. M. 
 L. C. 221 ; 3 Moo. P. C. 
 
 C. K S. 77. 
 
 ... 203 
 ... 203 
 L. R. 5 183, 316, 525 
 528, 588 
 
 13 East. 323 ... 
 1 Camp. 520... 
 L. R. 4 Q. B. 127 
 Q.B.544;38L.J. Q. B. 
 52 ; 39 L. J. Q. B. ISS ; 
 23 L. T. 165 ; 18 W. R. 
 1169 ; 3 Asp. M. L. C. 
 468. 
 
 IT. R. 27 232,329,330,362 
 
 28 L. J. Ex. 81 ; 3 H. & N. 292, 315, 551 
 705 618 
 
 L. R. 4 Q. B. D. 299; 48 521,618 
 L. J. Q. B. 333; 40 L. T. 
 180 ; 27 W. R. 299. 
 7 Ex. 699 ; 22 L. J. Ex. 76 ; lOl, 510 
 
 7 Rail. & Can. Cas. 421. 
 6 H.viN. 637 ; 30 L.J. Ex. 259 015,617 
 4 B. & C. 219; 6 D. .«c R, 16, 143 
 283;3L. J. K.B. 177. 
 L. R. 6 Q. B. 199 ; 40 L. 81 
 J. Q. B. 121; 19 W. R. 
 622.
 
 X.XX11 
 
 TABLE OF CASES. 
 
 Francesco r. Miisscy 
 
 Fraser v, Telcgrapli Cou- 
 stniction Company. 
 
 Freedom, The 
 
 Freeman r. Buckingham ... 
 Fry V. Chartered Mercantile 
 Bank. 
 
 
 I'AOE 
 
 L. R. 8 Ex. lul ; 12 L. J. 
 
 313 
 
 Ex. 75 : 21 W. R. 410. 
 
 
 L. R. 7 Q. B. 566 ; 41 L. J. 
 
 151 
 
 Q. B. 219; 27L.T. 373; 
 
 
 20 W. R. 721. 
 
 
 L. R. 3 P. C. 594 ; 38 L. J. 
 
 236, 372, 489 
 
 Ad. 25 ; 24 L. T. 452 ; 1 
 
 617, 626 
 
 Asp. M. L. C. N. S. 28. 
 
 
 18 How. 192 
 
 38 
 
 L. R. IC. P. 689; 35 L.J. 
 
 254 
 
 C. P. 306 ; 11 L. T. 709 ; 
 
 
 11 W. R. 920;2Asp.M. 
 
 
 L. C. 316. 
 
 
 G 
 
 Gabarron v. Kreeft... 
 
 Gabay v. Lloyd 
 Gadd V. Houghton 
 
 Gactano &. Maria, The 
 
 Gaii'dner v. Scnhousc 
 Galam, (Cargo ex) ... 
 
 Galley of Lome 
 Gardner v. Trechmann 
 
 Garrett v. Melhuish 
 
 Garrison u. Mcmphiii Insur- 
 unce Cot 
 
 L. R. 10 Ex. 274 ; 44 L. 21, 150, 
 J. Ex. 238 ; 33 L. T. 637, 653, 
 365 ; 24 W. R. 146 ; 3 654, 655 
 Asp. M. L. C. K S. 36. 
 3 B. & C. 793; 5 D. & R. 641 486, 516 
 L. R. 1 Ex. D. 357 ; 46 L. 49 
 J. Ex. 71 ; 35 L. T. 222 ; 
 21 W. R. 975. 
 L. R. 7 P. D. 137 ; 51 L. 137, 608 
 J. Ad. 67; 46L. T. 835; 
 30W.R. 766; 4 Asp. M. 
 L. C. N. S. 535. 
 
 3 Taunt 16 199 
 
 33 L. J. Ad. 97 ; 9 L. T. 550 ; 395 
 
 12 W. R.495; 2 Moo. P. 
 
 C. N". S. 216 ; 10 Jur. N. 
 
 S. 477;B. &L. 167. 
 Mit. Mar. Reg. Feb. 11 355 
 
 1876. 
 L. R. 15 Q. B. D. 154 ; 54 308, 548 
 
 L. J. Q. B. 515 ; 53 L. T. 
 
 518; 5 Asp. M. L. C. 
 
 558. 
 
 4 Jur. N. S. 913 270 
 
 19 How. 312 363
 
 TABLE OF CASEH. XXXlll 
 
 PAGE 
 Garston S. S. Co. v. Ilickic. L. R. 18 Q. B. D. 17; 5ei 23ti,25^478 
 
 L. J. Q. B. 38; 55 L. T. 
 
 879; 35 W. R. 33; G 
 
 Asp. M. L. C. N. S. 71. 
 GatlifEe v. Bourne -I Biug. N. Q. dU ; 7 L. J. C. 240,248,587 
 
 P. 172; 3 M. &G. 643; 589 
 
 7 M. & G. 850 ; 11 CI. 
 
 & F. 45. 
 Geipel i-. Smith L. R. 7 Q. B. 404; 41 L. J. 53t; 
 
 Q. B. 153 ; 26 L. T. 361 ; 
 
 20 W. R. 332 ; 1 Asp. M. 
 L. C. N. S. 268. 
 
 Gether v. Capper 24 L. J. C. P. 69 ; 25 L. J. C, 282 
 
 P. 260 ; 18 C. B. 866 ; 1 
 Jixr. N. S. 332 ; 2 Jur. 
 N. S. 789. 
 
 Gibbon I. Meudez 2 B & Aid. 17 276 
 
 Gibbon V. Yonng 2 Moore 224 65 
 
 Gibbs V. Potter 11 L. J. Ex. 376 ; 10 M. & W. 506 
 
 70 ; 6 Jur. 586. 
 
 Gibson V. Sturge 24 L. J. Ex. 121 ; 10 Ex. 622 ; 269, 286 
 
 1 Jur. N. S. 259 ; 3 C. 
 L. R. 421. 
 
 Gilkison V. Middletou ... 26 L. J. C. P. 209; 2 C. B. 255 
 
 N. S. 134. 
 
 Gill V. Manchestei Rail. Co. L. R. 8 Q. B. 186 ; 42 L. 461 
 
 J.Q.B.89;28L.T.587; 
 
 21 W. R. 525. 
 
 GiUespie v. Tiiompson ... 2 Jur. N. S. 712 ; 6 E. .^ B. U7 
 
 477 n. 
 
 Gilroy Sons & Co. v. Price. L. R. (1893) 1 A. C. 56 ; 238, 471 
 
 18 Sess. Ca. 4th Series 
 (Rettie) 569. 
 
 Glenf ruin, The L. R. 10 P. D. 103; 54 L. 358 
 
 J. Ad. 49 ; 52 L. T. 769 ; 
 33 W. R. 826 ; 5 Asp. M. 
 L. C. N. S. 413. 
 
 Glynu.Eust andWeyt India L. R. 6 Q. B. D. 475; L. 11, 567, 
 
 Dock Co R- 7 -^PP- Cas. 591 ; 50 570, 585, 
 
 L. J. Q. B. 62 ; 52 L. J. 651 
 Q. B. 146 ; 47 L. T. 3U9 ; 
 43L. T. 581- ; 29 W. R. 
 316 ; 31 AV. R. 2U1 ; 4 
 Asp. M. L.C.N. S. 580 J 
 L. R. 5 q. B. D. 129.
 
 XXXIV 
 
 TABLE OF CASES. 
 
 Goft' c. Cliukarcl 
 
 Good V. Tlie Loudon S. Ship- 
 OAmers Protecting Asso- 
 ciation. 
 
 Gorrissen v. Perrin ... 
 
 Goupy V. Harden 
 
 Graham v. Hille 
 
 Graham v. Mervanji Nus- 
 servanji. 
 
 Grant v. Covcrdalc 
 
 Grant v. Norway 
 
 Grasemann & Co. v. Little- 
 page. 
 
 Gratitiidine, The 
 
 Gray v. Carr 
 
 Great Lidian Peninsuhi Rail- 
 way V. Tiirnbull. 
 
 Great Northern Rxilway Co. 
 V. SwaflSeld 
 
 Great West Rail Co. v. 
 Blower 
 
 Green v. Elmslie 
 
 Greenway v. Fisher 
 
 Greeves v. The West India 
 
 & Pacific Steamship Co. 
 Grew Widgcry & Co. r. 
 
 Great W. S. S. Co. 
 Grieve v. Konisr 
 
 PAGE 
 
 IWils. 281 456 
 
 L. R. 6 C. P. 563 ; 20 W. 483 
 R. 33. 
 
 27 L. J. C. P. 29; 2 C.B.N. 65 
 
 S. 681 ; 3 Jiir. N. S. 867 
 
 7 Taunt. 159 ; Holt 342 ... 46 
 
 10 Bom. H. C.R. 60 235, 439 
 
 I. L. R. 5 Bom. 539 ... 169 
 
 L. R. 11 Q. B. D. 543 ; L. 
 
 R. 9 App. Cas. 470 ; 53 
 L. J. Q. B. 462; 51 L. 
 T. 472 ; 32 W, R. 831 ; 5 
 Asp, M, L. C.N. S. 353; 
 L. R. 8 Q. B. D. 600. 
 10 C. B. 665 ; 20 L. J. C. P. 
 93 ; 15 Jiu-. 296 ; 16 L. 
 T. O. S. 504. 
 
 3 Cal. W. R. Rec. Ref. 1 ... 
 
 C. Rob. 260 
 
 L. R.6 Q. B. 522; 40 L. J. 
 
 Q. B. 257; 25L. T. 215; 
 
 19 W. R. 1173 : 1 Asp. 
 
 M. L. C. 115. 
 
 25, 33, 
 56, 230 
 
 23 
 
 443, 604 
 254, 559 
 
 53 L. T. 325 ; 33 W. R. 874 ; 
 
 304 
 
 5 Asp. M- L. C. 465. 
 
 
 L. R. 9 Ex. 132 ; 43 L. J. 
 
 445 
 
 Ex. 89 ; 30 L. T. 562. 
 
 
 L. R. 7 C. P. 655 ; 41 L. J. 
 
 443, 452 
 
 C. P. 268. 
 
 
 PeakeN. P. 212 
 
 489 
 
 1 C. &P. 192 
 
 567 
 
 3 Asp. M. L. C. 426 ; 22 L. 
 
 119 
 
 T. 615 ; 20 L. T. 914. 
 
 
 Douglas M. L. Decisions, 
 
 458 
 
 40; W. N. (1887) 161. 
 
 
 17 Sc. L. R. 325 
 
 6
 
 Txm.T. OF CASES. XXXV 
 
 PAGE 
 Grill V. Gen. Iron Screw L. R. 3C. T. 47G; L. R. 13:3,234,354 
 
 Collier, Co. 1 C. P. GOO ; 35 L. J. C. 423, 4G4, 
 
 P. 321 ; 37 L. J. C. P. 488 
 
 205 ; H. &. R. G54 ; 18 L. 
 
 T. 485 ; 16 W. R. 79G ; 
 
 3 Asp. Mar. L. C. 77; 
 
 12 Jur. N. S. 727. 
 GiiUiscbon r. Stewart ... L. R. 13 Q. B. D. 317: 53 309 
 
 L. J. Q. B. 173; 50 L. 
 
 T. 47 ; 32 W. R. 763 ; 5 
 
 Asp.M.L.C.200; 11 Q. 
 
 B. D. 186 ; 52 L. J. Q. B. 
 648; 49 L. T. 198; 31 
 W. R. 745. 
 
 Gnmmr. Tyvie 33 L. J. Q. B. 97; 34 L. J. 281, 654 
 
 Q. B. 124; 4 B. & S. 
 680 ; 6 B. & S 299. 
 
 Gunn V. Roberts L. R. 9 C. P. 331 ; 43 L. J. 444 
 
 C. P. 233; 30 L. T. 424; 
 22 W. R. 652; 2 Asp. 
 M. L. C. 250. 
 
 Guvney r. Belirend 3 E. & B. 622 ; 23 L. J. Q. B. 38 
 
 265 ; 18 Jur. 856. 
 
 Gny Manneriug, The ... L. R. 7 P. D. 52, 132 ; 51 175,460 
 
 L. J. Ad. 57 ; 46 L. T. 
 905 ; 30 W. R. 835 ; 4 
 Asp. M. L. C. 583; 6 
 Asp. M. L. C. 485, 553. 
 
 H 
 
 Haddow r. Parry 3 Tannt 303 58,598 
 
 Hadloy V. Baxondale ... 9 Ex. 341 ; 23 L. J. Ex. 179 ; 67 
 
 18 Jur. 358; 2 C. L. R. 
 
 517. 
 
 Habn 1.. Corbett 2 Ring. 205 486,489 
 
 Haille r. Smitb 1 B. & P. 563 611 
 
 Halkett, Ex parte 19 Ves. 474; 3 Ves. & B. 604 
 
 139 ; 2 Rose 194 ; 229. 
 
 Hall V. Wri.'bt 27 L. J. iN. S.) Q. B. 345 ... 528
 
 XXXTl 
 
 TABLE OF CARES. 
 
 Halloj, The ... 
 Hamburg, The 
 
 Hamilton v. Pandorf 
 
 Hammack v. White 
 Hammond v. Reid 
 Hand v. Baynes 
 Hanson v. Meyer 
 Hanson v. Roydon 
 
 Harman v. Chirke 
 Harris v. Jacobs 
 
 Harrowcr v. Hutchinson 
 
 Hathesing v. Lainpc... 
 
 Havelock v. Geddes... 
 Havelock v. Hancill 
 Hawes v. S. E. Rail. Co. 
 
 L. R. 2 P. C. 193 ; 37 L. 
 J. Ad. 33; 18 L.T. 879; 
 IG W. R. 998. 
 33 L. J. Ad. 116 ; 2 Moo. P. 
 C. N. S. 289 ; B. & L. 
 253; 10 L. T. 206; 12 
 W. R. 628 ; 2 Asp. M. 
 L. C. 1; 32 L. J. Ad. 
 161 ; 9 Jur. N. S. 445 ; 
 10 Jur. N. S. 601 ; 11 
 W. R. 54 ; 2 N. R. 136 ; 
 1 Asp. M. L. C. 327. 
 L. R. 12 App. Cas. 518; 
 L. R. 17 Q. B. D. 670; 
 L. R. 16 Q. B. D. 629 ; 
 57 L. J. Q. B. 24; 57 
 L. T. 726; 36 W. R. 
 369 ; 6 Asp. M. L. C. N. 
 S. 212. 
 
 31 L. J. C. P. 129 
 
 4 B. & Aid. 72 
 
 4 Whart. 204 
 
 6 East 622 
 
 L. R. 3 C. P. 47 ; 37 L. J. 
 C. P. 66; 17 L. T. 214; 
 16 W. R. 205. 
 
 4 Camp. 159 
 
 L. R. 15 Q. B. D. 247 ; 54 
 L. J. Q. B. 492 ; 5 Asp. 
 M. L. C. N. S. 530. 
 L. R. 4 Q. B. 523 ; L, R. 
 5Q. B. 584; 38 L.J. Q. 
 B. 185 ; 39 L. J. Q. B. 
 229; 22 L. T. 684; 10 
 B. & S. 469. 
 L. R. 17 Eq. 92 ; 43 L. J. 
 Ch. 233 ; 29 L. T. 734 ; 
 2 Asp. M. L. C. N. S. 
 170. 
 
 10 East 555 
 
 3 T. R. 277 
 
 54 L. J. Q. B. 174 ; 52 L. T. 
 514. 
 
 PAGE 
 209 
 
 443, 603 
 
 415, 473 
 
 422 
 204 
 173 
 545 
 161 
 
 160 
 318 
 
 163, 203 
 
 16, 17 
 
 271, 281 
 350 
 79
 
 taplt: op casks. xxxtu 
 
 PAGE 
 
 Hajn r. Ciilliforcl L. R. 3 C. P. D. 410; L. 1, 41, 46, 
 
 R. 4 C. P. D. 182 ; 47 4-18, 4G3, 
 L. J. C. P. 75G ; 48 L. 040 
 
 J. C. P. 372 ; 40 L. T. 
 536 ; 27 W. R. 541 ; 4 
 Asp.M.L. C. N. S. 128. 
 
 Hayton v. Ivwin L. R. 5 C. P. D. 130 ; 41 180, 590 
 
 L. T. 660 ; 28 W. R. 665 ; 
 4 Asp. M. L. C. N. S. 
 
 Hearne r. Garton 2 E. & E. 60 ; 28 L. J. M. C. 452 
 
 216; 33 L. T. 256; 5 
 
 Jur. N. S. 648. 
 Hedley r. Pinkiiey & Sons 7 Asp. M. L. C. 137 ; L. R. 238 
 S. S. Co. (1892) 1 Q. B. 58 ; 40 W. 
 
 R. 113. 
 Heluvicli, Til- L.R. 3 A. & E. 424; 24 537 
 
 L. T. 914;41 L. J. Ad. 
 
 68. 
 Helene, Tlae L. R. 1 P. C. 231 ; 4 Moo. 440,600,626 
 
 P. C.N. S. 70;35L. J. 
 
 P. C. 63;14L. T. 873; 
 
 15 W. R. 202 ; 2 Asp. 
 
 M. L. C. 390 ; B. & L. 
 
 415. 
 Henderson r. Coniptoir L. R. 5 P. C. 253 ; 42 L. 629 
 
 d' Escompte de Paris. J. P. C. 60 ; 22 L. T. 
 
 192 ; 21 W. R. 873. 
 
 Herman r. The Western IS Lo. R. 516 213 
 
 Mar. Ins. Co. 
 
 Hick 1'. Raymond L. R. (1893) A. C. 22 ... 348,523 
 
 Hick r. Tweedy 63 L. T. 765 75 
 
 Hickie V. Rodocanachi ... 28 L. J. Ex. 273 ; 4 H. & N. 277 
 
 455; 7 W. R. 545; 5 
 
 Jur. N. S. 550. 
 Higgiubotlaam v. Great N. 2 F. c^ F. 790 ; 10 W. R. 358. 497 
 
 R?Co. 
 Hill V. Wilson L. R. 4 C. P. D. 329; 48 398 
 
 L. J. C. P. 764; 41 L. 
 
 T. 412 ; 4 Asp. M. L. C. 
 
 N. S. 198.
 
 XXXTlll 
 
 TABLE OP CASES. 
 
 Hillsti'omr. Gibson. 
 
 Hobbs r. Hannam ... 
 HoUinccworth v. Brodrick . . . 
 
 Holman r. Dasnieres 
 Holnian v. Penivian Nitrate 
 
 Co. 
 
 Hoist V. Pownal 
 
 Hong Kong & Shanghai 
 
 Banking Corporation r. 
 
 Baker. 
 Home V. Midland Ry. Co.,.. 
 
 Horncastle v. Farran 
 Horsley v. Price 
 
 Hotham v. East India Co... 
 Honccb r. Manzanos 
 
 Houlder v. Merchants' Ma- 
 rine Ins. Co. 
 
 Hovill V. Stevenson 
 
 How V. Kirchner 
 
 Howard v. Shepherd 
 
 Howard v. Tucker 
 
 Howland v. Greenway 
 Hubber.sty v. Ward 
 
 PAGE 
 
 8 Sc. Sess. Cas. 3rd Series. 183, 184 
 
 463; 22 L. T. 248; 3 
 
 Asp. M. L. C. 362, 
 
 3 Camp 63 353 
 
 7 A. & E. 44 ; 8 L. J. Q. B. 207 
 
 80 ; 2 N. & P. 608 ; 1 
 
 Jur 430. 
 
 2 Times L. R. 607 141 
 
 5 Sess. Cas. (4th Series) 657 ; 320 
 
 15 Sc. L. R. 349. 
 
 1 Esp. 240 539 
 
 7 Bom. H. C. Rep. 18G ... 364,488,489 
 
 L. R. 7 C. P. 583 ; L. R. 
 
 67 
 
 8 C. P. 131 ; 42 L. J. C. 
 
 
 P. 59; 28L. T. 312; 21 
 
 
 W. R. 481. 
 
 
 3B. &Ald. 497 
 
 546 
 
 L. R. 11 Q. B. D. 244; 52 
 
 190, 318 
 
 L. J. Q. B. 603 ; 49 L. T. 
 
 
 101 ; 31 W. R. 841 ; 5 
 
 
 Asp. M. L. C. N. S. 
 
 
 106. 
 
 
 1 T. R. 638: 1 Doug 272 ... 
 
 269 
 
 L. R. 4Ex. D. 104; 48 L. 
 
 49 
 
 J. Ex. 398; 27 W. R. 
 
 
 536. 
 
 
 L. R. 17 Q. B. D. 354 ; ... 
 
 437, 590 
 
 55 L. J. Q. B. 420; 6 
 
 
 Asp. M. L. C. N. S. 12. 
 
 
 4C. &P. 469 
 
 447 
 
 6 W. R. 198 ; 11 Moo. P. C. 
 
 301, 550. 
 
 C. 21. 
 
 
 9 C. B. 297 ; 19 L. J. C. P. 
 
 251,611,612 
 
 249. 
 
 
 1 B. & Ad. 712 
 
 56, 232, 293 
 
 22 How. 491 
 
 344 
 
 8 E.K. 330 ; 22 L. J. Ex. 113. 
 
 31, 152, 228
 
 TABLE OF CASES. XXXIX 
 
 PAGE 
 
 Hudson i. Edc L. R. 3 Q. B. 412 ; 37 L. 324,325,326 
 
 J. Q. B. 166;L. R. 2Q. 
 
 B. 566 ; 36 L. J. Q. B. 
 273; 18 L. T. 764 ; 16 W. 
 R. 490 ; 3 Asp. M. L. 
 
 C. 114; 16 L. T. 698; 
 15 W. R. 1111 ; 8 B. & 
 S. 631, 640. 
 
 H umf ley r. Dale 26 L. J. Q. B. 137 ; 27 L. J. 63 
 
 Q. B. 390; E. B. &E. 
 1004 ; 5 Jur. N. S. 191. 
 
 Hunter I'. Fry 2 B. & A, 421 279 
 
 Hunter r. Leiithley 10 B. & C. 858 ; 5 M. & P. 202 
 
 457 ; 1 Tyr. 355 ; 7 Bing 
 517 ; 1 C. & J. 423. 
 
 Hunter r. Potts 4 Camp. 203 413,489 
 
 Hunter r. Princep 10 East 378 272 
 
 Hussonbboy r. The British I. L. R. 13 Bom. 571 ... 3 
 
 India Steam Nav. Co. Ld. 
 Hutchinson v. Guion ... 28 L. J. C. P. 63 ; 5 C. B. N. 450, 452 
 
 S. 149 ; 4 Jur. N. S. 
 1149. 
 
 Huth r. Lamport L. R. 16 Q. B. D. 442, 404 
 
 735 ; 55 L. J. Q. B. 239 ; 
 
 54 L. T. 663 ; 34 W. R. 
 
 386; 5 Asp. M. L. C. 
 
 N. S, 593. 
 Hyde v. Trent Nav. Co. ... 5 T. R. 389 ; 1 Esp. 36 ... 232,240,247 
 
 564 
 
 Ibrahim Moosum r. The Bri- S Cal. W. R. C. R. 35 ... 361,593 
 tish India Steam Nav. Co. 
 
 Inglisr. Vaux 3 Camp. 437 206 
 
 lona, The L. R. 1 P. C. 426; 4 Moo. 208, 459 
 
 P. C.C.N. S. 336; 16 L. 
 
 T. 158. 
 
 lonides v. Pacific Fire & L. R. 7 Q. B. 517 ; 41 L. J. 158 
 
 Marine Ins. Co. Q.B. 100.
 
 xl 
 
 TABLE OF CAiSEb. 
 
 louides V. Pender 
 
 Irene, The 
 
 Irrawaddy Flotilla Co. v. 
 
 Bugwaiidas. 
 Irvine v. Mid. G. W. R. Co. 
 
 27 L. T. 244; L. R. 9 Q B. 
 531 ; 43 L. J. Q. B. 227; 
 30 L. T. 457 : 21 W. R. 
 39; 2 Asp. M. L.C.N. 
 S. 266. 
 
 5 Rob. 67 
 
 L. R. 18 Ind. App. 121 ; 
 I. L. R. 18 Cal. 620. 
 6L. R. Ir. 55 
 
 PAGE 
 353 
 
 535 
 123 
 
 76 
 
 Jackson v. Isaacson. . , 
 
 Jackson v. The Union Ma- 
 rine Assurance Co. 
 
 Jaerden, The 
 
 Jane, The 
 
 Jebsen v. East and West 
 India Dock Co. 
 
 Jellicoe I'. The B. I. S. N. 
 
 Co. 
 Jenkyns u. Brown ... 
 
 Jenkyns v. Usborne ... 
 
 Jessel V. Bath 
 
 Jesson V. Solly 
 
 Job V. Langton 
 
 John Bellamy, The 
 
 Johnson v. Chapman 
 
 27 L. J. Ex. 392 ; 3 H. & N. 
 405. 
 L. R. 10 C. P. 125 ; 44 L. 
 J. C. P. 27 ; 23 W. R. 
 169 ; 2 Asp. M. L. C. N. 
 S. 435; L. R. 8 C. P. 
 572;42L. J. C. P. 284; 
 31 L. T. 789. 
 
 61 L. J. Ad. 89 
 
 2 Hag. Ad. 338 
 
 L. R. 10 C. P. 300 ; 44 L. 
 J. C. P. 181; 32L. T. 
 321;23 W. R. 624. 
 I. L. R. 10 Cal. 489 
 
 271 
 
 488 
 
 316 
 218 
 
 77 
 
 474 
 
 14 Q. B. 496 ; 19 L. J. Q. B. 654 
 
 286 ; 14 Jur. 505. 
 7 M. & G. 678 ; 8 Scott. N. R. 650 
 505; 13L. J. C.P. 196. 
 L. R. 2 Ex. 267 ; 36 L. J. 56, 62, 595 
 Ex. 149 ; 15 W. R. 1041. 
 
 4 Taunt. 52 7,313 
 
 6 E. & B. 779 ; 26 L. J. Q. 395 
 B. 97 ; 3 Jur. N. S. 109. 
 L. R. 3A. & E. 129; 39 58 
 L. J. Ad. 28. 
 35 L. J. C, P. 23 ; 19 C. B. N. 385, 388, 392 
 S. 563 ; 2 Asp. M. L. C. 396 
 404.
 
 TABLE OF C'A«ES. 
 
 xli 
 
 Johnstone v. Benson 
 
 Jolly I'. Yomif? 
 Jones r. Hoii''li 
 
 Jones V. Jones 
 
 Jones I'. Nicholson 
 
 Joyce r. Swan 
 
 Jump & Sons v. The owners 
 
 of the barque " Grouncl- 
 
 lovcn." 
 
 PAGE 
 
 4 B. Moore 90; 1 B. & B. ioo 
 •45-i. 
 
 1 Esp. 186 65,281 
 
 L. R. 5Ex. D. 115; 49 L. 23 
 J. Ex. 211 ; 42 L. T, 108, 
 4 Asp. M. L. C. N. S. 
 248. 
 8 M. & W. 431 ; 10 L. J. Ex. 631 
 481. 
 23 L. J. Ex. 330; 10 Ex. 28 ; 351, 353 
 2 C. L. R. 12. 
 
 17 C. B. N. S. 84 637,654 
 
 Shipping Gazette,31st Oct 504 
 1874. 
 
 K 
 
 Kurnak, The... 
 
 Kathleen, The 
 Kay I'. Field... 
 
 Kay I', Wheeler 
 
 Kearon c. Pearson 
 Kell V. Anderson 
 
 L. R. 2 P. C. 505 ; 38 L. J. 443, 604 
 
 Ad. 57 ; 21 L. T. 159 ; 
 
 17 W. R 1028 ; 3 Asp. 
 
 M. L. C. 276 ; 6 Moo. P. 
 
 C. C. N. S. 136. 
 L. R. 4 A. & E. 269 ; 43 277, 423 
 
 L.J. Ad. 39; 31 L. T. 
 
 204; 23 W. R. 350; 2 
 
 Asp. M. L. C. N. S. 367. 
 
 L. R. 10 Q. B. D. 241 ; L. 322 
 
 R. 8 Q B. D. 594 ; 52 L. 
 
 J. Q. B. 17; 46 L. T. 
 
 630; 47 L. T. 423; 4 
 
 Asp. M. L.C.N. S. 588. 
 L. R. 2 C. P. 302 ; 36 L. J. 413, 488 
 
 C. P. 180 ; 16 L. T. 6{) ; 
 
 15W.R. 495;2 Asp. M. 
 
 L. C. 465. 
 7 H. & N, 386 ; 31 L. J. Ex. 325 
 
 1 ; 10 W. R. 12. 
 10 M. .t AV. 498; 12 L. J. Ex. 317 
 
 lOi.
 
 xlii 
 
 TABLE OF CASES. 
 
 Kemp V. Fiilk 
 
 Kennedy v. Dodge 
 
 Kennersley Castle, The . . . 
 Kinloch v. Craig 
 Kii'cbner r. Yeniis ... 
 
 Klinwort Cohen & Co. v. 
 
 The Casa Maritima of 
 
 Genoa. 
 Knight V. Cambridge 
 Knowles v. Horsfall 
 Kopitoff V. Wilson 
 
 Kreeft v. Thompson 
 
 Krender v. Woolcott 
 Kuvcrji Tulsidas v. G. 1. P 
 Rail. Co. 
 
 PAGE 
 
 L. R. 7 App. Cas. 573 ; 52 621, 652 
 L. J. Ch. 167 ; 47 L. T. 
 457; 31 W. R 125; 5 
 Asp. M. L. C. 1. 
 
 2 Asp. M. L. C. 505 ... 591 
 
 3 Hagg. 1 161 
 
 3 T. R. 119 ; 4 Bro. P. C. 47. 651 
 
 12 Moo. P. C. 361 ; 7 W. R. 65, 255, 301, 
 455 ; 5 Jur. N. S. 395. 545, 550, 560 
 L. R. 2 App. Cas. 156 ; 36 603 
 L. T. 118 ; 25 W. R. 608. 
 
 1 Str. 581 ; 8 East. 135 ... 
 
 5 B. & Aid. 139 
 
 L. R. 1 Q. B. D. 377 ; 45 
 L. J. Q. B. 436; 34 L. 
 T. 677; 24 W. R. 706; 
 3 Asp. M. L. C. N. S. 
 163. 
 L. R. 10 Ex. 281 ; 44 L. J. 
 Ex. 238 ; 33 L. T. 365 ; 
 24 W. R. 146; 3 Asp. 
 M. L. C. N. S. 36. 
 
 1 Hilton, 223 
 
 I. L. R. 3 Bom. 109 
 
 349 
 
 584 
 238 
 
 21, 150 
 
 490 
 123 
 
 Lady Franklin, The 
 Lamb v. Parkman ... 
 Lambert v. Liddiard 
 Langhorn v. Allnutt 
 Laroche ?;. Osv.'in 
 Laiigher v. Pointer ... 
 
 Laurie v. Douglas . . . 
 Laveroui v. Drury , . . 
 
 Law V. Hollingswoi'lh 
 Lawrcnee v. Alterdein 
 Lawrence v. Miuturn 
 
 3 Asp. M. L. C. N. S. 361 ... 38 
 
 1 Sprague343 366 
 
 5 Taunt. 480 203 
 
 4 Taunt. 510 204 
 
 12 East. 131 205 
 
 5 B. & C. 547 ; 4 L. J. K. 424 
 
 B.309; 8 Dow. &R. 556, 
 
 15 M. & W. 746 234, 487 
 
 8 Ex. 166; 22 L. J. Ex. 2; 234,413,488 
 16 Jur. 1024. 
 
 7 T. R. 160 206 
 
 5 B. .*^ A. 107 486, 516 
 
 17 How. 100 ; 21 Curtis 392, . . 387
 
 tablt: of cases. 
 
 xHii 
 
 Lawrence v. Syclobotbam . . . 
 Lcbeaii v. General Steam 
 Nav. Co. 
 
 Lcduc 1'. Ward 
 
 Leer v. Tates 
 
 Le Fevre v. Lloyd . . . 
 
 Leidemann v. Schultz 
 
 Leptir, The 
 
 Leiiw V. Dudgeon 
 
 Lewis V. Marshall 
 
 Lewis V. McKee 
 
 Liekbarvow v. Mason 
 
 Lidgett V. Perrin 
 
 lilladhur Jairam Naranji v, 
 
 Wreford. 
 Lisbman v. Christie 
 
 East. 45 ; 2 Smith 214 ... 
 
 L. R. 8 C. P. 88; 42 L. 
 J. C.P.I, 7G;27 L. T. 
 447; 21 W. E. 146; 1 
 Asp. M. L. C. N. S. 435. 
 
 PAGE 
 
 215,210,219 
 145, 598 
 
 L. R. 20 Q. B. D. 475; 
 
 55, 64, 192 
 
 57 L. J. Q. B. 379 ; 58 
 
 612 
 
 L. T. 908; 36 W. R. 
 
 
 537 ; 6 Asp. M. L. C. N. 
 
 
 S. 290. 
 
 
 3 Taixnt. 387 
 
 7,317 
 
 5 Taunt. 749 
 
 46 
 
 23 L. J. C. P. 17; 14 C. B. 
 
 65 
 
 38;18 Jur. 42; 2 C. L. 
 
 
 R. 87. 
 
 
 52 L. T. 578 ; 5 Asp. M. L. C. 
 
 268 
 
 N. S. 411. 
 
 
 L.R. 3C. P. 17n;37L.J. 
 
 234, 514 
 
 C. P. 5 ; 17 L. T. 145 ; 
 
 
 16 W. R. 80 ; 3 Asp. M. 
 
 
 L. C. 3. 
 
 
 13 L. J. C. P. 193 ; 7 M. & G. 
 
 64,65 
 
 729 ; 8 Scott. N. R. 846 ; 
 
 
 8 Jur. 848. 
 
 
 4 H. & C. 674 ; L. R. 2 Ex. 
 
 619, 626 
 
 37 ; L. R. 4 Ex. 58 ; 36 
 
 
 L.J. Ex. 6; 38 L.J. Ex. 
 
 
 62 ; 15 L. T. 388 ; 19 L. 
 
 
 T. 522 ; 17 W. R. 325. 
 
 
 2 T. R. 63 ; 5 T. R. 683 ; 1 
 
 4, 152. 567 
 
 H. Bl. 357; 2 H. Bl. 
 
 570, 630 
 
 211; 4 Bro. P. C. 57; 
 
 
 6 L. T. 63 ; 1 Sm. L. C. 
 
 
 9th ed. 737 ; 6 East. 27. 
 
 
 2F.&F.763; IIC.B.N. S. 
 
 151 
 
 362. 
 
 
 L L. R. 17Bom. 62 
 
 613, 632 
 
 L. R. 19 Q, B. D. 333 ; 54, 140 
 56 L. J. Q. B. 538 ; 57 
 L. T. 552; 35 W. R. 
 744 ; 6 Asp. M. L. C. N. 
 S. 186.
 
 xliv 
 
 tablt of cases, 
 
 PAGE 
 Litt V. Cowley 7 Taunt. 1G9 ; 2 Marsh. 457 ; G32 
 
 Holt. 338. 
 Liver Alkali Co. v. Johnson. L. R. 7 Ex. 267 ; L. E. 9 232 
 
 Ex. 338; 43 L. J. Ex. 
 
 216; 31 L, T. 95;2 Asp. 
 
 M. L. C. N. S. 3?2. 
 
 Livie V. Janson 12 East. 648 489 
 
 Lizzie, The L. R. 2 A. & E. 254; 19 443 
 
 L. T. 71 ; 3 Asp. M. L. 
 
 C. 150. 
 Lloyd r. General Iron Steam 3 H. & C. 284 ; 33 L. J. Ex. 234, 488 
 Colliery Co. 269 ; 10 L. T. 586 ; 12 
 
 W. R. 882 ; 2 Asp. M. 
 
 L. C. 32. 
 
 M 
 
 Mac, The L. R. 7 P. D. 126 ; 51 L. 156 
 
 J. Ad. 81; 46L.T. 907; 
 4 Asp. M. L. C. N. S. 
 555. 
 Macgregori'.Dover and Deal IS Q. B. 618 210 
 
 Ry. Co. 
 
 Mackill t'. Wright L. R. 14 App. Cas. 106 ... 416,447 
 
 Mackillican v. Compagnie I. L. R. 6 Ciil. 234 ... 468 
 
 des Messageries Maritimcs 
 Macliinnon,Mackenzie(fcCo. I. L. R. 5 Bom. 584 ... 51 
 
 V. Lang, Moir & Co. 
 Mackinnon, Mackenzie v. 
 
 Minchin. 
 Mackinnon v. Taylor 
 Macklin V. Waterhouse 
 Madhulj Chunder Deyu.Law 
 Mahomed Ismailjee v. B. I, 
 
 S. N. Co. 
 Major V. White 
 Marathon, The 
 
 Margetson V. Glynn 
 
 6 Mad. H. C. R. .353 
 
 533 
 
 Com. Ca. 514 
 
 438 
 
 5 Bing. 217 
 
 232 
 
 13 Ben. L. R. .394 
 
 232, 490 
 
 9 Cal. W. R. C. R. 396 ... 
 
 593 
 
 7 C. &P. 41 
 
 44, 447 
 
 40 L. T. N. S. 163 ; 4 Asp. 
 
 470, 612 
 
 M. L. C. N. S. 75. 
 
 
 L. R. (1892j 1 Q. B. 337 ; 
 
 5.5, 64, 195 
 
 7 Asp. M. L. C. 148 ; 61 
 
 
 L. J. Q. B. 186 ; 6G L. 
 
 
 T.142; AfF. H.L.(1893). 

 
 TABLr OF CARTia. 
 
 xlv 
 
 Marin, Tlio 
 
 Marpesia, Tlir 
 
 Mavqiiand v. Banner 
 
 Marsden v. Rei J 
 
 Marshall v. American Ex- 
 press Co. 
 
 Marshall r. Bolekow Yan- 
 f:jhan &. Co. 
 
 Mary Ann, The 
 
 Mary Stewart, The... 
 Marzotti r. Smith ... 
 
 Max r. Roberts 
 
 Mayor, &c., of Sonthport v 
 
 Morris. 
 M'Cance r. L. & N. W. Rail 
 
 Co. 
 Mcintosh r. Sinclair 
 McLean i'. Flom in"... 
 
 Mercantile and Exchange 
 Bank v. Gladstone 
 
 Merchant Sliipping Co. v. 
 Armitage ... 
 
 Merian v. Fnnek 
 
 Metcalfe r. Britannia Iron- 
 works Company. 
 
 1 W. Rob. 9.5 
 
 L. R. !• P. C. 212 ; 20 L.T. 
 
 CE. &B. 232; 25L. J.Q.B. 
 313 ; 2 Jur. N.S. 708. 
 
 3 East. 572 
 
 GWhart. 505 
 
 L.R. 6 Q.B.D. 231 ; 29 W. 
 
 R. 792. 
 L. R. 1 A. &E.8; 35 L.J. 
 
 Ad. 6; 13L. T. 384; 14 
 
 W. R. 136 ; 12 Jur. N.S. 
 
 31. 
 
 2 W. Rob. 244 
 
 49 L.T. 580; 1 C. &E. 6; 5 
 
 Asp. M. L. C. N. S. 16G. 
 
 12 East. 89; 2 N. R. 454 ... 
 
 L.R. (1893) IQ. B. 359; 
 
 G2 L. J. M. C. 47. 
 34L. J. Ex. 39 
 
 PAOR 
 
 208, 459 
 422 
 
 290 
 
 199, 202 
 512 
 
 328 
 
 553 
 
 422 
 243 
 
 458 
 154 
 
 598 
 
 320 
 
 33, 56, 228, 
 
 257,559,597 
 
 Ir. R. 11 C. L. 456 
 
 L. R. 2 H. L. Sc. 128 ; 25 
 
 L.T. 317; 1 Asp. M.L. 
 
 C. N. S. 160. 
 L. R. 3 Ex. 233 ; 37 L. J. 56, 6G, 293 
 
 Ex. 130 ; 18 L. T. 641 ; 
 
 17 W. R. 11 ; 3 Asp. M. 
 
 L. C. 87. 
 L. R. 9 Q. B. 99 ; 43 L. J. 
 
 Q. B. 24 ; 29 L. T. 97, 
 
 809 ; 2 Asp. M. L. C. N. 
 
 S. 185 ; 22 W. R. 11. 
 
 4 Denio. 110 
 
 L.R. 1 Q. B. D. 613; L. 
 
 R. 2 Q. B. D. 423 ; 46 
 
 L. J. Q. B. 443 ; 36 L. 
 
 T. 451 ; 25 W. R. 720 ; 
 
 3 Asp. M. L. C. N. S. 
 
 407. 
 
 259, 270 
 
 050 
 182,188,261
 
 xlvi 
 
 TABLE OF CASES. 
 
 Meyev ?'. Dresser 
 
 Meyerstein v. Barber 
 
 Micheson v. Nicol . . . 
 Miebrodt v. Fitzsimon 
 
 Milan, Tlie ... 
 
 MilotiTS, The 
 
 Millen v. Brascli & Co. 
 
 Miller r. Woodfall ... 
 
 Milwaukee Belle, The 
 Mirabita v. Imperial, Otto- 
 man Bank. 
 
 Miranda, The 
 
 Missouri Steam.shipCo.,Ld., 
 Re., Monroe's claim. 
 
 Mitchell V. Darthez. 
 
 Mitchell V. Ede 
 
 PAGE 
 16 C. B. N. S. 646 ; 33 L. J. 56, 153, 228 
 C.P.289; lOL. T. 612; 
 12 W. R. 983; 2 Asp. 
 M. L. C. 27. 
 L. R. 2 C. P. 38, 661 ; L. 240,249,566, 
 R. 4 H. L. 317 ; 39 L. 567,571,572, 
 J. C. P. 187; 16 L. T. 573,575,578, 
 569 ; 22 L. T. 808 ; 15 579, 587 
 W. R. 998 ; 18 W. R. 
 1041. 
 
 21 L.J. Ex. 323 283 
 
 L. R. 6 C. P. 306 ; 44 L.J. 520, 546 
 Ad. 25 ; 32 L. T. 579 ; 23 
 W. R. 932. 
 31 L. J. Ad. 105 ; Lush. 388 ; 424, 426 
 5 L. T. 590, 1 Asp. M. 
 L. C. 185. 
 5 Blatchf. C.C.R. 335 .. 414, 489 
 L. R. 8 Q.B.D. 35; L. R. 122 
 10 Q. B. D. 142 ; 51 L. J. 
 Q. B. 166 ; 52 L. J. Q. 
 B. 127. 
 8 E. & B. 493 ; 27 L. J. Q. 283, 291 
 B. 120; 4 Jur. N. S. 
 302. 
 
 21 L. T. 800 880,487 
 
 L. R. 3 Ex. D. 164 ; 47 L. 1, 636, 653, 
 J. Ex.418; 38 L.T. 597; 056 
 3 Asp. M.L.C.N.S. 591. 
 L. R. 3 A. & E. 561 ; 41 
 L.J.Ad.82;27L.T.389; 358 
 21 W. R. 84. 
 L. R. 42 Ch. D. 321 ; 58 138 
 L. J. Ch. 721; 6 Asp. 
 M. L. C. 264, 423 ; 61 
 L. T. 316; 37 W. R. 
 696. 
 2 Bing. N.C. 555 ; 5 L. J.C.P. 283 
 154; 2 Scott. 771; 1 
 Hodges 418. 
 11 A. & E. 888; 3 P. & D. 36, 637 
 513; 9 L. J. Q. B. 187.
 
 TAELE OF CASEis. xlvii 
 
 PAGE 
 
 Moakcs v. Nicholson ... 3^ L. J. C. P. 273; TJ C. B. 637, 6-W-, 
 
 N. S. 290 ; 12 L. T. o73 653, 6o4 
 Moes V. Leith and Anister- Sc. Sess. Cas., 3vd Series, 440 
 
 dam Steam Boat Company vol. 5, p. 988. 
 
 Mobansing Cliawan r. Con- I. L. R. 7 Bom. 478 ... 84 
 
 der. 
 
 Mollcr V. Jenks 19 C. B. N. S. 332 76 
 
 Montoya v. London Ass. Co. 6 Ex. 451 ; 21 L. J. Ex. 254. 487 
 Mooi-e V. Harris L. R. 1 App. Cas. 318; 45 91, 137,594 
 
 L. J. P. C. 55 ; 34 L. T. 
 
 519 ; 24 W. R. 887 ; 3 
 
 Asp. M. L.C.N. S. 173. 
 
 Moorsom V. Greaves ... 2 Camp. 627 271,281 
 
 Moorsom V. Page 4 Camp. 103 270,280 
 
 Moothora Kant Shaw r. In- L L. R. 10 Cal. 166 ... 123 
 
 diau General Steam Nav. 
 Co. 
 Morewood v. Pollok ... 1 E. & B. 743; 22 L.J.Q.B. 363 
 
 250 ; 17 Jiir. 881. 
 Morgan v. Castlegate Co. ... L. R. (1893) A. C. 38 ; 62 552 
 
 L. J. P. C. 17. 
 Morgan V. ConcLmau ... 23 L. J. C. P. 36; 14 C. B. 45 
 
 100. 
 
 Morris v. Robinson 3 B. & C. 196; 5 D. & R. 35 83 
 
 Morrison V. Gray 2 Bing. 260 ; 9 Moo. 484 . . . 646,650 
 
 Morrison V. Parsons ... 2 Taunt. 407 289 
 
 Mors-le-Blancb v. Wilson ... L. R. 8 C. P. 227; 42 L. 76 
 
 J. C. P. 70; 28 L. T. 
 
 415 ; 1 Asp. M. C. N. S. 
 
 605. 
 Morton I". Cook Mit. Mar. R. 30th Dec. 146 
 
 1865. 
 
 Moss V. Byrom 6 T. R. 379 351 
 
 Mubammed Yiisnf v. Renin- 6 Bom. H. C. R. O. C. J. 208 
 snlar and Oriental Steam 98. 
 
 Nav. Co. 
 
 Mulloy r. Backer 5 East. 316 272 
 
 Murpby V. Coftin L. R. 12 Q. B. D. 87 ; 32 189, 318 
 
 W. R. 616 ; 5 Asp. M. 
 
 L. C. 531.
 
 xlviii 
 
 TABLE OF CASES. 
 
 Murray r. Curric 
 
 Museliamp r. Lancaster & 
 Prestou Junction Rail. Co. 
 
 L. R. 6C. P. 24; 40 L. J. 
 C. P. 2G ; 23 L. T. 557 ; 
 
 19 W. R. 104; 3 Asp. 
 M. L. C. 497. 
 8 M. & W. 421 ; 10 L. J. 
 Ex.460; 5 Jur. 656; 2 
 Rail. Cas. 607. 
 
 PAGE 
 
 447 
 
 loo 
 
 Natclics Insurance 
 
 Stanton. 
 Nathan v. Giles 
 Neish V. Graham 
 
 Kelson v. Association for 
 Protection of Commercial 
 Interests. 
 
 Nelson v. Dahl 
 
 N 
 
 Co. v. 2 Smed. & M. 340 
 
 Nepoter, The 
 
 Neptune, The 
 Nesbitt V. Lushington 
 Newberi-y v. Colvin... 
 
 N. J. Steam Navigation Co. 
 
 V. Merchants' Bank 
 Newsom v. Thornton 
 Nicol V. Castle 
 Nielsen i\ Wait 
 
 5 Taunt. 558 ; 1 Marsh.. 226 
 27 L. J. Q. B. 15 ; 4 Jur. N. 
 S.49; BE. &B. 505. 
 43 L. J. C. P. 218 
 
 213 
 
 563 
 255 
 
 300 
 
 L. R. 12 Ch. D.56S ; L.R. 167, 189 
 
 6 App. Cas. 38 ; 50 L. J . 
 
 Ch. 411 ; 44 L. T. 381 ; 
 
 29 W. R. 543 ; 4 Asp. 
 
 M. L. C. N. S. 392. 
 L. R. 2 A. & E. 375 ; 38 235,236,372 
 
 L.J.Ad.63; 22L.T.177; 439,648 
 
 18 W. R. 49 ; 3 Asp. M. 
 
 L. C. 355. 
 
 16 L. T. N. S. 36 377,378 
 
 4T. R. 783 333,345 
 
 1 CI. & Fin. 283 ; 7 Bing. 29 
 
 190 ; 8 B. & C. 166 ; 4 
 
 M. & P. 876 ; 1 C. & J. 
 
 192 ; 1 Tyr. 55. 
 6 How. 344 
 
 6 East. 17; 2 Smith, 207 ... 
 
 9 Bom. H.C.R. 321 
 
 L. R. 14 Q. B. D. 516 ; L. 
 R. 16 Q. B. D. 67 ; 55 
 L. J. Q. B. 87; 54L.T. 
 314; 34 W. R. 33; 5 
 Asp. M. L. C. 5-53. 
 
 363 
 
 4, 651 
 
 58, 596 
 320
 
 TABLE OF C'AiSE.S. xHx 
 
 PAGE 
 
 Nk-numn v. Moss 2D L. J. Q. B. 20G ; 6 Jur. 317 
 
 N. S. 775. 
 Norman v. Binuington ... L. R. 25 Q. B. D. 475 ... 451 
 
 Norway, The B. & L. 226 ; 12 L.T.N.S. 253, 258, 
 
 57 ; 3 Moo. P. C. C. N. 265, 445. 
 
 S. 245 ; 13 W. R. 1086. 
 Notara v. Henderson . . L. R. 7 Q.B. 225 ; 41 L. J. 234,236,261 
 
 Q. B. 158 ; 26 L. T. 442 ; 443, 444, 
 
 20 W. R. 443 ; 3 Asp. 445, 446 
 
 M. L. C. 419. 
 Nottcbobu V. Riflitcr ... L. R. 18 Q. B. D. 63 ; 56 436 
 
 L. J. Q. B. 33 ; 35 W. 
 
 R. 300. 
 Notting Hill, TLo L. R. 9 P. D. 105 ; 53 L. 72 
 
 J. Ad. 56 ; 51 L. T. 66 ; 
 
 32 W. R. 764; 5 Asp. 
 M. L. C. 241. 
 
 Nugent i;. Smith L. R. 1 C. P. D. 19, 423 ; 232,330,518 
 
 45 L. J. C. P. 19, 697; 
 
 33 L. T. 731 ; 34 L. T. 
 827 ; 24 W. R. 237 ; 25 
 W. R. 117 ; 3 Asp. M.L. 
 C. N. S. 198. 
 
 Nutt I'. Bourdieu I. T. R. 323 350,353 
 
 Oakfield, The • L. R. 11 P. D. 34 ; 55 L. 460 
 
 J. Ad. 11 ; 61 L. T. 578j 
 
 34 W. R. 687. 
 Oakley r. Portsmouth and 11 Ex. 618 ; 25.L. J. Ex. 99... 329 
 Ryde Steam Paeket Co. 
 
 Ocean Queen, The 2 Asp. M. L. C. 419 ... 427 
 
 Ogden V. Graham 31 L. J. Q. B. 26 ; 5 L. T. 396 ; 169 
 
 low. R. 77; 1 B. &S. 
 
 773 ; 8 Jur. N. S. 613. 
 Ogg. 1-. Shutcr L. R. 1 C. P. D. 47 ; L. R. 654, 655, 656 
 
 10 C. P. 159 ; 45 L. J. 
 
 C. P. 44; 44L. J. C. P. 
 
 161;33L.T.492;24 W. 
 
 R. 100. 
 
 Ogle u. Atkinson 5 Taunt. 759; 1 3Iarah. 323 613 
 
 Gt
 
 TABLE 01' CASES. 
 
 O'Hiiulon f. G. W. Rail. Co. oi 
 
 Uhrloll' V. JJriacall 
 
 Oliver V. Muggericlge 
 Onward. The 
 
 Ookerda Poonsey v. Steam- 
 ship " Savitri." 
 
 Orbona, The 
 
 Orchis, The 
 
 PAGE 
 
 L. J. Q. B. 154; 12 L. T. 80 
 
 490;13 W.R. 741;6B. 
 
 &S. 484; llJur. K S. 
 
 797. 
 L. R. 1 P. C. 231 ; 4 Moo. 234, 374 
 
 P. C.C.N. S. 70; 35 L. 
 
 J. P. C.63;14L.T.873; 
 
 15 W. R. 202; 2 Asp. 
 
 M. L. C. 390. 
 
 W. R. 164 292 
 
 L. R. 4 A. & E. 38 ; 42 L. 603 
 
 J. Ad. 61; 28 L. T. 204; 
 
 21 W. R. 601. 
 I. L. R. 10 Bom. 409 ... 425 
 
 1 Spinks, 16] 
 Mit. Mar. R. 
 1876. 
 
 11th Auii. 
 
 219 
 149 
 
 Paice V. Walker 
 
 Palmer v. Midland Co^mties 
 R. Co. 
 
 Palmer v. Naylor 
 
 Panagia Rhimba, The 
 Papayanni v. Hocquard 
 Parana, The ... 
 
 Parker v. James 
 Parker v. Winlo 
 
 Parr r. Ander.soii 
 Payuter v. James 
 
 L. R. 5 Ex. 173 ; 39 L. J. 49 
 Ex. 109 ; 22 L. T. 547 ; 
 
 18 W. R. 789. 
 4M. &W. 749 468 
 
 23 L. J. Ex. 323; 10 Ex. 382. 
 
 333 
 
 3 Jur. N. S. 23 
 
 535 
 
 L. R. IP. C. 250 
 
 219 
 
 L. R. 2 P. D. 118 ; 36 L. 
 
 68, 72, 78 
 
 T. 388 ; 25 W. R. 596 ; 
 
 
 3 Asp. M. L. C. N. S. 
 
 
 220, 399. 
 
 
 4 Camp. 112 
 
 458 
 
 27 L. J. Q. B. 49; 7 E. & B. 
 
 46,169,187, 
 
 942; 4 Jur. N. S. 84. 
 
 317 
 
 6 East 202; 2 Smith 316 ... 
 
 420 
 
 L. R. 2C.P.348;15L.T. 
 
 264 
 
 660!18L.T.449:16W. 
 
 
 R. 768 ; 3 Asp. M. L. 
 
 
 C. 76. 

 
 TAP.T.r OF CASES, 
 
 Pearson r. Gosclien. 
 
 PiX'k )■. Liirson 
 
 Pooi-less, The 
 
 Peiscli V. Dickson 1 
 
 P. & O. S. N. Co. V. Manokji 4 
 Nusserwanjoo Paclsba . 
 
 Perez v. Also^) 3 
 
 Peter der Grosse, Tlie 
 
 Peti'ococluno v. Bott 
 
 Pbelps V. Hill 
 
 Phillips r. Clark 26 
 
 Philips f. Heatllam 2 
 
 Philips r. Rodie ... ... ]•> 
 
 Phyn V. Royal Exc-han^i' 7 
 
 Assurance Co. 
 Pickeriu;4- c. Ban-lay 
 
 Pickernell r. .Tauherry ... 3 
 
 Pipon v. Cope 1 
 
 Pladda. The 
 
 Poler. Cetcoviteh 30 
 
 PAGE 
 L. J. C. p. 2C.J ; 17 C. B. 31 
 
 N. S. 3.52 ; 10 L. T. 758 , 
 
 12 W. R. IIIG; 2 Asp. 
 
 M. L. C, 63. 
 L. R. 12 Eq. 383 ; 40 L. J. 20, 40 
 
 Ch. 763; 2.5 L. T. 580; 
 
 19 W. R. 1045 ; 1 Asp. 
 
 M. L. C. N. S. 16.3. 
 Lush. 30, 103 ; 13 Moo. P. 459 
 
 C. C. 484 ; 30 L. J. Ad. 
 
 89 ; 2 L. T. 2.5. 
 
 Mason 11, 12 65 
 
 Bom. H. C. R. O.C.J. 169. 498 
 
 F. & F. 188 545 
 
 L. R. 1 P. D. 414; 34 L. T. 149. 601 
 
 749 ; 3 Asp. M. L. C. N. 
 
 S. 195. 
 L. R. 9 C. P. 355 ; 43 L. 2, 241, 587, 
 
 J. C. P. 214; 30 L. T. 589 
 
 840; 2 Asp. M. L.C.N. 
 
 S. 310. 
 L. R. (1891) 1 Q. B. 605 ; 60S 
 
 7 Times L. R. 319; 7 
 
 Asp. M. L. C. 42 ; 60 L. 
 
 J. Q. B. 382. 
 L. J. C. P. 168 ; 2 C. B. N. 461,462,464 
 
 S. 1.56 ; 3 Jur. N. S. 467. 
 
 B. &Ad. 380 207 
 
 East 547 257.559 
 
 T. R. .505 349,351 
 
 Styles. 1.32; 2 Roll. Ab. 486 
 
 248. 
 
 F. ctF. 217 56 
 
 Camp. 4.34... ... ... 3.50 
 
 L. R. 2P. D. 3h^6jL. J. 422 
 
 Ad. 61. 
 L. J. C. P. 102 ; 9 C. B. 537 
 
 N. S. 430 ; 3 L. T. 1-38 ; 
 
 9 W. R. 279
 
 lii 
 
 tablt: op cares. 
 
 Pontiaa. Tho... 
 
 Portens v. Watnoy 
 
 PoHerfield v. HnnipLreys . 
 Portsmouth, The 
 Postk'tlnvaitf v. Frceland. 
 
 Potter V. Gentle 
 
 Premji Trikamdas r. Ma- 
 dhow ji Mnnji 
 Priestley v. Fernie ... 
 
 Princess Royal, The 
 
 Prosporino Palasso, The 
 
 Pyman v. Burt 
 Pyman v. Dreyfus ... 
 
 PAGE 
 L. P. 9 P. D. 102, 177 ; 53 603 
 
 L. J. Ad. 78 ; 51 L. T. 
 
 849; 33 W. R. 38; 5 
 
 Asp. M. L. C. 330. 
 L. R. 3 Q. B. D. 534; 47 
 
 L. J. Q. B. G43 ; 39 L. 
 
 T. 195 ; 27 W. R. 30 ; 4 
 
 Asp. M. L. C. N S. 34. 
 
 8 Humph. 497 
 
 G C. Rob. 317 
 
 L. R. 5 App. Cas. 599 ; 527, 591 
 
 49 L. J. Ex. 630 ; 42 L. 
 
 T. 845 ; 28 W. R. 833 ; 
 
 52 L. J. H. L. 637; 4 
 
 Asp. M. L. C. 302. 
 Bourke's Rep. 41 . . . 
 I. L. R- 4 Bom. 447 
 
 312,313,328 
 
 516 
 459 
 
 171 
 
 431 
 
 34 L. J. Ex. 172; 13 L. T. 45 
 208 ; 13 W. R. 1089 ; 3 
 H. & C. 977 ; 11 Jur. N. 
 S. 813; 2 Asp. M. L. 
 C. 281. 
 L. R. 3 A. &E. 41; 39 L. 172 
 J. Ad. 43 ; 22 L. T. 39. 
 29 L. T Ad. 622 ; 2 Asp. M. 148 
 L. C. N. S. 158. 
 
 1 C. &E.207 140 
 
 L. R. 24Q. B. D. 152; 59 317 
 L.J. Q.B. 13;6] L. T. 
 724. 
 
 Quarman v. Burnett 
 
 9 L. J. Ex. 308 ; 6 M & ^Y. 
 499 ; 4 Jur. 969. 
 
 424 
 
 R 
 
 Raine v. Bell 
 
 Rajarain Govindram 
 Brown, 
 
 9 East. 195 205 
 
 7 Bom. H. C. R. o. c. J. 97. 16
 
 TAP.T.r OF cAsra. 
 
 liii 
 
 Rankon V. Roovf» 
 Restitution S. S. Co., The v. 
 
 Pirie. 
 Rew ('. Payne 
 
 Reynokls v. Jex 
 
 Rich V. Coe ... 
 Rich V. Lanilii'it 
 Ripley I'. Sea if e 
 Ritchie v. Atkinson... 
 Robins y. Power 
 
 Rohinson r. Kni-'hts 
 
 Rodoconaelii v. Elliott 
 
 Rodocanachi i\ Milhnin 
 
 Rogei's V. Hnntci" . . . 
 Rohl. r. Pan- 
 Rona.The 
 
 Ronnelievf; .v Falkland Is- 
 lands Co. 
 
 Ross V. Himter 
 
 Rothschild V. Royal Mail 
 
 Co. 
 Royal Exehaiige Shipi^ing 
 
 Co. J'. Dixon. 
 
 PAGE 
 
 2 Park's M. 1. Cy27 204. 
 
 01 L. T. 330; G Times L. R 220 
 
 50 ; Asp. M. L. C. 428. 
 53 L. T. 932 ; 5 Asp. M. L. C. 055 
 515. 
 7 B. & S. 80 ; 34 L. J. Q. B. 50,259,289 
 251 ; 13 W. R. 908. 
 Cowp. 093; IT. R. 108 .. 44 
 12 How. 347; 19 Curtis 171 307 
 5 B. & C. 107 ; 7 D. .t R. 818 271, 281 
 
 10 East. 295 283 
 
 27 L. J. C. P. 257 ; 4 C. B. N. 00 
 S. 778 ; 4 Jur. N. S. 810 
 L. R. 8 C. P. 405 ; 42 L. J. 259, 270 
 C. P. 211 ; 28 L. T. 820; 
 21W. R. 083; 2 Asp. M. 
 L. C. N. S. 19. 
 L. R. 9 C. P. 518 ; 43 L. J. 343 
 C. P. 255 ; 31 L. T. 239 ; 
 2 Asp. M. L. C. N. S. 
 319. 
 L. R. 17 Q. B. D. 310 ; L. 50. 73, 80, 
 R. 18 Q. B. D. 07 ; 50 L. 303, 307 
 J. Q. B. 202 ; 50 L. T. 
 594 ; 35 W. R. 241 ; 
 Asp. M. L. C. N. S. 100. 
 M. & M. 05 ; 2 C. & P. Oul 520 
 
 1 Esp. 444 41.3, 489 
 
 L. R. 7 P. D. 247 ; 51 L. J. 007 
 Ad. 05 ; 40 L. T. 001 ; 
 30 W. R. 014 ; 4 Asp. 
 M. L. C. 520. 
 
 34 L. J. C. P. 34 ; 10 L. T. 75, 237 
 
 530; 12 W. R. 914; 17 
 
 C. B. N. S. 1 ; 10 Jur. 
 
 N. S. 940 ; 2 Asp. M. L. 
 
 C. 30. 
 
 4 T. R. S3 351 
 
 7 Ex. 734 ; 21 L. J. Ex. 273. 334, 480 
 
 L. R. 12 App. Cas. 11 ; 50 377. 379 
 L. J. Q. B. 200; Asp. 
 M. L. C. 92.
 
 liv 
 
 TABLE or CASKS. 
 
 Rubicon, The 
 Ruck V. Hatfic'I.l 
 Riicker v. Allimtt . 
 Russell V. Niemann. 
 
 
 PAGE 
 
 Hagg. 9 
 
 ... 161 
 
 B. &A. 6r.2 
 
 ... 26 
 
 East. 278 
 
 ... 204 
 
 L. J. C.P. 10;17C. B. 
 
 N. 312,332 
 
 S. 163; lOL. T. 780; 
 
 13 
 
 W. R. 93; 2 Asp. M 
 
 . L. 
 
 C. 72. 
 
 
 Sack r. Ford 
 
 Saint Cloud, The ... 
 Sandeman v. Scuit . . . 
 
 Sanders v. McLean . . . 
 
 Sanders v. Van7X'ller 
 
 San Roman, The 
 
 32 L. J. C. P. 12 ; 13 C. B. N. 
 S. 90 ; 9 Jur. N. S. 750 
 
 457 
 
 41 
 
 B. & L. 4; 8 L. T. N. S. 
 
 54 ; 1 Asp. M. L. C. 309. 
 L. R. 2 Q. B. 86 ; 36 L.J. 41,440,447 
 
 Q. B 58 ; 15 L. T. 608 ; 
 
 15 W. R. 277 ; 8 B. & S. 
 
 50 ; 2 Asp. M. L. C. 446 
 L. R. 11 Q. B. D. 327 ; 52 12, 650 
 
 L.J. Q.B. 481; 49L.T. 
 
 462 ; 5 Asp. M.L.C.N.S. 
 
 160 ; 31 W. R. 698. 
 Q. B. 260 ; 11 L. J. Q. B. 265, 314, 611 
 
 261 ; 12 L. J. Ex. 497 ; 612 
 
 2 G. & D. 244; 3G. & 
 
 D. 580. 
 L. R. 5 P. 0. 301 ; L. R. 3 132, 537 
 
 A. & E. 583 ; 42 L. J. 
 
 Ad. 46; 21 W. R.393; 
 
 28 L. T. 381. 
 
 Sansinena v. Houston 
 
 7 Asp. M. L. C. 150 
 
 . . • 
 
 310 
 
 Sara, The 
 
 L. R. 14 App. Cas. 
 
 209 ; 
 
 553, 550 
 
 
 L R. 12P. D. 158; 56 
 
 
 
 L.J. Ad. 160; 58 
 
 L.J. 
 
 
 
 Ad. 57 ; 57 L. T. 
 
 328; 
 
 
 
 35 W. R. 826. 
 
 
 
 Sargent r. Morris 
 
 3 B. & Aid. 277 
 
 . . . 
 
 645 
 
 Sassoon Press Co., The v. 
 
 Unreported 
 
 
 241 
 
 Brown. 
 
 
 
 
 Saville V. Campion 
 
 2 B. & Aid. 503 ... 
 
 • •• 
 
 519
 
 TAliLE OF CASES. I\ 
 
 Sciiiauiaiij^iir. stamp ... L. R. 5 C. P. D. :2itO ; -IIJ 1112,458 
 
 L. J. C. P. 67-t ; L. R. J. 
 
 C. P. D. 316 ; 48 L. J. 
 
 C. P. 478 ; 40 L T. 191 ; 
 
 42 L. T. 840 ; 28 W. R. 
 
 691. 
 Scbioblor r. (jilchrcst ... L. R. (1892) 1 Q. B. 2.5:3 ; 47,49 
 
 61 L. J. Q. B. 121 ; L. 
 
 R. (1893) A. C. 8. 
 Sehilizzi c. Dorry 4 E. .t B. 873 ; 24 L. J. Q. 182, 187 
 
 B. 193 ; 1 Jur. N. S. 795 
 Schotbuuui V. Lancashire & L. R. 2 Cb. 332 ; 36 L. J. 6-54 
 
 Yoikbbiro Railway Co. ... Ch. 361 ; 16 L. T. 189 ; 
 
 1.5 W. R. 537. 
 Schulzc r. G. E. R. Co. ... L. R. 19 Q. B. D. 30; 56 78 
 
 L.J.Q.B. 442; 57 L. T. 
 
 438 ; 35 W. R. 683. 
 Scliuster V. McKcllar ... 26 L. J. Q. B. 281 ; 3 Jur. N. Ki, 17, 26, 
 
 S. 1320 ; 7 E. & B. 704. 29,617,646 
 
 Scott r. Finlay I. L. R. 7 Bom. 386 ... 244 
 
 Scott c. London Dock Co. ... 31 L. J. Ex. 220 422 
 
 Scott r. Thompson 1 B. .^- P. N. R. 181 ... 351 
 
 Scotthorn v. Staffordshire 22 L. J. Ex. 121 ; 8 Ex, 341 ; 100, 509 
 
 Rail. Co. 7 Rail. Cas. 810. 
 
 Serraino v. Campbell ... L. R. (1891) 1 Q. B. 283 ; 310 
 
 60 L. J. Q. B. 303 ; 6 
 
 Asp. M. L. C. 526. 
 Seville Sulphur Co. c. Col- 25 Sc. L. R. 437 ; 15 Sess. Ca. 468 
 
 vils. 4tb ed. 61t!. 
 
 Sewell V. Burdick L. R. 10 Q. B. D. -Mi:] ; L. 614, 615, 620 
 
 R. 10 App. Cas. 74 ; 52 622, 623, 630 
 
 L. J. Q. B. 428 ; 54 L. J. 
 
 Q. B. 156;52L. T. 445; 
 
 33 W. R. 461 ; 5 Asp. M. 
 
 L. C. N. S. 376. 
 Sband V. Sanderson 28 L. J. Ex. 278; 4 H. c<^ N. 292,315,618 
 
 381. 
 
 Shannon, The 1 W.Rob. 463 422 
 
 Shcphard r. De Bernales ... 13 East. 565 25-3 
 
 Shepherd v. Harrison ... L. R. 5 H. L. 116 ; 40 L. J. 641, 653, 654 
 
 ^ Q. B. 148: 24 L. T. 857; 650 
 
 20 W. R. 1 ; 1 Asp. M. 
 
 L. ex. S. ^i^.
 
 Ivi 
 
 TABLE OF CASE!?. 
 
 Sheridan v. Now Qiuiy Co... 
 
 Shetliff V. Scott 
 
 Shield I". Wilkins 
 
 Shields V. Davis 
 
 Shi^D '• Howard" v. Wissman 
 Shipton I'. Thornton 
 
 Short V. Simpson 
 
 Simonds r. Hodgson 
 Simpson v. L. & N. W. R. 
 Co. 
 
 Simpson v. Margitson 
 
 Simpson v. Swan 
 
 Siordet V. Hall 
 
 Small V. Moates 
 
 Smidtv. Tiden 
 
 Smith V. Dart 
 
 Smith V. M'Guire 
 
 Smith V. Plummer 
 Smith V. Pyman 
 
 Smith V. Scott 
 Smith V. Shej)herd 
 
 Smith V. Sieveking .. 
 Smith V, Trcgartheu 
 
 28 L. J. C. P. 58 ; 4 Scott 
 
 018. 
 22 Cal. W. R. Civ. R. 39 .. 
 19 L. J. Ex. 238 ; 5 Ex. 304 . . 
 6 Taunt. 65; 4 Camp. 119.. 
 
 18 How. 231 ... 
 
 9 A.&E. 314; IP. &D. 216; 
 
 8 L. J. Q. B. 73. 
 
 L. R. 1 C. P. 248; 35 L. J. 
 
 C. P. 147 ; 13 L. T. 674; 
 
 14 W. R. 307 ; 12 Jur. 
 
 N. S.258; IH.&R. 181. 
 
 3 B. &A.50; 1 L. J. K. B.51 
 
 L. R. 1 Q. B. D. 274 ; 45 
 
 L. J. Q.B.182; 33L.T. 
 
 805 ; 24 W. R. 294. 
 
 n Q.B.32; 17L.J.Q.B. 32. 
 
 3 Camp. 291 
 
 4 Bing. 607 ; 6 L. J. C. P. 
 
 157 ; 1 M. & P. 561. 
 9 Bing. 574 ; 2 M. & Scott, 
 
 674. 
 L. R. 9 Q. B. 446 ; 43 L.J. 
 
 Q.B. 199; 30L.T. 891; 
 
 22 W. R. 913. 
 L. R. 14 Q. B. D. 105 ; 54 
 
 L. J. Q. B. 121 ; .52 L.T. 
 
 218; 33 W. R. 455; 5 
 
 Asp. M. L. C. 360. 
 3H.&N.554; IF.&F. 199; 
 
 27 L. J. Ex. 465. 
 
 IB. & A. 575 
 
 L. R. (1891) 1 Q. B. 742; 
 
 60 L. J. Q. B. 6. 
 
 4 Taunt. 125 
 
 11 Ex. 622; Mcach on Sh. 
 
 3rd Ed. 535; Abbott 
 12th ed. 258, 328. 
 
 5 E. &B.589; 24L.J.Q.B. 
 
 257 ; 4 E. & B. 945. 
 
 56 L. J. Q. B. 437 ; 57 L. T. 
 
 58 ; 35 W. R. 665. 
 
 PAGE 
 
 249, 613, 635 
 
 146 
 
 182 
 236, 270, 586 
 
 442 
 159, 268, 432 
 
 626 
 
 603 
 67 
 
 65 
 
 46 
 
 361 
 
 290, 549 
 
 276 
 
 163 
 
 24,25 
 
 288 
 304 
 
 423, 486 
 133, 329 
 
 315,316,329, 
 560 
 
 r-O
 
 TAliLE OF CASES. 
 
 Ivii 
 
 PAGE 
 
 Smith V. Wilson 8 East. 437 ; 6 M. & S. 78. 268, 277 
 
 Smiirthwuite r. Wilkius ... 31 L. J. C. P. 2U ; 5 L. T. 626,627,629 
 
 842 ; 7 L. T. 65 ; 10 W. 
 R. 386 ; 11 C. B. N. S. 
 842. 
 
 Smyth V. Dixon Unreported. 503 
 
 Snee r. Prescott 1 Atk. 245 629 
 
 Soares r. Thornton 7 Taunt. 627 351,353 
 
 Soblomsten, The L. R. 1 A. & E. 293 ; 36 L. 262, 272 
 
 J. Ad. 5 ; 15 L. T. 393 ; 
 15 W.R.591; 2Asp.M. 
 L. C. 436. 
 
 Sodergren r. Flight 6 East. 622 545 
 
 Solly r. Whitmore 5 B. & Aid. 45 204 
 
 Soopromonian Sctty r. Heil- 1. L. R. 5 Cal. 71 ; 4 C. L. 51 
 
 gers. R. 377. 
 
 Southampton Steam Colliery L.R. 4 Ex. 73 ; L.R. 6 Ex. 280 
 
 Co. V. Clarke 53 ; 40 L. J. Ex. 8 ; 19 
 
 W. R. 214. 
 Southwell V. Bowditeh ... L. R. 1 C. P. D. 374; 45 49 
 
 L. J. C. P. 630 ; 35 L. T. 
 196 ; 24 W. R. 275. 
 Spaight V. Faruworth ... L. R. 5 Q. B. D. 115 ; 49 284, 286 
 
 L. J. Q. B. 346 ; 42 L. 
 T. 296 ; 28 W. R. 508 ; 
 4 Asp. M.L.C.N.S. 251. 
 
 Spalding r. Ruding 6 Beav. 376; 12 L. J. Ch. 621 
 
 503 ; 15 L. J. Ch. 374. 
 
 Spence v. Chodwiek 10 Q. B. 517 ; 16 L. J. Q. B. 345 
 
 313 ; 11 Jur. 872. 
 Spence v. The Union Marine L. R. 3 C. P. 427 ; 37 L. 494 
 
 Insurance Co. J. C. P. 169; 18 L. T. 
 
 632 ; 16 W. R. 1010. 
 
 Staffordshire, The L. R. 4 P.C. 194; 41 L. J. 603,604 
 
 Ad. 49 ; 27 L. T. 46 ; 20 
 W. R. 557 ; 8 Moo. P. C. 
 C. N. S. 443. 
 
 Stamma f. Brown 2 Str. 1174; 7 T. R. 508 ... 350,353 
 
 Steel V. State Line Steam- L. R. 3 App. Cas. 72 ; 37 133, 237, 238 
 
 ship Co. L. T. 333 ; 3 Asp. M. L. 360, 468, 471 
 
 C. N. S. 516 J 4 Sc. Cas. 
 657.
 
 Iviii 
 
 TABLE OF CASES. 
 
 Steimuiinn r. Angler Line. 
 Stephens I'. Harris ... 
 
 Stettin, The 
 
 Steward v. London and N. 
 
 W. R. Co. 
 Stewart v. Greenock Marine 
 
 Ins. Co. 
 Stewart v. Rogerson 
 Stewart v. The Tennesse 
 
 Marine and Fire Lis. Co. 
 Stindt V. Roberts ... 
 
 Stornoway, The 
 
 Straker v. Kidd i Co. 
 
 Strang v. Scott 
 
 Stuart V. British & African 
 
 Steam Nav. Co. 
 Stuart V. Crawley ... 
 Stumore, Weston & Co. v, 
 
 Breen. 
 Svensdeu v. "Wallace 
 
 L. R. (1891) 1 Q. B. 610 ; 
 
 7 Times L. R. 398. 
 57 L. J. Q. B, 203 ; 36 W. R. 
 
 185; 6 Asp. M. L. C. 
 
 192 ; 57 L. T. 618. 
 L. R. 14 P. D. 142 ; 58 L. 
 
 J. Ad. 81 : 61 L. T. 200; 
 
 38 W. R. 96 ; 6 Asp. M. 
 
 L. C. N. S. 395. 
 3 H. &C. 135 
 
 PAGE 
 
 335, 462 
 321, 346 
 
 252, 563 
 
 468 
 
 2 H. L. C. 159 ; 1 Mac-i- H. 289 
 L. C. 382. 
 
 L. R. 6C. P. 424 247 
 
 1 Humph. 242 213 
 
 314, 624 
 
 40 
 
 
 SWainston v. Garrick 
 
 17 L. J. Q. B. 166 ; 5 D. & L. 
 
 460 ; 12 Jur. 518. 
 51 L. J. Ad. 27; 46L.T. 773 ; 
 
 4Asp. M. L.C.N. S. 529. 
 
 L. R. 3 Q. B. D. 223 ; 47 
 
 L.J.Q.B. 365; 26 W.R. 
 
 511; 4 Asp. M. L. C. 
 
 34 n. 
 L. R. 14 App. Cas. 601 ; 
 
 59 L. J. P. C. 1 ; 61 L. 
 
 T. 597. 
 32 L. T. 257 ; 2 Asp. M. L. C. 
 
 N. S. 497. 
 
 2 Stark. 323 
 
 L. R. 12 App. Cas. 698 ; 
 
 56 L. J. Q.B. 401. 
 L. R. 11 Q. B. D. 616 ; L. 395, 396, 405 
 
 R. 13Q. B.D. 69;52L. 
 
 J. Q. B. 397 ; 48 L. T. 
 
 795; 30 W. R. 841; L. 
 
 R. 10 App. Cas. 404 ; 54 
 
 L. J. Q. B. 497 ; 52 L. 
 
 T. 901; 34 W. R. 369; 
 
 5 Asp. M. L. C. N. S. 
 
 453. 
 2 L. J. N. S. Ex. 255 ... 417 
 
 211, 428 
 
 516 
 5,26
 
 tablt; of cart:?!. 
 
 lis 
 
 Swann r. Barber 
 
 Syeds v. Hay... 
 
 PAGE 
 
 L. R. .5E.\'. D. 130; 49 L. 5.-iu 
 
 J. Ex. 253;42L.T.<lt)0; 
 
 28 W. R. 5G3; 4 Asp. 
 
 M. L. C. N. S. 204. 
 T. R. 2G0 240,504,589 
 
 Tamvaco v. Lneas ... 
 Tamvaco r. Simpson 
 
 Tanner v. Cbristian... 
 Tapscott V. Balfour... 
 
 Tartar, The 
 
 Tattersall v. National Steam 
 Ship Co. 
 
 Taylor r. Brig<:js 
 Taylor V. Brooke 
 Taylor v. Dnnliar ... 
 
 Taylor v. Great Nortlu-ru 
 Rail. Co. 
 
 Taylor r. LiAerpool .t G. W. 
 S. Co. 
 
 Tecnmseli, The 
 
 28 L. J. Q. B. 1.50, 301 
 
 L. R. 1 C. P. 363; 35 L. 
 J. C. P. 196 ; 14 L. T. 
 893; 14 W. R. 376; 2 
 Asp. M. L. C. 249, 383. 
 
 4 E. & B. 591 ; 24 L. J. Q. 
 
 B. 91. 
 
 L. R. 8 C. P. 46 ; 42 L. J. 
 
 C. P. 16 '. 27 L. T. 710 ; 
 21 W. R. 245 ; 1 Asp. 
 M. L. C. N. S. 501. 
 
 1 Hagg.9 
 
 L. R. 12 Q. B. D. 297 ; 53 
 
 L. J. Q. B. 332 ; 60 L.T. 
 
 299 ; 5 Asp. M.L.C.KS. 
 
 206. 
 M. c't M. 28 ; 2 C. & P. 525. 
 1 Bom. H. C. R. App. 48... 
 L. R. 4 C. P. 206 ; 38 L.J. 
 
 C.P. 178; 17 W.R. 382 
 L. R. 1 C. P. 385 ; 35 L.J. 
 
 C.P. 210; 12 Jur. N.S. 
 
 372. 
 L. R. 9 Q. B. 546; 43 L. 
 
 J. Q. B. 205 ; 30 L. T. 
 
 714; 22 W. R. 
 
 Asp. Mar. L. C, 
 
 275. 
 3 W. Rob. 144. .. 
 
 752 ; 'J 
 
 N. S. 
 
 049 
 292, 203 
 
 47 
 
 168,169,319 
 
 161 
 
 468, 515 
 
 05 
 15 
 
 489 
 
 528 
 
 132,338,403 
 
 160
 
 ]% 
 
 TABLE OF CASTAS. 
 
 Tentonia. The 
 
 Thames & Mersey Marine 
 Ins. Co. V. Hamilton 
 
 Tbarsis Sulpluir Company 
 r. Morel 
 
 Thetis, The 
 
 Thin r. Richards 
 Thomas r. Clarke ... 
 Thompson v. Dominy 
 
 Thompson r. Havelock 
 Thompson v. Small ... 
 Thompson v. Traill ... 
 
 Thompson v. Whitmore 
 Thomson v. Davenport 
 
 Thorman v. Bxirt, Boulton 
 &Co. 
 
 Thrift r. Youle 
 
 Thuringia, The 
 
 Tigress, The 
 
 Tillett & Co. V. Cwm Avon 
 
 Works Proprietors 
 Tindall V. Bell 
 
 L. R. 3 A. & E. 394 ; L. 
 R. 4 P. C. 171 ; 41 L. J. 
 Ad. 57 ; 24 L. T. 21 ; 26 
 L. T. 48 ; 20 W. R. 261 
 421 ; 8 Moo. P. C. C. N 
 S. 411. 
 L. R. 12 App. Cas. 484 
 56 L.J.Q.B. 626; 57 L 
 T. 695 ; 36 W. R. 337 
 6 Asp. M.L.C.N.S. 200, 
 L. R. (1891) 2 Q. B. 647 ; 
 61 L. J. Q. B. 11 ; 65 L 
 T. 659. 
 L. R. 2 A. & E. 368; 38 
 L. J. Ad. 42 ; 3 Hagg 
 228. 
 
 62L. J. Q. B. 39 
 
 2 Starkie, 450 
 
 14 M. & W. 403; 14 L.J. Ex. 
 320. 
 
 1 Camp. 527 
 
 1 C.B. 328; 14L.J.C.P. 157 
 
 2 C. & P. 334 ; 6 B. & C. 
 
 36 ; 6 D. & R. 31. 
 
 3 Taunt. 227 
 
 9 B. & C. 78 ; 2 Sm. L. C. 
 
 6th ed. 344. 
 
 1 C. & E. 596 ; 54 L. T. 349 ; 
 
 5 Asp. M.L. C. N. S. 
 
 563. 
 L. R. 2 C. P. D. 432 ; 46 
 
 L. J. C. P. 402 ; 36 L.T. 
 
 114; 3 Asp. M.L.C.N.S. 
 
 357. 
 41 L. J. Ad. 44 ; 26 L. T. 446. 
 B. & L. 38 ; 32 L. J. Ad. 
 
 97. 
 
 2 Times L. 075 
 
 PAGE 
 109,261,.53; 
 
 360 
 
 167 
 
 211 
 
 240 
 282 
 Oil, 612 
 
 294 
 292 
 
 16, 26 36 
 
 489 
 47 
 
 17, 57, 140 
 
 144 
 
 437, 439 
 
 249,567,568 
 651 
 529 
 
 11 M. & W. 228 ; 12 L. J. Ex. 76 
 161.
 
 TABLE or CASr.i9. Ixi 
 
 PAGE 
 TImlal r. Taylor 4 E. & B. 219; 24L. J. Q. B. 30,30.37, 
 
 12; 3 C. L. R. IW; 1 170,011 
 
 Jur. N. S. 112. 
 
 Touteng r. Hubbard ... 3 B. & P. 291 341 
 
 Townsend r. Inglis Holt. N. P. 278 583 
 
 Trent Navigation Company 4 Doug. 287 ; 3 Esp. 127 ; 362 
 
 V. Wood. 1 T. R. 28 (n.) 
 
 Tully r. T.-rry L. R. 8 C. P. 679 ; 42 L. 286,600 
 
 J. C. P. 240; 29 L. T. 
 
 36 ; 2 Asp. M. L. C. N. 
 
 S. 61. 
 Turgot, TLe L. R. 11 P. D. 21 ; 5 Asp. 5o4 
 
 M. L. C. 548. 
 Turner v. Liverpool Doek 20 L. J. Ex. 393 ; 6 Ex. 543. 637, 654 
 
 Trustees. 
 Two Ellens, TLe L. R.3 A. & E. 345 ; L. R. 047 
 
 4 P.O. 161; 40 L.J. Ad. 
 
 11 ; 41 L. J. Ad. 33 ; 26 
 
 L. T. I. ; 20 W. R. 592 ; 
 
 8 Moo. P.C.C.N.S. 398 ; 
 
 1 Asp. M.L.C. 40, 208. 
 
 Yalcnte r. Gibbs 
 Yalicri v. Boyland 
 
 Van Casteel v. Booker 
 Velasquez, The 
 
 Victor, The 
 
 Virgil, The 
 
 Vlierboom v. Chapman 
 
 Vose r. Morton 
 
 6 C. B. N. S. 270; 28 L.J. 
 
 341 
 
 
 C. P. 229 ; 5 Jur. N. S. 
 
 
 
 1213. 
 
 
 
 L. R. 1. C. P. 382 ; 35 L. J. 
 
 58 
 
 
 C. P. 215; 14L. T. 362; 
 
 
 
 14 W. R. 637;2Asp.M. 
 
 
 
 L. C. 336; 12 Jnr.N.S. 
 
 
 
 566. 
 
 
 
 2 Ex.691; 18 L. J. Ex.9 ... 
 
 654 
 
 
 L. R. 1 P. C. 494 ; 30 L. J. 
 
 459 
 
 
 Ad. IW; 10 L. T. 777; 4 
 
 
 
 Moo. P.C.C.N.S. 426; 
 
 
 
 16 W. R. 89. 
 
 
 
 29 L.J. Ad. 110 
 
 427, 
 
 428 
 
 2 W. Rob. 201 ; 61 L. J. 
 
 422 
 
 
 Ad. 9. 
 
 
 
 13 L. J. Ex. 384 ; 13 M. ci W. 
 
 273, 
 
 446 
 
 230;8 Jur. 811. 
 
 
 
 5 Gray. 594 ... 
 
 296 

 
 Ixii TABLE OF CASUS. 
 
 PAOE 
 
 "Wa^staff I'. Anderson 
 
 Waite V. Baker 
 Walker v. Jackson . . . 
 
 Walley v. Montgomery 
 Ward V. Eelton 
 Warkworth, The ... 
 
 Warre v. Miller 
 
 Warren v. Peabody 
 
 Waterloo, The 
 
 Watts 1'. Ognell 
 
 Waugh r. Morris 
 
 'Webber r. G. W. Rail. Co... 
 
 Wegener v. Smith ... 
 Weguelin r. Cellier... 
 Westzinthus, In re ... 
 
 White V. Baker 
 
 Whitmore V. Lloyd ... 
 Wilby V. The West Corn- 
 •wall Ry. Co 
 
 w 
 
 L. R. 4 C. P. D. 283 ; L. 
 
 COG 
 
 R. 5C.P. D. 171; 48 L. 
 
 
 J. C. P. 759;49L. J. C. 
 
 
 P. 486 ; 42 L. T. 720 : 28 
 
 
 W. R. 856. 
 
 
 2 Ex.1; 17L. J. Ex. 307 ... 
 
 653 
 
 10 M. & W. 161 ; 12 L. J. Ex. 
 
 145 
 
 165. 
 
 
 3 East. 585 
 
 645 
 
 1 East. 507 
 
 545 
 
 L. R. 9 P. D. 145 ; 53 L.J. 
 
 482 
 
 Ad. 65 ; 49 L. T. 715 ; 
 
 
 33 W. R. 112 ; 5 Asp. 
 
 
 M. L. C. N. S. 326. 
 
 
 4 B. & C. 538 ; 7 Dow. & R. 
 
 203, 206 
 
 1 ; 1 C. & P. 237. 
 
 
 8C. B. 800; 19L.J.C.P. 43; 
 
 283 
 
 14 Jiir. 150. 
 
 
 2 Dod. 433 
 
 217 
 
 Cro. Jac. 192 
 
 583 
 
 L. R. 8 Q. B. 202 ; 42 L.J. 
 
 267, 589 
 
 Q. B. 57 ; 28 L. T. 265 ; 
 
 
 21 W. R. 438 ; 1 Asp. 
 
 
 M. L. C. N. S. 573. 
 
 
 4 H. & C. 582 ; 34 L. J. Ex. 
 
 100 
 
 170; 12 L. T. 498; 13 
 
 
 W. R. 755. 
 
 
 24 L. J. C. P. 25; 15 C. B. 
 
 312, 314 
 
 285. 
 
 
 L, R. 6H.L. 286; 42 L.J. 
 
 288 
 
 Ch. 758 ; 22 W.R. 26. 
 
 
 5 B. & Ad. 817 ; 3 L. J. K. 
 
 621 
 
 B. 56. 
 
 
 2 Ex.1 
 
 654 
 
 2 F. &F. 36 
 
 632 
 
 27 L.J. Ex. 181 
 
 509
 
 TABLE OF CASES. Ixiii 
 
 PAGE 
 
 Wilhclm, The 11 L. T. 636; 2Asp. M.L. C. 4.58 
 
 313. 
 Williams v. The Africim 26 L. J. Ex. 60 ; 1 H&N. 3U0 5U6 
 Stoainsbii) Co. 
 
 Williams 1-. The East luaia 3 East. 192 452 
 
 Co. 
 
 Williams r. Shce 3 Camp. 469 206 
 
 Williams v. Suffolk lusuv- 3 Sumuev's, 514 ... ... 353 
 
 a nee Co. 
 Williamson v. Barbour ... L. R. 9 Ch. D. 529 ; 50 L. 52 
 
 J. Ch. 147. 
 Williamson r. Barton ... 7 H. & N. 899; 31 L. J. Ex. 45 
 
 170. 
 
 Willis v. Palmer 7 C. B. N. S. 340 ; 29 L. J. 289 
 
 C. P. 194; 8 W. R.295; 
 
 6 Jur. N. S. 732, 
 Wilmshurst i. Bowker ... 2 M. & G. 882 ; 8 Scott. N. 654 
 
 R..571;12L. J.Ex. 475. 
 
 Wilson V. Anderton 1 B. & Ad. 450 250 
 
 Wilson r. Hicks 26 L. J. Ex. 242 76 
 
 Wilson V. The London Ita- L. R. 1 C. P. 61 ; 35 L. J. 520 
 
 lian & Adriatic Steam C. P. 9 ; 12 Jur. N. S. 
 
 Nav. Co. 52 ; 13 L. T. 435 ; 14 W. 
 
 R. 101 ; 1 H. & R. 29. 
 
 Windle v. Barker 25 L. J. Q. B. 349; 6 E.&B. 279 
 
 675 S. C; 2 Jur. N. S. 
 1069. 
 Wise V. Great N. W. R. Co. 25 L. J. Ex. 258 ; 1 H. & N. 63 517 
 
 Woodley 1-. Miehell L. R. 11 Q. B. D. 47 ; 52 480 
 
 L. J. Q.B. 325; 48L.T. 
 599 ; 31 W. R. 651 ; 5 
 Asp. M. L. C. N. S. 71. 
 
 Woodrop, The 2 Dod. Ad. Rep.83 421 
 
 AVoodward v. Zeriga ... Unrepoited 503 
 
 Wright V. MarAvood L. R. 7 Q. B. D. 62 ; 50 L. 388, 301 
 
 J. Q. B. 643 ; 45 L. T. 
 297 ; 29 W. R. 673 ; 4 
 Asp. M.L. C.N. S. 451. 
 
 Wright i.New Zealand Ship- L. R. 4 Ex. D. 165 ; 40 L. 527 
 
 plug Company. T. 413.
 
 Ixiv TABLE OF CASE«. 
 
 PAGE 
 
 Xantlio, The L. R. 12 App. Cas. 503; 133,478,486 
 
 56 L. J. Ad. 116 ; 35 W. 
 R. 23 ; 55 L. T. 203 ; 6 
 Asp. Mar. L. C. N. S. 
 
 207. 
 
 Yates v.Whyte 4 Bing. K C. 272 ; 5 Scott 83 
 
 640. 
 Young v. Moller 5 E. & B. 762 624 
 
 Zodiac, The 1 Hagg. 320 161 
 
 Zwilchenbart v. Henderson. 23 L. J. Ex. 231; 9 Ex. 722. 265
 
 SUPPLEMENTAL PREFACE 
 
 TO THE SECOND EDITION. 
 
 Scarcely had this work left the Press, when the 
 English mail brought me a copy of the Act of 
 Congress, enacted by the Senate and Ilouse of 
 Representatives of the United States of America, 
 relating to " Navigation of vessels, bills of lading 
 and to certain obligations, duties, and rights in 
 connection with the carriage of property :" which 
 is to come into force in the United States on the 
 1st of July next. 
 
 Por this and a letter which appeared in the New 
 York Times of 3rd May, 1893, by Mr. Robert D. 
 Benedict, an eminent author and Admiralty Lawyer 
 of New York, I am indebted to the courtesy of 
 Messrs. Stevens and Sons, London, and their 
 American friends Messrs. Banks and Brothers, who 
 with much difHculty obtained a cojiy of the above 
 Act for me, it not yet having been officially printed 
 or published. 
 
 At present we can hardly over-estimate the 
 importance of this measure, or speculate upon the 
 changes which must necessarily follow its intro- 
 duction. 
 
 The first two sections of the Act absolutely 
 prohibit the limitatiou of liability by " the manager,
 
 SUPPLEMENTAL PREFACE TO THE SECOND EDITION. 
 
 agent, master or owner of any vessel transporting 
 merchandise or property from or between ports of 
 the United States and foreign ports ;" and whilst 
 imposing on them the responsibility of ordinary 
 bailees, must be regarded as restoring to merchants 
 and shippers those equitable rights of protection, 
 which by the insidious insertion of carefully worded 
 stipulations in the bill of lading were gradually 
 being contracted away from them. 
 
 Tor some years legislation has been advocated by 
 many persons as the only possible remedy to check 
 the increasing severity with which modern bills of 
 lading were being framed, and now that the United 
 States Senate has found it practicable to introduce 
 and pass this Act, the question remains Avhether 
 other countries, equally interested in the subject, 
 will not be compelled to take action to assimilate 
 the laws for the protection, not only of merchants 
 but also of sliij)pers. 
 
 Mr. Benedict in the letter referred to, after 
 pointing out the effect which section 3 of the Act 
 will have upon passengers continues : — 
 
 " But a more extended application of this statu.te 
 Avill be claimed. It will be claimed that it extends 
 not only to the liabilities of the owner of a vessel, 
 to shippers of cargo, or to i)asscngers on board his 
 own vessel, but also to his liabilities as to the 
 owners of other vessels and their cargoes. In other 
 words it will be claimed that this statute relieves 
 vessels and their owners from all liability arising
 
 fiUrPLEMENTAL rHEFACT: TO TITr SECOND EDITION'. 
 
 out of the collisions of vessels, unless such owners 
 have not exercised diligence in making their vessel 
 seaworthy or in sending her to sea properly manned 
 and equipped. 
 
 " Tlie effect of this statute, again, (if such he the 
 construction of it) must he to make an immense 
 change in the husiness of marine insurance. It is 
 not many years since the practice arose of inserting 
 in policies of marine insurance what arc called the 
 collision clauses, whereby the insurer takes the 
 risk of damage resulting to the ship wliich he 
 insures from collision, or of damages inflicted hy 
 her upon other vessels and their cargoes in collision. 
 But the insertion of those clauses in insurance 
 j)olicies has heen by no means universal. 
 
 " Hereafter if the owner of a vessel is not to 
 have any right to call upon the owner of another 
 vessel which has sunk his own to remunerate him 
 for the loss wliich his vessel may have sustained 
 hy collision, the necessity of insuring against such 
 risks will be very greatly increased. For all the 
 losses which shipowners are now compelled to pay 
 hy reason of negligence of their own vessels will 
 hereafter be thrown upon the owners of the vessels 
 whose crews were not negligent or tlicir insurers. 
 
 " Mr. Marsden, in the first edition of his work 
 on the Law of Collisions, in his discussion of the 
 Limited Liability Act of England, speaks of it as 
 * the singular legislation A^■hicll enables the owners 
 and masters to do mischief with ships at a cheaper
 
 SUPPLEMUNTAT, n^EFACE TO THE SECOND EBTTIO-NT. 
 
 rate than is permitted to otlicr people or with other 
 instruments.' The present legislation of Congress 
 seems to he an act wherehy the owners and masters 
 of ships are permitted to do mischief, not at cheaper 
 rates than is permitted to other people, hnt without 
 any liahility whatever." 
 
 The futility of pursuing further a matter of such 
 mao-nitudc is so ohvious that I am constrained 
 reluctantly to refrain from commenting at length. 
 Time alone can reveal whether the gigantic advance 
 which the American Senate has made in thus 
 legislating for the Commercial world will prove a 
 success or not : and with my readers I patiently 
 await the result of this issue. 
 
 22nd June 1893.
 
 ACT OF CONGRESS, 1893. 
 [ Public No. 57. ] 
 
 AN ACT relating to navigation of vessels, hills of lading, and to 
 certain obligations, duties, and riglits in connection with the car- 
 riage of property. 
 
 Be it enacted hy the Senate and House of Bepresentailves of the 
 United States of America in Congress assembled, that it shall not be 
 lawful for the managei', agent, master or owner of any vessel 
 transporting merchandise or propei-ty from or between ports of the 
 United States and foreign ports to insert in any bill of lading or 
 Bhipping document any clause, covenant or agreement whereby it, 
 he, or they shall be relieved from liability for loss or damage arising 
 from negligence, fault, or failure in proper loading, stowage, 
 custody, care, or proper delivery of any and all lawful merchandise 
 or property committed to its or their charge. Any and all words 
 or clauses of such import inserted in bills of lading or shipping 
 receipts shall be null and void and of no effect. 
 
 Sec. 2. That it shall not be lawful for any vessel transporting 
 merchandise or property from or between ports of the United States 
 of America and foreign ports, her owner, master, agent, or manager 
 to insert in any bill of lading or shipping document any covenant 
 or agreement whereby the obligations of the owner or owners of 
 said vessel to exercise due diligence, properly equip, man, provision, 
 and outfit said vessel, and to make said vessel seaworthy and 
 capable of performing her intended voyage, or whereby the 
 obligations of the master, officers, agents, or servants to carefully 
 handle and stow her cargo and to care for and properly deliver 
 same, shall in any wise be lessened, weakened or avoided. 
 
 Sec. 3. That if the owner of any vessel transporting merchan- 
 dise or property to or from any port in the United States of 
 America shall exercise due diligence to make the said vessel in all 
 respects seaworthy and properly manned, equipped, and supplied, 
 neither the vessel, her o-wner or owners, agent, or charterers shall 
 become or be held responsible for damage or loss resulting from 
 faults or errors in navigation or in the management of said vessel, 
 nor shall the vessel, her owner or owners, charterers, agent, or 
 master be held liable for losses arising from dangers of the sea 
 or other navigable waters, acts of God, or public enemies, or the
 
 ACT OP CONGRESS, 1803. 
 
 inherent defect, quality, or vice of the thing carried, or from 
 insufficiency of package, or si-izure under legal process, or for loss 
 resulting from any act or omission of the shipi)er or owner of the 
 goods, his agent or representative, or from saving or attempting to 
 save life or property at sea, or from any deviation in rendering 
 such service. 
 
 Sec. 4. That it shall be the duty of the owner or owners, master 
 or agent of any vessel transporting merchandise or j)roperty from 
 or between ports of the United States and foreign ports to issue to 
 shippers of any lawful merchandise a bill of lading, or shipping 
 document, stating, among other things, the marks necessary for 
 identification, number of packages, or quantity, stating whether 
 it be can-iers' or shipper's weight, and apparent order or condition 
 of such merchandise or property delivered to and received by the 
 owner, master, or agent of the vessel for transportation, and such 
 document shall be prima facie evidence of the receipt of the mer- 
 chandise therein described. 
 
 Sec. 5. That for a violation of any of the provisions of this 
 Act the Agent, owner or master of the vessel guilty of such viola- 
 tion, and who refuses to issue on demand the bill of lading herein 
 provided for, shall be liable to a fine not exceeding two thousand 
 dollars. The amount of the fine and costs for such violation shall 
 be a lien upon the vessel, whose agent, owner, or master is guilty 
 of such violation, and such vessel may be libelled therefor in any 
 district court of the United States, within whose jurisdiction the 
 vessel may be found. One half of such penalty shall go to the 
 paiiy injured by such violation and the remainder to the Govern- 
 ment of the United States. 
 
 Sec. 6. That this act shall not be held to modify or repeal 
 sections forty-two hundred and eighty-one, forty-two hundred and 
 eighty-two, and forty-two hundred and eighty-three of the Revised 
 Statutes of the United States, or any other Statute defining the 
 liability of vessels, their owners, or representatives. 
 
 Sec. 7. Sections one and four of this Act shall not apply to the 
 transportation of live animals. 
 
 Sec. 8. That this Act shall take effect from and after the first 
 day of July, eighteen hundred and ninety-three. 
 
 Approved, February 13, 1893,

 
 PART I. 
 
 THE NATURE OF A BILL OF LADING, AND ITS 
 LEGAL INCIDENTS. 
 
 A BILL of ladin": is a nc2:otiablc clocimient trans- AbiUof 
 
 ^ ° . l;ulinjrand 
 
 fcrablc by endorsement, and is made singly, or in its uriture. 
 sets of two, three, four, or six, or even eiglit,^ and is 
 signed by the master or purser of the vessel, or by 
 an agent or clerk of the owners or charterers, or by 
 a broker per procuration ; and in such cases the 
 person so signing must be authorized to do so, 
 either expressly or impliedly. 
 
 In one case evidence was given at the trial, and 
 admitted, that in the case of steamships it was 
 uniformly the custom for the broker of the ship, 
 and not the master, to sign the bills of lading.'^ 
 
 Upon the bill of lading being signed, each one of 
 the set becomes an original,^ and purports to be an 
 acknowledgment that the goods specified in it have 
 
 ' Button r. Powlcs, 8 Jiir. X. S. 070; s. c. 31 L. J. Q. B. 191 ; Strakcr i\ 
 Kidil & Co., L. R. 3 Q. B. D. 223 ; 47 L. J. Q. B. 3G5 ; Mirabita v. Imperial 
 Ottoman Bank, L. K. 3 Ex. D. 164 ; 47 L. J. Q. B. 418. 
 
 » Hayn, Roman & Co. i-. Cullifortl, L. R. 3 C. V. D. 410 ; L. R. 4 C. V. D. 
 182 ; 47 L. J. Q. B. 75G ; 48 L. J. C. P. 372. 
 
 » 3 Kent's Com., s. 203.
 
 2 BILL OF LADING AND ITS NATURE. 
 
 Ijcon received on board of the vessel in good order 
 and condition, and tliat the same mil be carried 
 from the port of lading to, and delivered at the port 
 of discharge, in like good order and condition^ to 
 A.B., or order or assigns, subject to the several condi- 
 tions and exceptions set forth in the bill of lading.^ 
 Upon the goods being received on board, the master, 
 or person acting for him (usually the mate,) gives 
 a receipt for the same, and afterwards in exchange 
 for this receipt, the bill of lading is handed to the 
 holder of the receipt, which being binding on the 
 owners, should always be obtained before the bills of 
 lading are signed.' Bills of lading should be signed 
 as soon as practicable after the receipt of the goods 
 on board, and this is as a rule done within twenty- 
 four hours of such receipt. 
 Applies from rj^y^Q ]^{\\ gf ladins^ covcrs tlic GTOods from the 
 
 time goods are ~ '-' 
 
 BbippeJ. moment they are put on board, though they may 
 sustain damage before the bill of lading is signed, 
 or damage may result from negligent stowage. 
 
 In the case of the Duero'' a quantity of nuts were 
 shipped for which mate's receipts were given, after 
 wliich the nuts Averc stowed, and bills of lading were 
 subsequently substituted for the mate's receipts. 
 On the voyage from Tarragona to London, the nuts 
 were damaged owing to the negligent stowage of 
 the same. In an action by the consignees to recover 
 
 1 Petrococliino v. Bott, L. R. 9 C, P. 355 j 43 L. J. C. P. 214. 
 = Caldwell v. Ball, 1 T. R. 213. 
 » Evans v. Nichol, 11 L. J. C. P. 6. 
 * L. R. 2 Adtn. 393 ; 38 L. J. Ad. 69.
 
 BILL OF LAVING AND ITS NATUBE. 
 
 for the damage occasioned, it was held, that the 
 contract Avas to be found in the bill of lading alone, 
 and that it Avas to be considered as the written 
 expression of the obligation of the parties, and that 
 the damage having come within the excepted perils 
 of the bill of ladmg, the plaintiffs could not recover. 
 In Hussonbhoy v. The British India Steam Navi- 
 gation Company, Limited,^ the question was at 
 wliat point of time the contract evidenced by the 
 bill of lading was created. It appeared that the 
 plaintiffs had shipped certain bags of sugar on the 
 11th and 12th November, 1887, on board the defen- 
 dant's ship for conveyance to Bombay. There 
 being a dispute as to the number of bags shipped, 
 no mate's receipt was given and no bill of lading 
 signed until the 28th November. The ship started 
 on her voyage on the 15th November, and duly 
 delivered the sugar in Bombaj-'. It was, however, 
 found to be damaged by water which was due to 
 its having been stowed in immediate proximity to 
 a quantity of wet timber. The plaintiffs sued the 
 defendants for the damage so caused. The defen- 
 dants claimed exemption under the conditions of 
 the bill of lading, which included "the act of God, 
 the Queen's enemies . . . and all the perils 
 dangers accidents of the sea . . . and accidents 
 loss or damage from any act, neglect, or default of 
 the pilot, master or mariners, or other servants of the 
 
 » I. L. K. 13 Bom. 571.
 
 4 BILL OF LADING AND ITS NATURE. 
 
 Company, &c., cxcoptod." The j)laintiffs contended 
 that a hill of lading did not relate to or cover the 
 period of loading, and that even if it did, the excep- 
 tion relied on in this hill of lading referred only to 
 negligence suhsequent to the commencement of the 
 voyage. It was held, that the reasonahle mode of 
 construing the contract evidenced hy a hill of lading, 
 was to hold the exceptions to he co-extensive with 
 the liahility, and that the goods w^ere covered hy 
 the hill of lading from the time they w^ere put on 
 board to he loaded : consequently, the defendants 
 were protected from liahility under the exemptive 
 clause. 
 Operation of. Bills of lading by the law merchant are repre- 
 sentatives of the property for which they have been 
 given, and tiie endorsement and delivery of a bill 
 of lading transfers the property from the vendor 
 to the vendee, is a complete delivery of the goods, ^ 
 divests the vendor's lien, and has, by 18 and 19 
 Vict., 1855, ch. cxi., and Act IX. of 1856 (The 
 Indian Legislative Council's Act,) the further effect 
 of vesting in the vendee all the vendor's rights of 
 action against the ship-master and owner. 
 Date. The date, or time of signing, is a material part 
 
 of a bill of lading, because, according to the tenor 
 of the document, the insertion of a particular date 
 amounts to a distinct representation that the goods 
 had actually been put on board before the time 
 
 1 Lickbarrow v. Mason, 2 T. R. 63 ; 1 Sm. L. C. 099 ; Ncwsora v. Thorn- 
 ton. C East Rep. 17.
 
 DATE OF BILL OF LADING. 
 
 specified. It is the special duty of tlie Master of 
 the ship to attest hy his signature, the date, as A\'ell 
 as the fact of shipment. lie is not hound to 
 superintend in person the receipt and stowage of 
 the goods ; hut if lie is not personally cognisant of 
 the fact and time of shipment, it is his personal 
 duty to inform himself upon hoth these points, hy 
 an examination of the Mate's receipts, or of the 
 log-hook, or otherwise, before he signs a hill of 
 lading for the goods. 
 
 These principles were laid down hy Lord Watson 
 in the case of Stumore, Weston & Co., r. Breen,^ in 
 which the following were the facts : — 
 
 The S. S. *' Lilhurn Tower " which had hecn fixed 
 for a voyage from Odessa to AntAverp, on the 1 Itli 
 September 1883, received on board IGIO Chetworts 
 of maize, and on the IGth, 2190 Chetworts of oats, 
 for delivery at Antwerp. The bills of lading were 
 made out and presented to the Master hy A. to 
 whom the ship had been consigned : that for the 
 maize was dated 11th, and that for tlic oats IGtli 
 September. The Master wlio \\u^\\ the true 
 dates of shipment, signed the bills of lading 
 without noticing tliat they were incorrectly dated. 
 The maize Avas shipped by B. for C, the endorsee 
 of the bill of lading at Antwerp, with whom B. had 
 contracted that the loading should take place not 
 later than the 12th. Similarly, tlie oats were 
 shipped by D. to E., the contract with him fixing 
 
 1 L. R. 12 App. Gas. G98 ; 50 L. J. Q. B. 401.
 
 DATE OF BILL OF LADING. 
 
 tlio lltli September as the last clay for shipment. 
 On arrival of the bills of lading, the indorsees in 
 accordance with stipulations in the contracts, direct- 
 ed bills of exchange to be accepted on their behalf 
 for the invoice prices of the maize and oats 
 respectively. They subsequently discovered the true 
 dates of shipment, and the price of maize and 
 oats having fallen, they took proceedings against 
 the owners to recover the loss sustained by the 
 ante-dating of the bills of lading, on the faith of 
 wdiich they alleged their acceptances had been 
 given. The owners compromised the suits, and in 
 an action by the Master against them for wages, 
 counter-claimed for damages suffered by them, 
 through his negligence and breach of duty in sign- 
 ing ante-dated bills of lading. 
 
 The House of Lords, reversing the order of the 
 Court of Appeal, restored the order of the Divisional 
 Court in favour of the Appellants (shipowners.) 
 
 And in Grieve v Konig,^ it was held that ship- 
 owners are not answerable in damages for the 
 unauthorised act of the Master in ante-dating a bill 
 of lading. 
 
 The Indian Stamp Act I. of 1879, sec. 3, cl. 3, 
 thus defines a bill of lading : 
 
 " Bill of lading means any instrument signed by 
 the owner of a vessel or his agent, ackno^A'ledging 
 the receipt of goods therein described, and under- 
 
 1 17 Sc. L. R. 325.
 
 FORM OF BILL OF LADING. 
 
 taking to deliver the same at a place and to a person 
 therein mentioned or indicated." 
 
 It is not compulsory to use any particular form of Form of. 
 hill of lading. Bills of lading must he made out 
 according to tlic directions of the shipper of the 
 goods, or of the holder of the receipt given on the 
 shipment,^ "who is in general the person entitled 
 to the hill of lading. He has a right to name the 
 consignee to he mentioned in the hill of lading, as 
 it is presumed that the goods have heen shij)ped on 
 account of the sliippcr, though it is not so expressed 
 in the receipt. 
 
 It is perfectly legal to make additions to tlic 
 general conditions, and even to stamp notice of the 
 same on the margin. So other clauses may he 
 introduced, either to take away the responsihility of 
 the master and owners in cases where they would 
 otherwise he responsihle, or to give to them, or to 
 the shijipers, an advantage to which they would not 
 otherwise he entitled.^ And in practice this is 
 constantly done where it is considered the nature of 
 the voyage, cargo, or risks, require it ; however, 
 Avhcn a marginal note is inserted, or an addition 
 made at the foot, it should, to prevent litigation, l)e 
 initialed hy hoth parties to the contract, and all 
 stipulations should he made in terms sufficiently 
 intelligihle to indicate that the law merchant is not 
 
 1 Craven v. Eydor, 6 Tauut. 433. 
 
 - Leer I'. Yatos, 3 Taunt. 388 j Jessou r. Solly, i Tauut. 52; Evaus i', 
 Forstcr, 1 B. & Ad. 118.
 
 STAMP ON BILLS OF LADING. 
 
 to prevail. So where a stamp in red ink Avas put 
 on the back of the hill of lading hy the shipowner, 
 which proAddcd that freight was to he paid before 
 delivery if required, the Court, assuming that the 
 stamp was on before the bill of lading was delivered 
 to the shipper, considered that there was no evidence 
 of any assent to its provisions by the shipper, and 
 held that it was not admissiljle to control the 
 provisions of the bill of lading/ In many trades the 
 sliij)owners have their own form of bill of lading, 
 and will not sign, or sanction the signing of, any 
 others which contain stij)ulations differing from 
 those in their own forms. 
 stamp on. ^^ l'>ills of lading signed by the master, or by any 
 j)erson authorized to do so, no matter what their 
 number, being original instruments, must be stamped. 
 
 51 and 55 Vict., cli. 39, s. 40, enacts that : — 
 
 "1. A bill of lading is not to be stamped after 
 the execution thereof. 
 
 " 2. Every person who makes or executes any 
 l)ill of lading not duly stamped, shall incur a fine 
 of £50." 
 
 And by the schedule to this Statute, " a bill of 
 lading of or for any goods, merchandise or effects to 
 bo exported or carried coastwise," must bear a 
 stamp of six pence. 
 
 The Indian Stamp Act I. of 1879, sec. 16, enacts 
 that "all instruments chargeable Avith duty and 
 executed by any person in British India shall be 
 
 1 Aug. ou Car., 198 u. (b.)
 
 STA3IP ON BILLS OF LADING. 
 
 stamped before or at the time of execution," and by 
 scbcdiile ] , article No. 12 of the same Act, the stamp 
 fee on a bill of lading is fixed at 1 annas. It is also 
 enacted that "if a bill of lading- is drawn in parts, 
 the proj^cr stamp therefor must be borne by each 
 one of the set." This act imposes no penalty similar 
 to the English statute for executing an unstamped 
 bill of lading. By sec. Si, proviso 1, any such un- 
 stamped instrument shall be received in evidence 
 and acted upon on payment of the proper stamp 
 duty, together A^•itll a penalty of Es. 5 ; but, not- 
 ^\itlistanding this payment, if it appears to the 
 Collector that the bill of lading was executed 
 unstamped, or on insufficiently stamped paper, with 
 the intention of evading payment of the proj)er duty, 
 the party so executing it may be prosecuted for an 
 offence against the stamp laws under section 10 of 
 the Act. 
 
 By schedule 2 to the same Act, article No. 7, 
 a bill of lading is exempted from stamp duty 
 " when the goods therein described are received at 
 a place within the limits of any ports as deiined 
 under the Indian Ports Act XII. of 1875, and arc 
 to be delivered at another place A\-ithin the limits of 
 the same port." 
 
 By the rules framed by the Governor General of 
 India in Council, under the provisions of the Stamp 
 Act, dated 22nd May 1891, impressed labels affixed 
 and impressed thereto by a Government officer may 
 be used on bills of lading. By section 2 of the 
 English statute, all duties ou bills of lading must be
 
 10 STAMP ON BILLS OF LADING. 
 
 denoted by impressed stamps ; the affixing of an 
 adhesive stamp "svill not suffice, and a hill of lading 
 so stamped would ho treated as unstamped. 
 
 T\liero hills of lading have heen passed in a 
 foreign port which is not suhject to any stamp law, 
 or ^^'here they have heen insufficiently stamped, or 
 hear no stamp, ^^ithout any intention of evading the 
 stamp laws where such laws are in force, such hills 
 of lading, on arrival in the United Kingdom, may 
 he sent to the inland revenue officers, to he 
 impressed with the proper stamp. 
 
 By 54 and 55 Vict., ch. 39, sec. 15, (3) (a), it is 
 provided : — 
 
 "Any unstamped or insufficiently stamped iur 
 strument, which has heen first executed at any 
 place out of the United Kingdom, may he stamped, 
 at any time within thirty days after it has heen first 
 received in the United Kingdom, on payment of the 
 unpaid duty only." 
 
 Under the provisions of section 8 of The Indian 
 Stamp Act I. of 1879, the Governor General of 
 India in Council by a notification, dated 22nd 
 November 1889, exempted " Bills of lading execu- 
 ted out of British India, and relating to property to 
 he delivered in British India," from stamp duty. 
 
 The Indian Stamp Act I. of 1879, Schedule IL, 
 
 Article No. 17 (b) exempts from Stamp duty " the 
 
 transfer by endorsement" of a bill of lading. 
 
 c^pigg Copies of hills of lading, or office copies as they 
 
 be*Samped. ^^'C cailod, SO Certified, may be drawn and need not
 
 STAMP BY WrrOM PAYABLE. 11 
 
 he stamped ; hut no sliip-mastcr, or person acting 
 on behalf of a shipowner witli respect to the matters 
 therein contained, is entitled to sign such copies. 
 
 Some forms of hills of lading have the words 
 " Copy, not negotiahle," stamped in large letters on 
 tlie face of the hill. 
 
 Bills of ladhig arc documents representing pro- stamp by 
 pcrty in goods shipjicd on hoard any yessel ; and 
 are, therefore, held hy the merchant to whom they 
 helong. There is no law to compel a shipowner 
 to pay for stamps on hills of ladmg, and hy the 
 general custom of trade, the shipper who presents 
 them for signature pays for the stamps. Their hcing 
 presented hy a broker Avould not alter the relative 
 position of shipper and shipowner. 
 
 Bills of lading are drawn in sets for the inf orma- ^iiis of lading 
 tion, guidance, and security of all parties thereto, as 
 well as to facilitate the use of them as negotiahle 
 instruments.^ Thus, the shipper of the goods usually 
 sends one or two of these parts of the hill to his 
 agent, factor, or other person, to Avhom the goods 
 are to he delivered at the place of destination ; that 
 is, one on hoard the vessel witli the goods, another 
 hy the post or otiicr conveyance, and one he retains 
 for his own security : the master should also take care 
 to liave one for liis own use and future guidance. 
 By long usage and custom, and the additional 
 requirements of trade, the use of four or more parts 
 is of ordinary occurrence. 
 
 ' Bell's Prin., p. 15G. 
 
 in sets.
 
 12 BILLS OF LADING IN SETS. 
 
 In the case of Sanders v. Maclean/ Bowen, L. J., 
 said : — 
 
 By inveterate practice among most of the com- 
 mercial nations of Europe, bills of lading have long 
 been drawn by the shipowner in sets of three or more. 
 Sometimes one of the set is retained by the Captain, 
 the others being transferred by the Captain to the 
 shipper. Sometimes the whole of the set are handed, 
 tipon shipment, to the merchant, the Captain retain- 
 ing a copy only. This practice of drawing bills of 
 lading in triplicate may be at the present day, and 
 nnder the altered conditions of communication 
 between one part of the world and another, less 
 valuable than it was when originally introduced. 
 But it certainly had its distinct uses in the early 
 stages of Euroj)ean commerce, and it still survives. 
 If it survives, it is probable that the commercial 
 world still finds it more convenient or less trouble- 
 some to preserve it than to change it; and it is 
 plain that the purpose and idea of drawing bills of 
 lading in sets, whatever the present advantage or 
 disadvantage of the plan — is that the Avholc set 
 should not remain always in the same hands. The 
 possibility of its separation is intentionally devised 
 for the purpose, not of fraud, but of furthering honest 
 dealing. The separation may conceivably afford 
 opportunities of fraud, if the holders choose to be 
 dishonest ; but, on the whole, the commercial world 
 is satisfied to run the risk of this contingency for 
 the sake of the compensating advantages and con- 
 
 "■ L. R. 11 Q. B. D. 327; 52 L. J. Q. B. 481.
 
 BILLS OF LADING IN SETS. 13 
 
 venienco which merchants, rightly or wrongly, have, 
 till lately at all events, believed to 1)(^ afforded hy 
 the system of triplicates or qnadruplicates. The 
 shipper or his vendees may prefer to retain one of 
 the originals for their own protection against loss, 
 or to transfer it to their correspondents. In such 
 cases they are in the habit of treating the remainder 
 of the set as the effective documents, and as suf- 
 ficient for all purposes of negotiating the goods 
 comprised in the hill of lading. The question we 
 have to decide is, whether the tender to the vendee 
 of the only effective originals of the set is a sufFicient 
 tender under their contract, notwithstanding the 
 absence of a third original which is outstanding in 
 the hands of the shipper, but which it is admitted 
 in the present case has been in no way dealt with 
 by him, and which has always remained in his hands 
 as an ineffective and innocent triplicate. 
 
 If we were to hold that such a tender is not ade- 
 quate, ^^■e must, as it appears to me, deal a fatal 
 blow at this established custom of merchants, 
 according to which, time out of mind, bills of lading 
 are drawn in sets, and one of a set is habitually 
 dealt with as representing the cargo independently 
 of the rest. If the set for purposes of contracts like 
 the present must always be kept together, the whole 
 object, be it A^se or unwise, of drawing bills of 
 lading in triplicate is frustrated; for if one of the 
 set were lost, or had been Ibrwarded by the shipper 
 or by the subsequent owner of the cargo to his
 
 14 MATE'S RECEIPTS. 
 
 correspondent by ^vaj of precaution, tlic cargo 
 becomes unsaleable. The only possil)le object of 
 requiring the presentation of tbe third original must 
 be to prevent the chance, more or less remote, of 
 fraud on the part of the shipper, or some previous 
 owner of the goods. The vendees were not entitled 
 to reject the tender of the only effective documents 
 on the bare chance that a third effective bill of 
 lading might possibly have been dealt with, when 
 in fact, it had not. The person who rejects effective 
 documents of title on the ground that another may 
 possibly be outstanding, does so at his own risk. If 
 this surmise turns out to be well-founded, his rejec- 
 tion of the tender would be justified. But if it is a 
 mere surmise and has no foundation in fact, he has 
 chosen, by excess of caution, to place himself in 
 the wrong, (a.) 
 Mate's The intending shipper, on application to the ship- 
 
 owner or his agent, receives a shipping order duly 
 filled in with the nature, quantity, and quality of the 
 goods to be shipped. In some shipping orders 
 there is a clause to the effect that no goods are to 
 be taken on board in a damaged condition, or for 
 which a clean receipt cannot be given, or the ship 
 will be held resjoonsible. 
 
 In India, by the Stamp Act I. of 1879, schedule 1, 
 article No. 58, a " sln'pping order for or relating to 
 the conveyance of goods on board of any vessel 
 requires a stamp of one anna." 
 
 (a) See the judgment of Lord Blackburn in Glynn, Mills & Co., v. The E. 
 & W. I. Docks, 52 L. J. Q. B. 160. 
 
 receipts.
 
 MATE'S RECEIPTS. 15 
 
 This order the shipper forAvards with the goods to 
 the vessel named, and ujion the same being received 
 on hoard, a receipt is given for them, usually hy 
 the mate. 
 
 In order to insure prompt despatch, it is requisite 
 that the ship, on the day named in the order, should 
 he ready to receive, that is, not only to take on hoard, 
 hut to take in and sto^A' away cargo, meaning there- 
 by not only the particular quantum of cargo men- 
 tioned m the shijiping order, but a full cargo, from 
 A\"homsoever oll'ered : she must, moreover, be in a 
 position to continue doing this from day to day 
 expeditiously, and without delay or interruption 
 arising from the contemporaneous discharge of her 
 inward cargo/ 
 
 It is the custom in many ports for the mate to give 
 receipts for goods A^'llen tendered alongside, but a 
 mate being responsible for tally and correct delivery 
 of the cargo, should not give a receipt until the 
 goods are on the ship's deck. A mate cannot be 
 compelled to give a receipt for goods alongside, and if 
 lie does so, he may render himself liable to a crimmal 
 indictment should bills of lading be obtained on 
 his receipts and fraud be practised. If the mate 
 gives receipts for goods, or accepts the custody of 
 them A\hilst they are in tlie lighter, or on the quay, 
 or wharf, the master* and o^^•ners of the vessel are 
 responsible for any loss or damage wliich may 
 
 ^ Taylor v. Brooke, 1 Bom. II. C. Kcp., Am). IS.
 
 16 ASSIGNMENT OF MATE'S RECEIPTS. 
 
 happen to the goods before they are actually placed 
 on board the vessel/ 
 
 Assigumeut Tlic ti'iic lioldcr of tlic matc's receipts can, by 
 
 indorsement thereon, transfer all his interest in the 
 goods named therein to a bond fide indorsee. An 
 equitable assignment can be made,butthe assignment 
 ^vill be of no avail unless notice is given to the 
 person to be charged therewith ; so an indorsee of a 
 mate's receij)t, without notice to the master, cannot 
 acquire any title to the goods as against the owners 
 or bond fide holders of the bill of lading for value. 
 For instance, where brokers delivered goods on board 
 a ship and took mate's receipts in the name of their 
 principals, who afterwards indorsed the receipts to 
 the brokers, and the Captain signed bills of lading 
 without notice of the indorsement, it was decided 
 that the holders of the bills of lading were entitled 
 to the goods, and that the Captain was justified in 
 signing the bills of lading without obtaining the 
 mate's receipts in exchange, and that the brokers had 
 no claim for indemnity from the owners. Also that 
 the rights of the holders of the bills of lading would 
 not have been affected by notice to the Captain.^ 
 Bills of ladin ^^^^ univcrsal principle is, that a master from the 
 Sd only on ^^^^^ ^^^ rcceivcs thc goods is chargeable with those 
 the maSs °^ goods ; and if he has no notice that any other o^Mier 
 
 receipts. 
 
 1 Fragano r. Long, 4 B. & C. 219 ; Thompson v. Traill, G B. & C. 
 36; Schuster v. McKellur, 26 L. J. Q. B. 281. 
 
 = Evans v. Nicliol, IIL. J. C. P. 6; Hathcsing v. Laing, L. R. 17 Ecj. 93; 
 43 L. J. Ch. 233; llajaram Govinclram v. Brown and others, 7 Bom. 
 H. C. 11. 0. C. J. 97.
 
 BILLS OF LADING SHOULD BE SIGNED. 17 
 
 in the world exists but the man in A\hosc name the 
 receipt is passed, lie incurs no liahiUty Avhen he 
 assigns the hills of lading to the person who, as far 
 as he is concerned, is the sole owner. 
 
 If the master satisfies himself with his own hands 
 and his own eyes that the goods are on hoard, then 
 the mate's receipts become to him a matter of perfect 
 indiiference ; if he can only satisfy himself whose 
 goods they are, being told and knowing that the 
 goods belong to A. B., he is justified in signing the 
 bills of lading.^ 
 
 But whenever a receipt has been giA^en for goods 
 put on board a vessel, the master ought to be most 
 careful not to sign and deliver any bill of lading 
 without receiving in exchange such receipt, or seeing 
 it destroyed : for otherwise he might place himself 
 mider a twofold responsibility — a responsibility to the 
 shipper in case he should require the goods to be 
 delivered to his own order and have a legal riglit to 
 do so ; and a responsibility to the holder of the bill 
 of lading, who might be induced to purchase the 
 goods on the faith of it.^ 
 
 The liabilities which may arise from the neglect of 
 this precaution are exemplified by the case of Schuster 
 and others r. McKellar and Young.^ There the 
 plaintiffs purchased m thcu* own names, and paid for 
 
 > Hatliesing v. Laiiig, L. R. 17 Eq. 92; 43 L. J. Ch. 233. 
 
 ^ Cawasjee r. Thompson, 5 Moore P. C. 1G5; Falko i'. Fletcher, 31 
 L. J. C. P. 146; Bell's Prin. 410 et seq. 
 
 =» 26 L. J. Q. B. 281 ; 7 El. & Bl. 704. Sec alao Tlioruiau v. Burt, Boultou 
 & Co., 5 Asp, ilar. L. Cas. 563. 
 
 3
 
 18 ONLY ON PRODUCTION OF MATE'S RECEIPTS. 
 
 50 tons of spelter, C. having previously given tliem 
 an order for that quantity ; and, at C.'s request they 
 permitted the sj)elter to he put on hoard a ship which 
 was under charter, at a lump sum, from London to 
 Calcutta, with a stipulation that the Captain should 
 sign hills of lading as directed hy the charterers, 
 hy whom the vessel had heen put up as a general 
 ship through hrokers, of whom C. engaged tonnage 
 room for the spelter. The spelter was put on board 
 on the 17th May hy a lighterman employed hy C, 
 and according to previous arrangement, he delivered 
 to the plantiffs the mate's receipt which he received 
 on loading. According to the usual course of dealin g 
 between the plaintiffs and C, they would keep the 
 receijot until he redeemed it hy paying the price of 
 the spelter. C. after shipment of the spelter, 
 ajiplied to the hrokers to o1)tain signed hills of lading, 
 which were signed hy the master and given to C, 
 who endorsed them to a bona fide holder for value. 
 0. becoming bankrupt, the plaintiffs wrote to the 
 shipowner that they held the mate's receipt, and 
 that they required the delivery of the spelter to them 
 or their agents ; and a similar notice was served on 
 the master on his arrival at Calcutta. The ship- 
 owner wrote to the master recommending him to 
 store the spelter until the dispute should be settled 
 among the different claimants, or if the mate's 
 receipt were presented, ]iot to give up the spelter 
 till he got the receipt and the bills of lading. The 
 master, after the receipt of this letter and the notice
 
 MASTER TO SIGN BILLS OF LABING. 10 
 
 from the plaintiiTs, and after a demand of the spel- 
 ter by the plaintiff's agent, stored it at Calcutta, 
 and delivered it to the holder of the bill of lading, 
 on an indemnity by him. The plaintiffs having 
 brought an action of trover for the spelter against 
 tlie shipowner and master, it was held that the pro- 
 l)erty in the spelter remained in the plaintiffs ; and 
 tliat the master was not justified in signing and de- 
 livering bills of lading to C, without the production 
 of the mate's receipt. That the master was there- 
 fore liable for a conversion of the spelter ; and that 
 the shipowner had also made himself liable by his 
 letter to the master ; also, that as the x)laintiffs did 
 not claim under a bill of lading signed by the master, 
 as agent of the charterers, the shipowner w^ould 
 have been liable, as owner, for the wrongful act of 
 the master. 
 
 Tliere is no compulsion by statute on ship-masters J^=Jf^^Yo^ 
 to sign bills of lading ; but by the custom of trade ^^?fj3^|_ 
 a master should sign bills of lading, as they are the 
 only evidences of shipment and of the right of the 
 hipper to the goods. 
 
 AYliere the goods have been received on board, 
 and the mate's receipts are produced or, if required, 
 an indemnity is offered where they are lost or can- 
 not be fomid, the master is bound to sign bills of 
 lading for the goods mentioned in the receipts, or put 
 them ashore at the ship's expense; his not doing 
 so would render the shipowner liable for all loss
 
 20 MASTER TO SIGN BILLS OF LADING 
 
 incuiTed, and also for insurance if the vessel should 
 be lost through not sailing at the time appointed.^ 
 
 If a master is not permitted to sign under reser- 
 vation, he should enter a protest and serve tlie shipper 
 with a copy of it. Merchants Avant the hills of lading 
 either for sale of the goods, or to deposit them with 
 policies of insurance for advances. Independently 
 of pledging hills of lading, these instruments 
 are also required hj the shippers to send to their 
 consignees, and very often they are accompanied 
 -with hills of exchange. Masters of ships should not, 
 therefore, decline to sign hills of lading unless they 
 have good reasons for doing so; and, generally, 
 withholding signature to bills of lading is an unsafe 
 proceeding where certainty does not exist.^ On 
 the other hand, no shipper of goods has the right to 
 insist upon a captain inflicting a wrong on third 
 parties l)y certifying that he has more cargo than is 
 entered on his mate's receipt. 
 Master to sign Wlicrc, by tlic cliartcr-party, "the master is to sign 
 as p^re°sented°^ bills of lading as presented," the master is not only 
 authorized, but has an obligation imposed upon him 
 to grant or sign bills of lading in whatever form, 
 and to whatever effect, he may be required to sign 
 them. Therefore, A\liere, though in fraud of the 
 plaintiff, a bill of lading was granted and signed by the 
 master under and in strict pursuance of his authority, 
 
 1 Falke V. Fletcher, 34 L. J. C. P. 14G; Peek v. Larsen, L. R. 12 
 Eq. 383; 40 L.J. Ch. 763. 
 
 2 Davies v. McVeagh, L. E. 4 Ex, D. 268; 4 Asp. Mar. L. Cas., 149; 48 
 L. J. Ex. 686.
 
 AS PRESENTED. 21 
 
 wliich had hoon indorsed for value to the plaintiffs, 
 it was held tliat tlie property in the goods mentioned 
 in the bill of lading had passed to them, and that 
 they were entitled to maintain an action for non- 
 delivery.^ AVhere freight is to be paid according to 
 the weight delivered at the end of the voyage, and 
 the charter-party contains a clause that the master 
 should sign bills of lading for the weight of the cargo 
 put on board as presented to him by the charterers, 
 as between the shipowner and charterer, the 
 master is l)ound to sign A^ithout weighing the cargo ; 
 but the shipowners would not be bound to deliver 
 more than was shipped, there being no warranty, 
 either express or implied, that the charterers might 
 not make mistakes. If however the shipowner pays 
 to the consignees the difference in value between the 
 quantity alleged to have been shipped and the quan- 
 tity delivered, he cannot recover the same from the 
 charterers, such payment on his part being volun- 
 tary. Thus, where a declaration stated that it was 
 agreed between plaintiffs and defendants that the 
 plaintiff's ship should take a cargo of coals from C. to 
 B., " the master of the ship to sign bills of lading for 
 weight of cargo put on board as presented to him 
 by the defendants, without prejudice to the tenor 
 of the charter-party :" that 573 tons of coal were 
 shipped, and that the defendants caused the master 
 to sign bills of lading for 005 tons, whereby the 
 plaintiffs were forced to pay the consignees at B. £31 
 
 » Gabarron v. Ki-eef t, and Kreeft v. Thompson, L. R. 10 Ex. 274 ; 
 44 L. J. Ex. 238.
 
 22 ■ COURSE WHERE MASTER REFUSES TO SIGN. 
 
 for the value of the cliff erence between 605 tons and 
 573 tons, and £13 for dues, it was held on demurrer 
 tliat the declaration Avas bad.^ 
 Course where Eut if tlic mastcr refuses to siu:u bills of ladinsr, 
 
 master reruses ^ ~ 
 
 to siga. or insists upon qualifying them, the shipper should 
 
 serve the mastcr with a formal notice to sign the bills 
 of lading, and if he still refuse to do so, he should 
 then appear before a Notary with his clerk or servant 
 who delivered the goods on board, and cause a 
 protest to be made, of Avhicli fact he should also give 
 notice to the master, avIio Avill be liable in damaores 
 for any loss occasioned by a wrongful refusal on his 
 part to sign the bills of lading ; tlie compensation 
 being the amount of loss actually incurred. 
 
 It Avas stipulated by a charter-party made betAveen 
 the plaintiffs and the defendants that the master of 
 the ship should sign bills of lading as presented, or 
 pay a named penalty. He refused to do so, and 
 sailed from the port of loading AAdthout having signed 
 any bills of lading. He proceeded to the port of 
 discharge, and delivered a portion of the cargo to the 
 consignees, but ceased doing so and Avarehoused tlie 
 remainder, as they, acting under instructions from 
 the charterers, claimed to deduct from the freight an 
 amount equal to the penalty named in the charter- 
 party. In an action by the charterers against 
 the shipoAvners for conversion and for penalties, — 
 
 Held, that the plaintiffs could recoA'er nominal 
 
 1 Brown v. Powell Duffryn Steam Coal Company, L.R. 10 C. P. 5Cp2 : 
 44 L. J. C. P. 289.
 
 SIGNING PER PROCURATION. 2:3 
 
 damages for the brcacli of contract iiv not signing 
 Lills of lading as presented ; but that there had been 
 no conversion by the defendants of the cargo, as 
 they had carried it for the plaintiffs, had intended 
 to deliver the whole of it to the consignees of the 
 plaintiffs, and had been prevented by the acts of the 
 plaintiffs from completing the delivery.^ 
 
 A vessel cannot be detained for the purpose of 
 procuring the master's signature to bills of lading, 
 and where an action was brought to compel a master 
 to sign bills of lading in the usual legal and cus- 
 tomary form, and it Avas sought to detain the vessel 
 by injunction, from sailing until the same were 
 signed, it was stated by the Court that it was 
 not aware of any case in wliich a Court of Equity 
 had ever compelled a master to sign bills of lading 
 in a particular form, and as the master's refusal to 
 sign was a wrong wliich could be easily compensated 
 for in damages, the plaintiffs were not entitled to 
 a decree, and dismissed the suit.' 
 
 There is no legal definition of the term " per Effect of 
 procuration." It is generally understood to mean onScrper 
 that the procurator is acting under a power of attor- ^^°^^^ ^°^' 
 ney, but it is considered that "procuration" means 
 any authority. If a company carries on business 
 and allows a clerk or manager to sign his name to 
 bills on behalf of the company, that would import 
 a general authority in the clerk or manager who so 
 
 » Jonea v. Hough, L. 11. 5 Ex. D. li.".; -10 L. J. Ex. 211. 
 * Grasciuaun and Co, i'. Littlepagc, 3 Cal. W. II. Ilec. Kef. 1.
 
 24 SIGNING PER PROCURATION. 
 
 signs. ^ By his acts the company would be bound, 
 and the public "would not be called upon to inquire 
 into the extent of his authority. So where a person 
 has the general management of a business and ware- 
 house, and is in the habit of sending quantities of 
 merchandise to London by vessels hired, and charter- 
 parties signed by him by procuration, he has a gener- 
 al authority to bind his principal, although he may 
 have had no authority to sign a particular charter- 
 party in which his principal had no interest.^ If the 
 party signing describes himself as procurator, and 
 the person dealing with him is aware of the character 
 in which he acts, he must make such inquiries as are 
 necessary for his own safety. On this point, Pollock, 
 C.B., said, "The practical question is, what is the 
 extent of the inquiry that you are to make, and after 
 making the inquiry, what is the sort of answer that 
 may be satisfactorily given, and which will protect 
 you, though it should turn out that the authority had 
 been exceeded ? I apprehend that it is this. If you 
 see a bill accepted by A. on behalf of B. and 0., and 
 you have no dealings with them, and know nothing 
 about them, to what extent are your inquiries to go ? 
 I must say I think you are not bound to go to a man 
 and say, ' Sir, produce me the power of attorney or 
 authority to accept the bill.' If you find a person 
 who has accepted a bill as agent, or by procuration, 
 as a clerk in the house that he has accepted bills of 
 
 1 Alexander v. M'Kenzic, 18 L. J. C. P. 91. 
 
 2 Smith V. M'Guii-c, 27 L. J. Ex. 4G5.
 
 SIGNING PER PROCURATION. 25 
 
 that sort for, from clay to clay, month to month, year 
 to year, and done it in the course of his employment 
 in the house in "svhich he is employed regularly as a 
 clerk ; if you find this, you have done enough. You 
 need not ask foi;a poAver of attorney or authority, nor 
 need you go to a man, and say, ' Is this on accomit 
 of the house ? ' You find that he is in the house 
 acting as the agent, and recognized as the agent 
 of the house. If you find it done in that vi-aj hy 
 him as the agent, you need do no more."^ 
 
 The term " per procuration " is a special notice 
 to the party taking the document, that the person 
 so signing acts under a special authority, and such 
 party takes the document on the faith of that 
 representation. 
 
 In the case of Grant v. Norway,^ Jervis, C. J., 
 in considering the effect of a master's signatm'e 
 to a hill of lading, adopted this principle. It is 
 the duty of the shipper to satisfy himself 
 that the person signing per procuration has autho- 
 rity to do so. 
 
 A hroker is not the agent of the master of a ship 
 to sign hills per procuration. A hroker's signature 
 to a hill of lading makes the shipoAAiier for T\hom 
 the agent acts, liable to third parties ; hut the master 
 is responsible to his employer only on instruments 
 signed hy himself, he being liable to be sued upon 
 his own contracts. 
 
 » Smith V. M'Giiire, 27 L. J. Ex. 109. 
 - 20 L.J.C.r. 93.
 
 26 TITLE TO BILL OF LADING. 
 
 In the case of Stumore, Weston & Co. i\ Breen,^ it 
 waslielcl that "ship's brokers at a foreign port have 
 not, as such, authority to rclicA^e the Captain from 
 the duty of seeing to the accuracy of statements 
 contained in bills of lading which -they present to 
 him for signature. 
 Title to bill of When a receipt has been eiven by the mate, or by 
 
 lading. ^ . 
 
 a person in charge at the time, for goods received on 
 board, the person who is in lawful possession of that 
 receipt is the person entitled to the bill of lading. 
 In Craven v. Ryder,^ Gibbs, C. J., said, " I take 
 it the practice is, that the person who is in posses- 
 sion of the lighterman's receipt, is the person 
 entitled to the bill of lading, which ought to be given 
 only to the holder of that receipt. Consequently, 
 the holder of that receipt retains a control over the 
 goods, at least until he has exchanged the receipt 
 for the bill of ladins;." In a case where the master 
 of a vessel gave written receipts to the owner of 
 goods delivered on board, and on those receipts 
 being given up issued a bill of lading in good 
 faith to the party returning them, who had 
 obtained them by false pretences from the sliipj)er, 
 it was held that the Captain was not liable in trover 
 to the shipper, unless the bills of lading were 
 surrendered, or he was fully indemnified against 
 all damages consequent upon the delay necessary 
 
 » L. E. 12 App. Cas. 698; 56 L. J. Q. B. 401. 
 
 « 6 Taunt. 435, See also Schuster v. M'Kellar, 26 L. J. Q. B. 281 ; 
 Thompson r.iTrail, 2 Car. & P. 334 5 Kuck r. Hatfield, 5 B. & Aid. 632.
 
 TITLE TO BILL OF LADING, 27 
 
 to unload them, and all the expenses of loading 
 and unloading them were paid.^ 
 
 In one case where the plaintiff Lutscher, who 
 carried on husincss in London under the firm of 
 Lutscher and Co., made an arrangement ■\\'ith Levy, 
 of Oran, to supply him with funds in order to enable 
 him to make purchases which were to he consigned 
 to the house of Lutscher and Co., in London : Messrs. 
 Lutscher and Co. were to dispose of such consign- 
 ments, and to recoup themselves out of the sale in 
 respect of the advances made hy them. It appeared 
 that in respect of a particular cargo of palm leaves, 
 about 250 tons, Messrs. Lutscher having entered into 
 a contract for the sale of these palm leaves to the 
 Tovil Paper Company, the company chartered a ship 
 to take on hoard the cargo at Oran, and this was 
 accordingly done, the hill of lading being made out 
 in the name of Levy. The day after the cargo was 
 shipped. Levy stopped payment, and his affairs were 
 taken in hand by certain liquidators appointed by 
 creditors in Oran. The palm leaves arrived in Lon- 
 don in due course, and were claimed on the part of 
 Messrs. Lutscher. The liquidators, however, having 
 obtained possession of the bill of lading, forwarded 
 it to the Comptoir d' Escompte, with instructions not 
 to part with it unless the amount of the value of the 
 palm leaves was paid. It was contended on the part 
 of Lutscher that, having paid the amount to enable 
 Levy to purchase the palm leaves, he could not be called 
 
 » Parsons on Sh., vol. 1, p. 179 n.
 
 28 MASTER'S RIGHT TO A COPY. 
 
 upon to pay it again. As, liowever, tlie Comptoir 
 d'Escompte declined to hand over the bill of lading 
 ■unless they received the amount claimed, this was 
 paid under protest, and an action commenced on the 
 IDart of Messrs. Lutscher to enforce repayment. To 
 this statement the defendants, the Comptoir 
 d'Escompte, demurred. The matter was argued at 
 considerable length, and the Court unanimously gave 
 judgment in favour of the plaintiif, holding that the 
 arrangement was such as would in equity amount to 
 an agreement of hypothecation ; and that, therefore, 
 the liquidators at Oran would have no better title to 
 the bill of lading than Levy himself would have had, 
 and that Levy would undoubtedly have been com- 
 pelled under tlie arrangement to forward the bill of 
 lading to Messrs. Lutscher in London.^ 
 Master's right Thc mastcr of a ship should be careful what he 
 .bui oMadiDg! signs, and insist on retaining one copy of the bills of 
 ladins: in order to understand what his contract is, 
 and also to compare with the one given up on 
 delivery. Unless it is expressly stipulated by the 
 charter-party that the shipper, or charterer, should 
 hand to the shipoAvner or his Captain, copies of the bill 
 or bills of lading for the separate parts of the cargo ; 
 or this duty is incorporated'^ in it by mercantile 
 usage ; or arises from the peculiar circumstances 
 of any particular case, the furnishing to the captain 
 for ship's use, of a copy of the bill, or each of the 
 
 1 Lutscher v. Comptoir d'Escompte do Paris, 3 Asp. Mar. L. Cas. (N.S.) 209. 
 ^Dutton V. Powles, 30 L. J. Q. B. 169; 31 L.J. Q. B. 191; 8 Jur. 
 N. S. 970.
 
 MASTER WTTEy CHARTERER SIGNING. 29 
 
 bills of Lading, signed hy liim, should be specially 
 stipulated for, in order to prevent any doubts 
 beins: raised as to his right. 
 
 It is an almost invariable practice and usage that Effect of 
 
 ^ ' mister, who is 
 
 the owners of a ship, although they let it out upon also cbarterer 
 
 ■•• ' o t/ 1. signing bills or 
 
 freight to a charterer, do themselves appoint a lading, 
 captain and the crew, the chartering of the ship not 
 being so much the chartering of the hull, as of the 
 ship in a state fit for the purpose of mercantile 
 adventure. Therefore the chartering of a ship in 
 any particular case to the master does not create 
 any more responsibility in the owner to the shippers 
 of goods, where such fact is made known to them, 
 than if the ship were freighted to an entire stranger. 
 The master by the terms of the charter-party is 
 constituted, as between him and the shippers^ 
 owner of the vessel, and contracts with them not as 
 the agent of the owner, but on his own account ; 
 aiid therefore he, and not the owner, is liable to the 
 shippers for the non-delivery of their goods pursuant 
 to the bills of lading. 
 
 By the charter-party in Newberry r. Colvin,^ which 
 case was carried to the House of Lords, the owner 
 covenanted Avith Betham that he should be master ; 
 that the owner should be allowed to put on board 
 100 tons of iron for the outward voyage, and that 
 the ship "should be put and continued in the service" 
 of Betham for twelve months, Avitli power to load 
 such goods as he thought fit, and to trade to and 
 
 ' 7 Bing. 190; Sec also Schuster r. M'Kellar, 26 L. J. Q. B. 286.
 
 30 MASTER NOT TO SIGN TWO SETS OF 
 
 from certain specified ports ; the owner to man the 
 ship and to provide stores and necessaries for the 
 ship and crew during that period. Betham, on his 
 part, accepted the appointment as master, and 
 covenanted to accept, receive, and take the said 
 ship into his service for twelve months certain, and 
 to pay freight for the use and hire of the ship at 
 the rate of 25s. per registered ton per month ; and 
 it was further agreed between them, that an agent 
 of the owner should continue on board, with power 
 in certain events, to displace Betham as master, and 
 to appoint another in his stead. It was held that 
 by this contract the charterer, Betham, was con- 
 stituted owner ^;ro tempore, and that the owner of 
 the ship was not liable upon a bill of lading for 
 non-delivery of the goods therein specified. 
 Master cannot After tlic uiastcr has signed one set of bills of 
 tt^o^eUof bills lading for goods which he has received on board, he is 
 the same fuuctus officio, and has no authority to sign another, 
 
 gooda. 
 
 and a different set of bills of lading for the same 
 goods (all such further bills of lading being void) 
 except upon delivery of the former set of bills or 
 upon the offer of a sufficient indemnity.^ 
 
 If the master sign a second set of bills, without the 
 first set having been given up, and then deliver the 
 goods to the holder of the second set, the holder of the 
 first set, which are the genuine and valid bills, may 
 recover the value of the goods from the shipowners. 
 
 If the master has received goods on board at an 
 agreed rate of freight, and signed bills of lading for 
 
 1 Tindall v. Taylor, 4 El. & Bl. 219.
 
 BILLS OF LADING. FOR SAME GOODS. H 
 
 the same at such freight, he has no authority to sub- 
 stitute for such hills other hills at a less freight.^ 
 
 AVhere a master is guilty of carelessness in signing 
 a second set of bills of lading Avithout ascertainiug 
 that the first set were not in existence at the time 
 he signed the second set, his principal, that is, the 
 OAvner, is liable for his acts. This was the principle 
 laid down in the case of Hubbersty and another 
 V, "Ward,-^ where Ward, the owner, agreed with 
 Marcher and Co., the shippers, to take on board a 
 cargo of wheat deliverable to K. F. at Antwerp ; S. 
 the master took on board 2 29 J quarters and signed 
 a bill of lading for that quantity, dated 3rd April, 
 as shipped by Marcher and Co., deliverable to K.F. 
 at Antwerp. On the 13th, 75 more quarters were 
 shipped, and on the same day S. signed another bill 
 of lading for that amount to P., the owner thereof, 
 deliverable at Antwerp to order. 70 more quarters 
 being taken on board, S. signed on the 16th another 
 bill of lading to P. similar to the first. Of these two 
 last bills, one only of each set was signed and in 
 existence. The plaintiffs, Hubbersty and another, 
 having, between the 13th and I7th, advanced money 
 to P. on the two parcels of 75 and 70 quarters, 
 the latter indorsed to them the two bills of lading. 
 After the cargo was shipped, S. was requested by 
 Marcher and Co. to sign a second bill of lading 
 for 1 15 quarters, being the amount of the two latter 
 parcels of 75 and 70 quarters. This he at first 
 
 > Pearsou v. Gosclicn, 33 L. J. C. P. 265. 
 3 8 Ex. 330; 22 L. J. Ex. 113.
 
 32 3IASTER CANNOT SIGN BILLS FOR 
 
 refused to do, alleging that in such case he should be 
 signing for more wheat than he had received on 
 board. Ultimately, however, in the presence and at 
 the request of P. and upon the latter appearing to 
 tear in pieces the bill of lading for 75 quarters, S. 
 signed the bill of lading for 145 quarters as shipped 
 by Marcher and Co., deliverable at Antwerp to K. 
 At the hearing S. denied his signature to the bill 
 of lading for 70 quarters, and the defendant Ward 
 suggested that P. had forged it. On arrival at 
 Antwerp the cargo was delivered to K. P. by virtue 
 of the two bills of lading for 2 29 J and 145 quarters. 
 After delivery the plaintiff's clerk at Antwerp 
 demanded possession of 145 quarters by virtue of the 
 two bills of lading for 75 and 70 quarters, but was 
 informed by S. that it had been already delivered 
 to K. P. 
 
 The Court held on the finding of the jury that the 
 bills of lading for 75 and 70 quarters were genuine ; 
 that the action having been brought against the 
 owner for damages for non-delivery of goods 
 deliverable under bills of lading which had clearly 
 a priority of claim, the plaintiffs were entitled 
 to recover, as the master's power was exhausted by 
 signing the first bills of lading for goods Avhich lie 
 had on board. 
 ,, , . ^ In many ports the masters of vessels are compelled, 
 
 Master cannot *^ ^ ^ 
 
 S^Kdin- fi'om the pressure which is put upon them by mer- 
 
 notln^board. chants and shippers, to sign bills of lading for goods 
 
 not only before they arc received on board, but in
 
 GOODf^ NOT ON BOARD. 33 
 
 many cases before they are purchased or warelioiised, 
 and the hohlers of these hills of ladini^- procure 
 advances on them, and succeed in obtaining fire and 
 other insurance policies on the goods enumerated, 
 tliough as a matter of fact not one of the articles is 
 cither bought or shipped. 
 
 It is customary to deliver goods in docks on 
 account of shipowners, and it is a common practice 
 for bills of lading to be signed on production of the 
 dock comjiany's receipts. 
 
 As the master is not the shipowner's agent to sign 
 bills of lading for goods which he has not received, 
 the shipowner will not be liable even to a holder of 
 the bill of lading for valuable consideration,and Avith- 
 out notice, for any loss or damage to goods which 
 have not been either actually or impliedly received, 
 by the master or his servants, though bills of lading 
 may have been signed for them : but they are bound 
 by the bill of lading, although the goods were never 
 on board, if they Avere delivered to the servants of the 
 shipowners on the quay alongside, and the master 
 cliose to sign the bill of lading for theni.^ The 
 m:\ster may be proceeded against, either civilly or 
 criminally, according to the circumstances of the 
 case, for signing bills of lading for goods which have 
 not been shipped or received on board. 
 
 Jervis, C.J., in the case of Grant r. Norway,- said, 
 
 » McLean v. Fleming, L. R. 2 H. L. Sc. 128 ; Bryans v. Xix, 4 M. & W. 
 775; 8L. J. Ex. 137; British Columbia Mill Co. r. Nettleship, L. U. 3 
 C. P. 499; 37 L. J. C. P. 235. 
 
 '■ 20 L. J. C. P. 93.
 
 34 MAf^TFR CANNOT SIGN BILLFI OF 
 
 " This is a caso Mliicli presents a question of consider- 
 able impo! tanco,1)ot]i to those who take bills of lading 
 on the faith of their representing^ property, which 
 passes by the transfer of them, and to the shipowner, 
 who is attempted to be bound by all bills of lading 
 that a Captain may think proper to sign. The point 
 is whether the master of a ship, signing a bill of 
 lading for goods which have never been shipped, is 
 to 1)0 considered as the agent of the owner in that 
 behalf, so as to make the latter responsible. The 
 authority of a master of a ship is large, and extends to 
 all acts that are usual and necessary for the use and 
 management of the vessel, but it is subject to several 
 well-known limitations. He may make contracts to 
 carry goods on freight, 1)ut cannot bind the owner 
 to carry freight free ; so, with regard to goods put 
 on board, he may sign the bill of lading and acknow- 
 ledge the nature, quality and condition of the goods. 
 Constaiit usage shows that the master has this 
 general authority ; and if a more limited authority is 
 given, the party not informed of it is not affected by 
 such limitation. Is it then usual, in the management 
 of a ship carrying goods on freight, for the master to 
 give a bill of lading for goods not put on board ? 
 All parties concerned have a right to assume that 
 the agent has authority to do all that is necessary ; 
 but the very nature of the bill of lading shows that 
 it ought not to be signed till the goods are on board, 
 for it begins by descril)ing them as ' shipped.' 
 There is no ground on which a party taking a bill of
 
 LADING FOR GOODS NOT oN JJoAJUJ. 35 
 
 Lidinjj;' by indorsement conltl be justified in assuming 
 lie liad autliority to sign such bills, -whetlicr the 
 i^oods were put on board or not. If then, from 
 usage and the general j^ractice of ship-masters, it is 
 generally known that the master derives no such 
 authority from his position as master, the case must 
 be considered as if the party taking the bills of 
 lading had notice of the express limitation of 
 authority, and in that case undoubtedly he could 
 not claim to bind the owner by the bill of lading 
 signed Avhen the goods therein mentioned were not 
 on board." 
 
 Illustration ( i ) of section 238 of ilie Indian 
 Contract Act IX. of 1872, which was founded on the 
 above case, is as follows: — 
 
 " (b) A, the Captain of B.'s ship, signs bills of 
 lading without having received on board the goods 
 mentioned therein. The bills of lading are void as 
 between B. and the pretended consignor." 
 
 Detention by a merchant or shipper through not shipper's 
 presenting bills of lading, entitles a shipowner to pieseuting 
 claim compensation for the enforced delay. for siguature. 
 
 If a ship can be detained without any great peril 
 or inconvenience for a short time, the master may 
 Avait and sign the bills of lading; when, however, a 
 ship is loaded and ready for sea, any unreasonable or 
 inexcusable delay, that is, a wilful and unnecessaiy 
 waste of time, is deemed to be a deviation, and may 
 avoid a policy of insurance on ship and cargo. ^ 
 
 >Aruoukl ou M. I., vol. 1, 139.
 
 36 WHEN BILL OF LADING IS REVOCABLE. 
 
 When bill of There is nothing final or irrevocable in the nature 
 revocubTe. of a bill of lading. The owner of the goods may 
 change his purpose at any time before the delivery 
 of the goods themselves, or of the bill of lading, to 
 the party named in it, and may order the goods to be 
 delivered to some other than the person named 
 in it.^ But a consignor, who has laden goods 
 on a general ship, cannot insist on having them 
 re-landed and delivered to him, without paying the 
 freight which might become due for the carriage 
 of them, and indemnifying the master against the 
 consequences of any bill of lading which has been 
 signed by him.^ 
 
 AVhen goods are laden to be carried on a particular 
 voyage, there is a contract that the master shall 
 carry them in the ship, upon that voyage, for freight, 
 and the general rule is, that a contract once made 
 cannot be dissolved, except with the consent 
 of botli the contracting parties. By the usage 
 of trade, the consignor, if he re-demands such 
 goods in a reasonable time before the ship sails, is 
 entitled to have them delivered back to him, on his 
 paying the freight that might become due for their 
 carriage, and on indemnifying the master against 
 the consequences of any bill of lading signed for 
 them. A master w^ho has signed bills of lading, cannot 
 with prudence deliver back such goods to the con- 
 signor, without having all the parts of the bill of 
 
 1 Mitclie] V. Ede, 11 Ad. & E. 888. 
 
 ^ Tindall v. Taylor, 4 El. & Bl. 227; 24 L. J. Q. B. 12; Thompson V. 
 Trail, 2 Car. & P. 334.
 
 WEEN BILL OF LADING IS REVOCABLE. 37 
 
 lading delivered up to liim, for if any one part has 
 been transmitted to a tliird person, such third person 
 may have acquired an interest in such goods. 
 
 Where goods have been taken on hoard a general 
 ship to be conveyed on freight, and bills of lading 
 have been signed by the mast?r, making them 
 deliverable to a consignee at the port of destination, 
 and one of such bills has l)een transmitted by the 
 master to the consignee, it is quite clear that the 
 consignor has no right to the delivery of the goods 
 in the port of outfit on merely demanding them. 
 
 In some cases, where by the terms of the charter- 
 party the shipowners and the master have no lien 
 on the goods put on board, and where no bill of 
 lading has been transferred, the charterer has a 
 right to take the goods out of the ship before she 
 leaves the loading port, if circumstances render it 
 expedient to do so. In such cases, where the master 
 has no lien, he would be liable if he refused to give 
 up the goods when demanded. 
 
 Where goods are re-landed, the owner of the 
 goods should pay all expenses incidental to such 
 re-landing.^ 
 
 Although the goods have been shipped in a 
 general ship, and althodgh the master has signed, 
 at consignor's request, a bill of lading for them for 
 delivery to the consignee, or a bill of lading for 
 delivery to consignor's order, which the consignor 
 has indorsed in blank; still until the goods are, 
 
 1 Tindall v. Taylor, 4 El. si Bl. 227 ; 2-i L. J. Q. B. 12.
 
 38 
 
 GOODS SHIPPED ON WRONG VESSEL. 
 
 Goods shipped 
 by mistake ou 
 wrong vessel 
 aud luijt. 
 
 An'intcnding 
 shipper is not 
 bound to in- 
 quire whether 
 the ship is 
 chartered. 
 
 or the bill of lading which represents tlioni is by his 
 authority, actually delivered to the consignee, or his 
 agent, -with the intention of A-esting the property in 
 the consignee, the consignor may revoke the bill of 
 lading or vary it, or change his purpose, or attach 
 conditions to it.^ 
 
 If goods are by mistake forwarded to and shipped 
 on board a vessel not named in the bill of lading and 
 are subsequently lost, the consignee will have no lien 
 on the vessel wherein the bill of lading represents 
 the goods to have been shipped ; a bill of lading 
 being merely an acknowledgment and ^rm<iy«(?i(? 
 evidence of the receipt of goods, not conclusive, but 
 open to contradiction by parol testimony. Thus, 
 where a bill of lading was given for goods shipped on 
 board the " Lady Eranklin," but those goods were 
 actually shipped on board another vessel which was 
 lost ; the bill was given by a common agent under 
 mistake, but the ships did not belong to the same 
 owner ; it was held that tlie consignee had no lien 
 against the "Lady Eranklin," as there was no cargo 
 to which the ship could be bound, and there was no 
 contract for tlic performance of which the ship 
 could stand as security.^ 
 
 Every shipper is bound by the contents of a 
 charter-party of which he has notice ; and he 
 cannot complain of want of such notice where it is 
 
 1 Gurucy v. Bchrcnd, 3 El. & Bl. 022; 23 L. J. Q. B, 2G3 ; Braudt v. 
 Bowlby, 2 B. & Ad. 932. 
 
 ^ United States District Court in Admiralty, 3 Asp. Mar. L. Ca. 361, 
 See also Frccmau v. Buckingham, 18 llow. 192.
 
 SHTPPER'S KNOWLEDGE OE CHARTER-PARTY. 30 
 
 tlio result of his own laches in not applyini]^ for hills 
 of lading- Avitliiii a reasonahlc time. It is tlie duty 
 of the master to give notice of the charter-party at 
 the time of signing the hill of lading, and the master 
 is justifiedin refusing to sign hills of lading otherwise 
 than in accordance v.'ith the charter-party. Until 
 the shipper is either set upon inquiry, or has notice 
 of a charter-party, he may, immediately on receiving 
 such information or notice, refuse to accept hills of 
 lading, or to he hound hy a contract having reference 
 to the charter-party, and is entitled to have his goods 
 returned to h.im free of any claim hy the owners, 
 if the master refuses to sign hills of lading except 
 suhject to a charter-party containing ohjectionahle 
 provisions. 
 
 In a case where a Norwegian vessel was adA'ertised 
 as a general ship, hy Messrs. C. and Co., an English 
 firm, descrihed in the advertisement as hrokers, the 
 plaintiffs entered into an agreement with Messrs. C. 
 and Co. for the carriage of certain goods at a stij^u- 
 lated rate of freight, and placed the goods on hoard 
 hefore they had notice.^ of any charter-party affecting 
 the ship. It afterwards proved that Messrs. C. and 
 Co. were charterers of the vessel under a charter- 
 l)arty, which provided that the owner should have a 
 lien for freight, dead freight, and demurrage. The 
 Captain refused to sign hills of lading, except suhject 
 to the charter-party, or to return the goods to the 
 plaintiifs. It was held, that the owners of th(^ ship 
 were not entitled to retain the goods in satisfaction
 
 40 OWNER'S LIABILITY WHEX SHIP IS CHARTERED. 
 
 of their claims under the charter-party, and that the 
 plaintiffs Avere entitled to have the goods delivered 
 to tliem free from any claim by the OT\Tiers.^ 
 
 This case was followed in " The Stornoway,"^ 
 where it was held that "Avhen a person without 
 notice of a charter-party 1)ctween the shipowner 
 and the charterer, ships goods on board a vessel 
 which is advertised as a general ship by the charterer 
 only, such goods are not subject to a lien which 
 may be reserved by the charter-party to the ship- 
 owner in respect of overdue freight ; and that under 
 sucli circumstances an intending shijiper is not 
 bound to inquire as to the existence of a charter- 
 party." 
 Owner's A pcrsou wlio sliips goods ou board a vessel and 
 
 slip is^char!"^ is uuawarc that she has been chartered, is warranted 
 in assuming that the master is acting by virtue of 
 his ordinary authority, and, therefore, for the ship- 
 owners in signing bills of lading. It may be that as 
 between the shipowners, the master, and the char- 
 terer, the authority of the master is to sign bills of 
 lading on behalf of the charterer only, and not on 
 behalf of the shipowner. But this altered state of 
 the master's authority will not relieve the owner 
 from lial)ility, as the master still continues to be 
 the servant of the owner, and as such is clotlied 
 Avith a character to whicli tlie authority to bind 
 such owner by signing l)ills of lading attaches by 
 virtue of his office. 
 
 ' Peek V. Larscri, L. R. 12 Eq. 378; 40 L. J. Cli. 703. 
 -^ 51 L. J. Adm. 27. 
 
 tered.
 
 OWNER'S LIABTLTTY WHEX SHIP IS CHABTEEET). 41 
 
 Until tlic fact that such autliority of the master 
 has been put an end to is hrought to the kno^vledgc 
 of a shipper of goods, the latter has a right to look 
 to the shipowner as the principal, witli aa horn the 
 contract is made/ 
 
 So, when a master puts up a ship as a general 
 ship and the shippers have no knowledge of the 
 existence of a charter-party, the contract in the hill 
 of lading is between the shippers and the shipowner, 
 and not between the shippers and the charterers ; 
 for, having delivered their goods to be carried in 
 ignorance of the vessel being cliartered, and having 
 dealt with the master as clothed with the ordinary 
 authority of a master to receive goods and give bills 
 of lading on behalf of his omiers, they are entitled 
 to look to the owners as responsible for the safe 
 carriage of the goods. 
 
 Tlius, where wine was shipped on board at Oporto, 
 and l)ills of lading were signed by the master in the 
 common form without reference to the charter-party, 
 and on the arrival of the vessel at London, it was 
 found that the wine liad leaked from improper stow- 
 age. In an action against the owners for the loss, it 
 was held tbat the shipper was entitled to look to 
 the owners as responsible for the safe carriage of the 
 wine, inasmuch as he had delivered it to be carried 
 in the ship in ignorance tliat she was chartercd.'- 
 
 So where 1,000 barrels of oilcake were shipped on 
 
 » Tho St. Cloud, B. &L. 4, 15; 1 Asp. Mar. L. Ca. 309; Sandeman 
 V. Scurr, L. R. 2 Q. B. 86 ; 3G L. J. Q. B. 58. 
 
 ^ Sandeman v. Scnrr, L. K. 2 Q. B. 86 ; Ilayn, Roman & Co. v. 
 Cnlliford, L. R. 4 C. P. D. 182; 48 L. J. C. P. 372. 
 
 6
 
 42 OWNER'S LIABILITY WHEN SHIP IS CHARTERED. 
 
 board the "Figlia Maggiorc" at New York, the vessel 
 being at the time under a charter-party of which the 
 shippers were ignorant, the master liaving put up 
 the ship as a general ship : in an action by the 
 assignees of the bills of lading against the shipowner 
 for damage suffered by the oilcake on the voyage, 
 in consequence of its having been stowed with hogs- 
 heads of tobacco, it Avas held that the owner was 
 rightly sued.^ 
 
 The question of theliability of ashipo-miertothe 
 consignee of a bill of lading for damages for breach 
 of contract in refusing to deliver goods upon payment 
 of the freight, the same having been shipped in a 
 general ship in ignorance of the charter-party, came 
 before the court under peculiar circumstances, in the 
 case of the "Patria,"^ which sailed under the flag 
 of the North Geriuan Confederation, and was charter- 
 ed by a German firm to sail from America to a port 
 on the continent, between Havre and Hamburg and 
 Bordeaux inclusive, or a port of Great Britain. 
 The charter-party was in the German language, 
 and provided that the master sliould not be respon- 
 sible for dangers of the seas, and for events caused 
 by high powers, or any other event of navigation ; 
 the vessel was loaded on the west coast of Central 
 America with a general cargo for Hamburg, part of 
 which consisted of coifee shipped by a foreign firm. 
 This coffee was stowed near the bottom of the hold, 
 
 » The Figlia Maggiorc, L. R. 2. A. & E. lOG ; 3 Asp. Mar. L. Ca. 97. 
 * L. R. 3 A. & E. 436 ; 41 L. J. Adm. 23. See also tlic Baliia B. & L. 
 62 ; Lloyd v. Guibcrt, L. R. 1 Q. B. 115 ; 35 L. J. Q. B. 74.
 
 nWNEirS LTABUATY WHEN SHIP IS CHARTERED. 43 
 
 and goods consigned to other consignees were stow- 
 ed above it. The master signed bills of lading for 
 this coffee in English, witliout reference to the char- 
 ter-party, to be delivered at Hamburg (the dangers 
 of the seas only excepted) to the plaintilfs or 
 assigns. The plaintiffs were merchants in London, 
 and at the time of the shipment, neither they nor 
 the shippers had notice of the charter-party. On 
 the voyage, owing to the master's severe ill- 
 ness the vessel put into Falmouth, and remained 
 there, war having broken out between Germany 
 and France, owing to which German ships could not 
 sail in safety : the plaintiffs acquiesced in the ship 
 remaining there during, but not after, the blockade of 
 Hamburg, and offered to take delivery of the cargo 
 consigned to them at Falmouth and to pay full 
 freight, and after the raismg of the blockade of 
 Hamburg again offered to take delivery either at 
 Falmouth or at Hamburg on the same terms. Tliis 
 Avas refused, and the Court held that the contract 
 contained m the bill of lading was not affected by 
 the terms of the charter-party, and that the vessel 
 was liable for any breach of the terms of the bill of 
 lading, and that whether the rights of the parties 
 with reference to the delivery of the coffee at Fal- 
 mouth, depended upon the provisions of the English 
 laAv, the German law, or the general maritime 
 law, the refusal of those in charge of the vessel 
 to deliver the goods to the plaintiff's at Falmouth 
 after the offer to pay full freight, was not justifiable.
 
 44 PERSONAL LIABILITY OF PARTIES 
 
 If a person sliip goods on board a vessel knowing 
 
 that she is cliartcred, the consignee of the goods 
 
 can maintain no action against the OAvner of the 
 
 ship if the goods be injnred l)y bad stowage.^ 
 
 Personal The pci'son Signing a bill of lading acknowledges 
 
 parties^ ° tlio Tcccipt of tlic gOods, and the same must Ije 
 
 kiS ' ^ ° delivered according to such bills, and in as good 
 
 condition as they were received, nnder the exception 
 
 of the risks expressed. 
 
 The master being the agent of the OAAiiers, is 
 authorized as such to enter into contracts for the 
 conveyance of goods, and is personally liable, as 
 well as the owners, for breach of all such contracts 
 entered into by him regularly, within the scope of 
 his general authority. 
 
 The master's liability is founded on the same con- 
 sideration as that of an ordinary agent.^ But for 
 the purposes of commerce, it is convenient that both 
 master and owner should be liable to be sued for any 
 breach of the contract, and it is the only case in which 
 the law gives a special privilege of suing either the 
 master or the owner ; this is based on the considera- 
 tion of the difficulty which parties might experience 
 in ascertaining and proceeding against the ship- 
 owners, and Avill equally apply to cases where the 
 master, or party signing the bill of lading, is the 
 agent of the charterer, and although the merchant 
 may elect to sue th^ owners, the latter will have 
 their remedy against the master to make good the 
 
 1 Major r. White, 7 Car. & P. 41. 
 « Rich V. Coe, Cowp. 693.
 
 SIGNING BILLS OF LADING. 46 
 
 (Uimages Avliicli tlicy may I3G compelled to pay, if 
 the loss of or damage to the cargo arose from the 
 negligence or misconduct of tlie master. 
 
 So, if the master fails to make delivery of goods 
 in accordance with the hill of lading, an action 
 Avill lie against him personally hy the consignee, 
 and upon judgment being obtained against him, his 
 property can be taken in execution, or his person 
 arrested, and where the consignee has thus elected, 
 he cannot proceed against the OAATiers, even though 
 his decree aii:ainst the master is unsatisfied. 
 
 The shipowners may be liable to indemnify the 
 master in respect of his costs or his imprisonment, 
 but they are liable to him or his estate in respect of 
 the damages recovered against him, and proceedings 
 can be instituted against them by the master as soon 
 as judgment is obtained against him, and before any 
 payment by, or issue of any execution against him.^ 
 Eut if an action is brought against the master and 
 discontmued, this will not prevent, or bar, a similar 
 action being brought agamst the OAvner in respect 
 of the same cause of action.^ 
 
 A person contracting as agent will be personally 
 liable, Avhether he is known to be an agent or not, 
 in all cases Avhere he makes the contract in his OAvn 
 name, or voluntarily incurs a personal responsibility 
 cither expressed or implied.^ Therefore Avherc 
 
 ' Tricstley v. Feruio, 11 Jur. 813 ; 31 L. J. Ex. 173; 13 L. T. N. S. 208. 
 » Morgau v. Couclmiaii, 23 L. J. C. P. 3G ; 11 C. B. 100; Bottomley v 
 Nuttull, 28 L. J. C. P. 110 ; Curtis v. Williamsou, il L. J. Q. B. 30. 
 s Williamson v. Bartou, 31 L. J. Ex. 170.
 
 46 LIABILITY OF PARTIES 
 
 parties other than the master have signed the hill 
 of lading, they hecome as agents direct personal 
 parties to the contract, and their liahility is precisely 
 the same as that of the master, and upon a just 
 interpretation of their contracts such a responsihility 
 is naturally, if not necessarily, implied.^ 
 
 Thus, where a bill of lading had been signed by 
 the charterers of the ship, not on their own behalf, 
 but as agents for the shijiowner, and with his 
 authority, the shipoT^^ner was held liable thereon to 
 the owner of goods shipped under such bill of lading, 
 for damage by negligent stowage, such damage not 
 being one of the excepted risks mentioned in the 
 bill of lading.^ 
 
 So Avliere a charter-party was entered into between 
 W. P. of the ship " Celerity," and G. W. W., agent 
 for E. W. and Son, and the same was signed by 
 G. W. W. in his own name : in an action brou2:ht on 
 the contract against G. W. W., the Court was of 
 opinion that he was personally liable as charterer.^ 
 
 And wdiere it was agreed between Messrs. J. and 
 II. Wilson of Liverpool, owners of the ship "Jessica," 
 and J. S. Cooke of London, on behalf of the Geelong 
 and Melbourne llailway Company, that the said 
 ship, &c., &c., and the charter-party was signed by 
 J. S. Cooke in his own name, it was held he could 
 
 ^ Le Fcvrc v. Lloyd, 5 Taunt. 749 ; Lucas v. Groning, 7 Taunt. 164 j 
 Goupy V. Harden, 7 Taunt. 159 ; SimiDSon v. Swan, 3 Camp. 291. 
 * Eayn, Roman & Co. v. Calliford, 48 L. J. C. P. 372. 
 » Parker v. Winlo, 27 L. J. Q. B. 49.
 
 STONING BILLS OF LADING. 47 
 
 sue, and Avas liable to 1)c sued personally on tlio 
 contract.^ 
 
 So Avlicro the defendant signed an agreement in 
 liis OAvn name, though in the hody described to have 
 been made by him for and on the part of A. B., he 
 AA'as held personally liable.^ 
 
 These decisions have proceeded on the general 
 rule that where a person signs a contract in his OAvn 
 name, he is i^rimd facie to be deemed to be a person 
 contracting personally.^ 
 
 In the case of Schicblcr v. Gilchrest' the following 
 propositions of laAV were laid down by Lopes, L.J.: — 
 " If the Master is in possession of the ship as servant 
 of the owner, it is clear law that a shipper who puts 
 his goods on board, and takes a bill of lading from the 
 master in ignorance of any charter-party, is entitled 
 to regard the owner as the person a\ ho contracts to 
 carry the goods, and may sue him for any breach of 
 contract." It was further stated that " If a charter- 
 ])arty is such as to give the charterer possession of 
 the vessel, as well as the right to use her carrying 
 capacity, so that the vessel is in effect let to him, 
 and the master in charge of her is his servant, then 
 the owner is not in the position of a carrier, 
 cither as regards the charterer or any one else, 
 and there is no reason for regarding the Master as 
 
 > Cooko r. Wilson, 26 L. J. C. V. 15. 
 
 = Tiinncr v. Christiiui, 2 1 L. J. Q. B. 91. 
 
 » Thomson v. Davenport, 2 Sm. L. C. 344. 
 
 « Schieblcr v. Gilclirest L. E. (1S92) 1 Q. 13. 2o.3 ; Gl L. J. Q. B. 121.
 
 48 LIABILITY OF PABTIES ' 
 
 actually or presumptively his agent in contracting 
 mth the shippers." 
 
 Thus, where P. entered into a contract to sell a 
 ship to G. & Co. after the expiration of a charter- 
 party, P. heing described as " owner," and G. & Co. 
 as " merchants and charterers." E. was registered 
 as managing owner under section 36 of 39 & 40 Vict. 
 c. 80, and insured the ship. G. & Co. took possession 
 of the ship under the charter-party, and appointed 
 the Captain and crew. Tlie plaintiffs shipped a 
 cargo of cotton under bills of lading, which did not 
 refer to any charter-party, some of these were signed 
 by the Captain, and others by E;. K. & Co. as 
 agents. P. knew nothing of the bills of lading, and, 
 so far as actual authority went, R. K. & Co. acted 
 as G. & Co.'s agents for shipment. The plaintiffs 
 had no knowledge or notice of the charter-party, 
 nor of the relations between P. and G. & Co. In 
 the course of the voyage, the ship was, owing to 
 alleged unseaworthiness, abandoned at sea, and the 
 cargo was lost. Upon a preliminary question raised 
 on the pleadings as to wliether, assuming the loss 
 to have occurred as alleged, P. was liable to the 
 plaintiffs : it was held, that by the charter-party E. 
 had divested himself of all possession and control of 
 the ship for the ^oeriod specified ; that the Captain 
 was the servant of G. & Co., and that he had there- 
 fore no authority to bind E. by signing bills of 
 lading. Also, that U. K. & Co. had no such autho- 
 rity, and that E. was therefore not liable to the 
 plaintiffs in respect of tlic loss of their cargo.
 
 SIGNING BILLS OF LADING. 4d 
 
 This decision was affirmed by The House of 
 Lords.^ 
 
 The use of the words "as agents for," or " on behalf 
 of," though expressed in the body of tlie agreement, 
 is insufficient to prevent the liability of the person 
 signing as principal attaching to him. But if the 
 party qualified his signature by adding after it 
 " agent for," " on behalf of," " per pro.," or other 
 similar words, showiug he had no intention of binding 
 himself as principal, he does not incur any personal 
 liability.^ 
 
 Though an agent signs a contract with his own 
 name only, yet if an intention to act merely on 
 behalf of a named j)rincipal can be shown in the 
 body of the contract, no personal liability will attach 
 to the agent by reason of such signature. The 
 words " sold to you on account of A. B. & Co.," 
 sufficiently indicate such an intention.^ 
 
 In the case of HouejIi v. Manzanos* the defendants 
 signed a charter-party in their own name, without 
 qualifying their signature. In the body of the 
 charter-party it was purported to have been made 
 by them as agents for the charterers. It was held 
 that they were personally liable upon the charter- 
 party. 
 
 But where the defendants let a steamship to the 
 
 » L. R. (1893) A. C. 8. 
 
 " Paice V. Walker, L. R. 5. Ex. 173; But see Gadd v. Houghtou, L. R. 
 1 Ex. D. 357. Fairlio v. Fontou, L. R. 5 Ex. 169. 
 
 » Gadd V. Houghton, L. R. 1 Ex. D. 357 ; 46 L. J. Ex. 71 ; Southwell v. 
 Bowditch, L. R. 1. C. P. D. 374 ; 45 L. J. C. P. 630. 
 
 ♦ L. R. 4 Ex. D, 104 ; 48 L. J. Ex. 398. 
 
 7
 
 60 LIABILITY OF PARTIES 
 
 plaintiff for a certain term, and signed a charter- 
 party "by and on behalf of the o^vners of the 
 steamsliip A." The charter-party was a time 
 charter to commence on arrival at Calcutta, and to 
 terminate at one of certain ports ; the steamer in 
 the interim to ply to and from any port the char- 
 terers pleased. It was agreed that the steamer 
 should be provided " with a proper and sufficient 
 crew of seamen, engineers, stokers, firemen, and 
 other necessary persons for working cargo vrith all 
 despatch;" and that in taking and discharging 
 cargo, "the master and his crew with his boats 
 shall be aiding and assisting to the utmost of their 
 power;" and that "the OTVuers or agents of the 
 said steamship shall be held responsible to the said 
 charterers for any incapacity, want of skill, in- 
 sobriety or negligence on the part of master, officers, 
 engineers, stokers, firemen, or crew, of the said 
 steamship." The names of the principals were not 
 disclosed in the charter-party, but were verbally 
 disclosed before the charter-party was signed. 
 
 In an action against the agents for damages for 
 refusing to supply stevedores and other persons, in 
 addition to the crew, when loading and discharging 
 cargo, — Held, that the presumption created by the 
 second clause of s. 230 of tlie Indian Contract Act, 
 IX of 1872, is merely 2^ x^^'^^nd facie one, and may be 
 rebutted, and that the contract was not personally 
 binding on the agents, because the prima facie 
 presumption of an intention to contract personally 
 was rebutted by the language of the contract itself.
 
 SIGNING BILLS OF LADING. 6i 
 
 Held also, that the terms of the charter-party- 
 showed that the crew only were to assist in loading 
 and discharging cargo ; and that the plaintiffs were 
 not entitled to call on those rcsponsil^le for the 
 steamer to load and discharge cargo by stevedores 
 instead of by the crew. 
 
 Reading the second part of s. 230 of the Contract 
 Act mth s. 92 of the Indian Evidence Act, 1 of 
 1872 : Semhle. — That if, on the face of a written 
 contract, an agent appears to be personally liable, 
 he cannot escape liability by evidence of any dis- 
 closure of his principal's name apart from the 
 contract.^ 
 
 And in the case of Mackinnon, Mackenzie & Co. 
 v. Lang, Moir & Co.,^ where the plaintiffs by a 
 charter-party contracted to let the steamship "Oak- 
 dale" to the defendants upon certain terms. The 
 first clause of the charter-party stated that the 
 plaintiffs " agreed as agents for owners of the said 
 steamship," and subsequent clauses provided that 
 the owners shoLild bind themselves to receive the 
 cargo on board, and that the master on behalf of 
 the owners should have a lien on the cargo for 
 freight, &c. The charter-party was signed by the 
 plaintiffs and defendants in their o^^tl names. 
 
 It was held in an action for refusal to load the 
 "Oakdale" that the plaintiffs had contracted as 
 agents and were not entitled to sue. And it was 
 
 * Soopromonian Setty v. Heilgers, I. L. K. 5 Cal. 71 ; -1 C. L. R. 377. 
 ' I. L. R. 5 Bom. 584.
 
 62 LIABILITY OF PARTIES 
 
 stated that where " a contract made by a person 
 who is an agent is worded so as when taken as a 
 whole, to convey to the other contracting party 
 the notion that the agent is contracting in that 
 character, he cannot sue or be sued on the contract." 
 
 Where one contracting party knows that the 
 other is contracting as an agent for a third person 
 whose name he also knows, the presumption laid 
 down in clause 2 of Section 230 of the Indian Con- 
 tract Act (IX of 1872) ^"^ does not arise, although at 
 the time of making the contract the agent does not 
 disclose the name of his principal. The essential 
 point is the knowledge, and actual knowledge is 
 equivalent to disclosure, the whole object of which 
 would be to convey such knowledge.^ 
 
 An agent cannot turn himself into a principal 
 without full and fair disclosure.^ 
 
 It frequently happens that vessels, especially 
 steamers, are obliged to sail before bills of lading 
 can be presented to the master for signature. In 
 
 (a) Section 230, Indian Contract Act (li of 1872.) 
 
 In the absence of any contract to that effect, an agent cannot personally 
 enforce contracts entered into by him on behalf of his principal, nor is he 
 personally bound by them. 
 
 Such a contract shall be presumed to exist in the following cases : — 
 
 (1) Where the contract is made by an agent for the sale or purchase 
 
 of goods for a merchant resident abroad : 
 
 (2) Where the agent does not disclose the name of his principal : 
 
 (3) Where the principal, though disclosed, cannot be sued. 
 
 » See S. S. "County of Lancaster" v. Sharpc & Co., L. R. 24 Q. B. D. 
 158; 59 L.J. Q. B. 22. 
 
 » WUliamsou v. Barbour, L. R. 9 Ch. D. 529 j 50 L. J. Ch. 147.
 
 SIGNING BILLS OF LADING. 58 
 
 such cases it is a common practice for the master, 
 either orally or by a simple letter, to authorize some 
 person, usually the party Avho has been acting as 
 agent for the ship, to sign bills of lading for him in 
 accordance "with the mate's receipts. 
 
 The vessel leaves the port, and the bills of lading 
 remaining unsigned are presented to and signed by 
 the parties so authorized, as folloT^'s : — 
 
 Eor the master, 
 
 A. B. or A. B. and Co. 
 
 This practice, however convenient, does not neces- 
 sarily make the shipowners responsible under the 
 bills of lading so signed, and unless the course of 
 dealing had been such that the action of the master, 
 and the signing of the bills by the respective parties 
 in this form, showed that the owners had expressly 
 or impliedly sanctioned the same, or had subse- 
 quently ratified these acts, the shipper would have 
 to look to the parties signing or to the master for 
 any breach of contract. But it is by no means 
 uncommon for the parties who have acted for the 
 Captain during liis stay in port, to sign bills of lading 
 in the above form after his departui*e, without any 
 express or implied authority to do so. In such cases 
 they would undoubtedly be personally liable under 
 the contract, which they had no authority to enter 
 into either on behalf of the o^\Tier or master, neither 
 of whom would in any way be bound by their 
 signatures to the bill of lading.^ 
 
 > Paraons on Sli., vol. I.) 186.
 
 64 EFFECT OF BILL OF LADING 
 
 Effect of bill A bill of lading is evidence against the master or 
 
 of lading as p i • 
 
 ewdence. owner 01 tlio ship, botli of the reception of the goods 
 described in it, and also of any material fact stated 
 in the bill of lading respecting the quantity, the 
 quality, the condition, or any other element in the 
 description of the goods.^ 
 
 Between the shipper and the shipowners a bill of 
 lading signed by the master is prima facie, but not 
 conclusive evidence,^ of the facts stated in it. But 
 where the charter-party provides that the bills of 
 lading shall be conclusive evidence against the 
 OAvners of the quantity of cargo received as stated 
 therein, the object of the clause being to get rid of 
 the liberty of the shipowner to show that the amount 
 stated in the bills of lading was erroneous : the 
 bills of lading are made an express estoppel by 
 agreement between the parties.^ 
 
 The bill of lading is not the contract, but only 
 the evidence of the contract ; and it does not follow 
 that a person who accepts the bill of lading which 
 the sliipowner hands him necessarily, and without 
 regard to circumstances, binds himself to abide by 
 all its stipulations. If a shipper of goods is not 
 aware when he ships them, or is not informed in 
 the course of the shipment, that the bill of lading 
 Avhicli will be tendered to him will contain such a 
 clause, he has a right to suppose that his goods are 
 
 ^ Parsous on Sh., vol. I., 197. 
 
 ' Bates V. Todd, 1. M. & Rob. 106. 
 
 3 Liehman v. Christie, L. R. 19 Q. B. D. 333; 56 L. J. Q. B. 538.
 
 AS EVIDENCE. 55 
 
 received on the usual terms, and to require a bill 
 of lading which shall express those terms.^ 
 
 It stands on the footing of a -^Titten receipt not 
 under seal. Lord Esher said,^ when considering 
 what a hill of lading is when it is to he regarded as a 
 receipt for goods : " It is not then a contract at all, 
 nor is it conclusive as a receipt for the goods ; treat- 
 ing it as a receipt, it can he contradicted by evidence. 
 The question whether the hill of lading can he 
 anything more than a receipt for goods depends 
 upon whether the Captain has received the goods, 
 because the Captain has no authority from the 
 owner to make a contract of carriage except for 
 goods put on board. If the bill of lading is wrong 
 as to the goods put on board, its effect is destroyed 
 for any other purpose. But if the goods have been 
 received on board, the bill of lading is more than a 
 receipt, it is a contract of carriage." 
 
 Where the master signed a bill of lading which 
 exempted the shipo^^^ler from loss through the 
 negligence of the master or mariners (this excep- 
 tion of liability was not in the charter-party) it was 
 held, that, even assuming that upon the true con- 
 struction of the charter-party the master was bound 
 to sign a bill of lading containing this exception of 
 liability, nevertheless, there being no intention 
 expressed in the charter-party that the bill of lading 
 should operate as a contract between the charterer 
 
 ' Crooks r. Allan, L. R. 5 Q. B. D. 40; 49 L. J. Q. B. 203. 
 » Leduc V. Ward 20 Q. B. D. 475 ; 6 Asp. Mar. L. Gas. 290 ; Margetaon v, 
 Glyn, 7 Asp. Mar. L. Cas. 148.
 
 56 EFFECT OF BILL OF LADING 
 
 and the shipowner, the contract as between the 
 charterer and the shipoT^Tier was contained in the 
 charter-party, and the bill of lading operated as a 
 mere receipt for the goods ; and therefore, in an 
 action by the charterer against the sllipo^^^ler, the 
 shipowner was not relieved from liability for a loss 
 occasioned by the negligent navigation of the ship.^ 
 
 But as against an assignee for value, the owners 
 are estopped by a statement therein of the rate of 
 freight though merely nominal,^ or that freight has 
 been paid, provided such statement, at the time it 
 was made, did not exceed the master's authority.^ 
 It may be corrected or contradicted by evidence of 
 the real facts. But the onus of proving that it is 
 not correct, and of proving the real state of facts, 
 lies upon the shipowner.^ 
 
 And even as between the bond fide indorsee or 
 assignee of the bill of lading for value, and the ship- 
 owner, the same rule obtains, and the bill is not 
 conclusive evidence of the facts stated in it, but may 
 be corrected by evidence of the real facts.^ Pollow- 
 ing the cases of Grant v. Norway, and Jessel v. Bath 
 it was so held in an action for freight by a ship- 
 
 1 Eodoconachi Sons & Co. v. Milburn Brothers, 18 Q. B. D. 67 ; 56 L. J. 
 Q. 3. 202. 
 
 * Mercantile and Exchange Bank v. Gladstone, L. R. 3 Ex. 233. 
 
 8 Reynolds v. Jex, 34 L. J. Q. B. 251 ; Pickernell v. Jauberry, 3 F. & 
 F. 217. 
 
 * Berkley v. Watling, 7 Ad. & E. 29; Hubbersty v. Ward, 22 L. J. Ex. 
 113 ; Campion u. Colvin, 3 Bing. N. C. 17; McLeans Fleming. L. R. 2 
 H. L. Sc. 128 ; Meyer v. Dresser, 16 C. B. N. S. 646. 
 
 » Grant v. Norway, 20 L. J. C. P. 93 ; Jessel v.. Bath, L. R. 2 Ex. 267 ; 
 Howard v. Tucker, 1 B. & Ad. 712,
 
 AS EVIDENCE. 67 
 
 owner at^ainst the indorsees of the hill of lading, 
 where the d(ifendants counterclaimed in respect of 
 short delivery. All the <:^oods that were actually 
 put on [)oard had heen delivered to them ; hut the 
 hill of lading acknowledged the receipt of a larger 
 quantity. All the goods mentioned in the hill of 
 lading had heen floated alongside the ship in rafts, 
 and mate's receipts given for them ; hut some of 
 them were lost hefore t\uw were shipped. The hill 
 of lading was signed " hy authority of the Captain, 
 AVilli. Ganswindt as agent." Ganswindt was the 
 ship's hroker at the shipping port. 
 
 It was held, that apart from the Bills of Lading 
 Act a hill of lading is not conclusive against a ship- 
 owner, and he is not liahle in respect of any goods 
 not actually shipped ; and that, in the present case, 
 ho was not liahle under that Act, as the hill of 
 lading was not signed hy or for him.^ 
 
 The indorsee of a hill of lading sued the Captam 
 who had signed it for the value of four hales not 
 delivered. The evidence was, that the goods were 
 'shipped hy certain persons acting as agents for the 
 actual shippers, and that when the goods were put 
 on hoard there was a dispute with the mate as to 
 the numher of hales shipped. lie made a memo- 
 randum of the fact, hut hy mistake put down in the 
 hill of lading sixty-nine hales instead of sixty-five, 
 and had since died. Sixty-five hales were delivered. 
 Held, that there was evidence to go to the jury 
 
 ' Tlionnan v. Biut, Boulton & Co., 5 Asp. Mar. L. Cas. 5G3.
 
 58 BILL OF LADING IN HANDS OF 
 
 that the misrepresentation as to the amount shipped 
 was " caused Avh oily by the fraud of the shipper," 
 Avithin the terms of section 3 of 18 and 19 Vic, 
 c. cxi.^ 
 
 A hill of lading is only prima facie evidence that 
 the property is in the holder of the hill.^ 
 
 The hill of lading being merely an acknowledg- 
 ment bv the master, is no evidence in an action on the 
 policy AA'ithout authentication; and even if authenti- 
 cated by the master, it will not amount to sufficient 
 proof of an insurable interest in the goods, without 
 some further proof .^ 
 Bill of lading A bill of lading in the ordinary form, and without 
 conal^ee^or qualifications being inserted by the master, would be 
 vaiue!^^ °^ conclusive against him under section 3 of the Bills of 
 Lading Act, but a bill of lading containing a printed 
 clause "weight, contents, and value unknown," 
 with similar words written al)ove the signature of 
 the master, in the hands of a consignee for value, is 
 not conclusive evidence against the master of the 
 shipment of the goods mentioned in the bill of 
 lading/ 
 
 This question was considered and determined in 
 the case of "W. Nicol and Co. v. J. S. Castle,^ and 
 in delivering judgment, Sir C. Sargent, C. J., said, 
 *' The question, ' is the bill of lading in the hands of 
 the plaintiffs, consignees for valuable consideration, 
 
 » Valieri v. Boyland, 2 Asp. Mar. L. Ca. 33G. 
 
 * The John Bellamy, L. R. 3 A. & E. 129. 
 
 ^ Arnould on M. I ; Haddow v. Parry, 3 Taunt. 303. 
 
 ♦ Berkley v. Watling, 7 Ad. & E. 29. 
 ' 9 Bom. n. C. Rep. 321.
 
 CONSIGNEE OR INDORSEE FOR VALUE. 59 
 
 conclusive evidence as against the defendant of tlic 
 shipment of 50 tons,' turns upon the construction to 
 he put on the Indian Bill of Lading Act, IX. of 1856. 
 The English Act on the same subject, 18 and 19 Vict., 
 c. cxi., of Avliich the Indian Act is a literal copy, has 
 come under the consideration of the English courts 
 of law on several occasions, hut never, so far as ^ye 
 are aware, except incidentally, on the point on which 
 this case turns, namely, the liability of the master 
 signing the hill of ladmg to a consignee for value 
 under section 3 of the Act. 
 
 *' Section 1 gives a consignee of the goods or 
 indorsee of the hill of lading (to whom the property 
 is intended to pass) the same rights of suit as if the 
 contract had been with himself; and, therefore, 
 in the present case, as the bill of lading does not 
 amount to an admission by the master that fifty tons 
 of coal were shipped on board, the plaintiff could not, 
 as a simple consignee of the coal, recover under that 
 section against the master, without proving that the 
 fifty tons were actually shipped. 
 
 " Section 3, however, places a consignee of the 
 goods or indorsee, Avho has given value, in a far 
 better position as regards the master or other person 
 signing the bill of lading. It says that in then* hands 
 the bill of lading, representing goods to have been 
 shipped on board, shall be conclusive evidence of 
 such shipment as against the master or other person 
 signing the bill of lading, notwithstanding that such 
 goods or some part thereof may not have been so
 
 60 BILL OF LADING IN HANDS OF 
 
 sliippcd, unless the holder of the bill of lading shall 
 have had actual notice, at the time of receiving the 
 same, that the goods had not, in fact, been laden on 
 board ; and leaves only one ground of defence open 
 to the person so signing the bill of lading to plead, 
 namely, that the misrepresentation was caused 
 without his default and wholly by the fraud of the 
 shipper. 
 
 " The first important question, then, is, what was 
 the amount of coal Avliich this bill of lading repre- 
 sented as having been shipped ? Did it represent to 
 third persons who might deal with the shipper that 
 the exact amount of fifty tons of coal had been 
 shipped ? If the written and printed words are 
 reconcilable, as they must be taken to be for the 
 purposes of this argument, we are at a loss to see 
 on what ground it can be contended that the bill of 
 lading, taken as a whole, represents to the public as 
 a fact on which they may rely, that fifty tons of coal 
 had been shipped. Undoubtedly the bill of lading 
 commences by representing that there have been 
 shipped on board the steamship ' Ilutton' fifty tons of 
 coal, but the ' representation' referred to in section 3 
 must, we think, mean the representation made by the 
 whole instrument. This appears from the preamble, 
 which says, 'Whereas it frequently happens that the 
 goods m respect of which bills of lading purport to 
 be signed, have not l)ecn laden on board, and it is 
 proper that such bills of lading in the hands of a 
 bond fide holder for value should not be questioned
 
 CONSIGNEE OR INDORSEE FOR VALUE. 61 
 
 l)y tlie master or otlier person signing* tlie same on 
 the ground of the goods not having been laden.' 
 
 " Here, however, the bill of lading docs not pur- 
 port to be signed by the master in respect of fifty 
 tons of coal exactly. The object is to protect the 
 bond fide liolder without notice, and to make those 
 persons liable who have represented to him through 
 tlie bill of ladini? that a certain amount of sroods 
 have been shipped. Here, however, the bill of 
 lading gives him clear notice that the master, upon 
 AN hose signature he is supposed to rely, does not 
 admit that fifty tons were shipped. This conclusion 
 follows irresistibly from the previous decisions as 
 to the effect of the printed condition on the written 
 words. If they arc reconcilable and the bill of 
 lading admits of reasonable and fair exj)lanation, it 
 cannot be said that the bill of lading was signed by 
 the master in respect of fifty tons of coal. But it 
 Avas said that the Act prevents the master from 
 guarding himself against the effect of the written 
 words, or, in other words, the object of the Act was 
 to tlirow on him, as between himself and bond fide 
 holders, the obligation of ascertaining the truth of 
 the * written Avords.' But this would be to jnit a 
 construction on the Act far beyond the object as 
 stated at length in the preamble, and would, in our 
 oiiinion, require distinct words to that eff'ect — words 
 which arc certainly not to be found in this Act. 
 
 " This view of the Act is adopted by the Chief 
 Baron and Mr. Baron Martin in the parallel case of
 
 62 
 
 AGENT'S SIGNATURE DOES NOT BIND OWNERS 
 
 Jessel V. Batli,^ although it was not necessary to 
 decide the question, as the action Avas against a 
 j)crson wlio had not signed, and who was held by 
 the Court not to be bound by the person signing. 
 They both, however, expressed an opinion that no 
 action could liaA^e been brought on the bill of lading 
 under section 3 of the Act, even against the person 
 
 "We are of opinion, therefore, that this question 
 should be answered in the negative." 
 
 Jessel V. Bath^ was an action to recover damages 
 
 Ship s asrents ^ _ 
 
 cannot bind f q^ non-deliverv of the quantity stated in the bill of 
 
 owner or t/ a «/ 
 
 charterer for iadin2:. Tlic defendants were the charterers, and 
 
 greater ~ 
 
 BSed^*^^"^ had ship's agents or consignees at the ports of call. 
 It was the custom for a ship's agent or consignee to 
 sis-n bills of ladin"; instead of the master, and no 
 difference was recognised in trade usage between the 
 efficacy of his signature and that of the master. 
 The defendant's agents at Genoa signed a bill of 
 lading for manganese shipped in bulk and not 
 weighed at the time of shipment, which described the 
 manganese as of a certain weight, but contained in 
 print the words " weight, contents, and value un- 
 known." The plaintiff was assignee for value of this 
 bill, and the whole oi; the manganese shipped was, 
 on the arrival of the ship, delivered to him, but was 
 found to be short of the weight stated in the bill. 
 It was held that the defendants Avere not bound 
 by the signature of their agents to a bill of lading 
 
 1 L. K. 2. Ex. 267. 
 " Ibid.
 
 FOR GREATER QUANTITY THAN SHIPPED. 63 
 
 for a greater quantity tban was actually shipped, 
 and it was stated that " at common law the 
 defendants would not ho liable on this hill, because, 
 althongh Messrs. Barchi were their agents to conduct 
 their business, they were not their agents to make 
 an admission contrary to the fact bv sio:nin2: a bill 
 of lading for a quantity they knew nothing of, ^ jind 
 that no change in this respect was made by the Bills 
 or Lading Act (18 and 19 Vict., c. cxi.)" 
 
 The general rule adopted by courts of law in the Evidence of 
 construction of mercantile instrumenfs is, that the tom^admfssnlfe 
 construction should be liberal, agreeable to the real TsectlThm 
 intention of the j^arties, and conformable to the usage ° ^ '"^^ 
 of trade in general, or of the particular trade to 
 which the contract relates. 
 
 The principle on which evidence of usage is 
 admissible for such a purpose is, that the parties have 
 not set down on paper the whole of their contract in 
 all its terms, but those only which were necessary to 
 be determined in the particular case by specific 
 agreement, and which of course might vary infinitely, 
 leaving to implication and tacit understanding all 
 those general and unvarying incidents which an 
 uniform usage would annex, and according to which 
 they must in reason be understood to contract, 
 unless they expressly exclude them.- 
 
 If the parties in their contract have so expressed 
 themselves as to exclude the usage, any evidence 
 thereof is inadmissible, as the effect of that would be 
 
 ' Colemai^ v. Kiches, 24 L. J. C. P. 125. 
 » Humfrey v. Dale, 26 L. J. Q. B. 137.
 
 64 EFFECT OF USAGE AND CUSTOM, 
 
 to contradict the manifest intention of the parties 
 and the tenor of the written contract.^ The Captain 
 has authority not only to make a contract of 
 carriage, but to reduce it in writing. The bill of 
 lading is, between him and the. shipper, the contract 
 for the carriage of the goods reduced into writing. 
 "Whenever a contract is reduced into writing, that 
 writmg is the onl}^ evidence of the contract. It 
 can only be varied by showing an usage so general 
 that it must be taken to be imported into the con- 
 tract. That is the only evidence that can be given 
 outside the written contract. To show that the 
 parties have agreed to some other terms outside the 
 contract is to seek to vary tlic terms of a written 
 contract, and that is not alloAved with regard to a 
 bill of lading any more than it is with regard to 
 any other contract which has been reduced into 
 writim? as the evidence of the contract. ^ 
 
 Whenever the custom or usage sought to be 
 proved is not inconsistent with the terms of the 
 written instrument, such evidence is admissible to 
 determine the effect of it.^ 
 
 The custom of merchants, where such custom has 
 been settled by judicial determinations, will be 
 recognized without proof in courts of law. 
 
 In the case of Barnett v. Brandao,^ Lord Denman 
 said : "TJie law merchant forms a branch of the law 
 
 ' Lewis V. Marshall, 7. M. & G. 729 ; 13 L. J. C. P. 193. 
 - Lerliic V. Ward, G Asp. Mar. L. Cas. 291 ; Margetson r. Glvn, 7 Asp. 
 Mar. L. Cas. 148. 
 
 3 Ciithbert v. Cumming, 11. Ex. 405, 
 ♦ 6 JI. &. G. 630,
 
 EFFECT OF USAGE AND CUSTOM. 65 
 
 of En<:^-lan(l, and tliosc customs which have been 
 universally and notoriously prevalent amongst 
 merchants, and have been I'ound by experience to 
 be ol' public use, have been adopted as a part of it, 
 upon a principle ol; convenience and for the benefit 
 of trade and commerce, and ^vhen so adopted, it is 
 unnecessary to plead and pro^e them. They are 
 binding" on all ^vithout proof ; accordingly, usages 
 alTecting bills of lading are taken notice of judi- 
 cially." 
 
 "When evidence of* the usage of a particular place 
 is admitted to add to, or in any manner to affect, the 
 construction of a written contract, it is admitted 
 only on the ground that the parties who made the 
 contract are both cognizant of the usage, and must 
 be presumed to have made their agreement Avith 
 reference to it. But no such presumption can arise 
 when one of the parties is ignorant of it.^ 
 
 Parol evidence of usage and custom was held 
 admissible to explain the meaning of the Avord 
 " days " in a bill of lading as Avorking days^ ; 
 " months " as meaning calendar months'^; to fix the 
 part of the month Avhere the vessel was to sail " in 
 the month of October "^ the meaning of the term 
 "cotton in bales''^; the meaning of the word 
 " f reicrht.'"' 
 
 o 
 ' Kirchncr v. Vomis, 7 W. R. 457. - Cochran i-. Ketbcrg. 3 Esp. 121. 
 ' Jolly V. Young, 1 Esp. N. P. C. 186; Simpson v. Mai-gitson, 11 Q.B.32. 
 » Chauraucl v. Angerstein, 2 C. B. 412; Lciilemann v. Schultz, 14C. B. 38. 
 5 Taylor v. Briggs, 2 Car. & P. 525 ; Gorrisscn v. Porrin, 27 L. J. C. P. 29. 
 " Pcisch i\ Dickson, 1 Jlason 11, 12 ; Gibbon v. Young, 2 Mooro 224 • 
 
 Lewis V. Marshall, 7 M. & Cf. 72'.l, 713 ; 8 Scott X. 1{. 477 
 
 9
 
 66 DELIVERY OF BILL OF LADING ON ARRIVAL. 
 
 Saioofsiiip Until the master receive notice of a change of 
 
 LuisoMading ownci'ship, hc retains the powers conferred upon 
 n<ftice ther^'eoV hiui l)y the Original owncrs, so far as to bind the 
 new owners by contracts for the carriage of goods 
 entered into I)y him pursuant to his original instruc- 
 tions. 
 
 Kelly, C.B., in the Mercantile Bank v. Gladstone,^ 
 said : " It would be impossible to see any end to 
 the inconvenience, injustice, and breaches of con- 
 tract which must follow, if, Avhcn a master has 
 proceeded -in command of his ship to some foreign 
 port, having received instructions as to ho\\ he is 
 to deal with the ship, what ports he is to proceed 
 to, and what contracts he may make, every act 
 which he may have done under the authority which 
 he once possessed, may be treated as a nullity by 
 reason of an unknown secret conveyance of the 
 ship by her former owner. I think that the master 
 was bound by all the acts, all the instructions, all 
 the authorities which had emanated from the former 
 owners, until the plaintiffs had given notice to the 
 master that they had become the owners, and that 
 any authorities derived, or instructions received, had 
 ceased ; and that until that notice the master Avas 
 not bound to act except in the interests of his former 
 owners. The bill of lading signed by him is 
 therefore valid and binding." 
 
 It was held in Bobins v. Power^ that where 
 a change occurs in the ownership of the vessel 
 
 1 L. R. 3. Ex. 289. 
 
 » Eobius V. Power, 27 L. J. C. P. 257.
 
 DAMAGES FOR DETENTION OF GOODS. G7 
 
 while slie is away from the home port, the master 
 still retains the usual authority of a master, con- 
 ferred hy the former owners, until he is superseded." 
 
 The Indian Customs Act VIII. of 1878, sec. 58, On arrival the 
 
 , , master must 
 
 requires the master of every vessel, on arrivin£r doiivcr i.iii of 
 
 ■■■ *' _ ladinij to the 
 
 at any customs port in India, at the time of making Customb' Coi- 
 his application to have the ship entered inwards, if 
 required hy the Customs' Collector, to deliver to 
 him the hill of lading or a copy thereof for every 
 part of the cargo laden on hoard, and in case of 
 non-compliance, the Collector may refuse to grant 
 his application to enter the vessel. 
 
 It is a settled principle that, whenever cither the Measure of 
 
 . daniatjcs for 
 
 ohiect of the sender is specially hrought to the notice unr. asonaWe 
 
 J i ^ o ^ detention of 
 
 of the carrier, or circumstances are known to him goods. 
 from which the ohjcct ought in reason to he inferred, 
 so that the special use may he taken to have hecn 
 within the contemplation of hoth parties, damages 
 may he recovered for tlie natural consequences of 
 the failure of that ohiect. ^ 
 
 Damages for a hreach of contract must he such 
 as may fairly and reasonahly he considered as arising 
 naturally, — /. e. according to the usual course of 
 thin<xs — from such hreach of contract itself, or such 
 as may he reasonahly supposed to have hecn in the 
 contemplation of hoth parties at the time tlu^y 
 made the contract, as the prohahle result of the 
 hreach of it.^ 
 
 > Simpson r. L. & N. W. R. Co , L. R. 1 Q. B. D. 271; 45 L. J. Q. B. 182 
 - nadloy r. Baxondale, 23 L. J. Ex. 179; norn v. Midland Ry. Co., L. R'. 
 
 8 C. P. 131, 137 ; 42. L. .7. C. P. 00. On this subject See Carver on 
 
 Carriage by Sea.
 
 68 DAMAGES FOR DETENTION OF GOODS. 
 
 Cases may occur in which it is difficult to apply 
 these principles, hut there is no case in which it has 
 ever hcen held that damages could he recovered for 
 delay in the carriage of the goods on a long voyage 
 hy sea, where there has heen what may be called a 
 merely accidental fall in price between the time a\ hen 
 the goods ought to have arrived, and the time when 
 they did arrive. The question, whether if there is 
 undue delay in the carriage of goods on a long 
 voyage by sea, it folloAVS as a matter of course that if 
 there has been a fall in the price of the goods between 
 the time when they ought to have arrived and the 
 time when they do arrive, damages can be recovered, 
 was fully considered in the case of the Parana,^ 
 which vessel was of 1,372 tons gross and 1,027 net 
 register, and 180 horse power nominal. The master 
 chartered the vessel at Manilla to load a cargo there 
 and at Ilo-Ilo, and to proceed therewith to London via 
 the Suez Canal. In pursuance of the charter-party 
 she took on board some parcels of hemp and sugar at 
 Manilla, and having sailed to Ilo-Ilo, slie there took 
 in further parcels of sugar, but as the charterers 
 were not able to sui)ply her with a full cargo, it was 
 agreed that she should be at liberty, on the home- 
 ward voyage, to call in at Singapore to fill up. She 
 left Ilo-Ilo on the 24th July 1873, but owing to 
 the defective state of the boilers, she was obliged, on 
 
 > L. R. 2 P. D. 118 ; 3 Asp. Mar. L Ca. N. S. 399.
 
 BAMAGEFi FOR DETENTTON OF GOODS. CO 
 
 the 30tli of 11 10 same month, to i)Ht into Lahnan 
 for repairs. Thence slic proceeded to Singapore, 
 "where she took in some cargo and a large qiinntity 
 of coals, and elTecting some further repairs to the 
 boilers, she again proceeded on her voyage. On 
 the 18th August, owing to tlie state of the boilers, 
 she was obliged to put into Acheen, and after 
 effecting repairs, she again proceeded. On the 1st 
 September she had to alter her course for Point 
 de Galle, it being found that she could only cany 
 11 lbs. steam. She arrived in Point de Galle on the 
 4th September, and having completed her repairs, 
 she left again on the 9th. On the 1st October she 
 arrivedat Acheen, where further repairs were done to 
 her boilers, and again at Port Said, at Malta, and at 
 Gibraltar, so that it Avas not until the 28tli November 
 1873, 127 days after leaving Ilo-Ilo, that she arrived 
 in the port of London. It was admitted that the 
 boilers were in a bad condition, and that by reason 
 tbereof a very undue delay took place during the 
 voyage. In an action brought by the assignee of 
 certain hills of lading of goods (sugar and hemp) 
 forming jiart of the cargo, to recover damages for 
 loss of market in respect of the hemp, interest, and 
 loss by drainage of sugar by reason of the nnusnal 
 length of the voyage, Mellish, L. J., in delivering 
 the judgment of the Court, said : "If goods are sent 
 by a railway for sale at that day's market in 
 Smithfield or Billingsgate, and l)y reason of a 
 breach of contract on the part of the carrier they
 
 70 DAMAGES FOR DETmTION OF GOODS. 
 
 have not arrived in time for that market, no doubt 
 damages for the loss of market may be recovered. 
 So, again, if goods are sent for the purpose of 
 being sold at a higher jirice than they are at other 
 times, and if by reason of breach of contract they do 
 not arrive in time, damages for loss of market may 
 be recovered ; or, if the facts are known to both 
 parties, or where it is known a iwiori that they will 
 sell at a better price than if they arrived later. In 
 tliis case it is only said that when the goods arrived 
 in November they were likely to sell for less than if 
 they had arrived in October, when the market was 
 lower. It was argued that there could be no differ- 
 ence between the carriage of go )ds l)y railway and 
 the carriage of goods by sea. But it appears to us 
 that there may be a material difference between the 
 two cases ; when goods are conveyed by railway, 
 if they are known to be conveyed for the purpose of 
 sale at all, they are usually conveyed for the purpose 
 of immediate sale, and if the cases are examined, I 
 tliink it will be found that in all of them the Courts 
 treated the question as if the goods were consigned 
 for the purpose of immediate sale. No doubt if 
 goods are consigned to a railway company under 
 such circumstances, the railway company may be 
 reasonably supposed to know tliat they are consigned 
 for tlie purpose of immediate sale; and if by breach 
 of contract on the part of tlie carrier, they do not 
 arrive in time to be sold when the owner intends tliem 
 to be sold, that may be a ground for giving damages 
 for what is called ' loss of market.'
 
 DAMAGES FOR DETENTION OF GOODS. 71 
 
 "ThcMlUrerence between cases of this kind and 
 cases of the import of goods from a long distance 
 by sea, seems to rac to be very obvious. In order 
 that damages may be recovered we mnst come, I 
 think, to tlie conclusion, first, that it was reasonably 
 certain that the goods Avould not be sold until they 
 arrived ; or, secondly, that it was reasonably certain 
 that they would be sold immediately after they 
 arrived, and that that ^vas know^n to the carrier 
 Avhen the bills of lading were signed. It appears to 
 me that nothing could be more uncertain than cither 
 of those two assumptions. Goods imported by sea 
 may be, and are, every day sold Avhilst they are at 
 sea. The sale of goods ' to arrive' on transfer of 
 bills of lading, with costs, bills, and insurances, is a 
 common mercantile contract made every day. It 
 seems to me that to give these damages would be to 
 give speculative damages, to give damages when wo 
 cannot be certain that the plaintiff would not just 
 as much have suffered if the goods had arrived in 
 time; and I think, according to the principle on 
 which the Courts have acted in all speculative and 
 uncertain cases of this kind, that damages ought not 
 to be recovered." The Court held that the owner 
 of the goods, or assignee of the bill of lading for the 
 goods, was not entitled to recover, as damages from 
 the shipowner, the difference between the market 
 value of the goods when they ought to have been 
 delivered, and the market value when they actually 
 were delivered : but that the measure of damages
 
 72 DAMAGES FOR DETENTION OF GOODS. 
 
 recoverable in sucli a case was interest at tlie ordin- 
 ary commercial rate on the valiie of the goods for 
 the i^eriod of the delay in delivery. 
 
 AYhcre hy reason of a collision between two 
 steamships, occasioned by the negligence of one, 
 goods carried by the other are delayed in transit, 
 dama2:es for loss of market are not recoverable as 
 being too remote by reason of the uncertainty of 
 the duration of a sea vo3^age. The case of " The 
 Parana"^ was followed, Brett, M. E-. stating that 
 " the rule Avith regard to questions as to remoteness 
 of damage is precisely the same whether the damages 
 are claimed in respect of contract or in respect of 
 tort."^ 
 
 In a subsequent case, the master of the steamer 
 " Carbis Bay," lying at Wilmington, signed bills of 
 lading for 100 bales of cotton shipped on board the 
 " Carbis Bay" for Liverpool. In consequence of 
 insufficient room only 165 bales could be shipped, 
 and the defendant directed the remaining 235 bales 
 to be shipped on board the steamer " Wylo," then 
 lying in the same port, bound for Liverpool. The 
 " Carbis Bay" arrived at Liverpool on the 26tli 
 October, and the " Wylo" on tlie 29th October, and 
 both cargoes were delivered to the plaintiffs, who 
 Avere indorsees of the bill of lading. BetAveen the 
 26th and the 21)tli October, a fall in the price of 
 cotton took place, and the plaintiffs sued the defen- 
 
 ' 3 Asp. Mar. L. C. 399 ; L. E. 2 T. D. 118. 
 
 2 The Netting Hill, L. R. 9 P. D. 103 ; 53 L. J. P. D. & A. oG ; o Asp. Mar, 
 L. C. 241.
 
 MEASURE OF DAMAGES. 73 
 
 (lant for tlic loss thereby occasioned : — " It was 
 held, that on the 26th October the plaintiffs had a 
 right of action against the defendant for non-deli- 
 very; that the measure of damages was the market 
 price of cotton on that day ; and that the subse- 
 quent delivery of the cotton ex " Wylo" could only 
 he taken into account in reduction of damages.^ 
 
 The measure of damages for non-delivery of goods 
 under a charter-party, is the market value of the 
 goods at the place of delivery at the time when in 
 the ordinary course the goods ought to have been 
 delivered, less the amount to be paid by the charterer 
 upon delivery, independently of any circumstances 
 peculiar to the charterer. The measure of damages, 
 therefore, is not affected by the circumstance that 
 the charterer had sold the goods to arrive for a less 
 sum than the market value. 
 
 In assessing the damages for non-delivery of 
 goods under a charter-party, advanced freight, 
 though advanced, less the cost of insurance thereof, 
 cannot be deducted from the market value of the 
 goods at the place of delivery.^ 
 
 In "British Columbia Saw Mill Co. i\ Nettleship," 
 the plaiutilfs had delivered several cases of machin- 
 ery to the defendant's servants on a quay at 
 Glasgow, for shipment to Vancouver's Island, on 
 board the defendant's vessel which lay alongside. 
 The master knew at the time that these cases con- 
 
 ' Smitli, Edwards & Co. v. Trcgaithcn, 50 L. J. Q. B. 437. 
 - Rodocouaclii & Co. v. Miiburn. Bros., L. K. 18 Q. B. D. 67 ; 56 L. J, 
 Q. B. 202. 
 
 10
 
 74 3IEASURE OF DAMAGES. 
 
 taincd different portions of macliincry, which were 
 intended for a sawing mill to be erected and used 
 by the jolaintiffs in British Columbia. On the 
 vessel's arrival, one of the cases was missing, and 
 consequently the mill could not be erected. The 
 plaintiffs were obliged to send to England to re- 
 place the lost parts, and thus great delay and loss 
 of profitable business ensued. Compensation for 
 the whole loss sustained was claimed, but it was 
 held that the jilaintiffs could only recover the cost 
 of replacing the lost parts, including freight to 
 Vancouver's Island, with interest at five per cent, 
 upon the amount, by way of compensation for the 
 delay. It was considered that the master could not 
 be supposed to know that the whole machinery 
 would be useless without the parts that were lost, 
 or that those parts could only be replaced in Eng- 
 land.^ 
 
 Where the proximate cause of a loss has itself 
 been a direct consequence of the breach, it is clear 
 that damages for that can be recovered.^ And the 
 same is true where the proximate cause has been 
 one which might probably, under ordinary circum- 
 stances, come into operation ; although it may have 
 been subsequent to, and quite independent of the 
 breach itself. 
 
 A further limitation of importance to the right 
 to claim compensation for loss actually sustained is, 
 that if there has been an aggravation of the loss 
 
 I L. 11. 3 C. p. 499. 
 
 * On tliia subject see Carver on Carriage by Sea, p. 742.
 
 MEASUBE OF DAMAGES. 9'6 
 
 throiigli unreasonable conduct on the plaintiff's 
 ]iart, lie cannot claim to charge that to the defen- 
 dant.^ And if the plaintiff has, after the breach 
 agrrvavated his loss hy an indepondcnt course of 
 action, reasonable or not, which has not been forced 
 upon liini by the breach, but has been voluntarily 
 adopted by him, that cannot be charged to the 
 defendant.^ 
 
 In Irvine v. Mid. G. W. Railway Co.,^ Fitzgerald, 
 B., said : " In applying this general intention of 
 placing the complainant in the same position as he 
 ATOuld have been in if the contract had been per- 
 formed to a case like the present, we must remem- 
 ber that the altered position to be redressed must 
 be one directly resulting from the breach, and not 
 from any act or omission of the complainant sub- 
 sequent to the breach, and not directly attributable 
 to it. It is not sufficient that it be an act or omis- 
 sion which would not in fact have taken place but 
 
 for the breach The law never contem- 
 
 l)lates its being reasonable for him to create a loss 
 for himself because the contract has been broken." 
 
 Thus with regard to the shipowner, he cannot 
 claim, as damages for the charterer's failure to 
 load, a loss incurred by keeping the ship waiting 
 for the cargo beyond the agreed lay days, and days 
 on demurrage.^ Nor can he claim for a detention 
 
 ' Roniicberp: i'. Falkland Ishuids Co., 31 L. J. C. V. 31; The Flying Fish, 
 34 L. J. Ad. 113 ; The Tlmringia, 41 L. J. Ad. -41. 
 
 » Carver on Carriage by Sea, p. 743. ^ G L. E. Ir. 55. 
 
 * Blight r. Fago, 3. B. & P. 295 n.; Dimech v. Corlett 12 Moo. P. C. 199 ; 
 nick V. Tweedy, 63. L. T. 765.
 
 76 MEASURE OF DAMAGES. 
 
 of the ship which the master might have avoided 
 by a small sacrifice ; altlioiigh the detention may 
 have been owing to a default of the freighter. As 
 where a ship Avas detained at the port of discharge, 
 because the consignee of the goods had failed to 
 l^ay a small sum for dues, Avhicli the master might 
 have paid himself, and claimed from the consignee;^ 
 or where the ship has been kept in order to pre- 
 serve the shipowner's lien on the goods, when they 
 might have been landed and warehoused.^ 
 
 Compensation will not be allowed for losses which 
 might reasonably have been avoided by the plain- 
 tiff; although they may have directly resulted 
 from the breach. lie ought to take such steps as 
 may be prudent, and reasonably within his power, 
 to mitigate the loss.^ And expenses or losses 
 prudently incurred in mitigating the ultimate loss 
 will be allowed as part of the damage. '^ 
 
 Thus, if a freighter whose goods are left behind, 
 can get another ship or means of conveyance for 
 them, that must be taken into account in estimat- 
 ing his damages ; he cannot by neglecting to take 
 advantage of other means, recover damages on the 
 footing of the failure of his adventure.^ 
 
 The freight earned upon substituted cargo must 
 
 » Mollcr r. Jenks, 19. C. B. N. S. 332. 
 
 2 Mors Ic Blanch r. Wilson, L. R. 8. C. P. 227; Carver on Carriage by- 
 Sea, p. 74 1. 
 
 » Wilson V. Hicks, 26 L. J. Ex. 242 ; The Blcrilieim, L. R. 10 P. D. 167. 
 * Tindall v. Bell, 11 M. & W. 228; The Columhus, 3 W. Rob., 158. 
 
 = Irvine v. Mid. G. W. R. Co., 5 L. R. Ir. 55 ; Ansett i'. Marshall, 22 L. J. 
 Q. B. 118. 
 
 \
 
 MEASURE OF DAMAGES. 77 
 
 be taken into account in cstimatin^^ tlio damac^es ; 
 and if it has amounted to as much as shoukl liave 
 l)een earned under the charter-party, after hi-inginf,^ 
 in all expenses, the damages for the breach Avill be 
 only nominal/ 
 
 But the fact that the shipowner has been inci- 
 dentally benefited by the breach of contract, in 
 transactions with which the contract has nothing 
 to do, cannot be taken into account in estimating 
 his damages. For example, an increase of freight 
 earned by other vessels of the shipowner, in con- 
 sequence of an improper detention of the chartered 
 ship, does not diminish the liability of the charterer 
 for the detention.^ 
 
 The amount of damages to be paid upon a breach 
 of a bill of lading or charter-party may be fixed by 
 the contract itself. Thus, there may be an agreed 
 sum payable for each day's detention of the ship, 
 or for each day's delay, in delivering the goods ; 
 and a fixed dead freight may be payable for each 
 ton short-shipped. But in most cases the amount 
 must be settled according to general principles.^ 
 
 As regards breaches of the contract by the ship- 
 owner, it has to be considered, what damages are 
 payable where he fails to supply a ship, or to take 
 in 2:oods as asfreed. 
 
 The freighter loses the benefit of the agreed 
 means of conveyance. He can, however, ordinarily 
 
 ' Carvor on Cui'riapto by Sea, p. 747. 
 
 = .Tcbscii V. East & West India Dock Co., L. R. 10. G. P. 300. 
 
 ' Carver on Carriage by Sea, p. 7 48, ,
 
 78 MEASURE OF DAMAGES. 
 
 obtain other means,' but that may involve delay, 
 and also increased freight. If so, he is entitled to 
 recover the amount of the extra freight and charges 
 to Avhich he may he put, and also compensation for 
 the delay in the transit. 
 
 Where tlie goods are waiting for shipment, the cost 
 of warehousing, or otherwise preserving them, is an 
 ordinary consequence of the breach, and forms part 
 of the extra cost of the substituted mode of sending 
 them.^ 
 
 The description of the goods may itself notify 
 the carrier that delay will diminish their value. 
 Thus, in Schulze v. G. E. Railway Co.,^ where a 
 parcel, delivered to the defendants with notice that 
 it contained samples, had been delayed until the 
 samples were of no use, the plaintiffs were allowed 
 to recover the special value they would have had 
 if delivered within a reasonable time. 
 
 A loss by the physical deterioration or wasting 
 of the goods owing to delay is an ordinary probal)l3 
 consequence, so far as it is such as might be ex- 
 pected to happen to such goods in their ordinary 
 condition.^ If, however, the deterioration has been 
 the result of some specially sensitive condition of 
 the goods, which has not been brought to the notice 
 of the carriers, the rule excludes a claim for 
 damages for that special loss. 
 
 In Baldwin v. L. C. & D. Paiilway Co.,* some 
 
 1 Feathorston v. Wilkinson, L. R. 8 Ex. 122. 
 2 li. II. 19 Q. B. D. 30. => The Parana, L. R. 2 P. D. 118, 
 
 • L. R. 9 Q. B. D. 582. 
 
 \
 
 MEASURE OF DAMAGES. 79 
 
 l)alcs of rags -were delayed more than a fortnight, 
 over a transit Avhich would ordinarily have occui)ied 
 only twenty-four hours. The rags had heen packed 
 in a damp state, and they consequently heated and 
 rotted, and became worthless. ITad they been 
 packed diy they would not have suffered. It was 
 hold, that the defendants were not lialde for the 
 loss, as they had no notice of the condition of the 
 rags. 
 
 Loss of market value is in some respects analo- 
 gous to deterioration of the goods ; but there is an 
 essential difference between them. The fall in the 
 market is not a consequence of the improper delay ; 
 and Avhcre it is due to a fluctuation which is not of 
 a jieriodical, regularly recurrent kind, so that it 
 would not be anticipated as a matter of common 
 expectation, it is not one of those ordinary circum- 
 stances by which the carrier's liability may be 
 increased.^ 
 
 It remains to consider cases in which tlie carrier 
 has wholly failed to deliver the goods ; or has 
 delivered them damaged. Apart from s^^ecial cir- 
 cumstances, Avhicli may affect the case in such ways 
 as have been considered, the value of the goods for 
 which compensation must be made, when they have 
 been lost, or damaged, is that which they Avould 
 have had at the time, and place, at which they 
 ought to have been delivered.^ And this is true, 
 although the freighter who is claiming may have 
 
 > Hawcs V. S. E. Rail Co., 54 L. J. Q. B. 17-i; 52 L. T. 514. 
 
 • Braudt v. Bowlby, 2 B. & Ad. 932; Eice v. Baxendale, 30 L. J. Es. 371.
 
 80 MEASURE OF DAMAGES. 
 
 contracted to sell the goods at a less price than they 
 ■would have realised on arrival. The value is ordin- 
 arily estimated by reference to the market price 
 at the place. But if there is no market at the 
 destination in which such goods can be replaced, 
 so that they could only he bought there, if at all, 
 at a fancy price, that would not be the proper 
 measure of their value. In O'Hanlan v. Great 
 Western Eailway Co.,^ it was held, that the value in 
 such a case must be ascertained by considering their 
 cost at the place of manufacture, and the expenses 
 of transit, and adding a reasonable sum for profit 
 to the importer. 
 
 Any freight or charges which the freighter would 
 have had to pay in order to get the goods, must be 
 deducted from the estimated value. But freight 
 paid in advance is not to be deducted, although the 
 shipowner may have made an allowance to the 
 • freighter for insurance of the advance.^ 
 
 Where the goods have been sold at a port of 
 refuge to pay for repairs to the ship, the froigliter 
 is entitled to claim the amount of the proceeds, or, 
 if the ship arrives, the amount they would have 
 realised at the port of destination, after deducting 
 freight and charges. 
 
 The same is true wdierc the sale has been wrong- 
 ful. But if the goods were sold in a damaged, or 
 perishing condition, and the shipowner \^as not 
 responsible for that, their condition must be taken 
 
 1 34 L. J. Q. B. 151. 
 
 ■ Rodoconachi u. Milburn, L. R. 18 Q. B. D. 67.
 
 MEASURE OF DAMAGES. 81 
 
 into account. Tlic amount to l)o ascertained is 
 what the lijoocls would have been worth to their 
 owners, had they not been sokl, as they ky, and 
 havinir remird to the obli^jations of the carrier under 
 the contract/ 
 
 ■\Vhcre the claim for damages is apart from con- 
 tract, as for a wrongful act done to the goods, the 
 rule which excludes losses that arise from special 
 circumstances, not anticipated beforehand, does not 
 apply. If the plaintiff has been wrongfully depriv- 
 ed of goods which he could not replace, and if they 
 had a peculiar value to him, or if through want of 
 tliem he has sustained a special detriment, he is 
 entitled to compensation for the loss of that value, 
 or for that detriment, although the wrongdoer may 
 have had no notice of the circumstances Avhich 
 caused it. " The actual value is fixed by circum- 
 stances at the time of the demand, and no notice 
 of the special circumstances could then affect the 
 actual value of the goods withheld from their right- 
 ful owner, who thereby sustains an ' actual present 
 loss,' which appears to us to be a convertible term 
 with ' actual value.' " ^ 
 
 If, however, the wrong be a continuing one, 
 as an improper detention of goods, it may be that 
 a special loss suffered in consequence will not be 
 recoverable unless the wrongdoer was aware of the 
 .special injury he was causing.^ 
 
 A question of some difficulty arises where the 
 
 ' Cai'vcr on Carriage, p. 756. 
 " France v. Gaudet, L. R. G Q. B. 199. » Ibid. 
 
 11
 
 82 MEASURE OF DAMAGES. 
 
 goods have been shipped under a wrong description. 
 If that has been done fraudulently, and the carrier 
 has been deceived as to their quality and value, it 
 has been held in several cases that he is not respon- 
 sible in damages for them/ 
 
 Thus, in Belfast and Ballymena Rail Co. v. Keys,^ 
 it was held that the Company were not responsible 
 for merchandise, which the plaintiff had taken as 
 personal luggage, when he knew that they required 
 all merchandise carried to be paid for. Lord West- 
 bury said, "under these circumstances there could 
 not exist, in law or in reason, any contract whatever 
 between the plaintiff and the Company touching 
 these goods, upon the breach of the performance of 
 which contract the plaintiff could have a right 
 against the Company." 
 
 Where a misdescription has occurred by mistake, 
 there has been some difference of opinion as to 
 whether the shipowner is responsible at all under 
 the contract ; and if he is responsible, it is, it seems, 
 doubtful for what. The better opinion appears to 
 be that, though the thing delivered and received to 
 be carried may have been misdescribed, the con- 
 tract to carry has in fact been made with reference 
 to it, and to nothing else. And if so, the carrier's 
 liability would appear to extend to the whole value 
 of that, unless the shipper is precluded from saying 
 that there has been a misdescription. 
 
 When there has been no mistake, but the con- 
 
 i Carver on Carriage, p. 757. « 9 H. L. C. 556.
 
 LIMITATION. 83 
 
 tract and the rate of freight have been based upon 
 an assumed fictitious state of values of the tilings 
 carried, the shipper will be bound by that. But it 
 has not been decided whether the same holds good 
 in a case of mistake.^ 
 
 It is no defence to a claim for a loss of goods 
 that another person is liable to give them up, or to 
 pay their value. But the right of recovery against 
 the other may be taken into account in estimating 
 the amount of damage suffered.^ 
 
 The shipoAmer is not, however, entitled to any 
 benefit from the fact that insurers have paid, or are 
 liable to pay, in respect of the loss.^ 
 
 Where a suit is brou2:ht for breach of contract Limitation. 
 for non-delivery of goods under a bill of lading, it 
 is not open to the defence after having denied receipt 
 of the goods, to set up, or for the Court, after find- 
 ing that the goods had been shipped but not 
 delivered, to assume, without evidence, that the 
 goods were lost, in order to bring the case within 
 Art. 30, Sell. II. of the Indian Limitation Act XV. 
 of 187 7, Avhicli provides that a suit against a carrier 
 for coni2^ensation for losing or injuring goods, must 
 be brought within two years from the time when the 
 loss or injury occurred. ^'^ Thus where the plaintiff 
 sued to recover the price of bags of grain not deliv- 
 ered, and the defendants contended that the suit 
 was barred under Art. 30 of the Limitation Act, the 
 
 ' Carver. - Morris v. Robinson, 3 B. & C. 196. 
 
 » Yates V. Whytc, 4 Bing N. C. 272. 
 
 Oi) Daunmll r. British India Steam Navigation Co., I. L. K. 12 Cal. 477.
 
 84 LIMITATION. 
 
 bags not having been delivered, and therefore lost, 
 Avithin two years before suit : it was held that the 
 mere non-delivery of the bags was no proof of their 
 loss, the onus of proving which as an aflfirmative 
 fact lay on the defendants before they could claim 
 the benefit of the sj)ecial limitation (Mohansing 
 Chawan v. Conder.)^ 
 
 This decision was followed in the case of DanmuU 
 V. British India Steam Navigation Co.^ where the 
 plaintiff sued the defendant Company to recover 
 damages by reason of the failure of the defendant 
 Company to deliver to him at Rangoon a bale of 
 piece goods shipped under a bill of lading. The 
 defendant Company denied that they had received 
 the bale, and endeavoured to prove that what was 
 in reality shipped was a bale of gunnies. They 
 further contended that the suit was barred by Art. 30, 
 Sell. II. of the Limitation Act of 1877. It was 
 found as a fact that the bale of piece goods had 
 been shipped by the plaintiff, at Calcutta, and that 
 the bale had not been delivered by the defendant 
 Company at Eangoon. Garth, C. J. in delivering 
 judgment for the plaintiff, after concurring mth the 
 ruling in Mohansing Chawan v. Cond(^r^ said, " I 
 should 1)0 disposed to go further, and to hold with 
 the Madras Court (in the case of the British India 
 Steam Na^dgation Co. v. Hajee Mahomed Esack ^) 
 that where a plaintiff sues for breach of contract, 
 and proves his case, the three years limitation, under 
 
 1 I. L. E. 7 Bom. 478. ^ i_ l. R. 12 Cal. 477. 
 
 ' Ibid. * I. L. R. 3 Mad. 107.
 
 LIMITATION. 
 
 Art. 115 of the Limitation Act, would l3e applicable, 
 although the defendants were to prove tliat the 
 breach occurred in consequence of some wrongful 
 act of theirs to which the shorter limitation would 
 apply. In the present case, the plaintiff sues for 
 tlie non-delivery of his goods ; he does not sue for 
 their loss ; he knows not whether the goods have 
 been lost or not. His case is, that the defendants 
 contracted with him to deliver the 2:oods at Ean2:oon, 
 and that they have failed to complete their contract; 
 and he claims his right to bring a suit for the 
 breach of contract within three years of the time 
 when the goods ought to have been delivered. It 
 may be that the goods were lost ; it may be that 
 the defendants may have been guilty of some other 
 misconduct, Avith reference to them, of wliich tlie 
 plaintiif was not aware ; but I do not see wliy tlie 
 defendants have a right to take advantage of their 
 own wrong, in order to change the nature of the 
 plaintiff's suit, for the purpose of bringing them- 
 selves within the protection of the two years 
 limitation. The plaintiff's suit is no less a suit on 
 contract, because the defendants may have been 
 guilty of a tort, of which the plaintiff was not 
 aware."
 
 V
 
 PART [[. 
 
 THROUGH BILL OF LADING. 
 
 The J^rcat aclvanta2^es offered to commercial enter- 
 prise, by ready communication between industrial 
 centres and the seaports lias led to the introduction 
 of what is known as a " through bill of lading," in 
 order to meet the requirements of the several trades 
 which have thus been developed, and which has be- 
 come almost as much a necessity as the ordinary 
 bill of lading, and Avithout which it would scarcely 
 be possible for the extensive business now conducted 
 between the interiors of large continents and places 
 intersected by rivers and separated by oceans to be 
 carried on. 
 
 By the adoption of a through bill of lading the 
 consignor enters into one contract only, and the 
 necessity of employing agents at each of the different 
 termini on the route, is thus avoided, and the 
 expense and inevitable delay which AAOuld otherwise 
 have resulted from the several breaks on the journey, 
 are averted. And the consignor is now enabled to 
 forward his goods under this contract, either by rail, 
 river, or canal, to a seaport from whence they will be
 
 88 THROUGH BILL OF LADING. 
 
 transported to tlio place of destination witli an 
 assurance that they will be conveyed subject only 
 to such risks as are necessarily incidental to such a 
 long voyage. 
 
 The through hill of lading contains clauses and 
 stipulations protecting the several railway and 
 transit companies from loss or damage which the 
 goods may receive on the journey, in addition to 
 the numerous stipulations which are to he met with 
 in the ordinary form of hill of lading, and "there is 
 undoubtedly difficulty, owing to the ambiguous lan- 
 guage and inconsistent provisions of this bill of 
 lading" in determinmg questions arising under it. 
 It is doubtful whether a through bill of lading 
 comes within the Bill of Lading Act, and owing 
 principally to the fact that the vessel m wdiich the 
 ocean transit is made, is not usually known when 
 the through bill of lading is given, many ]3ractical 
 difficulties arise in connection wdth the use of a 
 througli bill of lading. In judicially considering 
 any point that may arise hereafter, it is presumed 
 that the railway and transit companies will be bound 
 by the terms and conditions set forth in this special 
 contract, so far as they arc just and reasonable, 
 irrespective of any statutory provisions a\ hich may 
 exist for the ordinary carriage of goods. Were it 
 otherwise as regards these companies the contract 
 entered into under the through bill of lading would 
 be of no value wdiatever, but the clauses and stipu- 
 lations relating to that part of the journey to be
 
 THROUGH BILL OF LADING. 89 
 
 effected l)y sea ^vill be interpreted on the same 
 principles, Avhicli clauses and stipulations in ordin- 
 ary bills of lading have judicially received, and be 
 i^ovcrned by the several decisions thereon. 
 
 In the United Kingdom the limitation of the 
 liability of llaihvay Companies under through bills 
 of lading is contained in 31 and 32 Vict. c. 119, s. 11, 
 and 31 and 35 Vict. c. 78, s. 12, Avhich are as 
 follows : — 
 
 Wliere a Compuuy by Througli Booting contracts to carry any 31 & 32 Yict. 
 Animals, Luggage, or Goods from Place to Place partly by Railway c. 119 s. 14. 
 anil partly by Sea, or partly by Canal and partly by Sea, a Condition 
 exempting the Company from Liability for any Loss or Damage 
 Avhich may arise during the Carriage of such Animals, Luggage, or 
 Goods by Sea from the Act of God, the King's Enemies, Fire, 
 Accidents from Machinery, Boilei-s, and Steam, and all and every 
 other Dangers and Accidents of the Seas, Rivers, and Navigation, 
 of whatever Nature and Kind soever, shall, if published in a con- 
 spicuous Manner in the Office where such Throagh Booking is 
 effected, and if printed in a legible Manner on the Receipt or 
 Freight Note which the Company gives for such Animals, Luggage, 
 or Goods, be valid as Part of the Contract between the Consignor 
 of such Animals, Luggage, or Goods, and the Company, in the 
 same Manner as if the Company had signed and delivered to the 
 Consignor a Bill of Lading containing such Condition. For the 
 Purposes of this Section the Word " Company " includes the 
 Owners, Lessees, or Managers of any Canal or other Inland Navi- 
 gation. 
 
 Where a railway company under a contract for carrying pei'sons, ^ 
 
 animals or goods by sea procure the same to be carried in a vessel c. 78 s. 12. 
 not belonging to the railway company, the railway company shall 
 be answerable in damages in resj)ect of loss of life or pei-soual 
 injury, or in respect of loss of or damage to animals or goods, in 
 like manner and to the same amount as the railway company would 
 be answerable if the vessel had belonged to the railway company ; 
 provided that such loss of life or personal injury, or loss or damage 
 to animals or goods, happens to the person, animals, or goods (as 
 the case may be) during the carriage of the same in such vessel, the 
 proof to the contrary to lie upon the railway company. 
 12
 
 90 THROUGH BILL OF LADING. 
 
 And in India the limitation of liability is con- 
 tained in Sections 72, 81 and 82, of Act IX. of 1890, 
 of the Legislative Council of India. 
 
 72. (1.) The responsibility of a railway administration for the 
 loss, destruction or deterioration of animals or goods delivered to 
 the administration to be carried by railway shall, subject to the 
 other provisions of this Act, be that of a bailee under sections 151, 
 152, and 161 of the Indian Contract Act, 1872. 
 
 (2.) An agreement purporting to limit that responsibility shall, 
 in so far as it purports to effect such limitation, be void unless it — 
 
 (a) is in writing signed by or on behalf of the person sending 
 
 or delivering to the railway administration the animals 
 or goods, and 
 
 (b) is otherwise in a form approved by the Governor General 
 
 in Council. 
 (3.) Nothing in the common law of England, or in the Carrier's 
 Act, 1865, regarding the responsibility of common carriers with 
 respect to the carriage of animals or goods, shall affect the respon- 
 sibility as in this section defined of a railway administration. 
 
 81. Where a railway administration under contract to carry 
 animals or goods by any inland water procures the same to 
 be carried in a vessel which is not a railway as defined in this Act, 
 the resi^onsibility of the railway administration for the loss, de- 
 struction or deterioration of the animals or goods during their 
 carriage in the vessel shall be the same as if the vessel were such a 
 railway. 
 
 82. (1.) When a railway administration contracts to carry 
 passengers, animals or goods partly by railway and partly by sea, 
 a condition exempting the railway administration from responsibi- 
 lity for any loss of life, personal injury or loss of or damage to 
 animals or goods which may happen during the carriage by sea 
 from the act of God, the King's enemies, fire, accidents from machin- 
 ery, boilers and steam and all and every other dangers and 
 accidents of the seas, rivers and navigation of whatever nature and 
 kind soever shall, without being expressed, be deemed to be part of 
 the contract, and, subject to that condition, the railway administra- 
 tion shall, irrespective of the nationality or ownership of the ship 
 used for the carriage by sea, be responsible for any loss of life, 
 personal injury or loss of or damage to animals or goods which may 
 happen during the carriage by sea, to the extent to which it would 
 be responsible undei* the Merchant Shipping Act, 1854, and the
 
 THROUGH BILL OF LADING. 01 
 
 Morcliant Shipping Act, Amondment Act, 1862, if the ship were 
 registered under the former of those Acts and the railway adminis- 
 tration were owner of the ship, and not to any gi'eater extent. 
 
 2. The hnrden of proving that any such loss, injury or damage 
 as is mentioned in sub-section (1) happened during the carriage by 
 sea shall lie on the railway administration. 
 
 In ]\Ioorc V. Harris, whicli was an appeal from a 
 judgment of the Conrt of Queen's Bench in Lower 
 Canada to the Privy Comicil/ the question for deter- 
 mination which arose in a through hill of lading 
 was — what was the le£?al effect of the clause: " No 
 damage that can be insured against will be paid 
 for, nor will any claim whatever be admitted unless 
 made before the goods are removed." 
 
 As the consideration of this point involved also 
 several other clauses in the bill of lading, the judg- 
 ment of Sir Montague Smith, which dealt ydi\\ 
 these subjects for the first time, is given at length. 
 The facts were as follows: The appellants, who 
 were merchants in Toronto, brought the action 
 against the respondent, the OAmer of the steam- 
 ship " Med way," one of a line of steamers between 
 London and Montreal, for the value of the damage 
 alleged to have been done to 306 packages of tea 
 on the voyage from London to Montreal. By the 
 bill of lading signed in London by the master's 
 agent on the 12th of April 1870, the 300 jiackages 
 were " to be delivered from the ship's deck, when 
 the ship's responsibility shall cease, at the port of 
 Montreal, unto the Grand Trunk Railway Company, 
 and by them to be forwarded thence, per railway, 
 
 1 L. \\. 1 App. Cas. 318.
 
 92 THROUGH BILL OF LADING. 
 
 to the station nearest to Toronto, and at the afore- 
 said station delivered to Messrs. Charles Moore & Co. 
 or to their assigns." The exception contained a 
 long list of special risks, hesides general perils of 
 the sea, whether arising from negligence or other- 
 vrise. The instrnnient also contained the folloAving 
 condition, npon the last clause of which the material 
 question arose : 
 
 " No damage that can he insured against will he 
 paid for, nor Avill any claim whatever be admitted 
 unless made hcfore the goods are removed." The 
 case of the plaintiffs, as stated, was that during the 
 voyage the tea "had become impregnated and 
 affected with the odour and taste of chloride of 
 lime and other injurious substances," and that the 
 damage so occasioned was not within any of the 
 exceptions of the bill of lading. The defence Avas, 
 first, that the tea was not damaged on board the 
 shij) ; and if it was, tliat in one way of accounting 
 for it, the injury was within the excepted risks ; 
 and secondly, that " the claim was barred by the 
 delay which occurred in making it." The evidence 
 for the plaintiffs was to the effect that, during the 
 voyage, scarlet fever broke out among the steerage 
 passengers, and under the advice of the Surgeon, 
 chloride of lime and carbolic acid were employed 
 as disinfectants. That the chloride was thrown in 
 large quantities about the fore cabin and other parts 
 of the shij) occupied by the passengers, and carbolic 
 acid sometimes used in the same places, appears to
 
 THROUGH BILL OF LADING. 93 
 
 liavo heen satisfactorily proved. The plaintiff's 
 packages, and packages of tea belonging to other 
 consignees, -were stowed in the hold under this 
 cahin, and the passengers' trunks were in a place 
 near them. The passengers, it was said, suffered 
 greatly during the voyage from the smell of the 
 disinfectants, and when their trunks were opened 
 on shore, the clothes contained in them were found 
 to he strongly impregnated ^yith the same odour. 
 The ship arrived at ^Montreal on the 2nd or 3rd of 
 jMay, having sailed from London on the 11th of 
 April. There were in all 4,000 or 5,000 packages 
 of tea on hoard, dispersed in various parts of the 
 ship. The plaintiff's tea was landed with the others, 
 and all were placed in shipping sheds, where they 
 ^yoYG sorted and then taken to the freight sheds of 
 the Grand Trunk Railway Company. Erom thence 
 tliey Avere carried hy railway to Toronto, and 
 deposited in the Eailway Company's bonded ware- 
 liouses there. After lying a day or two in these 
 warehouses, the packages Avere carried in the Rail- 
 AA-ay Company's waggons to the plaintiff's own ware- 
 house. The unloading of the ship occupied several 
 days, and the plaintiff's packages were forwarded 
 in three lots. These lots were removed from the 
 shipping sheds to the railway freight sheds in 
 Montreal on the Gth, 9th and 12th of j\Iay, and were 
 respectively delivered at the plaintift"s warehouse 
 in Toronto on the 13th, IGth and 17th [May. Much 
 evidence was given as to the storing and transport
 
 94 THmmn bill of lading. 
 
 of the packages after they left the sliip, to exclude 
 the supposition tliat they were damaged in their 
 transit from the shij^ to the plaintiff's Avarehouse. 
 It appeared that wpon the arrival of some of the 
 packages at tlic plaintiff's warehouse, their shipping 
 clerk and foreman perceived a peculiar smell in 
 them, and called the attention of the cartman 
 to it. 
 
 On the 18th May the plaintiffs called in four 
 persons, viz. : two grocers, a merchant, and a tea 
 broker, to examine the tea, and obtained from them 
 the following report : " We find the entire lot 
 damaged and unmerchantable. The damage ap- 
 pears to have been caused by chloride of lime, or 
 some other chemical. We find the packages im- 
 pregnated with the odour, as also the contents." 
 On the 27th of May another survey of the tea was 
 held for the purpose of obtaining a return of duty, 
 and the surveyors then called in reported damage 
 • to the extent of ninety-nine per cent. No notice 
 whatever of the damage or of tliese surveys was 
 given to tlie Captain or agent of the ship until the 
 30th of May, when tlie solicitors of the plaintiffs 
 wrote to Mr. Shaw, the agent for the ship at Mon- 
 treal, informing him that " the tea upon its arrival 
 was found to have been spoiled and rendered almost 
 worthless by reason of its having been improjierly 
 carried," and inviting him to be present at a survey 
 of the tea proposed to be held on the 9tli of June. 
 To this letter, which was received on the 3rd of
 
 THROUGH BILL OFLADING. 95 
 
 June, no answer was returned. The survey, liow- 
 ever, took place, and a report, in substance the same 
 as that of the 18th of May, was made. Otlier 
 evidence was given by the phiintiffs, but none as to 
 tlic condition of tlie tea when shipped. The defen- 
 dant called witnesses to rebut the presumption that 
 the damage was done in the ship, and among them 
 stevedores and others, who were present when the 
 cargo Avas discharged, who said that, as far as they 
 observed, the floors over the hold were tight and 
 the packages undamaged. Their Lordships were 
 of opinion that there was a strong prima facie case 
 that the damage was done in the sliij), but their 
 decision rested entirely on the express condition in 
 the bill of lading. Sir Montague Smith, in deliver- 
 ing the judgment of the Court, said : " It was not, 
 and could not, be denied that this condition, strin- 
 gent as it is, AA'as binding on the consignees ; but 
 its ajiplication to the claim in question was disputed. 
 It was contended that " before the goods are re- 
 moved," meant removal from the shij) at Montreal, 
 and not from the railway station at Toronto ; and 
 that the condition applied only to apparent damage, 
 and the injury sustained by the tea was not such 
 damage. There is undoubtedly difficulty, owing to 
 the ambiguous language and inconsistent provisions 
 of the bill of lading, in determining whether the 
 removal referred to Avas that from the ship or the 
 railway station. The construction most consistent 
 with the rest of the instrument seems to point to
 
 96 THROUGH BILL OF LADING. 
 
 the latter place. It was at the railway station that 
 in express terms the goods were to be delivered to 
 the plamtiffs, " freight being payable by the con- 
 signees as per margin;" this freight being, as it 
 was admitted, a thvongh freight from London to 
 Toronto. By another clanse it is provided that 
 *' goods must be taken a^vay within twenty-fonr 
 hours after arrival at the railway station to which 
 they are destined." Again, freight is made due if 
 payable by consignees, " on arrival at the place of 
 destmation." On the other hand it was pointed out, 
 that it is provided that the goods are to be delivered 
 from the ship's deck, where the ship's res2-)onsibi- 
 lity shall cease, and this delivery is to be to the 
 E-ailway Company ; but, although the liability of 
 the ship for the subsequent damage then ceases, it 
 would be the duty of the ship to contract with the 
 liailway Company to carry on the goods to Toronto ; 
 and, as already observed, the railway station is 
 spoken of as the place of destination, and it is there 
 the goods are to be delivered to the plaintiff. The 
 clause, " the goods to be taken from alongside by 
 the consignee immediately the vessel is ready to dis- 
 charge, or otherwise they will be landed and stored 
 at the expense of the consignee, and at his risk," is, 
 no doubt, opposed to the above construction, but 
 this clause is inconsistent with the engagement of 
 the sliipowner to send on by railway at a through 
 freight to Toronto. " It is evidently one of the 
 printed clauses, and cannot control the specific
 
 THROUGH BILL OF LADING. 97 
 
 undertaking to forward the goods to Toronto." For 
 the plaintiff it Avas insisted that the condition refer- 
 red to the removal from the ship, and that the 
 condition should he confined to claims for apparent 
 damage, since there was little opportunity for ex- 
 amination on a delivery from the ship's side, and 
 that it would he unreasonahle to su2:)pose the parties 
 intended it to aj^ply to claims other than for such 
 damage. Supposing, however, removal from the 
 ship was meant, that construction Avould not, in 
 their Lordships' view, materially assist the conten- 
 tion ; for in that case the Raihvay Company A\'ould 
 he the agents of the plaintiffs to receive the goods 
 from the ship, and if the plaintiffs, who had come 
 under this stringent condition, were not content to 
 leave the examination of the packages to the officers 
 of the Company, they should liave taken care to 
 employ a competent agent for that purpose. There 
 Avere shipping sheds on the Avharf alongside the ship 
 in which the packages on heing landed were placed, 
 and Avliere the goods remained in charge of the 
 agents of the ship, Avho sorted and afterwards deliv- 
 ered them to the Railway Company's serA^ants. 
 There is no reason for supposing that opportunity 
 would not haA'e heen afforded in these sheds for 
 inspecting and examining the packages. The prin- 
 cipal contention on helialf of the plaintiffs Avas, that 
 Avhichsoever was the place of removal referred to, 
 the condition should he confined to apparent damage. 
 
 Now, its language is plain, and Avithout any ambi- 
 • 13
 
 98 THROUGH BILL OF LADING. 
 
 guity. The first branch of it, " no damage, that 
 can be insured against will be paid for," although 
 limited to insurable damage, clearly applies to such 
 damage, -whether apparent or latent. The words of 
 the last branch are unlimited and universal, " any 
 claim whatever." It was not, indeed, denied that 
 these words would, in their natural sense, include 
 all damage, but it was said they should be construed 
 as the usual acknowledgment found in bills of lading, 
 " shipped in good condition" has been ; and confined 
 to external and patent damage. It is to be observ- 
 ed, however, that although the general understand- 
 ing may have been so to limit the words of this 
 acknowledgment, it is not an uncommon practice 
 to qualify them by such expressions as " weight, 
 value, and contents unknown." But in truth the 
 supposed analogy does not exist. This is a condi- 
 tion for the shipowners' benefit, and it may well be, 
 that stale claims for latent damage were those 
 against which he most desired to guard. 
 
 " A shipowner may choose to say, " I will not be 
 liable for any damage to an article of this kind, 
 unless a claim is made, so that it may be looked 
 into and checked l)y my agents before the goods 
 are removed from their control." And when a con- 
 dition to this effect is found in a bill of lading, 
 expressed in language, which, in its ordinary and 
 natural sense includes all damage, whether latent 
 or not, can the Courts undertake to say it is so 
 unreasonable that the parties could not have meant
 
 THROUOfl BILL OF LADING. 90 
 
 what they liave said ? No doubt this condition may 
 boar hardly on consignees, but so also may the very 
 large exceptions to tlu^ responsibility of the ship- 
 owner inserted in the body of this bill of lading. 
 Certainly, no reasons for narrowing the scope of the 
 condition can be gathered from the general tenor 
 of the instrument, which is manifestly framed 
 throughout with a view to exempt the shipowner 
 (as far as could be foreseen) from lial)ility for 
 damaijc. It may be that this has been done to an 
 unreasonable extent, but the plaintiffs are merchants 
 and men of business, and cannot be relieved from 
 an improvident contract, if it really be improvi- 
 dent."^ 
 
 In some through l)ills of lading, for instance that 
 of the Baltimore & Ohio Eail-road Company in 
 connection ^ntli The Lake Superior Transit Co., the 
 liability of each Company is expressly limited by 
 the clause : " The responsibility of each carrier 
 shall be limited to its own line." In other instances 
 the liability of the ship is made to cease at the port 
 of her discharge. Unless these or similar stipula- 
 tions are inserted in the bill of lading the contract 
 in the bill of lading will be treated as one contract 
 made with the company executing and delivering 
 \]u) same, and that company will be lial)le for any 
 loss occurring on the voyage not protected by any 
 of the conditions in the bill of lading. 
 
 AVhere goods are received by a railway company 
 
 ' L. R. 1 App. Gas. 318 ; -15 L. J. P. C. 62 ; 3 Asp. Mar. L. C. N. S. 173.
 
 100 THBOUGE BILL OF LADING. 
 
 without any protective conditions, to be delivered hy 
 them at a place on anotlier line, the receiving com- 
 pany are, as between themselves and the consignor, 
 prima facie, common carriers for hire thronghont 
 the wliole distance.^ This principle Avas recognised 
 by the Honse of Lords in the case of The Bristol 
 and Exeter Eaihvay v. Collins^ 'sphere a clock 
 was delivered to P. & Co,, agents at Worcester 
 for the G. W. E,., to be carried to Chester " via, 
 Stafford." The clock was conveyed over the line 
 of the G. W. E. from Worcester to Stafford, 
 and thence to Chester over the L. & N. W. E. 
 Line, the G. W. Pi^. having no line between 
 Stafford and Chester. The waggons of the G. W. E. 
 travelled the whole journey. Blackburn, J. told the 
 jury that if the defendants contracted to carry the 
 clock the whole way to Chester, they were liable 
 for the damage done ; but that if they contracted 
 to carry it a part of the way only, they would not 
 be lial)le, unless the damage was done during tliat 
 part of the journey. It was held, that there being 
 evidence of one contract with tlic G. W. E. to carry 
 the whole journey from Worcester to Chester, they 
 were, therefore, liable for any damage done to the 
 goods during the journey.^ 
 
 So long as the contracting company has any con- 
 trol over the goods which they have contracted to 
 
 * Muschamp v. Lancaster & Preston Junction Eail Co; 8. M. & W. 421; 
 10 L. J. Ex. 460 ; Scotthorn v. South Staffordshire Rail. Co., 22 L. J. Ex. 121. 
 
 =» 7 H. L. C. 194 ; 29 L. J. Ex. 41. 
 
 ^ Webber v. The Great Western Kail. Co., 4 IT, & C. 582 ; 34 L. J. Ex. 170 ; 
 12 L. T. 498 ; 13 W. R. 755.
 
 THROUGH BILL OF LADING. 101 
 
 carry thev Avill he liable for damage or loss not 
 protectod l)y any exceptions in tlie contract of 
 carriage, but sucli liability will cease as soon as the 
 goods pass out of the control of the company/ 
 
 In Doolan v. Midland llaihvay Company' contracts 
 ■were entered into for the carriage of cattle from 
 Dublin to St. Ives in Huntingdonshire in England, 
 on *' through tickets." The paper or ticket con- 
 tained, in substance, the following condition : " that 
 with respect to any animals, &c., booked through by 
 them or their agents, for conveyance partly by 
 railway and partly by sea, or partly by canal and 
 partly by sea, such animals, &c., will only be so 
 conveyed on the condition that the company shall 
 be exempt from any liability for any loss or damage 
 which may arise during the carriage of such animals, 
 Sec, by sea, from the act of God, &c., accidents from 
 machinery, &c., and all and every other damages 
 and accidents of the seas, rivers, and navigation 
 of whatever nature and kind soever, in the same 
 manner as if the company had signed and delivered 
 to the consignor a bill of lading containing sucli 
 condition. Nor will the company be responsible tor 
 loss of, or damage to, animals, &c., arising from 
 damages or accidents of the sea, or of steam navi- 
 gation, tiK^ act of God, &c., jettison, barratry, 
 collision, improper, careless, or unskilful navigation ; 
 accidents connected with machinery or boilers, or 
 anv default or neu'liiirence of the master or anv of 
 
 ' Fowles V. G. W. Rail. Co., 7 Ex. Rep. 699; 22 L. J. Ex. 7t). 
 > L. R. 2 App. Cas, 792,
 
 102 THROUGH BILL OF LADINQ, 
 
 the officers or crews of tlie company's vessels." 
 It was held hy the House of Lords, that the words 
 " master and crew of the company's vessels," in 
 this condition, applied to all such vessels as the 
 company should employ, and not merely to vessels 
 owned or Avorked hy the company itself ; and that 
 the condition was unreasonahle and void. 
 
 The freight, if paid in advance, is usually payable 
 for the whole journey, and should the goods he lost 
 on one of the stages, tlie shipper is not entitled to 
 a^jro rata return of the freight for other stages, as 
 if the consideration had failed. 
 
 Thus, where the plaintiffs shipped goods at Liver- 
 pool on hoard the defendant's ship, to he carried 
 and conveyed, as stated hy the hill of lading, " via 
 Colon (Aspinwall) and Panama to San Erancisco; 
 that is to say, hy arrangement between the West 
 India and Pacific Steamship Company (Limited) 
 the Panama Railway Company, and the Pacific 
 Mail Steamship Company, to he carried to Colon 
 (Aspinwall,) hy the packets of the said AYest India 
 and Pacific Steamship Company from Colon (Aspin- 
 wa,ll) to Panama, hy the Panama Railroad Com- 
 pany, and thence to the port of destination hy the 
 Pacific Mail Steamship Company, freight and 
 primage to he considered as earned, ship lost or not 
 lost;" the freight being HI. bs. per ton, payable in 
 Liverpool. The whole freight at the aforesaid rate 
 was paid to tlie defendants' agent at Liverpool, and 
 the bill oF lading was signed by him "for the service
 
 THROUGH BILL OF LADING. 108 
 
 from Lonclou to Colon (Aspimvall,)" and l)y tlif 
 agent of the two other Companies " for the service 
 from Colon (Aspimvall) to San Francisco." The 
 private arrangement entered into hetween the three 
 Companies for the division of the freight between 
 themselves Avas set forth in the case, to which was 
 added also a copy of the hand-book published by 
 t he defendants containing the rates of freight charged 
 for the carriage of goods from Liverpool to Colon 
 (As])inwall,) to Panama, and to San Francisco, but 
 not the charo-es for convevance from one to another 
 of the three last mentioned places. 
 
 The ship having sailed from Liverpool, was lost 
 w ith all her cargo, before reaching Colon (Aspin- 
 w all) and the defendants, after receiving notice of 
 the loss, paid over to the two other Companies their 
 proportion of the freight, Avhich had been paid by 
 the plaintiffs. The plaintiffs having brought an 
 action against the defendants for money had and 
 received to recover the proportion of freight so paid 
 over to the two other Companies, viz. : for the 
 carriage of the goods from Colon (Aspmwall) to 
 Panama, and from Panama to San Francisco : 
 
 It was held by the Court of Ai)peal that the bill 
 of lading formed one contract between the plaintitfs 
 and the defendants, for the conveyance of the 
 plaintiffs' goods from Liverpool to San Francisco, 
 i'or one entire consideration, viz. : the amount of 
 freight paid, and not several contracts between the 
 plaintiffs and each of the Companies; and there-
 
 104 THROUGH BILL OF LADING. 
 
 fore, as the consideration for Avliicli the freight Avas 
 jDaicl had not wholly failed, the plaintiffs could not 
 maintain the action against the defendants. 
 
 The judgment of Kelly, C. B. deals mth the 
 several considerations arising under this through 
 hill of ladini]^ so f ullv, that it is set'forth in exteiiso : 
 
 Kelly C. B. — The first question that arises in this 
 case is, Avhether the hill of lading ■which is before 
 us contains within it, and I say within it considered 
 only by itself, hut I may add in the alternative, or 
 taken together with what has been called the hand- 
 book, the document used on both sides in argument — 
 whether the bill of lading without, or taken together 
 with, the hand-book, contains one contract between 
 the plaintiffs and defendants, or three contracts : 
 one between the plaintiffs and defendants, another 
 between plaintiffs and the Panama Company, and 
 the third between the plaintiffs and the Pacific 
 Steam Company, taking their titles shortly. Let 
 us look at the instrument itself, and see whether it 
 is possible to entertain a doubt on this question as 
 to whether this is one single entire contract for one 
 single entire consideration, or whether it is sub- 
 divided intc three several and distinct contracts by 
 reason of certain ambiguous clauses and by reason 
 of the signatures of certain parties with words 
 immediately before them which might certainly be 
 calculated to throw a doubt on the subject. Now, 
 when we look to the contract it is in the ordinary 
 form of a bill of lading for the voyage, and an entire
 
 THROUGH BILL OF LADING. 105 
 
 \oyage, from Liverpool, via Colon and Panama, 
 but still from Liverpool to San Francisco, and there 
 w as one consideration, and one consideration only, 
 namely, the sum of 1,511/. 135. Id. for freight in 
 respect of the conveyance of goods upon that one 
 and entire voyage. Let us look at the language of 
 the instrument itself. In the first place it is " ship- 
 ped in good order and condition," by the plaintiffs, 
 on board the ship in question, " and bound for Colon 
 (Aspimvall,) having liberty to call at any port or 
 ports in any order, 766 packages of merchandise 
 being marked and numbered as in the margin." 
 Ilere comes the very essence and at the same time 
 the substance of the contract — " to be carried and 
 conveyed, via Colon (Aspinwall) and Panama to 
 San Prancisco." If it stopped there no question 
 could be suggested on the construction of this 
 instrument. It is a contract betAveen the plaintifi's 
 and the defendants for the convevance of these sjoods 
 from Liverpool, via Colon and Panama, to San 
 Francisco. AYe will see whether there is anvthini? 
 to qualify that contract or lead to the necessity of 
 sulxlividmg it into three several contracts between 
 the plaintiffs and various companies. It goes on, 
 " that is to say" the goods are to be conveyed from 
 Liverpool to San Francisco " by arrangement be- 
 tween the West India and Pacific Steamship Company 
 (Limited), the Panama Railway Company, and the 
 Pacific Mail Steamship Company, to bo carried to 
 
 Colon (Aspinwall) by the packets of the said West 
 14
 
 106 THROUGH BILL OF LADING. 
 
 India and Pacific'Steamsliip Company (Limited) from 
 Colon (Aspinwall) to Panama by tlie Panama Rail- 
 road Company, and thence to the port of destination 
 hy the Pacific Mail Steamship Company." Now, 
 that is really nothing more than a declaration 
 in this contract as to the different voyages, and 
 in -whose ships, or in whose carriages, tliese goods 
 are to he conveyed. It does not say, and there is 
 nothing to show that the tAVO other companies, that 
 is the Panama Pailroad Company, and the Pacific 
 Company themselves enter into any contract with 
 the plaintiffs or the plaintiffs with them ; but in 
 the details of the contract between the plaintiffs 
 and the defendants, the defendants engage, and the 
 contract shows it, that the mode in which it is to be 
 carried mto effect was through, or by means of, an 
 arrangement betAveen the defendants and these two 
 other companies, that the defendants were to carry 
 them to one point, the second company were to 
 carry them to another point, and the third company 
 was to carry to the final point of destination, San 
 Prancisco. It constitutes no contract between the 
 plaintiffs and either of the tAvo companies, but is 
 merely a declaration of the mode in Avhich the 
 contract bctAvecn the plaintiffs and the defendants 
 is to be performed. Then came the exception, the 
 act of God, &c., and then regarding the matter as 
 one single and undivided contract to ship the goods 
 in question from Liverpool to San Francisco via 
 Colon and Panama, and there to be delivered " unto
 
 THROUGH BILL OF LADING. 107 
 
 order, or liis or their assigns, freight having been 
 paid on shipment as per margin." Ilcre we liave a 
 contraci, thus far perfect and complete, to carry 
 from Liverpool to San Francisco, A'ia Colon and 
 Panama, certain other companies being mentioned 
 Avho are to convey the goods along certain portions 
 of that entire voyage or transit, and then the goods 
 are deliverable, under certain exceptions, mito the 
 plaintiff's order, " or to his or their assigns, 
 freight having been paid on shipment, as per mar- 
 gin." Now, it is to be observed that from beginning 
 to end of this instrument, and even if the instru- 
 ment be taken together with the handbook, there 
 is, throughout the whole of the two instruments, but 
 one consideration mentioned, and that is the pay- 
 ment of freight, which payment of freight takes 
 pkice as in the margin, and when we look to the 
 margin we see that the goods are specified, the 
 (piantity is mentioned, the rate 14^. 5s. Ocl. per ton, 
 and then one single sum of 1,511/. 13.9. Id. is 
 mentioned ; which freight, as paid according to 
 the. contract at the time, is the consideration, 
 and the sole consideration of the contract. Now 
 if the case rested there, there can be no doubt that 
 this is a contract between the plaintiffs and the 
 defendants alone, and that contract was performed 
 on the part of the plaintiffs when they paid the sum 
 of money, and the defendants are liable to no action 
 unless they are guilty of some breach of a contract, 
 expressed or implied, which they have entered into.
 
 108 THROUGH BILL OF LADING. 
 
 There are some AA'ords more before we come to those 
 parts on whicli the plaiiitifPs rely, " All responsi- 
 bility on the part of the above-mentioned companies 
 is to cease, on the happening of any of the above 
 excepted contingencies, or on the delivery of the 
 above-mentioned packages." I mil consider pre- 
 sently the effect of the word " companies," and how 
 far it can vary or qualify the contract, or lead to 
 the inference or presumption of a contract to which 
 those other companies are parties ; but in the mean 
 time the stipulation itself is that all responsibility 
 on the part of any of these companies, and therefore 
 of the defendants among them, is to cease upon the 
 happening of any of the above excepted contingen- 
 cies, one of these contingencies being the loss of the 
 ship on any part of the voyage ; so that if we take 
 these words into consideration, save as to the effect of 
 the word "companies," being in the plural number, 
 they substitute a further provision, the effect of 
 Avliich would be to relieve the defendants from all 
 responsibility whatever, upon the happening of one 
 of these contingencies, which has in fact happened. 
 The bill of lading goes on, *' and freight and primage 
 is to be considered as earned, ship lost or not." 
 Here again the freight on the Avhole voyage is 
 earned, because the freight on the whole voyage is 
 paid, whether the ship is lost or not lost; and it is only 
 when we come to the subsequent words in the bill 
 of lading that the argument in favour of the plain- 
 tiffs arises, or is said to arise. We must see then
 
 THROUGH BILL OF LADING, 109 
 
 whether there is any thing in the remainder of this 
 instrument Avliich qualifies the contract, or converts 
 it from one contract into tlu'ee contracts. The words 
 relied upon are these : " It is hereby expressly stipula- 
 ted and agreed that in case any claim shall arise 
 against the various companies, for any loss or 
 damage accruing while the goods or merchandise 
 described in the within bill of lading are on the 
 voyage, or prior to their delivery at San Prancisco, 
 such claim shall be preferred " at the one office in 
 the one event, and at the other office in the other : 
 and this, it is said, makes these other companies 
 parties to the contract. It may be ; and I am by 
 no means sure it was not intended that the effect 
 of the introduction of the names of these parties and 
 making them signing parties, at least to this bill of 
 lading should not be such, inasmuch as it turns out 
 that there was a sub-contract between the defen- 
 dants and these two other companies, that the other 
 two companies were to be employed and to have the 
 benefit of this sub-contraci, in relation to all the 
 through contracts which might be made by the 
 defendants with any shipper or shippers from this 
 country to any of the j^orts to which the other com- 
 panies might be transmitting goods. It may be 
 that there being such a sub-contract between the 
 two parties, these two other companies had been 
 acting at the instance of the defendai^ts, and that 
 for their security these two other companies have 
 become parties to the bill of lading by affixing their
 
 110 THROUGH BILL OF LADING. 
 
 signatures as signifying their assent to all the terms 
 which it contained, and by which they might he 
 affected in the principal contract entered into by 
 means of the bill of lading between the plaintiffs, 
 the shippers, and the defendants. For example, it 
 is part of the contract, as here expressly mentioned, 
 that not merely the goods are to be conveyed under 
 the bill of lading from Liverpool to San Prancisco, 
 but that they should bo conveyed by the Panama 
 Company throughout one part of the transit, and 
 by another, the Pacific C mpany throughout another 
 part of the transit ; and there are various stipula- 
 tions as to the mode in which the contract is to be 
 performed, not only as to the voyage from Liverpool 
 to Colon, but again from Colon, to Panama, and from 
 Panama to San Prancisco, and the signatures of these 
 parties may have been required at the instance 
 of the defendants, in order that they might signify 
 their assent to all the conditions of the principal 
 contract between themselves and the defendants. 
 AVhen we go further on we find " and in case such 
 claim, whatever it may be, shall not be preferred 
 within the time and at the place hereinbefore de- 
 signated, such loss or damage shall bo deemed to be 
 waived : " that is in reference to the other clause to 
 which I liave already alluded. Then there is a 
 provision, which is not material, as to all prices and 
 expenses, and then we come to what is the founda- 
 tion of the whole agreement on the part of the 
 plaintiffs — the testatum clause, the words which
 
 THROUGH BILL OF LADING. 1 1 1 
 
 precede the signatures of the parties or their agents, 
 and the signatures themselves. Noav, the testatum 
 clause is in this form^" In witness whereof, the 
 agent of the said ship and the agent for the Panama 
 llailroad Company and the Panama Steamship 
 Company " — this shows the inaccuracy with which 
 the printed form has been prepared — "hatli affirmed 
 to six bills of lading ;" and so forth ; and then 
 follow the words " Liverpool, this 11th day of 
 October 18G7. Por the service from Liverpool to 
 Colon (AspiuAvall.) Signed, R. Mogridge" — that 
 is the agent of the defendants — " for the service 
 from Colon (Aspinwall) to San Prancisco. Signed 
 per Chas. E. Hamilton, A. Gillies, agent for the 
 Panama llailroad Company and Panama Mail 
 Steamship Company." It is said that this sul)- 
 divides the contract into three contracts, and makes 
 the first to be a contract between the plaintiffs and 
 defendants for the conveyance of the goods delivered 
 to Colon, and no further ; another with the Panama 
 Company for the carriage of the goods to Panama^ 
 and a third with the Pacific Company for the con- 
 veyance of the goods from 3 'anama to San Prancisco. 
 The question is whether rliose words, introduced 
 immediately before the signature, and taken in 
 connection witb tlie testatum clause, have really the 
 effect contended for — of dividing the contract into 
 three several and distinct contracts. Now, we arc 
 all of opinion that they have not. I may say that 
 it appears to me that the whole of the testatum
 
 112 THROUGH BILL OF LADING. 
 
 clause, the introductory words before the signatures, 
 and the signatures themselves, must be read of 
 necessity, reddendo suigida singidls. We have 
 the signature of the agent of the defendants to the 
 contract, which is a signature to a complete contract, 
 which I have alrea-dy adverted to, between the 
 plaintiffs and defendants in consideration of this one 
 entire sum for freight for the conveyance of the 
 goods from Liverpool to San Prancisco. As to the 
 signatures of the other two persons, whether they 
 would or not effect a contract between the defendant 
 company and these two other companies respectively, 
 or whether they merely amount to an assent on the 
 part of the other two companies to the contract, as 
 far as it would affect them, which had been entered 
 into between the plaintiffs and defendants, it is not 
 necessary for us to say ; but they must be taken to 
 apply only to those portions of the contract by 
 which they might be affected, and they constitute 
 no contract whatever betAveen the plaintiffs and 
 defendants. The first reason for this construction 
 of the contract, and for this effect of the signatures 
 is this, that if we are to take those words introduc- 
 tory to the signature by the agent of the defendants 
 for the conveyance from Liverpool to Colon, as 
 limiting the contracts as between the plaintiffs and 
 defendants to that part of the entire transit or 
 voyage, this would be directly repugnant and con- 
 tradictory to and inconsistent with the whole of the 
 instrument preceding, in this way. If there were
 
 THROUGH BILL OF LADING. 113 
 
 no more, the contract, as appcarini^ upon the face of 
 the instrument which precedes this signature and 
 those introductory Avords, is a contract in express 
 and unambiguous terms for the conveyance of goods 
 upon tlie entire transit or voyage from Liverpool to 
 San Prancisco, Avhilst tlie construction proposed 
 Avould change it into a totally different contract, a 
 contract, namely, for tlie conveyance of goods from 
 Liverpool to Colon only. But more — wc find Avhen 
 we look to the contract, as it appears on the bill of 
 lading, that it is a contract to convey the goods 
 from one place to another upon a single considera- 
 tion, that consideration being the 2)ayment of a 
 single sum of money of 1,514^. 13s. Id. ; and that 
 the consequence of giving the effect contended for 
 to these words, and thus limiting the contract to a 
 contract for the conveyance of the goods from 
 Liverpool to Colon only -would be to make this 
 consideration of 1,511Z. 13s. Id. ; the consideration 
 for the conveyance of the goods merely from Liver- 
 pool to Colon. If possible, then we must read the 
 contract so as to give some effect to every portion 
 of it, and give a meaning to all the words we find 
 in it, but at the same time so as to avoid any repug- 
 nancy or contradiction which would defeat the 
 entirety of a clear and unambiguous contract, which 
 it seems to me precedes the introduction of these 
 Avords. Then we look to the two remaining signa- 
 tures, or the signature of the agent for the two 
 
 remaining parties. It is for service from Colon to 
 15
 
 114 THROUGH BILL OF LADING. 
 
 San Francisco, and the signature being hj one person 
 as the agent of the two Companies, the Panama 
 Company and the Pacific Steam Company. Now, 
 in order to see whether any greater effect can he 
 given to these words than that they merely assent 
 l^ossibly hy means of a contract which would he 
 binding as between the defendants and either or 
 both of the two Companies, or possibly only by way 
 of assent, or Avhether they signify any more than 
 an assent to so much of the principal contract as 
 affects them in respect of their sub -contract with 
 the defendant, let us consider what would be the 
 effect of any one of these additions to the second 
 or the third contract which is contended for on the 
 part of the plaintiffs. In the first place if this be 
 a contract for the conveyance of the goods in ques- 
 tion from Colon to Panama, the first question that 
 arises, looking at the whole of this instrument, and 
 also at the hand-book, is, Avliat was to be the rate 
 of freight and the remuneration to the Panama 
 Company for the conveyance of these goods ? I 
 am quite at a loss to see any materials or any means 
 throughout the whole of the case now before us, 
 or any document by a\ hich we can arrive at any 
 specific sum whatever as the rate of freight pay- 
 able for the conveyance of these goods from Colon 
 to Panama, or from Panama to San Erancisco. It 
 has been contended that, looking at tlie bill of 
 lading together with the hand-book, this may be 
 readily ascertained. It clearly is not in the bill of
 
 THROUGH BILL OF LADING. IIJ 
 
 Jadini^ if you look at it alone, and if under any 
 ]('£;al necessity Ave are to construe tlie contract and 
 hill of lading as containing other contracts as con- 
 tended for, we look in vain for anything which 
 "\^'ould \)Q even of the sliglitest assistance or afford the 
 least thread towards ascertaining what must he the 
 freight from Colon to Panama, or what A\ould he 
 the freight from Panama to San Prancisco. But 
 then it is contended that inasmuch as this hook 
 called a hand-hook has heen issued to the public, 
 it must he presumed to have reached the eyes of 
 the j)laintift's, and therefore may be taken to be 
 introduced and form part of the contract in this 
 case. I shall not stop to consider whether that is 
 so or not, but if it were necessary to give any 
 opinion upon it, I must say that it is more than 
 doubtful, particularly when you come to look at 
 the contents of this book ; but assuming that it is 
 so, the bill of lading contains a contract that the 
 conveyance of the goods throughout the whole 
 transit from Liverpool to Panama is to be in con- 
 sideration of liZ. 5s. per ton or the one entire sum 
 of 1,51:^. 13s. Id. If, therefore, we are to sub- 
 divide this into three contracts, what portion of the 
 li^. 5s. is to be found provided for in the hand- 
 book to wliich reference has been made ? AVhen 
 we come to look at this hand-book, we do indeed 
 find a rate of freight for the conveyance of a ton 
 weight of certain goods from Liverpool to Colon, 
 and another for the conveyance of goods from Liver-
 
 116 THROUGH BILL OF LADING. 
 
 pool to San Francisco ; but we look in vain for any- 
 specific rate of freight, or for any specific sum of 
 money at all, payable for the conveyance of goods 
 either from Colon to Panama, or from Panama to 
 San Prancisco. If, therefore, we take these two 
 incidents tocrether as constitutinsj one sins^le con- 
 tract, I venture to say that it is entirely impracti- 
 cable and impossible for any one on earth to say 
 what is to be found either in the bill of lading or 
 in the hand-ljook that is to indicate and determine 
 how much is to be paid per ton for the fnught of 
 these goods either from Colon to Panama or from 
 Panama to San Prancisco. We are called upon to 
 suppose that these parties have entered into these 
 three contracts, that one of them is a sub-contract 
 with the Panama Company for the conveyance of 
 goods from Colon to Panama, and if we suj^pose 
 that to be the effect of these two instruments taken 
 together, then there is no consideration stated. 
 "When we come to consider that this action is brousjlit 
 to recover what is the supposed rate of freight 
 between Panama and San Prancisco, and see that 
 it is an action for money had and received, and that 
 it is necessary the plaintiffs should make out a case 
 for some specific sum of money which they seek 
 to recover, I venture to say it is utterly impossible 
 upon the materials before us, or by means of any 
 inquiry or investigation which the case pre<;ents, 
 to say what the particular sum may be which is 
 payable in respect of the transit from Colon to
 
 THROUGH BILL OF LADING. 117 
 
 Panama, or from Panama to San Prancisco. I 
 Avould add this, that Avlicn avc look at what is before 
 us upon tlie case, Avhcn avo look to the sub-contract 
 ■which actually exists between the defendants and 
 the two other Companies respectively, thoui^h 
 governing the arrangements between the parties 
 many years before the contract in question was 
 made between the plaintiffs and defendants, we find 
 there that a different rate is agreed upon ; we find 
 there that it is a toll or rate according to schedules, 
 and Avhen we come to look into the case we find a 
 statement which is made in pursuance of the con- 
 tract, which it appears occupied several pages in 
 the appendix, and we find the rate of freight pay- 
 able among themselves is from. Liverpool to Colon 
 61. 5s.; from Colon to Panama IZ.; and frum Panama 
 to San Prancisco 7/. ; making altogether about 
 11/. 5s. Now when we look into the hand-book, 
 we find that these sums are altogether different, 
 and that upon this principle the rates given by 
 the book would be 3/. lis. Gd. from Liverpool to 
 Colon, 2L 13s. Cc/. from Colon to Panama, and 8/. 
 from Panama to San Prancisco. Some argument 
 has been made upon the effect of the |irimage not 
 being payable unless the goods were delivered at 
 (I think) Colon, but that is not the legal effect of 
 the whole of the hand-book taken together. The 
 effect of the hand-book was only to show what were 
 the through tolls and the through rates only from 
 Liverpool, either to Colon, Panama, San Prancisco,
 
 118 TEBOUGU BILL OF LADINO. 
 
 and no distinction is made, or is capable of being 
 made hy any calculation. The consequence is tliis, 
 that whereas the plaintiffs were confined to recover- 
 ing the specific sums of money which they allege 
 to be due, when that specific sum of money comes 
 to be inquired into, it is found incapable of being 
 ascertained ; therefore if we could imagine that 
 this contract was one between the three parties, 
 the plaintiff having paid the whole of this money 
 strictly according to the contract as appearing upon 
 the bill of lading, and the money having been 
 received under the contract, and in conformity with 
 the contract 1)y the bill of lading, it is to be taken 
 at once to have been received by these two Com- 
 panies as well as the defendants, if indeed these two 
 Companies are supposed to be parties to the con- 
 tract. If that be so, and the money is sought to 
 be recovered, the receipt of the agent, or whoever 
 it may be, and I do not care whether he is tlic 
 ageixt, stakeholder, or any body else, the receipt of 
 the money under tlie contract expressly set forth 
 in the bill of lading by any person or persons on 
 behalf of the other two Companies, if we are to 
 suppose that they were parties to the contract, is a 
 receipt by them, and if by reason of anything, either 
 the loss of the goods, the failure of consideration, 
 or any other circumstance which might be the 
 foundation of an action, the plaintiffs seek to 
 recover that money back again, they must seek to 
 recover it from tliose who, under the contract and
 
 THROUan BILL OF LADING. 119 
 
 by the act of payment and receipt, stated in the 
 bill of lading itself, are the parties who must he 
 taken in contemplation of law to have received it. 
 We arc, therefore, clearly of opinion that there is 
 hut one contract hetween the phuntift's and defen- 
 dants upon this bill of lading, that there was no 
 contract in the bill of lading, whether considered 
 separately or taken together Avith the hand-book^ 
 Ijctween the plaintiffs and either of the other two 
 Companies, but that if there was any such contract, 
 and if any money at all could be recovered by the 
 l)laintin's against either one or the other of these 
 three Companies, first that it is incapable of being 
 ascertained by any facts which are now before us ; 
 and secondly, that if it could be ascertained the 
 action should have hecn brought against the other 
 Companies Avho are supposed to have been parties 
 to the contract, and to have received the money 
 under the contract, and should not have been 
 brought against the present defendants. Under 
 these circumstances I am of opinion that the defen- 
 dants are entitled to the judgment of the Court, 
 and consequently that the judgment of the Court 
 below must be reversed.^ 
 
 In Baxendale v. Great Eastern Ptailway Com- 
 pany,"^ a case of pictures had been shipped at 
 llotterdam under a bill of lading, l)y which they 
 were to Ije delivered " in the like order and condi- 
 tion at the Port of London via Harwich." At 
 
 ' Grecvos v. The West India & Pueilic Steamship Co, Ltd., 3 Asp. ilar. L. 
 C. -120. 
 
 - L. K. I Q. B.2-i4.
 
 120 THROUGH BILL OF LADING. 
 
 Harwicli they were forwarded hy train to London, 
 l)iit were lost on the way. The defendants claimed 
 exemption from liability under Section I. of the 
 Carrier's Act, 1830, on the ground that the value of 
 the case exceeded 101. ; and that no declaration o£ 
 its value had been made. It was held^ by the Ex- 
 chequer Chamber, that notwithstanding the bill of 
 lading the goods were carried by the defendants 
 from Harwich to London as common carriers, with 
 the liabilities of common carriers, except those 
 excepted in the bill of lading ; and that they Avero 
 entitled to the benefit of the Carrier's Act. Also 
 that sect. 6 of that Act, by which it is not to be 
 construed to " annul or in anywise affect any special 
 contract," only applies to special contracts which 
 are inconsistent with Sect. I. 
 
 To the objection that the bill of lading clearly 
 related to that part of the transit which was to be by 
 railway, and that it constituted a contract in Avhich 
 the defendant's capacity of common carriers w^as not 
 an element, Kelly, C. B., delivering the judgment 
 of the Court, said, " It is an answer to that objection 
 to say the contract amounted only to this : " We 
 (the plaintiffs) deliver these goods to you (the defen- 
 dants) to be conveyed from Harwich to London 
 in your capacity of common carriers ; but w^hereas 
 you would, as such carriers, be liable to loss arising 
 from railway accidents, "\\'e ^vill specially exempt 
 you from that liability." It is merely a particular 
 exception engrafted ou the contract, which, as to
 
 THROUGH BILL OF LADING. 121 
 
 all else, is a contract with the defendants in their 
 character or capacity of common carriers. Under 
 these circumstances, it appears to us all that the 
 true effect of this contract, by means of the bill of 
 ladini^, is that tliese goods were delivered, sofa?" as 
 relates to the couceunnce of them from Hanoich to 
 London, to the defendants in their cluiracter of 
 common carriers, and they "were to liave all the 
 lial)ilities of common carriers, except only those 
 which are excepted in the hill of lading ; and they 
 are also entitled, as common carriers, to the protec- 
 tion from liability which was conferred upon them 
 by the Act of Parliament.^ 
 
 A carrier is protected by the provisions of the 
 Carriers' Act, s. 1.," not only from liability for the 
 loss, whether temporary or permanent, of undeclared 
 goods, but also from liability for the consequences 
 resulting from such a loss, and consequently is not 
 liable in damages for the detention of undeclared 
 goods, where such detention is the result of a loss in 
 respect of which he is protected by the Carriers' Act. 
 
 Thus, where the plaintiff delivered to the defen- 
 dants, carriers for hire from London to Rome, a 
 trunk to be sent from London to Liverpool, and 
 thence by ship to Italy. The trunk c n'ained 
 wearing apparel, consisting of silk dresses and other 
 articles within the Carriers' Act, exceeding £10 ; 
 but lio declaration of their value Avas made. Owingj 
 to the negligence of the defendants the trunk was 
 
 ' L. R. 10 Ex. 33 ; 4ri L. J. Ex. 20. 
 
 2 I Wm. IV. c. 68. 
 IG
 
 122 THROUGH BILL OF LADING. 
 
 seut to the Victoria Docks in London, and thence 
 shij^ped to jS'ew York. It -was eventually recover- 
 ed, and after considerable delay delivered to the 
 plaintiff in Eome. Some of the contents were 
 injured owing to the Custom House officer in New 
 York unpacking and negligently repacking the 
 trunk. The plaintiff having claimed for the loss of 
 the trunk and injury to its contents, and also for 
 the repurchase of other articles in Kome at enhanced 
 prices, it was held, by the Court of appeal — first, 
 that the trunk was lost within the meaning of the 
 Carriers' Act, and that the defendants Avere pro- 
 tected by the provisions of that Act for the loss 
 and injury to its contents notwithstanding that 
 the loss was temporary ; secondly, that the 
 plaintiff was not entitled to recover, as conse- 
 quential damages for non-delivery of the un- 
 declared articles within due time, the cost of 
 the repurchase of other articles at Ptome at 
 enhanced i)i'ices, inasmuch as such non-delivery 
 was the result of a loss in respect of which the 
 defendants were protected by the Carriers' Act.^ 
 
 In 1878, the High Court of Bombay held that the 
 effect of the Indian Contract Act, TX. of 1872, was 
 to relieve common carriers from the liability of 
 insurers answerable for the goods intrusted to them 
 *' at all events," except in the case of loss or damage 
 by the ' act of God,' or ' the Queen's enemies,' and to 
 make them responsible only for that amount of 
 
 i Jlillen 1-. Brasch & Co. 52 L. J. Q. B. 127.
 
 THROmiT BTLL OF LADING. 128 
 
 care which the Act requires of all bailees alike, iii. 
 tlic absence of special contract.^ In 1883 the 
 same point was brought before the High Court 
 of Calcutta, which came to the conclusion that 
 the liability of common carriers Avas not affected 
 by the Act of 1872.- This conflict of judicial 
 opinion in India was settled by the decision of the 
 Privy Council in 1891, in the case of the Irra- 
 waddy Elotilla Company v. Bugwandas,^ ^Aliere 
 it was held, that the duties and liabilities of a 
 common carrier are governed in India by the prin- 
 ciples of tlie Englisli common law on that subject. 
 His responsibility to the owner does not originate 
 in contract, but is cast upon him by reason of his 
 exercising this public emj)loyment for reward. 
 His liability as an insurer is an incident of the 
 contract between him and the owner not inconsis- 
 tent with the provisions of the Contract Act ; and 
 tlie law of carriers, partly written and partly un- 
 written, remained as before that Act. 
 
 The IndianRail ways Acts of 1879andl890 reduced 
 tlie responsibility of carriers by railway to that of 
 bailees under the Contract /Vet, but this docs not 
 affect the construction of the law relating to common 
 carriers and the Act of 18G5. 
 
 Notwithstanding some general expressions in the 
 chapter on bailments, a common carrier's responsi- 
 bility is not within the Contract Act 1872. 
 
 > KuvGiji Tiilsidas. v. G. I. P. Railway Co., I. L. R. 3 Bom. 109. 
 " Moothora Kant Shaw v. Indian General Steam Navigation Co., I. L. W. 
 10 Cal. 166. 
 
 ■' L. R. 18 Ind. App. 121 ; T. L. R. 18 Cal. 620.
 
 124 ENGLISH CARRIERS' ACT. 
 
 I Wm. IY., Cap. LXYIII. 
 
 An Act for tlie more et^^ctual Protection of Mail Contractors, 
 Stage Coach Proprietors, and other common Carriers for hire, 
 against the Loss of or Injiiry to Parcels or Packages delivered 
 to them for Conveyance or Custody, the Yalue and Contents 
 of which shall not be declared to them by the Owners thereof. 
 
 By this Act. 
 
 After noticing that by reason of the frequent practice of 
 bankers and others of sending by the public mails, stage coaches, 
 waggons, vans, and other public conveyances by land for hire, 
 parcels and packages containing money, bills, notes, Jewellery, 
 and other articles of great value in small compass, much valuable 
 property is rendered liable to depredation, and the responsibility 
 of mail contractors, stage coach proprietors, and common carriers 
 for hire is greatly increased : and that thiwigh the frequent 
 omission by persons sending such parcels and packages to notify 
 the value and nature of the contents thereof, so as to enable such 
 mail contractors, stage coach proprietors, and other common 
 carriers, by due diligence, to protect themselves against losses 
 arising from their legal responsibility, and the difficulty of fixing 
 parties with knowledge of notices published by such mail con- 
 tractors, stage coach proprietors, and other common carriers, with 
 the intent to limit such responsibility, they have become exposed 
 to great and unavoidable risks, and have thereby sustained heavy 
 
 It is Enacted, 
 
 I.— That from and after the passing of this Act no mail con- 
 tractor, stage coach proprietor, or other common carrier, by land 
 for hire shall be liable for the loss of or injury to any article or 
 articles or property of the descriptions following ; (that is to say,) 
 Gold or Silver Coin of this Realm or of any Foreign State, or any 
 Gold or Silver in a manufactured or unmanufactured state, or any 
 Precious Stones, Jewellery, Watches, Clocks, or Time-pieces of any 
 description, Trinkets, Bills, Notes of the Governor and Company 
 of the Banks of England, Scotland, and Ireland respectively, or of 
 any other Bank in Great Bi-itain or Ireland, Orders, Notes, or 
 Securities for Payment of Money, English or Foreign Stamps,
 
 ENGLISH CAFBIERS' ACT. 126 
 
 Maps, Wvitinrfs, Title Deeds, Paintings, Engravings, Pictures, 
 Gold or Silver Plate or plated Articles, Glass, China, Sillrs in 
 a manufactured or unmanufactured state, and whether wi-ought up 
 or not wrouo-ht up with other materials, Furs, or Lace, or anj of 
 them, contained in any parcel or package which shall have been 
 delivered, either to be carried for hire or to accompany the person of 
 any passenger in any mail or stage coach or other public conveyance, 
 when the value of such article or articles or property aforesaid 
 contained in such parcel or package shall exceed the sum of 10/.; 
 unless at the time of the delivery thereof at the office, warehouse, 
 or receiving house of such mail contractor, stage coach proprietor, 
 or other common carrier, or to his, her, or their book-keeper, coach- 
 man, or other servant, for the purpose of being carried orof accom- 
 panying the person of any passenger as aforesaid, the value and 
 nature of such article or articles or property shall have been declar- 
 ed by the person or persons sending or delivering the same, and 
 such increased charge as hereinafter mentioned, or an engagement 
 to pay the same, be accepted by the person receiving such parcel 
 or package. 
 
 II. — That when any parcel or package containing any of the 
 articles above specified shall be so delivered, and its value and 
 contents declared as aforesaid, and such value shall exceed 10?.; 
 it shall be lawful for such mail contractors, stage coach proprietors, 
 and other common carriers to demand and receive an increased 
 rate of charge, to be notified by some notice affixed in legible 
 character in some public and conspicuous part of the office, ware- 
 house, or other receiving house where such parcels or packages are 
 received by them, for the purpose of conveyance, stating the 
 increased rates of charge required to be paid over and above the 
 ordinary rate of carriage as a compensation for the greater risk 
 and care to be taken for the safe conveyance of such valuable 
 articles; and all persons sending or delivering parcels or packages 
 containing such valuable articles as aforesaid at such office shall 
 he bound by such notice, without further proof of the same having 
 come to their knowledge. 
 
 III. — Provided, That when the value shall have been so declared, 
 and the increased rate of charge paid, or an engagement to pay the 
 same shall have been accepted as hereinbefore mentioned, the 
 person receiving such increased rate of charge or accepting such 
 agreement, shall, if thereto required, sign a receipt for the package 
 or parcel, acknowledging the same to have been insured, which 
 receipt shall not be liable to any stamp duty ; and if such receipt
 
 126 ENGLISH CARBTEBS' ACT. 
 
 shall not be given when required, or sneh notice as aforesaid shall 
 not have been affixed, the mail contractor, stage coach proprietor, 
 or other common carrier as aforesaid shall not have or be entitled 
 to any benefit or advantage under this Act, but shall be liable and 
 responsible as at the common law, and be liable to refund the 
 increased rate of charge. 
 
 IV. — Provided, that from and after the First day of Septemher 
 now next ensuing no public notice or declaration heretofore made 
 or hereafter to be made shall be deemed or construed to limit or in 
 any wise affect the liability at common law of any such mail 
 contractors, stage coach j)roprietors, or other public common 
 carriers as aforesaid, for or in respect of any articles or goods 
 to be carried and conveyed by them ; but that all and every such 
 mail contractors, stage coach proprietors, and other common 
 carriers as aforesaid shall from and after the said 1st of Sej^tember 
 be liable, as at the common law, to answer for the loss of [or] any 
 injury to any articles and goods in resjiect whereof they may not be 
 entitled to the benefit of this Act, any public notice or declai-ation 
 by them made and given contrary thereto, or in anywise limiting 
 such liability notwithstanding. 
 
 V. — That for the purposes of this Act every office, warehouse, or 
 I'eceiving house which shall be used or appointed by any mail 
 contractor or stage coach proprietor or other such common carrier 
 as aforesaid for the receiving of parcels to be conveyed as afore- 
 said, shall be deemed and taken to be the receiving house, Avare- 
 house, or office of such mail contractor, stage coach proprietor or 
 other common carrier ; and that any one or more of such mail 
 contractors, stage coach proprietors, or common carrier shall be 
 liable to be sued by his, her or their name or names only ; and that 
 no action or suit commenced to recover damages for loss or injury 
 to any parcel, package, or person, shall abate for the want of 
 joining any co-proprietor or co-partner in such mail, stage coach, 
 or other puV^lic conveyance by land for hire as aforesaid. 
 
 VI. — Provided, that nothing in this Act contained shall extend 
 to annul or in anywise affect any special contract between such 
 mail contractor, stage coach proprietor, or common carrier, and any 
 other parties, for the conveyance of goods and merchandizes.
 
 ENGLISH CARRIERS' ACT. 127 
 
 VII- — Provided, that whore any parcel or jjackage shall have been 
 delivered at any such office, and the value and contents declared as 
 aforesaid, and the increased rate of charges been paid and such 
 parcels or packages shall have been lost or damaged, the party 
 entitled to recover damages in respect of such loss or damage shall 
 also l^e entitled to recover back such increased charges so paid as 
 aforesaid, in addition to the value of such parcel or package. 
 
 VIII. — Provided, that nothing in this Act shall be deemed to 
 protect any mail contractor, stage coach proprietor, or other common 
 carrier for hire from liability to answer for loss or iujiu-y to any 
 goods or articles whatsoever arising from the felonious acts of any 
 coachman, guard, book-keeper, porter, or other servant, in his or 
 their employ, nor to protect any such coachman, guard, book-keeper 
 or other servant from liability for any loss or injury occasioned by 
 his or their own personal neglect or misconduct. 
 
 IX. — Provided, that such mail contractors, stage coach proprie- 
 tors, or other common carriers for hire shall not be concluded as to 
 the value of any such parcel or package by the value so declared as 
 aforesaid, but that he or they shall in all cases be entitled to re- 
 t^uire, from the party suing in respect of any loss or injury, proof 
 of the actual value of the contents by the ordinary legal evidence, 
 ;uid that the mail contractors, stage coach proprietors, or other 
 common carriers as aforesaid, shall be liable to such damages only 
 as shall be so proved as aforesaid, not exceeding the declared value, 
 together with the increased charges as before mentioned. 
 
 X. — That in all actions to be brought against any such mail 
 contractor, stage coach proprietor, or other common carrier as 
 aforesaid, for the loss of or injury to any goods delivered to be 
 carried, whether the value of such goods shall have been declared 
 or not, it shall be lawful for the defendant or defendants to pay 
 money into Court in the same manner and with the same effect as 
 money may be paid into Court in any other action.
 
 128 
 
 INDIAN CARRIERS' ACT. 
 
 Preamble. 
 
 Short title. 
 
 Interpretation 
 clause. 
 
 " Common 
 carrier." 
 
 "Person." 
 
 Number. 
 
 Carriers not to 
 be liable for _ 
 loss of certain 
 goods above 
 100 Es. in 
 value, unless 
 delivered as 
 such. 
 
 For carrying 
 such property, 
 payment may 
 be required at 
 rates fixed by 
 carrier. 
 
 Proviso. 
 
 ACT No. III. OF 1866. 
 
 OF THE LEGISLATIVE COUNCIL OF INDIA. 
 
 Whereas it is expedient not only to enable Common Carriers 
 to limit tlieir liability for loss of or damage to, property delivered 
 to tliem to be carried, but also to declare tlieir liability for loss of, 
 or damage to, such property occasioned by the negligence or 
 criminal acts of themselves, their servants or' agents ; It is enacted 
 as follows : — 
 
 I.— This Act may be cited as " The Carriers' Act, 1865." 
 
 II.— In this Act, unless there be something repugnant in the 
 subject or context — 
 
 " Common Carrier" denotes a person, other than the Government, 
 engaged in the business of transporting for hire property from 
 place to place, by land or inland navigation, for all persons indis- 
 criminately. 
 
 " Person" includes any association or body of persons, whether 
 incorporated or not. 
 
 Words in the singular number include the plural, and words in 
 the plural include the singular. 
 
 III. — No CommonCarrier shall be liable for the loss of, or damage 
 to, property delivered to him to be carried, exceeding in value one 
 hundred Rupees and of the description contained in the Schedule 
 to this Act, unless the person delivering such property to be 
 carried, or some jierson duly authorized in that behalf, shall have 
 expressly declared to such Carrier or his agent the value and 
 description thereof. 
 
 IV. — Every such Carrier may require payment for the risk 
 undertaken in carrying property exceeding in value one hundred 
 Rupees and of the description aforesaid, at such rate of charge as 
 he may fix : Provided that, to entitle such Carrier to payment 
 at a rate higher than his ordinary rate of charge, he shall have 
 caused to be exhibited in the place where he carries on the business 
 of receiving property to be carried, notice of the higher rate of 
 charge required, printed or written in English and in the vernac- 
 ular language of the coxintry Avherein he carries on such business. 
 
 V^)
 
 INDIAN CARRIERS' ACT. 
 
 129 
 
 V. — In case of the loss of, or damage to, property exceeding in 
 value one hundred Rupees and of the description aforesaid, delivered 
 to such carrier to be carried, when the value and description thereof 
 shall have been declared, and payment shall have been requii'ed in 
 manner provided for by this Act, the person entitled to recover in 
 respect of such loss or damage shall also be entitled to recover any 
 money actually paid to such carrier in consideration of such risk as 
 aforesaid. 
 
 VI. — The liability of any Common Carrier for the loss of or dam- 
 age to any property delivered to him to be carried, not being of the 
 desci'iption contained in the Schedule to this Act, shall not be deemed 
 to be limited or affected by any public notice ; but any such carrier, 
 not being the owner of a railroad or tramroad constructed under 
 the provisions of Act XXII of 18G3, (to provide for taking land 
 for works of public utility to be constructed by private persons 
 or companies, and for regulating the construction and use of works 
 on land so taken) may, by special contract, signed by the owner 
 of such property so delivered as last aforesaid or by some person 
 duly aiithorized in that behalf by such owner, limit his liability in 
 respect of the same. 
 
 VII. — The liability of the owner of any railroad or tramroad 
 constructed under the provisions of the said Act XXII of 1863, 
 for the loss of, or damage to, any property delivered to him to be 
 carried, not being of the description contained in the Schedule 
 to this Act. shall not be deemed to be limited or affected by any 
 special contract, but the owner of such railroad or tram road shall 
 be liable for the loss of or dam ige to property delivered to him to 
 be carried only when such loss or damage shall have been cavised 
 by negligence or a criminal act on his part or on that of his agents 
 or servants. 
 
 Note — T/ii'.s' section so far as it applies to Bailioays in India has 
 been repealed by Act IX. of 1890, 8ch. I. 
 
 VIII. — Notwithstanding anything hereinbefore contained, every 
 Common Carrier shall be.liable to the owner for loss of or damage to 
 any property delivered to such Carrier to be carried where such loss 
 or damage shall have arisen from the negligence or criminal act of 
 the Carrier or any of his agents or servants. 
 
 IX. — In any suit brought against a Common Carrier for the 
 loss, damage, or non-delivery of goods entrusted to him for carriage, 
 it shall not be necessary for the plaintiff to prove that such loss, 
 damage, or non-delivery was owing to the negligence or ci'iminal act 
 of the Carrier, his servants or agents. 
 
 X.—Repealed by Act IX. of 1890. 
 
 The person 
 entitled to 
 recover in res- 
 pect of property 
 lostor damaged 
 may also 
 recover money 
 paid for its 
 farria^e. 
 
 In respect of 
 what property 
 liability of 
 Cirrier not 
 limited or 
 affected by 
 public notice. 
 
 Liability of 
 owner of 
 railr ad or 
 tramroad 
 constructed 
 nnder Act 
 XXII. orl863, 
 not limited by 
 special 
 contract. 
 
 In what case 
 owner of rail- 
 road or tram 
 road answer- 
 able for loss or 
 damage. 
 
 Common 
 carrier liable 
 for loss or 
 damage caused 
 by neglect or 
 fraud of 
 himself or his 
 agent. 
 
 Plaintiffs, in 
 suits against ' 
 common car- ' 
 riers, for loss, 
 damage, or 
 non-delivery, 
 not required to 
 prove negli- 
 gence or 
 criminal act.
 
 180 INDIAN CARRIERS' ACT. 
 
 SCHEDULE. 
 
 Gold and Silver Coin. Gold and Silver in a mannfactured or un- 
 manufactured state. Precious Stones and Pearls. Jewellery. Time 
 Pieces of any description. Trinkets. Bills and Hundis. Currency 
 Notes of the Government of India, or Notes of any Banks, or Secu- 
 rities for Payment of Money, English or Foreign. Stamps and 
 Stamped Paper. Maps, Prints, and Works of Art. Writings. Title 
 Deeds. Gold or Silver Plate or Plated Articles. Glass. China. Silk 
 in a manufactured or unmanufactured state, and whether wrought 
 up or not wrought up with other materials. Shawls and Lace. 
 Cloths and tissues embroidered with the precious metals or of 
 which such metals form part. Articles of Ivory, Ebony, or Sandal, 
 wood.
 
 131 
 
 PART III. 
 
 THE LEGAL EFFECT OF THE SEVERAL CLAUSES AND 
 STIPULATIONS IN THE BILL OF LADING. 
 
 The great impetus given to both export and import introduction, 
 trade within the last few years, not only by the 
 direct and less circuitous route via, the Suez Canal, 
 but by the daily increasing facilities with which 
 commodities of every nature and description are 
 transported from port to port, by the employment of 
 steam-ships in the place of the old sailing vessels 
 used in past years, has been attended with risks 
 and dangers to the goods so conveyed which were 
 unknoA\'n before. 
 
 The improved methods of loading and discharging 
 the cargo, the necessarily short stay of the vessel in 
 port, and the prosecution of a voyage made heedless 
 of wind or even of weather, have all combined to 
 render cargoes exposed to more than ordinary perils 
 in transit, and consequently we find that the inge- 
 nuity and forethought of the shipowner have been 
 exercised to the utmost in endeavouring to protect 
 himself from liabiUty or responsibility, by the 
 insertion in the bill of lading of conditions and
 
 132 INTROnVCTION. 
 
 exceptions from almost every possible, or probable, 
 loss or damage that might arise. And owing to the 
 ambiguous language and inconsistent provisions 
 which are frequently to be met with in the bill of 
 lading, much difficulty is experienced in determin- 
 ing the true and proper construction of this instru- 
 ment. 
 
 Archibald, J., in one case said that "the exigen- 
 cies of claim and liability have led to the gradual 
 development of a document which has come at 
 last to be a considerable puzzle."^ 
 
 It will be seen as we proceed with the considera- 
 tion of the respective clauses, or exceptions of the 
 bill of lading, that these are in effect based on and 
 taken in conjunction with the charter-party.^ 
 
 Recourse will therefore be made, in considering 
 the legal definition and bearing of the various terms 
 of the bill of lading, to such authorities and deci- 
 sions as may by analogy or similarity of matter be 
 capable of affording, by inferential reasoning, a fair 
 and sound basis for guidance on the individual 
 subjects. 
 
 The law as to bills of lading is not to be derived 
 from the law relative to policies of insurance.^ A 
 policy of insurance is an absolute contract of indem- 
 nity from loss by perils of the sea. The fact that a 
 loss is partly caused by things not distinctly perils 
 
 1 Taylor v. Liverpool & Great Western Co., L. R. 9 Q. B. 54(3 ; 43 L. J. 
 Q. B. 205. 
 
 ■ The San Roman, L. R. 3 A. & E. 583 ; 42 L. J. A dm. 46. 
 3 The Chasca, L. R. 4 A. & E. 446 j 44 L. J. Adm. 19.
 
 INTRODUCTION. 183 
 
 of the sea does not prevent it coming within the 
 contract. In the case of a bill of lading it is different, 
 because there the contract is to carry "with reason- 
 able care unless prevented by the excepted perils.^ 
 The early bills of lading do not contain any 
 exceptions at all." The first set of exceptions used 
 was only " the act of God, the King's enemies, and 
 dangers of the seas." As the result of a case tried 
 in 1795,^ these exceptions Avere enlarged to " the 
 Act of God, the King's enemies, fire, and all 
 and every other dangers and accidents of the seas, 
 rivers, and navigation, of whatever nature and 
 kind soever excepted." This clause has been still 
 further extended, until, as has been said, "there 
 seems to be no other obligation on the ship- 
 owner than to receive the freight."* 
 
 Lord President Inglis, in the case of Steel 
 u. State Line Steam- Ship Company,^ said : " There 
 is nothing to prevent shipowners stipulating, 
 and shippers agreeing, that the ordinary liability 
 of the shipowners shall be entirely discharged; 
 and although in form they undertake to deliver 
 in the like ""ood order and condition, thcA^ shall not 
 
 ' Grill V. General Iron Screw Collier Co., L. 11. 3 C. P. 76 ; 35 L. J. 
 C. P. 321. TheXantlio, L. R. 12 App. Cas. 503; 56 L. J. Ad. 116; 6 
 Asp. Mar. L. Cas. 207. 
 
 'West's Symboleography ; editions 1632 and 1617, printing a bill of 
 lading, dated 159S. 
 
 3 Smith V. Shepherd, McLachlun, 3rd Ed. p. 533 ; Abbott, 12th Ed. 
 pp. 258, 328. 
 
 * Scrutton on Chai-ter-parties, j). 162. 
 
 » 4 S. C. 657; L. K. 3 App. Cas. 72; 3 Asp. Mar. L. Cas. N. S. 516.
 
 134 INTRODUCTION. 
 
 in eltect be liable to do so. Conditions must be 
 interpreted contra ])referendem ; on the other hand, 
 there is another kind of construction applicable to 
 a bill of lading, and which must not be subjected 
 to a too critical verbal interpretation. Documents 
 of this kind are never grammatically expressed, 
 and just as little are they expressed with any logical 
 precision or accuracy ; and, therefore, we must be 
 content to construe the language, not critically, but 
 according to what is the apparent meaning of the 
 parties." 
 
 In the case of Crooks v. Allan,^ where several 
 exceptions embodied in the bill of lading were relied 
 upon as a defence. Lush, J., said : " The long list of 
 excepted perils, and the much longer list of exemp- 
 tions and qualifications, of which the clause in ques- 
 tion is one, and which seem designed to exonerate the 
 shipowners from all liability as carriers, and to reduce 
 them substantially to the condition of irresponsible 
 bailees, are printed in type so minute, though clear 
 as not only not to attract attention to any of 
 the details, but to be only readable by persons of 
 good eyesight. 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 shipoAvncr wishes to introduce into his bill of 
 lading so novel a clause as one exempting him from 
 general average contribution, a clause which not only 
 deprives the shipper of an ancient and well under- 
 
 1 L. R. 5 Q. B. D. 38 j 49 L. J. Q. B. 202 ; 4 Asp. Mar. L. Cas. 216.
 
 INTRODUCTIOX. 135 
 
 stood ri,!?ht, but which might avoid his policy, and 
 deprive him also of all recourse to the underwriter, 
 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. It does not follow that a person who 
 accepts the bill of lading which the shipowner hands 
 him, necessarily, and Avithout regard to circum- 
 stances, binds himself to abide by all its stipulations. 
 If a shipper of goods is not aware when he ships 
 them, or is not informed in the course of the ship- 
 ment that the bill of lading which will be tendered 
 to him will contain such a clause, he has a right to 
 suppose that his goods arc received on the usual 
 terms, and to require a bill of lading which shall 
 express those terms. Notwithstanding the concluding 
 sentence of these small-typed thirty lines, which says, 
 ' In accepting this bill of lading, the shippers or 
 other agents of the owner of the property carried, 
 expressly accept and agree to all its stipulations, 
 exceptions, and conditions, whether Avritten or 
 printed,' I should have thought it right if the 
 stipulation in question bore the meaning contended 
 for, to give the plaintiffs an opportunity of supply- 
 ing, by means of an official inquiry, information as 
 to the circumstances under which the goods were 
 shipped, and the bill of lading was taken, and 
 whether the special clauses of this remarkable 
 document were brought to their notice, or were 
 read by them before they accepted it."
 
 136 INTBODUCTION. 
 
 Law of the The I'ights of parties under a contract not ex- 
 pressly provided for thereby, hut arising incidentally 
 within the sphere of the relation created by it, are 
 to be determined by that general law which the 
 parties intended to govern the transaction, or rather 
 by which they may justly be presumed to have 
 bound themselves. 
 
 Trim a facie the law of the place where a contract 
 is made is that which the parties intended, or ought 
 to be presumed to have adopted, as the footing upon 
 which they dealt, and such law ought to prevail in 
 the absence of circumstances indicating a different 
 intention; but a contract of affreightment made 
 between a charterer and owners of the ship, being 
 persons of different nationalities, in a place where 
 both of them were foreigners, to be performed part- 
 ly there by the ship l)reaking ground in order to 
 start for the port of loadmg, a place where both 
 parties would also have been foreigners ; partly at 
 the latter port, by taking the cargo on board ; and 
 partly on board the ship at sea, subject there to the 
 laws of the country of tlie ship; and partly by 
 final delivery at the port of discharge, is to be con- 
 strued by the law of the nation of the ship.^ 
 
 A contract of bottomry, covering the cargo as 
 well as the ship, is governed by the law of the flag, 
 i. e. by the law of the country to which the ship on 
 which the bond is given belongs. So when cargo is 
 shipped on board a foreign vessel it becomes subject 
 
 ' Lloyd r. Guibert, L. R. 1 Q. B. 115; 35 L. J. Q. B. 74.
 
 INTRODUCTION. 137 
 
 to the law of tlie flag of the ship in which it is 
 shipped, in incidents arising out of the contract of 
 shi2:)ment, and with regard to which the contract is 
 silent. " He who ships goods on board a foreign 
 ship puts them on hoard to he dealt with by the 
 law of the country of the ship, unless there is a 
 stipulation to the contrary."^ 
 
 A bill of lading made in England by the master of 
 an English ship, is a contract to be governed and 
 interpreted by English law.- 
 
 Where a ship was German, her master was 
 German, and her charterers were German, but the 
 charter-party as well as the bill of lading were in 
 English with a proviso in German, and she took on 
 board her cargo at Taganrog, and her charter-party 
 j^rovided for a delivery at a safe port in the United 
 Kingdom or on the Continent between Havre and 
 Hamburg, her port of call being Ealmouth, Sir II. 
 Phillimore held that the laAV to be applied to the 
 execution of the contract under these circumstances 
 was German, though the principles of the English 
 and the German law would be pretty much the 
 same.^ 
 
 A claim was made by an American citizen in the 
 winding up of a British steamship company for 
 damages for the loss of his cattle, arising through 
 the negligence of the master and crew. The ship 
 in which the cattle ^Yoro carried was a British ship 
 
 1 The Gaetano & Maria, L. R. 7 P. D. 137 ; -4 Asp. ilar. L. Caa. N. S. 535 
 = Moore v. Harris, L. R. 1 App. Cas. 318 ; -±5 L. J. P. C. 55. 
 
 2 The Express, L. R. 3 A. & E, 597 ; 41 L. J. Acltn. 80. 
 
 18
 
 138 INTRODUCTION. 
 
 trading between Boston and Liverpool. The charter- 
 party contained express stipulations exempting the 
 company from liability caused by the negligence of 
 the master and crew. The cattle were shipped at 
 Boston, and bills of lading were given there, in 
 conformity with the contract. The ship stranded 
 on the coast of North Wales, owing as was admitted, 
 to the negligence of the master and crew. Accord- 
 ing to the law of the State of Massachusetts, as 
 ascertained, the stipulations exempting the owners 
 from liability through negligent navigation were 
 void ; but according to English law such stipulations 
 were good, and were usually inserted in English 
 bills of lading. The question was whether the law 
 of the flag (that is to say, the personal law of the 
 shipowner) or the lex loci cont?Yicttis should govern 
 the contract of affreightment. 
 
 Held, on the authority of Lloyd v. Guibert^ that 
 the stipulations were valid, first, on the general 
 ground that the contract was governed by the law 
 of the flag ; and, secondly, on the j^articular ground 
 that from the special proyisions of the contract it- 
 self, it appeared that the parties were contracting 
 with a view to the law of Ens^land.- 
 
 Where cargo was shii:)ped by British subjects on 
 board a German ship for carriage to England under 
 English bills of lading, it was held, in an action for 
 
 1 L. E. 1 Q. B. 115 ; 2 Asp. Mar. L. C. (0. S.) 283. 
 
 ' Re Missouri Steamship Company, Limited ; Monroe's claim, 6 Asp. Mar. 
 L. C. 264, 423 ; L. E. 42 Ch, D. 321 j 58 L. J. Cli. 721.
 
 ''SHIPPED.'' 139 
 
 short delivery, that tlio master was entitled to deal 
 w ith it according to the laAV of the flag ; and hence, 
 Avliere lie had sold part oi" the cargo at a joort of 
 distress witlioiit instructions from the shippers, sucli 
 sale TV'as justifiahle hy German law, as he had, after 
 taking the hest advice he could ohtain, sold the cargo 
 in the honest helief that he was acting for the hest 
 for all parties in the emergency which had arisen/ 
 
 In considering the rights and liahilities which are Shipped. 
 created hy the bill of lading, in respect of goods 
 which it alleges have been " shipped, " it is neces- 
 sary to apply a much more extended meaning to 
 tliis term tlian the word itself imports. It is not to 
 he construed literally that the goods stated in the 
 bill of lading have been actually received on board 
 the vessel. 
 
 The term " shipped" in the bill of lading, rather 
 implies the delivery of the goods to the master or 
 mate, or any of the owner's agents authorized to 
 receive them either on board, alongside, or on 
 tli(^ quay or beach, or into the ship's boats ; and an 
 acceptance by such parties of tlie custody of the 
 ii'oods for carriage renders the master and owners 
 liable for their safe custody from and after sueli 
 delivery. But to make the master liable the delivery 
 must be eitlier to liimself, or to an officer or person 
 who is authorized to receive them. The goods 
 cannot be delivered to the crew at random. 
 
 Where the usage of the wharf is to deliver the 
 goods on the wharf to the mate of the ship by which 
 
 ' Tlic An<?ust, L. R. (1S91) P. 328 ; 7 Asp. Jrar. L. C. 110.
 
 140 " SHIPPED." 
 
 they are to be carried, then, if they are so delivered 
 to the mate, the ^vharfinger's responsibility is at an 
 end, and the master, and not the -wharfinger, is liable 
 if the goods are lost from the wharf before they are 
 shipped.^ 
 
 " Delivered alongside" is not equivalent to " ship- 
 ped on board. "^ 
 
 Where a charter-party by which the defendants 
 chartered the plaintiffs' ship to carry a cargo of 
 timber from M. provided that the cargo should be 
 brought to and taken from alongside the ship at 
 merchants' risk and expense, and that the bill of 
 lading should be conclusive evidence against the 
 shipowners of the quantity of cargo received as 
 therein stated ; and the mate, by orders of the 
 master, who was ignorant of the provisions of the 
 charter-party, gave receipts for a certain quantity 
 of timber at the timber ponds, but some of the 
 timber was lost whilst being rafted down to the 
 ship, and the master, having become aware of the 
 provisions in the charter-party, * only consented to 
 sign bills of lading for the quantity mentioned in 
 the mate's receix)t on being told by the shippers' 
 agents that he AA^as bound to do so, and after he had 
 protested before a public notary in respect of the 
 portion lost: the shipowners were estopped as 
 against the charterers by the bills of lading from 
 denying that the full amount of cargo stated 
 therein had been shipped.^ 
 
 > Cobban v. Downe, 5 Esp. N. P. C. 41. 
 " Thorman v. Burt, 5 Asp. Mar. L. Gas. 563. 
 
 ^ Liahman r. Christie, L. E. 19 Q. B. D. 333 ; 56 L. J. Q. B. 538. See also 
 Pvman r. Bixrt, 1 C. & E, 207.
 
 ''SHIPPED.'' 141 
 
 In tlie case of Holmaii r. Dasni^res^ the ship- 
 owner brouq-ht an action a^rainst the charterer of 
 liis sliip for causing him increased expense under 
 peculiar circumstances. The cargo was pitcli to be 
 shipped at the Port of Cardiff, and was to l)e put 
 on board l)y tlie master as fast as it Avas brought 
 alongside the vessel, by the charterer. The 
 question arose what is alongside the vessel, or 
 whether the cargo could be said to have been 
 brought •' alongside." A great part of the pitch, 
 which was sent in bulk, was sent, at the desire 
 of the shipowner, in trucks or waggons on a tram- 
 way Avhich ran along the quay about 27 ft. from 
 the side of the ship. There was a turntable oppo- 
 site the ship, by which the trucks could have been 
 turned and brought close to the vessel, but this was 
 not done, because, it was said, of the state of the 
 pitch, Avhich was such that it Avas thought this 
 would be of no advantage. The pitch was so far 
 softened by the heat of the sun that it could not be 
 broken up, tipped, or pitched out into the ship as 
 it might have been if it had been hard, but it was 
 viscous and sticky, and had to be dug out, Avhich 
 took up much time and labour, and the question was 
 Avhich of the parties should pay for it. A dispute 
 arose, and the shipowner sued the shipper for a 
 sum of over 80?. for extra pay and expense thus 
 incurred. At the trial, letters from the shipowner 
 were read, in which he spoke of the pitch in the 
 trucks on the tramway as "brought alongside," 
 
 ' 2 Times L. R. GOT.
 
 142 " SHIPPED." 
 
 tliougli tlic master wanted tlie trucks to he put on 
 the turntable, hy A\liich tliey could he hrought 
 close to the ship. It was held that it was enough 
 if the trucks were brought as near as practical)le, 
 and the jury found that the pitch was " brought 
 alongside" the vessel, and that the plaintiffs could 
 not recoA'cr. The plaintiffs applied to a Divisional 
 Court for a new trial, but the application was 
 refused, and the plaintiff' appealed from the deci- 
 sion. In dismissing the appeal Lord Eslier said : 
 " Now, to put cargo on one side of the quay, the 
 ship being on the other, would not be bringing it 
 alongside. It meant bringing tlic cargo to the 
 master to enable him to put it on board. The 
 master was to receive the goods, the shipper was to 
 deliver them to him. It was not sufficient to bring 
 the cargo under the side of the ship, if not lifted 
 up on to the ship, which was usually done by the 
 ship's tackle, tlie shipper's men lifting the goods 
 to the tackle. But if the goods were in such a 
 position that they coidd not be taken up l)y the 
 tackle it was sufficient if they were in such a posi- 
 tion as might l)e arranged, and if they were brought 
 to the point where the master was to take charge 
 of them. Here, however, the shipowner had contract- 
 ed to do more than ordinarily would be his duty, for 
 he had undertaken to ' put the cargo on board.' 
 The ship was to be in such a position that the ship- 
 per could bring the pitch in barges and the master 
 A\-ould take possession of it in the liolds of the barges.
 
 "Shipped:' u-i 
 
 In tliis case the pitch was to l)e brought (low ii by 
 rail, -which had an apparatus joined to it for the 
 l)ur2^osc of lifting the goods from the rail on to the 
 ship by means of a cross-rail across the 27 ft. 
 That -was an apparatus for putting the goods on 
 l)oard, not part of the apparatus for bringing them 
 down, and a jury might think that if the pitch 
 were brought down by the railway opposite to the 
 ship, as the master A\'as to take it and put it on 
 l)oard, that would be sufficient. The master had 
 desired tha.t this pitch should be brought down by 
 the tramway, so that, under the circumstances, the 
 pitch was 'brought alongside.' 
 
 In the case of British Columbia Saw ]\Iill Co., 
 Limited, t'.Nettleship,^ BoA-ill,C.J., told the jury that 
 if the case was delivered alongside the vessel into the 
 custody of the defendant's agents, the defendant was 
 as much responsible for it as if it had been actually 
 shipped; and it having been proA^ed that the case of 
 machinery was delivered to the mate on the c^uay, 
 the shipowner was held liable for the loss. 
 
 And where the mate signed receipts for wine 
 Avhicli Avas on the quay, and one of the casks was 
 lost before it Avas put on board, the owners Avere 
 held responsible.^ 
 
 Although a bill of lading asserts that the goods 
 have been shipped, and is evidence of that fact, there 
 is nothing to prevent its being shoAvn that the goods 
 
 ' L. R. 3 C. P. 499 ; 3 Asp. Mar. L. C. 63. 
 - Fragauo i". Long, 4 B. & C. 219,
 
 144 
 
 LEGAL EFFECT OF THE CLAUSES. 
 
 in fact were not shipped/ In the case of Thorman 
 V. Burt^ the plaintiff shipped timber sleepers for 
 certam persons who had sold them to the defen- 
 dants, and assigned to them the bill of lading. 
 
 The bill of lading stated that 7,497 sleepers were 
 shipped on board. In fact, the 7,497 sleepers Avere 
 delivered alongside, and mate's receipts were given 
 for them, and the bill of lading was compiled from 
 the mate's receipts ; but 216 were not shipped, and 
 the owners of the car2:o now sousrht to make the 
 shipowners liable for short delivery. The Court found 
 in favour of the shipowners, on the ground that 
 there was no short delivery, because 216 of the 
 sleepers had not been shipped. " Delivered alongside" 
 is not equivalent to " shipped- on board." 
 
 A bill of lading taken in tlie ordinary form that 
 the goods have been "shipped in good order and 
 ditioS"'^°'^' condition," or "well conditioned," or "in apparent 
 "In apparent good ordcr and condition" is jjrlnid facie eyidence 
 fonditioi'' ^ that the goods were in that condition at the time of 
 shipment; but the shipowner may show that the 
 goods were injured or destroyed on the passage by 
 reason of some intrinsic defect which was not 
 apparent or easily to be ascertained, when the goods 
 were shipped.^ 
 
 If anything is delivered to be carried, it is the 
 duty of the person receiving it to ask such questions 
 about it as may be necessary, and it makes no dif- 
 
 1 Berkley v. Watling, 7 Ad. & E. 38. 
 = 1 C. & E. 596; 5 Asp. Mar. L. C. 565. 
 ' Parsons ou Sh., vol. 1, p. 188. 
 
 "In good order 
 and condition" 
 
 "In good order
 
 "/iV GOOD ORDER AND CONDITON." Uo 
 
 ference whether the goods are open to inspection or 
 not ; if he asks no questions, and there he no fraud 
 to give the case a false complexion, on the receipt of 
 the parcel he is hound to carry it as it is.^ Hast- 
 ings V. Pepper^ Avas an action brought against the 
 master of a vessel to recover the value of a glass 
 bottle containing twenty pounds of oil of cloves. The 
 receipt of the box containing the bottle on board 
 the vessel was acknowledged, but the defendant 
 contended that the breaking of the bottle was 
 owing to its being insufficiently packed, and that the 
 bottle itself was imperfect, and not well annealed. 
 Shaw, C. J., said : " It may be taken to be perfectly 
 well established that the signing of a bill of lading 
 acknowledging to have received the goods in 
 question 'in good order and well conditioned' is prima 
 facie evidence, that, as to all circumstances which 
 were open to inspection and visible, the goods were 
 ' in good order' : but it does not preclude the carrier 
 from showing, in case of loss or damage, that the 
 loss proceeded from some cause which existed, but 
 was not apparent, when he received the goods, 
 and which, if shown satisfactorily, will discharge 
 the carrier from liability. But in case of such loss 
 or damage, the presumption of law is, that it was 
 occasionad by the act or default of the carrier, and 
 of course the burthen of proof is upon him to show 
 that it arose from a cause existing before his receipt 
 
 1 Lebeau v. General S. N. Co., L. R. 8 C. P. 88; 42 L. J. C. P. 1; 76 j 
 Walker v. Jackson, 10 M. & W. 168 ; 12 L. J. Ex. 165. 
 ' Cited in Parsons on Sh., vol. 1, p. 188 u. 
 
 19
 
 146 LEGAL EFFECT OF THE CLAUSES, 
 
 of the goods for carriage, and for Avliicli he is not 
 responsible." 
 
 It is not necessary for the consignee or owner of 
 the goods to give evidence of negligence on the part 
 of the master, unless the latter shows that the injury 
 which the goods have sustained was occasioned by a 
 cause wliich \^'as within the exceptions, when the 
 consignee would be at liberty to show that there 
 was negligence so as to deprive the master of the 
 benefit of the exceptions in the bills of lading.^ 
 
 In the case of the ship " Martha, " a quantity of 
 sheet iron was found on delivery to be stained and 
 rusted with wet. It was proved that the iron was 
 W9ll stowed, that the ship came in tight and dry, that 
 the iron was taken on board in dry weather, and 
 not exposed to the access of water. But the Court 
 held this was not enough, for the burden was on 
 the ship to show that the damage existed when the 
 cargo was laden on board. ^ 
 
 In the case of Morton v. Cook^ the bill of 
 lading, which was signed by the master, contained 
 the words, " I acknowledge to have received in 
 my ship of you, Messrs. Ptobert (father and son) 
 Guillemot, 2,000 sacks of wheat flour, weighing 
 altogether 319,370 kilogrammes, the whole dry 
 and in good condition, marked and numbered as in 
 the margin, which goods I promise to convey in good 
 
 1 ShellifE I'. Scott, 22 Cal. W. R. Civ. R., p. 39. 
 " Cited in Parsons on Sti., vol. I., 189. 
 3 Mit. Mar. R., 30th December 1865.
 
 " m GOOD ORDER AND CONDITON:' 147 
 
 condition, saving the perils and accidents of the sea, 
 &c., &c., to Liverpool." On discharging the cargo 
 at Liverpool some portion of it was found to have 
 been damaged by salt "water, and another portion to 
 have suit' cred from wliat was termed country or fresh 
 water damage, that is, damaged before the flour was 
 put on board. The action was brought to recover 
 damages hi respect of this latter portion. There 
 was no evidence of any knowledge by the master 
 that the flour when received on board had suffered 
 from country or other damage. The jDlaintifFs 
 claimed their right of action against the master under 
 the provisions of sections 1 and 3 of the Bills of 
 Lading Act as indorsees for value ; and urged that 
 being so, the statement in the bill of lading that the 
 goods had been shipped " dry and in good condition," 
 was conclusive evidence in an action at their suit 
 against the master of the then condition of such 
 goods ; but on the above facts the Court found for 
 tlie defendant, and dismissed the suit with costs. 
 
 But where the cargo has been stowed alongside 
 of, or close to, other cargo, which by its nature is 
 calculated to injure or affect it, the presumption will 
 be that the cargo was shipped in good order and 
 condition, and that the damage was occasioned by 
 the improper stowage of the goods. For instance, 
 where cocoanut oil was stowed alongside coffee, 
 which latter article is liable to take in and retaui the 
 odour arising from anything with which it comes in 
 contact ; in an action for damage done to a large
 
 148 LEGAL EFFECT OF THE CLAUSES. 
 
 parcel of bags of coffee, which it was alleged were 
 strongly impregnated with the smell of rank Manilla 
 oil, stowed in the same . hold at the bottom 
 of the ship, the master was held liable for the 
 damage to the coffee, which it was found had been 
 occasioned after shipment by bad stowage, though it 
 was shown that other parcels of coffee in the same 
 hold were uninjured, which, it was argued, would not 
 have been the case had the damage actually arisen 
 by contamination from the oil.^ 
 
 The words " in good order and condition" only 
 refer to the external condition of the package, and 
 creates no contract with reference to its contents. 
 But if the master qualifies the bill of lading by 
 adding " contents unknown" or other similar words, 
 he is accountable for whatever the box can be prov- 
 ed to have contained when put on board his ship.^ 
 
 In the " Ida"^ the Privy Council held, confirming 
 Sir E/. Phillimore upon the point, that the addition 
 of the clause " quantity and quality unknown," 
 prevented the ordinary words " in good order, &c., 
 from operating as an admission by the shipoTMier 
 that the cargo was in good order when shij^ped. 
 The cargo was of cotton seed, and heated badly on 
 the voyage. Tlie shipowner contended that this 
 was owing to its j^reen condition when shipped. 
 The Court held that the plaintiff was bound to 
 make out a prima facie case ; either by showing 
 that the seed was in good condition when shipped, 
 
 ^ Mit. liar. R., SOth June 1866. 
 
 * The Prospereno Palasso, 29 L. T. Adm. 622 ; Clark v. Barnwell, 
 12 How. 272; 19 Curtis 131, 
 
 3 32 L. T. 541.
 
 "BY A. JB." [THE SHIPPER.) 149 
 
 or that the damage could be traced to some default 
 of the shipowner. 
 
 A master signing a bill of lading in which it is 
 stated that the goods were " shipped in good order 
 and condition," but which contained a memoran- 
 dum of weiglit, contents, and value unknown," 
 admits that, as far as could be seen externally, 
 the goods were shipped in good condition, and if 
 they arrive damaged the onus lies upon tlie ship- 
 owner to excuse himself from the damage.^ 
 
 Where the steamer " Orchis" conveyed from 
 London to Hong Kong for the plaintiff a box described 
 in the bill of lading as containing " private effects," 
 " contents unknown" being added by the master : on 
 arrival the box was delivered ajiparently in good order 
 and condition, but it turned out that the top, which 
 had been nailed down, had been forced open and part 
 of the contents abstracted. The plaintiff was unable 
 to prove what was inside the box when put onboard. 
 It had been packed in Edinburgh, and it was just as 
 probable that it had been opened on the luggage 
 van of the railway between that place and London 
 as on board the steamer. It was held that tlie 
 master could not be made responsible." 
 
 It must be stated in the bill of lading by whom " By a. b. (the 
 the goods have been shipped ; therefore, a document ^ ^^^^^' 
 drawn up in the following terms AAas held not to be 
 a bill of lading : — •' Elmira, July 2, 1812, shipped 
 on boat ' Occidental,' H. Banks, Captain, 52,900 
 
 ^ The "Peter der Grosse," L.E.I P. D. 414; 3 Asp. Mar. L. Gas. N. S. 195. 
 « Mjt. Mar. K., 11th Ansust 1876.
 
 no LEGAL EFFECT OF THE CLAUSES. 
 
 feet white pine boards and plank to Albany." This 
 was signed by the agent of the consignor and deli- 
 vered to the Captain/ 
 
 In practice the mate passes his receipt to the 
 holder of the shipping order, and makes out the 
 same in his name, and the name of the person thus 
 apjoearing on the mate's receipts as the shipper of 
 the goods is that which is entered in the bill of 
 lading. 
 
 The necessity of some person's name being 
 inserted in the bill of lading as representing the 
 shipper is obvious, though tlie bill of lading will 
 not be affected as a negotiable document by the 
 circumstance of the name of some person other 
 than the actual shipper being mentioned, or even 
 where the name is fictitious and has been inserted 
 for a fraudulent purpose.^ 
 
 A bill of lading without the shipper's name is very 
 little more than a receipt for, or acknowledgment of, 
 the goods. It cannot be negotiated, and the ship- 
 owner or charterer may, under certain circum- 
 stances, find it difficult, if not impossible, to recover 
 the freight. Thus, where P. sliipped soap on board 
 a vessel at London under the following agree- 
 ment with the charterer, " 15 tons boxes soap, 39s. 
 per ton of 40 feet, payable here, J. L. & S.," wliich 
 was indorsed on the back of one of the plaintiff's 
 cards, and it turned out that Gray was the real ship- 
 
 ' Parsons on Sh., vol. 1, p. 186. 
 
 ' Gabarron v. Kreeft, Kreeft v. Thompson, L. R. 10 Ex. 274 ; 44 L. J. 
 Ex. 238. 
 
 \
 
 " ON board:' " m or upon:' isi 
 
 per, and tlic bills of ladings were granted in his name. 
 The shiji sailed without payment of the freight being 
 made, and was shortly after lost, which fact Avas 
 provided for in the contract, " freight being payable, 
 lost or not lost." The plaintiff demanded freight 
 first from P. and then from Gray, but the latter 
 becoming insolvent, an action was brought against 
 P., and it was held that P., under the contract was 
 liable to pay the freight irrespective of any liability 
 on the part of Gray to do so.^ 
 
 By 39 and 40 Yict., c. 36, sec. 52, '"tlie captain or other officer 
 (having the charge of any ship having commission from Her Majesty, 
 or from any foreign State) on arrival at -any port in the United 
 Kingdom, having on board any goods laden in ports beyond the 
 seas," under a penalty of lOOZ. shall furnish the Collector or 
 Comptroller of Customs, inter alia, with the name of the respective 
 shippers and consignees of the goods. 
 
 The bill of lading acknowledges the goods to be 'Onboard." 
 on board before it is signed. But if the master sign '^ ^^ "^°°" 
 bills of lading before the goods are on board, or they 
 have been delivered to some one authorized to 
 receive them on the ship's account, through inadvert- 
 ence or otherwise, upon the faith and assurance 
 that they are at hand, as if they have been deposited 
 on the wharf ready to bo shij)ped, or in the 
 shipowner's warehouse, or in the shipper's own 
 warehouse, and they are never shipped, the owners 
 are not estopped from showing this fact in a suit 
 brought against them for non-delivery by bojia fide 
 indorsees of a bill of lading. As the master has no 
 
 1 Lidgett V. Perrin, 2 F. & F. 763.
 
 152 LEGAL EFFECT OF THE CLAUSES. 
 
 authority to sign bills of lading for goods not 
 received, his doing so would be a fraud for which 
 the shipowners Avould not be responsible, though 
 the master might be.^ 
 
 18 and 19 Vict., c. cxi., after reciting that " where- 
 as it frequently happens that the goods, in respect 
 of which bills of lading purport to be signed, have 
 not been laden on board, and it is proper that such 
 bills of lading in the hands of a bona fide holdev for 
 value should not be questioned by the master or 
 other person signing the same, on the ground of the 
 goods not having been laden as aforesaid," enacts 
 that " every bill of lading in the hands of a con- 
 signee or indorsee for valuable consideration 
 representing goods to have been shipped on board a 
 vessel, shall be conclusiveevidence of such shipment, 
 as against the master or other person signing 
 the same, notwithstanding that such goods or some 
 part thereof may not have been so shipped, unless 
 such holder of the bill of lading shall have had 
 actual notice, at the time of receiving the same, that 
 the goods had not been in fact laden on board : 
 Provided, that the master or other person so signing, 
 may exonerate himself in respect of such misre- 
 presentation by showing that it was caused Avithout 
 any default on his part and wholly by the fraud of 
 the shipper, or of the holder, or some person under 
 whom the holder claims." 
 
 ' Parsons on Sh., vol. 1. p. 187. n ; Hubbersty v. Ward, 22 L. J Ex, 
 113; Coleman v. Riches, 2i L. J. C. P. 123; Lickbarrow v. Mason 
 1 Sm. L. C. 705 ; 2 T. K. 63.
 
 " Steamship.' 
 
 "SHIP.'' "STEAMSHIP.'' 153 
 
 This provision only applies to persons who have 
 actually signed bills of lading. Therefore owners 
 who have not signed are not concluded by the 
 statements in it, any more than they were before 
 the statute,^ 
 
 By the Merchant Shipping Act of 1851, 17 & 18 \[^Y^p-" 
 Vict., c. 101, s. 2, " ship " includes every description 
 of vessel used in navigation, not propelled by oars. 
 
 The same definition is given to the word by the 
 Admiralty Court Jurisdiction Act, 1861, 21 Vict., 
 c. 10. And by the ludian Legislative Acts, VII 
 of 1880 and I of 18S7. 
 
 By section 5 of the Merchant Shipping Act, 
 1889, (52 & 53 Vict., c. 16), " The provisions of 
 the Merchant Shipping Act, 1851, and the Acts 
 amending the same, with respect to steamships, 
 
 shall apply to ships propelled by electricity." 
 
 The meaning of the term " steam-ship" is that the 
 principal motive power shall be the power of steam, 
 and not that of a sailing vessel ; but where it is 
 convenient, as it often is, for a steam vessel to use 
 sailing j^ower instead of steam power when the wind 
 happens to be favourable, it is not necessary that 
 the vessel should be at all times, and under all 
 circumstances, propelled by steam. 
 
 Where a launch, of about 3 tons burthen, which 
 was propelled by electricity from accumulatoi-s 
 charged by a dynamo from a charging station, was 
 used for the purpose of carrying passengers on 
 
 ' Meyor v. Dresser, 10 C. B. X. S. 6i6: 33 L. J. C. P. 289. 
 20
 
 154 LEGAL EFFECT OF THE CLAUSES. 
 
 pleasure trips round an artificial lake half a mile 
 long by ISOyards wide, without having any duplicate 
 of a Board of Trade Certificate put up in her as re- 
 quired by s.318of theMerchant Shipping Act, 1854, 
 it wa? held, that the launch, while so used on a sheet 
 of water of that size, was not a vessel used in navi- 
 gation, and, therefore, was not a passenger steamer 
 within the meaning of s. 318. ^ 
 
 If it is stated in the bill of lading that the vessel 
 is a steam-ship, and it turns out that she is an 
 auxiliary screw steamer, o^^^ ing to which circum- 
 stance she made an unusually long voyage, an action 
 will lie for the detention of the goods and their 
 non-delivery within a reasonable time. This ques- 
 tion came before the Courts in 1872, in the case of 
 the " Ilibernia,"^ which was described as a steam- 
 ship in the bill of lading, " with liberty to call at 
 any ports in or out of the route, to receive and dis- 
 charge coals, &c., &c., and to tranship the goods by 
 any other steamer." The vessel was an auxiliary 
 screw, and was propelled by steam during a small 
 part of the voyage only, from Singapore to London, 
 which lasted 135 days, the usual voyage by steamer 
 being about 60 days. The judges were unanimously 
 of opinion that the contract implied that the voyage 
 should be performed wholly or principally by 
 steam, and it was stated, that supposing an auxiliary 
 screw steamer would have satisfied the terms of 
 
 » The Mayor, &c., of Southport v. Morriss, L. E. (1893) 1 Q. B. 359. 
 - Fraser v. The Telegraph Construction & Maintenance Company, 
 L. K. 7 Q. 13. 566; 41 L. J. Q. B. 249.
 
 the contract, it Asould have involv(Ml tlio use of 
 the auxiliary screw power so far as it was ropsonal)ly 
 possihlc. 
 
 In the case of the " Rachel,'" wliich Avas a fishini^ 
 coble, 2 Ji feet long, 7 I'eet beam, 10 tons burthen, 
 and drawinf^ about IS inches, and had about 8 feet 
 of deck forward, Avith a main and mizen mast and 
 a bowsprit to ship and unship, and a jib, mainsail, 
 and mizensail. The masts Avere easily remoA'able 
 and the vessel AA^as fitted with four oars, to be used 
 AA'hcn occasion required, A'iz., in harl)0ur or in shoal 
 Avater ; such A^essels frequently Avent out tAA'enty 
 miles to sea. The coble haAdng been sunk in a 
 collision with the S. S. " Thames," upon official 
 inquiry, instituted under the IMcrchant Shipping? 
 Acts, 1851 & 18C)2,- it Aras argued that the coble 
 AA^as not a ship. But the Court of Queen's Bench 
 on a Avrit of certiorari being applied for, held that 
 *' whether a ship is propelled by oars or not, it is still 
 a ship, unless the Avords ' not propelled by oars,' 
 exclude all vessels aa'IucIi are ever propelled by oars. 
 Most small vessels rig out something to propel 
 them, and it would Ije monstrous to say that they 
 are not ships. The meaning of the Avord ' ship ' in 
 this Act is that every vessel that substantially goes 
 to sea is a ship. 
 
 A mud-hopper barge used I'or carrying mud out 
 from a riA'cr, and having no internal means of 
 
 » Ex parto Ferguson, L. W. Q. B. 2S0. 
 
 » 17 i 18 A'ict., c. 104 ; 2.-) i- 26 Vict., c. 03,
 
 156 LEGAL EFFECT OF THE CLAUSES. 
 
 propulsion, is a " description of vessel used in 
 navigation," and not being " propelled by oars," is 
 a sliip T^itbin tbe meaning of tbe ^yord as defined 
 by tbe Mercbant Sbipping Act, 1854, s. 2, and as 
 sucli tbe justices bave jurisdiction to award salvage 
 for services rendered to ber T\lien "stranded or 
 otberwise in distress on tbe sbore of any sea or tidal 
 water situated witbin tbe limits of tbe United 
 Kingdom."^ 
 
 Tbe terms " sbip" and " vessel" bave tbe same 
 meaning, but it bas never been lield tliat tbe word 
 " sbip" included a vessel propelled solely by oars. 
 Tbus ligbters or barges do not fall witbin tbe 
 definition of sliip.^ 
 
 Name of Ship. The corrcct insertion in tbe bill of lading of tbe 
 name of tbe vessel in wbicb tbe goods are sbipped, 
 is so essentially important tbat it sbould not be 
 overlooked or omitted. In tbe caseof a cbarter-party, 
 tbe vessel named tberein is so engaged to tbe 
 cbarterer tbat be may refuse to load anotber instead, 
 and tbe witbdrawal of tbe sbip would be a breacb of 
 contract for wbicb an action will lie. Por a person 
 hiring a vessel under a cbarter-party does so, not 
 merely from a wish to bave bis goods taken to 
 a particular place, but upon a careful cboice of 
 tbe vessel itself as tbe one best adapted for bis 
 purposes.^ 
 
 1 The " Mac," L. R. 7 P. D. 126; 4 Asp. Mar. L. C. 555. 
 > Everard v. Kendall, L. R. 5 C. P. 428 ; 39 L. J. C. P. 234. 
 = De Mattos v. Gibson, 28 L. J. Ch. 502.
 
 I 
 
 NAME OF SHIP. 157 
 
 In many insurance offices the production of the 
 bill of ladini^ is required in order to fill in the policy 
 for the G^oods shipped, and if the name of the vessel 
 does not appear on the face of it, or is so written as 
 to he luiintellig'ible, no ordinary insurance could he 
 effected. 
 
 As the nature of the risk depends very materially 
 on the character of the ship employed, it is a matter 
 of great importance to the underwriter to know the 
 name of the ship in which the goods are on which 
 insurance is required. Hence, as a general rule, in 
 all insurances, whether on ship or goods, the name of 
 the ship intended to he employed on the tot age, if 
 known to the assured, ought to he accurately in- 
 serted in the policy. As, however, the name of the 
 ship is only required to he inserted in order that the 
 underwriter may really know what ship is intended 
 to he employed, if he can he proved to have had 
 this knowledge, an error in the name of the ship 
 will not vitiate the policy.^ 
 
 The plaintiffs, hy order of K. at Hamburg, opened 
 with the defendants a policy on hides, by ship or 
 ships, to the extent of 5,000/. The slip was signed 
 on the 23rd of September 18G9, but the policy had 
 not then been made out; on the 3rd of Februarv, 
 1870, one of the plaintiffs went to the defendant's 
 office, taking with him the slip for the 5,000/. 
 policy, and filled up two slips, one for 2,455/. on 
 hides, per " Socrates," and another slip for 2,500/. 
 
 > Amonld on M. I., 6th eil., vol. T., p.p. 2.19, 334.
 
 i58 LEGAL EFFECT OF THE CLAUSE f^. 
 
 on hides by another vessel ; he stated to the defen- 
 dants' cletk that it would be more convenient to both 
 parties tc have two separate policies, instead of 
 drawing up one open policy for 5,000/., and then 
 declaring it on 4,955/. The defendants' clerk ac- 
 quiesced, and initialed the two slips, and afterwards 
 the policies were executed by the defendants. 
 There was a Norwegian ship, the " Socrates," and 
 a French sliip, the " Socrate," both described in 
 Veritas, the risk on the latter being greater than 
 on the former. The hides insured by the policy 
 were shipped on board the " Socrate," and lost. 
 At the trial, the jury found that the parties, on 
 entering into the contract, both meant to insure the 
 hides by the vessel on which they were actually 
 shipped, wliatever her name might be, though they 
 supposed it to be the " Socrates," and that the 
 defendants did not mean only to insure hides on 
 board the " Socrates " : — Held (affirming the judg- 
 ment of the Queen's Bench), that the defendants, 
 being bound on the 3rd of February to insure hides 
 on board any ships selected by the plaintiffs, tlie 
 misnomer was of no consequence, and the defen- 
 dants AA^ere liable. — By 30 & 31 Vict. c. 23, s. 7, no 
 contract or a^rreement for sea insurance shall l)e 
 valid, unless expressed in a policy : — Held (affirming 
 the judgment of the Queen's Bench) that, notwith- 
 standing that statute, the slip might be given in 
 evidence, though not valid as a contract, as evidence 
 of the intention of the parties.^ 
 
 ' lonifU'S V. Pacific Fire and ^fariiip Tna. Co., L. Tl. 7 Q. B. 517.
 
 NAME OF MASTER, ^-^^ 
 
 In the event of the goods hcing lost or damugetl, 
 and hence a chiim made upon the insurers, the 
 jiroduction of the bill of lading is necessary before 
 payment can be obtained, and should it then appear 
 that the name of the vessel has been omitted, or is 
 so inaccurate as to be incapable of identification, 
 the insurers do not in practice admit such claim. 
 
 The shipowner, or the master as his agent, is 
 bound under his contract in the bill of lading, or 
 charter-party, to carry the goods to their destination, 
 if not prevented from doing so in his own ship by 
 some event which he has not occasioned, and over 
 which he has no control, and he is therefore justified 
 in hiring another vessel for this purpose. There 
 seems to be much disagreement in foreign ordinances 
 and jurists on the point whether or no he is bound 
 to tranship, or whether, having contracted only to 
 carry in his own shiji, he is not absolved from 
 further prosecution of the enterprize by the vis 
 major, which prevents his accomplishing it- in the 
 literal terms of his undertaking. All authorities 
 however, are in unison to this extent, that the master 
 is at liberty to procure another ship to transport the 
 cargo to the place of destination.^ AVhere the bill 
 of luding contains a clause that the goods are to be 
 taken delivery of after a certain number of days after 
 arrival of the ship, or demurrage will be payable, 
 it is the duty of the holder of the bill of lading 
 to watch for the arrival of the vessel, and notice to 
 
 1 Shipton V. Thomtou, U Ad. & il. 3i4.
 
 160 LEGAL EFFECT OF THE CLAUSES. 
 
 him by the sliipowner is not necessary ; lie will be 
 liable for clemurra2:e unless he can show that after 
 using reasonable diligence he had been deceived as 
 to the time of the ship's arrival, from her being 
 entered at the Custom-house by a different name 
 from that given to her in the bill of lading. 
 
 Thus, where the German ship " Die Treue" was 
 denominated in the entry at the Custom-house at 
 London as " The Treue," and the difference in the 
 name was established, but it did not appear that 
 the defendant, who was indorsee of the bill of lading, 
 had made the proper searches at the Custom-house, 
 he was held liable in an action for demurrage for 
 not unloadincr her within the time after arrival 
 specified in the bill of lading.^ 
 
 "Whereof The mcutiou of the name of the master of the 
 
 (A. B.) is 
 
 roaster for vcsscl lu tMs part of thc bill of lading is not 
 
 the present 
 
 voyage." considcrcd material, and its omission does not in 
 
 any way affect the contract contained in it, which is 
 made by the party signing the bill of lading, who 
 may be either the master or other agent of the 
 shipowner ; and we therefore find the master's name 
 frequently omitted from this document. In case of 
 the death, insanity, desertion, or absolute incapacity 
 of the master at sea, the first mate succeeds to the 
 command as a matter of course,^ and will be 
 entitled to a master's washes from the time he assumes 
 command, as it is his duty to take upon himself 
 
 1 Harrnan v. Clarke, 4 Camp. 159. 
 
 2 The Tecumseh, 3 W. Eob. 148.
 
 NAME OF PORT. 161 
 
 the position of master with its attendant authorities, 
 duties, and responsibilities/ And where in a foreign 
 port the necessity arises and the owners cannot be 
 communicated Avith, if done in good faith, a new 
 master may be appointed or another substituted in 
 the place of the one originally in command,^ either 
 by the agent of the owner ;•' by the consignees of the 
 cargo ; by the consignor of the cargo ;' by the 
 furnishers of the homeward cargo ;'^ by a foreign 
 merchant, to whom the prior master had committed 
 the vessel as agent for the owners ;" or by a consul or 
 vice-consul at the port f or even by a captain of the 
 Eoyal Navy in actual command at the station.^ In 
 policies of insurance it is no implied condition that 
 the master should be correctly named in them, or 
 that the same master should continue throughout 
 the voyage.^ 
 
 The master as such is master only for the voyage 
 which is originally named, and on wiiicli the vessel 
 sails. Everything out of this voyage is beyond his 
 scope as captain ; therefore, where he has sailed to a 
 foreign country on a particular voyage, and bound 
 to particular ports, he has no authority as master to 
 agree to the substitution of another voyage in the 
 place of the one agreed upon between his owners and 
 the freighters.^'^ 
 
 1 Hanson v. Roydcn, L. R. 3 C. V. 49. 
 - Tbo Alexander, 1 Dods. Ad. Kop. 278 ; Story on Agency, S3. 36, 120. 
 3 The Konnersloy Castlo, 3 Uug-j. 1. ' Tho Zodiac,! Hagt,'. 320. 
 * The Rubicon, 3 Hagg. U. » The Eliza Cornish, 17 Jur. 738. 
 
 Ibid. ° Aruould on if. I., 6th ed., vol. I., 
 
 « Tlio Tartar, 1 Hagg. 9. pp. 210, 311. 
 
 10 Burgou I'. Sharpo, .2 Camp. 529. 
 
 21
 
 162 LEGAL EFFECT OF THE CLAUSES. 
 
 " Lyingr_ in the In cascs wliere tliG I'isk upon ship and goods 
 "Lying in or eiilicr bcgins upon the loading at one port, or ends 
 "t^'ndi"?\n°" ^P^^^ their discharge at another port, the meaning 
 of the word " port," as used in the policy, must he 
 ascertained by admitting parol evidence to show what 
 meaning and extent in the general understanding of 
 the mercantile world is attached to the word port as 
 applied to the place where, by the policy, the risk is 
 made to begin or end ; and although the mercantile 
 sense attached to the term may give the port in 
 question a greater or a less extent than its legal or 
 political limits, the mercantile sense, and not the 
 legal import of the word, prevails. Thus, although 
 Llanelly is, legally speaking, considered to be a part 
 of the port of Caermarthen, in a policy of insurance 
 " at and from Caermarthen, " those words mean, in a 
 mercantile sense, the town and port of Caermarthen; 
 and the policy does not attach to goods loaded at 
 Llanelly.^ 
 
 It is not at all necessary to the definition of " port" 
 in the sense in which that word is used in policies, 
 that it should be an artificial harbour shut in with 
 regular moles or piers. If it be a natural basin 
 protected by a headland, or even an open roadstead, 
 provided it be the usual and sole place of loading 
 and unloading, it will be sufficient ; and this will 
 be especially the case if it be provided Avitli all the 
 usual machinery and appendages of a harbour, and 
 
 1 Constable v. Noble, 2 Tauut. 403.
 
 NAME OF PORT. 1C3 
 
 is a place to which vessels arc allowed to come hy 
 the government of the country. 
 
 Thus the Court of King's Bench held that the 
 expression " to any port or ports whatsoever " in a 
 time policy, ought to be construed the same as 
 " place or places," and could protect the ship while 
 anchored in an open roadstead, that appearing to be 
 the usual place for loading and unloading goods at 
 the place where the loss occurred.^ 
 
 The port must be one that is physically safe; 
 whether it is so is a question of fact for the jury, 
 having regard to the particular vessel and the nature 
 of the work to be done. 
 
 In Smith v. Dart' the question arose whether 
 Burriana, in Spain, was a " safe loading place " 
 under a charter-party for a cargo of oranges. It 
 appeared that the place was much exposed, but that 
 many steamers were loaded there, lying in the road- 
 stead ; and that they could do so in safety by using 
 Avell-knoATO precautions, such as keeping their fires 
 alight, and, if necessary, running out to sea. 
 
 The jury found that it was a safe loading place. 
 
 Lush J. in Ilarrower v. Hutchinson^ said " the 
 words port or ports of loading" I think must be read 
 in a lil)eral sense ; they must be taken to mean not 
 merely those places which arc technically called ports, 
 but all places to which ships may be accustomed 
 to resort for the purpose of taking in cargo." The 
 
 ' Cockoy r. Atkinson, 2 B. & Aid. 460. 
 » L. R. 11 Q. B. D. 105. ' L- «• -1 Q. B. 53-i.
 
 164 LEGAL EFFECT OF THE CLAUSES. 
 
 jiort must l)c safe for the particular ^lip laden as 
 slie is during the time which will he occujiicd hy her 
 discharge, and where a safe port has heen stipulated 
 for, the charterer is not entitled to have the uuload- 
 ing done partly outside and partly inside the port ; 
 therefore it must he one into which she can safely 
 go and lie mth all her cargo. 
 
 When it is agreed hy a charter-party that a ship 
 shall proceed to a " safe port, or as near thereunto 
 as she can safely get, and always lay and discharge 
 afloat," the master is not hound, if ordered to a 
 port which can only he entered by first discharging 
 part of the cargo, to allow such an amount to he 
 taken out as mil enable her to enter the port, even 
 if the lighterage can be done in a place and imder 
 circumstances which mil not expose the vessel to 
 danger ; and in such a case evidence that the custom 
 of the port is to lighten vessels, when necessary, 
 before entering the port, is not admissible. 
 
 The Alhambra,^ a Norwegian barque, of the 
 burthen of about 467 tons, was chartered at Balti- 
 more, to go from that place to Palmouth for orders, 
 and thence to a safe Port in the United Kingdom, or 
 central Ports on the Continent, or " as near thereunto 
 as she could safely get, and always lay and discharge 
 afloat." It was provided also, among other things, 
 that lighterage (if any) should be always at the risk 
 and expense of the cargo. The cargo consisted of 
 Indian corn in bulk and in bags. No port was 
 
 > TLo Alhambra, L. E. G P. D. 68 ; 50 L. J. Ad. 36.
 
 I 
 
 StAFTJ PORT. IC: 
 
 mentioned in tlie cliartcr-party. On arrival of the 
 ship at I'^ilmoutli the indorsees of the hills of lading 
 directed the master to proceed to Lowestoft, and 
 there discharge the cargo. The Alhamhra's draught 
 was such tbat she could not lie in the Lowestoft 
 harbour without taking the ground at low water, 
 unless the greater j^art of her cargo had been dis- 
 charged. The charterers, however, offered to 
 lighten her sufllciently in Lowestoft Roads, which 
 is a safe unloading place outside the harbour. 15 ut 
 the master refused to proceed to Lowestoft on the 
 ground that Lowestoft was not a safe port and pro- 
 ceeded to Harwich. 
 
 James, L. J., in delivering judgment said, " A safe 
 port is a port into which she could ' safely get, and 
 always lay and discharge afloat.' The question is, 
 whether Lowestoft is a port of that kind. Now, 
 it is conceded that Lowestoft is not a port in 
 which a ship of the size and burthen of this 
 ship could safely lay. It appears to me that 
 it is not made a safe port — a port in which the 
 ship can lay with safety and discharge afloat — 
 because there is something outside, some little 
 distance from the port, a place in Avhicli the ship 
 can lay afloat, and within which jilace she can 
 discharge part of her cargo ; and then Avhen she 
 has discharged a sufficient part of her cargo, she can 
 get into the port Avhicli is named. They never enter- 
 ed into a contract to go somcAvhere to a port which 
 was not safe, but a port which would be safe if
 
 166 LEGAL EFFECT OF THE CLAUSES. 
 
 they stopped at some other place near it, and with 
 a little manipulation of the cargo made the ship fit 
 to go into that port. That was not the bargain. 
 The bargain was in plain English, that she should 
 go to a port, provided the other party named a 
 port, whicli in itself and l)y itself was a port 
 safe for a ship of such a burthen." Brett, L. J., 
 said " It should be a port in which she might 
 always lay and discharge afloat ; the meaning of 
 that is, that it should be a port in which, from the 
 moment she went into it in the condition in which 
 she was entitled to go into it — from that moment 
 she should be able to lay afloat, and that she should 
 be able to lay afloat, nntil the time Avhen she was 
 fairly discharged. The condition in which she was 
 entitled to go into this port would be ' fully loaded,' 
 and she was not bound to unload before she got to 
 that port. The order to go to Lowestoft was not to 
 go to Lowestoft roads, but to go to Lowestoft har- 
 bour. The question must be, whether Lowestoft 
 harbour was a place into which she could go fully 
 loaded, and lay afloat from the moment she went 
 into it so fully loaded until she was discharged. 
 In my opinion it was not." 
 
 The same principle applies where a ship is chartered 
 to " deliver her cargo at any safe berth as ordered." 
 
 Thus where it was provided that the chartered 
 vessel, being loaded with her cargo, should "proceed 
 to the Mersey (or so near thereto as she may get,) 
 and deliver the same at any safe berth as ordered on
 
 SAFE PORT. 167 
 
 arrival in the dock at Garston" : — Ilcld, in an action 
 for demurrage, that tlic carrying voyage ended, and 
 the obligation of the charterer to take delivery 
 commenced, not on the arrival of the vessel in the 
 dock, but on her arrival at a berth as ordered.^ 
 Lord Esher, M. E.., said : " Charter-imrties often 
 state that the voyage is to end "svlien the ship arrives 
 at a particular port, or part of a river, or in a 
 certain dock ; and Nelson v. DaliP shews how these 
 charter-parties are to be construed, but it does not 
 deal with a charter-party which describes the end 
 of the voyage l)y reference to an option to be exer- 
 cised by the charterer. In the present case, the 
 ship was to go to the Mersey and deliver the goods 
 at any safe berth as ordered on arrival in the dock at 
 Garston. Now, supposing the berths in the Garston 
 Dock had been numbered, and that the contract 
 had said that the ship was to deliver the goods 
 at, for example. No. 1 berth in the Garston Dock, 
 Nelson v. Dahl shews what the construction of such 
 a clause would be — namely, that the voyage would 
 not be at an end until the ship had arrived, and AAas 
 ready to deliver the goods at No. 1 berth. But 
 does not the contract say that Avliich is equivalent 
 to Avhat I have supposed ? When the contract says 
 that the ship is to deliver the goods 'at any safe berth 
 as ordered,' does not that give the plaintiffs the 
 right to fix the place where the carrying- voyage is 
 
 * The Thorsis Sulphur & Copper Co. Ltd. r. Morel Bros. & Co., L. R. 
 (1891) 2. Q. B. 647; 01 L. J. Q. B. 11. 
 
 » L. R. 12 Ch. D. 568 ; L. R. 6 App. Cas. 38.
 
 168 LEGAL EFFECT OF THE CLAUSES. 
 
 to end? In my opinion, apart altogether from 
 authority, it does. In Tapscott v. Balfour,^ it was 
 laid doT^Ti that if delivery Avas to be at one of two 
 or more places 'as ordered,' the moment the 
 charterer names the place he fixes the end of the 
 voyage as much and with the same consequences 
 as if the place had been named in the charter- 
 party. Tapscott V. Balfour^ was decided nearly 
 tAventy years ago, and, unless the Courts thought it 
 clearly wrong, they ought to follow it, inasmuch as 
 it decided a question as to the construction of 
 mercantile documents in that form in frequent use, 
 and upon the basis of that construction many con- 
 tracts have since been entered into. So far, 
 however, from having any doubt of the correctness 
 of the decision in Tapscott v. Balfour,^ in my 
 opinion it was clearly right. The words ' as order- 
 ed' would have no meaning unless they gave the 
 charterer an option to settle the end of the voyage. 
 In that case the option was to name a dock ; here 
 it is to name a place in a dock, but it is such a 
 place that, when the charterer has exercised his 
 option, the place named by him, if it had been 
 named in the charter-party, would fix the end of 
 the voyage. Therefore, when he has named that 
 place, the voyage is at an end when the ship arrives 
 there, and the rights and liabilities of the parties 
 are determined accordingly. To my mind, Murphy 
 
 i;L.R. 8 C. p. 46 ; 42 L. J. C. P. 16.
 
 SAFE PORT. 169 
 
 V. Coffin^ follows and adopts Tapscott 27. Balfour, and 
 was rightly decided. 
 
 And in Graham r. Mervanji Nusservanji^ it was 
 laid doAvn that where a vessel is chartered to load a 
 fall and complete cargo and being so loaded to pro- 
 ceed therewith to a ' safe port or so near thereunto 
 as she may safely get, and deliver the same always 
 afloat ;' the master is not bound to sign bills of 
 lading for, or to sail to, a port ^\-here the vessel can- 
 not, by reason of her draught of water, lie and 
 discharge ' ahvays afloat ' without being previously 
 lightened, even if the cost of the requisite lightening 
 would, by the charter-party, fall on the charterers. 
 
 But apart from express stipulation, the port 
 named need not be physically safe at the very time 
 of the order being given, or of the vessel's arrival. 
 A temporary obstacle does not make it imsafe.^ 
 The port however must be politically safe at the 
 time when it is named by the charterer.* A 
 ' safe port ' being stipulated for, the words are not 
 satisfied by the natural safety of the port named, if 
 the vessel would be exposed to confiscation or capture 
 upon entering it."° 
 
 AVhere bills of ladim? have been signed for goods "And bound 
 
 ^ , for." 
 
 which have been laden upon a vessel to be carried 
 on a particular voyage, the contract is that the same 
 should be carried in the ship upon that voyage for 
 
 * L. R. 12 Q. B. D. 91. = I. L. R. 5 Bom. 539. 
 
 » Parker v. Winlo, 27 L. J. Q. B. 49 ; Allen v. Coltart, L. R. 11 Q. B. D. 782. 
 ♦ Ogdeu v. Graham, 31 L. J. Q. B. 26. » The Teutonia, L. K. -1 P. C. 171. 
 
 22
 
 170 LEGAL EFFECT OF THE CLAUSES. 
 
 freight, and this contract cannot be set aside 
 without the consent of both parties to it.^ 
 
 Thus where goods were shipped at London, and 
 bills of lading for the same had been signed by the 
 master making them deliverable at Lisbon, and the 
 merchant afterwards sought to change the voyage to 
 Gibraltar, Lord Ellenborough said, "After the 
 freighter's order to the Captain to go to Lisbon, and 
 the latter had received on board goods and executed 
 bills of lading for that place, it was not competent 
 for the freighter to countermand that order; he could 
 not capriciously change the destination of the vessel 
 withoutrecallingthebills of lading, or at least offering 
 sufficient indemnity to the Captain against them.^ 
 
 In the case of Bahadoor v. The British India 
 Steam Navigation Company,^ which was an action 
 for non-delivery per S.S. "Goa," offourbalesof piece- 
 goods at Cuttack, it appeared that the bill of lading 
 contained the words '* Calcutta to Palse Point for 
 Cuttack." It was shown in evidence that Cuttack, a 
 place eighty-four miles distant from Palse Point, was 
 approached partly by river and partly by canal, and 
 it was alleged was part of the port of False Point, the 
 use of which latter place was only commenced in 1876 
 during the Orissa famine ; that there were no houses, 
 stores, wharfs^ or godowns, and no place to land 
 goods, or persons there to receive them. The 
 defendants were in the habit of transhipping the 
 
 1 TincTaU v. Taylor, 24 L. J. Q. B. 16. 
 » Davidson v. Gwynne, 12 East 389. 
 a See Mit. Mar. Keg., 30tli Au ust 1878.
 
 NAME OF PORT. 171 
 
 goods at Palse Point for Ciittack in boats either 
 ])clonging to or used by them, for which a separate 
 cliarge was made on the consignees. It was hekl tliat 
 tlie defendants were not bound under the bill of lading 
 to carry the goods further than False Point, and 
 were not responsible for any subsequent loss. 
 
 It has been held that a vessel anchoring off 
 Atcheepore cannot be said to have arrived at the 
 port of Calcutta.' 
 
 The bill of lading must be construed, like other 
 contracts, according to the intention of the parties ; 
 and usage of trade is always presumed to be within 
 the knowledge of the parties, and contracts to 
 proceed from one port to another, are supposed to be 
 made in reference to it. Therefore, in an action 
 against the defendant, the owner of a sloop, for a 
 loss sustained by the plaintiff, in consequence of a 
 deviation by the master, the defence was that the 
 sloop was a general coasting vessel from New York 
 to Norfolk and other places on the Chesapeake, and 
 rivers running into that l)ay ; it was the usage of 
 such vessels to take freight for several ports, 
 stopping at the first port, and passing on to the 
 others successively, leaving the goods taken for each 
 and taking in other goods ; this usage was general, 
 and public evidence of usage being offered, and the 
 plaintiff's knowledge thereof proved, the Court held 
 that the prima facie intention of a direct voyage was 
 
 ' Pottei' V. Gentle, Bourke's Rep. 41.
 
 172 LEGAL EFFECT OF THE CLAUSES. 
 
 subject to the contract which was controlled by the 
 usaofe so known and established.^ 
 
 If the goods are not delivered to the consignees 
 at the place named in the bill of lading, and the 
 owners of the goods obtain delivery of them at a 
 port other than that specified in the contract, and 
 not from the master but from third parties, into 
 whose possession the same have come, not through 
 any peril of the sea, but from the fraud and mis- 
 conduct of the master, the latter will be liable in 
 damages to the consignees. 
 
 Thus, where battens were shipped on board the 
 *' Princess Royal," to be taken from Elsinore to 
 Hartlepool, and on the voyage she was improperly 
 mjured and abandoned by the master, who was also 
 owner of the vessel, and was subsequently found 
 and taken into Middlesborough by the salvors, to 
 whom the consignees had to pay a large sum to 
 obtain their cargo ; they were held entitled to 
 maintain an action against the master and owner 
 for recovery thereof.^ 
 '^Axii It occasionally becomes necessary in certain 
 
 trades to designate more than one port in the bill 
 of lading as the port of discharge, and provision is 
 made for this by the insertion of the words ^ 
 between the ports mentioned, and where these 
 words occur, they imply a choice of a port from 
 several ports, but the master is only bound to go 
 to the one finally determined upon. 
 
 ^ Ang. on Car,, s. 179. 
 
 » The Princess Royal, L. R. 3 A. & E. 41 ; 39 L. J. Aclm., 45. 
 
 Or."
 
 ''VIA THE SUEZ CANAL." 173 
 
 These words are now almost invariablv to be found "^»'^,^^e Suez 
 
 ■- (.anal. 
 
 in the Eastern Trade bills of lading, and the voyage 
 is thereby specially restricted to this route and 
 no other. The question of deviation from a voyage 
 limited by words of this nature came under 
 judicial notice in the case of Hand v. Baynes/ where 
 the defendant, who was the owner of a line of vessels 
 engaged in transporting goods from Philadelphia 
 to Baltimore, received certain goods belonging 
 to the plaintiff on board of one of his vessels, and 
 gave a receipt in the follo-uing words : "Received on 
 board of Hand's line for Baltimore via Chesapeake 
 and Delaware Canal, from J. B. (the plaintiff), one 
 hundred shiughter hides on deck, which I promise 
 to deliver to J. H. at Baltimore, the dangers of the 
 navigation, fire, leakage, and breakage excepted." 
 The vessel left Philadclpliia, and on arriving at the 
 mouth of the canal, the Captain was informed that 
 the locks were out of order, and that he could not 
 be allowed to pass through the canal. He then pro- 
 ceeded down tlie bay and out to sea, with the 
 intention of going round to Baltimore, but in a gale 
 of wind tlie vessel struck on a shoal, and with the 
 carsjo was totallv lost. 
 
 It was held, that the contract was a contract to 
 carry the goods to Baltimore through the canal, 
 and that the circumstances did not excuse the 
 deviation from that route ; that by an alteration of 
 the voyage the shipper Avas exposed to risks which 
 
 » -4 Wbart. 204, cited in Aug. on Car., s. 177.
 
 174 LEGAL EFFECT OF THE CLAUSES. 
 
 he would not have voluntarily encountered ; that a 
 voyage by sea required vessels of a different de- 
 scription, differently found, and differently manned ; 
 and although the shipper might have been willing to 
 encounter tlie peril in a vessel adapted to the trade, 
 it did not follow that he Avould risk his j)roperty in 
 a vessel whose ordinary route was through the 
 canal. When the master discovered the impedi- 
 ments to the prosecution of the voyage, through 
 the route called for in the contract, his duty, the 
 Court held, was plain ; he had one of two courses 
 to pursue ; to remain in a place of safety at the 
 mouth of the canal, or in some convenient and safe 
 place in the neighl)ourhood, until the obstructions 
 were removed, or he should have returned and 
 informed the OAvners and shippers of the impracti- 
 caliility of proceeding through the canal. The 
 legal effect of the contract, the Court held, was an 
 engagement to carry and deliver the goods at 
 Baltimore in a reasonable time, and what would be 
 a reasonable time must be determined under all the 
 circumstances, \nth a view to the condition of the 
 canal, the season of the year, the state of the 
 weather, and such other matters as might enter into 
 the question. But, said the Court, where the con- 
 tract is express to deliver goods in a prescribed 
 time, no temporary obstruction, or the impossibility 
 of complying with the engagement, arising from 
 the condition of tlie locks on the canal, or any 
 other cause, would be a defence to a suit for a
 
 " VIA THE SUEZ CANAL:' 17 
 
 failure to perform the contract. The Court ^vas 
 further of opinion that the clause in the receipt 
 *' the clangers of the navigation," did not apply to 
 dangers caused by the canal's being, by inevitable 
 accident, rendered impassable ; and that occasional 
 interruptions of trade arising from breaches in 
 canals or other accidents are inconveniences, but in 
 no sense could they be considered as dangers of the 
 navigation, coming -vvithin the exception. 
 
 Where a collision in the Suez Canal has been 
 caused by the negligence of a Suez Canal Company's 
 pilot, compulsorily taken on board the wrong doing 
 shij^, the OAMier of such ship is not exempt from 
 liability for the damages arising out of the collision. 
 
 The effect of the Regulations for the Navigation 
 of the Suez Canal is to constitute the pilot taken on 
 board a ship traversing the canal the adviser of the 
 master, and to leave the control of the navigation 
 of the ship solely with the master. In an action 
 for damages by collision plaintiffs were the 0"\\Tiers 
 of the " Wistow Hall," and the owners of the "Guy 
 Manncring,^ " the defendants. The collision occurred 
 on the afternoon of the 1th of December, 1880, in 
 the Suez Canal. The " Wistow Hall" and the "Guy 
 Mannering" were both proceeding in the same direc- 
 tion, namely towards Suez, the "Wistow Hall" being 
 the headmost vessel. The "Wistow Hall" had to stop 
 her way in order to allow some vessels coming from 
 Suez to pass, and it was the duty of the "GuyMan- 
 
 1 The Guy Manneriug, L. R. 7 P. D. 132; 6 Asp. Mar. L. Cas. 485, 553.
 
 176 LEGAL EFFECT OF THE CLAUSES. 
 
 nering" to stop lier way also, so as not to run into 
 the Wistow Hall ; but the proper measures were not 
 taken in time on board the " Guy Mannering," and 
 before lier way was stopped she forged ahead into 
 the " AYistow Hall," so that her stem cut into the 
 the stern of the "Wistow Hall," and did the damage 
 complained of. The facts were that the engines of the 
 " Guy Mannering" were stopped, but she still went 
 on ahead with the way she had had previously ; that 
 the master of the*'GuyMannering" saw that his ves- 
 sel was approaching too close to the " Wistow Hall," 
 and informed the pilot of it and suggested to him 
 that the engines should be moved astern. The pilot 
 however, refused to give the order to the engines, 
 whereupon the master, having more than once 
 suggested to the pilot to give the order, gave it 
 himself, but too late, and though it was obeyed 
 the collision ensued. The plaintiffs admitted that the 
 collision was solely caused by the pilot's negligence. 
 The defendants admitted that this collision was 
 caused by the bad navigation of the "Guy Manner- 
 ing," and that her master and crew were their ser- 
 vants, but they claimed exemption from liability for it 
 on the ground that they were compelled by the law 
 in force in the Suez Canal, to which all vessels 
 passing through the said Canal are subject, to give 
 up charge of the navigation of their 'ship to one of 
 the pilots employed by the Suez Canal Company, 
 whom they had taken on board, and on the ground 
 that the collision was entirely occasioned by his 
 bad navigation.
 
 " VIA THE SVEZ canal:' 177 
 
 The provision for the employment o£ pilots in 
 tlic Suez Canal is contained in the " Regulations for 
 the Navigation of the Suez Maritime Canal." 
 
 The plaintiffs admitted that these regulations 
 Avere hiAvfully in "force, and that the pilot taken on 
 hoard the " Guy Mannering" was a Company's pilot, 
 and was on hoard her hy virtue of these regulations. 
 Tlic cpiestion for the opinion of the Court was 
 whether the defendants were liahle, or were ex- 
 (Mupted from liahility, for the aforesaid had navi- 
 gation of their ship. 
 
 Sir Ft. Phillimore in delivering judgment said : 
 " It is admitted that the collision w^as solely caused 
 hy the negligence of the pilot, and that the master 
 and crew were the servants of the defendants. 
 But the defendants claim exemption from liahility 
 on the grounds that they were compelled hy the 
 laA^'s in force on the Suez Canal to giro up the 
 charge of the navigation to one of the pilots em- 
 ployed hy the Suez Canal Company, and that the 
 collision Avas entirely caused hy his had navigation. 
 The defendants maintain that inasmuch as the pilot 
 on hoard the " Guy Mannering" was taken on hoard 
 hy compulsion of law, the master is not responsihle 
 for the had navigation of the ship which caused the 
 collision. It must he rememl)ered that this ex- 
 emption from liahility is founded upon the principle 
 that the pilot is taken hy compidsionof law,and that 
 to him is committed the sole charge of the sliip. 
 These, at least, are the positions of British law 
 which were relied upon hy the defendants ; hut in 
 the present case it is expressly declared in the 
 23
 
 178 " VIA THE SUEZ CANAL:' 
 
 "Articles of tlic Suez Canal Ptcgulatioiis" lliat the 
 duty of the pilot is to act as the adviser of the 
 Captain in matters requiring local and practical 
 kno^^^ledge of the Canal ; but that the responsibility 
 as regards the management of the ship devolves 
 solely upon the master. This regulation appears 
 to me to alter the usual relations of the master and 
 pilot, and to take away the reason of the law upon 
 which the exception rests. Uj)on the Avhole I am 
 of opinion that the defendants are liable for the bad 
 navigation of their ship and the damages consequent 
 thereupon." Brett, L. J., said : " All the theory 
 on which the English law is founded seems to fail 
 in this particular case ; because, here, the duty of 
 the pilot is not the same as the duty of an English 
 pilot, and by this somewhat curious enactment it 
 seems to me that the pilot does not take, in this 
 Canal, the control or management of the course of 
 the ship. lie is on board of her. The Captain is 
 bound to take him and Ijound to pay him ; and he 
 is bound to pay him, though the man is not bound 
 to perform the duties of an English pilot. Part of 
 the obligation which is assumed by a pilot in 
 British Avaters is Ijy this regulation thrown upon 
 the Captain of the shij). The Suez Canal pilot is 
 placed at the disposal of the Captain of the vessel 
 because of his practical knoAvledge of the naviga- 
 tion of the Canal. But the Captain is supposed 
 to acquire the knowledge and to steer the ship so 
 as to avoid danger in the navigation of the canal. 
 But as to the peculiarities of the steamers and the 
 machinery for stopping and going on, &c., tlie 
 control and management in these respects devolve 
 solely upon the Captain."
 
 179 
 
 Extracts fro:m "the REGiJLA.Troxs for the Navigation' 
 OF the Scez Maritime Caxal." 
 
 {Issued January 189S.) 
 
 ART. 2. 
 
 Tlie transit through the Suoz Canal in op?n to shijis of all 
 nationalities, jn-ovided that their draft of ^^ater does not exceed 
 seven metres and eighty centimetres (25 ft. 7 in. English), and that 
 they conform to the following conditions : — 
 
 Sailing vessels above fifty tons arc bound to be towed thro.' Steam 
 vessels may pass thro' the Canal by means of their o^vn steam power 
 or be towed. 
 
 ART. 4. 
 
 Every vessel measuring more than one hundi*ed (100) tons gi-oss 
 must take on board either for entering or clearing the ports of 
 Port-Said and Port-Thewfik, or for passing throxigh the Canal, 
 a i^ilot of the Company who will furnish all particulars as to the 
 course to be steered. 
 
 The Captain is held responsible for all groundings and accidents 
 of whatsoever kind, resulting from the management and manoeuvring 
 of his ship by day or by night. 
 
 Pilots place at the disposal of Captains of vessels their experience 
 and practical knowledge of the Canal ; but as they cannot be 
 specially acquainted with the defects or peculiarities of each 
 steamer and her machiuei-y, in stopping, steering. &c. the respon- 
 sibility as regards the management of the ship devolves solely upon 
 the Captain. 
 
 ART. .5. 
 
 The following written information must be handed in l>y the 
 Captain : — 
 
 Name and nationality of the ship, to bo ideutidol by exhibiting 
 the ship's papers respective thereto. 
 
 Name of the Captain.
 
 180 
 
 Names of tlio owners and cliavtcroi'fs, 
 
 Port of sailing, 
 
 Port of destination, 
 
 Draft of water, 
 
 Nnmber of passengers as sliewn by tlie passage list. 
 
 ART. 6. 
 
 Tlie Company determine the hoar of departnre of eacli ship and 
 her subseqnent stopjiages at sidings, in sneh manner as to give full 
 security for the navigation as well as to ensnre as much as possible 
 the rapid passage of mail steamers. 
 
 Therefore no ship can demand as a right an immediate passage 
 through the Canal neither will any claim be admitted in connection 
 with any delay originating from the foregoing causes. 
 
 Unless otherwise ordered, ships engaged ni30n mail service, under 
 the conditions specified in the next iDaragraph, happening to be in 
 any of the sidings between Port-Said and Bitter Lakes, or being 
 at anchor or stopped in Lake Timsah or at the South Light or 
 North Light berths, at the same time with other ships whether ships 
 of war or merchant ships, are authorized to pass such other ships 
 and to continiie their journey first, in their resj)ective order of 
 arrival in the siding or in the Lakes. 
 
 Mail steamers, viz : steamers performing a regular mail service 
 under contract with a Government, at fixed dates appointed in 
 advance and having been duly vouched for as such, shall carry at 
 the foremast head a blue signal with the letter P. cut out in blank 
 in the centre. 
 
 ART. 8. 
 
 Navigation by night time for steamers imj)rovidcd with electric 
 light is only authorized under exceptional circumstances, the Captain 
 accepting full responsibility in writing for any delay, mishap and 
 damages that might happen to his own ship, as well as for any 
 similar accidents he might cause to other ships in transit or to the 
 Company's craft and i)lant happening to be in the Canal. 
 
 6. Whenever a collision appears probable, no ship must hesitate 
 to run aground and thus avoid the collision. The expenses conse- 
 quent upon grounding uiidor these circumstances shall be defrayed 
 by the ship in faixlt.
 
 181 
 
 ART. 9. 
 
 In tlio ovcnt of a ^roiindinj;, the agents of tlie Company alone 
 shall have the ris^ht to direct all operations by which a vessel is to 
 lie floated off again, to unload and tow the vessel as may be neces- 
 sary, by means of the plant and stock which the Company has at 
 hand, at the expense of the vessel, unless it be regularly proved that 
 there was an insvifficient depth of water in the Canal or that the 
 erroneous direction by the pilot had caused the grounding. 
 
 The aforesaid costs of floating, towing, discharging and reloading, 
 itc, must be paid comformably with a statement or estimate di-awn 
 up by the Company, before the departure of the ship from Port-Said 
 or Port-Thewfik.^ All manoeuvres with the object of helping 
 grounded vessels to get off are formally prohibited to other ships 
 in transit. 
 
 » From the 1st October 1883, (sic) and until further orders, whenever a ship 
 going through the Canal happens, except in roads and ports, to ground or stop 
 ill consequence of an accident independent of collision, the Company, in order to 
 riMuovetho obstraction in tbe fair way with all possible speed, and to hasten the 
 restarting of the grounded or stopped sbip, will not claim from tbe Captains, the 
 consignees, or tbe sbipowners, the reimbursement of whatsoever expenses in- 
 curred in refloating the ship, and, if deemed necessary, for towing her o< far as 
 the next siding. If from such siding the ship continues her journey in tow she 
 must pay towage charges according to rates annexed to the present regulations. 
 
 It is moreover well understood that ships will have to boar all expenses incur- 
 red for tbe necessary repairs or putting into condition with a view to remedy 
 such damages as might interfere with their restarting, whatever be the time at 
 which these damages may have occurred, and that the said ships will remain 
 responsible for the damages which may be tbe consequence of their grounding. 
 
 The Company will continue to perform the work of refloating the grounded 
 ships uuder the supervision of tiicir ofHcers exclusively and will use first the 
 moans available on board, and :;fterward3 or simultaneously, the machiat-ry or 
 appliances belonging to the Company. 
 
 Faris, Sej^temhcr 6th ISO,?. 
 
 (Sigd.) FERD. De LESSEPS, 
 
 President-Director.
 
 182 LEGAL EFFECT OF THE CLAUSES, 
 
 " Or so near It Ims been long established that where a vessel 
 ske^migbt is bound to a particular port, " or so near thereto 
 
 safely get; 
 
 as she can safely get," this must be taken to mean 
 some place " within the ambit" of the port, though 
 she may not be able to enter it,^ and it has been 
 held that the stipulation to proceed to such a place, 
 or so near thereto as the vessel can safely get, 
 necessarily comprehends her safety also in coming 
 away when loaded, and justifies the vessel in cross- 
 ing the bar at the harbour entrance with what 
 cargo she can carry in doing so, and lying to 
 outside for the rest of her lading.^ 
 
 But it was held that a vessel which was bound 
 to Galatz, or so near thereto as she could safely get, 
 was not justified by this provision in proceeding to 
 Odessa instead, notwithstanding the water on the 
 bar at the mouth of the Danube had been too low 
 for many weeks to allow her to cross. ^ 
 
 A ship chartered to take a cargo from Alexandria 
 to a " safe port" in the United Kingdom or the 
 Continent, " or as near thereto as she can safely get, 
 and lie afloat at all times of the tide, and deliver the 
 same and so end the voyage," was ordered to Glasgow, 
 and on her Avay to that port she brought up off the 
 *' Tail of the Bank," an open channel in the river 
 Clyde off Greenock, tAventy-two miles below Glasgow. 
 The water at Glasgow was not such as to enable the 
 
 » Metcalfe v. The Britannia Iron Works Comi)any, L. R. 2 Q. B. D. 423 ; 
 46 L.J. Q. B. 413. 
 
 2 Shield V. Wilkins, 19 L. J. Ex. 23S. 
 = Schilizzi v. Dcrry, 21. L. J. Q. B. 196.
 
 " OR SO NEAR THERETO AS SITE CAN SAFELY GET." 183 
 
 i>\u]) to lie afloat ilicrc at cLb-lido; llio shippers 
 therefore lightened her at theTail of the Bank of jiart 
 of lier cargo. This is customary in such cases in 
 the Clyde (the Avords " according to the custom of 
 the port " m the printed form of the charter-jmrty 
 commg before the Avords " and deliver the same," 
 had been struck out before the instrument "svas 
 signed.) The ship, after being lightened, was 
 ordered up to Glasgow to deliver the residue of h(>r 
 cargo there. The master took her up under protest, 
 and discharged the rest of the cargo, and then 
 counting his lay days as beginning at the Tail of the 
 Bank, he claimed demurrage, and raised an action 
 in the Sheriff's Court, which was finally determined 
 by the Pirst Division of the Court of Session. There 
 it was held, (Lord Deas dissenting) that there was no 
 right to demurrage, as the Tail of the Bank A^■as 
 not to be deemed the port of discharge within the 
 meaning of the charter-party. The Lord President, 
 in delivering judgment, chiefly relied on the reason- 
 ableness of what had been done as the kind of 
 performance that was contemplated by the parties 
 to such an instrument, and indicated his opinion 
 that, if the lifrhtenin"- had extended to half the car^ro 
 ((( fortiori if more), his decision would have been, 
 the other way.^ 
 
 It cannot be laid down as an inflexible rule that 
 when a ship has got as near to the jiort as she can 
 get, and the only impediment to proceeding further 
 
 ' Ilillstrom r. Gihson, 8 Scss. Ca., p. -IG:? ; 21 L. T. 302; Ford v, 
 Coteswortb, L. K. 5 Q. B. 544 j 39 L. J. Q. B. IbS.
 
 181 LEGAL EFFECT OF THE CLAUSES. 
 
 is OYcrdrauglit, the master is under all circumstances 
 entitled to consider the voyage at an end. He is 
 bound to use all reasonable means to reach the port. 
 The Avords "as near thereto as she can safely get" 
 must receive a reasonable, not a literal, application ; 
 the overdraught may be such, and the cargo so 
 easily dealt ^vitli, as that the surplus may 1)0 removed 
 and the ship sufficiently lightened without exposing 
 her to extra risk or the owner to any prejudice, and 
 without substantially breaking the continuity of 
 the voyage ; and in such a case, if the consignee is at 
 hand to receive the surplus cargo and so relieve the 
 overdraught, it would be the duty of the master to 
 lighten the ship and proceed to the port. • This is 
 the principle laid down in the case of Hillstrom v. 
 Gibson.^ 
 
 So where by a charter-party it was agreed that a 
 ship should load a full cargo and proceed to a safe 
 port within specified limits, " or so near thereto as 
 she might safely get," the port to be named on signing 
 bills of lading, and the cargo to be brought to and 
 taken from alongside at merchants' expense. The 
 master signed bills of lading for delivery of the cargo 
 at Koogerpolden in Holland, a port which is situated 
 some distance from the sea up a canal, to which port 
 the ship had been ordered. 
 
 In the marghi of the bill of lading was inserted 
 the rate of freight and the words " and all other 
 conditions as per charter-party." The ship duly 
 
 1 8 Soii. Ca. 403. 
 
 1
 
 " OR SO NEAR THERETO AS SHE CAN SAFELY GET." 185 
 
 arriv^Gcl at NicuwctUop, wliich is at tlio mouth of the 
 canal, and it was impossible that she could proceed 
 further towards K., because her draught was 19J 
 feet, and the depth of the canal about fifteen feet 
 only. The plaintiffs, before the ship's arrival at N., 
 had Avritten to ask the defendants what course they 
 proposed to adopt, alleging that N. was as near to K. 
 as the ship could safely get. The defendants in 
 reply alleged that the plaintiffs had undertaken to 
 deliver at K. as a safe port, and that they should not 
 interfere. They declined to make any arrangements 
 for taking delivery of any part of the cargo at X. 
 Thereupon the master, on arriving at N., unloaded so 
 much of the cargo — about one-third of the whole — as 
 would admit of the ship passing into the canal, and 
 sent that portion by lighters to K., proceeding 
 thither with the rest in the ship. The action was 
 brought by the shipowners to recover pilotage, har- 
 bour dues and other expenses of going into port, and 
 demurrage. The Court was of opinion that the bills 
 ol: lading had not the effect of altering the contract 
 so as to l)ind the owners, as against the charterers, 
 to deliver at the port of K., and that the master 
 had no authority so to alter the contract if he 
 had intended to do so, but that he had signed the 
 bills of lading in the form presented to him in 
 compliance with, and in order to carry out, the terms 
 oE the charter-party. The only effect which could 
 be given to the bills of lading as between these 
 
 parties was, to preclude the plaiutiffs from objecting 
 24
 
 186 LEGAL EFFECT OF THE CLAUSES. 
 
 tliat K. was a safe port, and to bind the plaintiffs to 
 tlie same extent as and no farther than if K. had 
 been named in the charter-party as the port of 
 discharge ; and it was held that under the circum- 
 stances the master was justified in considering the 
 voyage to he at an end at the mouth of the canal, 
 and in treating it as the place of discharge, and that 
 the plaintiffs were therefore entitled to recover.^ 
 
 In Hayton v. Irwin,^ a vessel was to deliver at 
 a safe port, " or so near thereto as she can safely 
 get." She was ordered to Hamburg, and proceeded 
 thither ; but her draught prevented her getting 
 further up the river than Stade. The Charterer 
 refused to take delivery of any part of the cargo 
 at Stade ; and, in answer to an action for the cost 
 incurred in lightering up to Uamburg so much as 
 was necessarily discharged, he alleged a custom of 
 the port of Hamburg by which he was not bound 
 to take delivery anywhere but at that place, and 
 was not liable for any such expenses. It was held 
 by the Court of Appeal, that the alleged custom 
 was inconsistent with the contract ; for it required 
 the ship to deliver at Hamburg whether she could 
 get there or not. The Charterer was bound to take 
 delivery at Stade until the vessel was sufficiently 
 lightened to enable her to proceed. 
 
 Where the cause has been physical, it has been 
 often decided that if the obstacle was only temporary, 
 it was not, however complete for tlie time, sufficient 
 
 » Capper & Co. v. Wallace, L. R. 5 Q. B. D. 163 j 49 L. J. Q. B. 350. 
 ' L.H.o C. P. D. 130.
 
 " on so NEAR THEEETO AS SHE CAN SAFELY GET.'* 1S7 
 
 to enable the shipowner to insist on the substituted 
 or alternative place of delivery.^ The term always 
 used has been that the obstruction must be 
 permanent, and the provision in a charter-party tliat 
 a ship is to be brought to a particular j^lace, *' or as 
 near thereto as she may safely get/' refers to the 
 sliip being prevented from getting to her primary 
 destination by any permanent obstacle other tlian an 
 accident of navigation, not merely by an obstacle 
 endangering lier safety : and if the master brings his 
 ship as near as she can safely get to the place named 
 for the discharge of liis vessel, and he is prevented 
 from going to the place itself by reason of some 
 permanent obstacle, he would be entitled to recover 
 demurrage and damages for detention. 
 
 AYlicre a cargo of Railway iron Avas shipped under 
 charter to be carried from M. to Tasranroi}:, " or so 
 near thereto as she might safely get," and by the 
 bills of lading and charter-parties it was to be 
 delivered at the port of T. On arrival on the 17th 
 December at Kertch, thirty miles short of T., the 
 master found that further navigation was impossible 
 owing to the ice, and that the port of T. would not be 
 open again until April. lIe,therefore,not withstanding 
 express notice from the charterers at T. not to do so, 
 discharged the cargo at K., the nearest port to T. to 
 which he could safely get, and placed it in the 
 charge of the custom-house authorities and left 
 without any intention of returning or carrying on 
 
 ' Schilizzi V. DeriT, 4 E. & B 875 ; Bastifell v. Lloyd, 1 H. & C. 388 ; 
 Pai-ker v. Winlo, 27 L. J. Q. B. 19.
 
 LEGAL EFFECT OF THE CLAUSES. 
 
 tlio carpjo to T., Avliicli liad been taken possession 
 of 1)}^ tlie consignee's agents under tlic bills of 
 lading. It -was said in judgment that there was no 
 pretence for saying that Kertcli was Avithin the 
 ambit of Taganrog, and Coleridge, C. J., remarked, 
 " It was clear that the obstruction of the port was a 
 temporary one, such as must bo incident to every 
 autumnal contract of this nature, and common sense 
 revolts against the idea that in particular instances 
 Avhen the contract relates to a sea liable to be frozen, 
 the words ' at that time,' or ' then and there,' are 
 to be inserted after ' as near thereto as the ship 
 can safely get.' It would astonish mercantile minds 
 if such words were, and there is no authority for 
 saying that they should be, inserted," and the suit, 
 which was brought l)y the shipowners against the 
 charterers for recovery of freight, was dismissed. ^ 
 
 The question as to the effect of a vessel being 
 prevented from reaching her named place of discharge 
 by other than physical causes, first came l)cfore the 
 English Courts in 1870. 
 
 By a charter-party made Ijctween the owners 
 of the " Euxine " and a London merchant, it was 
 stipulated that the steamer " E" should load a cargo 
 of deal timber in the Baltic and proceed to the 
 London Surrey Commercial Docks, " or as near 
 thereunto as she might safely get," ten lay days being 
 allowed for the discharge. The S. C. Docks Avere 
 private docks adjoining the port of London, and the 
 
 1 jretcalfe v. The Britannia Iron W(Mks Co., L. R. 2 Q. B. D. 423; 4G 
 L. J. Q. B. 4J3.
 
 ''OnSO KFAn TJTEnETO A^ !^nECAX FiATETT CFT:' 180 
 
 (Icfondant; appliod to tho owners of tlio docks for a 
 l)ertli for unloading tlie ship, but was unable to obtain 
 one in consequence of tiie crowded state of the docks. 
 The plaintill's l)roug-ht the ship to London and 
 applied at the dock Grates for admission, but were 
 refused, and accordingly moored tlie shiji at the 
 nearest safe phice. The defendant made no other 
 arrangement for unloading the ship, and the ])laintifFs 
 ultimately themselves unloaded the ship by lighters 
 into the S. C. Docks, and claimed demurrage and 
 damages for the detention of the ship. The plaintiff 
 was held entitled to recover, as the vessel had been 
 prevented from entering the said docks solely by the 
 action of the i")roprietors of those docks, and that as 
 the causes of the refusal, and the refusal would 
 have lasted for several months, the plaintiffs Avere 
 prevented from getting their ship to itsdestinationby 
 an obstruction and disability of such a character that 
 it could not l)e overcome by the shipowner by any 
 reasonable means except within such a time as, 
 having regard to the object of the adventure of the 
 shipowner and charter v^^r, was a matter of business 
 Avholly unreasonable.^ The principle laid doAvn in 
 this case was followed in ^lurphy v. Coffin & Co. - 
 
 A decision similar to the above had been given 
 in Scotland in 1877, in a case where a ship was 
 chartered to load a cargo of scrap iron and therewith 
 to proceed to G., or " so near thereto as she may 
 
 ,' Nelson r. Dal.l, L. W. G App. Cas. 38 ; 50 L. J. €li. HI. 
 - L. K. 12 Q. B. D. ST.
 
 190 LEGAL EFFECT OF THE CLAUSES. 
 
 safely get." On lOtli September she arrived at G., 
 bat the docks were full. On the 12th she was 
 anchored off the entrance of one of the docks, where it 
 was proved that ships used to be unloaded of similar 
 cargoes by means of lighters, but there had been no 
 practice as to scrap iron. On the 13th, the master 
 intimated he was ready to discharge, but the 
 discharge did not commence until the 22nd, and was 
 completed on the 28th September, when the vessel 
 had been removed into the docks. Held, that 
 demurrnge was due from the lltli to the 28tli 
 September. Per Lord President Inglis : "There is 
 no difficulty in the rule of law, which is recognized 
 both here and in England. A vessel, where she 
 undertakes to go to a certain port, does not fulfil her 
 obligation unless she goes either to the appointed 
 place of discharge, or to an usual place of discharge. 
 I am of opinion that the obligation in this case was 
 fulfilled, and that the charterers, though they desired 
 to get the vessel into the railway dock for the 
 purpose of discharging on to trucks, could not 
 reasonal)ly refuse to take delivery where the ship 
 lay, when the result was to cause delay. "^ 
 
 In Horslcy v. Price^ the charter-party provided 
 that the ship should proceed to Sharpness, " or so 
 near thereto as she may safely get, at all times of 
 tide, and always afloat," and deliver the cargo. 
 On arrival in the Severn she came to an anchor in 
 King's Pi^oad, an open roadstead without any wharf ; 
 
 1 Bremner v. Barrcll & Son, 4 Sess. Ca. 934. 
 > L. R. 11 Q. B. D. 244 ; 52 L. J. Q. B. 603.
 
 CALLING AT INTERMEDIATE rORTS. 191 
 
 that being tlie nearest place to Sharpness to uliich 
 she could get at the then state of the tides. Tsorth, 
 J., held that she had arrived at her destination, so 
 that the lay days began to run. 
 
 Provisions respecting the calling, touchiiig, or Piiiiini-at 
 staying at intermediate ports, are to be met Avith in ports'." 
 almost every character and form in bills of lading, 
 especially in those used for the carriage of goods by 
 steam-vessels, by the insertion of clauses similar to 
 the following : — 
 
 " AVitli liberty to call and receive cargo and pas- 
 sengers at." 
 " With liberty to call "-^ receive -"r land cargo 
 ^j- passengers at G. and M., and any other 
 ports whatever and in any rotation." 
 " "With liberty to call at any port or ports in or 
 out of the customary or advertised route in 
 any order ; to receive and discharge coals, 
 cargo, and passengers ; to land, re -ship, or 
 tranship, or forward the within or any other 
 goods by any other conveyance, vessel, or 
 vessels, and for any other purposes without 
 being deemed a deviation." 
 Tliese clauses have been interpolated into bills of 
 lading from policies of insurance, and holders of bills 
 of lading containing these clauses, should, at the 
 time of insuring their goods, require the insertion 
 of a clause in the policy defining the voyage, " with 
 liberties as per bill of lading." 
 
 ATith the exception of exonerating shipowners
 
 192 LEGAL EFFECT OF THE CLAUSES. 
 
 from losses occasioned by delay in the voyage, these 
 clauses are of hut little j^ractical importance as be- 
 tween the shipper and shipowner. 
 
 The liability of the parties under these clauses 
 in the bill of lading was determined by Leduc v. 
 Ward,^ in 1888, where the bill of lading stated that 
 goods were shipped upon the steamship A., now 
 " lying in the port of F., and bound for D., with 
 liberty to call at any port in any order and to de- 
 viate for the purpose of saving life or property, to 
 be delivered at the port of D. to order or assigns, 
 perils of the sea," &c., being excepted. It was held, 
 that this was a contract to carry the goods from 
 E. to D. by the ordinary sea track between those 
 places, calling at any ports that were substantially 
 on the line of that voyage in any order ; that the 
 conveying goods from 1\ to a port considerably out 
 of the course between E. and D. before proceeding 
 to D., Avas an unauthorised deviation; and that 
 the shipowners were liable to indorsees of the bill of 
 lading for a loss occurring through perils of the sea 
 during such deviation, notAvithstanding the excep- 
 tion. Lord Eslier said : "To suppose, that the 
 description of the voyage is no part of the con- 
 tract, is to disregard the Avhole course of mercan- 
 tile Imsiness. The voyage is a very important 
 part of the contract of carriage. The contract 
 is not simply to carry from one place to another, 
 but to carry from the one place to the other 
 
 1 L. K. 20 Q. B. D. 175 ; 07 L. J. l^. B. ■67'J.
 
 CALLING AT INTERMEDIATE PORTS. 193 
 
 by the ordinary and usual course. That is one part, 
 and a very important part of tlie contract of carriage. 
 If the sliip is to go to other places besides the port 
 of destination, that is provided for in the bill of 
 lading, and that is put into the bill of lading as part 
 of the contract of carriage. The bill of lading states 
 that the goods are shipped on a named ship lying in 
 the port of shipment and bound for the port of 
 destination. That being the universal mode of de- 
 scribing the voyage in the bill of lading, Avliat is the 
 construction that has always been put on that form 
 of words ? That form has received one universal 
 construction, both from merchants and Courts of 
 law. That is the ordinary descrij)tion of a voyage 
 from one point to another upon the ordinary sea 
 track from the one place to the other on such a 
 voyage. That course may vary with the winds, or 
 according to circumstances ; the ordinary sea track 
 is not a direct line that is always the same. It is 
 the ordinary track of the voyage according to a 
 reasonable construction of the term. If that is the 
 meaning of the bill of lading, how can the exception 
 apply to the facts of the present case P The perils 
 of a voyage from Rotterdam to Marseilles are not 
 the same perils as the perils of a voyage from 
 Liverpool to New York. This is a voyage from 
 Fiume to Dunkirk by the ordinary sea track ' with 
 liberty to call at any ports in any order.' It is 
 argued that that means that there is liberty to call 
 
 at any port in the world. Here, again, it is a ques- 
 25
 
 194 LEGAL EFFECT OF THE CLAUSES. 
 
 tion of what is the mercantile meaning of the words 
 used. The meaning obviously is, liberty to call at 
 any j^oi'ts on the yoyage. The ship may call at 
 those ports for any purpose ; in that respect she is 
 not confined at all. Moreorer, the meaning must 
 be that she is at liberty, not only to call, but to stop 
 for a time ; otherwise it would be useless to allow 
 her to call. Without such a provision, to stop at a 
 port, even though the ship is in her course, would 
 be a deviation within the meaning of a policy of 
 insurance. Then, if a ship is allowed simply to call 
 at any ports, that has been invariably held to mean 
 in their geographical order : so a further power is 
 given by adding the words ' in any order.' Those 
 words give the power of going back to any port that 
 has been passed. Therefore, the persons to whom 
 the shipper gave this bill of lading would know that 
 the ship was to go from Eiume to Dunkirk, calling 
 at any ports substantially on the line of that voyage 
 in any order. To go to any port beyond that line 
 was to commit a deviation and a breach of contract. 
 The defendants' ship went to Glasgow ; a port not 
 on the course of the voyage from Eiume to Dunkirk. 
 Thereupon the excej)tion in the bill of lading did 
 not apply to relieve them. They have failed to de- 
 liver the goods at Dunkirk, and are not within any 
 exception which excuses that failure. The principles 
 I have stated seem to me to be plain and business 
 like." 
 
 This case was followed in 1892, in Margetson v.
 
 CALLING AT INTERMEDIATE PORTS. 19^ 
 
 Glynn/ where oranges were shipped by the plaintiffs 
 on a steamer belonging to the defendants at ^lalaga, 
 for conyeyance to Liverpool. A bill of lading was 
 given as follows : " .Shipped .... npon the 
 ' Zena' now lying in the port of Malaga and bound 
 for Liverpool witli liberty to proceed to and stay 
 at any port or ports in any rotation in the Medi- 
 terranean, Levant, Black Sea, or Adriatic, or on the 
 Coasts of Africa, Spain, Portugal, France, Great 
 Britain, and Ireland, for the purpose of delivering 
 coals, cargo, or passengers, or for any other purpose 
 whatsoever." On leaving Malaga, the steamer 
 instead of sailing for Liverpool, proceeded to Bur- 
 riana, a port on the coast of Spain to the north- 
 east of Malaga, and about two days voyage from 
 IMalaga in the contrary direction to Liverpool, and 
 sailed thence to Liverpool. Owing to the delay 
 thus caused, the oranges were much damaged when 
 they arrived at Liverpool, lleld, in an action to 
 recover damages for injury to the oranges that the 
 general words in the deviation clause must be con- 
 strued with reference to, and be limited l)y, the 
 voyage agreed upon, which was from Malaga to 
 Liverpool, and would therefore only justify a de'vda- 
 tion to any port fairly on the course of the agreed 
 voyage, and that the defendants were therefore 
 liable for the damaire to the oransjes. 
 
 Lord Eslier, M. B. said : " I think that we are 
 bound to construe this bill of lading according to 
 
 > L. fi. (1892) 1 Q. B. 337 ; 61 L. J. Q. B. 186.
 
 196 LEGAL EFFECT OF THE CLAUSES. 
 
 the rule of construction laid down in Lcduc v. Ward/ 
 with which indeed I thoroughly agree. The first 
 thing which the shipper of the goods and the ship- 
 owner agree upon is the Yoyage, as was said in 
 Leduc V. Ward, in order that the shipper may get 
 his goods conveyed from one place to another hy 
 the required time, which is, of course, his ohject ; 
 while as regards the shipowner the freight he will 
 receive depends upon the length of the voyage. In 
 the case of a bill of lading, given after the goods 
 have been shipped, the voyage agreed ujDon between 
 the shipper and shipowner must, in the absence of 
 anything to the contrary, be taken to be from the 
 port where the goods are shijiped to the port of 
 destination. The voyage in this case, therefore, 
 was from Malaga to Liverpool, and, if there was 
 nothing else in the bill of lading, the vessel was 
 bound to go from Malaga to Liverpool according to 
 the ordinary course which a steamer would take on 
 such a voyage, and would not be entitled to call or 
 stop at any port on the way. In this bill of lading 
 we find the voyage described, and then this provi- 
 sion, ' with liberty to proceed to and to stay at any 
 port or j)orts in any rotation in the Mediterranean, 
 Levant, Black Sea, or Adriatic, or on the Coast of 
 Africa, Spain, Portugal, France, Great Britain, and 
 Ireland, for the purpose of delivering coals, cargo, 
 or passengers, or for any other purpose Avhatsoever." 
 That provision follows after the description of the 
 
 » L. R. 20 Q. B. D. 475 ; 57 L. J. Q. B. 379.
 
 CA LLTNG A T INTERMEDIA TE FOR TS. 1 9 7 
 
 voyai^o, and is a liberty to do something T\'ith regard 
 to that voyage as descrihcd. It lias been held by 
 the Courts in mercantile cases, that Avhere liberty 
 is reserved to call at any jiort, it means liberty to 
 call at any ports on the course of the agreed voyage, 
 though they may not be ports exactly on the 
 ordinary sea course "which a vessel would take on 
 such a voyage, and to call at them in geograjihical 
 order. Then the shipoAvners made agreements that 
 they should be at liberty to call at ports in any 
 order so as to get rid of the effect of these decisions. 
 In this case we find the words ' in any rotation,' 
 but those words are used with regard to the voyage 
 described, and mean any port on the described 
 voyage. They cannot reasonably mean that there 
 is to be liberty to go anywhere to any port which 
 has nothing whatever to do with the voyage describ- 
 ed. They must mean such of the places named 
 as are substantially on the course of the voyage 
 described, and that was the rule laid down in Leduc 
 r. Ward. If that be so, the result is this : that the 
 voyage agreed upon was from Malaga to Liverpool; 
 that the vessel went in the contrary direction to 
 Burriana about two days' voyage from INIalaga. 
 Now, can any reasonable person say that for the 
 vessel to go from Malaga to Burriana, and then 
 back again, was a voyage from Malaga to Liver- 
 pool ; or that it T^as in the course of such a voyage ? 
 I think not; it was a wholly and absolutely different 
 voyage from that described in the bill of lading.
 
 198 LEGAL EFFECT OF THE CLAUSES, 
 
 If a shipowner means to ship goods at different 
 ports, some, say at Malaga, and some at ports 
 further east, he should make up his mind at first, 
 and begin at the ports furthest east before shipping 
 goods at ]\Ialaga ; or, if he does as in this case, he 
 must take care to describe the Voyage in the bill of 
 ladmg given at Malaga, as a voyage from Malaga 
 to Burriana and thence to Liverpool, and then the 
 shipper of goods would knoAV where the vessel was 
 going to and what he was agreeing to. I am clearly 
 of opinion that according to the rules of construc- 
 tion laid down in Leduc?^. Ward, the true construction 
 of tliis bill of lading is what I have stated, and that 
 there was no liberty to go to places not on the 
 course of the voyage from Malaga to Liverpool." 
 
 "A port" implies any harbour which vessels can 
 enter, and Avhere they can remain in safety. 
 
 " A port of entry " is a port at which a custom 
 house is established. 
 
 Custom and long usage have prescribed in almost 
 all voyages a certain course of navigation, as the 
 safest, most direct, and expeditious mode of proceed- 
 ing from one of the termini to the other : the course 
 thus prescribed by usage is the lawful course of the 
 voyage contracted for in the bill of lading, and insur- 
 ed against ; and being a matter of general mercantile 
 notoriety, will be presumed to have been foreseen and 
 contemplated by the parties to the contract at the 
 time of entering into it. The underwriter agrees to 
 indemnify the assured upon the condition universally
 
 CALLING AT INTERMEDIATE PORTS. 199 
 
 implied, that the assured uill strictly pursue the 
 regular and customary course of the voyage insu- 
 red, and carry it to its termination with all safe, 
 convenient and practicable expedition, and the 
 underwriter will he freed from his liability from 
 the moment of any failure to carry out this condition. 
 
 This tacit understanding not to depart from the 
 lawful course of the voyage insured, is technically 
 called an implied condition not to deviate ; and a 
 deviation in the legal sense of this term may be 
 defined to be any unnecessary or unexcused de- 
 parture from the usual course, or general mode of 
 carrying on the voyage insured, by which the risk 
 is altered, though the original terminus ad quern 
 of the voyage insured is still kept in view.^ 
 
 If ports of call are named in a successive order, 
 the ship must take them in the same succession in 
 which they are named. 
 
 If they are not named in any order, they must 
 be taken in the order in which they occur in the 
 usual and most convenient and practicable course 
 of the voyage, not according to the shortest geo- 
 graphical distances. Any departure from the above 
 would be considered a deviation.^ 
 
 Thus, a ship was insured at and from Tisherrow 
 to Gothenburgh and back to Leith and Cockenzie. 
 It appeared in evidence that Leith was a very safe 
 and commodious harbour, and Cockenzie a very 
 small and insecure one, especially m the winter 
 
 1 Ariiould on M. I., 6tli ed. vol. I., p. 450; 3 Kent's Com. p. 424. 
 ' Gairdner i'. Seuhouse, 3 Taunt. IG; Jlarsdeu v. Reid, 3 East. 577.
 
 200 LEGAL EFFECT OF THE CLAUSES. 
 
 season. That the two places are about ten miles 
 apart from each other ; but Cockenzie lies nearer to 
 Gothenburgh than Leith, and it is about a mile and 
 a half out of the -way to put into Cockenzie in 
 going from Gothenburgh to Leith. There was no 
 settled course of trade to regulate the voyage in this 
 respect. The ship first put into Cockenzie, and in 
 coming out was stranded and was lost. It was held, 
 that the putting into Cockenzie first was a deviation 
 by which the underwriters were discharged.^ 
 
 But where the intentions of the contracting parties 
 are clear, a departure from the usual course would 
 not be a deviation. As where the policy was for 
 a voyage "at and from Martinique, and all and every 
 "West India Islands, to London," and the, vessel, 
 after leaving Martinique, sailed to St. Domingo, 
 which was much out of her course from Martinique 
 to London, and took in her cargo there, and was 
 captured on the voyage to London. Lord Mans- 
 field held that the clause in the policy warranted 
 a course from Martinique to islands not in the 
 homeward voyage.^ 
 
 A policy of insurance was effected on a vessel "at 
 and from Liverpool to ports and jilaces in China 
 and Manilla, all or any, daring the ship's stay there 
 for any purposes, and from thence to her port or 
 ports of calling and discharge in the United King- 
 dom, with liberty to call and stay at all or any ports 
 
 » Beatson v. Iiaworth,"6 T. R. 531. 
 » Bragg V. Anderson, 4 Taunt. 229.
 
 CALLING AT INTERMEDIATE PORTS, 201 
 
 or places on either side of, and at the Cape of Good 
 Hope." The vessel sailed direct from Liverpool to a 
 port in China, having on hoard a cargo for that port, 
 and also for Manilla. She afterwards discharged 
 the remainder of her outward cargo. At Manilla 
 the Caj)tain took on board on freight 230 chests of 
 opium for Tongkoo and sailed from Manilla (the 
 vessel not being a tenth part laden,) intending to 
 seek there a freight back to England, and whilst he 
 was sailing towards Tongkoo the vessel Avas by the 
 perils of the sea totally lost. Tongkoo is altogether 
 out of the regular coui'se of a voyage from Manilla to 
 England. It was held, that the sailing from Manilla 
 to Tongkoo was not a deviation, the words in the 
 policy meaning not "from Manilla" only, but "from 
 ports or places in China and Manilla, all or any."^ 
 
 If a ship is bound on a voyage " to ports of 
 discharge" which are not specifically named in the 
 contract, the rule is, that the ship must visit such 
 ports in the geographical order of tlieii' distance 
 from the port of departure. 
 
 Thus, where a ship was bound " from London to 
 her ports of discharge within the Straits of 
 Gibraltar as high as Messina," and sailed with a 
 freight for Marseilles, but with instructions to go 
 also to Genoa, Leghorn, and Naples ; on arriving off 
 Marseilles, her first port of discharge in geographical 
 order, as she was prevented by contrary winds from 
 putting in there, she proceeded first to Genoa and 
 
 » Ashley v. Pratt, 17 L. J. Ex, 135. 
 
 26
 
 202 LEGAL EFFECT OF THE CLAUSES. 
 
 then to Leghorn, from "svhicli latter place she was 
 making her way back to Marseilles, when she was 
 captured ; this sailing hack to Marseilles was held 
 to he a deviation.^ 
 
 If several successive ports of discharge are speci- 
 fically named, it is not necessary that the ship should 
 sail to all of them ; she may omit any, or sail only to 
 one, the sole limitation being, that if she visits more 
 than one, she must take them in the order in which 
 their names occur.^ 
 
 Thus J on a voyage to Palermo, Messina and Naples, 
 it was held that a voyage to the three places named 
 meant a voyage to either of them, or any of them in 
 their order, and that any of the places might be 
 dropped ; but if the ship went to more than one, she 
 must take them in the order named."^ 
 
 The ship,iQ touching at any place for orders before 
 she has selected her port of discharge, is not confined 
 to take the ports in the successive order in which 
 they lie in the course of the voyage, but may return 
 to a port she has quitted for orders as to her port 
 of discharge ; but after selecting her port of dis- 
 charge she must touch at ports only in their succes- 
 sive order.' 
 
 But insurance generally "to a market," or for the 
 purpose of obtaining or loading a cargo, or trading 
 in a certain mentioned region, authorizes passages 
 
 » Clason V. Simmonds, 6 T. R. 'j^'3. 
 ' Arnould on M. I., 6th ed. vol. 1, p. 405. 
 ' Marsden t'. Reid, 3 East. 577. 
 * Andrews v. Mcllish, 5 Taunt. 496; Hunter v. Leathley, 10 B. & C. 858.
 
 CALLING AT INTERMEDIATE PORTS. 203 
 
 backwards and forwards for the i)iirposcs of tlie 
 voyago, regard heing had to the prevailing winds 
 and currents as to the order of touching at ports, 
 and such a iiolicy covers the risk to the same port 
 more than once/ 
 
 The extent of tlie license, hy which liherty is given 
 to the ship *'tocall,"or "to touch," or "to touch and 
 stay," or " to touch, stay, and trade," either " at 
 certain specified ports," or "at all ports whatsoever 
 for all purposes whatsoever," &c., &c., depends upon 
 the nature and extent of the risk contemplated and 
 undertaken hy the parties to the policy, and are to 
 he collected from the contents of the policy itself. 
 
 The construction of these clauses must be governed 
 by the character of the voyage described, and by 
 the fair and reasonable construction of the provisions 
 of the policy ; and if the purpose is expressed, the 
 construction is to be liberal in reference to such 
 purpose. Thus, Avhcre a ship was insured at and 
 from Pernambuco to London, liberty was given to 
 proceed and sail to, and touch and stay at any jiorts 
 or places Avhatsoever, and to call, take in, deliver, or 
 exchange goods at any place ; and the vessel, after 
 touching at Pernambuco and finding no cargo there 
 sought it at St. Salvador, another port in the Brazils 
 and the same distance as Pernambuco out of the 
 direct course to London ; it was held to bt^ no 
 deviation.^ 
 
 ' Warre r. IMillor, 4 B. & C. 538; Forbes v. Aspinall, 13 East. 323; 
 Forbes i'. Cowio, 1 Camp. 520. 
 
 » Lambert r. Liddard, 5 Taunt. 4S0; Harrowcr v. llutcliinsoii, L. R. 5 Q. B. 
 584; 39 L. J. Q. B. 229.
 
 204 LEGAL EFFECT OF THE CLAUSES. 
 
 But it may be taken as a general rule that a liberty 
 to touch and stay, though couched in very extensive 
 terms, can only confer a power of visiting such ports 
 as lie in the usual and direct course between the 
 termini of the voyage insured.^ 
 
 However extensive the language of these clauses 
 may be, they can never confer a power of visiting 
 ports out of what, upon a fair construction of the 
 whole policy, appears to have been the course of the 
 voyage contemplated and insured by the parties ; 
 nor will they justify the ship in visiting any port, 
 even though within the local limits of the voyage 
 insured, for any purpose which is not connected with 
 the main object of the adventure.^ Thus, where the 
 insurance was from Para to New York, " with leave 
 to call at any of the "Windward and Leeward Islands 
 on the passage, and to discharge, exchange, and 
 take on board the whole or any part of any cargo, 
 at any ports or places, particularly at all or any of 
 the Windward and Leeward Islands, without being 
 deemed any deviation," the ship having proceeded to 
 two of the Leeward Islands for a purpose wholly un- 
 connected with the voyage, it was held a deviation.^ 
 
 So, in another case a ship was insured " at and 
 from London to New South Wales, and at and from 
 thence to all ports and places in the East Indies 
 
 * Arnould on M. I., 6th ed. vol. 1, p. 473. 
 
 •Langhorn v.- Allnutt, 4 Tannt. 510; Rucker v. AUnatt, 15 East. 278; 
 Solly V. Whitmore, 5 B. & Aid. 45. 
 
 » Hammond v. Reid, 4 B. & Aid. 72; Ranken v. Reeve, 2 Park's 
 M. I. 627.
 
 CALLING AT INTETIMEBIATE POUTS. 20i 
 
 or Soutli America," with lil)crty"to 2iroceccl and 
 sail to, touch and stay at any ports or places what- 
 soever, particularly to trade and sail backwards and 
 forA^ards, and forwards and hack wards." Under 
 this policy, the ship sailed from London with con- 
 victs for New South "Wales. From thence she sailed 
 to New Zealand and hack to New South "Wales. 
 On her way hack from New South Wales she was 
 lost. It was held, tliat notwithstandinj^ the exten- 
 sive terms of the policy, the sailing to Ncav Zealand 
 was a deviation, as New Zealand lay entirely out of 
 the course of the voyage from New South "Wales, 
 either to the East Indies or to South America, and 
 not connected with either of the voyages contem- 
 plated hy the jmrties.' 
 
 If the ship is in a port which she was justified in 
 visiting, it is not a change of the risk, and it does 
 not discharge the insurers for her to trade, or land, 
 or take on hoard goods in such port, even although 
 such acts were foreign to the main purpose of the 
 adventure, if no delay or enhancement or variation 
 of the risk is occasioned therehy.- 
 
 An act of trading not contemplated hy the parties 
 to the i)olicy, and unconnected with the main ohject 
 of the adventure, is justifiahle only on condition that 
 it Ije completed during tlu'- i)eriod of the ship's lawful 
 stay at an allowed port for a justiiiahle purpose; and 
 any delay caused hy it heyond the time bond fide 
 
 ' Bottomlcy v. Uovill, 5 B. & C. 210. 
 » Raine v. Bell, 9 East. 195 ; Dolaney v. StodJart, 1 T. R. 22 ; Cormack 
 V. Gladstone, 11 East. 347; Laroche v. Oswin, 12 East. 131.
 
 20G LEGAL EFFECT OF THE CLAUSES. 
 
 necessary for accomplishing^ tlic legitimate purpose 
 for Avliich tlie sliip visited the port, is a deviation.^ 
 "To fii "itii Wherever iisasje requires that a pilot should be 
 
 or without o J. t 
 
 pilot." engaged, or it is compulsory by the law of the 
 
 country in which the vessel is, that a pilot should be 
 employed by any vessel entering or leaving the port, 
 it is obligatory on the master to secure the services 
 of a duly qualified pilot, where practicable. It is a 
 duty which he owes to his owners, to the shippers, 
 and also to the insurers. And if the law and usage, 
 or the nature of the navigation requires the employ- 
 ment of a pilot, the master must take one, and as it 
 is a part of the implied warranty of seaworthiness 
 that the master should engage a pilot, the insured 
 Avill be deprived of any recourse against the insurers, 
 Avhether the loss can be traced to such breach of 
 the warranty or not.^ 
 
 Thus, where a homeward bound ship received on 
 board at Orfordness a pilot, under the 5 Geo. 2, c. 20, 
 AA ho quitted her at Halfway Reach before she had 
 arrived at her moorings, after which, before she was 
 safely moored, an accident happened and the vessel 
 was sunk : the underwriter on tlie ship and cargo 
 was held discharged from his liability on account of 
 there being no pilot on board at the time, though 
 it did not appear that the loss was directly imputable 
 to want of skill in those who navigated the vessel.^ 
 
 ' Warre v. Miller, 4 B. & C. 538 ; Williams r. Shee, 3 Camp. 4G9 ; Iii^Hs 
 V. Vaux, 3 Camp. 437. 
 
 » Dixon V. Sadler, 5 M. & W. 414; 8 M. & W. 895 ; 9 L. J. Ex, 48. 
 » Law V. Hollingsworth, 7 T. R. 160.
 
 ''TO SAIL WITH OR WITHOUT PILOTS 207 
 
 Tlic true position seems to 1)C that, except "where 
 required hy the positive regulations of an Act of 
 Parliament, which have, as laid doAvn hy Patteson, J., 
 llie effect of creating an intermediate voyage, on 
 which the ship is not seaworthy Avithout a i)ilot, the 
 negligence of a master in not taking a pilot on hoard 
 in entering a port at any intermediate stage of the 
 voyage, where usage requires him to do so, Avill not 
 discharge the underwriters from liahility. ^ For if 
 on arrival off a port, the master uses due diligence 
 to ohtain a pilot, hut is unable to secure one, and 
 then does what a prudent master ought to do under 
 the circumstances, the insurers would not he dis- 
 charged if the ship Avere lost hy any of the perils 
 insured against. 
 
 Thus, where a ship arrived at 3 p.m. off Sierra 
 Leone, where there was a regular cstahlishment of 
 2)ilots, and heing unahle to procure a pilot in answer 
 to his signals, the master attempted to enter the 
 river without one, and in so doing the ship took the 
 ground and was lost. The jury were of opinion that 
 under the circumstances the master had acted as a 
 priulent man, and held the imderwriters liahle.- 
 
 AVlicre the employment of the pilot is compulsory 
 on hoard a vessel, and, such pilot heing on hoard, 
 an accident happens through negligence in the 
 management of the vessel, it lies upon the OAAiiers, 
 in order to exempt themselves from liahility, to 
 
 • HoUingworth v. Brodrick, 7 Ad. &E. 44; Dixon v. Sadler, SM. i W. 900. 
 » riullips V. Hcadlam, 2 B. & Ad. 380.
 
 !08 LEGAL EFFECT OF THE CLAUSES. 
 
 show that tho negligence cansmg the accident was 
 that of the pilot. If such negligence is partly that 
 of the master or crew, and partly that of the pilot 
 the OT\Tiers are not exempted from liability. If it 
 he proved on the part of the o"WTiers that the pilot 
 was in fault, and there is no sufficient proof that the 
 master or crew were also in fault in any particular 
 Avhich contributed, or may have contributed, to the 
 accident, the owners Avill have relieved themselves 
 of the burthen of proof which the law casts upon 
 tliem.^ 
 
 Apart from Acts of Parliament foreign ships are 
 entitled to protection upon general principles from 
 liability for the default of the compulsory pilot.^ 
 
 And a foreign ship can be compelled to take a 
 pilot outside the territorial waters of Great Britain, 
 if bound to a British port.^ 
 
 In a cause of collision promoted by the owners 
 of a Norwegian barque against a British steamer in 
 the High Court of Admiralty in England, for 
 damage done in Belgian waters, alleged to have 
 been occasioned by the negligent and improper 
 navigation of the steam vessel, the owners of the 
 steamship pleaded, that the vessel was in charge of 
 a j)ilot whom they were compelled by the Belgian 
 law to employ. The owners of the barque replied, 
 that by the Belgian law it is provided that the 
 
 * Muhammcd Yusuf v. Peniiisular & Oriental Steam Navigation Co., 
 6 Bom. H. C. E., O. C. J. 98 ; The lona, L. R. 1 P. C. 426. 
 
 2 The Maria, 1 W. Hob. 95 ; The Annapolis & The Johanna Stoll, Lush. 295, 
 312. 
 
 ' Abbott on Sh. 13th ed. 201.
 
 " TO SAIL WITH OR WITHOUT PILOT:' 209 
 
 owners of a sliij) A^ liicli lias done damage to another 
 by collision are liable for the damage notwithstand- 
 ing the vessel was in charge of a compulsory pilot, 
 and although the damage was occasioned by his 
 neulii^ence or want of skill. The owners of the 
 barque to this plea objected, that even if the article 
 pleaded Averc true, they would not be liable in the 
 Court of Admiralty in England. The Court of 
 Admiralty admitted the plea of the Belgian law. 
 Held, l)y the Judicial Committee (reversing the 
 decision of the Court of Admiralty,) that the claim 
 being founded on a tort committed in the territory 
 of a foreign state, the party claiming reparation in 
 a British Court Avas not entitled to the benefit of 
 the foreign law against the admitted provisions of 
 the statute law of England and the jiractice of the 
 High Court of Admiralty in respect of compulsory 
 ])ilotage, by Avhich no such liability as provided by 
 the Belgian laAV existed, as it is contrary to principle 
 and authoritv to hold that an En2:lish Court Avill 
 enforce a foreign municipal law% and give a remedy 
 in the shape of damages, in respect of an act which, 
 according to its own principles, imposes no liability 
 on the person from A^liom the damages are claimed.^ 
 The introduction into the bill of lading of the 
 words "to sail Avith or without jiilots," Avill not have 
 the effect of releasing the shipoAA-ner from any 
 responsibility Avhich Avould otherAvise attach to him. 
 If his vessel is prohibited by any statutory laAv from 
 
 > The Hallev, L. K. 2 P. C. 103. 
 
 27
 
 210 
 
 LEGAL EFFECT OF THE CLAUSES. 
 
 " And to tow 
 and assist 
 -vessels in all 
 situations of 
 distress." 
 
 entering or leaving a port without a pilot being on 
 board, he cannot rid himself of his responsibility to 
 the shippers of goods on his vessel, for loss or damage 
 Avhich the cargo may have sustained by the non- 
 employment of a pilot. A contract of this nature, 
 being an agreement to do an act in violation 
 of statutory law, would to that extent be void, its 
 character is such that if permitted it would defeat 
 the provisions of the various statutes and enactments 
 relating to compulsory pilotage, and in India would 
 be void under the Indian Contract Act.^ 
 
 In tlie United Kingdom the effect of these words 
 would be construed and governed by the principles 
 touching the validity of contracts,^ and being con- 
 trary to public policy and in contravention of the 
 statute law, would be equally void there. 
 
 In places where pilotage is not compulsory by 
 law, Init where its perilous navigation has made 
 the employment of pilots usual and customary, it 
 might be a question for the jury, notwithstanding 
 the words in the bill of lading, to consider whether 
 the master, as a common carrier of the goods, had, 
 under the particular circumstances of the case, 
 acted negligently or imprudently, and whether this 
 clause in the bill of lading absolved him from 
 liability. 
 
 Where the bill of lading contains a provision that 
 the vessel may " assist and tow vessels in all situa- 
 
 1 Act IX. of 1872, soc. 23. 
 
 » Macgregor v. Dover & Deal Ily. Co., 18 Q. B. 618.
 
 TO TOW AND ASSIST VESSELS. 2ll 
 
 tions," it is not competent to tlie owner to deny 
 tliat the attempt to salve a vessel in distress was 
 within the scope of the anthority, and in tlie course 
 of the employment of the master. 
 
 Thus, where the steamer "Thetis," while on a 
 voyage from Marseilles to London, fell in Avith tlie 
 steamer " Sardis," which had heen disahled hy an 
 accident to her machinery; tlie master of the 
 " Thetis" agreed to tow the " Sardis" to port, for 
 a sum agreed on. In endeavouring to do so, the 
 " Thetis" neuli^rentlv came into collision with the 
 " Sardis" and sunk her. The policy of insurance 
 upon the *' Thetis" and her hills of lading provided 
 that she might assist and tow vessels in all situa- 
 tions. Ileld, that the master of the " Thetis" Avas 
 acting Avithin the scope of his general authority as 
 master in endeavouring to tow the "Sardis" to port, 
 and tliat the OAvners of the " Thetis" Averc conse- 
 quently liahle for the damage caused hy his negli- 
 gence in so doing. Also, that CA'en if there had 
 heen no clause in the policy of insurance or hills of 
 ladini? as to sah-asre services, the master Avould 
 nevertheless liaA'e heen acting Avithin his general 
 authority as master, in rendering salvage services 
 to the "Sardis."^ 
 
 In Stuart c. British and African Steam Naviga- 
 tion Company,^ the hill of lading, gave " liherty to 
 toAV and assist A^essels in all situations." The ship, 
 in the course oC her voyage, called at Brass Biver. 
 
 ' The Thetis, L. R. 2 A, & E. 308; 38 L. J. Ad. -12. » 32. L. T. 2u7.
 
 212 LEGAL EFFECT OF TEE CLAUSES. 
 
 After discharging part of her cargo there she went 
 to the assistance of another vessel, the " Monrovia," 
 "which had got aground on the har at the mouth of 
 the river. While endeavouring to tow this vessel 
 off, she herself stranded, and was lost with the 
 plamtiff's goods. It was held that the deviation 
 was excused hy the clause, although no life was in 
 danger on the " Monrovia." 
 
 But the court considered that some limit must be 
 implied to the general liberty " to tow and assist," 
 though they did not define that limit. Perhaps it 
 may be said that the deviation, to be within the 
 clause, must at the time be apparently consistent 
 with the main purpose of the voyage. 
 
 In the case of Scaramanga v. Stamp, ^ the steam- 
 ship " Olympias," of whicli the defendants were 
 owners, having been chartered by the plaintiff to 
 carry a cargo of wheat from Cronstadt to Gibraltar, 
 started on her voyage, and when nine days out 
 sighted another steamship, the "Arion," in distress, 
 and on nearing her, found that the machinery of the 
 " Arion " had broken down and that the vessel was 
 in a helpless condition. The weather was fine and 
 the sea smooth, and there would have been no 
 difficulty in taking off and so saving the crew ; but 
 the master of the " Arion," being desirous of saving 
 his ship, as well as the lives of his crew, agreed to 
 pay £1,000, to the master of the " Olympias " to 
 tow the ship into the Texel. 
 
 ^L. R. 5 C, P. D. 29.J ; 49 L. J. C. V. G7-1.
 
 TO TOW AXD ASSIST VESSELS. 213 
 
 Having taken llic"Arion"in tow,tlic "Olympias," 
 "oiien ofT the Dutch coast, on the Avay to tlic Texel, 
 got ashore on tlie Terschelling Sands, and, Avitli her 
 cargo, was nltimatcly lost. It "was held that a 
 deviation made l)y a vessel for the pnrpose of saving 
 property is not justiiiable, and the shipowner is 
 liable to the charterer for loss or damage to cargo 
 occasioned thereby ; but a deviation made solely for 
 the purpose of saving life is justiiiable. 
 
 This decision for the first time in England deter- 
 mined what was the legal effect of a deviation for 
 the purpose of saving life and property or either of 
 them, and recognised the principles upon Avhich 
 similar questions had been judicially dealt with in 
 America, and the A^■hole subject with the several 
 decisions bearing thereon were discussed at length 
 by Cockburn, C. J., who in delivering his judgment, 
 which was concurred in by Lords Justices Brett, 
 Cotton, and Eramwell, said : " That there was here 
 a twofold deviation, which, unless the circumstances 
 were such as to justify it, would entitle the plaintiff 
 to recover, cannot be disputed — in the first place, 
 in the departure of the ' Olympias ' from her pro- 
 per course in going to the Texel ; secondly, in her 
 taking the 'Arion' in tow, whieli, in the three 
 American cases of Herman v. The Western IMarine 
 and Fire Insurance Company,^ the Natches Insu- 
 rance Company v. Stanton,- and Stewart v. The 
 Tennessee Marine and Fire Insurance Company,^ 
 
 ' IS Lo. K. 51G. "2 3111611.^:^1.310. ' 1 Ilunij.li. 242.
 
 21i LEGAL EFFECT OF THE CLAUSES. 
 
 has been held to be equivalent to a deviation, and 
 rightly so, seeing that the effect of taking another 
 vessel in tow is necessarily to retard the progress of 
 the towing vessel, and thereby to prolong the risk 
 of the vovar^e. It is unnecessarv to consider how far, 
 if the loss had not been the consequence of the 
 deviation,' the mere fact of the deviation would 
 render the shipoAvner liable to the goods owner for 
 loss that ensued after it, as distinguished from its 
 effects in a case of insurance, as there can be no 
 doubt that the loss not only occurred during the 
 deviation, but was occasioned by it, there being the 
 express admission of the master to that effect ; and 
 the case, therefore, comes within the ruling in Davis 
 V. Garrett,^ the authority of which, so far as relates 
 to a loss of goods occurring during the course of a 
 deviation, has never been questioned. 
 
 " It becomes, therefore, necessary to consider how 
 far the grounds on which the defendants seek to 
 justify the deviation can avail them in defence of the 
 action. As regards that part of the plea which seeks 
 to justify the deviation on the ground of its having 
 been for the purpose of saving the lives of the crew 
 of the ' Arion,' it is obvious that the defence fails 
 on the finding of the jury, who have found, and 
 beyond all question rightly, that the deviation was 
 not reasonably necessary in order to save the lives 
 of those on l)oard. On the other hand, the jury 
 have found that the deviation was reasonably neces- 
 
 C Binc-.71G.
 
 TO TOW AND ASSIST VESSELS. 2i; 
 
 sary for tlio purpose of saving tlic * Arion ' and 
 her cargo. The question for decision, therefore, is 
 whether, -when deviation lias taken place with the 
 object not of saving life, hut of saving pro])erty 
 alone, the shipoAvner will he exempt from liahilit y 
 to a goods owner whose goods have heen lost througli 
 the deviation. Mr. Justice Lindley, before whom 
 the cause was heard at Nisi Priiis, gave judgment 
 in favour of the goods owner, the plaintiff, and the 
 case comes before us on appeal from his decision. I 
 am of opinion that his decision Avas right, and 
 ought not to be disturbed." 
 
 " It is a remarkable fact that, Avhile the commerce 
 and the mercantile marine of Great Britain have 
 been for so many years the largest in the Avorld, 
 the question as to how far a dcA'iation for the pur- 
 pose of saving life or property is justifiable as against 
 a goods OAvner or insurer, has ncA'er come before 
 the tribunals of this country, so as to be authorita- 
 tively determined ; Avhile in the United States both 
 questions liaA^c on scA'cral occasions come before the 
 Courts, and the laAV may nOAV bo taken to be there 
 settled by judicial decision, as Avell as by the con- 
 sensus of jurists. In this country the question, 
 Avith one excei)tion, has only presented itself inci- 
 dentally to that of sah'age, and cannot be said, even 
 in that form, to liaA^e been brought to the test of 
 judicial decision. The exception in question is to 
 be found in the case of LaAvrencc v. Svdcbotham,^ 
 
 » 6 East. 45, 52.
 
 216 LEGAL EFFECT OF THU CLAtlSES. 
 
 in wliicli the question of deviation to assist a vessel 
 in distress was incidentally touched upon, hut "was 
 not the pohit for decision. In that case Mr. Justice 
 Lawrence says : "As to deviation for the purpose 
 of succouring ships at sea in distress, it is for the 
 common advantage of all persons, underwriters and 
 others, to give and receive assistance to and from 
 each other in distress. " But tliat (he continues) 
 " was not the case here ; the prize was in no dis- 
 tress." This observation, made to meet the argu- 
 ment of counsel, was altogether obiter dictum, the 
 question in the cause having no reference to devia- 
 tion at all, hut being whether, under a policy autho- 
 rising the taking of prizes in a voyage, the shorten- 
 ing sail in order to remain by and protect a captured 
 prize was Avithin the terms of the policy. The 
 learned Judge, it is to be observed, in no way 
 exjilains what he means by the term " deviation," 
 or the degree of assistance which is to be under- 
 stood as to be given for what he terms " the com- 
 mon advantage." That the question of deviation 
 was not before the Court is a2:)parent from the 
 langua-ge of Lord Ellcnborough, who, after stating 
 what the j)oint really was, says •} — " This does not 
 affect the question how far slackening sail from 
 motives of humanity to succour another ship in 
 distress is allowable ; nor is it necessary to touch 
 upon it. Perhaps, when such a case does arise, it 
 may be found for the general benefit of all insurers 
 
 » 6 East 4?, 52.
 
 TO TO]V AND ASSIST VESSELS. 217 
 
 (and, amongst others, conscqiiontly for the benefit 
 of those "who may raise such an objection) to allow 
 such succour to be given -without imputing devia- 
 tion to the succouring ship. It is not, however, 
 necessary now to give any opinion on that point." 
 
 " The other cases in wliich the question had inci- 
 dentally arisen arc all cases of salvage. In -the case 
 of The Beaver^ there were conflicting claims, it 
 being insisted on behalf of a King's ship that the 
 ship saved had been a derelict, and had been saved 
 entirely through the assistance of the King's ship. 
 All that Sir AVilliam Scott says is, " With respect 
 to the King's ship, I cannot admit the inflamed 
 representation which has been made of their services. 
 It is the duty of CA'cry King's ship, and indeed of 
 every other ship, to give assistance as well against 
 the elements as against the enemy." How far the 
 duty extended, or how far it would protect a ship- 
 owner from the consequences of a dcA'iation, the 
 learned Judge does not say, nor docs it appear to 
 have been present to his mind. 
 
 " In the later case of The "Waterloo,^ in which 
 salvage was claimed by the owners and crew of a 
 ship chartered by the East India Company, for 
 salvage services rendered to one of the Company's 
 own ships, and in which tlie claim ■\^'as resisted on 
 the ground that by the terms of the charter-party 
 and the instructions under which the sliip sailed, 
 no salvage could be demanded, Sir "William Scott, 
 
 ' 3 C. liob. 292. ♦ 2 Dod. 433, 437. 
 
 28
 
 218 LEGAL EFFECT OF THE CLAUSES. 
 
 it is true, says, "As to the instructions, tliey extend 
 no further than to enjoin the duty of assisting other 
 shijis belonging to the Company, but they do not 
 express that this duty, which it is very proper to 
 enjoin, shall receive no remuneration, whatever be 
 the actual merit, whatever be the suffering incurred 
 in performing it. It is the duty of all ships to give 
 succour to others in distress ; none but a freebooter 
 would withhold it ; but that does not discharge from 
 liability to payment where assistance is substantially 
 given." Here again the learned Judge is dealing 
 with the subject of duty only *o far as it affected 
 the claim to salvage ; with its effect in respect of 
 deviation, he had nothing to do. Yet it appears to 
 have occurred to him that the deviation might not 
 be without serious consequences in respect of the 
 ship's insurance, for in fixing the amount to be paid 
 for salvage, after dAvellmg on the merits of the 
 claim, he adds, " Nor can I altogether lose sight of 
 the dangers the ship thus incurred of vitiating her 
 insurance, though that may be a questionable 
 point." 
 
 " In the case of The Jane,' where the master of a 
 whaler had gone with a boat's crew at the risk of 
 their lives to the assistance of a vessel dismasted, 
 and with the sea making a breach over her, and the 
 crcAV of Avhich had taken to the rigging as their 
 last resource, it being urged on behalf of the owners 
 that they had incurred the risk of forfeiting their 
 
 1 -2 Hag. Adui. 338, 31.5.
 
 TO TOW AND ASSIST VESSELS. 219 
 
 insurance, tlio Court (Sir C. Rohinson) is said to 
 have " entertained some doubt as to the positive 
 forfeiture of tlie insurance in all cases l)y deviation 
 to assist vessels in distress," evidently looking upon 
 the question as an unsettled and uncertain one. 
 
 " In the later case of The Orhona,^ Dr. Lushington 
 appears, indeed, to have taken a more decided view. 
 Referring to the claim for additional salvage, on the 
 ground of the fatal effect which the deviation might 
 liave had on the insurance, he says, " It is said that 
 the insurance of the Poictiers was void. That is 
 not ti'uc in law, for it is not the law that, if one 
 vessel ^-oes out of her wav to assist another in dis- 
 tress, the insurance is void." In support of Avhich 
 he refers to what was said hy the Judges in Lawrence 
 r. Sydebotham,^ but which, as I have already shewn, 
 affords no sufficient authority for the position in 
 question. 
 
 " In two more recent cases the Judicial Committee 
 of the Privy Council appear, however, to have taken 
 a more doubtful view of the subject than seems to 
 have been entertained by Dr. Lushington in the 
 case just referred to. In delivering the judgment 
 of the Judicial Committee in Papayanni v. Hoc- 
 quard,^ the risk run of vitiating the insurance having 
 been urged as a reason for increasing the amount to 
 be allowed for salvage, Dr. Lushington says, "With 
 reference to the uncertainty in which the subject 
 is involved, their Lordships have been invited to 
 
 ' 1 Spinks, IGl, 166. - 6 East -io, 52. => L. R. 1 P. C. 2.J0.
 
 220 LEGAL EFFECT OF THE CLAUSES. 
 
 sohc the question. Their Lordships hcg to decline 
 tliat invitation. We are of opinion " (he con- 
 tinues) " that this question ought to be raised, not 
 incidentally before this, but directly before another, 
 tribunal, as the great question at issue, and there 
 receive the most careful deliberation until at last it 
 comes to a final solution and is set at rest." He 
 adds, however, that, in considering the amount of 
 salvage to be given, " The Judge can never forget 
 that there Avas possibly a risk incurred in respect of 
 the vacating of policies, and in regard to actions 
 Avhich might he brought by owners of cargo." 
 
 "In like manner, in the subsequent case of Carmi- 
 chael i\ Brodie,^ the Judicial Committee held that 
 the claim of tlie owner should be considered with 
 reference to " the doubt ivhethcr the insurance 
 might not be vitiated, and whether the owners of 
 tlie ship might not become responsible to the 
 owners of the cargo for the acts of their servants in 
 deviating from their course to render the assistance, 
 and weakening the crew," thus treating the ques- 
 tion of law, as to t\u) effect of a deviation for the 
 purpose of rendering assistance, as unsettled and 
 uncertain. 
 
 " The case before us presents itself, tlierefore, so 
 far as our Courts are concerned, as one of the first 
 impression, on which we have to declare, or perhaps 
 I may say, practically to make, the law. 
 
 " I am glad to think that in doing so we have the 
 
 ' L. E. 1 r. C. 461.
 
 TO TOW AND ASSIST VESSELS. 221 
 
 advantage of the assistance afforded to ns l)y tlic 
 decisions of the American Courts, and in the opi- , 
 nirm of American jurists wliom accident has cansed 
 to anticipate ns on this question. And althongh 
 the decisions of tlie American Courts are of course 
 not binding on ns, yet the sound and enlightened 
 views of American hiwyers in the achninistration 
 and development of the \i\\v — a law, except so far 
 as altered by statutory enactment, derived from a 
 common sonrce with our own — entitle their decisions 
 to the ntmost res[)ect and confidence on onr part. 
 
 "It is, however, nnnecessary to go throngh the 
 American decisions in any detail. The eifect of 
 them is to he found in the well-known text writers, 
 hut is nowhere better stated than in the judgment 
 of Mr. Justice Sprague, in the case of Crocker v. 
 Jackson.^ The result of these authorities imme- 
 diately bearing on the question which Ave have here 
 to decide may be briefly stated. 
 
 " Deviation for the purpose of saving life is ]n'0- 
 tected, and involves neither forfeiture of insurance 
 nor liability to the goods owner in respect of loss 
 Avhich would otherwise be Avithin the exception of 
 " perils of the seas ;" and, as a necessary conse- 
 quence of the foregoing, deviation i'or the purpose 
 of communicating Avith a ship in distress is alloAV- 
 able, inasmuch as the state of the vessel in distress 
 may IuvoIa'C danger to life. On the otlier hand, 
 deviation for the sole purpose of saving property is 
 
 > Sprague. R. 111.
 
 222 LEGAL EFFECT OF THE CLAUSES. 
 
 not tlius privileged, but entails all the usual con- 
 sequences of deviation. 
 
 " If, therefore, the lives of the persons on hoard a 
 disabled ship can be saved without saving the ship, 
 as by taking them oif, deviation for the purpose of 
 saving the ship will carry with it all the conse- 
 quences of an unauthorised deviation. 
 
 " But where the preservation of life can only be 
 effected through the concurrent saving of property, 
 and the bona fide purpose of saving life forms part 
 of the motive which leads to tlie deviation, the 
 privilege will not be lost by reason of the purpose 
 of saving property having formed a second motive 
 for deviating. 
 
 " In these propositions I entirely concur, as well 
 as in the reasoning by which this view of the law is 
 supported by Mr. Justice Lindley in his very able 
 judgment. The impulsive desire to save human 
 life when in peril is one of the most beneficial 
 instincts of humanity, and is nowhere more salutary 
 in its results than in bringing help to those who, 
 exposed to destruction from the fury of Avinds and 
 waves would perish if left without assistance. To 
 all who have to trust themselves to the sea it is of 
 the utmost importance that the promptings of 
 humanity in this respect should not be checked or 
 interfered with by prudential considerations as to 
 injurious consequences which may result to a ship 
 or cargo from the rendering of the needed aid. It 
 would be against the common good, and shocking
 
 TO TOW AND ASSIST VESSELS. 223 
 
 to the sentiments of mankind, tluit the shipowner 
 should he deterred from endeavouring- to save life 
 hy the fear lest any disaster to ship or cargo, conse- 
 quent on so doing", should fall on himself. Yet it 
 would be unjust to expect that he should he called 
 upon to satisfy the call of humanity at his own 
 entire risk. Moreover, the uniform practice of the 
 mariners of ever}^ nation — except such as are in the 
 habit of making the unfortunate their prey — of 
 succouring others who are in danger, is so universal 
 and well-known, that there is neither injustice nor 
 hardship in treating hoth the merchant and the 
 insurer as making their contracts Avitli tlie shi230wner 
 as subject to this exception to the general rule of 
 not deviating from the appointed course. Goods 
 owners and insurers must be taken, at all events 
 in the absence of any stipulation to the contrary, 
 as acquiescing in the universal practice of the 
 maritime world, prompted as it is by the inherent 
 instinct of human nature, and founded on the 
 common interest of all who are exposed to the 
 pei'ils of the seas. What Avould be the effect of 
 such a stipulation as I have just referred to, if it 
 existed, it is unnecessary for the purpose of the 
 present case to consider. 
 
 " Deviation for the purpose of saving property 
 stands obviously on a totally different footing. 
 There is here no moral duty to fuUil which, though 
 its fulfilment may have been attended Avith danger 
 to life or proi)erty, remains unrewarded. There
 
 224 LEGAL EFFECT OF THE CLAUSES. 
 
 would be mucli forco, no tloiiht, in the argument, 
 that it is to the common interest of merchants and 
 insurers, as well as of shipowners, that ships and 
 cargo "when in danger of perishing should he 
 saved, and consequently that, as matter of policy, 
 the same latitude should he alloAved in respect of 
 the saving of property as in respect of the saving 
 of life, ^\CYe it not tliat the law had j)i'Ovided 
 another and a very adequate motive for the saving 
 of property, by securing to the salvor a liberal 
 proportion of the property saved — a proportion in 
 which not only the value of the property saved, 
 but also the danger run by the salvor to life or 
 property, is taken into account, and in calculating 
 which, if it be once settled that the insurance will 
 not be protected, nor the shipowner free from 
 liability in respect of loss of cargo, the risk thus 
 run will, no doubt, be included as an element. It 
 would obviously be most unjust if the shipowner 
 could thus take the chance of highly remunerative 
 gain at the risk and possible loss of the merchant 
 or the insurer, neither of whom derive any benefit 
 from the preservation of the property saved. This 
 is strikingly exemplified in the present case, in 
 which, not content with wlmt would have been 
 awarded to him by the proper couvt on account 
 of salvage, the master made his own terms, and 
 would have been paid a very large sum had the 
 attempt to bring the " Ario]i" into port j)i'oved 
 successful. It is obviously one thing to accord a
 
 "MARKS AND NUMBERS AS PER MARGIN.'* 225 
 
 lirivilcgc to one who acts from a sense of duty 
 Avitliout expectation of reward, and another to 
 extend it to one who neither acts from a sense of 
 moral duty nor in ohedicnce to what may ho 
 thoui^ht to be the policy of the law, but solely with 
 a view to his own individual profit. 
 
 " In the result, I am of opinion that though tlio 
 deviation of the " Olympias," so far as relates to 
 her proceeding to the " Arion" in the first instance, 
 was justified ; the taking the latter in tow and 
 departing from the proper course in order to take 
 the ship to the Texcl, this not being necessary in 
 order to save the lives of the Captain and the crew, 
 was an unauthorised deviation ; and the loss of the 
 plaintiff's cargo having been the direct consequence 
 of the deviation, or, to use the language of Chief 
 Justice Tindal in Davis v. Garrett,^ " the loss having 
 actually happened whilst the wrongful act was in 
 operation and force, and being attributable to the 
 wrongful act," the defendants cannot avail them- 
 selves of the exception in the charter-party, and 
 the plaintiff is therefore entitled to judgment." 
 
 Bills of lading are evidence against the master, u-q^,-^^„ 
 or the owner of the ship, not only as to the recep- numbered" as 
 tion of the merchandise, but as to any material 
 fact stated in them respecting the quantity, or 
 quality, or any other element in the description of 
 the 2:oods. It is therefore usual to describe them 
 
 O 
 
 1 G Bing. 710. 
 
 29
 
 226 LEGAL EFFECT OF TEE CLAUSES. 
 
 only as so many boxes, or bales, or parcels, " num- 
 bered and marked as per margin."^ 
 
 By the Erencli Ordinance, it is required that bills 
 of lading should contain the quality, quantity, and 
 marks of the merchandise ; the name of the merchant 
 who loads them, and of the person to whom they 
 are to be delivered; the place of departure, and 
 destination ; the names of the master and of the 
 ship ; and the price of the freight. 
 
 It is obvious that the quality, and frequently also 
 the quantity, of the goods must be known to the 
 master ; and the commentator on the Ordinance 
 informs us, that by the quality the exterior and 
 apparent quality only is meant ; and further, that 
 it is usual for the master to insert words denoting 
 that the quality and quantity are only according to 
 the representation of the merchant ; of which prac- 
 tice he approves, and mentions two disputes decided 
 in favor of the master in consequence of this pre- 
 caution.^ 
 
 A clean bill of lading is a bill of lading which 
 contains nothing in the margin qualifying the words 
 in the bill of lading itself. The question as to what 
 was meant by "a clean bill of lading;" was first raised 
 judicially in the case of The Eestitution S. S. Co. v. 
 Sir John Pirie & Co.^ in 1889. In delivering judg- 
 ment Cave, J. said: "Under the charter-party the 
 master is to sign clean bills of lading without 
 
 1 Parsons ou Sh. Vol. 1., p. 198. « Abbott on Sli. 13tli Ed, p. 374. 
 3 6 Asp. Mar, L. C. 428.
 
 ''MARKS AND NUMBERS AS PER MARGINS 227 
 
 alteration as presented hy the charterers or their 
 agent, and it was suggested that a clean hill of 
 lading meant a hill of lading which purported to 
 entitle the consignee to the delivery of the goods 
 without paying for any demurrage. Now I have 
 had some little difTiculty in finding out what is 
 meant by a clean hill of lading. There does not 
 seem to he any case which has ever pressed much 
 on the subject, but there is a very clear statement 
 as to the meaning of the j'^br^se 'clean bill of 
 lading,' to be found in Pollock and Bruce's Law of 
 Merchant Shipping, and there it is said that a clean 
 bill of lading is a bill of lading Avhicli contains 
 nothing in the margin qualifying the words in the 
 bill of lading it-self, ' Shipped in good order and 
 well-conditioned ;' 'goods of a certain character, or a 
 certain weight or quality or what not.' But where, 
 for instance you insert in the margin of the bill 
 of lading the weight or quantity or quality unknown, 
 that is not a clean bill of lading, because that con- 
 tains a qualification. AVhcrc, on the other hand, 
 there is no such qualification inserted in the margin, 
 tliere the bill oC lading is a clean one." 
 
 Sometimes the words ' contents unknown,' or, 
 'said to contain,' &c., are added; and if the words 
 'containing,' &c., arc added, which is also not 
 unusual, the master and ship are held bound only 
 to deliver the boxes as they were received by thcm.^ 
 
 When the carsro has been delivered and taken on 
 board by weight, number, or measure, the master 
 
 1 Tarsons on Sh. Vul. 1. p. IDT.
 
 228 LEGAL EFFECT OF THE CLAUSES. 
 
 ought to be very careful that the weight, number, or 
 measure expressed in the bills of lading, corresponds 
 precisely with the weight, number, or measure as 
 had been noted in the log-slate, cargo-book, or log- 
 book. Though the statement in the bill of lading is, 
 as between the shipper and shipowner, not decisive 
 proof of the real quantity actually shipped, and is 
 held to operate merely as a receipt liable to be 
 corrected by evidence ; yet, even in this instance the 
 mere circumstance of a bill of lading being chal- 
 lenged as untruthful, tells Very strongly against the 
 Yeracity and correctness of the subscribing master, 
 and the result may be much more serious if such a 
 bill of lading be in the hands of an onerous indorsee. 
 
 Where the master had been induced by the fraud 
 (as alleged) of the shipper's agent at Singapore, to 
 sign a bill of lading for 890 bags of pepper, while 
 only 790 had, in fact, been shipped, it was held, that 
 as between the original parties the bill of lading was 
 merely a receij^t liable to be opened up by evidence 
 of the real fact, to be ascertained by a jury, whether, 
 in fact, 890 bags, or only 790, were shipped.^ 
 
 Where 1,676 bags of rye meal, or bran, all 
 being marked alike "S. S. 0. M.," some weighing 
 twelve stone and some eight stone, were shipped on 
 board a general ship and stowed without distinction, 
 and the master signed two bills of lading, one for 
 
 > Bates V. Todd, 1 M. & Rob. 106; sec also Berkley v. Watling, 7 Ad. & 
 E. 29 ; Hubbersty v. Ward, 8 Ex. 330; Campion v. Colvin, 3 Bing. N.C. 17 ; 
 McLean v. Fleming, L. R. 2 II. L. Sc. 128 ; Meyer v. Dresser, 33 L. J. 
 C. P. 289.
 
 « MARKS AND NmrUEBS AS PER MARGIN:' 229 
 
 1,209 hags and another for 4G7 hags, the latter 
 stating it to he " rye, feeding meal, or hran, gross 
 35 tons 9 c\\'t. English Aveight," and added at the 
 foot " contents unknown and not responsilde for 
 weight ;" it was held, that nnder this latter hill of 
 lading the master was hound to deliver 4G7 of the 
 twelve stone hags, as the gross weight in the hill of 
 lading could only he satisfied hy all the hags deliv- 
 ered heing of the larger size.^ 
 
 Goods, which consisted of 500 hales of jute of 
 different mercantile qualities, were shipped on 
 hoard the defendants' ship under a hill of lading, 
 which contained a clause in the margin to the effect 
 that if quality marks were used they were to he of 
 the same size as the leading marks, and contiguous 
 thereto, and if such quality marks were inserted in 
 the shipping notes, and the goods were accepted hy 
 the mate, hills of lading in conformity therewith 
 were to he signed hy the Captain, and the ship 
 should be responsihlc for the correct delivery of 
 the goods. Quality marks were used on the goods 
 shipped, hut these marks did not correspond with 
 the quality marks put into the shipping notes. 
 The Captain signed a hill of lading in conformity 
 with the shipping notes. The same 500 hales 
 which were shii"»ped were delivered to the plaintiffs, 
 the indorsees for value of the hill of lading, on the 
 arrival of the ship in London: — Ileld, upon the 
 construction of the ahove-mentioncd clause, that 
 
 » Bradley v. Duuipacc, 31 L..J. Ex. 210.
 
 230 LEGAL EFFECT OF THE CLAUSES. 
 
 it T^^as tlie duty of the Captain only to sign the bill 
 of lading in conformity with the shipping notes, 
 and that as the duty was imposed upon the shippers, 
 and not upon the Captain, to see that the quality 
 marks put into the shipping notes were the same as 
 those on the goods actually shipped, the defendants 
 were only bound to deliver the goods which were in 
 fact shipped. Ileld also, upon the authority of 
 Grant v. Norway,^ that, apart from the above- 
 mentioned clause, the Captain had no authority to 
 state or estimate, so as to bind his owners, the 
 mercantile quality of the goods shipped, and that 
 the defendants were not liable, where the goods 
 were misdescribcd in the bill of ladmg, to an 
 indorsee for value who had made advances upon 
 the faith of the bill of lading being signed by the 
 Captain.^ 
 
 Lord Esher said : " That the Captain has 
 authority to bind his owners with regard to the 
 weight, condition, and value of the goods imder 
 certain circumstances may be true ; but it appears 
 to me absurd to contend that persons are entitled 
 to assume that he has authority, though his owners 
 really gave him no such authority, to estimate and 
 determine and state on the bill of lading so as to 
 bind his owners the particular mercantile quality 
 of the goods before they are put on board, as, for 
 instance, that they are goods containing such and 
 such a percentage of good or bad material, or of 
 
 1 20 L. J. C. p. 93. 
 
 " Cox V. Bruce, L. R. 18 Q. B. D. 147.
 
 "MARKS AND NmiBERS AS PER MARGIN.'' 201 
 
 such and such a season's growth. To ascertain 
 such matters is ohviously quite outside the scope 
 of the functions and cajiacitics of a sliip's Captain 
 and of the contract of carriage with which he has 
 to do. It was said tliat he ought to see that the 
 quality marks were not incorrectly inserted in the 
 hill of lading. But, apart from the special terms 
 of the contract with regard to the quality marks 
 with which I have already dealt, I do not think it 
 was his duty to put in these quality marks at all ; 
 all he had to do was to insert the leading marks. 
 There is nothing in the case to show that, irres- 
 pective of the particular contract, the quality 
 marks had hy the custom of the trade hecome a 
 recognised part of the marks which it was his duty 
 to insert." 
 
 The shipowner is estopj)ed from alleging, m an 
 action brought against him by an indorsee, or assignee 
 for value, for non-delivery of the cargo, that the goods 
 at the time of shipment were not marked in the 
 manner described in the bill of lading. Thus, where 
 four casks of Aviro were shipped in London for 
 Calcutta, and were described in the bill of lading as 
 bearing a certain mark, beneath which was the word 
 " Calcutta," as being the port of destination, and 
 contained express exemptions for loss arising from 
 obliterations or illegible marks. The indorsee of the 
 bill of lading, upon demanding delivery of the four 
 casks on the arrival of the vessel at Calcutta, found 
 that they had been landed at Colombo, from whence
 
 232 LEGAL EFFECT OF THE CLAUSES. 
 
 tliey were subsequently forwarded. lu an action for 
 the value of the goods, it was held, that the defendant 
 was estopped from alleging that the casks were not 
 marked as stated in the bill of lading.^ 
 
 Likc^^ise a statement in the margin of the bill of 
 
 lading that freight has been paid, is conclusive 
 
 against the shipowner in an action by the assignee 
 
 of the bill of lading to recover the goods. ^ 
 
 "And to be The master and shipowners of a general ship being 
 
 subject to the primct facie common carriers of goods for hire, are at 
 
 exceptions and -'- , piimipit 
 
 conditions commou law, and irrespective of the bill oi lading, 
 
 hereinafter ^ ^ ^ 
 
 contained." regarded as insurers against all loss or injury 
 occasioned to the goods delivered to them on freight 
 by fire, or robbery, or any other cause, excepting 
 " the act of God and the king's enemies." ^ 
 
 This liability on their part is usually limited in 
 the bill of lading contracting for the safe carriage 
 and delivery of the cargo, by some express clause 
 exempting them from certain specified perils. 
 
 There is no foundation for the doctrine that all 
 owners of ships carrying goods for hire, whether 
 they be common carriers or not, are subject to the 
 same liability as that which attaches to the common 
 carrier. 
 
 This question Avas judicially determined in 1876, 
 in the case of Nugent v. Smitli,^ the authorities 
 
 J Madhub Chundcr Dcy v. Law, 13 Ben. L. R. 394. 
 
 2 Howard v. Tucker, 1 B. & Ad. 713. 
 
 3 Macklin v. Watcrliouse, 5 Binj^. 217 ; Forward v. Pittard, 1 T. II. 27 ; 
 Hyde v. Trent Nav. Co., 5 T. 11. 38!) ; Liver Alkali Co. v. Johusou, L. 11. 9 
 Ex. 338; Nugent r. Smith, L. 11. 1 C.P.D. 423. 
 
 * L. 11. 1 C. P. D. 19, 423; 45 L, J. Q. B. C97.
 
 DELIVERY SUBJECT TO CONDITIONS. 233 
 
 from the caiiicst period downwards being care- 
 f Ldly reviewed by Cockburn, C. J., who cited with 
 approbation the following definition of a common 
 carrier as laid down in Parsons on Shipping : ^ 
 
 " A common carrier is one who offers to cany 
 goods for any person, between certain termini and 
 on a certain route. Ho is bound to carry for all 
 who tender to him goods and the price of carriage, 
 and insures these goods against all loss but that 
 arising from * the act of God ' or the public enemy ; 
 and has a lien on the goods for the price of the 
 carriage. If cither of these elements is wanting, 
 we say the carrier is not a common carrier either 
 by land or by water. If we arc right in this, no 
 vessel will be a common carrier that does not ply 
 rei?ularlv, alone, or in connection Avith others on 
 some definite route, or between two certain termini." 
 
 But, notwithstanding the exception wliich is 
 usually inserted as " the act of God, the king's enemies, 
 fire, and all and every other dangers and accidents 
 of the seas, rivers, and navigation, of whatever 
 nature and kind soever, during the said voyage," 
 the master and shipowners are held responsible for 
 every injury caused by the said risks, Avhich might 
 have been prevented by human foresight or care. 
 
 The exceptions in the bill of lading do not exempt 
 the shipowners, or the master, from the conse- 
 quences of the want of reasonable skill, diligence, 
 and care; but only from the absolute liability of a 
 
 1 Vol. I. p. 245. 
 
 30
 
 134 LEGAL EFFECT OF TEE CLAUSES. 
 
 common carrier, so far as tlic excepted causes are 
 concerned, that is, the exceptions only exempt them 
 from liability for loss "which has been caused hy 
 some of the excepted causes, and which could not 
 have been avoided hy reasonable care, skill, and 
 diligence.^ 
 
 Notwithstanding the exceptions in the bill of 
 lading, if it is proved that the injury was caused by 
 the negligence of the shipowners or master, they 
 are liable even when the exceptions coA'er the cause 
 of injury : ^ but it must be remembered that this 
 liability will not attach to the sliij)owner where the 
 bill of lading contains what is known as the negli- 
 gence clause and which usually runs as follows : 
 " any act, neglect, or default whatsoever, of Pilots, 
 Master, or Crew, in the management or navigation 
 of the ship." This clause is now fully recognised 
 not only as not being imreasonable but as a com- 
 plete protection to the shipowner in cases where 
 the loss or damage has been occasioned by negli- 
 gence coming within this exception.^ 
 
 Although the rule is thus laid down in general 
 terms at common laAV, that the carrier is responsible 
 for all losses not occasioned by the act of God, or of 
 the king's enemies, it is to be understood in all cases 
 
 ^ Laurie v. Douglas, 15 il. & W. 746 ; Grill v. General Iron S. Collier Co., 
 L. R. 3 C. P. 476 ; Czech v. G. S. N. Co., L. 11. 3 C. P. 17 ; Ohrloff v. 
 Briscall, L. R. 1 P. C. 231 ; Leuw v. Dudgeon, L. R. 3 C. P. 17n. ; Lloyd v. 
 General Iron S. Collier Co., 33 L. J. Ex. 269. 
 
 = Xotara v. Henderson, L. R. 7 Q. B. 225 ; Larcroni v. Drury, 8 Ex. 166. 
 
 2 Grill V. General Iron Collier Co-, L. R. 3 C. P. 476.
 
 "m LIKE GOOD ORDER AXD COXDTTTOX:' 235 
 
 that the rule does not cover any losses not -within 
 the exceptions, Avhicli arise from the ordinary Avear 
 and tear/ and chafing of the goods in the course of 
 their transportation; or from their ordinary loss, 
 deterioration in quantity or quality, in the course of 
 the voyage, or from their inherent natural infirmity 
 and tendency to damage or wrong, or by the mis- 
 conduct of the owner or shipper thereof.^ 
 
 Bv the hill of ladim]r, the master undertakes to " in the like 
 
 t/ ^ good order 
 
 deliver the goods or cargo "in the like good order and and condition." 
 condition" as they had been shipped on board, i e. 
 not that the captain is to preserve and deliver them 
 ill the identical good order as when shipped, but 
 that he is to take all possible care of them during 
 the voyage. A literal and precise application of 
 the provisions of the bill of lading would deprive the 
 shipowner of all freight, if the goods were not 
 delivered in as good condition as received.^ 
 
 If the goods are delivered, but arc damaged by 
 causes for which the shipoA^iier is responsible, 
 the freight is payable, but the shipper may claim 
 compensation for the damage, whether it be greater 
 or less in amount than the freight. And it is Avell 
 settled in England, that the shipper cannot, in an 
 action brought against him for freight, set up, in 
 defence, that the goods were damaged by the 
 negligence of the carrriers, but must resort to a 
 
 « Graham v. IliUc, 10 Bom. II. C. Rep. 60; The Xepoter, L. K. 2 A. i- E. 
 375. 
 
 * 3 Kent's Com., p. 406 ct scq.; Story on Bail. s. 492a. 
 ' Parsons ou Sh. vol. 1. p. 2j6.
 
 236 LEGAL EFFECT OF THE CLAUSES. 
 
 cross-action.^ But wli^en a portion of the cargo has 
 not been delivered, the cost of the same may he set 
 off against the balance of the freight payable on 
 the delivery of the remainder of the cargo at the 
 port of discharge.^ ^ 
 
 The master is primarily and generally the agent 
 of the shipowner, to convey the cargo safely to its 
 destination, in order to earn freight.^ Under 
 ordinary circumstances, beyond carrying the cargo 
 safely, the master has nothing to do with it, but 
 events may happen during the voyage which render 
 it expedient and necessary that he should act for the 
 owner of the cargo, and on such occasions he is by 
 law invested with an implied authority to do so.* 
 
 As agent for the shipowner he is bound to receive 
 the cargo, to stow it properly, to ventilate it when 
 necessary,^ to take all possible care of it during the 
 voyage,'' to use reasonable exertion to preserve it, 
 to carry it directly and to deliver it safely, being 
 liable for any damage or injury which the goods may 
 have sustained by reason of bad or defective stowage,^ 
 or from the improper collocation of the cargo.^ The 
 owner is also liable for loss or injury to the goods, 
 
 * Bornmann. v. Tooko, 1 Camp. 377; Shields v. Davis, G Taunt. Go ; 
 4 Camp. 119; Davidson v. Gwynne, 12 East, 381. 
 
 =" "Garston" S. S. Co. v. Hickie, L. II. 18 Q. B. D. 17. 
 8 Dakin v. Oxley, 83 L. J. C. P. 115. 
 
 * Notarar. Henderson, L. E. 7 Q. B. 230. 
 ^ Davidson v. Gwynne, 12 East. 381. 
 
 " Abbott on Sh., 13th ed. p. 430 ; Kotara v. Henderson, L. R. 7 Q. B. 230 ; 
 Story on Agency, p. 140. 
 
 ' The Nepoter, L. R. 2 A. & E. 375. 
 e The Freedom, L. E. 3 P. C. 595.
 
 ''IN LIKE GOOD OliDER AND CONDITION:' 237 
 
 arisinr^ from tlio careless or neglii]jent conduct of the 
 master and crew in the course of the Yoyage, unless 
 the liahility of the shipoAvner for such negligence 
 or misfeasance has hccn limited hy the conditions of 
 the hill of lading/ 
 
 But the shipowner is only liahlc for the value of 
 the goods lost or damaged, and not for the costs 
 incurred hy the master in defending a suit, where in 
 so doing he does not act as a reasonahle and prudent 
 man would have done, as where he refuses to 
 recognize a legal claim in respect of which it is 
 clear he has no defence.^ 
 
 Lord Chancellor Cairns, in considering the eifect 
 of the words " to he delivered from the ship's deck, 
 where the ship's responsibility shall cease, in the like 
 good order and condition," said, " I think there 
 cannot he any reasonable doubt entertained that 
 this is a contract which not merely engages the 
 shipo\ATier to deliver the goods in the condition 
 mentioned, but that it also contains in it a repre- 
 sentation and an engagement; a contract by the 
 shipoAvner that the ship in which the goods are 
 placed is, at the time of its departure, reasonably 
 fit for accomplishing the service A\hieli he engages 
 to undertake and perform. lleasonably lit to 
 accomplish that service the ship cannot be unless 
 it is scaAvorthy. By ' seaworthy' I do not desire to 
 point to any technical meaning of the term, but to 
 
 1 steel V. State Line Steamship Co., L. R. 3 App. Cas. 72. 
 - llonneberg r. Falkland Islands Co., 2 Asp. Mar. L. Ca. 30.
 
 238 LEGAL EFFECT OF THE CLAUSES. 
 
 express that the ship should be in a condition to 
 encounter whatever perils of the sea a ship of that 
 kind, and loaded in that way, may be fairly expected 
 to encounter on the voyage." ^ 
 
 And it was unanimously held on appeal by the 
 Court of Queen's Bench, affirming the judgment of 
 Blackburn J. in the case of Kopitoff v. AVilson,^ that 
 in whatever way a contract for the conveyance of 
 merchandise be made, where .there is no agreement 
 to the contrary, the shipowner is l)y nature of the 
 contract impliedly and necessarily held to warrant 
 that the ship is good arid is in a condition to perform 
 the voyage then about to be undertaken, or in ordi- 
 nary language is seaworthy, that is, fit and meet to 
 undergo the perils of the sea and other incidental 
 risks, to which she must of necessity be exposed in 
 the course of the voyage. The facts were that the 
 plaintiff Iiad shipped at Hull on board the defen- 
 dant's ship "AValamo" for Cronstadt three armour 
 plates weighing from eighteen to fifteen tons each. 
 The defendant's servants stowed the ship, placing 
 the armour plates on the top of a quantity of rail- 
 way iron, and then secured them by wooden shores. 
 At sea the vessel encountered bad weather, with 
 high wind and rough seas causing her to roll heavily. 
 After being at sea some hours one of the armour 
 plates broke loose and went through the side of the 
 
 ^ Steel r. State Line Steamsliip Co., L. R. 3 App. Gas. 72. 
 
 = L. R. 1 Q. B. D. 377 ; 45 L. J. Q. B. 136. See also Hedley v. The 
 Pinkney & Sons S. S. Co., Ltl., 7 Asp. Mar. L. Cas. 137 ; Gilroy Sons & Co. 
 V. Price L. E. (1893) 1 A. C. 56.
 
 "IN LIKE GOOD ORDER AND CONDITION." 239 
 
 sliip, Avhicli ill consequence fonndcrcd in deep ■water 
 and was totally lost with all her cargo on hoard. 
 The plaintiff contended that the plate hroke loose 
 through being improperly stowed and secured, and 
 that consequently the vessel was not seaworthy. The 
 defendants, that it was a direct consequence of the 
 roughness of the sea, which was a peril excepted in 
 the bill of lading and urged that it was not intended 
 by the authorities to assert the existence of an 
 independent implication of warranty applicable to 
 every contract by water, but that the doctrine was 
 a subordinate j)art of a more extensive lial)ility 
 attaching to carriers, and that inasmuch as the latter 
 were bound to carry safely and securely, tlie act 
 of God and the Queen's enemies, only excepted, it 
 was by virtue of that obligation and not by any 
 specific contract to be implied that the duty arose. 
 *15ut it was held that this rule was not limited to 
 cases in which the shipowner holds himself out as a 
 common carrier. 
 
 A charter-party for a voyage which was divided 
 into stages, contained an exception of any act 
 neglect or default of the master or crew in the 
 management or navigation of the ship. At the 
 conimeD cement of the second stage the vessel in 
 consequence of the alleged negligence of the master 
 or crew, was not seaworthy. It was held, that the 
 warranty of seaworthiness Avas broken, as the ship 
 must at the commencement of each stage be sea- 
 worthy for that stage, and the shipoAvner was not
 
 240 LEGAL EFFECT OF TEE CLAUSES. 
 
 relieTcd from liability by the exception in the 
 charter-party.^ 
 
 shTp°™deck, Speaking of a delivery that would satisfy and 
 
 rS?s'^' ' exhaust the bill of lading, ■^Yilles, J. says : *' There 
 
 S^ccLse."^ can be no complete delivery of goods until they are 
 
 placed under the dominion and control of the person 
 
 Avlio is to receive them.^ 
 
 The manner of delivering the goods, and conse- 
 quently the period at vidiich the responsibility of the 
 master and owners will cease, depends upon the 
 custom of particular places and the usage of parti- 
 cular trades, and must be made in accordance with 
 the same, unless there be something expressly in 
 the bill of lading to control this;^ 
 
 Thus, where 69 bales of hides were shipped from 
 Calcutta to London, the bill of lading provided that 
 they were " to be delivered from the ship's deck, 
 where the ship's responsibility shall cease," and 
 according to the finding of the jury, the bales were 
 unloaded from the defendant's steamer and placed 
 upon a quay in the Victoria Docks, by the Dock 
 Company, in the absence of the consignees. Sixty- 
 eight of the bales only were put on board the barges 
 sent by the plaintiff's agent to receive them, and 
 thus one of the bales was never delivered by the 
 Dock Company, and was lost. In an action for the 
 
 1 Thin V. Kichards, 62 L. J. Q. B. 39. See Dixon v. Sadler, 9 L. J. Ex. 48 j 
 Biccard v. Shepherd, 14 Moo. P. C. C. 471. 
 
 « Meyerstein v. Barber, L. R. 4 H. L. 317. 
 
 3 Gatliffe V. Bourne, 4 Bing. N. C. 314; 7 L. J. C. P. 172; Hjde v. 
 The Trent and Mersey Navigation Co. 5 T. R. 389.
 
 "FROM THE SHIP'S DECK:' 241 
 
 yaluc of the same, it was held " that by the terms 
 of the bill of lading the defendant's liability ceased 
 when the goods left the ship's deck, and that he 
 Avas therefore not liable for the non-delivery of the 
 missing bale to the lolaintiffs." ^ 
 
 And AA'here machinery was landed at Bombay 
 under a bill oC ladmg expressed as above, and a bed- 
 plate was safely lowered into a boat alongside, but 
 instead of being placed flat at the bottom of the 
 barge, it rested at an angle against the side of the 
 barge, so that the under surface of the plate was 
 unsupported. Two cases had been lowered along- 
 side of it, and whilst a third was descending, it 
 slipped out of the tackle, and fell on to them, 
 breaking the bedplate though not injuring the other 
 cases. The bedplate having been delivered in good 
 order into the barge, the master was absolved from 
 liability for its breakage by the clause in the bill 
 of lading, there being no evidence of culpable 
 negligence on his part.^ 
 
 The master of a ship has no right to detain goods 
 for wharfage, if the consignee tenders the freight, 
 and requires them to be delivered over the ship's 
 side.^ 
 
 The law annexes as a condition to the earning of siIp-Ttadde." 
 freight that the goods should " be delivered safe, 
 clear of the ship's tackle." The reasonable accepta- 
 
 1 Petrocochiuo v. Bott, L. K. 9 C. P. 335 ; -13 L. J. C. V. 217. 
 ' The Sassoon Press Co. i'. Browu, ilastcr of iho S. S. "Ariel," Bombay 
 5th November 1874. 
 
 3 Bishop V, Ware 3 Camp. 360. 
 
 31
 
 242 LEGAL EFFECT OF THE CLAUSES. 
 
 tioii of the term is delivery at such a time and place 
 and in such a mode, as is consistent with the' power 
 of the intended recipient to receive, have and retain 
 it in his possession, and constitute a delivery within 
 the intention of the deliverer at the time. Therefore 
 it will he no delivery if the article, whilst heing 
 lowered over the ship's side, slips out of the ship's 
 tackles, or the ship's slings, forming part of the 
 tackles, and falls into the boat or hargc in such a 
 manner as to roll or slip into the water, and he lost 
 before the lighterman could secure it. But the 
 conditions in the hill of lading that the goods are 
 " to be taken from the ship's tackles," will be ful- 
 filled, if the master places the cargo safely over the 
 ship's side in such a position that the consignee can, 
 if he desire, safely take delivery of it from the 
 tackles. Thus, in the case of the " Cosmopolite," 
 the bill of lading contained the express words " to 
 be taken from the ship's tackles," and on arrival at 
 St. Thomas with a boiler weighing 35 tons, sheers 
 were erected on the wharf, the boiler was hoisted, 
 and the vessel hauled out to her anchorage ; but the 
 consignee declined, on various grounds, to take the 
 boiler from the ship's tackles and sheers, demanding 
 that it should be lowered into the steamer for which 
 it Avas destined. This was refused, and the con- 
 signee, after aljandoning an action which had been 
 commenced, hired the ship's tackles and accepted 
 the Ijoiler as tendered, the conditions in the bill of 
 lading having been fulfilled by the master.^ 
 
 > 2 3Iit. Mur. N. 86.
 
 ''FROM TEE SHIP'S TACKLES.'' 243 
 
 Goods were shipped under a hill (jf lading at 
 Calcutta to l)(i delivered " in like good order and 
 condition from the ship's tackles (where the ship's 
 responsihility shall cease) at the port of London, 
 &c." On arrival the consignee demanded overside 
 delivery into lighters immediately from the ship's 
 tackles. The shipowner landed them on the dock 
 wharf, and was ready to deliver them thence into 
 the consignee's lighters, but 'the consignee carted 
 them away, therel)y becoming liable to and paying 
 certain dock charges. In an action by the consignee 
 against the shipoAvner to recover the amount so 
 paid, the jury found that there was a custom for 
 steamships having a general cargo coming into the 
 port of London, and using the docks, to discharge 
 the goods on to the quay and thence into lighters. 
 It was held that the custom Avas not inconsistent 
 with the terms of the bill of lading, and that the 
 shipowner was entitled to discharge the goods on to 
 the quay, and was not lial)lc for the charges sought 
 to be recovered.^ 
 
 In a later case - the plaintiffs were consignees of 
 goods, the bill of lading for which contained the 
 terms "to be delivered from the ship's tackles." 
 The cargo was a general one, and the plaintilfs 
 having failed to take delivery of their goods at the 
 time when the ship began to discharge, the whole 
 of it was landed on the quay in the East and AVest 
 
 > :Marzctti v. Smith, 49 L. T. oSO. 
 
 - The Ckui MucaouaKl, L. K. 8 P. D. ITS ; 52 L. J. Ad. 89.
 
 244 LEGAL EFFECT OF THE CLAUSES. 
 
 India Docks and there sorted. When this was 
 completed, tlie plaintiffs were informed that the 
 goods were ready for delivery ; and if they had then 
 taken them, they would have had them free of 
 charge. The goods were not removed for thirteen 
 days, during which time the Dock Company held 
 them for charges, ^hich the plaintiffs paid, and now 
 sought to recover from the shipowners. Sir James 
 Hannen held that " the plaintiffs were not entitled 
 to recover, as it was their duty to take delivery of 
 the goods within a reasonable time, after they knew 
 that they could receive them." 
 
 In the case of Scott v. Finlay ^ which came before 
 the High Court of Bombay, six boilers were con- 
 signed to the plaintiff in Bombay, being shipped at 
 Liverpool in two steamers belonging to the same 
 owner, the clauses in the bills of lading being that 
 they " were to be delivered subject to the exceptions 
 and conditions hereinafter mentioned, in the like 
 good order and condition, from the ship's tackles 
 (where the ship's responsibility shall cease.)" One 
 of the conditions was as follows : — " The shipo^nier 
 shall have the option of discharging in dock, and of 
 making delivery of the goods under the bills of 
 lading, either over the ship's side, or from lighters, 
 or a store-ship, or custom house, or warehouse, at 
 merchant's risk." 
 
 On arrival at Bombay, the two steamers went into 
 the Dock belonging to the Port Trust, and discharged 
 
 1 I. L. R. 7 Bom. SSG.
 
 ''FROM TEE SHIP'S TACKLES.'' 2il 
 
 ihc boilers, by means of tlic Port Trust cranes on 
 to the Dock Avliarves. The plaintilf suhsequently 
 sent to remove the boilers, but Avas not allowed by 
 the Dock authorities to do so until he had paid 
 various sums as *' landing charges," and also for 
 " wharfage." These the plaintiil^ paid to get posses- 
 sion of the goods, but brought an action against the 
 agents of the shipowner to recover the same. It 
 was proved that it was the practice of the Port Trust 
 to recover these charges in all cases from the con- 
 signees, and the charge was said to be levied on all 
 goods landed on the wharves of the Dock, whether 
 by the Dock's cranes or by the ship's own tackles. 
 The charge was incurred the moment the goods 
 touched the wharf, and by the Port Trust Act, their 
 rates which were sanctioned by Government, entitled 
 the charge, which was termed " the dock and 
 cranage" charge. If the plaintiff had taken delivery 
 of his goods in the stream, and himself landed them 
 at any of the Port Trust wharves, he would still 
 have been liable to the same charges. 
 
 It was held, that the ship having elected to dis- 
 charge in the Dock, it was her duty to land the 
 goods on the ^a harf. Every charge which had to be 
 incurred before that could be done, was a charge 
 antecedent to delivery, and one, therefore, which 
 must be paid by the shipo^iier. Also, that the 
 shipowner, and not the consignee, was bound to pay 
 these charges, they being in reality charges for 
 work and labour done in and about the landing of
 
 246 LEGAL EFFECT OF THE CLAUSES. 
 
 the goods, an operation which, under tlic hills of 
 lading was within the duty of the shijoowner. 
 
 And where the hill of lading, given hy the 
 defendants to the plaintiff for certain goods, con- 
 tained a stipulation, that the goods were to he taken 
 from the steamer's tackles l)y the consignees as fast 
 as the steamer could discharge, failing which, the 
 steamer's agents were to he at liherty to land the 
 same into godowns, the cost of lighterage, godoAvn 
 rents, &c., therehy incurred to he home hy the 
 respective consignees. It was held, that under this 
 hill of lading the shipowners were entitled to charge 
 for landing and wharfage, only in default of the 
 consignees failing to take the goods from the steamer's 
 tackles within reasonahle time ; and also, that for 
 the speedy discharge of their vessel the shipowners 
 were entitled to land and wharf the goods, though 
 not to charge for landing and wharfage, unless the 
 plaintiff had had an opportunity of landmg the 
 goods himself.^ 
 
 Where the owner of goods on looard a vessel 
 directed the Captain not to land them on the wharf 
 against which the vessel was moored, which he 
 promised not to do, hut afterwards delivered them 
 to the wharfinger for the owner's use, under the 
 idea oE the wharfinger having a lien thereon for 
 wharfage fees hecause the vessel was unloaded 
 acrainst the wharf, it was hc^ld that the owner could 
 maintain an action against the shipowner.^ 
 
 ^ Cossim Iloosein Soortu v. Lcc Phee Chuan, I. L. R. 5 Cal. 477. 
 « Syeds v. Hay, 4 T. R. 260,
 
 ".ir L." 247 
 
 In England, "wlicn goods arc 1)rought by sliips "AtL." 
 from foreign countries, the bill of lading is merely 
 a special undertaking to carry from port to port, 
 and in such case it has been considered that accord- 
 ing to the established course of trade, a delivery on 
 the usual wharf is such a delivery as Avill dischari^e 
 the shipowner. I3uller, J., in Hyde v. Trent and 
 Mersey Navigation Co.,^ says, " "When goods are 
 brought here from foreign countries, they are - 
 ])rought under a bill of lading which is merely an 
 undertaking to carry from port to port." Ashurst, J., 
 in the same case, says : " The case of foreign 
 goods brought to this country depends on the custom 
 of the trade, of which the persons engaged in it arc 
 supposed to be cognizant ; by the general custom, 
 the liability of ship carriers is at an end Avhon the 
 goods arc landed at the usual w^liarf." - 
 
 Where the freighter upon the arrival of his ship 
 in the Thames, refused to name a wharf at which 
 the cargo could be discharged and delivery made, 
 it Avas considered that he was not ready and willinii- 
 to accept the cargo, and was liable in damages to 
 the shipowner for the amount he Avould have received 
 as freight, if the cargo had been duly delivered.'^ 
 And where, to an action for not delivering goods 
 shipped on board a steam packet at Dublin to the 
 plaintilf or his assigns at the port of London pur- 
 suant to the bill of ladmg, the plea "\^■as that the 
 
 ' 5 T. K. 38y. - Aug. ou Car., s. 309. 
 
 * Stewart V. lloj^ersou, L. 11. (j C. P. 424.
 
 248 LEGAL EFFECT OF THE CLAUSES. 
 
 goods were safely landed and deposited on a certain 
 wliarf , called Fenning's Wharf, at London, to remain 
 there until they could be safely delivered to the 
 plaintiff or his assigns, it being usual and customary 
 for steamers from Dublin to land and deposit goods 
 at the said wharf for the use of the consignees : and 
 that Avhilst there the goods had been destroyed by 
 an accidental fire. The plea was held bad, it not 
 being alleged that the delivery had been made 
 according to the custom and practice of the port 
 of London, or that a reasonable time had been 
 alloAved to elapse after the ship's arrival, in order 
 to give time to the consignee to claim and receive 
 his goods alongside the vessel. " The defendants," 
 said Chief Justice Tindal, " profess in their plea to 
 substitute a delivery at Fenning's Wharf, in the 
 port of London, for and in the place of a delivery 
 ' at the port of London to the plaintiff or his assigns/ 
 as required by the terms of the bill of lading. But 
 Ave know of no general rule of law which governs 
 the delivery of goods under a bill of lading, where 
 such delivery is not expressly in accordance with 
 the terms of the bill of lading, except that it must 
 be a delivery according to the jiractice and custom 
 usually observed in the port or place of delivery." ^ 
 In the bill of lading^ the name of a consignee is 
 
 " To A B. . , 
 
 or order or mentioned, but it sometimes happens that the shipper 
 or consignor is himself named as a consignee, and 
 the engagement is expressly to deliver to him or 
 
 1 Gatliffe v. Bourne, 4 Biug. K. C. 314. 
 
 assigns.
 
 " TO A. B. OR ORDER OR ASSIGNS." 249 
 
 liis assigns; sometimes no person is named as 
 consignee, but the terms of the instrument are " To 
 he delivered, &c., unto A. B., order, -or assigns," 
 A\ hich words are generally understood to import an 
 engagement on the part of the master to deliver the 
 goods to the person to -whom the shipper or con- 
 signor shall order the delivery, or to the assignee of 
 such person. 
 
 The person entitled to receive the cargo is the 
 lawful holder of the hill of ladmg, being the con- 
 signee named therein, or his assignee under a proper 
 indorsement of the bill of lading.^ 
 
 13 ut the master cannot be expected to determine 
 such a difficult question as the legal title to a bill 
 of lading as the representative symbol of the cargo. 
 If a bill of lading in proper form is presented to 
 him at the port of discharge, he is justified in giving 
 up the cargo to the holder ; and if there be more 
 than one such, the master having no reason to 
 determine him against any one of them, yet delivers 
 to one, he is not therefore liable to an action by any 
 of the other holders. But if he is in doubt what 
 course to take, especially when there appear to bo 
 conflicting interests, he ought to take an indemnity 
 from the holder to whom he means to deliver the 
 cargo. ■^ 
 
 In considering to whom he will be safe in making 
 and in refusing delivery, it may be useful to remind 
 
 * Meyerstein i'. Barber, L. E. 4 II. L. &17 ; Sheridan r. Now Quay Co., 
 28 L. J. C. P. 58; Fearon r. Bovrers, 1 II. Blkst. 3G4 ii. 
 
 « The Tigress, 32 L. J. Ad. 07 j CaldweU i-. BaU, 1 T. R. 205. 
 32
 
 250 LEGAL EFFECT OF THE CLAUSES. 
 
 the master that he can rarely incur any rcsponsi- 
 l)ility by adhering strictly to his engagement with 
 the shipper. In the cases of Brandt v. Bowlby ^ and 
 Coxe V. Harden,^ whatever might have been the 
 rights of the consignees, the master and his owners 
 would have been safe, had he not departed from his 
 contract in the bill of lading to deliver only to the 
 order of the shipper. 
 
 The master should remember that the cases in 
 which the consignor is entitled to alter the destina- 
 tion of a consignment are not of frequent occur- 
 rence. 
 
 Where the master of a ship, who had taken goods 
 on freight, and claimed to have a lien upon tliem 
 for salvage, delivered them to a bailee. The real 
 owner demanded them of the latter, and he refused 
 to deliver them without the direction of the bailor : 
 Held, that the bailor not having any lien upon the 
 goods, the refusal by the bailee was sufficient 
 evidence of a conversion, as a bailee can never be 
 in a better situation than the bailor. If the bailor 
 has no title tlie bailee can have none, for the bailor 
 can give no better title than he has himself.^ 
 
 The master of a ship, after waiting a reasonable 
 time at a foreign port, and no person having pro- 
 duced the bill of lading, may deliver the goods to 
 some person to keep till the bill of lading is pro- 
 duced. 
 
 I 2 B. & Ad. 332. " 4 East. 211. 
 
 3 VVilsou I'. AndcrLoi), 1 B. & Ad. 450.
 
 " TO A. n. OR OBT)ER OR ASSTGXS.'* 251 
 
 In the case of Howard v. Shepherd,^ Maiile J. 
 said : "It appears that the plaintiff is the indorsee 
 of a bill of lading, whicli was signed and left at 
 Liverpool, where the goods were shipped ; and it 
 does not at all appear that anybody had the bill of 
 lading at Bombay, or that it was presented to the 
 defendant. Tlic duty to deliver the goods arose 
 only on the presentment of the bill. Till it was 
 presented it was the duty of the defendant to keep 
 the sroods. But it is said that before the bill was 
 presented, the defendant transferred the goods to 
 somebody else, and not to the plaintiff or to any 
 one for the plaintiff's use. If he had delivered the 
 goods to anybody for the plaintiff, he would have 
 done wrong, for his business was not to deliver 
 them to the plaintiff until the bill of lading was 
 presented. The fact of a master keeping goods on 
 board without delivering them, might or might not 
 amount to a conversion ; but on the otlier hand, is 
 a master at a foreign port bound to keep goods for 
 an indefinite time on board his ship, or may he not 
 properly deliver them to some person, to be kept 
 until the l)ill of lading is presented ? It is clear he 
 may do that, and there is nothing in the declaration 
 to sheAV that he did anything else. I therefore 
 think that the declaration is bad as a count in 
 trover : and, therefore, judgment must be for tlie 
 defendant." 
 
 By the Mersey Dock Acts the cargo of any ship 
 
 '19 L.J. C. r. 219.
 
 252 LEGAL EFFECT OF THE CLAUSES. 
 
 from a foreign or Colonial Port using certain ports 
 must be received, weisrliecl and loaded off bv one 
 set of porters under the direction of a master-porter : 
 — " Held, that these Acts related to the possibility 
 of injury in the receiving, T\'eighing and loading 
 off the goods, and did not alter the legal liability 
 i:>rior to their delivery to the master-porter. And 
 therefore it AAas held that delivery of the whole 
 cargo to a master-porter at Liverpool, in accordance 
 with the regulations of the port, did not discharge 
 the sliij)Owncr from liability to a bill of lading 
 holder, the cargo having been insufficient to satisfy 
 all the bills of lading."^ 
 "He or they Payment of freight is always provided for bv tlie 
 
 paying freight . *. „ '' 
 
 for the same." luscrtion of stipulations in the bill of lading, the 
 terms of which vary more or less in accordance with 
 the nature of the voyage and the description of 
 cargo to be conveyed. As the usual bill of lading 
 expresses that the goods are to be delivered to A. B., 
 " he paying freight thereon," the receiving of tlie 
 goods imder that bill, whether by the original 
 consignee, or any assignee or indorsee of the bill, is 
 evidence of an obligation to pay the freight.^ 
 
 In Merian v. Punck,^ the Court said : " It is well 
 settled that when the goods, by the terms of the 
 bill of lading, are to be delivered to the consignee, 
 or to his order, on payment of freiglit, the party 
 
 ' The Emilien Marie, U L. J. Ad. 9; The Stottin, L. R. ll T. D. Ii2, 
 68 L. J. P. D. & A. 81. 
 
 « Parsons on Sh., vol. 1, p. 207. =* 4 Denio 110.
 
 "HE OR THEY PAYTXG FBETGTTT FOR THE SAME.*' 253 
 
 receiving tliem, Avliotlior a consignee or an indorsee, 
 to "wliom the Lill of lading is transferred hy tlie 
 consignee, makes liimself responsible for the pay- 
 ment of freight." 
 
 The usual clause engaging the master of the sliip 
 to deliver the goods to the consignee or his assigns, 
 he ov they paying freight for the said goods, is 
 introduced for tlic benefit of the master only, and 
 not for the benefit of the consignor, and therefore 
 the master is not bound to the consignor to Avith- 
 hold the delivery of the goods unless the consignee 
 or his assigns pay the freight. 
 
 Nor does it vary the case that the consignor is 
 also the charterer of the ship.^ 
 
 The words " paying freight as per charter-party," 
 refer to the charter-party merely for the purpose of 
 ascertaining the rate of the freight,^ and do not 
 apply to any other conditions of the charter-party.^ 
 If there is a bill of lading given by the master, 
 which gets into the hands of an assignee for value, 
 he is entitled to have the goods delivered to him 
 upon his fulfilling the terms mentioned in such 
 bill of lading, and he is not ordinarily in practice 
 bound. to refer to the charter-party.^ 
 
 The shipowiier is generally bound by tlie bill of 
 lading contracts which Ihe master has made, and 
 he cannot, as against strangers to the charter wlio 
 have shipped goods, or have become consignees or 
 
 » Shcpard v. Do Bernales, 13 E;ist oCrj; Domett r. Bcckford, 5 D. & A.l. o21. 
 = The Norway, B. & L. 22G ; 12 L. T. X. S. 57. 
 2 Per Willes, J. in Chappcl v. Cumfoit, 31 L. J. C. P. 58.
 
 254 LEGAL EFFECT OF THE CLAUSES. 
 
 indorsees of the bills of lading for value, claim to 
 set up rights under the charter-party which are 
 inconsistent with the terms of those l)ills of lading ; 
 although notice of the existence of a charter-party 
 be given by the bills of lading themselves. So where 
 the charter-party made the cargo deliverable on 
 being paid freight as follows, " the ship to have a 
 lien on cargo for freight; 3/. 10s. per ton of 50 cubic 
 feet to be paid to captain or his agents on right 
 and true delivery at port of discharge :" it was held, 
 that the shipowner had no lien against the indorsee 
 of a bill of lading for the whole chartered freight, 
 but only for the freight due on the goods mentioned 
 in the bill of lading ; ^ and the holder of the bill of 
 lading, subject to the conditions of a charter-party, 
 mil be liable for dead freight where such is payable 
 under the charter-party.^ 
 
 A charter-party in the usual form, after the 
 provisions as to rate of freight, and excepted perils, 
 provided that freight should be paid tAvo-thirds in 
 cash ten days after sailing, and the remainder in 
 cash on delivery of the cargo less cost of cargo 
 delivered short of bill of lading quantity. It was 
 held, that tlie cost of cargo short delivered might 
 1)6 deducted from the freight, though the short 
 delivery was caused by an excepted peril.^ 
 
 * Fry V. The Chartered Mercantile Bank of India, London & China, 
 L. R. 1 C. P. 689 ; 85 L. J. C. P. 306. 
 
 2 Gray v. Carr, L. R. 6 Q. B. 522 ; 40 L. J. Q. B. 257. 
 
 3 "Garston" S.S. Co. v. Hickie.JL. R. 18 Q. B. D. 17 ; 5G L. J. Q. B. 38.
 
 ■VVhcrc freight ^vas to be paid hy tlic shipper one 
 month after sailing, " ship lost or not lost," and the 
 bill of lading Avas handed for value to G. and Co., 
 it was held, that the shipowner had a lien as against 
 the defendants for the bill of lading freight, the 
 assignee having taken the bill of lading with the 
 risk attached to it, and therefore subject to the lien.^ 
 
 Where a charter-party authorized the master to 
 sign bills of lading at such freights as might be 
 required by the charterer's agents, without prejudice 
 to the charter, which gave an absolute lien on the 
 cargo for freight, it was held that the owner's lien 
 only extended to the sums mentioned in the bill of 
 lading which he had authorized the master to sign, 
 and that he had no lien on the cargo for the 
 chartered amount, which was much larger than the 
 sums named in the bill of lading.^ 
 
 Preight, as between the shipowner and the shipper, " Freight." 
 is, strictly speaking, the price to be paid by the 
 latter to the former for the carriage of goods by 
 ship, and is not earned or payable till the arrival 
 and delivery of the goods at their port of destina- 
 tion.^ 
 
 The title thereto is conditional on performance, 
 and payment thereof is secured by a lien at common 
 law on the goods carried. Sums payable in advance* 
 as where the ship was to receive 42 casks of wine to 
 
 1 Neish V. Graham, 27 L. J. Q. B. 15. 
 
 2 Gilkison r. MidiUetou, 26 L. J. C. P. 209. But see Kirchuer r. Venus, 
 7 W. R. -155. 
 
 ^ Maclachlan ou Shipping p. 452.
 
 256 LEGAL EFFECT OF THE CLAUSES. 
 
 be carried from London to the Cape, the shippers 
 undertaking to pay charterer 5/. per ton for the 
 casks, on delivery to the shipper of the proper bill 
 of lading of the casks on board the ship, nob being 
 dependent on performance of the carrier's contract, 
 are not of the nature of freight though often called 
 by that name, and the incidents of freight do not 
 attach thereto.^ 
 
 The "SYord "freight" in insurance law, and as 
 . emj^loyed in policies, has a more extensive significa- 
 tion than in the general law of shipping, and is used 
 comprehensively to denote the benefit derived by the 
 shipowner from the employment of his ship ; so in 
 policies of insurance freight denotes the price agreed 
 to be paid by the charterer to the shipowner for the 
 hire of his ship under a charter-party, or contract of 
 affreightment. Hence the definition of freight, as a 
 subject of marine insurance, that it is either the 
 remuneration to be paid to the shipowner for the 
 hire of his ship, under an express contract of 
 affreightment for a certain voyage, or the price to 
 be paid to him for the carriage of goods, irrespec- 
 tive of such contract. It may further be applied 
 to denote the benefit which the shipoAvner expects 
 to derive from the carriage of his own goods in his 
 own ship, in the shape of their increased value to 
 him at the port of delivery.^ 
 Dead freigiit. Tlic tcmi " dcad freight" is an inaccurate expres- 
 
 * Andrew v. Moorhouse, 5 Taunt. 435. 
 
 2 Arnould on M. I., Gtli ed. vol. 1, p. 31 ; Allison v. The Bristol Mar. Ins. 
 Co., L. R. 1 App. Cas. 209; 43 L. J. C. P. 311.
 
 " DEAD freight:' 257 
 
 sion of the thing signified hy it. It is not freight, 
 hut an unliquidated compensation for the loss of 
 freight, recoverable in the absence and place of 
 freight. It is the only expression given for the 
 claim which arises in consequence of the failure to 
 furnish a full cargo. It is so described in the 
 English authorities and also in the Scotch. Pro- 
 fessor Bell so represents it in his " Commentaries" 
 and also in his " Principles," and it is also so defined 
 in the " Law Dictionary." It is a term which has 
 obtained a place in our mercantile language as well 
 as in our law authorities. 
 
 "What is called " dead freight" is recoverable by 
 the shipowner from the freighter for deficiency of 
 car go. ^ 
 
 There can be no lien at law, in respect of a claim 
 for dead freight, inasmuch as there are e coucessls 
 no goods upon which it could attach. 
 
 By contract, however, there may certainly be a 
 lien for dead freight on the carsro actuallv carried, 
 if the amount be fixed or capable of calculation, 
 and even where the damages were unliquidated.^ 
 
 Knight-Bruce, L. J., delivering judgment in the Lump freight. 
 Privy Council in the case of the " Norway," said : 
 " Although the lump sum is called ' freight ' in the 
 bills of lading and charter-party, yet we think it is 
 not properly so called, but that it is more properly 
 
 1 McLean v. Fleming, L. K. 2 II. L. Sc. 128 ; rhillips i. RoJic, 15 East 
 554; Bell's Prin., Sec. 430. 
 
 •' Tiulor's L. C. iu Merc. & Mur. Law., Srcl ed. 374.
 
 258 LEGAL EFFECT OF THE CLAUSES. 
 
 a sum in the nature of a rent to be paid for ' the 
 use and hire of the sliip ' on the agreed voyage. 
 Tlie shipowner is entitled to be paid the lump freight 
 without any deduction for a loss of part of the 
 cargo occurring during the voyage Avithout the 
 negligence or fault of the shipowner." ^ 
 
 The plaintiff chartered a ship, of which he was 
 master, to one C. H. C. of Calcutta, under a charter- 
 party, by which it was agreed that the ship (wliich 
 was then at Melbourne) should proceed to certain 
 ports, and there load a cargo for Calcutta; " the cargo 
 to be delivered to the charterer at Calcutta, on being 
 paid freight at and after the rate of the lump sum 
 of 1,150^. for the full reach of the ship ; the said 
 freight to be paid on the unloading, and right deliv- 
 ery of the cargo as customary, less any advances 
 that may have been made." On the arrival of the 
 ship at Calcutta, C. H. C. requested the plaintiff to 
 deliver the cargo to the defendants as his agents, 
 which the plaintiff agreed to do on having payment 
 of the freight guaranteed by the defendants, which 
 they did less any claims for short delivery. The 
 defendants were Loud fide holders of the bills of 
 lading which had been signed by the plaintiff in 
 respect of the cargo. On unloading there was found 
 to l)c a deficiency in quantity between the goods 
 mentioned in the bills of lading, and those actually 
 shipped and delivered. Held, that notwithstanding 
 this the plaintiff was entitled to the whole of the 
 
 • The Norway, 3 Moore P. C. C. (N. S.) 2-i3 ; 13 W. E. 108G.
 
 "LUMP freight:' 259 
 
 freight specified in the charter-party, and was justi- 
 fied in keeping the cargo until the freight was paid.^ 
 
 And where a ship was chartered for a lump sum, 
 and she arrived at her destination ^vith the whole of 
 her cargo, with the exception of a deck load which 
 had been lost during the voyage by one of the 
 excepted perils, the shipowner was held entitled to 
 the whole of the lump .freight, without deducting 
 the portion of freight payable in respect of the deck 
 freight which had been lost.^ 
 
 So, where the charter-party provided a " lump 
 sum freight of 5,000Z. to be paid, after entire dis- 
 charge and right delivery of the cargo, in cash two 
 months after the date of the ship's report inwards 
 at the custom house," and a portion of the cargo was 
 destroyed by fire on the voyage : it was held, that 
 the loss having arisen from one of the excepted perils, 
 the plaintiff was entitled to recover the lump sum 
 agreed upon.^ 
 
 In Blanchet v. Powell's Llantivit Collieries Co.,* 
 the master of a vessel sued for lump freight, made 
 payable by a bill of lading, signed by the master 
 in respect of goods which were described in the bill 
 of lading as weighing 250,782 kilos. The defence 
 was that a smaller weight only Avas carried and 
 delivered. To which it was replied that the whole 
 
 1 Dods V. Stewart, 8 Ben. L. R. 3iO. 
 
 " Robinson v. Knights, L. R. 8 C. P. 465 ; 12 L. J. C. P. 213. 
 'The Merchant Shipping Co. v. Armitage, L. R. 9 Q. B. 99; 43 L. J. 
 Q. B. 25 ; Reynolds v. Jex, 13 W. R. 9GS. 
 * L. R. 9 Ex. 74; 43 L. J. Ex. 50.
 
 260 LEGAL EFFECT OF THE CLAUSES. 
 
 of the goods descrihed in tlie bill of lading had 
 been delivered, and that the weight stated was a 
 mistake. It was contended on demurrer but with- 
 out success, that the Bills of Lading Act precluded 
 the master from alleging that the weight stated 
 was incorrect. 
 
 Bramwell, B., said : "In an action against him 
 for non-delivery he might be estopped, but not in 
 such an action as this." And Cleasby, B., went 
 further saying : " if the bill had acknowledged the 
 receipt of certain specific things — a certain number 
 of horses, for instance — it might be that the 
 plaintiff could'not be heard to say that a different 
 number was shipped in fact. But that cannot be 
 said of a mere statement of weight, which may, 
 and often does, vary during the transit ; and I do 
 not see any estoppel, therefore, to prevent the 
 plaintiff from saying that the measurement was 
 wrong, it not being suggested that a Avrong weight 
 was inserted fraudulently in order to enhance the 
 lump freight recoverable." 
 
 When freight Accordiug to the term of an ordinary charter-party 
 
 becomes i -n p i • * 
 
 payable. or l)ill of ladmg, tlic wliolc voyagc for Avhich the 
 freight is agreed to be paid, must be accomplished 
 before any freight becomes payable. The master 
 cannot, by wrongfully stopping short of the place 
 of destination, compel the owner of the goods to take 
 them and pay the freight, even for tlie part of the 
 voyage performed, any more than the charterer, or 
 shipper, on tlie other hand, can insist on having the
 
 WTTr:X FPiETaJTT BECOMES PAYABLE. 2G1 
 
 cargo delivered at an intermediate place, so as to 
 deprive the shipowner of the opportunity of earning 
 his full freight. ^ If he desires to have his goods 
 short of their original destination, unless some 
 arrangement is come to hetween them, he must 
 satisfy the shipowner for the entire freight as fixed 
 by the charter-party or bill of lading. But it is 
 obvious that while such is the al)solute right of 
 each of the parties, tliis right may be varied or 
 waived ; and that while the shipowner may be 
 willing to forego his right to earn the entire freight, 
 on being jmid a rateable 2^^^'^ f^^* ^^ much of the 
 voyage as has been i^erformed, the owner of the 
 goods, on the other hand, may be willing to take 
 them at an intermediate place, and to waive the 
 conveyance of the goods to their original destina- 
 tion, paying a proportionate part only of the freight, 
 all claim to the residue being abandoned. Such an 
 arrangement in substitution of the original contract, 
 may not only be express, but may also be implied 
 from the circumstances and the conduct of tlie 
 parties, and ought to be so implied where justice 
 and equity require it." 
 
 In the case of the " Teutonia," ' Sir 11. Phillimore, 
 in delivering judgment, said : The general rule 
 that freight is due only wlicn the goods are delivered 
 at the port of destination, is subject to exceptions 
 or modifications, and these exceptions or modifica- 
 
 ' See Notara r. Ilenckn-son, L. R. 7 Q. B. 225. 
 
 " Metcalfe r. The Biitamna U-ou Works Co., L. K.2. Q.B. D. 423; 46 L.J. 
 Q. B. 4 13. 
 
 ' L. R. i P. C. 171. 41 L. J. Ailm. 57.
 
 262 LEGAL EFFECT OF THE CLAUSES. 
 
 tions may arise out of the terms of an express 
 contract, out of an implied contract, or out of the 
 equity between the parties. The law of England, 
 as administered in the Courts of Common law, 
 requires the master to carry the goods to the place 
 of destination, unless prevented by an unavoidable 
 casualty ; and requires the merchant, if the goods 
 be so delivered, to pay the stipulated freight." 
 Thus, where a ship was disabled at an intermediate 
 port, and by the default of the owner of the cargo, 
 the master was prevented forwarding the cargo to 
 its destination, it was decided that the whole freight 
 was payable. ^ 
 
 Some of the more ancient writers on maritime law, 
 mention the case of goods put on board a ship 
 without the knowledge or consent of the master or 
 owners. It is evident that in such a case no 
 contract for conveyance is made, but, nevertheless, 
 the master, upon delivery of them, Avill be entitled 
 to the usual freight for the voyage.^ 
 
 Freight may be earned before actual delivery of 
 the goods, if' they have been brought to the j)ort 
 of discharge ready to be delivered according to the 
 bill of lading. 
 
 According to the law of England, as a rule, freight 
 is earned by the carriage and arrival of the goods 
 ready to be delivered to the merchant. Willes J. 
 
 1 The Soblomsten, L. R. 1. A. & E. 293 ; 3G L. J. Adm. 5. 
 
 * McLach. on Sh., p. 370. 
 
 » Cargo ex Argos, L. R. 5 P. C. 131; 42 L. J. Ad. 49,
 
 WIIEX FREIGHT BECOMES V AY ABLE. 263 
 
 in delivering the considered judgment of the Court 
 in Dakin v. Oxlcy, ^ reviewed the Continental and 
 foreign laws, and said : " This is an action by a ship- 
 owner against charterer, to recover the freight of 
 a cargo of coal carried from Newport to Nassau. 
 The defendant pleads, that, l)y the fault of the 
 ma'ster and crew and their unskilful and necrlii^ent 
 navigation of the vessel, the coal was damaged, so 
 as ujoon the arrival at the j^ort of discharge to he 
 then of less value there than the freight, and that 
 he abandoned it to the shipowner. The plea, as it 
 does not deny, admits that the cargo arrived as 
 coal, and that it was of some value. The question 
 for us to consider is, whether a charterer, whose 
 cargo has been damaged by the fault of the master 
 and crew, so as upon arrival at the port of discharge 
 to be worth less than the freight, is entitled to 
 excuse himself from payment of freight by aban- 
 doning the cargo to the shipoAvncr. We think not; 
 and we should not have taken time to consider, but 
 for the general importance of the subject, and its 
 having been suggested that our law was silent upon 
 this question, and that the plea was Avarrantcd by 
 the usage and laAv of other maritime countries, 
 which, it was said, A\'e ought to adopt. 
 
 "It ought to be borne in mind, when dealing with 
 such cases, that the true test of the right to freight 
 is the question whether the service in respect of 
 Avhicli the freight was contracted to be paid has 
 been substantially performed ; and according to the 
 
 1 33 L.J. C. r, 115; 12 W. E. 507.
 
 2G4 LEGAL EFFECT OF THE CLAtlSES. 
 
 law of Eni>iancl, as a rule, freight is earned hy the 
 carriage and arrival of the goods ready to he 
 delivered to the merchant, though they he in a 
 damaged state when they arrive." 
 
 Thus in an action for freight hy the shipowner, 
 Avhere, hy the terms of the charter-party, two-thirds 
 of the freight was payahle on right delivery of the 
 cargo, it was held that the payment of freight and 
 delivery of the cargo must he simultaneous acts, 
 and that if in point of fact they could not take place 
 simultaneously, it must he shown that each party 
 Avas ready and willing to perform his part of the 
 contract.^ 
 
 So, where the charter-party provided that freight 
 should he paid at the rate therein specified, the 
 cargo to he taken alongside and to he taken from 
 the ship's tackle at the port of discharge free of risk 
 and expense to the ship. The master required pay- 
 ment of the freight for the amount of the cargo 
 delivered each day over the ship's side into the 
 consignee's hoats, and refused to deliver any more 
 cargo, on the consignee's refusing to pay on delivery 
 as required. It was held, that it was clear from the 
 charter-jiarty that the intention of the parties was 
 that the master should, on the arrival of the ship 
 at the port of destination, deliver, and tliat the 
 consignees should receive, at tlie ship's side ; and 
 that as on such delivery and receipt the master 
 ceased to he responsible, or to have any lien on the 
 
 » Puyntcr v. James, L. 11. 2 C. P. 348 ; 15 L. T. G61.
 
 WHEN FREIGHT BECOMES T AY ABLE. 265 
 
 goods, lie was justified in refusing to discharge the 
 cargo uitliout payment, at the ship's side, of the 
 freight on the quantity delivered each day, for his 
 lien would he given up hy delivery of the goods. ^ 
 Ordinarily, the consignee must tender the freight 
 l)efore he is entitled to the goods. But the need of 
 a tender will he waived if the master claims to hold 
 the goods, in such a manner as to show^ that it 
 would he of no avail to tender what is actually due. 
 And that may be so, although the consignee also 
 was wrong, as hy heing willing only to pay a smaller 
 sum than really was due.^ 
 
 The law implies no contract on the part of the 
 consignee, or indorsee, to pay freight, merely from 
 the reception hy him of the goods, hut it amounts 
 to evidence from which a jury would he warranted 
 in finding that the consignee or indorsee contracted 
 therehy to pay freight.^ 
 
 In Domett v. Beckford,* Parke, J. ohserved "From 
 the fact that the goods were laden on a ship to he 
 conveyed from Jamaica to London, the law will 
 imply a contract hy the owner of those goods to 
 pay for the carriage." 
 
 If freight is made payahlc upon the performance 
 of a condition, such as the right delivery of the 
 cargo at a port named, no freight hecomes due until 
 
 ' Black V. Rose, 2 Mooro P. C. C. X. S. 277; 12 W. l\. 1123. 
 = Tho Norway, 13 L. T. N. S. 59. 
 
 3 Sanders v. Vanzeller, -1 Q. B. 200; 12 L. J. Ex. 107; Zwilcliouburt i". 
 Henderson, 23 L. J. Ex. 231. 
 * 5 B. & Ad. 521. 
 31
 
 26G LEGAL EFFECT OF TEE CLAUSES. 
 
 the performance of such condition ; unless tlic con- 
 signee dispenses "^^itli the performance of sucli 
 condition, or voluntarily accepts the goods at an 
 intermediate place, or renders the performance of 
 the condition impossible. 
 
 Where by a bill of lading the goods were to be 
 taken out Avithin twenty-four hours after arrival, 
 and the ship arrived at Havre, her port of destina- 
 tion, but ^^'as not permitted by the authorities to 
 remain in harbour, or land her cargo at the quay, 
 on account of the dangerous nature of the goods, 
 which consisted of petroleum. It was shown that 
 the quay would have been the proper place for the 
 ship to have gone to bo discharged at ; the master 
 took the vessel to Ilonfleur and Trouville, but being 
 prevented from remaining in those ports for the 
 same reason, he returned to Havre and stayed in 
 the outer harbour for four days. No bill of lading 
 having been presented, nor any request made to 
 deliver the goods, he brought the cargo back to 
 England. In a suit for freight, it was held, that 
 though it might be the ordinary course, and that 
 in the usual state of things in the port, the quay 
 Avould have been the proper place for the ship to 
 have gone to for her discharge, yet that this being 
 an implied duty only, it did not amount to an 
 engagement to go there at all events and under all 
 circumstances, and that the master being ready and 
 able to give delivery in the harbour, and having
 
 WTTEX FnETfiTTT BECOMES EATABLE. 267 
 
 IvCpt tlic goods a reasonable time lli(n'o for tlio 
 purpose, the freight had been earned.^ 
 
 A cliarter-party "svas made in Prance, hy wliich 
 it was stipulated that the ship should proceed to 
 Trouville, a port in Prance, and should there load 
 a cargo of hay, and proceed therewith direct to 
 London; all cargo to he" brought and taken from 
 the ship alongside. The agent of the defendant, 
 the charterer, told the master that the consignors 
 would require the hay to be delivered at a particular 
 ■s\ harf in Deptford Creek, and that he should proceed 
 there on his arrival in London, which he promised 
 to do. On arriving in the Thames, he was informed 
 that by an order in Council made under "The 
 Contagious Diseases (Animals) Act, 1869," it was 
 illegal to land in Great Britain hay brought from 
 Prance. The order in Council was in existence 
 when the charter-party was entered into, but neither 
 of the parties knew of it, nor did the shipowner 
 contemplate any violation of the law. The defendant 
 after a time exported the liay, and the shipowner 
 brou2:ht an action asrainst him to recover damages* 
 n respect of the detention of the ship : — Held, that 
 under these circumstances the defendant could not 
 set up as a defence that the voyage was an illegal 
 voyage.^ 
 
 If the vessel is disabled by a tempest, or is other- 
 wise physically incapacitated from performing her 
 
 • Cargo ex Avpos, L. U. o P. C. 331 ; 12 L. J. Ad. -19. 
 - Wangh V. :MoiTif!, L. R. S Q. B. 202; 42 L. J. Q. P.. o7.
 
 268 LEGAL EFFECT OF THE CLAUSES. 
 
 destined voyage, the sliipowner is entitled, in the 
 event of the goods being forwarded by the master 
 to the port of discharge in another vessel, to the 
 full amount of the freight originally contracted for, 
 although the freight paid by the master for the 
 completion of the voyage by another vessel was 
 less than that agreed on in the original bill of 
 lading.^ 
 
 "Where a salving ship takes a crew off a vessel 
 in distress and puts men on board of her, refusing 
 to allow her own crew to return, and the two vessels 
 are in company navigated into ^oort, there is no 
 such abandonment of the ship as to put an end to 
 the contract of carriage, and consequently there 
 wall be freight due ujion the consignees requiring 
 delivery of the cargo, such freight being pro rata, 
 assuming the port not to be the port to which the 
 cargo ought to have been taken under the contract 
 of carriage.^ 
 
 If the outward and the homeward A'oyages are 
 intended by the contract to be distinct, then the 
 freight for the outward voyage ^\'in become due 
 ■upon_its completion, and will not be affected by the 
 non-completion of the homeward voyage.^ 
 
 As freight is jmyable upon the right and true 
 delivery of goods at their port of destination, the 
 circumstance of their being in a damaged condition, 
 
 1 Shiptonr.Thornton, 9A(1.&E.314; Matthcwsu.Gibbs, 80 L. J. Q. B. 55. 
 « The Leptir, 5 Asp. Mar. L. C. N. S. 411. 
 = Smith V. Wilion, 8 East. 437.
 
 TT7/^.Y FnEKHTT BECOMES PAYABLE. 269 
 
 T\'lietlier hy tlic fault of the master or crew on the 
 voyage, or tliey have become damaged from an 
 intrinsic i^rinciple of decay naturally inherent in the 
 commodity itself, whether active in every situation, 
 or only in the confinement and closeness of a ship, 
 freight will become payable for the same upon their 
 delivery to, and acceptance by, the merchant.^ 
 
 Thus, in the case of the ship "York," which was 
 stranded off Margate and sank under water, whereby 
 a great joortion of her cargo, consisting of pepper, 
 was greatly damaged by sea water, but was got out 
 of the ship by persons sent down by the charterers 
 and taken to London in vessels; the shijD was 
 subsequently raised and brought to London with a 
 small portion of the cargo still on board. The 
 merchants were held liable to pay the freight of the 
 pepper delivered to and received by them, though 
 greatly damaged by a peril of the sca.- 
 
 So, where tobacco was saved from shipwreck and 
 accepted by the merchant, he Avas held liable to 
 pay the freight, although part was so much damaged 
 as to be of no value .^ 
 
 And where chests of oran2:es on deliverv in 
 London were found to be much heated and damaged 
 bv the neQ:lii?ence of tlic master and crew in not 
 having given the cargo sufficient yentilation on the 
 
 ' Gibson r. Stiirgc, 21 L. J. Ex. 121 ; Bucklo v. Knoop. L. E. 2 Ex. 333; 
 3G L. J. Ex. 223. 
 
 - Hotliam V. East India Co., cited in Abbott on Sh., 13th cil. p. 570. 
 
 ' Lutwiilgo V. Grey, cited in Abbott on Sh., 13ih ed. p. 591.
 
 270 LEGAL EFFECT OF THE CLAUSES. 
 
 voyage, this was licld to be no answer to an action 
 for freight for the chests delivered/ 
 
 In Garrett v. Melhuish,- it was held that freight 
 was payable npon a cargo of bricks which had been 
 crushed up by heavy machinery stowed on top of 
 them. 
 
 In Moorsom v. Page,^ an attempt was made to 
 avoid payment of freight on the damaged outside 
 skins in which packages of hides were contained ; 
 but Lord Ellenborough held that there was no 
 ground for exempting them. 
 
 If tlie consignee of goods accepts any benefit by 
 the carriage, lie camiot defend himself from tlie 
 payment on the ground that the goods have been 
 damaged by ilio master in carrying them, though 
 the damage exceed the amount of the freight.* 
 
 AYhere, by a charter-party, a ship was to load at 
 Colombo or Cochin, from the charterer's agents, a 
 full and complete lading, and proceed to London 
 and discharge there, fire and other dangers of the 
 sea excepted, and a lump sum freight of 5,000Z. was 
 to be paid after entire discharge and right delivery 
 of the cargo. Part of the cargo was lost by fire, 
 without any default of the master or crcAV, and the 
 remainder was delivered in London. It was held, 
 that the shipowner T^'as entitled under the charter- 
 party to the full lump sum freight.^ 
 
 1 Davidson v. Gwynne, 12 East. 381. - 4 Jur. X. S. 9-13. 
 
 = 4 Camp. 103. * Shields v. Davis, 6 Taunt. G5. 
 
 = The Merchant Shipping Co. v. Armitage, L. R. 9 Q. B. 99; 43 L. J. 
 Q. B. 24 ; Robinson v. Kuights, L. R. 8 C. P. 4G5 ; 42 L. J. C. P. 211. 
 
 i
 
 WUEX FREIGHT BECOMES VAYAliLE. 271 
 
 "Where freight is made payable hy the contract 
 at a fixed rate, for a fixed period, as at so much per 
 month, Aveek, &c., the general rule is, that freight 
 accrues due at the exj)iration of each of the periods 
 specified, and continues payable if the ship is detain- 
 ed during tlic voyage, if such detention does not 
 discontinue the voyage or suspend the contract, and 
 does not proceed from the default of the shipowner.^ 
 
 If the shij^owner is guilty of unreasonable delay 
 he does not thereby lose his right to the freight, or 
 his lien on it ; he is only subject to a cross action.'- 
 
 In such a case, if a ship freighted on time is 
 captured and detained some time, and afterAvards 
 recaptured and liberated, and the voyage is then 
 completed, the shipowner may recover freight for 
 the A\'holc period, as if the voyage had never been 
 discontinued, and as if the detention had arisen from 
 contrary winds .^ 
 
 The stipulation in a charter-party, that freight 
 shall be paid " subject to insurance," mciins merely, 
 tliat freight is to be paid subject to deduction for 
 premiums on insurance ; but not that insurance by 
 the owner is a condition precedent to his recovery 
 of freight.^ 
 
 Although readiness to deliver the goods at tlie 
 place of destination is, in general, necessary to 
 
 * llavclock i". Geddes, 10 East. 535 ; Moorsoiu v. Greaves, 2 Camp. 627 ; 
 Eil)ley v. Scaife, 5 B. & C. 107. 
 
 = Per Williams, J. iu the case of Elasco i'. Flotchor, 32 L. J. C. P. 284. 
 
 * IJoorsom r. Greaves, 2 Camp. G27. 
 
 ' Jacksou I,'. Isaacson J 27 L. J. Ex. 302,
 
 2h ' LEGAL EFFECT OF THE CLAUSES. 
 
 entitle the shipowner or master to the freight, yet 
 witli respect to living animals, whether men or 
 cattle, which may die during the voyage, without 
 fault or neglect on the part of the persons belong- 
 ing to the ship, it is said, that if there is no exj)ress 
 agreement whether the reward is to he paid for 
 lading, or for transporting them, freight is payable 
 as well for the dead as for the living. If the agree- 
 ment was to pay for lading and undertaking to 
 carry them, their death will not deprive the sliip- 
 OAATier or master of the reward. But if the agree- 
 ment was to pay freight for transporting them, then' 
 no freight is due for those that die on the voyage, 
 because as to them the contract is not performed.^ 
 Cases in which If tlic shipoAVUcr fails to Carry the goods for the 
 
 it has been p • i 
 
 held freight is mercliaut to the destmed port, the freight is not 
 
 not payable. 
 
 earned.^ 
 
 If freight is made payable upon the performance 
 of a condition as the right delivery of the cargo at 
 a port named, no freight becomes due until the 
 performance of such condition, unless the consignee 
 dispenses with the performance of such condition, 
 or voluntarily accepts the goods at an intermediate 
 place, or renders the performance of the condition 
 impossible. 
 
 In the case of the " Soblomsten" ^ the following 
 rule was laid down, that no freight is payable if the 
 
 1 McLach. on Sh., 397 ; Kay on Sh., 297 ; Abbott on Sh., 13th cd. 53-t. 
 
 2 Dakin v. Oxley, 33 L. J. G. P. 115. 
 
 3 L. R. 1 A. & E. 293; see also Ilantoi- v. rdnccp, 10 East, 378 j MuUoy 
 V, Backer, 3 East. 316.
 
 I 
 
 CASES WHERE FREIGHT IS NOT PAYABLE. 273 
 
 owner of the cargo against liis will is compelled to 
 take the cargo at an intermediate port. 
 
 Tlius, where a cargo of rice shipped at Eatavia, 
 was by the hill of lading to be delivered at Rotter- 
 dam, to the plaintiff, he paying freight for the same. 
 The vessel having encomitered a hurricane, was 
 compelled to put into Mauritius, where the rice 
 having been found to be damaged, and in a state of 
 rapid xmtref action, was, of necessity, sold by the 
 master, who acted hondfule, but without the know- 
 ledge of either the shipper or the shipowner. It 
 Avas held, under these circumstances, that no freight 
 was due, for the shipowner w^as not" ready to carry 
 forward the goods to the port of destination in his 
 own or another ship, and consequently no inference 
 coidd arise that the shippers were willing to dispense 
 "vvith the further carriage, and accept the delivery 
 at the intermediate, instead of the destined, port.^ 
 
 In Dickson v. Buchanan^ a ship carrying some 
 wire fencing from Liverpool for Brisbane put into 
 Palmouth, as a port of refuge, after a collision. 
 The Avire was found to be damaged, and it was 
 given up to the sliipper on his undertaking to pay 
 freight for the voyage if he Avould be legally liable. 
 It was found that most of the wire coidd only be 
 used as scrap iron, and that if carried on it Avould 
 liaA'e rusted to such an extent as to be neither Avire 
 nor scrap iron Avhen it reached Brisbane. The 
 
 ^ A"lici-boom v. Chapmau, 13 L. J. Ex. 3S-i. 
 » 13 Sc. L. R. 101. 
 00
 
 274 LEGAL EFFECT OF THE CLAUSES. 
 
 remainder of the wire could be made serviceable by 
 a treatment more costly than the result would be 
 worth, but only for small articles, not as fencing 
 wii'c. 
 
 Lord Shand held, that no freight was imyahlc ; 
 on the ground that there had been either an actual 
 or a constructive total loss of the goods. If they 
 had been forwarded without being first subjected 
 to treatment they would have arrived at Brisbane 
 as rust, or at best, as to a small part, as scrap iron. 
 "While as to so much as was capable of treatment, 
 the process would not have restored it to the condi- 
 tion of fencing wire, and its cost would have 
 exceeded the value of the goods. 
 
 So, where a ship was chartered by the defendants 
 fur a voyage from Liverpool to Havana, and 
 loaded by them as a general ship, the freight being 
 payalile to the master. She went aground on the 
 coast of Ireland, but subsequently she was got off 
 with her cargo, both being damaged. S., who 
 represented the freighters, visited the vessel, and 
 was requested by the master " to act on behalf of 
 the owners to the best of his judgment and ability." 
 S. caused the cargo to be taken out and sent back 
 to Liverpool in another ship, Avliich he himself 
 engaged for that purpose. The ship went to Dublin, 
 and was there repaired. When the goods arrived at 
 Liverpool, the charterers, on account of their 
 damaged condition, determined to sell them. Before 
 the sale took place, however, the master claimed
 
 CASES WIIEPiE EUEIGUT IS XOT PAYABLE. 27 
 
 the entire freight on the goods to the port of destina- 
 tion, or that tlicy should he detained to proceed in 
 his vessel when she ^\as repaired. The defendants 
 refused to accede to this, and proceeded to sell the 
 goods. In an action hy the master against the 
 defendants for "wrongfully jireventing him from 
 carrying the goods and earning freight, the jury 
 found, in effect, that the course taken by the cliar- 
 terers was the reasonable one to take, having regard 
 to the interests of all parties concerned and that no 
 freight was payable by them as charterers. ^ 
 
 The mere shipment of the goods may amount to 
 an implied contract on the part of the shipper to 
 pay the shipowner a reasonable rate of freight for 
 the carriage; but where tAVO charter-parties were 
 entered into, each in ignorance of the other, and 
 the bill of lading was capable of being applied to 
 tlie one charter-party as to the other, it was held, 
 that the bill of lading, being ambiguous, was neither 
 a contract nor evidence of a contract to pay freight. 
 
 Thus, where the master of a ship chartered her 
 to L., a sliip-broker, to carry a quantity of iron at 
 a tonnage scale. By the terms of the charter-party, 
 freight Avas to be paid on signing bills of lading, 
 the OAAiier to have an absolute lien for freight. L. 
 re-chartered the vessel to T., on the same terms 
 except as to freight, which was higher than the first 
 charter-party. Neither the master nor T. knew of 
 the charter-party entered into by the other. T. 
 
 » Blasco V. Fletcher, 32 L. J. C. P. 2S1.
 
 276 LEGAL EFFECT OF THE CLAUSES. 
 
 sliipped tlic iron and obtained bills of lading for the 
 same, which was to be delivered, freight being pay- 
 able as per charter-party. The master did not claim 
 the freight on signing the bills of lading, and 
 delivered the cargo without insisting npon his lien. 
 L. in the meantime obtained the freight due from 
 T., and becoming bankrupt, the freight due under 
 liis charter-party was not paid to the shipo's^Ticr. 
 It was held, that the shipoAvner was not entitled to 
 recover freight from T. as shij)pers of the iron, 
 inasmuch as no contract could be implied on the 
 part of T. to pay freight to the shipowner, both 
 parties having made a mistake as to the' charter- 
 party referred to in the bills of lading, and were 
 consequently never ad idem} 
 
 Where the period is fixed at which the freight is 
 to become payable, as at the time of the arrival of 
 the ship at her first destined j)oi't, this being a 
 condition precedent to the owner's right to recover 
 freight, none is payable where the vessel does not 
 arrive at the first destined port.^ 
 
 If the freight is made payable on the arrival and 
 discharge of the ship at a particular port, and the 
 voyage is interrupted by the seizure of the ship, and 
 on the vessel being liberated the shipowner offers 
 to complete the voyage, the charterer's refusal to 
 do so does not entitle the shipowner to freight ; for 
 if the owner had done all that he offered to do, still 
 
 1 Smidt V. Tiden, L. R. 9 Q, B. 446 ; 43 L. J. Q. B. 199. 
 « Gibbon v. Mendez, 2 B. & Aid. 17.
 
 I 
 
 CASES WTTE-RE EBETOTTT TS KOT PAYABLE. 
 
 it would liavc amounted at most only to an endea- 
 vour on Ids part to prosecute and complete tlic 
 voyage, and to procure, as far as in liim lay, the 
 arrival and discharge of lier at her destined port.^ 
 
 If the master abandons his vessel, as "where she 
 becomes a derelict, he loses all right to freight, or 
 to carry on the cargo. Thus, uhere a ship damaged 
 in a collision was abandoned by her crew, and 
 afterwards saved and brought into a port, and the 
 shipowner offered to take the cargo to the port of 
 destination. ITeld, that the contract between the 
 shipowner and the owner of the cargo ^as put an 
 end to by the abandonment, and that the shipowner 
 Avas not entitled to any freight.^ 
 
 So where a ship, destined for E., with a cargo, 
 was abandoned as a derelict, brought by salvors into 
 an intermediate port and there arrested on behalf 
 of the salvors : on a motion by the cargo-owners 
 to release the cargo at that port, on giving bail, — 
 Held (by the Court of Appeal, affirming the judg- 
 ment of the Admiralty Court,) that the owners 
 ■s^■erc entitled to have the cargo released, and Avere 
 not liable to pay any freight to the shipowner, for 
 that the abandonment of the ship as a derelict 
 entitled the owner of the cargo to treat the contract 
 of affreightment as being at an end.^ 
 
 » Smith r. Wilson, 8 East. 44 L 
 
 - The Kathleen, L. R. -i A. & E. 2G9 ; 43 L. J. A dm. 39. 
 ' The Cito L. R. 7 P. D. 5; 51 L. J. Ad. 1. See iilso Ilickie r. Roilocana- 
 chi, 28 L. J. Ex. 273, 
 
 0-7
 
 278 LEGAL EFFECT OF THE CLAUSES. 
 
 Brett. L. J., said : " But suppose a case of wrong- 
 ful abandonment. It is obvious that in such a case 
 the contract would not be at an end, for the owner 
 of the cargo could sue the shipowners on the contract 
 for the W]'ongful abandonment. But it seems to 
 me, in order to determine this case, sufficient to 
 say that by an abandonment of a ship and cargo 
 without any intention to retake possession, the ship- 
 owner has so far abandoned the contract as to 
 give the other party a right to treat the contract 
 as abandoned, if he should elect to do so." 
 
 Where goods damaged on tlie voyage are landed 
 at an intermediate port and sold withont the consent 
 of their owner, the shipowners are not entitled to 
 freight ^jro 7Yctd itineins} 
 
 By a bill of lading for cement shipped for Sydney, 
 freight was to be paid within three days after arrival 
 of ship, and before the delivery of any portion of 
 the goods specified in the bill of lading. On the 
 day of arrival at Sydney, the ship caught fire, and 
 had to be scuttled. When the sliip was raised, it 
 was found that the cement was utterly destroyed 
 by the sea water. Held, in an action for freight 
 by the shipowners against the shippers and con- 
 signees of this cement, that the freight upon the 
 special contract was due only in the case of the 
 plaintiff's being ready and willing to deliver the 
 cement in specie during the three days after arrival 
 of the ship.^ 
 
 1 Acatos V. Burns, L. R. 3 Ex. D. 282 ; 47 L. J. Ex. 566. 
 ^ Puthie V. Hilton, L. R. 4 C. P. 138; 38 L. J. C. P. 93.
 
 FREIGHT HOW CALCULATED. 279 
 
 The mode of ascertaining^ tlie amount of Freight how 
 freight is as various as the contracts on ^\ hich it 
 depends. 
 
 AVhen goods are conveyed by a general ship, the 
 rate of freight is fixed, either by express agreement, 
 or by the usage of trade. 
 
 In the case of a charter-party, if the stipulated 
 payment is a gross sum for an entire ship, or an 
 entire joart of a sliip for tlie whole voyage, the gross 
 sum will be payable, although the merchant have 
 not fully laden the ship ; and if a certain sum be 
 stipulated for every ton or other portion of the ship's 
 capacity for the whole voyage, the payment must be 
 according to the number of tons which the ship 
 is proved capable of containing, without regard 
 to the quantity actually put on board by the 
 merchant/ 
 
 But evidence is admissible to show that the cargo 
 supplied is a full and complete cargo, according to 
 the custom of the port of loading.^ 
 
 Where the ship was described in the charter- 
 party as being " of the measurement of 180 to 200 
 tons or thereabouts," it was held to, be no excuse 
 for not loading her that her tonnage was 257 tons 
 only .^ 
 
 But if the merchant has . stipulated to pay a 
 certain sum per cask, or bale of goods, the payment 
 must be in the first place according to the number 
 
 » Hunter v. Fry, 2 B. & AUl. il'l. 
 "Cuthbcrt V. Cinnmiii-,', 21 L. J. Ex. 310. 
 ' Windle v. Barker, 25 L. J. Q. B. WJ.
 
 280 LEGAL EFFECT OF THE CLAUSES. 
 
 of casks, or bales, sliippcd and delivered,^ and if he 
 lias further covenanted to furnish a complete lading, 
 or a specific number of casks or bales, and failed to 
 do so, he must make good the loss which the owners 
 have sustained by his failure.^ 
 
 In Moorsom v. Page it was held that under a 
 covenant in a charter-party to pay freight on skins 
 by the pound, net weight at the King's beam, freight 
 is due on the outside skins in which the packages 
 are contained.^ 
 
 If an entire ship be hired and the burthen thereof 
 expressed in the charter-party, and the merchant 
 covenant to pay a certain sum for every ton, &c., of 
 goods that he shall put on board, but do not covenant 
 to furnish a complete lading, the OAvncrs^ cannot 
 demand payment for more than the quantity of goods 
 actually shipped.^ 
 
 Where the merchant engages to pay a certain sum 
 for every month, w^eek, or other period of the voyage, 
 the risk of the duration falls upon the merchant: and 
 in the absence of any stipulation to the contrary,^ 
 the computation begins from the day on Avhich the 
 ship breaks ground in prosecution of the voyage,^ 
 and continues during the course of it, inclusive of 
 unavoidable delays not occasioned by the act or 
 neglect of the owners or master, or by such circum- 
 
 1 McLach. on Sh., 422. 
 
 - The Southampton Steam Colliery Co. r. Clarke, L. E. C Ex. 53 j 
 40 L. J. Ex. 8. 
 
 3 4 Camp. 103. * McLach. on Sh., 423. 
 
 5 Fenwick v. Boyd, 15 M. & W. 632. 
 
 6 Curling v. Long, 1 B. & P. 034, 036.
 
 FREIGHT UOW CALCULATED. 281 
 
 stances as work a suspension of the contract for a 
 particular period. Thus, freight in such a case is 
 payahle for the time consumed in necessary repairs 
 durmg the voyage, if it do not appear that the ship 
 ^vas insufficient at the outset, or that there was any 
 improper delay in repairing her.^ 
 
 Where the ship is freighted by the month, a 
 calendar, not a lunar, month is to be understood.^ 
 
 When the parties have stipulated for a full and 
 complete cargo of particular kinds of goods, to be 
 carried respectively at specified rates of freight, and, 
 as the event may be, the ship is sent home empty, or 
 only part loaded, or is loaded in whole or in part 
 with goods to Avhich the rates are not applicable, 
 the following are the rules upon wliich freight is 
 calculated : — 
 
 AYhere the intention of both parties to the 
 contract is obvious, that freight should be earned, 
 and if that is rendered altogether impossible or 
 partially nugatory through fault of the freighter, 
 damages to compensate the loss are recoverable by 
 the shipowner.^ 
 
 The measure of damages is determined not by 
 what is reasonable, but by what is stipulated speci- 
 fically between the parties, who thereby evince an 
 intention to ascertain their rights and obligations, 
 even in those cases in which they contract for 
 power, in addition, to load " other lawful merchan- 
 
 > llipley r. Scaifc, 5 B. & C. 1G7; llavclock v. GecUles, 10 East. 555. 
 - Moorsom v. Greaves, 2 Camp. 627; Jolly v. Youuij, 1 Esp. 166. 
 ' Gumm 1-. Tyrio, 31 L. J. Q. 13. 121. 
 
 6(j
 
 282' LEGAL EFFECT OF THE CLAUSES. 
 
 disc," or " other goods," without appending thereto 
 any particular or general rate of freight. 
 
 So where a charter-party provided that the plaintiff 
 should take in a cargo at S. in the Gulf of Bothnia, 
 and without delay proceed to Southampton and 
 deliver it, and on delivery should receive the highest 
 freight which he could prove to have been paid for 
 sliips on the same passage hy water when the vessel 
 passed Elsinore inwards, Init not less than 905. It 
 was proved that higher freights had been given from 
 S. for vessels than on the voyage to London, and 
 that the freights to Southampton were always not 
 less than 55. higher than the freights to London. — 
 Held that there was no proof of higher freight for 
 the same passage ; that the charter-party could not 
 mean by same passage a passage from S. or other 
 ports of the same district to Southampton or other 
 ports in the same district ; and that the words could 
 not refer to the highest current freight.^ 
 
 Generally speaking, where there are several ways 
 in which the contract might be performed, that 
 mode is assumed as the measure of damages, which 
 is least burthensome to tlic defendant, and least 
 profitable to the plaintiff; subject, however, to any 
 exception expressly provided for by the parties in 
 their contract. 
 
 The cases of Thomas v. Clarke,^ and Gether v. 
 Capper,^ elicited the general principle, now an 
 
 1 GeLlier v. Capper, 24 L. J. C. P. C9, 71. 
 '2 Starkie, 450. » 24 L. J. C. R CO.
 
 FBEIGUT HOW CALCULATED. 283 
 
 established rule of law, that by all such contracts 
 the parties clearly evince an intention that for otlier 
 goods besides the enumerated articles the shipowner 
 is entitled to freight, the amount of Avhich is to be 
 determined not upon a quantum meruit, but in 
 accordance with the rates specifically mentioned in 
 their contract.^ In the absence of any express 
 contract for freight, the remuneration Avill be 
 determined by what appears upon evidence of tlic 
 current rate of freight at the time between the same 
 ports, to be reasonable.^ Prcight for goods stowed 
 in the cabin is not to be 2:0verned l)v the rate 
 aj)plical)le to the rest of the cargo.^ 
 
 Respecting the freight to be charged on the 
 weight or bulk of the cargo, whether it be on the 
 quantity at the port of shipment or at the port of 
 delivery, the general rule is, that where freight is 
 payable by the ton, by admeasurements, by the 
 package or barrel, or A\hero different portions of the 
 same cargo are shipped upon distinct and separate 
 terms as to freight, freight must be paid for what 
 is delivered. * 
 
 It has been held that the words, " Preight pay- 
 able on the intake measure of the quantity deliver- 
 ed," in a charter-party, means tliat the freight to 
 
 1 Warren v. Pcabody, 19 L. J. C. P. 13 ; Cockbiirn v. Alexander, 18 L.J. 
 C. P. 74. 
 
 - Miller V. Woo<lfall, 27 L. J. Q. B. 120; 8 E. & B. 493. 
 
 ' Miohesoii V. Nicol, 21 L. J. Ex. 323; Mitchell v. Darthcz, 2 Eing. 
 N. C. 555; 5L. J. C. P. 15 i. 
 
 \flitcJiie r. Atkinson, 10 East. 295; Christy v. Ro^Y, 1 Taunt. 300.
 
 284 LEGAL EFFECT OF THE CLAUSES. 
 
 he paid was on the measure put upon tlie timber 
 -when, measured at the port of loading, and not on 
 tlie quantity delivered, measured according to the 
 intake mode of measurement, at the port of dis- 
 charge. ^ 
 
 K. V. at Moulmein consigned to the plaintiff at 
 Bombay 135 logs of teak timber sliipped on board 
 the defendant's ship. The bill of lading, which was 
 signed by the defendant, described the logs as 
 marked K. V., and measuring tons 115-12-10-0, 
 and it provided for the payment of freight thereon 
 at Bombay at the rate of Rs. 17 per ton of 50 cubic 
 feet on right delivery. The last clause of the bill 
 of lading was in the handwriting of the defendant, 
 and was as follows : " marks, number, quantity and 
 measurement unknown ; all other conditions as per 
 charter-party." The charter-party was expressed 
 to be between the owners of the ship and Messrs. B., 
 of Rangoon, as charterers of the whole ship, and 
 provided for the payment of freight " at the rate of 
 Pts. 18 per ton of 50 cubic feet for all timber, one 
 rate throughout, except 100 tons broken stowage 
 at half freight, by intake measurement." On arriA^al 
 of the ship at Bombay the plaintiff, as consignee 
 of the timber and holder of the bill of lading, paid 
 the defendant (the Captain of the ship) Bs. 1,500 
 on account of freight, and took delivery of the 135 
 logs. On measuring them he found that, according 
 to his method of measurement, the total measure- 
 
 > Spaight V. Farmvorth, L. R. 5 Q. B. D. 115; 49 L. J. Q. B. 34(7.
 
 FRETGTTT TTOW CALCULATED, 28/ 
 
 mont of the 135 logs came only to tons 58-27-11-0, 
 and not tons 115-12-10-0 as mentioned in tlie l)ill 
 of ladinf^. He claimed, therefore, to he chargeahle 
 with freight only on the smaller qu^nitity (viz., 
 Es. 995-8,) and to recover from the defendant tlie 
 difference (viz., Us. 501-8-0) between that sum and 
 Es. 1,500 paid on account as for an overpayment 
 of freight. It was proved that all the timher on 
 hoard had heen measured at Moulmein hy an 
 employe of the charterers acting apparently as 
 agent of all the different shippers, and that the 
 measurements in the hills of lading were supplied 
 hy this person to the defendant as the measure- 
 ments of the different consignments. It was also 
 proved that the 135 logs received and measured hy 
 the plaintiff' in Bomhay were the same logs that 
 were shipped under the hill of lading, and that the 
 plaintiff's measurement of them was correct accord- 
 ing to the mode of measurement which he adopted. 
 There was no evidence as to what Avas the mode of 
 measurement followed at Moulmein, nor, except 
 the statements in the hill of lading, as to what was 
 the actual intake measurement of the timher there. 
 Held, that the effect of the last clause in the l)ill 
 of lading was to incorporate into that document the 
 clause of the charter- j)arty which provided that 
 freight should he payahle on the intake measure- 
 ment; that the hurden of proving what the intake 
 measurement actually was, lay upon the plaintiff 
 who sought to recover hack money Avhich he alleged
 
 286 LEGAL EFFECT OF TEE CLAUSES. 
 
 lie had paid in excess of "what was due, and that, 
 in the absence^ of such evidence on hehalf of the 
 plaintiff, the statement of quantity contained in tlie 
 bill of lading was prima facie evidence of the intake 
 measurement of the timber. ^ 
 
 If goods increase in bulk on the way, freight is 
 due only on the amount shipped. ^ 
 
 If freight is payable by net weight delivered, 
 " the shipowner is entitled only to freight on the 
 amount delivered." ^ 
 
 As a general principle, freight, in the absence of 
 special agreement to the contrary, becomes payable 
 only on so much cargo as has been both shipped, 
 carried, and delivered. 
 
 If less has been shipped than has been delivered, 
 as in the case of cars^oes which heat under sea water 
 damage, freight is payable on the lesser quantity 
 shipped. If less has been shipped and carried than 
 has been delivered, as, for instance, in the case of 
 goods which are compressed during the voyage and 
 expand on bemg unloaded, freight is payable on the 
 compressed and not on the expanded measurements. 
 If, on the other hand, less has been delivered than 
 shipped, as in the case of goods lost on the way, 
 then freight Avould be payable only on the quantity 
 delivered. * 
 
 1 Cursetji Rustomji Setna v. Williams, I. L. R. 5 Bom. 313. 
 
 "- Gibson v. Sturge, 2i L. J. Ex. 121 ; Tully r. Terry, L. R. 8 C. V. G79 ; 
 42 L. J. C. P. 240. 
 
 3 Coulthuvst V. Sweet, L. R. 1 C. P. 019 ; Buckle v. Knoop, L. R. 2 Ex. 125 
 3 3; 36 L. J. Ex. 223. 
 
 * Spaight V. Farmvorth, L. \l. 5 Q. B. D. 115 ; 49 L. J. Q. B. 348.
 
 FREIGHT HOW CALCULATED. 287 
 
 II., a sliipoAvncr, obtained from T. 13. & Co., 
 mcrcliants and bankers, a letter oi credit for liis 
 account in favour of II. B. & Co., for a quantity of 
 rice to be shipped from India or China to England 
 in n.'s own vessels. T. B. & Co. in their letter of 
 credit to II. B. & Co., stipulated that the drafts to 
 be forwarded for their accieptance should be covered 
 by shipping documents. It was assumed that 11. 
 
 B. & Co. were agents for II. They purchased the 
 rice and shipped it in the "Java," one of n.'s vessels, 
 and dre\v on T. B. & Co. for the amount, accom- 
 panying their drafts wath bills of lading of the rice. 
 These bills of lading described the rice as shipped 
 by H. B. & Co. to T.' B. & Co. or their assigns, 
 "freight for the said rice, 4/. 6s. per ton,". and they 
 bore an endorsement by the Captain, "Eeceived 
 from II. B. & Co. 250/., being the amount of ship's 
 disbursements at Akyab, the amount to be deducted 
 from the freight on this bill of lading." T. B. & Co., 
 on receipt of this, accepted the drafts, which they 
 paid at maturity. In the meantime II. had given 
 
 C. P. & Co. a charge on the freight then being 
 earned by the "Java," as security for money 
 advanced. The "Java" arrived in port, and C. 
 P. & Co. put a stop on the cargo for the freight, 
 and gave T. B. & Co. notice for their claim : — Held, 
 by the Ilouse of Lords, that whatever might have 
 been the original impression of T. B. & Co., as to 
 the rice being freight free, the contract was that 
 they would make the advance on shijiping docu-
 
 288 LEGAL EFFECT OF THE CLAUSES. 
 
 ments; that having accepted the hills as such 
 sliippiug documents they were hound hy the terms 
 of those hills, and that C. P. & Co. were entitled to 
 claim and receive the freight from them, less the 
 amount of ship's dishursements paid to the Captain, 
 there heing no rule in law to prevent a shipowner 
 from reserving freight in hills of ladmg of his own 
 goods when carried in his own vessels or from 
 dealing with the freight when so reserved, or from 
 consigning the goods suhject to such freight/ 
 By and to Tlic owucr of a sliip has a ris^ht to commit to any 
 
 whom freight ± n J 
 
 is payable. j)erson ahroad the ofhce of collecting the freight, 
 and if the shipowner sends an order to a house 
 ahroad to collect the freight, that takes the freight 
 out of the hands and control of the master. 
 
 The owner has undouhtedly the primary right to 
 receive the freight, and to sue the consignees of the 
 goods for it, and whether the master has any right 
 to receive the freight from them as against his 
 owners, will depend upon the question whether he 
 has any lien upon the freight. ^ The master of a 
 ship has no prospective lien on the freight, and 
 cannot insist on having it paid to himself, although 
 a j)ayment to him, in the ahscnce of any notice hy 
 the owner to the charterer to withhold it, would he 
 a good and valid payment. 
 
 So, where freight is payahle generally under a 
 bill of lading, or under a charter- j)arty which does 
 
 ' Wcguclin V. Collier, L. 11. 6 II. L. 28G; 
 - Smith V. riummcr, 1 13. & Aid. 581. 
 
 ; 42 L. J. Ch. 758.
 
 BY WHOM FUEiaai IS J'AYAIilJ:. 289 
 
 not specify to Avlioni frciglit is to l)o paid, iIh^ 
 master cannot maintain an action for the freight 
 if the owner demands and receives it.^ 
 
 The shipoAvncr will not lose the freight due to 
 him even A\'here the master signs l)ills of lading 
 making it payable to others. Thus, Avhere the agents 
 of the charterers at the outward port made advances 
 to the master, on condition of the ship taking goods 
 home for them on the -return voyage, imder -bills 
 of lading making freight 2">ayable to them, or their 
 assigns, at the port of delivery, and bills of that 
 tenor were signed accordingly ; it Avas held, tJic 
 master acted in excess of his authority in signing 
 such bills, and the shipowner's lien on the cargo for 
 impaid freight was not prejudiced thereby.^ 
 
 If the owner part with liis property in the vessel 
 during the voyage, the freight is payable to him 
 who is OAvner when it is earned,^ and accruing 
 freight passes to the mortgagee of a ship Avho takes 
 possession before the conclusion of the voyage.^ 
 
 Where a ship has been abandoned to her under- 
 ■writers during the course of the voyage, and freight 
 has been afterwards earned by the ship, by com- 
 pleting the voyage, that belongs to the under- 
 writers.^ 
 
 ' Atkinson r. Coteswortli, 3 B. & C. 617. 
 " Reynolds v. Jex, 13 W. R. 9G8. 
 ^ Moi'rison r. Parsons, 2 Taunt. 407. 
 
 * Dean v. M'Ghie, 4 Bing. 45; sco Willis i'. Palmer, 29 L. J. C. P. 101. 
 ' Case V. Davidson, 5 il. & S. 79 5 Stewart v. Greeuock Mar. Ina. Co. 
 2 H. L. C. 159. 
 
 37
 
 290 LEGAL EFFECT OF THE CLAUSES. 
 
 If the owner cliarter liis vessel to another, Avho 
 puts her up as a general ship, the freight afterwards 
 earned by her in that capacity is payable to the 
 charterer, subject to the owner's lien. ^ 
 
 So where a ship, being freighted by the OAvners, 
 and insurances effected in the ordinary form on 
 freight and ship, was stranded near her port of dis- 
 charge, and notice of abandonment given to the 
 underwriters on ship ; part of the cargo Avas then 
 brought by lighters to port, and the ship brought to 
 port with the remainder by and at the expense of 
 the OAvners. The abandonment Avas subsequently 
 accepted : — Held, as betAveen the shipowners and 
 the underwriters on ship, that notlnng in the nature 
 of freight for the Avhole voyage passed to the latter 
 as abandonees of ship ; but that they AA-ere entitled 
 to compensation from the shipowners, as OAvners 
 of the goods, for the carriage in the ship of the 
 goods from the place of stranding to the port, 
 calculated at the current rate of freight betAveen 
 those places. 
 
 Lord Campbell, C. J., said. In this case the first 
 question Avhich Ave are called upon to answer is, 
 " Avhether anything in the nature of freight, for 
 the entire voyage from St. John's to Liverpool, 
 passed to the underwriters on the ship, on the 
 abandonment of tlie ship ?" If the goods, on board 
 the ship at the time Avhen the casualty, to Avhicli 
 the abandonment refers, occurred, had belonged to 
 
 ^ Marquand v. Banucr, G E. & B. 232; Small v. Moates, 9 Bing. 574.
 
 FREIGHT PAYABLE TX A rARTTCTLAR MANNER. 201 
 
 third persons, for "whom they were to he carried on 
 freight from St. John's to Liverpool, there can bo 
 no douht that, l)y our kiw, the right to tlie A\liole 
 of that freight would haA'e passed to the abandonees 
 of the ship. The abandonees arc considered as 
 purchasers of the ship at the moment of the casual- 
 ty to which the abandonment refers ; and although 
 the contract of a shipowner does not run with the 
 ship, it is Avell settled that, as incident to the ship 
 the right to the whole freight, pending at the time 
 of the sale and subsequently earned, belongs to the 
 purchaser of the ship. ^ 
 
 If the shipowner or master contracts by the bill ^^^^^1^'"^^^^ 
 oE lading, charter-party, or otherwise, that the i;;'^^^^;^?;^!;!^^ 
 freight should be payable after the delivery of the "''^°"'^''- 
 cargo, or before the goods reach their destination, 
 or within a certain fixed time after the sailing of 
 the ship, or at a fixed time after the ship is report- 
 ed inwards ; the lien for freight will be destroyed. 
 
 Thus, where the Jreight was " to be paid on un- 
 loading and right delivery of the cargo, less advances 
 in cash at current rate of exchange ; one-half of the 
 freight to be advanced by the freighter's accept- 
 ance at three months, on signing bills of lading"; 
 the charterer gave his acceptance to the agents of 
 the ship, Avho thereupon endorsed upon the bill of 
 lading, " llcceived on account of the within freight 
 301/. 17>?. Gd. as per charter-party." The charterer 
 endorsed the bill of lading and forwarded it to the 
 
 > Miller V. Woo.lfan,27 L. J. Q. B. 120.
 
 292 LEGAL EFFECT OF THE CLAUSES. 
 
 plaintiff at Alexandria, 'wlio demanded delivery of 
 the goods on joayment of the remaining half-freight. 
 The charterer having become bankrupt, the master 
 refused to part Avitli the goods except on payment 
 of the Avliole freight; and in an action against him 
 to recover back the sum ^vhich had been paid under 
 protest, it was held, that tlie defendant had no lien 
 on the cargo for the half-freight represented by the 
 cliarterer's acceptance, and that the plaintiff was 
 entitled to recover the amount. ^ 
 
 So, where freight was to be ])i\u\ at London two 
 months after the ship cleared at the Custom-house, 
 it was held, that the payment for liire of tlie sliip 
 being made quite independent of the delivery of any 
 cargo, no question as to a lien for freight by the 
 master arose, and the charterer was entitled to 
 remove liis goods from the vessel, upon paying all 
 reasonable charc^es for such re-delivcrv.^ 
 
 And where freight was to be paid on unloading 
 and right delivery of the cargo in cash, two months 
 after the vessel's inward report at the Custom-house, 
 it was held, that as the freight A\as not payable until 
 two months after tlie inward report, the sliipowner 
 had no lien on the cargo for tlie freight.^ 
 When the As ai]?ainst an assignee for value, tlie owners are 
 
 owner is ^ 
 
 estopped hy 
 
 frdt'ht*^ ^^ ' Tamvaco v. Simpson, L. R. 1 C. P. 3G3 ; 35 L. J. C. P. 19fi ; Foster r. 
 
 mei ti )ned ia Colby, 28 L. J. Ex. 81. 
 
 the bill of 
 lading. 
 
 ^ Thompson v. Small, M- L. J. C. P. 157. 
 
 2 Alsager -y. The St. Kathorine's Dock Co, 15 L. J. Ex. 31; Lucas v. 
 ^Tockells, 4 Bin^,'. 729; Oliver v. Muggeridge, 7 W. R. IGi; Shand r. San- 
 derson, 28 L. J. Ex. 278.
 
 " PTtniAGE AXD AVERAGE ACCUSTOMED.'' 293 
 
 estopped l)y a statement in llie Ijill of lading of the 
 rate of freii^lit, tliou^li merely nominal ; or from 
 denying that freight has heen paid uhere the hill of 
 lading contains a statement to that effect. Por 
 instance, A\here a hill of lading stated that the freight 
 had heen paid in Bengal, hut the same, through the 
 fault of the shipper, had never heeu paid, it was 
 decided that the shipowners had no lien on the cargo, 
 and could not recover payment of the freight from 
 the assignee of the hill of lading. But the owner 
 of the ship has a lien on the goods of the charterer, 
 or the freighter, which have heen put on hoard 
 under a charter-party of Avhich he has notice, as 
 long as the owner retains and holds possession of 
 the ship.^ 
 
 The hill of lading usually provides for the delivery "Primage and 
 
 "^ . , avemge accus- 
 
 of the goods on payment or freight " witli primage tomed." 
 and average accustomed. " The word " primage " 
 was formerly used to denote a small payment to the 
 master, and ^\as in the nature of a gratuity which 
 lie was to receive to his own use for his care and 
 trouhle, unless he had otherwise agreed with his 
 owners, and was made hy the freighter to the 
 master of the ship upon delivery of tlie cargo. This 
 payment appears to he of very ancient date, and to 
 he variously regulated in different voyages and 
 trades. It was sometimes called the master's " hat 
 
 ' Tlio Mercantile ami Exchauffo Bank r. Gladstone, L. K. 3 Ex. 2.'^3; 
 37 L. J. Ex. 130; Howard v. Tucker, 1 B. A- Ad. 712; 9 L. J. K. B. 108; 
 Campion v. Coh in, 3 Bing. N. G. 17 ; 5 L. J. C. P. N. S. 317 ; Tamvaco r. 
 Simpson, L. R. 1 C. P. 3G3.
 
 291 LEGAL EFFECT OF THE CLAUSES. 
 
 money" or " pocket money." It belonged of right 
 to the master of tlie ship, and nothing hut an 
 express agreement coukl depm'e him of his right to 
 recoA^er it from the freighter. An agreement hj 
 the master to receive from the owner a fixed sum, 
 " in full of all cabin and other allowances" did not 
 divest the master of his right. ^ In virtue of long 
 usage it maintained its place until lately, notwith- 
 standing the jealousy of the common law, which 
 allows no man to have an interest against his duty,'^ 
 and was recoverable under the bill of lading, though 
 not mentioned in the charter-party. In the case of 
 Caughey v. Gordon & Co.,^ a charterer engaged to 
 ship a full cargo to a port in England, the master, 
 who was paid a fixed salary inclusive of all charges 
 and allowances, signed a bill of lading for the full 
 cargo, making the goods deliverable to "order or 
 assigns, freight to be paid in cash at port of 
 discharge, the rate of discharge, freight and other 
 conditions as per charter-party, with 5 per cent, 
 primage in cash on delivery as customary." The 
 indorsees of the bill of lading, who were charterer's 
 agents, received the cargo, and paid the freight ; 
 refusing, however, to acknowledge a claim put 
 forward by the master for primage. In an action 
 by the master for the same, it was held that the 
 charter-party being silent as to primage, the owner 
 was not entitled to it, neither could the master claim 
 
 1 Best V. Saunders, M. & M. 208 ; 3 M. & R. 4. 
 
 2 Thompson v. Havelock, 1 Camp. 527; Diplock r. ]51ackbuni, 3 Camp. 43. 
 = L. K. 3 C. P. D. 419,
 
 "PRLnAOE AXn AVERAGE ACCUSTOMED:' 295 
 
 it oil tli(^ cliarter-imrty, and iliat lio uas precluded 
 l)y an arrangement between himself and the ship- 
 owner from maintaining an action on the hill of 
 lading. But where there is a Avritten agreement 
 between the master and shipowners, primage not 
 being mentioned, and payment has been made l)y 
 the freighters in respect of primage, the master is, 
 by the usage of trade, entitled to such payment.^ 
 By the modern usage of trade the term "primage" 
 no longer signifies the gratuity or rcAvard Avhich the 
 master receives. Primage is ordinarily fixed at a 
 certain percentage on the freight, and in reality 
 forms a portion of the freight which the shipoA\ner 
 receives : for in cases of general average it is the 
 practice to deduct this percentage or primage from 
 the value of the cargo for contribution. The cargo 
 may be made responsible, and generally is made 
 responsible, by the terms of bills of lading, for the 
 master's gratuity, but not as for primage. This is 
 one of those instances in which a term has not only 
 survived its ancient use, but has come to be applied 
 to something essentially different to that which at one 
 time it signified. The ship-master nowadays receives 
 his fee or gratuity, but the " primage accustomed" 
 passes into the hands of his employer, forming 
 virtually a portion of the hire of his ship. The ship- 
 master is entitled to his gratuitv where it is stipulated 
 in the charter, and it may bo recovered by an action 
 at laAv ; but -if he were to sue for a percentage on the 
 
 » Charletou ;.•. Coteswortb, K. «t M. 175.
 
 296 LEGAL EFFECT OF THE CLAUSES. 
 
 cargo, lie Avould probably l)c met by a plea of the 
 custom of the carrying- trade, under Avliich custom 
 tliat percentage goes to tlie shipowner. By the 
 custom or usage respecting primage, is meant the 
 custom as to its payment or apropriation. In 
 some trades the usage does not allow primage to 
 be taken or charged; for instance, in the North 
 American trade it is not usual to charge primage 
 on timber cargoes. And in the case of Vose v. 
 ■ Morton,^ decided before the Supreme Judicial Court 
 of Massachusetts in 1856, it was shoAvn to be an 
 imiversal and well understood practice to pay no 
 primage in tlie American ports. In England, 
 however, although bills of lading are drawn which 
 do not sti})ulate for the payment of j)rimage, yet the 
 usage is the other way, and, as a general rule, the 
 primage is stipulated for and paid ; but always, as 
 stated, to the shipowner. The ship-master has 
 nothing to do with it, and never receives it except 
 on account of his employer. His gratuity is a fixed 
 sum, not a percentage, and to this he is considered 
 to be entitled. 
 
 Average, usually named with primage, is scarcely 
 now a reality; it denotes several petty charges, which 
 are to be borne partly by the ship, and partly by the 
 cargo, such as the expense of trimming, beaconage, 
 and other trivial expenses of thesliipowner, incurred 
 in the navigation. Tlie particulars which fall under 
 this head and the mode" of distributing the charge, 
 depend entirely on usage. 
 
 1 5 Gray 591 ; cited iu Parsons on Sh.j vol. 2, p. 4.
 
 2 
 
 « SHIP LOST OR NOT LOST:' 297 
 
 This and the preceding article of primage are often 
 commuted for a sj)ecific sum or a certain percentage 
 on the freight. ^ 
 
 It is settled bv the authorities that by the law of"'-'' ship lost or 
 England, a payment m advance on account of freight -^ 
 
 cannot be recovered back in the event of the goods 
 being lost. Cockburn, C. J., in Byrne v. Schiller,^ 
 said, " I regret that such should be the law. It 
 seems to me to be founded upon an erroneous 
 principle, and to be anything but satisfactory. I am 
 emboldened to say this upon finding that American 
 authorities of the hi<T:liest class have settled the 
 American law upon a directly opposite principle, 
 and also that the laAV of all other European nations 
 is in conformity with the principle of the American 
 law, and contrary to our law. It seems to have 
 been so settled by the law of France and Germany 
 for a very long period. Valin even doubts the Avisdom 
 and propriety of allowing any exception whatever 
 to the rule that an advance on account of freight 
 shall be repaid in the event of the goods perishing, 
 and the freight being no longer payable. I see by 
 Bedarride's great work upon commercial law, that at 
 the time of framing the Ercnch Code de Commerce, 
 it> was very anxiously discussed whether such an 
 exception should be introduced into the Code. lie 
 says that the free<tom of contracts prevailed, and 
 therefore that exception was inserted in the 302nd 
 
 1 McLach. on Sh., 419-497; Abbott ou Sh., 13th |d. p. 531,- 
 '^ L. K. 6 E\. 319 ; 40 L. J. Ex. 179. 
 • 38
 
 298 LEGAL EFFECT OF THE CLAUSES. 
 
 article of the Code, which i^rovides in the absence of 
 any stipulation to the contrary, a payment in advance 
 on account of freight shall be recovered back in the 
 event of the freight not being earned by reason of 
 the goods perishing." 
 
 In this case, the ship had been chartered for a 
 homeward voyage from Calcutta, with an option to 
 the charterers to send her on an intermediate voyage, 
 " freight to be paidas follows : 1,200/. to be advanced 
 to the master and to be deducted, together with I5- per 
 cent, commission on the amount advanced, and cost 
 of insurance, from freight on settlement thereof, and 
 the remainder on right delivery at port of discharge." 
 The master was also " to sign bills of lading at any 
 current rate of freight required, without prejudice to 
 the charter-party, but not under the chartered rates 
 unless the difference be paid in cash." 
 
 The charterers elected to send the vessel on an 
 intermediate voyage, and paid the 1,200/., and re- 
 quired the master to sign bills of lading below the 
 chartered rates. The difference, amounting to 737/., 
 was demanded from them by the master, but they 
 refused to pay it, claiming to set off against it the 
 advances made on account of the vessel. The vessel 
 was lost on her way to the intermediate port. It 
 was held, that a payment in advance on account of 
 freight could not be recovered, even though the 
 voyage fail ; and that, according to the terms of the 
 charter-party, the payment of the difference was to 
 be a payment in the nature of freight, so that if the
 
 '' ^TTTP 7.0ST on XOT LOFiTr 299 
 
 defendants had paid the difference in advance, they 
 would not have l)een entitled to recover it ; and that 
 tliereforc the shipowner was entitled to recover the 
 amount from them, not^^'itllstanding the failure of 
 the voyage. 
 
 Where a stipulated sum is agreed to be paid for 
 freight, at all events at the port of lading upon the 
 taking of goods on hoard to be carried on a voyage, 
 the shipowner, if it is not paid, may recover the 
 same from the shipper, notwithstanding the fact that 
 the goods have been lost on the voyage, and therefore, 
 that as they have not been carried to their port of 
 destination, freight, strictly speaking, had not been 
 earned/ 
 
 When money for the carriage of goods by sea is 
 payable at the port of destination, " ship lost or not 
 lost," and the ship is wrecked upon the voyage, the 
 shipowner has no lien upon the goods, although the 
 money to be paid for the carriage thereof is described 
 as " freight" in the bills of lading. 
 
 Thus, where goods were shipped on board the 
 plaintiff's vessel, to be carried to L. under bills of 
 lading whereby the freight was to be paid at L., 
 "shiplostornotlost." Upon the voyage the plaintift^'s 
 vessel was totally wrecked, and they thereupon 
 abandoned the adventure, and took no steps to 
 save either the ship or cargo. The defendants, 
 under the instructions of the underwriters, saved 
 a portion of the goods mentioned in the bills of 
 
 ' Andrew v. Mooihouse, 5 Taunt. 435,
 
 300 LEGAL EFFECT OF THE CLAUSES. 
 
 lading, and forwarded them to L. A dispute 
 havino: arisen as to whether the plaintiffs were 
 entitled to a lien for the freight mentioned in the 
 bill of lading, a memorandum was drawn up between 
 the plaintiffs and the defendants, stating that the 
 plaintiffs having claimed a lien " for the original 
 freight upon the goods saved, without allowance for 
 the forwarding freight and expenses," the defendants, 
 the owners of such cargo, had agreed to deposit the 
 amount of the plaintiff's claim to ahide the event of 
 an action. A special case having been stated for 
 the opinion of the Court, it Avas held, that upon the 
 agreement the only question to be argued was 
 whether the plaintiffs could lawfully claim a lien ; 
 that they were entitled to no lien, and that judgment 
 must be given for the defendants. In this case it 
 was doubted whether, under the circumstances which 
 had happened, the plaintiffs were not entitled to 
 recover the amount of the " freight" from the parties 
 to the bills of lading.^ 
 
 Certain goods were shipped at Liverpool for 
 Sydney, New South Wales, deliverable under the 
 bill of lading, to order or assigns, he or they paying 
 freight for the same as per margin ; and in the margin 
 appeared the sums due for freight, but the following 
 words were added : " freight payable in Liverpool to 
 jEneas Macdonnell, one month after sailing, vessel 
 lost or not lost. " This bill of lading passed into the 
 hands of the appellants, merchants in Sydney, as 
 
 ' Nelson v. Association for the Protection of Commercial Interests, 
 43 L. J. C. P. 218.
 
 ''SHIP LO.^T OPi XOT LOSTr 801 
 
 indorseos for value, and Avhen the ship arrived, they 
 demanded delivery of the goods, hut the master 
 refused this except on payment of the freight in the 
 hill of lading, Avhicli had not heen paid in Liverpool. 
 Upon these facts the Judicial Committee of the Privy 
 Council held that as it was money to he paid in 
 advance, and therefore not freight, no lien existed 
 under the circumstances of the case hefore them.^ 
 
 The clause " ship lost or not lost" refers only to 
 losses through excepted perils, and where money is 
 to he paid hy the shipper to the shipowner hefore 
 the delivery of the goods, such payment will he 
 treated as an advance of freight, or as a loan, 
 according to the intention of the parties as expressed 
 in the documents. A stij)ulation that it shall he 
 paid " suhject to insurance," or " less insurance," 
 will indicate that it is an advance of freight. When 
 l)y the terms of a charter-party a part of the freight 
 is made payahle and is paid in advance, the charterer 
 has a right to deduct the whole amount so paid hy 
 him from any freight which may actually he earned, 
 in case of a loss of part of the cargo, and not only 
 a proportionate part of it. 
 
 AYliere a shipowner, chartered his shiji for a 
 voyage from Greenock to Bomhay. The charter- 
 party provided that freight was to he paid on 
 unloading:, and ri^'ht deliverv of the cargo at the 
 rate of 42.9. per ton on the quantity delivered, "such 
 freight to he paid one-half in cash on signing hills 
 
 ' Kirchncr v. Venus, 5 Jur., N. S. 395 ; 7 W. R. -15o ; How r. Kircliner, 
 6 W. R. P. C. 198.
 
 302 LEGAL EFFECT OF TEE CLAUSES. 
 
 of lading, the remainder on right delivery of the 
 cargo." Half of the estimated amount of freight 
 was joaid on shipment, and the appellant insured the 
 unpaid freight with the respondents. The ship 
 was lost, hut half the cargo was saved, and delivered 
 without any additional payment hy the charterer. 
 The shipowner tlien claimed as for a total loss of 
 the unpaid half of the freight. 
 
 Held, that on the proper construction of the 
 charter-party and policies he was entitled to recover 
 as for a total loss of half the freight.^ 
 
 " The decision in the House of Lords in this case 
 firmlv establishes the doctrine of Ensrlish law that 
 freight paid in advance cannot he recovered back 
 by the consignee on the failure of the shipowner to 
 perform his contract of carriage. Doubt has some- 
 times been thrown upon this doctrine, but after 
 this decision it will be impossi})le for our Courts to 
 hold otherwise. This applies only to those cases 
 in Avhicli the advance by the charterer is in the 
 nature of freight, and is not a mere loan. The 
 decision also puts an end to the argument often 
 raised that the word " freight" may bear different 
 meanings in the same charter-party. It has long 
 been a favourite contention that where an advance 
 is made by the charterer to the shipowner before 
 the sailing of the ship, such advance is not freight 
 properly so called, nor a payment made in considera- 
 tion of the carriage of the goods, but is a payment 
 
 ' Allison r. Bristol Marine Insurance Co., L. E. 1 App. Cas. 209,
 
 " SHIP LOST OR NOT LOST:' 303 
 
 made in consideration of the taking of the goods 
 on board. This contention their Lordships refused 
 to adopt, pointing out that there can be no reason 
 for placing different meanings upon the same word 
 in the same mercantile instrument, and that the 
 time of payment cannot really affect the nature 
 of the payment made. Hence an advance of 
 freight must be considered as " freight" in the 
 ordinary sense of that -word, except in so far as it 
 cannot be recovered back. Nor, unless there be an 
 express stipulation to that effect, can an advance be 
 treated as other than a part of the whole sum to 
 be ultimately paid as freight, and consequently to 
 be deducted from that whole sum, whatever it may 
 be. An insurer or shipowner is not entitled to 
 divide an advance into so many parts, and treat 
 each part as a separate advance on each proportion- 
 ate part of the cargo."* 
 
 If it is an advance of freight, it must be j^f^id, 
 though the goods are before payment lost by except- 
 ed perils ; but it will not be recoverable from the 
 shipowner if, after payment, the goods are lost.^ 
 
 It Avill be recoverable if the i^oods are not lost bv 
 excepted perils — Thus where goods were shi])ped 
 under a charter " Four-fifths of freight calculated 
 on quantity shipped to be advanced and paid in 
 cash in one month from the vessel's sailing from 
 her last port in Great Britain, steamer lost or not 
 
 * Sec note («) to Allison v. Bristol Mar. Ins. Co., 3 Asp. Mar. L. C. ITS. 
 ' Rodocanaclii v. Milburu, L. R. 18 Q. B. D. 67; 5& L. J. Q. B. 202. 
 See per Brett, J., in L. K. 1 App. C. 223.
 
 304 LEGAL EFFECT OF THE CLAUSES. 
 
 lost." The excoptecl perils did not include the 
 master's negligence. The ship sailed on tlie 12tli 
 July, and was lost through the negligence of her 
 Master on the 19th. It was made known on the 
 21st, and on the 26th the freighter paid four-fifths of 
 the freight to the charterer. It was held, that the 
 freighter could recover such payment, as " lost or 
 not lost " referred only to losses by excej^ted perils, 
 and not to a loss occasioned by the negligence of 
 the master.^ 
 
 In the case of Smith, Hill and Company v. Pyman, 
 Bell and Company, the charter-party provided that 
 freight should be paid on unloading and right deliv- 
 ery of cargo, " one-third freight, if required, to be 
 advanced, less three per cent, for interest and insur- 
 ance." Tiie ship was lost on the day of sailing, 
 and shortly after the loss the shipowners demanded 
 the advance freight: — It was held in an action 
 by the shipowners to recover the advance freight, 
 that the charterers were not liable. Lord Esher, 
 M. H. remarking, in this case, the freight which 
 the charterer had to jiay was freight on unload- 
 ing and riglit delivery of the cargo, so that if the 
 ship never arrived or the cargo was never delivered, 
 no freight was payable. But the parties have 
 put into the charter-party a stij^ulation that a part 
 of that freight that is to say, of the very freight 
 which is payable on unloading and right delivery 
 may be payable in advance. Advance freight is 
 
 ■ 1 G. I. p. R. Co. V. Turnbull, 53 L. T. 325.
 
 ''SHIP LOST OR NOT LOST.'' 305 
 
 part of the freight. Now, there are two peculiari- 
 ties of advance freight, well-knowii to parties when 
 they enter into a charter-party : the one is, that if 
 advance freight is paid, even though the cargo is 
 lost, still the advance freight, notwithstanding that 
 it is part of the freight, and that the freight can 
 never hccomc due, cannot he recovered hack ; and 
 the second is, that if there be no stipulation to the 
 contrary — if the only stipulation is that there shall 
 he advance freight — that advance freight is due and 
 payahle the moment the ship starts on her voyage, 
 and may be recovered even after the voyage has 
 been lost. These two peculiarities of advance freight 
 are greatly in favour of the shipowner. In that state 
 of things, the parties in the present case, instead of 
 leaving the contract as to advance freight in the well- 
 known form, have altered it — and have altered it, as I 
 think, in favour of the charterer, by saying that the 
 advance freight shall he due only if and when the 
 shipowner requires the advance to he made. To say 
 that it is due before that is to strike out of the 
 contract the words " if requu'cd ;" whereas, in my 
 opinion, these words were inserted for the protection 
 of the charterer, and for a particular reason. They 
 constitute a stipulation and condition precedent to 
 the liability to pay advance freight at all — that is 
 to say, the charterer is not to be liable to ]iay 
 advance freight merely upon the cargo being loaded, 
 but only " if required." Is there anything to shcAV 
 that the meaning of these words is, and how they 
 39
 
 360 LEGAL EFFECT OF THE CLAUSES. 
 
 are in favour of tlic charterer ? I tliink there is. 
 
 The charterer has no insurable interest in advance 
 
 freight except as to that which he is liable to pay, 
 
 and until he is liable to pay. Ptemembering this, 
 
 and remembering that the cliarterer is not liable to 
 
 pay the advance freight till required, it is plain 
 
 that the meaning of the stipulation here is that the 
 
 demand of the advance freight must be made under 
 
 such circumstances as that he can insure, and that 
 
 the deduction of three per cent, is to enable him 
 
 to effect that insurance. The obvious intention is 
 
 that a demand of the advance freight must be made 
 
 othermse the charterer would have no insurable 
 
 interest ; and must be made at a time when the 
 
 charterer can insure otherwise the words " less three 
 
 per cent, for interest and insurance" are useless. 
 
 In the present instance the demand was not made 
 
 until after loss, and the considerations I have stated 
 
 shew that, though the shipowner might have 
 
 required payment of the advance freight at any 
 
 time before loss, he could not do so after loss, 
 
 because then the purposes for which tliis particular 
 
 stipulation was introduced in favour of the charterer 
 
 could not be carried out. Therefore I think the 
 
 charterer in this case was never liable for the 
 
 advance freight.^ 
 
 Conditions rpj^^ plirasc " all otlicr conditions as per charter- 
 
 as per J- -^ 
 
 charter-party, party" mcaus simply that except where other and 
 inconsistent terms arc expressly mentioned in the 
 
 » 60 L. J. Q. B 6
 
 CONDITIONS AS PER CHARTER-PARTY. 307 
 
 bill of lading, the terms of the contract between 
 the charterer and the shipper an^ to be the same as 
 the terms of the contract contained in tlic charter- 
 party.^ 
 
 The charter-party contains the contract between 
 the owner and tlic charterer of a ship ; and, unless 
 it expressly provides that that contract may be 
 varied by the bill of lading, the shipowner will not 
 be relieved from liability by an exception in the 
 bill of lading which is not in the charter-party.^ 
 
 A charter-party contained a stipulation in the 
 usual form for payment of freight at the rate of 
 11. lis. Sd. per ton ; it also contained a clause that 
 the shipowner should have " an absolute lien on the 
 cargo for freight, dead freight, demurrage, lighterage 
 at port of discharge, and average;" and a further 
 clause that the Captain was to sign bills of lading 
 at any rate of freight ; " but should the total freight 
 as per bills of lading be under the amount estimated 
 to be earned by this charter, the Captain to demand 
 payment of any difl'erence in advance." Certain 
 goods were put on board the chartered ship, and 
 were made deliverable to the plaintiffs (who were 
 not the charterers) by a bill of lading, Avhereby 
 freight Avas made payable at 22.9. Gel. per ion : the 
 bill of lading contained also a clause, whereby it 
 was provided that extra expenses should be borne 
 
 1 Cursetji Rnstomji Sctiia r. Williuiiis. I. L. R. 5 Boui. 313. 
 - Rodoconachi, Sons & Co. v. Jlilburn Bros., L. R. 18 Q. B. D. 67; 56 L. 
 J. Q. B. 202.
 
 308 LEGAL EFFECT OF THE CLAUSES. 
 
 hj the receivers and "other conditions as per charter- 
 party." Upon the arrival of the ship at the port 
 of discharge tlie defendant, who was tlic shipowner, 
 claimed and compelled payment of freight at the 
 rate mentioned in the charter-party. The plaintiffs 
 havinsc sued to recover back the difference between 
 the freight as specified in the charter-party and the 
 freight as specified in the bill of lading: — Held, 
 that the bill of lading did not incorporate the stipu- 
 lation in the charter-party as to the payment of 
 freight ; that no right of lien existed for the freight 
 mentioned in the charter-party, and that the 
 plaintiffs were entitled to delivery of the goods upon 
 payment of the freight specified in the bill of lading.^ 
 Goods were shipped on board the plaintiff's ship 
 under two bills of lading, by which they were made 
 deliverable at the port of discharge to the defendants 
 or their assigns, " they paying freight and all other 
 conditions as per charter-party." The charter-party, 
 which was entered into by the defendants as 
 charterers on account of another party, stipulated 
 for payment of freight and demurrage, and also that 
 the liability of the defendants as charterers should 
 cease as soon as the cargo was on board, the vessel 
 holding a lien upon the cargo for freight and 
 demurrage. In an action against the defendants, as 
 consignees of the goods, for demurrage incurred at 
 the port of discharge,— Held, that as the cesser 
 clause in the charter-party was inconsistent with 
 
 1 Gardner v. Trechmann, L. R. 15 Q. B. D. 154.
 
 CONDITIONS AS PER CHARTER-PARTY. 309 
 
 the contract coDtained in the Lill of lading, it conld 
 not l)c incorporated into the bill of lading, and, 
 consequently, that the defendants as consignees 
 ^Yere not absolved from liability for demurrngc 
 incurred at the port of discharge. Lord Coleridge 
 observed, " It is true tliat the charter-party does 
 contain a cesser clause, and that the charterers and 
 consignees are the same persons, but one cannot 
 incorporate by these Avords, into the bill of lading 
 such of the conditions contained in the charter-party 
 as are inconsistent with the bill of lading. The two 
 contracts are separate. 
 
 The cesser clause in the charter-party is in- 
 consistent Avith the bill of lading; and where 
 therefore, tlicro is an express contract in the 
 charter-party which provides for tliis payment, it is 
 impossible to incorporate into the bill of lading 
 which refers to the charter-party, an inconsistent 
 clause which provides for the ceasing of that 
 lial)ility.^ 
 
 The charterers of a vessel shipped a cargo on 
 board her under a bill of lading by which the cargo 
 was to be delivered at a ])ort therein named ("the 
 act of God, the Queen's enemies, fire, and all and 
 every other dangers and accidents of the seas, rivers, 
 and navigation of wliatever nature and kind soever 
 excei)ted) unto order or to assigns, they paying 
 freight for the said coals, and all other conditions 
 as per charter." One of the provisions of the 
 
 > Gullischen v. Stewart, L. E. 13 Q. B. D. 317; 53 L. J. Q. B. 173.
 
 310 LEGAL EFFECT OF TEE CLAUSES. 
 
 cliarter-party was, "Negligence clause as per Baltic 
 Bill of Lading, 1885." It was held, in an action by 
 the indorsees of the hill of lading against the 
 shipowners to recover damages for the non -delivery 
 of the cargo, that the words "all other conditions as 
 per charter only incorporated into the bill of lading 
 those provisions of the charter-party which, from 
 their nature, were to be performed by the consignee, 
 and did not incorporate the "negligence clause as 
 per Baltic Bill of Lading, 1885," and that the 
 plaintiffs were entitled to recover.^ 
 
 In the case of Sansinena & Co. v. H. P. Houston 
 & Co.,- where by a charter-party it was provided 
 that " the shipowners should fix, in a suitable place 
 on board, proper refrigerating machinery and 
 insulated chambers, and should during the voyage 
 keep the insulated chambers at a temperature not 
 exceeding 28° Fahrenheit, any accident, break- 
 down, or mishap to the machinery, or cause beyond 
 the owners' control not preventing;" and it was 
 further provided that " the performance by the 
 owners of their part of the agreement is subject to 
 the exceptions and perils mentioned in the bill of 
 lading according to form attached hereto, and the 
 agreement herein contained on the part of the 
 owners shall be read as if such clauses and condi- 
 tions were herein repeated ; all cargo shipped by the 
 charterers in pursuance of this agreement shall be 
 
 1 Serraino v. Campbell, L. R. (1891) 1 Q. B. 283 ; 60 L. J. Q. B. 303. 
 * 7 Asp. Mar. L. Gas. 150.
 
 CONDITIONS AS PER CII ART ER-V ARTY 311 
 
 received and carried subject to the terms and condi- 
 tions in the said bill of lading, except as altered 
 by these j)i'csents." By the terms of the bill of 
 lading any loss or damage was excepted 'which 
 might result from " the consequence of any damage, 
 breakdown, or injury to, or defect in, hull, tackle, 
 boilers, or machinery, or their appurtenances, 
 refrigerating engines, or chambers, or any part 
 thereof, outfit, tackle, or other appurtenances, how- 
 ever such damage, defect, or injury, might be 
 caused, and notwithstanding that the same might 
 have existed at, or at any time before, the loading 
 or sailing of the vessel, or by unseaworthiness of 
 the ship at the beginning or any period of the 
 voyage, provided all reasonable means had been 
 taken to provide against such unseaworthiness." 
 The charterers sued the owners for damage to cargo 
 shipj)ed by them under the charter-party, alleging 
 that the damage was caused by the refrigerating 
 engines being unfit and insufficient, and by the 
 insulated chambers not having been kept at the 
 agreed temperature, though no accident, breakdown, 
 or mishap to the machinery, or cause beyond the 
 owner's control, prevented. It Avas held that the 
 " exceptions and perils mentioned in the bills of 
 lading" were not incorporated into the charter- 
 jmrty so as to lessen or qualify the obligation 
 imposed by the charter-party upon the sliipowners 
 to jirovide proper refrigerating machinery and 
 insulated chambers, and to keep the insulated 
 chambers at the agreed temjierature.
 
 312 LEGAL EFFECT OF THE CLAUSES. 
 
 In Russell v. Niemann,^ the construction wliicli 
 the Court placed upon the Avords "paying freight for 
 the said goods and all other conditions as per charter- 
 party," was "that the words are to be taken as 
 limited by the context to conditions ejusdem generis 
 with that for the payment of the freight, namely, 
 conditions to be performed by the person who 
 receives the goods at the port of discharge, and not 
 that the words are to be taken as introducing into 
 the contract, by the bill of lading, all the provisions 
 of the charter-party." In this case, the master 
 relied upon the words " king's enemies" in the bill 
 of lading, to j^rotect him for not delivering the 
 goods. In the charter-party the exception was 
 " restraint of princes," and it was held that the 
 master could not, for his further protection, incor- 
 porate these words into the bill of lading. 
 
 Where the bill of ladini? contains the words 
 " paying as per charter-party," or " paying freight 
 and all other conditions as pnr charter-party," the 
 consignee will be lial)le for demurrage on the 
 ground that the charter-party (which is to be read 
 into the bill of lading) amounts to an absolute 
 contract to pay demurrage.^ 
 
 The true result of the authorities is, that a bill of 
 lading in which the words "and all other conditions 
 as per charter-party," follow the expression " on 
 
 1 34 L. J. C. p. 14. 
 
 » Porteou3 V. Watney, L. E. 3 Q. B. D. 534 ; 47 L. J. Q. B. 643 ; Wegener 
 V. Smith, 24 L. J. C. P. 25.
 
 DEMURRAGE. 313 
 
 paying freiglit," or "paying for the said goods," or 
 similar expressions, imports a liability on the part 
 of the consignee of the goods under tlie bill of lading 
 to pay the demurrage stipulated for by the terms of 
 the charter-party to which it refers/ 
 
 As freight is the compensation payable for the Demurrage. 
 use of the ship from the time of the shipment of the 
 goods until they are ready to be delivered at the 
 port of delivery, so demurrage is a compensation 
 payable for the improper detention of the vessel by 
 the shippers, or their agents, after the goods might 
 have been delivered.-^ Demurrage has been defmed 
 as an extended freight.^ 
 
 The Avord " demurrage," no doubt properly 
 signifies the agreed additional payment (generally 
 per day) for an allowed detention beyond a period 
 either specified in, or to be collected from the 
 instrument ; but it also has a popular and more 
 general meaning of compensation for undue 
 detention, and from the Avhole of each charter-party 
 containing the clause in question must be gathered 
 what is the proper meaning to be assigned to it.* 
 Eowen L. J. in Clink v. Eadford & Co.^ whilst accept- 
 ing this definition of the word "demurrage" observes: 
 *' Demurrage is an elastic word, it has a strict sense, 
 but it can be stretched beyond its strict sense. The 
 
 .1 Porteous i-. Watney, L. R. 3 Q. B. D. o3i; 47 L. J. Q. B. 645. 
 ■ Evans i'. Foster, 1 B. & Ad. 120. 
 =» Jesson V. Solly, 4 Taunt. 52. 
 
 * Lockhart v. Falk, 44 L. J. Ex. 105 ; Frauceaco u. Massey-j 42 L. J. Ex. 7o. 
 5 L. R. 1 Q. B. (1891) G25. 
 •10
 
 31 i LEGAL EFFECT OF THE CLAUSES. 
 
 ■word "demurrage," therefore, having two meanings, 
 we must look at the charter-party to see if it is 
 used in the strict sense, or in the more popular 
 and elastic sense." 
 
 Where goods arc shipped on hoard a general ship 
 and there is no charter-party, the stipulation for 
 demurrage is often effected by introducing words 
 creating it, into the margin of the bill of lading. In 
 the same way a claim for demurrage may be 
 enforced ao-ainst a consi2:nee or an indorsee of the 
 bill of lading, the master adding to the ordinary 
 undertaking in the bill of lading to deliver the cargo 
 on payment of freight, a condition that the 
 consignee shall be liable to a certain rate for 
 demurrage; or instead of inserting the condition 
 expressly in the bill of lading, it is equally effective 
 to import it into it by reference to the charter-party 
 of which it forms one of the stipulations : but in 
 adopting that course, care must be taken to make 
 the words of reference explicitly point to and include 
 the particular condition. 
 
 Under the bill of lading alone, if it expressly 
 makes the goods deliverable on payment of demurrage, 
 receipt of them by an assignee is, at common law, 
 evidence of a promise to pay such demurrage as 
 accrued due at the port of delivery by his fault,^ 
 and this notwithstanding any denial of his liability 
 made at the time he accepted the goods. ^ But he 
 
 1 Stindt V. Roberts, 17 L. J. Q. B. 1G6 ; Sanders v. VanzcUcr, 4 Q. B. 
 260; Allen v. Coltart, L. R. 11 Q. B. D. 782; 52 L. J. Q. B. 686. 
 « Wegener v. Smith, 24 L. J. C. P. 23.
 
 DEMUnriAGE. 815 
 
 is not therefore answcrahle for demurrage incurred 
 at the port of ladini^ ; at all events not unless there 
 was something very express to that effect in the 
 hill of lading.^ And when by a clause in a charter- 
 party demurrage is in express terms attached to 
 llie unloading of the ship, it has been lield that it 
 Avould be contrary to every fair mode of reading 
 that clause to say that that demurrage which is 
 stipulated for in terms for delay in unloading can 
 be applied to delay in loading.- 
 
 In the S. S. " County of Lancaster" r. Sharp & 
 Co.,^ the consignees under a bill of lading which 
 made the goods deliverable to them, " p^^ying freight 
 and all other conditions as per charter-party" refused 
 to pay demurrage at the port of loading and due 
 under the terms of the charter-party, but accepted 
 delivery of the goods. The consignees were, and 
 were known to the shipowners to be, acting only 
 as agents. In an action by the shipowners, it was 
 held that the consignees were not liable. 
 
 The 18 and 19 Vict., c. Ill, alTirming any liability 
 of the consignee or indorsee in consequence of his 
 receipt of the goods, transfers the rights and liabilities 
 of the contract contained in the bill of lading to 
 the consignee or indorsee, and vests the same in him 
 as if the contract had been made with himself.' 
 
 • Smitli V. Sievekiug, 21 L. J. Q. B. 237. 
 
 - Clink V. Radfonl & Co., L. R. 1 Q. B. (1891) 628. 
 ■ L. R. 24 Q. B. D. 158; 59 L. J. Q. B. 22. 
 
 ♦ Foster v. Colbj, 28 L. J. Ex. 81 ; Shancl r. Sanderson, 28 L. J. Ex.278; 
 :\IcLach. on Sh. 190.
 
 31G LEGAL EFFECT OF THE CLAUSE!^. 
 
 But if there is nothing whatever in the bill of 
 ladini];' Avith reizard to demurrage which would 
 amount to evidence of a contract, there is nothiug 
 for the statute to operate on, and no right of action 
 in the master against the consignee or indorsee for 
 demurrage, in consequence of his receipt of the 
 goods thereunder.^ 
 
 "\There a charter-party is silent as to the time 
 within which the carojo is to be unloaded at the 
 port of destination, the law implies that the merchant 
 and the shipowner shall each use reasonable despatch 
 in performing his part of the contract ; and where 
 the landing of the cargo by the merchant is rendered 
 impossible by a cause over which he has no control, 
 he is not lial)le to pay the damages for the delay .^ 
 
 If the discharge is effected by a Dock Company, 
 who do the work of discharging for both shipoTA^iers 
 and charterers, and delay is occasioned, in con- 
 sequence of the quay being blocked with cargo 
 from other vessels, beyond the time in which a 
 vessel might have been discharged — assuming that 
 the dock was free and there was no obstruction — 
 the charterer will not be liable for demurrage for 
 the delay Avhich has taken place, when it appears 
 that the vessel has been discharged as fast as she 
 could deliver, having regard to the customary way 
 in which that discharge takes place. 
 
 Barnes J. in " The Jaedercn"^ said, "It appears to 
 
 > Bronncker r. Scott, 4 Taunt. 1 ; Evans v. Forster, 1 B. & Ad. 118; 
 Smitli V. SievekinK, ^1 L. J. Q. B. 257. 
 " Ford V. Cotcswor^h, 39 L. J. Q. B. 188. 
 ■' Tlic Jaodercn, 61 L. J. 1'. D. & Ad. 89,
 
 mc that shipowners AA'hen they enter a dock of this 
 cliaracter, and place tliemsclves in the hands of tlie 
 Dock Company to carry out tlie discliargc in accord- 
 ance to A\ liat appears to he tlic invariahle practice 
 ol" llie port, must in so doing-, leave these agents to 
 deal with the matter in the customary way; and 
 A\hen they assert that the vessel has not been 
 discharged as fast as she could deliver, it rests upon 
 tliem to prove this." 
 
 Unless otherwise stipulated, tlie com2)utation of 
 time begins witli tiie arrival of the ship at the usual 
 or designated place of discharge in the jiort of 
 destination/ 
 
 "Where a vessel was to proceed to Dieppe and 
 deliver a cargo of coals alongside consignee's or 
 railway wharf, where she may safely deliver, as 
 ordered, cargo to he discharged in forty-eight 
 running hours, Sec. Demurrage over and above 
 the said lying time at 10s. per hour. The sliip 
 "arrived in the dock at Dieppe, and was ordered to 
 discharge at the railway wharf, but in consequence 
 of all the discharging berths being occupied, she 
 was not berthed at the railway wharf until tAventy- 
 foiu' hours after her arrival in the dock. In an 
 action by shipowner against charterers for dinnur- 
 rage : — Ileld, that the voyage AAas not completed, 
 
 ' Kcll V. Anderson, 12 L. J. Ex. 101 ; 10 :\[. A- W. 498; Leer r. Yates, 
 3 Taunt. 387 ; Tarker v. Winlo, 27 L. J. Q. B. 40 ; Bastifell v. Llovd, 
 31 L. J. Ex. 413; Brereton v. Chapman, 7 Bing. 559; Niemann r. lldss, 
 29 L. J..Q. B. 200; 6 Jur. N. S. 775; Brown r, Johnson, 10 M. A W. 331; 
 Pyman r. Drevfiis 24 Q. B. D. 152.
 
 318 LEGAL EFFECT OF THE CLAUSES. 
 
 and the Ivinc? time did not commence under the 
 charter-party until the ship was berthed at the 
 raihvay wharf, and therefore that the defendants 
 were not liable to pay demurrage for delay in respect 
 of the period which elapsed between the ship's 
 arrival in the dock at Dieppe and her being berthed 
 at the railway wharf .^ 
 
 Where a ship was to " proceed to London or Tyne 
 dock to such reoxly quay herth as ordered by 
 charterers" and deliver her cargo, it was held, in 
 the Court of Appeal, that the charterer was bound 
 to name a quay berth that was ready ; and that on 
 his default in doing so, the shipowner became 
 entitled to damages, although the charter-party 
 provided that tlie lay-days should not begin until 
 tlie day following that on whicli the ship was in 
 berth.2 
 
 A charter-party provided for delivery of cargo 
 ex H. at S. " or so near thereto as she .may safely 
 get at all times of tide and always afloat :" — Held, 
 that the lay-days Ijegan to run on notice to the 
 receivers that the vessel had arrived at the nearest 
 place to S. to which she could get in the then state 
 of tide.^ 
 
 By a charter-party it was agreed that the vessel 
 should " proceed direct to any Liverpool or Birken- 
 head dock as ordered by charterers, and there load 
 in the usual and customary manner a full and 
 
 » ilurphy V. Coffin L. R. 12 Q. B. D. 87. 
 
 2 Harris v. Jacobs, L. II. 15 Q. B. D. 24:7. 
 
 ' Horslcv V. Price, L. K. 11 Q. B. D. 241: 52 L. J. Q. B. 00.3.
 
 DEMUUiuuu. -no 
 
 complete cargo of coals;" tliat the vessel slioukl bo 
 " loaded at the rate of 100 tons per working day," 
 and that loading should not commence before the 
 1st of July. 
 
 On the 8rd of July the vessel was ready to go to 
 the AVellington Dock, Avliich was the Liverpool 
 Dock ordered by the charterers, hut she was not 
 admitted into such dock until the lltli of July, 
 because the coal agent employed by the charterers 
 to supply the cargo had then three vessels in that 
 dock and two others booked to come in, and the 
 dock regulations did not alloAV a coal supplier to 
 have more than three vessels in dock at the same 
 time. Coal agents were usually employed to supply 
 cargoes, and it did not appear that the charterers 
 had made an unreasonable selection of the coal 
 agent they so employed. The vessel entered the 
 dock on the lltli of July, Init her turn to go to the 
 spout to receive the coals did not arrive sooner than 
 the 23rd of July, and her loading was not begun 
 until after that day. It was the usual practice to 
 load coal at the spout, but it was also not unusual 
 to load from lighters : — Ileld, that the lay-days did 
 not bei]^in until the vessel had entered the dock to 
 which she had been so ordered by the charterers, 
 but that they began from that time, and were not 
 postponed until the vessel's turn had arrived to go 
 to the spout.^ 
 
 In reckoning time under a stipulation for dcmur- 
 
 i Tapscott V. Balfour, L. 11. S C. P. 4G; 12 L. J. C. P. 10.
 
 820 LEGAL EFFECT OF THE CLAUSES., 
 
 rage, days and runmug days mean the same thing, 
 in the absence of any peculiar custom to the con- 
 trary, i. e. without excepting holidays. If a local 
 holiday is not in fact observed as a holiday by those 
 who are loading or discharging the ship, it will 
 count as a working day.^ 
 
 In the absence of any custom to the contrary, 
 Sundays are to be computed in the calculation of 
 the lay or running days, which mean consecutive 
 days. In Nielsen v. Wait,^ Lord Esher said, " The 
 phrase * running days' is a well known nautical 
 phrase, and by running days arc meant all the 
 days in which in ordinary course the ship is 
 running, and by that phrase is meant the whole of 
 every day during both day and night.' Also, that 
 * lay days begin to run when the ship is in j)ort ready 
 to deliver, and they are to be counted consecutively; 
 but if the phrase 'working days' is introduced, 
 then the days cease to be of necessity consecutive 
 days, for the occurrence of a Sunday would prevent 
 the days from being consecutive." 
 
 Working-days exclude Sundays, Good Friday and 
 Christmas-day, and Custom-house holidays. "Lying 
 days" mean working-days, and exclude Sundays.^ 
 But weather- Avorking-days exclude all days from 
 the lay days in which cargo cannot be Avorked on 
 
 * Holman v, Peruvian Nitrate Co., 5 Scss. Ca. 657. 
 
 * L. R. 16 Q. B. D. 67; 55 L. J. Q. B. 87; Caffarini v. Walker, Ir. R. 10 
 Ch. 250; Mcintosh v. Sinclair, Ir. 11. 11 Cli. ; Brown v. Johnson, 10 M.& 
 W. 331 ; 11 L. J. Ex. 373. 
 
 3 Commcrciul Steamship Co. i: BouUon, 3 Asp. Mar. L. Ca. N. S. 111.
 
 DEMURRAGE. 821 
 
 account of the weather. In Stepliens v. Harris & Co.,^ 
 Lord Coleridge said : "It has been argued that 
 Avoatlier permitting includes thunderstorms. That 
 is not the fair construction of those Avords. The 
 fair construction of those words is ' sea weather.' 
 The weather Avhich interferes to save demurrage 
 must be Aveathcr which if there were cargo to load 
 would be an obstacle to the loading of the vessel." 
 
 A charterer Avill not be excused from paying 
 demurrage where the delay in loading has been 
 occasioned by frost, or ice, when it appears that the 
 frost would not have prevented the loading had the 
 cargo been ready at the dock or place of shipment 
 named in the charter-party, notwithstanding the 
 exception that detention by frost is not to be reckon- 
 ed as lay days ; but where there is, in a j^i'oved 
 state of facts, an inevitable necessity that something 
 should be done in order that there should be a load- 
 ing at the place agreed upon, as, for instance, that the 
 goods should be brought down part of a river from 
 the only place from which they can be brought, 
 even though that place is a considerable distance off, 
 yet it being practically, according to known mercan- 
 tile usage, the only place from which they can be 
 brought to be loaded, the parties must be held to 
 have contemplated that the goods should be loaded 
 from that place in the usual manner, unless there 
 Avas an unavoidable impediment and the cliarterers 
 in such case would not be liable for demurrage. 
 
 ' 6 Asp. Mar.L. C. 193. 
 41
 
 322 LEGAL EFFECT OF THE CLAUSES. 
 
 These principles were laid down by Brett, L. J., in 
 the case of Kay v. Field/"^ which was followed 
 by the court of appeal in Grant v. Coverdale, 
 which decision was affirmed by the House of 
 Lords. ^^^ The charter-party in the former case 
 stipulated that the plaintiff's ship should proceed to 
 Cardiif East Bute Dock, and there load a full and 
 complete cargo of rails : detention of frost, floods, &c., 
 not to be reckoned as lay days. There are two 
 docks at Cardiff — the East and West Bute Docks 
 which are connected by a short canal, and also by 
 a railway which runs along the quays round both 
 of the docks. The "West, but not the East, Bute 
 Dock was connected by a junction canal with an- 
 other canal — the G. Canal. There are five or six 
 manufacturers of rail iron at Cardiff, all of Avhom, 
 "with the exception of the charterer's agents had 
 wharves either in the .East or AVest Bute Docks ; 
 and who were accustomed to load vessels in the East 
 Bute Dock either from the quays or from lighters 
 alongside the vessels. The charterer's agents had 
 their wharf for the deposit of iron on the G. Canal, 
 and, in order to load a vessel in the East Bute Dock, 
 were accustomed to bring their iron in lighters from 
 their wharf on the G. Canal, along the junction 
 canal into the West Bute Dock, thence along the 
 short canal into the East Bute Dock, where the 
 vessel to be loaded was berthed. The whole cargo 
 
 (a) L. R. 10 Q. 13. D. 241 ; 52 L. J. Q. B. 17. 
 (h) L. R. 9 App. Gas. 470 ; 53 L. J. Q. B. 1G3.
 
 DEMUFiRAGE. 323 
 
 of iron -was deposited at the Agent's wharf in anti- 
 cipation of the arrival of the plaintiff's ship which, 
 on arrival, was berthed in the East Bate Dock, but 
 tlie loading by means of lighters was interrupted 
 for fifteen days by a frost, which covered with ice 
 the junction canal leading from the agent's Avharf to 
 the West Bute Dock. In an action by the ship- 
 owners for demurrage, Brett, L. J., in delivering 
 judgment for the plaintiffs, said, "The charter- 
 party in this case is made not with freighter's agents, 
 nor by one of the five or six manufacturers of iron 
 rail, but it is made by an ordinary charterer. Under 
 the terms of tiiat charter the ship is to proceed 
 not to Cardiff, but to Cardiff East Bute Dock, and 
 there to load, in the customary manner, a full and 
 complete cargo of iron. The shipowner here has 
 no means of knowing from which of these many 
 manufacturers the railway iron will come ; he can- 
 not tell whether it is deposited in the East Bute 
 Dock, or in the West Bute Dock, or at the wharf 
 belonging to freighter's Agents. The duty of the 
 shipowner, under this charter-party, is to take his 
 ship to Cardiif East Bute Dock, and when he has 
 done that, and put her in a berth ready to be loaded, 
 his duty is over. It then becomes the duty of the 
 charterer, immediately the ship is in her berth 
 ready to load, to begin to load her cargo, or else to 
 pay demurrage for the delay. 
 
 " The first question in this case is whether this 
 charter-party ought to be construed with relation
 
 324 LEGAL EFFECT OF THE CLAUSES. 
 
 to the circumstances as if the East Bute Dock were 
 the only harbour at Cardiff. It is clear from the 
 charter-party itself that it relates to the loading of 
 cargo, in the East Bute Dock only, and that it 
 ought not to be construed with regard to anything 
 which may have happened in the West Bute Dock 
 or in the town of Cardiff. When may that loading 
 be said to commence? Unless there is something 
 peculiar, all the stipulations in the charter-party 
 with regard to the loading apply to the place where 
 such loading is to be done. The conveyance of the 
 goods to the place of loading is no part of the 
 loading; but the loading begins in and at the place 
 named in the charter-party, and is not confined to 
 the actual lifting of the goods on board the ship. 
 That was decided in Hudson v. Ede,^ where it was 
 held tha>t piHmd facie the interpretation of such a 
 charter-party as this is that the loading commences 
 at the place where it is said that the loading is to be 
 done, which here is the East Bute Dock. The 
 stipulation of excuse for not loading is confined to 
 the same place as that to which the stipulation for 
 loading ajoplies. The exception is limited in the 
 same way as the obligation, and the detention here 
 is a detention of the ship by reason of the char- 
 terer being prevented from loading by frost. The 
 oblii?ation is to load in the East Bute Dock, and 
 therefore the prevention from loading must prmd 
 
 1 L. R. 3 Q. B. 412 ; 37 L. J. Q. B. 16G.
 
 DEMURRAGE. 325 
 
 facie be a prevention by frost from loading in that 
 clock. 
 
 " It Avas said lliat this matter uoiild be altered, 
 eA' en Avitliout the circumstances to which ^ve must 
 hereafter refer, by the words 'and there load in the 
 customary manner'; but those words refer to the 
 customary manner of loading in the East Bute 
 Dock, which is the dock named in the charter-party 
 so that everything must happen in the East Bute 
 Dock. 
 
 " It was further said that under the circumstances 
 of this case the loading commenced before the 
 arrival of the iron at the East Bute Dock namely, 
 when the iron was conveyed from the wharf 
 belonging to freighter's agent, which was half a 
 mile from the East Bute Dock. The question 
 arises, under what circumstances can one go beyond 
 the limits of the port or dock if named. There are 
 circumstances under which the loading can be said 
 to have commenced beyond the limits of the port 
 A^ hicli is named. That Avas decided in the case of 
 Hudson V. Ede,^ the circumstances in which, it is 
 admitted, Avere exceptional. There tlic obligation 
 on the part of the shipowner was to take liis ship to 
 the port of Sulina and load a cargo of grain. JPrlmd 
 facie the loading was to be done in the port of 
 Sulina, and it Avas declared that unless there 
 were peculiar circumstances the loading Avould 
 commence in the port of Sulina, as, by A\ay of 
 
 • Ti. K. 3 Q. B. 412 ; .37 L. J. Q. B. 166. Sec also Kearon r. Pearson 
 31 L. J. Ex. 1 ; Ashc-roft r. The Crow Orchard Col. Co., 43 L. J. Q. B. 194.
 
 326 LEGAL EFFECT OF THE CLAUSES. 
 
 example, by taking goods from the sliore out to the 
 ship. It was, however, proved, not that some but 
 that all of the shippers who shipped grain at Sulma 
 brought it down in lighters from Galatz, a port 
 about a hundred miles up the river Danube, and 
 taking it alongside the ship, there loaded the grain. 
 The Court also relied on the fact that every shipper 
 shipped grain in this way at the port of Sulina; and 
 consequently, when an exception is found in the 
 charter-party which relieves the shipper in the case 
 of frost, it must be taken to have been known by 
 the parties that the grain would come from Galatz; 
 that there was only one way of loading the ship ; 
 and that the exception applied to the whole of the 
 distance from Galatz, although that place was not 
 in the port of Sulina. It is obvious from the 
 observations made in that case by Mr Justice 
 Blackburn, together Avith the addition made by 
 Chief Baron Kelly at the instigation of Mr. Justice 
 Willes, that the foundfltion of the judgment is that 
 every shipper must be taken to have shipped grain 
 in the manner stated. The present case comes 
 within the general rules applicable to the interpre- 
 tation of an ordinary charter-party, but it does not 
 come within the exception in Hudson??. Ede.^ If it is 
 to be taken that this case was decided on the words 
 ' and there load in customary manner,' I am also 
 unable to agree with the decision, for that stipulation 
 has no application here." 
 
 > L. R. 3 Q. B. 412 ; 37 L. J. Q. B. 165.
 
 DEMVERAGU. 327 
 
 By a charter-party the plaintiff's ship was to load 
 at Sunderland fioni the charterer, in re<>ular and 
 customary turn ("except in cases of riots, strikes, 
 or any ether accidents beyond his control, wliich 
 may prevent or delay her loadin";,") a full and 
 complete cargo of coals. In an action against the 
 charterer for not loading the ship Avithin the time 
 agreed upon according to the charter-party, — II eld, 
 that a snoAV-storm was not *' an accident" witliin 
 the meaning of the above exception, and that, 
 therefore, it was no defence to plead that the 
 defendant was prevented from loading the ship by 
 accidents beyond his control which delayed the 
 loading, viz. : by the great inclemency of the weather, 
 and by the snow being from natural causes, and 
 without the defendant being able to prevent it, so 
 deep on the ground as to render it impossible to 
 bring the agreed cargo to the place of shipment.^ 
 
 AMien the number of lay days is fixed for loading 
 or discharging, that number will be strictly adhered 
 to and enforced, whether the merchant be to blame 
 or not, and each individual consignee of any portion 
 of a cargo of a general ship will be liable for the 
 entire demurrage arising from the ship being 
 delayed by such portion of the cargo not being 
 taken delivery of. 
 
 Thiis, where the defendant's portion of the cargo 
 was stowed at the bottom of the hold, and in 
 consequence of the consignees of the upper portions 
 
 » Fcmvick r. Schmalz, L. R. 3 C. P. 313; 37 L. J. C P. 78.
 
 328 LEGAL EFFECT OF THE CLAUSES. 
 
 of the cargo not being ready to take delivery as soon 
 as the ship was ready to discharge, the defendants 
 were not ahle to clear their ^lortion of the cargo 
 within the time stipulated by the charter, according 
 to which demurrage became payable by the conditions 
 of the bills of lading. The ship was delayed for 
 three days, and the plaintiff sued to recover three 
 days' demurrage. It was held, that the consignee 
 was liable under the bill of lading, for the whole 
 demurrage, though only one of several consignees.^ 
 
 If the ship is not discharged during the time 
 allowed by the charter, then for every day and 
 fraction of a day during which she is detained, the 
 stipulated demurrage must be paid; for if not 
 discharged within the minimum time allowed, the 
 charterer must pay for the fraction of a day as if it 
 was a Avhole day.^ 
 
 In the absence of an express agreement the days 
 for calculating the loading and unloading must be 
 kept separate and the charterer will have no right 
 to add together the whole number of days occupied 
 in loading and unloading for the purpose of 
 ascertaining the average amount of work done on 
 each day.^ 
 
 The consignee of a bill of lading which makes 
 the goods deliverable to him or assigns, " paying for 
 the said goods as per charter-party," does not, by 
 taking the goods at the destination, make himself 
 
 > Porteoua v. Watney, 47 L. J. Q. B. 643. 
 
 * Commercial S. S. Co. v. Boulton, 44 L. J. Q. B. 219. 
 
 3 Jlarshall v. Bolckow, L. R. 6 Q. B. D. 231,
 
 ''ACT OF GOD." 329 
 
 liable to pay for clemurragc in the port of loadini^ 
 according to the rate stipulated in the charter-party, 
 though there be an express stipulation for a lien on 
 the goods for such demurrage. ^ 
 
 This exception designates the immediate operation "Act of God." 
 of purely natural agents, such as lightning, earth- 
 quake, and tempest, exclusive altogether of human 
 intervention, but is not so extensive as to comprehend 
 Avliat is merely inevitable.^ 
 
 The " act of God, " when relied upon as a defence, 
 must be the immediate cause of the loss and not 
 remotely connected with it. 
 
 This was ruled in the case of Smith v. Shepherd,^ 
 in consequence of which it was sought to introduce 
 a bill into Parliament limiting the liability of ship- 
 owners in all cases except that of negligence, but 
 this measure having been rejected, the present 
 exception was introduced into the bills of lading 
 for the protection of shipowners. 
 
 The first words of the ordinary exception in the 
 bill of lading are " the act of God." Tliis limitation 
 of liability exists at common law in the case of all 
 common carriers, without any express agreement to 
 that effect. A loss caused by a sudden gust of wind 
 is witlim the exception.^ A sudden failure of the 
 wind under critical circumstances may be enough ; 
 
 ' Smith V. Sieveking, 21 L. J. Q. B. 237. 
 " Forward v. Pittard, 1 T. R. 27. 
 » Smith V. Sheplicrd, cited in McLach. on Sh., 499. 
 ♦ Amies i*. Stephens, 1 Str. 128 ; Oakley i: The Portsmouth and Kyde 
 Steam &o. Co., 25 L. J. Ex. 99 j Kay ou Sh., vol. 1, 4U. 
 
 42
 
 330 LEGAL EFFECT OF TEE CLAUSES . 
 
 as Avlicre a ship is tacking near rocks, or is under the 
 influence of a current setting her on to the shore.^ 
 But a loss caused hy a mere accidental circum- 
 stance, as the tide lifting up a ship and pitching 
 her on the rudder of another ship, is not within the 
 exception ; ^ neither is a loss caused by fire, which, 
 although caused by no negligence on the part of 
 the carrier, yet was not occasioned by lightning, 
 within the exception.^ 
 
 In Nugent v. Smith,* decided in 1876, Avhich was 
 an action to recover damages in respect of the loss 
 of a mare, which, whilst in transit from London to 
 Aberdeen in a steamer, sustained such severe 
 injuries, partly from the rolling of the vessel in a 
 storm of more than ordinary violence, and partly 
 from her struggling caused by excessive fright, as 
 occasioned her death. Cockburn, C. J., in deliver- 
 ing judgment, said, " It is somewhat remarkable 
 that previously to the present case, no judicial 
 exposition has occurred of the meaning of the term 
 ' act of God,' as regards the degree of care to be 
 applied by the carrier, in order to entitle himself to 
 the benefit of its lorotection. If the fright which 
 led to the struggling of the mare was in excess of 
 what is usual in horses on shipboard in a storm, 
 then the rule applies that the carrier is not liable 
 where the thing carried perishes, or sustains damage, 
 
 * Colt r. M'Meclien, 6 Johns. 160; cited iu Augell ou Carriers, s. 155. 
 « Smith V. Shepherd, 11 Ex. 622. 
 
 8 Forward v. Pittard, 1 T. E. 27. 
 
 ♦ 45 L. J. Q. B. 097.
 
 ''ACT OF GOD." 831 
 
 without any fault of Lis, by reason of some quality 
 inlierent in its nature, and wliicli it was not possible 
 for him to guard against. If, on the other hand, 
 the fright was the natural effect of the storm and 
 the agitation of the ship, then it was the immediate 
 consequence of the storm, and the injuries occasion- 
 ed by the fright are sufficiently closely connected 
 with the storm ; in other words, ' the act of God,' 
 to afford protection to the carrier. And it was held, 
 that in order to come Avitliin tlie exception of loss 
 by the * act of God' as applied to the liability of a 
 common carrier, the loss need not have been caused 
 directly and exclusively by such a direct, and violent, 
 and sudden, and irresistible act of nature as the 
 carrier could not by any amount of ability foresee or 
 (if he could foresee it) could not by any amount of 
 care and skill resist so as to prevent its effect." 
 
 A loss is a loss by ' the act of God' if it is occa- 
 sioned by the elementary forces of nature uncon- 
 nected with the agency of man or other cause, and 
 a common carrier is entitled to immunity in respect 
 of loss so occasioned, if the loss is occasioned jiartly 
 by ' the act of God' as above defined, and partly by 
 some other cause, Avliich if it had been the sole 
 cause of the loss, would have furnished a defence. 
 Tlie carrier would be entitled to immunity in resjiect 
 of such loss if he can shoAV that it could not have 
 been prevented by any amount of foresight, pains 
 and care reasonably to be required of him.^ 
 
 * See Story on Bail. s. 25.
 
 832 
 
 LEGAL EFFECT OF THE CLAVSES. 
 
 "The 
 
 Queen's 
 
 eaemies. 
 
 " Pirates, 
 Eovers." 
 
 Tlie "queen's enemies" or the "king's enemies" 
 means the enemies of the carrier's sovereign, what- 
 ever title he may enjoy, Avhether qneen, emperor, 
 president, cluke, doge, or aristocratic assembly, and 
 lest there shonld be anything left out, " restraint of 
 princes" comprehends every case of interruption by 
 lawful authority. 
 
 Thus, where a Mecklenburg ship loaded at Odessa 
 for the United Kingdom, to call at Cork or 
 Palmouth for orders. The ship proceeded to 
 Falmouth and was there ordered to Limerick to 
 discharge, and the master was prevented from doing 
 so by the act of the enemies of his sovereign, the 
 Duke of Mecklenburg-Schwerin. It was held that 
 the enemies of the sovereign of the carrier were 
 included in the w^ords "the king's enemies."^ 
 
 Capture by an enemy in the exercise of war 
 between two nations, according to the law of 
 nations, wholly divests the property of the owner, 
 and transfers it to the captor or the sovereign of his 
 State at the period named.^ 
 
 Losses arising from pirates were formerly included 
 in our maritime law amongst the general perils of 
 the seas,^ and probably w^ould still be held to be so ; 
 though as piracy is now one of the enumerated 
 perils in the bill of lading, the point is of less 
 importance.^ 
 
 1 Russell V. Niemann, 31 L. J. C. V. 10; 10 L. T. V8G ; 18 W. E. 93. 
 
 « Atk. on Sh., i>. 118. 
 
 = 3 Kent's Com., p. 302; Aljbott on Sli., 13ili od. 401. 
 
 * Anioulcl on M. I., fith ed. vol. 2, p. 7G'J.
 
 << PIRATES'' "ROVERS," 333 
 
 ITncler the risk of pirates and rovers, the under- 
 writers are, it seems, liahlc for a mutinous seizure 
 and carrying? away of the ship hy the crew/ But 
 where emigrant cooly passengers murdered the 
 captain and portion of tlie crew, and took possession 
 of the vessel and ran Iter asliore in order to escape, 
 this act on their part -oias held to he an act of piracy, 
 and one of the perils insured against. - 
 
 Whatever would he rohl)cry l)y land will he piracy 
 at sea, and assaulting a ship on the high seas and 
 ohliging the captain to redeem her for so much, or 
 for a certain part of the cargo, is considered clearly to 
 be piracy.^ So, where a ship laden with a cargo of corn 
 was forced hy stress of weather into Elly Harhour, 
 where there happened to he a great scarcity of corn, 
 the people came on hoard the ship in a tumultuous 
 manner, took the government of her from the captain 
 and crew, and weighed her anchor, hy which she 
 drove on a reef of rocks, where she was stranded, 
 and they would not leave her until they had 
 compelled the captain to sell all the corn at a 
 certain rate, which Avas about three-fourths of the 
 invoice price. It was held, that this loss fell within 
 a capture by pirates. ^ 
 
 Capture by pirates, aa ho are merely robbers at 
 sea, does not divest the property of the owner, and 
 in a very early period of oiu- history a law was made 
 
 1 Dixon V. Rcitl, 5 B. & AM. 597. 
 
 Palmer v. Naylor, 23 L. J. Ex. 323. 
 3 Lex Mer. 149, 212. 
 * Nesbitt r. Lashington, 4 T. R. 7S3.
 
 334 LEGAL EFFECT OF THE CLAUSES. 
 
 for the restitution of property so taken, if fonnd 
 Avitliin the realm, belonging as well to strangers as 
 to Englishmen,^ 
 
 "Robbers." Tlio term "robbers" means loss by violence; 
 
 thus where an action was brought to recover the 
 value of a box of gold dust forming part of a 
 consignment of 11 boxes from Panama to London, 
 under a bill of lading excepting " the act of God, 
 the Queen's enemies, robbers, fire," &c., &c. The 
 box in question having been stolen secretly from the 
 railway truck between Southampton and London, 
 the shipping company were held not liable for the 
 loss, as the box, though stolen, had not been 
 removed by force, which was the exception provided 
 for in the bill of lading.^ 
 
 Where a vessel, in consequence of having sprung 
 a leak, put into an intermediate port and discharged 
 her cargo, portion of which was stolen from the 
 warehouse; in an action on the policy for a 
 constructive total loss, it was held " that the loss by 
 robbers, although not expressly mentioned in the 
 policy, was one of the perils insured against."^ 
 
 "Thieves." Thc term "thieves" is a word of ambiguous 
 
 meaning, and this being the case, such a construction 
 must be put upon the word as is most in favour of 
 the shipper, and not most in favour of the shipowner. 
 It is an exception framed by the shipowner for his 
 own benefit, and it behoves him to use such language 
 
 1 27 Edw. III., St. 2, c. 13 ; Y. Bk. 2 Rich. 3, 2. 
 
 2 De Rothschild v. The Royal Mail Steam Co., 21 L. J. Ex. 273. 
 
 = Dwarkadass Lalubhai r. Adamali Sultanali, 3 Bom. II. C. Rep. A. C. J. 1.
 
 '' robbers:' ''Thieves:' 335 
 
 as to make clear what he holds to be an exception 
 under it. It is not reasonahic to suppose, where 
 nothing is added to the word to qualify or limit or 
 define its meaning, that the shipper of the goods 
 intended that he should he unprotected against 
 thefts by the crew or persons on board the ship. 
 The word will not, therefore, comprehend thefts by 
 passengers or members of the crew. 
 
 In Steinman v. Angier Line ^ the clause in the 
 bill of lading was as follows : — " pirates, robbers, or 
 thieves of whatever kind, whether on board or not, 
 or by land or sea." There was also a provision that 
 the shipowners were not to be liable "for or in respect 
 of any neglect or error in judgment on the part of 
 the master, pilot, crew, or other persons whosoever 
 in their service or employment." The plaintiffs 
 were the o'v\Tiers of goods shipped at Liverpool for 
 Buenos Ayres ; some of the goods had been stolen 
 by some or one of the stevedore's men after they 
 had been put on board the sliip at the port of loading. 
 The stevedore was by the terms of the charter- 
 party appointed by the charterers but was paid by 
 and in the service of the ship ; and the question 
 was whether the sliipowner was protected by the 
 exception as to " thieves." The Court of Appeal 
 ruled he was not. Bowen, L. J,, observed that " the 
 broad principle of commercial laAV always was and 
 is that the ship, in the absence of express provision 
 to the contrary, was liable to the cargo-owner for 
 
 I L. R. (1S91) 1 Q. B. 619.
 
 336 LEGAL EFFECT OF THE CLAUSES. 
 
 losses occasioned by theft committed on board. 
 This idea was of cardinal moment both in the laAV 
 of insurance, and in the laAV of carriers. In the 
 earliest forms of insurance, before the middle of the 
 I7tli century, there were no express words which 
 covered losses by theft, and theft on board a vessel, 
 since it presumably proceeded from negligent 
 custody, and not from accident, was not a peril of 
 the sea. " Insurers," says Emerigon,^ " are not 
 responsible for simple theft committed on board the 
 vessel, because it is presumed with reason, that the 
 accident has happened through some default of the 
 Captain or crew." About the middle of the century 
 in question the word " thieves" found its way into 
 the list of the marine casualties against which 
 insurances were effected, and from this time forth 
 there has been a recurring discussion both in 
 England and America as to the extent to which in 
 policies of insurance effect ought to be given to 
 this special stipulation. Robbery imports violence, 
 but " theft," which, properly speaking, does not, 
 may be of several kinds. There may be the assail- 
 ing thief from outside, the thief who "breaks 
 through and steals ;" there may be a thief on board 
 among those who are la^f ully on board ; there may, 
 lastly be a thief among the crew. The controversy 
 has principally turned upon the question whether 
 the term " thieves" ought not to be confined to the 
 first of these categories, viz. : the depredators out- 
 
 i c. 12, 8. 29.
 
 - nonuEiisr " tiiievrs.'' 337 
 
 side tlio sliii). That the expression was Avidc enough 
 to cover, not merely thefts on hoard hy passengers, 
 hut also thieves among the crew or servants of the 
 shipowner has scarcely heen suggested, except in 
 an American authority. J\.t the first it appears 
 to have heen imcertain to what extent the intro- 
 duction mto English policies of the A^■ord " thieves" 
 really affected the insurer. In Malyne's Lex 
 Mercatoria the term is interpreted to mean '* assail- 
 ing thieves," " for otherwise if there he thieves on 
 shiphoard .... the master of the ship is to answer 
 for that and make it good, so that the assurers ar(j 
 not to he charged witli any such loss." The 
 language of Malyne has not heen, however, 
 universally accepted as applicahle to those policies 
 where express mention is made of thieves. In the 
 Atlantic Insurance Co. v. Storrow,^ Chancellor 
 Walworth distinguishes the ahove expressions of 
 Emerigon and Malyne hy saying that they are 
 speaking only of the general contract against loss 
 hy sea risks, and without reference to the express 
 clause in modern policies against loss hy thieves, 
 and accordingly held the insurer liahle for a loss 
 occasioned hy the act of thieves, m lio had no connec- 
 tion with the shi[), although the master and ship 
 might also he liahle as carriers on their hills of 
 hiding. A similar question arose in the American 
 Insurance Company of New York c. Bryan- in 
 an action on a policy Mhich contained the word 
 
 ' 5 Puiye, Chaucery (New Yurk, 1835,) 2'J3. - 1 Hill, 25 (1841.) 
 
 43
 
 538 LEGAL EFFECT OF THE CLAUSES. 
 
 "thieves;" and the jury "vvcrc directed at the trial 
 that a ]oss by theft, whether by assailing thieves or 
 by embezzlement of tlie crew, or by whatever 
 person, was within the policy, and this direction 
 was upheld. No English case, however, has gone 
 to this extent ; and the law so laid doAvn has been 
 doubted by writers of authority. The introduction 
 of the term "thieves" into the exceptions in English 
 bills of lading is of a later date, in older bills of 
 lading dangers of the sea being the only accidents 
 excej^ted.^ Eor goods stolen or embezzled the 
 master AAas liable, unless there was A'is major.'^ 
 By degrees the list of exceptions was expanded, and 
 the word " thieves" in a bill of lading has received 
 a judicial interpretation in the case of Taylor i*. The 
 Liverpool and Great Western Steam Co.,^ where 
 diamonds Avhich were bein"' conveved from Liver- 
 j)Ool to New York, were stolen when on board the 
 ship, either on the voyage, or after her arrival in 
 port, before the time for delivery arrived, but there 
 was no evidence to show whether they were stolen 
 by one of the crew, or by a j)assenger, or after her 
 arrival by some person from the shore. It was 
 held in effect that the term was only intended to 
 deal with thefts l)y persons " not belonging to the 
 ship," an expression which, however, is ambiguous, 
 but which in the above case seems to be used as 
 equivalent to persons outside the ship. The present 
 
 1 Abbott, 5th ed. 214. ' 1 Molloy 329. 
 
 » L. R. Q. B. 547 j 43 I. J. Q. B. 205.
 
 ''ROBBERS:' ''TTTIEVE.V 3:39 
 
 form of bill of lading is subsequent in date to this 
 decision and is designed apparently to Aviden still 
 further the meaning* there attributed to the word 
 "thieves." But thieves may "belong" to a ship 
 in two ways. They may be persons who, though 
 they are lawfully oii board, have nothing to do A^ith 
 the service of the ship ; or they may be the master 
 and crew or jiersons in the service of the ship. Is 
 the language " thieves of whatever kind, whether 
 on board or not, or by land or sea," intended in this 
 bill of lading to add both of these classes of depre- 
 dators, or only the former class, to the outside 
 " thieves" who are previously covered by the word 
 in ordinary bills of lading ? This question of con- 
 struction must be decided on the broad principle 
 which has been so lonir and so constantlv invoked 
 in the interjoretation of contracts with carriers by 
 sea as well as land, viz. : that words of general 
 exemption of liability are only intended (unless the 
 words are clear) to relieve the carrier from liability 
 where there has been no misconduct or default on 
 his part or that of his servants. The exceptions in 
 a bill of lading are not intended to excuse the 
 carrier from the obligation of bringing due skill 
 and care on the part of himself and his servants to 
 bear upon both the stowing and upon the carrying 
 of the cargo. Even in cases Avithin the exceptions 
 the shipowner is not jorotected if default or negli- 
 gence on his part or that of his servants has 
 contributed to the loss. It is the duty of the ship-
 
 340 ' LtJaAL EFFECT OF TTTF CLAUSE.'^. 
 
 owner h\ himself and his servants to do all he can 
 to avoid the excepted perils : the exception, in other 
 words, limits the liahilit}^ not the dnty. Upon this 
 oTOiind, I am of opinion, on this hill of ladinj^ that 
 the mere introdnction into the list of exceptions of 
 the words "thieves of Avhatever kind," &c., does 
 not relieve tlie shipowner from liahility for the 
 thefts committed hy those in the service of the ship. 
 A snhseqnent clanse in the hill of lading exempts 
 the shipowner from liahility for neglect or error 
 in jndgment, hut leaves wilful misconduct of those 
 in the ship's service still untouched. If it is 
 intended to relieve the shipowner from lia])ility for 
 thefts committed hy persons in the ship's service, 
 clear and explicit language to that effect should 
 have been used." 
 '• Rostraint If thc Govemmcnt of the country to which the sliip 
 
 Ruierror aud caTgo hcloug, sliouUl prohil)it the exportation, 
 or importation, of the particular commodities that 
 compose thc cargo, or hy tlie t(n'ms of the contract 
 arc destined to compose it, ])erformance heing thus 
 rendered illegal by an authority to which hotli parties 
 owe allegiance, damages for non-performance cannot 
 he claimed hy cither. The common exception of " tlie 
 restraint of princes and rulers " applies only to thc 
 case of the master, unless it is expressly stipulated 
 to he mutual.^ Por if a merchant hires a ship to go 
 to a foreign port, and covenants to furnish a lading 
 there, a prohihition hy the Government of that 
 
 ' Sjoords V. Lnscomlif. ]fi Ivisr. 201 ; Bruce r. Xicolopnlo, 21 T-..1. F,\.:321, 
 
 Teopl
 
 f^7?/:sT7?.irv7' or r/?nv'E,s'." an 
 
 country to oxpoi-1 tlir intruded arllclcs noitlior 
 dissolves the contract, nor a])soliitely excuses a noii- 
 lierforniancc of it.' 
 
 Tlic term " restraints oC princes," Sec. does not 
 apply until the ship has been loaded and the voyage 
 commenced. - 
 
 111 liriice /•. Nicolopnlo'^ Pollock, C. B., said, lie 
 could not su1)scril)e to th(* ahove proposition but the 
 other jud2,'(^s ex])ress(Ml no such opinion whilst 
 Martin B. said, " assumin2^ it to he i^ood laAv, this 
 case is clearly distini^uishable." And in A alente r. 
 Gibbs,' Crow r.Falk- was upheld, the two cases being', 
 in fact, identical, and Cockburn, C. J., expressly .said 
 " I do not dissent from Crow r. Palk whicli is an 
 authority as to the signification of the Avord 
 "A'oynge," and Bruce r. Nicolopulo is distinguish- 
 able.^ ■ 
 
 The restraint meant by this exception must be an 
 actual and operative restraint, and ]U)t a mercdy 
 expected and contingent one. With reference to any 
 contracts AAdiicli were fairly and laAvfully made at the 
 time, if from a change in the political relations and 
 circumstances, they have become incapable of being - 
 any longer carried into effect, Avithout derogating 
 from the clear public duty Avhich a British subject 
 OAves to his sovereiun, and the state of which he is a 
 
 ' Bli;j;lit r. Pa<c.', 3 B. A I'. 2*»o note ; Toutont,' i\ lliibbanl, 3 B. Ol: V.2'Jl. 
 
 - t"io\v V. Fiilk, 8 Q. r>. 107. 
 
 Ml Ex. Rep. 129 ; 21 L. J. Kx. ^21. 
 
 ' G C. B. Rep. N. S. 270 ; 2S L. J. C. P. 229. 
 
 ■ See filso BarkcM- r. MWmhx'w, 31 L. .1. C. V. 101,
 
 342 LEGAL EFFECT OF THE CLAU.^ES, 
 
 member, the non-performance of a contract in a state 
 so circumstanced is not only excusal)le,l)utthe matter 
 of peremptory duty and obligation on the part of the 
 subject. But in order to found this new public duty 
 -which is to supersede the performance of his former 
 private one, it is necessary that an actual change in the 
 political relations of the two countries should have 
 taken place ; and that the danger to result to the public 
 interests of his own country from an observance of 
 the contract should be clear, immediate, and certain. 
 
 In short, such a state of circumstances must be 
 shown to exist as that the contract is no longer 
 capable of being performed by him without a criminal 
 compromise of his public duty. So, AAhere a vessel 
 left St. Petersburg upon a general rumour of a hostile 
 embargo being laid on British ships by the Prussian 
 Government, it was held, that this did not justify 
 a breach of contract by the master, though the latter 
 acted bond fide and under a reasonable and well 
 grounded apprehension at the time.^ 
 
 The plaintiffs insured by a policy which was 
 underwritten by the defendant, silks " from Shang- 
 hai to London, rid Marseilles or Southampton, 
 and whilst remaining there for transit." The risk 
 insured included "arrests, restraints and detain- 
 ments of all kings, princes and people," and there 
 was a memorandum in the margin of the policy 
 that the silks should be shipped ])y, inter alia, the 
 Messageries Imperiales steamers. It was found as 
 
 > .Atkinson r. llitc-liio. ]U East. 530.
 
 I 
 
 a fact tliat tlic Company of tlic MessaGjeries 
 Imperialos always sends i^oods from Shanghai to 
 London overland tlironi;]i Prance, and that it was 
 Avcll knoAvn amonij underwriters that goods sent 
 from China to London rid Marseilles "were always 
 sent overland through Prance. The silks insured 
 "were shipped on one of the steamers of the 
 IMessageries Imperiales, and reached Paris via 
 Marseilles, on the loth of Septemher, 1870, hut at 
 that time there was war hetween Prance and 
 Germany, and the German armies "were surround- 
 ing Paris which they completely invested on the 
 19th of September, so that from that day up to the 
 commencement of the plaintiff's action it was 
 impossible to remove the silks from Paris. On the 
 7tli of October, the plaintiffs, who had previously 
 sold the silks, gave notice of abandonment to the 
 defendant : — Held, tliat the policy was not limited 
 to marine risks, but included those during the land 
 transit through Prance. 
 
 Held also, that by reason of the siege of Paris 
 there was such a constructive total loss of the silks 
 by " restraint of j^i'inces" within the terms of the 
 policy as to entitle the plaintiffs to abandon and 
 sue the defendant j'or a total loss. 
 
 Held further, that the plaintiffs did not lose their 
 right of abandonment by a previous sale of the 
 silks.^ 
 
 All bills of lading should contain a proviso 
 
 ' Rodoconachi v. Elliott, L, E. ?. C. P. biS; 13 L. J. C. F. 255.
 
 ;5U LEgAJj effect or TllE CLAUSES. 
 
 exonerating the sl)i2)0Avners from restraints of Courts 
 of law. In Einlay v. The Liveri)ool and Great 
 Western Steam-sliip Comjianv, on demnrrer in the 
 Court of Exchequer/ it was alleged that certain 
 goods had been obtained by fraud, and the bills of 
 lading endorsed to a third party. Before the ship 
 left New York, the person who claimed to be the 
 rightful owner demanded the goods from tlie agent 
 of the ship, and on his refusing to deliver the same, 
 the master of the ship Avas sued in the New York 
 JSu^ireme Court, and adjudged and compelled to 
 deliver the goods to the right owner. The claimant 
 in England under the bill of lading sued the sliij)- 
 owners for non-delivery, and tlie plea of " restraint 
 o\' princes," Avhicli was one of the conditions in the 
 l)ill of lading, was urged. The Court of Exchequer 
 held that the action of a Court was not the "restraint 
 of princes." The action was founded on contract, 
 and the Court could not see how the act of any Court 
 of law, or any judicial tribimal, deciding that the 
 defendants should hold j^^ssession of and deliver 
 the goods to the order of the true owners, could 
 relieve the shipowners from their contract, unless 
 such an act or decision of a Court or judicial 
 tril)unal had been expressly excepted in the bill of 
 lading. 
 
 To an action against the defendant for breach of 
 a contract to carry goods of the plaintiff safely by 
 ship from Gibraltar to Londcm, calling at Cadiz, 
 
 ■ 3 Asp. .Mar. L. Ca. 187. hjueulso lluulmul c. Giccmvay, 22 How. 491 ; 
 Aug. ou Car., a. 22(3a.
 
 "FEOPLEr 345 
 
 ilic act of God, the Queen's enemies, fire, and 
 dangers oi' the sen, rivers, and navigation (save risk 
 of boats) excepted, the defendant pleaded tliat the 
 sliip, in tlie course of the voyage, called at Cadiz, 
 according to the terms under which the goods Avere 
 shipped, and that Avhile there, and Avithin the 
 jurisdiction of a Court of the revenues in Spain, the 
 said goods were, by the proper authorities having 
 jurisdiction in that behalf, lawfully taken out of 
 the ship against the will, and without the consent, 
 neglect, or default of the defendant, on a charge of 
 suspicion that they Avere contraband according to 
 the laws of Spain ; and were afterwards, by a decree 
 of the said Court, duly made according to the law of 
 Spain, declared to be and were confiscated, whereby 
 the defendant was prevented from delivering the 
 goods : — Held, that the defendant was liable, as he 
 had failed to bring himself within any of the 
 exceptions in his contract, the loss not being by a 
 peril of the sea or of navigation, and nothing was 
 stated from which it appeared that either party 
 knew or was bound to take notice of the revenue 
 laAvs of Spain. ^ 
 
 The word " people " means the supreme power, "Peopie." 
 that is, the ruling poAver of the country, whatever 
 it may be. Therefore, Avhere a mob or a multitude 
 of people seize a vessel and compel the master to 
 sell the cargo, this, though an act of piracy, Avill 
 not come under the present exceptions.^ 
 
 ' Spcnce r. Chodwick, IG L. J. Q. 13. 313 j 10 Q. P. ol7. 
 * ^"csbitt V. Lushington, 4 T. 11. 7b3, 
 
 44
 
 3i0 LEGAL EFFECT OF THE CLAUSES. 
 
 Striken. Ill a cluirtcr-j^avty, containing the usual provision 
 
 for payment of demurrage, Avith the exception " no 
 demurrage to be paid the vessel in case of any hands 
 * striking work, ' which may hinder the loading of 
 vessel," the word " strike " is to be understood in 
 its ordinary meaning, that is, as a strike of workmen 
 against their employers in the ordinary sense of the 
 Avord. Abandonment oC the work by the workmen 
 through fear of cholera, which had broken out in 
 the district, is not a " strike " within the meaning 
 of " hands striking work." ^ 
 
 In the case of Budgett r. Binnington^ the 
 jolaintiffs, being the consignees under a bill of 
 lading, incorporating a clause in the charter-party 
 fixing the number of lay days for unloading, and 
 allowing other days for demurrage, sought to 
 recover from the defendants, who were the ship- 
 owners, a sum of money paid to them under protest 
 in respect of a claim for demurrage. Neither the 
 bill of lading nor the charter-party said anything 
 about dock strikes. By the custom of the port of 
 Bristol cargoes Avere discharged by the joint act of 
 the shipoAvner and consignees. There being a strike 
 among the labourers employed l)y the ship as 
 Avell as by the consignees during the lay days, 
 the unloading Avas prevented and could not be 
 continued until after the expiration of the lay 
 davs. 
 
 1 Stephens v. Harris & Co., G Asp. Mar. L. C. I'J^. 
 - L. E. 25 Q. B. D. 31'U ; G Asp. Mar. L. C. 510, 5'J2.
 
 I 
 
 It TVtas held by the Court of Appeal that the 
 contract hy tlie freighter to pay deinurrage to the 
 shipowner, iL' the ship is not unloaded at the 
 expiration ol' a fixed number of lay days, is an 
 absolute one, subject to the shipowner doing 
 nothing to prevent the unloading; and consequently, 
 Avherc the ship is being unloaded by the joint act 
 of the shipowners and freighters, and under a 
 contract between the shipowners and stevedores the 
 latter employ the necessary dock labourers, and 
 delay in unloading is caused by a strike of the 
 labourers employed on behalf of the shipowners 
 and freighter, the freighter is not relieved from his 
 liability to pay demurrage, as the shipowners have 
 no control over the labourers. 
 
 Where a strike is a circumstance arising from 
 the application of the custom of the port, and delay 
 is consequently occasioned by reason of that custom, 
 tlie charterers are not liable under the charter-party 
 for the delay in the discharge of the cargo. Thus 
 where by a charter-party the plaintiff's ship was to 
 proceed to a port named with a cargo, and there 
 *' be discharged with all despatch as customary, and 
 ten days on demurrage over and above said lying 
 days at Gd. per net register ton jier day." The 
 discharge of the cargo Avas delayed for four days 
 owing to a strike of dock labourers employed by a 
 dock company, avIio, by the custom of the port, 
 did the work of discliarge both for the shipowners 
 and the charterers : — It was held, that the charterers,
 
 3i3 LEGAL EFFECT OF THE CLAUSES. 
 
 vrcre not lial)le for the delay, tlie words " to be 
 discharged "with all despatch as customary," 
 meaning that the cargo was to he discharged with 
 all reasonable despatch, having regard to the actual 
 circumstances and manner of discharging cargo 
 customary at the port of discharge, and that no 
 definite time was fixed by the charter-party within 
 which the cargo was to be discharged.^ 
 
 And where a cargo was shipped for the port of 
 London under bills of lading Avhich did not specify 
 the time Avithin which the consignees were to take 
 discharge of it, and the unloading was interrupted 
 by a strike of the dock labourers which delayed the 
 discharge far beyond the time which would 
 otherwise have sufficed, it was held that the 
 consignees were not liable to the shipowner for the 
 delay and that a reasonable time for unloading 
 meant a reasonable time under the existing 
 circumstances.^ 
 "Barratry Jt docs uot sccm to liavc bccu anvwherc precisely 
 
 of master and " 
 
 mariners." asccrtained, from what source the term barratry has 
 been derived. Indeed, the derivations of barratry 
 have rather tended to confound than to throw any 
 light upon the subject, for its root has been so 
 frequently altered, according to the caprice of the 
 particular writer, that it is impossible to decide which 
 is the true one. Tlie English, however, most 
 probably have taken it from tlie Prench barrateur, 
 
 1 CasUegate Steamship Co. r. Dempscy & Co., L. E. (1892) 1 Q. B. 8.' t; 
 61 L. J. Q. B. 620. 
 
 » Hick V. Raymond, L. R. (1893) A. C. 22,
 
 ''Barratry:' 349 
 
 "whicli is to l)c traced to tlie Italians ; hut wliovc tlie 
 latter found this word is a thing hy no means clear. 
 AVhatever tlie derivation may he, the Avord seems to 
 have heen originally introduced into commercial 
 affairs hy the Italians, who were the first great 
 traders of the modern world/ 
 
 Barratry may he termed any fraudulent or ciiminal 
 conduct against the owner of the ship or goods hy 
 the master or mariners, in hreach of the trust Avhich 
 is either expressly or impliedly reposed in them, and 
 to the injury of the owners ; although it may not he 
 done with intent to injure them, or to i)enefit, at 
 their expense, the master or mariners, and therefore 
 a master is not warranted in going into an enemy's 
 settlement to trade, even where permitted, though his 
 cargo could he more speedily and cheaply completed 
 tlierc : and if the ship is seized and confiscated in 
 consequence of such act, the same is harratrous, for 
 trading with an enemy is an illegal act ;- except in 
 this and similar cases, fraud is a necessary ingredient 
 in barratry.^ It has heen held, that fraud and 
 harratry were in effect words of co-extensive import ; 
 that is, that harratry included every species of fraud 
 ill relation of the master to his owners, hy Avliich the 
 suhject-matter insured might he endangered.' Thus, 
 if the master sail out of port without paying port 
 
 > Atk. on Sh., 32. 
 
 = Earle v. Rowcroft, 8 East. 12G. 
 
 3 Phyn V. The Koyal Exchanj^o Assiii-anco Co., 7 T. R. 505. 
 
 * Kuiglit V. Camlnidgc, 1 Str. 581.
 
 3o0 LEGAL EFFECT OF THE CLAUSES. 
 
 dues, whereby the goods are forfeited, lost, or spoiled, 
 tliat is liarratry/ 
 
 ]3arratry is an act of fraud which in the sense 
 used in policies can be committed only against the 
 owner of the ship,- and is not directed against the 
 owner of the goods which arc lost ; and, howcYor 
 innocent may be the owner of the goods who seeks 
 to recover against the underwriter, yet if the owner 
 of the ship concurs in the act which caused the loss, 
 it takes from it the character of barratry ; neither will 
 it be so where, owing to the negligence of the owner, 
 the mariners take smuggled goods on board, in 
 consequence of whicli she is seized and confiscated;^ 
 but otherwise where the master smuggled goods on 
 board without the owner's knowledge.* In the case 
 of Cory & Sons v. Burr^ the plaintiffs insured a 
 shij) with the defendant by a time policy against 
 tlie ordinary perils including barratry of the master. 
 The subject-matter of the insurance was warranted 
 " free from capture and seizure and the consequence 
 of any attempt thereat." While the policy Avas in 
 force the ship was seized by a foreign government, 
 in consequence of the master having barratrously 
 en2:a2red in smueri^lingr. In an action to recover 
 from the underwriter the expenses incurred by the 
 plaintiffs in obtaining the release of the ship: — Held 
 
 ' Stamnia v. Brown, 2 Str. 117t. 
 
 =' Nutt V. Bourdicu, 1 T. K. ?.23. 
 
 ^ Pipon r. Cope, 1 Camp. 43 !•. 
 
 ♦ Ilavelock v. Hancill, 3 T. R. 277. 
 
 ' I,. R. 8 App. Cas. :'.03; 52 L. J. Q. B. 057.
 
 " nAiiiLiTnyr 351 
 
 Ly tlie House of Lords that the defendant was not 
 liahU?, and that tlic Avarranty extended to the 
 seizure althoug'li such seizure "was caused by a 
 barratrous act. Where the owner of a ship, hy his 
 contract, places the entire vessel for a time under 
 the sole control of the freighter, durini,^ that time 
 any act of the owniu* of the vessel, done in fraiul 
 of the freii,4iter, is an act of barratry.^ It ecjually 
 amounts to barratry if the master, being a part- 
 owner, fj-audulently sells the ship and cargo, and 
 applies the proceeds to his own use.^ 
 
 A deviation, if for a fraudulent purpose, is l)ar- 
 ratry f not otherwise.' If the master is compelled, 
 by the mutinous violence of the crew, to deviate from 
 his course, this will be barratry of the mariners, but 
 not of the master.^ It will be Ijarratry if the vessel 
 is lost by the fraudulent misconduct of the master.^ 
 Also if the master acts contrary to instructions, 
 though for the benefit of the owner, in consequence 
 of Avhicli the vessel is lost.^ 
 
 Barratry at common law is a felony and inuu>h- 
 able as such. 
 
 As the shipowner is exempted from liability by 
 the present exception from all losses arising from 
 
 ' Soarcs v. Thornton, 7 Taunt. V>.17. 
 
 * Jones 1-. Xicliolson, 28 L. J. Ex. 330. 
 
 ^ Dixon V. Kcid, 5 U. & Aid. 5'J7 ; Koss v. lluuior. 1. T. 11 . 33. 
 
 * Pliyn I'. The lloyal Excliangc Assurance Co., 7 T. 11. 505. 
 5 Scott V. Thompson, 1 B. & P. X. U. 181. 
 
 " Arcangelo v. Thompson, 2 Camp. U20. 
 ' Moss I. Bvrum, G T. K. 37i).
 
 352 LEGAL EFFECT OF THE CLAUSES. . 
 
 the harratry of tlic master or mariners, tlie .owner 
 of the o-oods looks to tlic under Avriter in such cases, 
 and the instances are very rare in which the 
 question, as between the shipowner and the shipper, 
 under the bill of lading, has been judicially deter- 
 mined : and in those cases Avhere the insurer has 
 successfully defended an action on the policy on the 
 ground that the loss did not arise from the barratry 
 of the master or mariners, the same has been 
 covered by other exceptions in the bill of lading. 
 
 In the case of Cossman v. The British America 
 Assurance Co./ where the ship "C" and her freight 
 had been insured against barratry of the master, 
 and she was fraudulently abandoned by the master 
 on the high seas, and upon being discovered was 
 towed into a distant port and was afterwards with 
 notice to the insurers sold by decree of the 
 Admiralty Court to pay salvage services which 
 amounted to more than the sum realised by the 
 sale. No notice of abandonment was given to the 
 underwriters. It was held that the sale by the 
 decree of the Admiralty Court for sah^age services 
 constituted an actual total loss, for which the 
 owners were entitled to recover, and that no notice 
 of abandonment was necessary. 
 
 Thefts and pilfering of the cargo by the crew are 
 not uncommon, but there is no recorded instance 
 in which pilfering has been held to amount to 
 
 I 57 L. J. r. C. 17.
 
 ^^ barratry:' 353 
 
 barratry ; such loss Avoiild therefore have to he 
 home hy the shipowner. 
 
 It has heen ruled that an act of the master, not 
 amountinp^ to a fraudulent viohition or wilful ahan- 
 donment of his duty to his owner, is not barratry.^ 
 
 Where the master has acted Avith the assent of 
 the owners, his acts are not barratrous. ^"^ But the 
 mere fact of his being a part-owner will not prevent 
 the possibility of his comraittinpj barratry as against 
 the other part-owners. ^''^ And if the ship has been 
 chartered, so as to give the charterer possession 
 and control of her for the time being, acts may be 
 committed against him which will be barratrous, 
 although the shipowner may have ordered or 
 assented to them. ^'^ 
 
 In lonides v. Pender, ^^^ Hanncn, J., directed the 
 jury that a loss by scuttling would, under a policy 
 on goods, be barratry, although the scuttling were 
 done with the knowledge of the shipowner, if it 
 was Avithout the knowledge of the freighter. 
 
 So, though by section 29G of the Merchant 
 Shipping Act, 1851, it is the duty of vessels 
 approaching to port their helms ; and section 299 
 enacts that damage arising from the non-obserA'ance 
 of the rules shall be deemed to liaA'c been occasioned 
 by the Avilf ul default of the person in charge of the 
 
 > Williams r. Suffolk Insurance Co., 3 Smnniors, 51-1. 
 (") Nutt V. Bordieu, 1 T. R. 323 ; Ilobbs v. Haniiam, 3 Camp. 93 ; 
 Stamma v. Brown, 2 Str. 117-A. 
 
 (*) Jonos r. Kicliolson, 10 Ex. 28. U-) Soares v. Thorntou, 7 Taunt. 6-7 
 ('0 lonidos V, Pender, 27 L. T. 2il. 
 
 15
 
 35 i LEGAL EFFECT OF THE CLAUSES. 
 
 deck at the time, &c., yet a loss occasioned to goods 
 by a collision is not barratry, and the holder of tlie 
 bill of lading Avill be entitled to recover against the 
 shipoAvner for non-delivery of his goods, arising from 
 their being totally lost in a collision occasioned by 
 the unskilful navigation of the master.^ 
 
 The Kidnapping Act, 1872, (35 and 36 Vict., c.l9,) 
 having prohibited the carrying of Polynesian native 
 labourers in ships without a license, under penalty of 
 forfeiture of the ship, a master who, without the 
 authority of his owners, but with a knowledge of the 
 prohibition, ships and carries native labourers, and 
 so brings about the seizure and condemnation of his 
 ship, commits an act of barratry, in respect of which 
 his owners may recover against their underwriters. 
 AThere a master ships and carries Polynesian native 
 labourers without a license, against the provisions of 
 the Kidnapping Act, 1872, proof that the master, 
 although he may never have seen the Act itself or 
 the proclamation thereof in the Australasian 
 Colonies, was informed before shipping the 
 labourers, that such an Act existed, and that it was 
 illegal to carry them, is sufficient evidence to justify 
 a jury in finding that he shipped and carried the 
 labourers wilfully and with knowledge of the 
 prohibition, so as to make his act barratrous.^ 
 "Lessor Notwithstanding this and similiar exceptions in 
 
 damage from 
 
 machinery." ^ ^^,.,j ^. fj^^^^^..^^ j^.^,^ g^.j.^,,^ Colliery Co., L. R. 3 C. V. -iTO ; 37 L. J. 
 
 C. P. 205. 
 
 - The Australasian Insurance Co. v, William Townley Jackeou, 3 Asp. 
 Mar. L. Ca. N. S. 26.
 
 '' MACHIXERY.'* 
 
 the bill of ladins^, Avhicli may cover a loss or cause 
 of injury to the cargo, if it can be proved tliat such 
 loss Avas occasioned by the negligence of the 
 shipowner or master, they will be liable for the same. 
 
 Thus, where certain bales were shipped on board 
 a steamer in good order and condition, and it 
 appeared that they were injured by oil ; that there 
 was no oil in the cargo ; and that the bales had 
 been stowed near a donkey-engine employed in 
 loading and unloading cargo, and Avhich used to l)e 
 lubricated with oil. It was held, that the damage 
 arose from negligence, and that the exception of 
 machinery in the bill of lading did not exonerate 
 the shipowners from liability.^ 
 
 This exception will not cover a loss arising from 
 the breaking of the chain used to discharge cargo, 
 as such a chain does not come under the term 
 machinery, which applies only to the machinery by 
 Avhich the vessel is propelled." 
 
 If salvage services become necessary from the 
 breaking down of any portion of the machineryj 
 and are rendered to the ship, Avhereby the cargo is 
 saved, the owners of the salving vessel, though also 
 owners of the vessel salved, Avill be entitled to 
 recover from the owners of tlie cargo for the services 
 i'(Mulered : the accident coming within the excepted 
 l>erils mentioned in the bill of lading' as "accidents 
 of machinery." 
 
 ' Czei-li r. Gonl. St. Nav. Co., L. R. 3 C. P. 17 ; 37 L. .T. C. P. .S. 
 ■' The Oallov of Lornc, Mit. Mar. Reg., Feb. 11, ISTO. .
 
 LEGAL EFFECT OF TEE CLAUSES. 
 
 Thus, where the " Miranda," a scre^7 steam- 
 vessel, was bound on a voyage from Patras 
 to London, and the " Eoxana" was proceedmg 
 on her voyage from London to Genoa ; 
 the crank-shaft of the engine of the Miranda being 
 seriously injured, the " E,oxana" towed the 
 *' Miranda" to Gibraltar without any danger to 
 herself or her crew, the weather being fine at the 
 time. Both these vessels belonged to the same 
 owners. In an action against the o^Tners of the 
 cargo for salvage services, Sir Eobert Phillimore, in 
 delivering judgment, said : " The defences are as 
 follows : — That the owners of the ' Poxana' were 
 bound by their contract with the owners of the 
 cargo laden on board tlic ' Miranda,' to carry the 
 cargo of the ' Miranda' to London, and that they 
 would not have fulfilled this contract unless they 
 had rendered assistance to the ' Miranda,' Avhich 
 assistance was to be considered as an act done for 
 the sole benefit and advantage of the owners of the 
 ' Hoxana.' It was said that it was implied in the 
 contract between the owners of the ' Roxana ' and the 
 owners of the ' Miranda,' that there was "warranty 
 of seaworthiness of the ' Miranda;' that the accident 
 arose from the breach of warranty, and that the 
 owners of the * Iloxana' therefore were liable for all 
 the consequences of such breach, and so were not 
 entitled to salvage remuneration for averting a loss 
 which, if it had hapj)ened, would have fallen upon 
 themselves, It is replied to those defences that the
 
 " MACinXERY.'' 
 
 contract is to he found in the l)ills of ladin":, admitted 
 to liave been made between tlie parties. If I am 
 to decide the question ^vllethe^ the OAvners of tlie 
 * lioxana ' are entithnl to salvage reuard, I must 
 first determine wlietlier tliey are so entithxl apart 
 from the question of their being tlu^ o^vners of the 
 vessel towed. I think unquestionably they rendered 
 the salvage service entitling them to salvage 
 remuneration, unless circumstances have rendered 
 it impossible for them to recover that remuneration. 
 It becomes necessary, therefore, to decide the 
 question of laAV. The contract set out in the bills 
 of lading is that the 'Miranda' should take her 
 cargo on board and deliver it at the port of London, 
 in the like good order and condition as shipped ; 
 then follow many excej)tions which are to be 
 considered as affording a justification for the non- 
 performance of the contract, and among those 
 exceptions is included one about which there has 
 been much discussion. This exception, which is 
 contained alike in all bills of lading, though the 
 exceptions are not always expressed in precisely the 
 same words, are as follows, ' accidents from 
 machinery.' If I had to determine the case upon 
 the point raised with reference to the alleged 
 implied warranty of seaworthiness, I should be of 
 ojDinion that the burthen of proving the bread i of 
 such warranty rests with the defendant, and that 
 sufficient evidence as to the vessel's state and the 
 state of her machiniM'v has not becni liiven to lead
 
 358 LEGAL EFFECT OF THE CLAUSES. 
 
 the Court to find that she was in an iinseaworthy 
 condition at the time the cargo was shipped. But 
 I think the true question in tliis case is, does not 
 the exception ' accidents from machinery,' include 
 the present case ? I must come to the conclusion 
 that the accident in question finds its place among 
 the excepted perils." On this ruling the owners of 
 the cargo were held liahle to pay salvage, and it 
 became unnecessary to consider the question of a 
 warranty being implied in the contract.^ 
 
 The warranty of seaworthiness implied in a bill 
 of lading is an absolute warranty that the ship shall 
 be in fact fit for the voyage, and not merely that 
 tlie shipowner shall take all reasonable care to make 
 her so fit ; and hence a latent defect in the screw- 
 shaft existing prior to the commencement of the 
 voyage, and resulting in the breaking of the shaft, 
 is a breach of the shipowner's warranty of 
 seaworthiness, although the shipomier may have 
 taken all reasonable precaution in the selection of 
 tlie shaft. The excepted perils in a bill of lading 
 have no application to the case of a ship sailing in* 
 an unsca worthy condition ; and hence they are no 
 defence to an action brought for loss or damage to 
 tlio charterer's goods occasioned by such unsea- 
 worthiness.^ 
 
 Tlie Avarranty that the ship is seaworthy at the 
 commencement of the voyage, not that the owner 
 
 > The Miranda, L. R. 3 A. & E. 5G1 ; 41 L. J. Adm. 82. 
 
 * The Glenfruin, L. 1^ 10 P. D. lO.'i ; 5 Asp. Mar. L. C. 413,
 
 ''MAcnisEinr 3o9 
 
 Avill use his l)cst endeavours to make lier so, 1)ut 
 tliat she is iu fact scaworiliy, may he limited hy 
 the exceptions in the hills of lading : thus Avherc 
 the " L," having heen disahled in her machinery 
 owing to a latent defect in the welding of her.fly- 
 Avheel shaft, existing at the commencement of the 
 voyage, hut not discoverable hy the exercise of 
 reasonable care, was towed hy the " A," a vessel 
 belonging to the same owners, into a port of safety. 
 The cargo on board the "L" was shipped under 
 three difl'erent bills of lading. The first of these 
 contained the clause, " warranted seaworthy only 
 so far as ordinary care can provide ;" the second, 
 " warranted seaworthy only so far as due care iu 
 the appointment or selection of agents, superinten- 
 dents, i^ilots, masters, officers, engineers, and crew 
 cau ensure it ; " and the third, "owners not to be 
 liable for loss, detention, or damage, if arising 
 directly or indirectly from latent defects in boilers, 
 machinery, or any part of the vessel in which steam 
 is used, even existing at the time of shipment, 
 provided all reasonable means have been taken to 
 secure efficiency." In a salvage action brought 
 by the owners, master, and crcAV of the '' A" against 
 the OAvners of cargo on board the"L:" — It Avas 
 held that the excejitions in the bills of lading 
 limited the implied a\ arranty of seaAvorthiness, and 
 that such limited warranty haA'ing been satisfied, 
 there had been no breach by the OAvners of the "L" 
 of their contract of carriage/ 
 
 1 The Cargo Ex. Laertes, L. K, 12 P. D. 187 ; 56 L, J. Q. D. ^ A. 108.
 
 360 LEGAL EFFECT OF THE CLAUSES. 
 
 The decision in Steel r. The State Line Steam 
 Navigation Company^ -was that under ordinary 
 circumstances, the stipulations in a hill of lading 
 apply after tlie warranty of seaworthiness has come 
 into, effect. In the hills of lading which were before 
 the Ilouse of Lords in that case, there were no such 
 stipulations as the ahove. 
 
 In a policy of Marine Insurance upon a steam- 
 ship and her machinery, the perils insured against 
 were "of the seas and all other perils, losses, or 
 misfortunes that had or should come to the hurt, 
 detriment, or damage of the aforesaid subject- 
 matter of insurance or any part thereof." In 
 pumping up the main boilers of the steam-ship for 
 the purpose of the voyage by moans of a donke}^- 
 pump and engine, in consequence of the check-valve 
 in the pipe leading from the donkey-pump to the 
 main boilers being closed or salted up instead of 
 open, the water-chamber and air-chamber of the 
 donkey pump became over-charged Avith water, and 
 the air-chamber S23lit : — Held by the House of 
 Lords (reversing tlie decision of the Court of 
 Appeal,) that the injury to the donkey pump 
 whether it occurred accidentally or through negli- 
 gence, was not a peril cjusclem generis with those 
 specially enumerated in the policy and that the 
 underwriters were not liable.^ 
 
 As a general rule, independent of any contract, it 
 
 " Boilers, 
 steam." 
 
 1 L. R. 3 A. C. 72. 
 
 '■' The Thames & Mersey Mai'iiie Insurance Co., Ld., r. Hamilton, Fraser 
 & Co., L. R. 12 App. Cas. 484 j 56 L. J. Q. B. G2G.
 
 ^'BOILERS, STJJAMr 301 
 
 may be true to say tliat a carrier ulio offers to carry 
 i^oods hy sea, undertakes that his vessel is reasonably 
 fit for the purpose for Avliich he offers it, and ariglit 
 of suit for a breach of such implied obligation -would 
 not be affected by the special stipulations in the bill 
 of ladinij^, if proved to be the result of gross 
 negligence. Thus, in an action for not delivering 
 cargo in proper condition, the same having been 
 injured by steam, it appeared that the steam escaped 
 through a crack in the steam-boiler occasioned by 
 the frost, and the Court held that at that, season of 
 the year in -which such injuries by frost are likely 
 to occur, it is gross negligence m the carrier to fill 
 np his boiler over-night -^^itliout keeping np a 
 suitable fire to prevent such accidents.^ 
 
 Where there is an absence of negligence or an 
 absence of proof of it, the shipoAmer -will be 
 exonerated. Thus, -where bales of cloth -v\ere shipped 
 from Calcutta to liangoon nnder a bill of lading 
 exempting " accidents by boilers, steam," &c., and on 
 the voyage one of the boilers leaked, and steam and 
 Avater escaping, some of the bales Avere damaged. It 
 AA'as held, that the damage Avas Avithin the exceptions 
 in the bill of lading, and therefore, that tho 
 defendants Avere not liable to make good the loss.^ 
 
 In Cox and others v. The Star NaA'igation 
 Company,^ Avliere damage Avas done to a cargo of 
 
 > Siortlet v. Hall, 4 Bing. COT ; G L. J. C. P. 157. 
 
 ' Ibrahim Moosum v. The British Iiiclia Steam Navigation Co., Ld., 8Cal. 
 AV. R. C. E. 35. 
 
 3 Mit. Mar. Ecg. 2, Juue 1S76. 
 
 -i6
 
 362 LEGAL EFFECT OF THE CLAUSES. 
 
 rice on a A'oyage from Calcutta to Liverpool, water 
 having found its way into the engine-room by means 
 of a bilge cock having been left unturned, and owing 
 to a door being left open, this water got from the 
 engine-room to the part of the vessel where the rice 
 was stowed and damaged it; the question was, whether 
 this fell within the excepted perils in the bill of 
 lading, viz., boilers, steam, machinery, and their 
 appurtenances. It was held, that being one of the 
 excepted risks, the defendants were not liable. 
 " Fire." Tlic cxccptiou of " firc" is important in relation to 
 
 the liability of the common carrier for goods destroyed 
 by that means, though accidentally ;^ and, as it is no 
 protection where there is actual fault or privity on 
 the part of the owner, it coincides in eif ect Avith the 
 statutory limitation contained in the Merchant 
 Shipping Act of 1S51, 17 and 18 Yict., c. 101, 
 sec. 503, Avhicli provides : 
 
 " That no owner of any sea-going ship, or share 
 therein, shall be liable to make good any loss or 
 damage that may happen without his actual fault 
 or privity, (that is to say) 
 
 " 1. Of or to any goods, merchandize, or other 
 things whatsoever, taken in or put on board any 
 such ship, by reason of any fire happening on board 
 such ship," and the exception ^\i\\ extend beyond 
 this to every owner of a ship, whether sea-going 
 or not, who makes the stipulation. And as the 
 
 ' forward v. rittard, 1 T. il. 27; Treat l\avigatiou Co. v. Wood, 
 4 Doug. 287.
 
 master's ordinaiy rcspoiisihilitios arc not lossenod 
 or taken away l)y Sec. 510 hy the fact of his heini^ 
 an owner or part owner of the vessel, heisexchuled 
 from the benefit of the limitation, unless " fire " is 
 specially excepted in his hill of ladini^. 
 
 It A^■as held in a case where goods had heen 
 destroyed hy fire \\\\\\q on hoard a lighter not 
 belonging to the owners of the ship, for the purpose 
 of being conveyed from the shore to the ship, tliat it 
 did not come Avithin the meaning of the Statute 2G, 
 Geo. 3, cap. 8G, sec. 2, Avliich has been re-enacted 
 hy the above statute, and that the owners were 
 responsible for them as at common law.^ 
 
 Where fire did not form one of the exceptions in 
 the bill of lading, it w^as held that if the goods arc 
 not in the ship, but put out of it on shore, and 
 without notice to the consignees, Avhere they are 
 destroyed by fire, the only defence of the OAvners 
 is at common laAV,- as "fire" is not witlihi tlie 
 exceptions "perils of the seas," or " dangers of the 
 river." ^ 
 
 AVhere the goods are landed and warehoused, and 
 it appears that the shipowner still retains the custody 
 and possession of them, not as a warehouseman, 
 but as a common carrier, he will be liable as sucli 
 
 ' Morewoo.l r. Tollok, 1 E. & B. 713; 22 L. J. Q. Tl. L'oO. 
 
 - Bonnie v. GatliiT, 7 M. & G. 850. 
 
 ^ The N. J. Stoiim Nav. Co. r. Moirhaius' B.ii.k, (> How. :UI ; Garrison 
 V. Memphis Insurance Co., 19 ITow. 312 ; Airey v. Merrill, 2 Cnr. C. C. 8; 
 Cox r. Peterson, 30 Ala. 608; Ang. on Cm:, s. lGn(./.')
 
 364 LEGAL EFFECT OF THE CLAUSES. 
 
 for any loss or injury arising from fire, nnless he 
 can show that he is exempted hy the bill of lading.^ 
 
 The use of the word " other" hefore " dangers and 
 accidents of the seas" &c., in the bill of lading, 
 does not render " fire" a peril of the sea, or limit it 
 to fire on board the ship. The reasonable mode of 
 construin": the contract contained in the bill of 
 lading is, to treat the exceptions as co-extensive 
 with the liability, that is, nntil delivery to the 
 consignee. 
 
 Therefore, the master of a vessel who receives 
 goods on board mider a bill of lading, which, intei' 
 alia, exempts him from liability for loss arising 
 froni " fire," and lawfully lands the goods at the 
 port of discharge, is, so long as the goods remain in 
 his custody after being so landed, protected from 
 liability from loss by fire under the above exception 
 in his bill of lading.^ 
 "Sweat." In all vessels, and particularly those constructed 
 
 of iron, humidity and dampness of the atmosphere 
 exist to a greater or less extent in the hold, and 
 this may be greatly increased by the transition from 
 a northern to a southern latitude, or from a cold 
 climate to the tropics. The season of the year, the 
 nature of the voyage, and the weather which the 
 ship may encounter, will all to a certain extent 
 increase the dampness and also the influence of it 
 
 1 Ching TTong & Co. t-. Seng Moh & Co., I. L. R. 4 Cal. 736. 
 - The Uongkong & Sliaiigliai Banking Corporation r. Baker, 7 Bom. H. 
 C. Eep. 207.
 
 "SWEAT," 3G5 
 
 upon snoods and cariboos which arc Hahle to dama^^e 
 from tliis cause. It frequently liappens that chiinis 
 are preferred in foreigMi ports for damage to goods 
 arising from this cause, and which the master pays 
 rather than suhmit to the vexatious detention and 
 expense to wliicli his vessel wouhl 1)C put were lie 
 to contest tlicm. 
 
 This dampness or lumiidity is known under the 
 term of sweat, or sweating of the hokl, and this 
 exception is only occasionally to he met with in hills 
 of lading, evidently from the circumstance that 
 damage to goods, ^vlien pi'oved to have originated, 
 from this cause, comes within the excepted perils or 
 dangers of the sea, and so exonerates the ship- 
 owner. 
 
 As the masters and owners may he answerahle 
 for the goods, although no actual hlame is imputahle 
 to them, and unless they hring the case within the 
 exception, in considering whether they are charge- 
 ahle for a particular loss, the question is, not whether 
 the loss happened by reason of the negligence of the 
 persons emi)loyed in the conveyance of the goods, 
 hut Avhether it was occasioned hy any of those causes, 
 which, either according to the general rules of law, 
 or the particular stipulations of the j)arties, afl'ord 
 an excuse for the non-performance of the contract. 
 After the damage to the goods, therefore has heen 
 estahlished, the hurden lies upon the master to 
 show that it was occasioned hy one of the perils 
 from which he was exempted hy the hill of lading,
 
 ?^QG LEGAL EFFECT OF THE CLAUSES. 
 
 and, oven wlicro evidence has been thns given, it is 
 still competent for the shippers to show that it 
 might have heen avoided hy the exercise of 
 reasonable skill and attention on the part of the 
 persons employed in the conveyance of the goods. 
 
 Acting on this principle in cases where the 
 damage is alleged to be due from sweating, the 
 question generally resolves itself into one of bad 
 stowage, or negligence, or mismanagement on the 
 part of the master in respect of the goods and 
 imless this is proved, the shijiowner will be 
 exonerated from losses occasioned by SAveating, 
 although not specially exempted : such losses being 
 attributed to a peril of tJie sea. 
 
 In Lamb i\ Parkman, an action was brought on 
 a charter-party for freight. The defence was set 
 up that the goods were damaged by sweat. The 
 vessel came from Calcutta, and the damage was 
 caused by the condensation of vapour in the hold by 
 the transition from a warm to a cold climate, 
 joroducing moisture directly under the upper deck, 
 whereby the upper part of the cargo was injured. 
 Judge Sprague held, that, as the goods Avere stowed 
 in tlic usual manner, the ship-owners were not res- 
 ponsible for the damage, and freight Avas therefore 
 due.^ 
 
 A remarkable instance of goods being damaged 
 by sweating Avhilst the external Avrapping and cases 
 were uninjured, occurred in the case of Clark v. 
 
 ^ 1 Sprnguc, 343, cited in Parsons on Sliipiiinpr, Vol. 1, 261n.
 
 "SWEA rr 367 
 
 Bai'nw(^ll.' Here twcnty-roiir boxes of cotton tlire;ul, 
 on delivery at Charleston, Averc found damaged to 
 the extent of 50 per cent. The spools of thread were 
 packed in small wooden l)Oxes lined Avith paper, one 
 hundred dozen in each box, and again enclosed in a 
 large Avooden box, six small boxes in each large one, 
 lined Avitli paper betAA'Cen the small boxes. "When 
 these boxes Avcre deliA'ered and opened, the spools of 
 thread in each of the small boxes Avere more or 
 less stained and spotted by dampness and mould, 
 though the large and small boxes themseh'cs Averc 
 generally dry, as Avas also the paper coA'ering the 
 thread. The A'essel on the A'oyagc from LiA'erpool 
 to Charleston, Avhich occupied sixty-one days, 
 experienced A^ery boisterous Aveather, and on deliA'ery 
 the cotton thread Avas foimd damaged, liaA'ing stains 
 and spots, the effect apparently of dampness and 
 mould. It Avas proAed, that the cotton thread Avas 
 in good condition Avlien shipped, and it being clear 
 that the damage had arisen from the effects of the 
 dampness of the atmosphere in the hold of the 
 vessel, the shipowners a\ ere discharged from liability. 
 In another case- a mixed cargo, consisting of 
 crates, and boxes of dry goods and liard\\av(\ and 
 a quantity of bars of railroad iron, amis stoAved in 
 the lower hold of the vessel ; and some 1,200 sacks 
 of salt Avere stowed 1)etAveen decks, fore and aft the 
 main hatch. On the A^oyage from Liverpool to 
 
 1 12 Kuw. 272 ; s. c. 19 Curt. 131. 
 
 = llii.h I'. Liiuibcrt, 12 How. 317; 19 Curtis, 171,
 
 ^GS LEGAL EFFECT OF THE CLAUSES. 
 
 Charleston tlic ship met ^vvith two heavy gales and 
 laboured heavily, the pumps going most of the | 
 time during the gales. On opening the upper hatches 
 on arrival to discharge the cargo, the salt between 
 decks was found dry and in good condition, and 
 after its discharge no unusual wet or dampness 
 appeared upon the matting or dunnage upon which j 
 it was stowed, nor upon the flooring of the deck, "I 
 nor was there any evidence of drainage from the 
 sacks of salt in any part of the between decks. Tive 
 or six days afterwards, on opening the lower hatches, 
 great heat immediately issued therefrom, and much 
 dampness and vaj)Our were found to j^ervade this 
 part of the A^essel ; and the greater portion of the 
 cargo was found to be seriously damaged. The 
 boxes of dry goods were found wet or damp, and 
 stained to a very considerable extent, and the hard- 
 ware and bars of railroad iron wet and badly rusted ; 
 and indeed, the whole cargo throughout the hold 
 more or less damaged. Drops of water, or vapour 
 apparently formed from the heat and dampness of 
 the hold, or by drainage from above, were found 
 pendant from the seams of the under part of the 
 lower deck, affording very satisfactory evidence of 
 the immediate cause of the damage to the cargo ; 
 but leaving the question open to controversy as to 
 the source whence these indications proceeded. It 
 was held, that the salt had been properly shipped 
 and stowed in the between decks in accordance 
 with the usage and custom of the trade, and that
 
 PETROLEUM VAMAGE. 300 
 
 llic loss and injury to the cargo was occasioned hy 
 beat and vapour in the liohl, against whicli loss the 
 shipowners Avere excused, it l)eing a peril of the sea. 
 
 nice cargoes from Burmah, when stowed in the 
 ship's hold, become heated and give off a vapour, 
 which ascends and condenses under the deck and at 
 the sides of the hold. Damage, therefore, frer;uently 
 ensues through the vice of the cargo, and though 
 the dunnage is complete and perfect, on discharge 
 it is found that owing to the great natural heat of 
 the rice, an absorption from the water in the limbers 
 and sweat of the hold has taken place, and that some 
 of the bags on the lower tier are damaged. Venti- 
 lation and removal of the hatches diu'ing the voyage, 
 will to a certain extent remove this danger, and if 
 the vessel is efficient for the conveyance of the rice, 
 and the master has not been guilty of negligence, 
 the shipowner will not be liable for damages arising 
 from these natural causes.^ 
 
 In the case of the Barque '"Carlotta" - which took Pctroieum 
 a cargo of almonds from Barcelona to Xew York '^'^^^' 
 having previously discharged a cargo of petroleum. 
 On arrival at New York it was found that a portion 
 of the cargo had been damaged by contact Avith 
 pctroieum and other portions were scented with 
 petroleum. Before leaving Barcelona the "Carlotta" 
 had been cleansed and fumigated for the purpose 
 of removing the scent of petroleum ; one of the 
 conditions in the charter-party being " vessel to be 
 
 ' Mit. Mm-. N., vol. 1, p. 157. = 3 A^). Mar. L. C. X. S. 45U. 
 
 47
 
 370 LEGAL EFFECT OF THE CLAUSES. 
 
 cleansed as customary previous to loading homeward 
 cargo." In an action by the owner against the 
 charterers for freight, a counter claim was brought 
 on the bills of lading for damage done to the 
 almonds by its contact with petroleum and by its 
 being impregnated with the odour of petroleum. 
 The Court held that such damages were recoverable, 
 and that it Avas not to be presumed tliat the 
 charterers, persons experienced in the trade, would 
 have arranged to bring home a cargo of fruit in a 
 vessel which had carried out a cargo of petroleum 
 in barrels, unless they had imderstood that a 
 cleansing of the vessel in the customary manner, 
 after the discharge of the cargo of petroleum, 
 would have enabled the vessel to bring home the 
 cargo of fruit in good order, free from the stains of 
 or the odour of petroleum. There were no exceptions 
 in the l)ills of lading as to petroleum damage ; but 
 the rights of the parties, so far as petroleum 
 damage was concerned, were to be governed l)y the 
 provisions of the charter-party as to petroleum. 
 The effect of the provisions of the charter-party 
 was that the vessel being about to carry out 
 petroleum in barrels, she should, if " cleansed as 
 customary " before loading the return cargo of 
 fruit, not be liable for damage by petroleum to 
 such return cargo ; and that the charterers having 
 had notice of such carriage of petroleum, took the 
 risk of damage to such return cargo from the 
 petroleum, if the vessel were cleansed in the
 
 ''HEAT.'' 371 
 
 customaiT manner hcforc loading: such return car2:o. 
 Tlic evidence sliowed tliat vessels Avliich liad carried 
 petroleum in jiackages, did after being cleansed in 
 a proper manner, bring back cargoes of fruit such 
 as the"Carlotta"had, withoutthc fruit being damaged 
 and the fact of such damage in the present case 
 ■was to be accepted as evidence that the vessel was 
 not cleansed in the customary or pro^^er manner. 
 That it did not alter the case that some or all of the 
 damage might have arisen from the sweat of the 
 hold dropping upon the cargo. The complaint was 
 not that the cargo was damaged by bemg wet, or 
 that it became musty therefrom, but that, whether 
 the Avater of the sweat Avas the vehicle or not, the 
 taste and odour of the petroleum were conveyed to 
 and left with the cargo, when that would not have 
 happened if the vessel had been properly cleansed. 
 The sweat and the water thereof would have 
 produced no damage if they had not been conveyers 
 of petroleum taste and odour, and they Avould not 
 have conveyed such taste and odour if the vessel 
 had been thoroughly cleansed in the proper and 
 customary manner. 
 
 The proximate cause of heat cannot be brought "nont." 
 within the legal import of the exception of dangers 
 of the seas. 
 
 Thus, where bones were stowed in bulk, and also 
 loosely upon several bags of oil-cake, filled up so 
 that no space was left in which any part of the cargo 
 could be put, the circulation of air being thereby
 
 372 LEGAL EFFECT OF THE CLAUSES. 
 
 prevented. There l3cing no ventilation or any 
 outlet for licat and damp to escape, the bones 
 contributed to taint the atmosphere, and it wasproved 
 that under such circumstances the oil-cake might 
 become mouldy ; it Avas held, that from the nature 
 and collocation of this cargo of animal, vegetable, and 
 putrescible matter, the oil-cake was sea-damaged, 
 and that by the packing and cramming of the ship 
 so as to prevent any circulation of air, also by the 
 closing of the hatches, the atmosphere in the ship's 
 hold became heated, damp, and vitiated without 
 means of escape, and that this atmosphere was the 
 proximate cause of the damage to the oil- cake, for 
 which the shij)Owner was responsible.^ 
 
 On an allegation that damage to cargo originated 
 from defective stowage, and heat and fermentation 
 arismg from the cargo being stowed in too close 
 conjunction with other cargo : it was held, that the 
 plaintiffs must establish affirmatively that the cargo 
 on its arrival at its port of destination was in a 
 damaged condition ; and that the onus then falls on 
 the ship to prove that the original stowage was 
 good, and that the perils of the sea, subsequently 
 occurring, created the damage.^ 
 
 So, where, owing to bad stowage and want of 
 drainage, sugar became heated, and much damaged, 
 the shipowners were held liable.^ 
 
 » The Freedom, L. R. 3 P. C. 594; 88 L. J. Ad. 25. 
 
 « The Alexandra, 14 L. T. 742. 
 
 » The Nepotor, L. R. 2 A. & E. 375; 38 L.J. Adm. 63.
 
 But Avliorc tlio entire cari^o is sliippcd by one firm 
 
 or individual, as Avliore tlie charterer furnislies the 
 
 ^vliole lading- himself', if the master is unaware of 
 
 tlic prohahle injurious results to the cargo from 
 
 heat occasioned hy the collocation of different 
 
 cargoes^ he is not called upon to incur expense in 
 
 fitting up the vessel in such a manner that the 
 
 several articles may he stowed separately, and even 
 
 supposing the shipowners are aware of the usual 
 
 consequences of stoAving certain cargoes together in 
 
 the same hold, nnless they receive notice from the 
 
 shippers not to do so, they may Avell come to the 
 
 conclusion that the shippers were also aware of 
 
 them, and they Avould not have put such a cargo on 
 
 hoard unless they had been assured that the cases 
 
 or packages were of such extraordinary strength 
 
 and goodness as to he capable of resisting the usual 
 
 influence of a heated temperature. Thus, where 
 
 the charterers of a vessel shipped a cargo of oil, 
 
 rags, and avooI, which was stoAved in the same hold 
 
 of the vessel, and OAving to the influence of the heat 
 
 generated hy the wool and rags, the casks leaked 
 
 to an unusual extent, and a large quantity of oil 
 
 Avas lost, the PriA-y Council held, that ignorance on 
 
 the part of shipoAvners of the latent mischief arising 
 
 from the action and contiguity of a cargo of this 
 
 nature, could not be said to amount to misconduct 
 
 or negligence ; and further, that even if the ship- 
 
 OAvners kncAV, or ought to have knoAvn, Avhat the 
 
 consequences of such stowage must be, it did not
 
 374 LEGAL EFFECT OF THE CLAUSES. 
 
 follow they were guilty of negligence in not putting 
 up bulkheads. Assuming that they could have 
 been so constructed as to protect the part of the 
 hold where the oil was stowed from the influence 
 of the heat generated by the wool and rags, still 
 that could not have been done without trouble and 
 considerable expense, which the shippers had no 
 right to throw on tlie shipowrers because they 
 chose to load the ship they had chartered, with a 
 cargo of such a nature.^ 
 
 It has been established in superior courts of law 
 that a shipowner is not liable for the heating of 
 grain, nor for damage arising from decay or depre- 
 ciation from natural causes.^ So, where a cargo of 
 wheat on its arrival at Dublin on a voyage from 
 Caen, was found to be badly heated in the centre 
 about four feet all over (the surface being in good 
 condition,) also about two feet all over the bottom, 
 and not less than IS inches round the sides being 
 sound. After delivery the mercliant issued an 
 Admiralty Avrit on the ship for 500 Z. for damage to 
 cargo through being heated, not alleging anything 
 against the ship, but against the incxpertness of the 
 master in not detecting the condition of the cargo 
 when shipped. The clause " dangers and accidents 
 of the seas" was inadvertently omitted from the bill 
 of lading, but at the hearing tlie Court dismissed 
 the petition.^ 
 
 ' Ohrloff V. Briscall, L. 11. 1 P. C. 231 ; 35 L. J. P. C. G3. 
 " The Anna Maria, Adm. Ct., 31st July 1871. 
 * Tlie Affines, Mit. Mar. N. vol. 1, p. 135. 
 
 ii
 
 Tar expands by licat in the liold, and tliercby 
 causes leakage, especially if the barrels have been 
 filled in a cold climate, and the ship proceeds where 
 the temperature is much higher than at the place 
 of shipment. 
 
 An action Avas brought against the owners of a 
 steam-boat on account of loss on a cargo consisting 
 of over two hundred barrels of molasses, which the 
 bill of lading stated to have been received in good 
 order and well conditioned, and to be delivered at 
 Pittsburg. The cargo was brought to Louisville, 
 and the state of the water in the river not permitting 
 the boat to proceed to Pittsburg, the molasses was 
 put into a warehouse, and afterwards (Avith a little 
 delay) re-shipped, and arrived, in the usual time, at 
 Pittsburg. On delivery there, it Avas discovered that 
 tAvo of the barrels Avere missing, seven of them empty or 
 nearly so, and some others only half full. Information 
 AAas elicited from many Avitnesses as to the trade on 
 the AVestern Avaters, and on the nature of the article 
 of molasses, and the trade in it ; for instance, that 
 in Avarm Aveather, from fermentation, a barrel Avill 
 bo full, and CA^en running out at the bung-hole, on 
 its being moA'cd and carried to a dray, although Avlien 
 still and in a cool place, the cask Avill not be full 
 by one-fourth, or one-third ; that on account of the 
 fermentation and expansion of the molasses, it Avas 
 necessary to have small A'ent holes on the top of the 
 cask to prevent its bursting ; and that through these 
 vent holes from three to five gallons will be lost
 
 37G LEGAL EFFECT OF THE CLAUSES. 
 
 between New Orleans and Pittsbnrg, if the voyage 
 be in warm weather, as was the voyage in question. 
 It appeared also, that the article in warm weather 
 loses more or less by leakage, according to the 
 croodncss of the casks. It Avas conceded that the lost 
 barrels must be paid for; but the question was, 
 whether the deficiency in the others was the conse- 
 quence of defect in the casks, or of bad stowage, or 
 other causes for which carriers were answerable. 
 The followi]Tg charge to the jury was held to be 
 correct : " No care or attention of the carrier could 
 prevent the fermentation and expansion of tbe 
 molasses in warm weather, by which a considerable 
 quantity of molasses would bo lost ; this loss 
 therefore, arising from a law of nature, was neces- 
 sary, and came within the exception of ' the act of 
 God.' The defendants ought not to be answerable 
 for loss occasioned by the peculiar nature of the 
 article, carried at that season of the year, nor leakage 
 arising from secret defects of the casks, which could 
 not have been observed or remedied after the casks 
 were stowed away ; but for all other losses, not thus 
 occasioned, or shoAvn T)y the defendant to have 
 originated from causes beyond their control, they are 
 answerable." And the Court held, that unless the 
 defendant could prove that a fraud and imj)osition 
 was practised upon him, he could not contradict the 
 bill of lading signed by him ; and that if the barrels 
 of molasses Avcre injured in their delivery to the 
 carrier, and he saw and knew it, this would not be
 
 " GOODS CARRIED ON DECIV 377 
 
 such a latent defect as -would excuse liim from 
 liability for loss, beyond that which was occasioned 
 by the peculiar nature of the article carried/ 
 
 The duty to stow under deck is deemed a condi- " Goods 
 
 '' cnrncd oa 
 
 tion of every bill of ladinfjj, whether expressed or '^'^^\ ^^^^ ,^ 
 
 «' ^' -•• solely at the 
 
 not ; unless the liability is expressly excluded by ^^-^u"^^'* 
 the terms of the contract, it will always be deemed 
 one of its provisions. This is a general rule of 
 maritime law arising out of the general usage of 
 the commercial world." 
 
 An ordinary bill of lading represents that the 
 goods which are referred to in it are bemg carried 
 below and not on the vessel's deck.^ It makes no 
 difference that it is usual to carry the description 
 of goods in the particular trade on deck as well as 
 below, and that some shippers expressly stipulated 
 in their bills of lading that theh* goods shall not be 
 carried on deck.* It has, however, been held in 
 America, that the owners of a steamer suited by 
 her peculiar build to a trade of which only a small 
 portion was in the open sea were justified in loading 
 cargo in a place Avliere it was well protect (m1 from 
 the weather although it was above the main deck. 
 
 Thus where casks of oil were stowed on the main 
 deck of a steamer bulwarked entirely round and 
 under cover of the upper deck, well stowed, except 
 that they were not stancliioned down from the top, 
 
 1 Aug. on Car., sec. 211. • The Neptuno, 16 L. T. 3(5. 
 
 ' The Royal Exchange Shipping Co. v. Dixou, L. R. 12 App. Gas. U. 
 
 * Ibid. 
 .18
 
 3!r8 LEGAL EFFECT OF TIIU CLAUSES. 
 
 and no bulkheads were built behind them, the voyage 
 of the steamer from Boston to Noav York being 
 short, occu2:)ying but one night ; though part of the 
 "way out at sea, and the goods were injured by a 
 violent storm. The Court held, that these goods 
 were stowed in compliance with the rule requiring 
 them to be stowed under deck. That steam vessels 
 making such short voyages, on which the speedy 
 transit of goods is an object of moment to shippers 
 as well as to shipowners, are not bound to exercise 
 the same elaborate and dilatory precautions against 
 the vicissitudes of tlie sea as on longer and more 
 perilous voyages. That the loss arose from a 
 danger of the sea against which the owners Avere 
 not bound to provide further than they did.^ 
 
 The reason why relief by general contribution is 
 denied to the owners of goods stowed on deck, when 
 these are thrown overboard in order to save the 
 cargo under hatches, is obvious. According to the 
 rules of maritime law, the placing of goods upon 
 the deck of a sea-going ship is imj)roper stowage, 
 because they are hindrances to the safe navigation 
 of the vessel, and their jettison is therefore regarded, 
 in a question with the other shippers of cargo, as a 
 justifiable riddance of encumbrances which ought 
 never to have been there, and not as a sacrifice for 
 the common safety. But the owner of deck goods 
 jettisoned, though not entitled to general contribu- 
 tion, may nevertheless have a good claim for indemnity 
 
 ^ The ^'cptlulc, IG L. T. 3G.
 
 ''GOOm CATililED OX deck:' 379 
 
 cap^ainst the master and owners Avho received liis 
 goods for carriage upon deck ; and the exception 
 does not aj^ply citlier in those cases where, according 
 to the estal)lished custom of navigation, sucli 
 cargoes are permitted, or in any case ^^'here the 
 otlier owners of cargo have consented that the 
 goods jettisoned should he carried on the deck of 
 the ship/ 
 
 ]\rr. LoAvndes says : — " It has hcen questioned 
 "\A hethcr cargo in tlic poop or forecastle, or in deck 
 liouses, or other spaces covered in ahove the 
 maindeck for the purpose of holding cargo, can he 
 treated as helow deck. If there is a difficulty ahout 
 this, it arises from the manner in Avhich ships are 
 now measured for tonnage. Such spaces may he 
 huilt in with the frame of the ship, and measured 
 in with her tonnage, which, in theory, represents 
 her capacity for carrying cargo; and, when due 
 allowance has heen made for crew space and the 
 like, it has not unreasonahly been supposed that 
 cargo in the remainder of a ship's tonnage space 
 should he treated as in the proper i^lace for cargo. 
 In Dixon v. Royal Exchange,Miowever, Lord Esher, 
 M. R., expressed himself very energetically in 
 opposition to this view, declaring that anybody who 
 knows what a ship is, must know that that part of a 
 ship in which goods are ordinarily loaded is that 
 
 ' Per Lord Watson in Strang v. Scott, L. K. 11 App. Cas. 601 ; 1. L. K. 
 17 Cal. 3G2. 
 
 * Affirnioa by tlie House of Lords, L. R. 12 App. Cas. 11.
 
 330 LEGAL EFFECT OF THE CLAUSES. 
 
 part of the hold of the ship " which comes up to 
 the deck and not ahovc the deck." His lordship 
 appeared to he willing to receive evidence of custom 
 on the point, so that perhaps the question may he 
 regarded as still an open one. It is rather a 
 nautical then a legal question. Amongst adjusters, 
 the practice, up to the time of the ahove case, used 
 to he, to treat a jettison from structures huilt in 
 with the ship's frame and measured in Avitli her 
 tonnage as heing on the same footing with a 
 jettison from helow the hatches. " ^ 
 
 By Eule 1 of the York Antwerp Hules, 1890 : — 
 
 No jettison of deck cargo shall he made good as 
 general average. 
 
 Every structure not huilt in with the frame of 
 the vessel shall be considered to he a part of the 
 deck of the vessel. 
 
 A schooner laden witli wheat took on hoard a 
 deck cargo of divers pigs of lead. They were 
 applied for by the Captain to trim his vessel, and 
 by the bill of lading they were to be delivered in as 
 good order as shipped, " dangers of navigation 
 excepted." They were jettisoned in the course of 
 the voyage. It was held, that in the absence of 
 proof of a custom to ship lead on deck, the owners 
 of tho cargo, and not the vessel must bear the loss.^ 
 
 In the case of " The Delaware"^ in the Supreme 
 Court of the United States, the question was raised 
 whether evidence could be given of a verbal agree- 
 
 ' LowTicIes on G. A., 4tli etl. C3. 
 » The Milwaukee Belle, 21 L. T. 800. ' 14 Wall. 579.
 
 GOODS CARRIED OX DECK. 381 
 
 mcnt '^'itli tlic sliippors, made before tlie bill of 
 lading was signed, that the goods should bo stowed 
 on deck, the bill of lading was silent on the point. 
 It was held, that the bill of lading imported a 
 contract to stow under deck, and that evidence to 
 vary it ought not to be admitted.^ 
 
 In the case of Dixon?;. Royal Exchange Shipping 
 Company Limited,- an important question as to the 
 liability of a shipowner for the jettison of a deck 
 cargo was raised. The action was for non-di>livery 
 of li<7 bales of cotton, shipped by the plaintiffs on 
 board the defendant's steamer under a bill of lading 
 which stated that the goods were shipped " under 
 deck," and among the excepted perils was loss by 
 jettison. The bales in question were stowed on 
 deck, and the ship having grounded in the course 
 of her voyage the 117 bales were jettisoned. It 
 was admitted that in the circumstances the jettison 
 was proper. At the trial it appeared that there 
 was a practice of carrying cotton bales on deck — at 
 the shipowner's risk. The Master of the Holls in 
 giving judgment for the plaintiff said : — If the 
 action were treated as brought upon the bill of 
 lading, it was brought upon a contract by the 
 defendants to carry and safely deliver the goods. 
 It was said that tlie exception was to be taken out 
 ol: the bill of lading by reason of the goods having 
 been stowed on deck without the consent of the 
 plaintiffs. On the other hand it was suggested that 
 
 ' Carver on Car. by Sen, p. 28G. = 1 Tunes L. R. 490,
 
 382 LEGAL EFFECT OF THE CLAV8ER. 
 
 by reason of the practice tlie plaintiffs must be 
 taken to have impliedly given leave to the Captain 
 so to stow the goods. But to have that effect the 
 practice should have been proved to be so general 
 and universal in the trade, and in the particular 
 port from Avhich the goods were taken, that every 
 one shipping goods there must be taken to knoAV 
 that other people's goods, if not his goods, might 
 probably be stowed on deck. But to prove, as had 
 been done in this case, that the practice was frequent 
 was not sufficient. Therefore, if the action were 
 to be treated as brought upon the bill of lading, 
 the defendants would be liable for not having 
 delivered the goods safely according to their contract 
 Considering the case independently of the bill of 
 ladins:, the result of the authorities was that if a 
 cargo-owner can recover as for a general average 
 contribution, he cannot recover for anything else. 
 But here, there being no universal custom proved, 
 the Captain had no authority to bind any one by a 
 jettison of the deck cargo ; therefore the goods 
 could not be taken to have been thrown overboard 
 by the authority of the plaintiffs so as to entitle 
 them to general average contribution. Therefore 
 the whole question was as to tlic plaintift''s rights 
 under tlie l)ill of lading, and under that, by reason 
 of what liad happened, they were entitled to recover 
 the value of the goods. 
 
 This decision was subsequently aflSrmed by the 
 House of Lords.^ 
 
 > oG L, J. Q. B. 2GG ; L. E. 12 App. Cas. 11,
 
 r 
 
 '' JETTISON.'' 383 
 
 The mainiii^ ol' tlu; word "jettison" is conipre- "jtttiBon." 
 liensivcly exjircssed by the' rule of the llhodian 
 law cited in Kent's Commentaries^ and in Abbott on 
 Shipping. - " If goods are throAvn overboard in order 
 to lighten a sliip, the loss, incurred for the sake of 
 all, shall be made good by the contribution of all." 
 ''The goods must be throicn overboard ; the mind and 
 agency of man must be employed ; if the goods are 
 forced out of the ship by the violence of the waves, 
 or are destroyed in the ship by lightning or tempest, 
 the merchant alone must 1)ear the loss. They 
 must be thrown overboard to lighten the ship \ if 
 they arc cast overboard by the wanton caprice of 
 the crew or the passengers, theij, or the master and 
 owners for them, must make good the loss. The 
 goods must be thro^^Ti overboard /or the sake of all ; 
 not because the ship is too heavily laden to prosecute 
 an ordinary course through a tranquil sea, Avhich 
 would be the fault of those who had shipped or 
 received the goods ; but because, at a moment of 
 distress and danger, their Aveight or their presence 
 prevents the extraordinary exertions required for 
 the general safety. '\s\\q\\ the ship is in danger of 
 perishing from the violent agitation of the wind, 
 or from the quantity of water that may have forced 
 away into it, or is labouring on a rock, or a shallow, 
 upon which it may have been driven by a tempest; 
 or when a pirate or an enemy pursues, gains ground, 
 and is ready to overtake it, no measure that may 
 
 I Vol. 3., p. 326. » 13ih cd., p. G27, 642.
 
 38 i LEGAL EFFECT OF THE CLAUSES. 
 
 facilitate tlid motion and passage of the ship can be 
 really injurious to any one who is interested in the 
 A^■clfare of any part of the adv^cnturc, and every 
 such measure mat/ he beneficial to almost all. In 
 such emergencies, therefore, -when the mind of the 
 brave is appalled, it is laAvful to have recourse to 
 every mode of preservation, and to cast out the 
 goods in order to lighten the ship for the sake of 
 all. But if the ship and the residue of the cargo 
 be saved from the peril by the voluntary destruction 
 or abandonment of part of the goods, equity 
 requires that the safety of some should not be 
 purchased at the expense of others, and therefore 
 all must contribute to the loss." 
 
 " The rule mentions ffoods only, but its principle 
 extends also to the ship and its furniture, and all 
 that I have hitherto said respecting the goods is to 
 be understood also of the provisions, the guns, the 
 boat, or other tackle of the ship : a fortmri, it is 
 also to be understood of goods belonging to the 
 owner or master of the ship, as well as of those 
 belonffini? to the merchant." 
 
 Mr. Lowndes after discussing the several autho- 
 rities on the subject thus summarises the law of 
 deck load jettison. *' A jettison of goods carried on 
 deck is not made good by contribution, except 
 where there is a general custom of trade, in the 
 particular voyage, to carry deckloads. Such a 
 custom there is with regard to the timber trade 
 from the Baltic and British North America. Even
 
 "JETTISON.'' 385 
 
 here, hoAvover, it is to be noted that wherever 
 restrictions npon such deck loading are imposed by 
 a British statute, and are violated, as by carrying 
 too large a deckload, or more than is permitted for 
 the particular season of the year, no claim can be 
 made for a jettison of Avhat Avas thus unlawfully 
 laden. The occasional or surreptitious carrying of 
 deekloads, however frequent in particular voyages, 
 as in the case of cotton in steamers from America, 
 does not constitute a custom of the trade. Where 
 there is no custom to carry deekloads, there is no 
 contribution, but the loss by jettison must fall on 
 the owner of the goods, if he has agreed to that 
 mode of stowage, or, if not, on the shipowner. The 
 shipowner in either case must bear his own loss of 
 freight on the goods jettisoned. And these rules 
 cannot be modified by clauses in a bill of lading, or 
 certainly not if there be anything ambiguous about 
 such clauses. " ^ 
 
 Willes, J., in Johnson v. Chapman - said: — "In 
 order to make jettison the subject of a general 
 average contribution, two conditions must be ful- 
 filled. First of all, there must be common danger. 
 It must be a maritime peril, and it must be 
 common to the whole adventure ; and then, secondly, 
 there must be a sacrifice in the sense of intentional 
 sacrifice. All the writers in this country and abroad 
 appear to be agreed that the question is, whether 
 
 ' Lowndes ou G. A. 1th ed. p. G2. = 35 L. J. C. T. 23. 
 
 49
 
 386 LEGAL EFFECT OF THE CLAUSES. 
 
 there is common danger, and Avlietlier there is 
 voluntary sacrifice." 
 
 If the vessel is seaworthy to carry a cargo under 
 deck, and there is no general custom to carry such 
 goods on deck in such a voyage, and the loss is to 
 he attributed solely to the fact that the goods were 
 on deck, and their owner had consented to their being 
 there, he has no recourse against the master, owners, 
 or vessel, for a jettison rendered necessary for the 
 common safety hy a storm, though that storm, in all 
 probability, would have produced no injurious effect 
 on the vessel if not thus laden. It is not for him to 
 say that in the first storm the vessel encountered, 
 though not of unusual severity, she proved to be 
 unable to carry the deckload, and so was not of 
 sufficient capacity to perform the contract into which 
 the carrier entered. The carrier does not contract 
 that a deckload shall not embarrass the navigation 
 of the vessel in a storm, or that it shall not cause her 
 so to roll and labour in a heavy sea, as to strain and 
 endanger the vessel. In short, he does not warrant 
 the sufficiency of his vessel, if otherwise staunch and 
 seaworthy, to "\^itlistand any extraordinary action of 
 the sea when thus laden. If the vessel is in itself 
 staunch and seaworthy, and her inability to resist a 
 storm arises solely from the position of a part of 
 the cargo on deck, the owner of the cargo, who has 
 consented to this mode of shi])ment, cannot recover 
 from the ship or its owners, on the ground of
 
 "JETTTI^ON.'' 387 
 
 negligence, or breach of an implied contract 
 respecting seaworthiness.^ 
 
 Thus, where two boilers with chimneys and other 
 iron materials, weighing nearly 40 tons, were, with 
 the shipper's consent, stowed on the deck of the 
 clipper ship " Hornet" for a voyage from New York 
 to San Francisco, and owing to the presence of this 
 material on the deck the vessel became so much 
 strained and injured in a gale that it became neces- 
 sary to jettison them after the gale was over, to 
 protect the vessel from risk of any future gale she 
 might encounter. It was held, that as the shipper 
 had consented to the cargo being placed in that 
 position, he took the risk of its rendering the ship 
 unmanageable in a storm, and that he, and not the 
 shipowners, must bear the loss occasioned by its 
 being placed on the deck.^ 
 
 Where a general ship is carrying cargo both 
 above and below deck and there is no custom to 
 carry goods on deck, and the voyage is not a 
 coasting voyage, the o^vner of the deck cargo that 
 has been necessarily jettisoned in the course of a 
 voyage can have no claim for contribution against 
 the sliipowner or the other cargo owners, although 
 the contract between him and the sliipo\\'ner 
 specifies that the goods are to be carried on dock. 
 
 Thus where cattle had been shipped on board a 
 vessel as deck cargo from New York to Portsmouth ; 
 
 ' Lawrence v. Minturn, 17 How. 100; 21 Cur. 392. 
 •» Ibid.
 
 388 LEGAL EFFECT OF THE CLAUSE8. 
 
 during the voyage a storm arose, and owing to 
 stress of Aveather the master jettisoned the deck 
 cargo by throwing the cattle overboard. The act 
 of jettison was proper and necessary on the part of 
 the master for the safety of the defendant's vessel. 
 It was held in an action by the cargo owner that 
 he could not recover a contribution from the 
 defendants by way of general average in respect of 
 the loss and jettison of the cattle.^ 
 
 In consequence of a severe storm which the 
 plaintiffs' vessel encountered, her deck cargo of 
 timber, which was lawfully stowed on deck accord- 
 ing to the terms of the charter-party between the 
 plaintiffs (shipowaiers) and the defendant, tlie 
 charterer, broke adrift, and knocked against the 
 pumps, so that the Captain was compelled, in order 
 that the crew might work the pumps and to prevent 
 damage to the bulwarks and pumps, and for the 
 safety of the ship and all on board, to throw a 
 portion of such cargo overboard : — Held, that such 
 jettison w^as the subject of a general average con-, 
 tribution, from the plaintiffs to the defendant, it 
 being both voluntary and to save all from the 
 danger caused by the storm, W'hich was common to 
 the whole adventure.^ 
 
 In Burton v. English,^ the plaintiffs, timber 
 merchants, shipped on the defendants' vessel a cargo 
 of timber, part of which Avas deck cargo, and also 
 
 I Wright V. Marwood, L. R. 7 Q. B. D. 62. 
 « Johnson V. Chapman, 35 L. J. C. P. 23. ^ l. r. 12 Q, B. D. 218.
 
 ''JETTISON." 389 
 
 a car2^o of iion, under difTorcnt contracts. The 
 ship liad l)een chartered by the i)laintiirs, l)ut the 
 pjoods Avcre shipped under a hill of lading ■which 
 referred to the charter-party. During the voyage 
 part of the deck cargo was jettisoned for the safety 
 of the vessel and rest of the cargo, and this action 
 uas brought for general average contribution against 
 the shipowners, and it was contended that they are 
 not liable by reason of a stipulation in the charter- 
 party. 13rett M. 11. said: — "The first thing to be 
 noticed is that the ship was not a general ship, but 
 one M'hich took only these two cargoes of iron and 
 timber. The clause in the charter-party on which 
 the defendants rely is as follows : ' the steamer 
 shall be provided with a deckload if required at 
 full freight, but at merchant's risk.' It is obvious 
 that this is a stipulation in favour of the shipo^v^Tiers, 
 for in order to earn a larger freight they may require 
 part of the cargo to be deck cargo, and then it is 
 to be at the merchant's risk. My brother Cave, 
 who delivered the judgment, of the Divisional Court, 
 h(dd that this stipulation absolved the shipowners 
 from liability to contribute to general average. It 
 must be admitted that if there Avere an improper 
 jettison by the master and crew, this stipulation 
 Avould relieve the shipowners from liability, and 
 therefore mv brother Cave felt this difficultv, that 
 if the shipowners were to be held liable to contri- 
 bute to general average in respect of jettison of 
 any of this cargo, this strange result would seem
 
 390 LEGAL EFFECT OF THE CLAUSES. 
 
 to follow, namely, tlie shipowners would not be 
 liable for an improper jettison, but they would be 
 for a jettison properly and rightly made. 
 
 " The stipulation is in favour of the shipowners, 
 and is in restriction of their liability under their 
 contract to carry. The general rule is that where 
 there is any doubt as to the construction of any 
 stipulation in a contract, one ought to construe it 
 strictly against the party in whose favour it has 
 been made. jSTow by what right is it that the 
 owner of cargo can make the shipowner liable to 
 contribute in respect of its loss ? If the liability is 
 in consequence of any act of any of his servants for 
 which the shipowner would be liable but for this 
 stipulation, then it follows that the defendants are 
 freed from liability. I should say that this 
 stipulation would cover any act of the master or 
 crew, which being done by them as servants of the 
 shipowner would otherwise make him liable ; it 
 therefore covers the case of improper jettison, also 
 a loss caused by a collision or stranding owing to 
 the negligence of the master or crcAv. Does it, 
 however, cover this claim for contribution ? IIow 
 does such a claim arise ? In theory it arises from 
 an act done by the master of the ship, not as the 
 servant of the shipowner, but as the servant of the 
 cargo owner, a relation which is imposed on him by 
 the necessity of the case. It arises by reason of a 
 voluntary sacrifice by the cargo owner for the bene- 
 fit of the ship and cargo, and not from any act done
 
 I 
 
 ''JETTISON.'* 391 
 
 by tlie shipowner at all. By Avliat law does the 
 right arise to general average contribution ? Lord 
 Bramwell in his judgment in Wright v. Marwood ^ 
 considers it to arise from an implied contract, but 
 although I always have great doubt when I differ 
 from Lord Bramwell, I do not think that it forms 
 any part of the contract to carry, and that it does 
 not arise from any contract at all, but from the old 
 llhodian laws, and has become incoi-porated into 
 the law of England as the law of the ocean. It is 
 not as a matter of contract, but in consequence of 
 a common danger, A^ here natural justice requires 
 that all should contribute to indemnify for the loss 
 of property which is sacrificed by one in order that 
 the whole adventure may be saved. If this be so, 
 the liability to contribute does not arise out of any 
 contract ac all, and is not covered by the stipula- 
 tion in the charter-party on aa liicli the defendants 
 rely. I therefore disagree Avith the decision of the 
 Divisional Court in this case. The difficulty Avhicli 
 my brother Cave felt as to the meaning of the Avords 
 in the charter-party does not arise, because the acts of 
 the Captain Avitli reference to properly or improperly 
 jettisoning part of the cargo are not both done by 
 him in the same capacity, one is done by him as 
 the agent of the cargo-owner, and the other as the 
 servant of the shipoAvncr. For these reasons I 
 think that the liability to general average contribu- 
 tion is not covered by any Avords of the contract 
 
 ' L. E. 7 Q. B. D. 62.
 
 392 LEGAL EFFECT OF THE CLAUSES. 
 
 ill the charter-party, and consequently that the 
 defendants are liable," 
 
 If the danger which necessitated the jettison has 
 resulted from the vice pro pre of the article jettisoned, 
 as, for example, Avhen there is danger of fire from 
 the heating of hemp or cotton shipped in a damp 
 state, or from the spontaneous combustion of coals, 
 it is the practice not to admit this loss into general 
 average, the loss being entirely that of the shipper/ 
 
 If there is an usage to carry carboys of vitriol on 
 deck, or to embed them in sand in the hold, the 
 underwriters are bound to take notice of it without 
 any communication. All they can require is that 
 the carboys should be properly stowed in the usual 
 manner. They will be liable if it becomes necessary 
 to jettison them by reason of their taking fire, but 
 not if the vitriol was carried on deck without such 
 an usage, or if they were not stowed there in a 
 skilful and proper manner.^ 
 
 The right to contribution in case of jettison is 
 based, not upon the causes, but upon the actual 
 presence of danger to the ship and cargo. 
 
 In a general ship the owner of cargo jettisoned 
 has a lien for general average on each parcel of 
 goods saved, enforcealile by the master, as his agent ; 
 and each owner of jettisoned goods becomes a 
 creditor of the ship and cargo saved, and has a direct 
 claim against each of the owners of cargo saved 
 
 ^ Johnson v. Chapman, 33 L. J. C. P. 23, 
 - DaCosta v. Edmiiuds, 4 Cam25. 142.
 
 ''JETTISON.'' 398 
 
 and on the sliip for a pro )'ald contril)ution towards 
 indemnity, which he can enforce hy action at laAV. 
 
 AVhcn a ship lias stranded through the neglip^cnce 
 of the master, and jiart of the cargo is jettisoned to 
 save the remainder and the ship, the innocent 
 owners of cargo jettisoned for the common good 
 are not disahled from recovering a general contri- 
 bution by the circumstance that tlie necessity for 
 jettison was caused by the fault of the master ; but 
 in such case no contribution can be recovered by 
 the owners of the s\\i\). 
 
 Lord Watson in delivering the judgment of the 
 Judicial Committee of the Privy Council in Strang 
 V. Scott ^ after referring to the remarks of Brett, 
 M. R., in Burton v. English, ' said : " Whether the 
 rule ought to be regarded as matter of implied 
 contract, or as a canon of positive law resting upon 
 the dictates of natural justice, is a question which 
 their Lordships do not consider it necessary to 
 determine. In jettison, the rights of those entitled 
 to contribution, and the corresponding obligations 
 of the contributors, have their origin in the fact 
 of a common danger Avliich threatens to destroy 
 the property of them all ; and these rights and 
 obligations are mutually perfected whenever the 
 goods of some of the shippers have been advisedly 
 sacrificed, and the property of the others has been 
 thereby preserved. 
 
 But the negligent navigation of the master cannot 
 
 ' L. K. li Aj.p. Cas. GOl. - L. 11. 12 Q. B. D. 21S. 
 
 50
 
 394 LEGAL EFFECT OF THE CLAUSES. 
 
 afford any pretext for depriving those shippers 
 "whose goods were jettisoned of their claim to a 
 general contribution. They were not privy to the 
 master's fault, and were under no duty, legal or 
 moral, to make a gratuitous sacrifice of their goods, 
 for the sake of others, in order to avert the conse- 
 quence of his fault. The Ehodian law, which in 
 that respect is the law of England, bases the right 
 of contribution not upon the causes of the danger 
 to the ship and cargo, but upon its actual presence. 
 The owners of goods thrown overboard having been 
 innocent of exposing the vessel and lier cargo to 
 the sea peril which necessitated jettison, their 
 equitable claim to be indemnified for the loss of 
 their goods is just as strong as if the peril had been 
 wholly due to the action of the winds and weaves. 
 
 Where the goods jettisoned have been insured, 
 the owner of the same need not, before resorting to 
 his remedy under the policy, recover his contribution 
 from the shipowner and owners of the cargo saved, 
 but may at once proceed to recover on the jiolicy 
 and subrogate the insurer into his rights. Thus, 
 where goods are insured, and jettison is one of the 
 risks insured against, the underwriters, in case of 
 a loss by jettison, are liable for the full insured 
 value of the goods, and not merely for the propor- 
 tion which the owner of the jettisoned goods would 
 have to contribute as his share in the general average 
 statement ; and the underwriter, after paying the 
 full amount, is entitled to use the name of the
 
 GENERAL AVERAGE. 395 
 
 assured to recover contribution from the owners of 
 the ship and cargo saved. In an action on a policy 
 in wliich jettison was one of the risks specifically 
 insured against, to recover the value of goods 
 jettisoned, the underwriters set up a custom of 
 London, that where goods are lost by jettison under 
 such circumstances as to constitute a general average 
 loss, the underwriters were liable only in respect of 
 such proportion of the loss as was cast upon the 
 owner of ilic goods in the general average state- 
 ment. It was held, that if the practice existed for 
 the owner of the jettisoned goods first to recover 
 contribution from the owners of the ship and cargo 
 saA'ed, it was only a practice for the convenience of 
 the parties, and not a binding custom.^ 
 
 " xUl loss which arises in ccmsenuence of extraor- t4enerai 
 
 ^ ^ Average. 
 
 dinary sacrifices made, or expenses incurred, for the 
 preservation of the ship and cargo, comes within 
 general average, and must be borne proportionably 
 by all who arc interested."^ 
 
 General average was thus defined in 1801 by 
 Mr. Justice Lawrence, and his definition has ever 
 since been adopted. 
 
 Lord Kingsdown, giving the judgment of the 
 Judicial Committee of the Privy Council in the case 
 ol' the " Galam,"^ says of general average, " It is a 
 
 • Dickenson v. Juidinc, L. R. 3 C. P. G39; 3 Asp. Mar. L. Ca. 12G. 
 
 - Birklcy v. Pre.s^ravo, 1 East. 220; Covington v. Roberts, 2 B. & P. (N.R.) 
 379; Job V. Langton, G E. & B. 779; Svendsen r. Wallace, L, R. 13 Q. B. 
 D. 73. 
 
 3 33 L. J. Adui. 102.
 
 396 
 
 LEGAL EFFECT OF THE CLAUSES. 
 
 Particular 
 Average. 
 
 Place and 
 time of 
 
 adjiist- 
 meat. 
 
 loss incurred for the general benefit of the ship and 
 cargo, to Avhich those who have received the benefit 
 are by law liable to contriljutc rateably." 
 
 If the danger is common and the thing is volun- 
 tarily sacrificed, it must be contributed for rateably.^ 
 
 A particular average loss differs from a general 
 average loss, both as to its cause and the mode of 
 its compensation. 
 
 All casual damage, proximately caused by the 
 perils insured against, as distinct from damage 
 purposely submitted to, or effected by, the agency 
 and will of man ; and all extraordinary expenses 
 (not falling within the head of wear and tear, &c.) 
 which are incurred for the sake of the ship alone, 
 or the cargo alone, as distinct from those incurred 
 for the joint benefit of both, are particular average 
 losses. 
 
 A particular average loss is, by the law of 
 England, such loss or damage as is accidentally and 
 proximately caused to the subject insured by the 
 perils insured against.^ 
 
 It has been laid down in Simonds v. White,"^ 
 " that there was one point upon which the laws of 
 all maritime states were agreed, namely, that the 
 place at which a general average should be adjusted 
 was the place of the ship's destination or delivery 
 of the cargo. All agreed likewise in holding that 
 
 ' Johnson v. Chapman, 35 L. J. C. P. 23. 
 ' Arnould on M. I., 6th ed. vol. 2., p. 927. 
 
 2 2B.&C. 805; Svensden r. Wallace, L. R. 10 App. C. 404; 51 L.J. 
 Q.B. 497.
 
 PLACE AND TIME OF ADJUSTMENT. 397 
 
 the master Avas not compcllahle to part Avitli llic 
 possession of the goods, nntil the sum contributahle 
 for them shoukl he either paid or secured to his 
 satisfaction," 
 
 The adjustment of a sreneral average at the port 
 of discharge, according to the law prevailing there, 
 is binding upon the shipowner and the merchant, as 
 they must he taken to liave assented to adjustment 
 being made at the usual and proper place, and, as a 
 consequence, according to the law of that place.^ 
 
 This rule only applies where the voyage is com- 
 pleted by the ship arriving with her cargo at the 
 port of destination; when this happens to be a 
 foreign port, the general average loss is adjusted 
 there, according to the law and usage of the country 
 to which such foreign port belongs ; and the adjust- 
 ment so made is called a foreign adjustment.^ 
 
 If, owing to sea peril, the voyage is broken up, 
 and the ship and cargo part company at some 
 intermediate point, a different rule is applicable.^ 
 
 Bovill, C. J., in giving judgment in the case of 
 P] etcher Z7. Alexander,* said, " that although in general 
 the port of destination was the proper place for 
 adjusting a general average, yet, ^\hQn the voyage 
 Avas broken up, and the adventure brought to an 
 end at some other place, the average should be 
 adjusted there, and by the law which there pre- 
 vailed." 
 
 • Llovd V. Guibert, L. K. 1 Q. B. 12G ; Arnould on JI. I. Gth cd. vol. 2., 
 p. 910." 
 
 * Arnould on M. I. vol. 2 , p. 910. » Lowndes on G. A. 4tb ed. 251. 
 
 « L. R. 3 C. P. 375.
 
 398 LEGAL EFFECT OF THE CLAUSES. 
 
 The mere temporary suspension of the voyage hy 
 reason of the necessity of repairing the ship at a 
 port of refuge docs not as between the shipowner 
 and tiie owner of cargo, warrant an average adjust- 
 ment at the intermediate port.^ 
 ^"raulbilf-^^ " When cargo is transhipped, and forwarded in 
 ^^^^' another bottom, w'hen the original ship is not 
 
 repaired, a question may arise under three diiferent 
 forms ; and this raises complications, not dealt with 
 in Hill V. Wilson,^ and indeed not as yet, I believe, 
 dealt with in our Courts. 
 
 " Eirst, the cargo may be forwarded to its destina- 
 tion under the original contract, in order that the 
 shipowner may earn his freight under the bill of 
 lading or charter-party, he himself bearing the cost 
 of forwarding. Secondly, the cargo may be for- 
 warded by the master, under his power of agency 
 for the owner of the cargo, at a rate of freight 
 exceeding that by the original contract. In such 
 a case, the cargo is forwarded at the expense oE 
 the merchant ; but still, if the new bill of lading is 
 made out in the name of the master and consigned 
 to his agent, the cargo may continue subject to the 
 sliipoAvner's lien for general average. Thirdly, the 
 cargo may be forwarded to its destination by or on 
 behalf of the merchant, and without retention of 
 the shipowner's right of lien. 
 Cage I _ " In the first of these cases, it can hardly be said 
 
 Sf warded that tlic voyagc is broken up. There is simply the 
 
 cont'rac^t!^^'""^ > Hill v. Wilson, L. R. 4 C. P. D. 329. 
 
 ^ Ibid.
 
 PLACE AND TIME OF ADJUSTMENT. 399 
 
 substitution by tlio shipowner of one bottom for 
 another : a substitution Avhich, under such circum- 
 stances, he has a legal riglit to make : the contract, 
 and therefore the adventure Avliich is constituted by 
 it, still subsists : all rights under it, and amongst 
 the rest the right of lien for, and recovery of, 
 general average on delivery of the cargo to the 
 consignee, still remain in force. In this case, there- 
 fore, it is conceived that the proper time and place 
 for adjustment is the delivery of the cargo at the 
 port of destination. 
 
 " The second case is not so clear. We must take cargo"""* 
 it that the shipowner is not bound to tranship. He u"JdL'"sb?p- 
 has the right, then, apparently, to put in force his ^^'"^^"^ ^ 'i^°- 
 lien on the cargo for general average, at once, at 
 the place where the ship is wrecked. It is at this 
 time and place, therefore, that the cargo becomes 
 liable for general average. The amoimt of its 
 liability must consequent!}^ be determined by the 
 state of facts Avhich then exists. Suppose the cargo 
 to consist of tAvo or more portions, belonging to 
 different owners, the liability of one portion cannot, 
 after it has once thus attached to it, be increased 
 by reason of the subsequent loss of another portion. 
 Ilence, if these portions be transhipped to their 
 destination in two vessels, one of which is lost before 
 arrival, that circumstance ought not to augment 
 the contribution of the portion which arrives in the 
 other. If, for example, A.'s goods and B.'s goods 
 arc of equal value at the place of wreck, so that,
 
 400 LEGAL EFFECT OF THE CLAUSES. 
 
 if the average were adjusted on the spot, A. and B. 
 would each pay one-half of the cargo's share of the 
 general average expenditure, then, since this 
 liability attached to each owner at the time of the 
 wreck, A. cannot be made to pay the whole l)ecause 
 E.'s goods are lost on the way home. 
 
 " If this is sound, it follows that in this second case 
 the general average must be adjusted upon the state 
 of facts as existing at the time of wreck or condem- 
 nation, and upon the values at that time and 
 place. It does not follow, however, that the law of 
 that place is that which ought to govern the 
 adjustment. The shipowner has elected, as he has 
 a perfect right to do, to follow the goods with his 
 lien to the place of destination, and to make his claim 
 there. Tlie law of the place where he makes his claim 
 is that which, it would seem, should determine the 
 amount. 
 Cases— " III tliG third case it is otherwise. The forwarding 
 
 ior^^rded by of tlic cargo by tlic mcrcliant or his agent is here 
 cargo owner. .^ ^^ scnsc douc for the benefit of the shipowner : 
 it is a matter with which he has no concern. So 
 far as regards him, the voyage is absolutely broken 
 up at the place of wreck; and, this being so, 
 Pletcher v. Alexander,^ directly establishes that the 
 place of wreck, at any rate if it is the port of 
 loading, is the proper place of adjustment. An 
 adjustment correctly made at that place, according 
 to the law there in force, and based on the state of 
 
 1 L. 11. 3 C. p. 375.
 
 Place a^d time of adjustment. 401 
 
 facts and values at tlic time of ^vreel', mi^lit l)e 
 enforced hy the sliipowner before parting -with the 
 cargo. Such an adjustment, therefore, furnishes 
 the correct basis for a settlement."^ 
 
 Where a hill of lading, hy which the shipowner 
 undertook to deliver the goods at a port to a railway 
 company, to hel)y them cari-ied inland and delivered 
 to the consignees, contained an exception, " that the 
 shipowner or railway company are not to l)e liahle 
 for any damage to any goods which is capable of 
 being covered by insurance, or for any claim, notice 
 of which is not given before the removal of the 
 o-oods." On the vovage a fire broke out, and the 
 cargo was damaged by the admission of water to 
 extinguish the fire. The ship put back, and the 
 shipowners deliA'ered the cargo up without taking 
 security from any of the cargo owners, or taking any 
 step for procuring an adjustment of general average. 
 It was held, that the shipowners were not exempted 
 from contribution to general average by the clauses 
 in the bill of lading ; and also, that they were liable 
 to an action by a shipper of goods for neglecting to 
 take the necessary steps for procuring an adjustment 
 of the general average, and securing its payment : 
 Lush; J., observing " The exceptions relied upon 
 by the defendants in the bill of lading must be 
 construed to have reference to, and to qualify their 
 liability as carriers. The office of the bill of lading 
 is to provide for the riglits and lial)ilities of the 
 
 1 Lowndes ou G. A. -lih ed., i". 2oG.
 
 402 LEGAL EFFECT OF THE CLAUSES. 
 
 parties in reference to the contract to carry, and is 
 not concerned with liahilities to contribution in 
 general averanje, and unless the contrary appears, the 
 Avords used must he so construed. The argument 
 receives additional force in the present case from the 
 fact that, in the clause in question, the carriage on 
 board the ship and the carriage by railway, are linked 
 together. Goods may be damaged in their transit in 
 ship or on the railway, but general average contri- 
 bution can only arise in respect of damage on ship. 
 Is a shipowner bound to exercise the power he is 
 invested Avith when a general average loss has arisen, 
 and to afford the means in his power for adjusting 
 the average claims and liabilities, and secure their 
 payment to the parties entitled ? It seems strange 
 that such a point has not been formally decided in 
 this country. It has been decided in America, and 
 in favour of the shijipers. I am not a^vare that it 
 has ever been judicially questioned here ; and I can 
 only account for the absence of direct authority by 
 supposing that the universal practice has been 
 accepted as proof of the obligation. It is clear that 
 the shipowner has a lien for general average on the 
 whole of the cargo liable to contribution, and can 
 require, before lie parts with it, security for its due 
 payment. In early times the master, when he had 
 jettisoned part of the cargo to save the whole adven- 
 ture, took and rendered contribution in kind. The 
 ordinary course now is, and has been for a very long 
 time, for the shipowner to require, before he delivers
 
 SECURITY FOR AVERAGE COXTRTBUTTOX, 403 
 
 the cargo, an average l)ond or agreement for the 
 payment ol" -what shall he found due from each 
 shipper for his proportion of the loss. lie is the only 
 person who has the power to require security. The 
 right to detain for average contrihution is derived 
 from the civil law, which also imposes on the master 
 of the ship the duty of having the contrihution settled, 
 and of collecting the amount; and the usage has 
 always heen suhstantially in accordance with this laAV, 
 and has become part of the common laAV of the land. 
 I am therefore of opinion, that the hill of lading does 
 not exempt the shipowner from contrihution to a 
 general average loss ; and, secondly, that he is liable to 
 this action, for not having taken the necessary steps 
 for procuring an adjustment of the general average, 
 and securing its payment." ^ 
 
 A shipowner who has a lien on cargo in respect Security for 
 of a general average contribution, may msist upon coutribution. 
 payment in money from the consignee, and is not 
 bound to take security before delivery of the goods; 
 but the consignee, if the shipowner has demanded 
 payment before delivery of the goods, must either 
 pay the amount demanded, or at his own risk tender 
 the right amount of his contribution, and to ascer- 
 tain this he is entitled to proper information from 
 the shipowner as to the value of the ship or other 
 consignments. AVhcre no question of tender is 
 raised, but the shipowner insists upon security being 
 given, the question is whether the terms imposed 
 are reasonable. 
 
 » Crookes r. Allen, L. R. 5 Q. B. D. 38 ; 19 L. J. Q. 15. 201.
 
 404 LEGAL EFFECT OF THE CLAUSES. 
 
 A shipowner who had a lien on cargo in respect 
 of general average loss which had been incurred, 
 refused to deliver the same to the consignees unless 
 they either signed a form of bond known as a 
 Liverpool bond, or made a deposit for ten per cent, 
 on the estimated value of the goods in the joint 
 names of the representative of the shipowner and 
 an average adjuster appointed by the shipow^ner, or 
 in the name of the shipowner alone, or in that of 
 the average adjuster alone. The object of the 
 deposit w^as to enable the shipow' ner from time to 
 time to draw for his disbursements. The bond in 
 question provided that a deposit should be made 
 by the consignees in the names of the representa- 
 tive of the shipowner and the average adjuster, and 
 that out of such deposit payments might be made 
 by the parties in whose names it stood to the ship- 
 owner for disbursements and other charges in respect 
 of general average, and that if any question arose 
 an arbitrator should be appointed by the parties to 
 the bond whose decision should be binding : — Ileld, 
 that the consignees were entitled to recover a 
 deposit made under protest, inasmuch as the terms 
 imposed in respect to the deposit were unreasonable. 
 Held also, that the terms sought to be imposed by 
 the bond were unreasonable.^ 
 
 The method and principle under Avliich certain 
 average losses, were formerly adjusted appeared to 
 have been fii-mly established by long usage and the 
 
 » Ilutli V. Lamport, L. R. IG Q. B. D. 112, 735 ; 55 L. J. Q. B. 239.
 
 SECURTTY FOR AVERAGE COXTRTBUTIOX. 405 
 
 recognized practice of average adjusters until tlic 
 decision of the Court of Queen's Bench in isso, in 
 Atwood V. SeUar/ and tliat of thellouse of Lords in 
 1885, in Svendsen r. AVallace. - It is not necessary 
 for the object of this Avork to refer to tliese cases 
 further than to point out the result uhich follow ed 
 these decisions as stated in Abbott on Shipping.'' 
 
 " The Association of Average Adjusters, however, j^emg of 
 instead of leaving each item of each case to be port Trefuire 
 dealt with by individual average adjusters, accord- pcneraf 
 ing to Avhat such individual considers to be the 
 principle, have laid down two rules of practice, 
 embodying the actual decisions in Atwood v. 
 Sellar^ and Svendsen r. Wallace.® There can be no 
 doubt the Association has adopted a course which is 
 beneficial to the parties concerned, for, if they had 
 left each item to be squabbled over, it would have 
 necessarily resulted in frequent resorts to ex- 
 pensive litigation, while the daily Avork of the 
 members of the Association Avould soon bring to 
 their notice any serious defect in the rules. If 
 these rules ever come to be tested in a court of law, 
 there is no doubt due Aveight aaIU be given to the 
 fact that tliey liaA^e been adopted by the only men 
 Avho have any practical experience on the subject. 
 
 The rules are as follows : — x, , . 
 
 Rule-: of 
 That when a ship puts into a port of refuge in consequence of Association of 
 
 damage which is itself the subject of general average, and sails ^jl^^t;!',.^^ 
 
 ' L. R. 5 Q. B. D. 286; 49 L. J. Q. B. '.15. 
 "- L. R. 10 App. Cas. 404 ; 53 L. J. Q. B. 385. => 13tli cd., p. G39. 
 
 « L. K. 5 g. B. D. 28j. ' L. R 10 App. Cas. 404.
 
 406 LEGAL EFFECT OF THE CLAUSES. 
 
 tlience witli lier original cargo, or a part of it, the outward as well 
 as tlic inward port charges shall be treated as general average; 
 and when the cargo is discharged for the purpose of repairing such 
 damage, the warehouse rent, and reloading of the same, shall, as 
 Avell as the discharge, be treated as general average. {See Atwood 
 V. Sellar.) 
 
 That when a ship puts into a port of refuge in consequence of 
 damage, which is itself the subject of particular average (or not of 
 general average), and when the cargo has been discharged in conse- 
 quence of such damage, the inward port charges, and the cost of 
 discharging the cargo, shall be general average, the warehouse rent 
 of cargo shall be particular average on cargo, and the cost of re- 
 loading, and outward port charges, shall be a particular charge on 
 freight. {See Svendsen v. Wallace.) 
 
 Avpragp to be I^ is Rot uiiusiial to fiiicl in many bills of lading 
 according to a clausc tliat general average is to be adjusted 
 York^-Antwerp ^^^.^ording to the Yorlv- Antwerp Pailes, and where this 
 clause is inserted in the bill of lading any adjust- 
 ment of general average affecting the goods men- 
 tioned in the bill of lading would under this contract 
 have to be made in accordance with these rules. 
 But where there are several consignees and several 
 bills of lading some of which do not contain the 
 above clause, then as regards the goods covered by 
 the latter the adjustment will be made in confor- 
 mity with the law of Great Britain, whilst those 
 goods covered by tlie clause will be governed by the 
 York-Antwerp rules. These arc a body of rules 
 Avhich were the results of a series of International 
 General Average Congresses (the last of which met 
 at York in 1864), adopted with slight modifications 
 bv the Society for the Beform and Codification of 
 the Law of Nation^, at a Conference held at
 
 YOIiK-ANTWEllP IIULEH. 107 
 
 Antwerp in 1877. Tliey -were rc-considcrcd, in 
 1890, at Liverpool, at a Conference of the al)ovc 
 Society ; and a new body of rules, based on the 
 former, but containing important alterations and 
 additions, "vvas then agreed ujoon. These rules are 
 known as the York- Antwerp Ptules, 1890. 
 
 Rule I. — Jettison of Deck Cargo. 
 
 No jettison of (lock ca]"go shall be made good as general 
 average. * 
 
 Every structure not built in with the frame of the vessel shall be 
 considered to be a part ot the deck of the vessel. 
 
 Rule II. — Damage by Jettison and Sacrifice for the 
 Common Safety. 
 
 Damage done to a ship and cargo, or either of them, by or in 
 consequence of a sacrifice made for the common safety, and by 
 water which goes down a shijj's hatches opened, or other opening 
 made for the purpose of making a jettison for the common safety, 
 shall be made good as general average. 
 
 Rule III. — Extinguishing Fire on Shipboard. 
 
 Damage done to a ship and cargo, or either of them, by water 
 or otherwise, including damage by beaching or scuttling a burning 
 ship, in extinguishing a fire on board the ship, shall be made good 
 as general average ; except that no compensation shall be made for 
 damage to such poi-tions of the ship and bulk cargo, or to such 
 sepai'ate packages of cargo, as have been on fire. 
 
 Rule IY. — Cutting away Wreck. 
 
 Loss or damage caused by cutting away the wreck or remains of 
 spars, or of other things which have previously been carried away 
 by sea-peril, shall not be made good as general average. 
 
 Rule Y. — Yoluntary Stranding. 
 
 When a ship is intentionally run on shore, and the circumstances 
 are such that if that course were not adopted she would inevitably 
 sink, or drive on shore or on rocks, no loss or damage caused to
 
 408 LEGAL EFFECT OF THE CLAUSES. 
 
 tlie ship, cargo, and freiglit, or any of tbem, by sucli intentional 
 running on sliorc, shall be made good as general average. But in 
 all other cases where a ship is intentionally run on shore for the 
 common safety, the consequent loss or "damage shall be allowed as 
 general average. 
 
 Rule VI. — Carrying Press of Sail — Damage to or 
 Loss OF Sails. 
 
 Damage to or loss of sails and sj)ars, or either of them, caused 
 by forcing a ship off the ground or by driving her higher up the 
 ground, for the common safety, shall be made good as general 
 average; but where'.a ship is afloat, no loss or damage caused to the 
 ship, cargo, and freight, or any of them, by carrying a press of 
 sail, shall be made good as general average. 
 
 Rule VII. — Damage to Engines in Refloating a Ship. 
 
 Damage caused to machinery and boilers of a ship, Avliich is 
 ashore and in a position of peril, in endeavouring to refloat, shall 
 be allowed in general average, when shown to have arisen from an 
 actual intention to float the ship for the common safety at the risk 
 of such damage. 
 
 Rule VIII. — Expenses of LiGHTENiNis a Ship when 
 Ashore, and Consequent Damage. 
 
 When a ship is ashoi'C, and, in order to float her, cargo, bunker 
 coals, and ship's stores, or any of them, are discharged, the extra 
 cost of lightening, lighter hire, and re-shipping (if incurred,) and 
 the loss or damage sustained thereby, shall be admitted as general 
 average. 
 
 Rule IX. — Cargo, Ship's Materials, and Stores 
 Burnt for Fuel. 
 
 Cargo, ship's materials, and stores, or any of them, necessarily 
 burnt for fuel for the common safety at a time of peril, shall be 
 admitted as general average, when and only when an ample supply 
 of fuel had been provided ; but the estimated quantity of coals that 
 would have been consumed, calculated at the price cui-rent at the 
 ship's last port of departure at the date of her leaving, shall be 
 charged to the shipowner and credited to the general average.
 
 YORK-ANTWERP RULES. 409 
 
 Rule X. — Expenses at Poet of Refuge, Ac. 
 
 (rt.) — "When a ship shall have entered a port or place of refuge, 
 or shall have returned to her port or place of loading, in consequence 
 of accident, sacrifice, or other extraordinary eircumstancos, which 
 render that necessary for the common safety, the expenses of 
 entering such port or place shall be admitted as general average, 
 and when she shall have sailed thence with her original cargo, or a 
 part of it, the corresponding expenses of leaving such port or place 
 consequent upon such entry or return, shall likewise be admitted 
 as general average. 
 
 (h.) — The cost of discharging cargo from a ship, whether at a 
 port or place of loading, call, or refuge, shall be admitted as 
 general average, when the discharge was necessavy for the common 
 safety or to enable damage to the ship, caused by sacrifice or 
 accident during the voyage, to be repaired, if the repairs were 
 necessary for the safe prosecution of the voyage. 
 
 (c.) — "Whenever the cost of discharging cargo from a ship is 
 admissible as general average, the cost of reloading and storing 
 such cargo on board the said ship, together with all storage charges 
 on such cargo, shall likewise be so admitted. But when the ship 
 is condemned or does not proceed on her original voyage, no 
 storage expenses incurred after the date of the ship's condemnation 
 or of the abandonment of the voyage shall be adfuittcd as general 
 
 (d.) — If a ship under average be in a port or place at which it is 
 practicable to repair her, so as to enable her to carry on the whole 
 cargo, and if, in order to save expenses, either she is towed thence 
 to some other port or place of repair or to her destination, or the 
 cargo or a portion of it is transhipped by another ship, or other- 
 wise forwarded, then the extra cost of such towage, transhipment, 
 and fox-warding, or any of them (up to the amount of the extra 
 expense saved) shall bo payable by the several parties to the adven- 
 ture in proportion to the extraordinary expense saved. 
 
 Rule XI. — "Wages and Maintenance of Crew in Port 
 OF Refuge, &c. 
 
 "When a ship shall have entered or been detained in any port or 
 place under the circumstances, or for the purposes of the repairs, 
 52
 
 410 LEGAL EFFECT OF THE CLAUSES. 
 
 mentioned in Rule X., the wages payable to the master, officers, 
 and crew, together with the cost of maintenance of the same 
 during the extra period of detention in siich port or place until 
 the ship shall or should have been made ready to proceed upon her 
 voyage, shall be admitted as general average. But when the ship 
 is condemned or does not proceed on her original voyage, the wages 
 and maintenance of the master, officers, and crew, incurred after 
 the date of the ship's condemnation or of the abandonment of the 
 voyage, shall not be admitted as general average. 
 
 Rule XII.— Damage to Cargo in Discharging, &c. 
 
 Damage done to or loss of cargo necessarily caused in the act 
 of discharging, storing, re-loading, and stowing, shall be made 
 good as general average, when and only when the cost of those 
 measures respectively is admitted as general average. 
 
 Rule XIII.— Deductions from Cost of Repairs. 
 
 In adjusting claims for general average, repairs to be allowed in 
 general average shall be subject to the following deductions in 
 respect of " new for old," viz. : — 
 
 In the case of iron or steel ships, from date of original register 
 o the date of accident, — 
 
 TT 1 xr C All repairs to be allowed in full, except 
 
 Up to 1 Year old. \ ^.^ij^tin^ ^^, coating of bottom, from which 
 
 ^ ^^ (, one-third is to be deducted. 
 
 f One-third to be deducted off repairs to and 
 
 renewal of wood-work of hull, masts and sjiars, 
 
 furniture, upholstery, crockery, metal and 
 
 glassware, also sails, rigging, ropes, sheets. 
 
 Between imd hawsers (other than wire and chain), 
 
 1 AND 3 Years. ■{ awnings, covers, and painting. 
 
 (B.) One-sixth to be deducted off wire rigging, 
 
 wire ropes and wire hawsers, chain cables and 
 
 chains, donkey engines, steam winches^ and 
 
 connexions, steam cranes and connexions; 
 
 l^other repairs in full. 
 
 -o r Deductions as above under clause B, except 
 
 Between V ^^^.^^ one-sixth be deducted oif iron work of 
 
 d AND b Years, ■j ^^yg^.^ .^j^^^ ^^.^^s, and machinery (inclusive 
 
 ^ ' V of boilers and their mountings.)
 
 YORK-ANTWERP RULES. 
 
 411 
 
 Between 
 G AND 10 Years. 
 
 Between 
 
 10 and 15 Years. 
 
 (E.) 
 
 Over 15 Years. 
 
 (F.) 
 
 r Declnctions as aljovo nudor clansff C, except 
 [ that ouc-tliird be deductod oli" iron-work of 
 J masts and spars, repairs to and renewal of 
 ] all niacliinery (inclusive of boilers and their 
 mounting's,) and all hawsers, ropes, sheets, 
 Uiitl rigging. 
 
 One-third to be deducted off all repairs and 
 renewals, except iron-work of hull and cement- 
 ing and chain cables, from which one-sixth 
 
 I to he deducted. Anchors to be allowed in 
 
 Lfull. 
 
 One-third to be deducted off all repairs and 
 renewals. Anchors to be allowed in full. 
 One-sixth to bo deducted off chain cables. 
 
 Generally. 
 
 f The deductions (except as to provisions and 
 stores, machinery, and boilers) to be regula- 
 ted by the age of the ship, and not the age of 
 the partieuiar part of her to which they 
 apply. No painting bottom to be allowed if 
 •{ the bottom has not been painted within six 
 months previous to the date of accident. No 
 deduction to be made in respect of pld 
 material which is repaired without being 
 replaced by new, and provisions and stores 
 ^which have not been in use. 
 
 In the case of wooden oi- composite ships : — 
 
 When a ship is under one year old from date of original register, 
 at the time of accident, no deduction new for old shall be made, 
 after that period a deduction of one-third shall be made, with the 
 
 following exceptions : — 
 
 Anchors shall be allowed in full. Chain cables shall be subject 
 to a deduction of one-sixth only. 
 
 No deduction shall be made in respect of provisions and stores 
 which had not been in use. 
 
 Metal sheathing shall be dealt with, liy allowing in full the cost 
 of a weight equal to the gross weight of metal sheathing stripped 
 off, minus the proceeds of the old metal, nails, felt, and labour 
 metalling are subject to a deduction of one-third. 
 
 In the case of ships generally : — 
 
 In the case of all ships, the expense of straightening bent
 
 412 LEGAL EFFECT OF TEE CLAUSES. 
 
 ironwoT-k, including labour of taking out and replacing it, sliall be 
 allowed in fixll. 
 
 Graving dock duos, including expenses of removals, cartages, use 
 of shears, stages, and graving dock materials, sliall be allowed in 
 full. 
 
 HuLE XIV. — Tempokaey Repairs. 
 
 No deductions " new for old " shall be made from the cost of 
 • temporary repairs of damage allowable as general average. 
 
 Rule XV. — Loss op Freight. 
 
 Loss of freight arising from damage to or loss of cargo shall be 
 made good as general average, either when caused by a general 
 average act, or when the damage to or loss of cargo is so made good. 
 
 Rule XVI. — Amount to be made good for Cargo lost 
 
 OR DAMAGED BY SACRIFICE. 
 
 The amount to be made good as general average for damage or 
 loss of goods sacrificed shall be the loss which the owner of the 
 goods has sustained thereby, based on the market values at the 
 date of the arrival of the vessel or at the termination of the adven- 
 ture. 
 
 Rule XVIL— Contributory Values. 
 
 The contribution to a general average shall be made upon the 
 actual values of the pi'operty at the termination of the adventure, 
 to which shall be added the amount made good as general average 
 for property sacrificed; deduction being made from the shipowner's 
 freight and passage money at risk, of such port charges and crew's 
 wages as would not have been incuiTed had the ship and cargo 
 been totally lost at the date of the general average act or sacrifice, 
 and have not been allowed as general average ; deduction being 
 also made from the value of the property of all charges incurred 
 in respect thereof 'Subsequently to the general average act except 
 such charges as are allowed in general average. 
 
 Passengers' luggage and personal effects, not shipped under bill 
 of lading, shall not contribute to general average. 
 
 Rule XVIII. — Adjustment. 
 
 Except as provided in the foregoing rules, the adjustment shall
 
 I 
 
 be drawn np in accordance with tlie law and practice tliat would 
 Lave governed the adjustment had the contract of aifreightiuent 
 not contained a clause to jjay general average according to these 
 rules. 
 
 -^ The shipowner, being /)?'«;«r^/rtci^ in the nature of "T^iits" 
 a common carrier, is responsihle for all injuries to 
 tiie cargo, unless specially exempted hy the contract 
 under ^^■hich it is carried ; he will therefore be liable 
 for all loss which may be occasioned to the goods l)y 
 rats or vermin, unless the bill of lading limits his 
 liability in this respect, as it has been held that such 
 losses are not covered by any one of the ordinary risks 
 or exceptions, such as dangers or perils of the sea, this 
 being a kind of destruction not joeculiar to 
 navigation, but to which commodities are liable on 
 land or in warehouses ; the presence of cats on board 
 and other precautions to prevent injury from rats 
 being insufficient to protect the shipowner. 
 
 This view, however, is contrary to the opinions 
 which have been expressed by foreign jurists.^ 
 
 "Where the barque " Carlotta " sailed under charter 
 
 from Ne\v York to Barcelona ^\itli a cargo of 
 
 petroleum, from Avhence she Avas to return A\i(li 
 
 fruit ; on arrival and discharge at Earcelona slie was 
 
 fumigated for the purpose of removing the scent of 
 
 petroleum, and also of killing any rats; she tlien 
 
 took on board a cargo of almonds and other fruits, 
 
 and proceeded on her return voyage. After Ijcing 
 at sea some days rats were noticed on board, and on 
 
 ' Laveroni v. Drury, 22 L. J. Ex. 2; Kay r. Whcolcr, L R. 2 C. P. 302; 
 nimter v. Potts, 4 Ciunp. 203; llohl v. Parr, 1 Esp. -tlu ; Dale v. Hull, 
 1 \Vils. 282.
 
 414 LEGAL EFFECT OF THE CLAUSES. 
 
 discharge of tlic cargo at New York, some of the 
 bags of almonds Avcre found to have been gnawed by 
 rats. The vessel had on board on the voyage a cat, 
 and also a rat terrier. The bills of lading making 
 the almonds deliverable to G. and A., contained no 
 exception of damage by rats. G. and A. sold the 
 almonds before arrival for a sound price, which had 
 been paid them in full, and had applied to and 
 received from Government a rebate of duties on the 
 almonds, by reason of their damaged condition. In 
 an action against G. and A. to recover the charter 
 money, the damage by rats was set up as one 
 of the defences, and it was held, that though the 
 charter-party contained no provision for the giving 
 of bills of lading, these latter must be taken to be 
 the contract between the parties so far as the damage 
 by rats was concerned. That such damage was 
 not a peril of the sea, and it did not appear that the 
 damage by rats was a thing against which it was 
 impossil)le to guard. And that G. and A. wore 
 - entitled to recover for the damage to the almonds, 
 notwithstanding their sale of them before arrival, but 
 that they must give credit for any rebate of duties 
 they had received by reason of such damage.^ 
 
 In the case of the " Miletus," ^ which was referred 
 to in the above case, it was held by Justice Nelson 
 " that damage occasioned by vermin on board of a 
 ship, to a cargo in the course of a voyage is not 
 
 1 The Barque " Carlolta," Bliss v. Gomez, 3 Asp. Mar. L. Ca. N- S. 456. 
 =^5Blatclif. C. C. E. 335,
 
 ''RATS.'' "VERMINr 115 
 
 the result of a peril of the sea, or of any of the 
 clangers or accidents of navigation, Avithiu an 
 exception to that cifect in a hill of lading, hut arc 
 damages for uhicli the ship and its OAvners are liahle, 
 as insurers of the safe conveyance of the cargo." In 
 tliis case the lahels pasted on the outside of the mats 
 -which enclosed chests of tea, had heen eaten hy 
 cockroaches, and thus emharrassed tlie assortment 
 and delivery of the hoxes and depreciated the market 
 A^aliie of the same. 
 
 In the case of Hamilton, Fraser and Co., v. 
 Pandorf and Co.,^ a cargo of rice was shipped on 
 hoard the defendants ' vessel, under a charter-party 
 and hills of lading. Both in the charter-party and 
 in the hills of lading " dangers and accidents of the 
 seas" Averc excepted perils. During the voyage 
 rats gnawed a hole through a ])i\)e connected with 
 a hath-room, and sea- water passing through the 
 hole damaged the cargo. All reasonahle precau- 
 tions had heen taken hy the defendants, hoth during 
 the shipment of the cargo and during the voyage, 
 to keep down the rats : — It Avas held hy the House 
 of Lords, that the proximate ctiuse of the loss was 
 the incursion of the sea, that such incursion Avas a 
 danger or accident of the seas Avithin the excej^tions 
 in the charter-party and hills of lading, and that 
 inasmuch as it A^'as not due to any negligence of 
 the defendants the plaintiifs could not recover. 
 
 There is no rule Avhich lays doAvn that coal may j£*J^V 
 
 1 L. K. 12 App. Cus. 518 ; 57 L. J. Q. B. 21.
 
 41G LEGAL EFFECT OF THE CLAUSES. 
 
 be used as clunnage. Therefore, tliougli it may be 
 by no means an uncommon practice in certain 
 trades to stow beer amongst coals, still, if the master 
 does so in such a way as to injure or damage cargo, 
 lie will bo liable. Lord Tenterden having laid it 
 down, that it is the general duty of the Captain to 
 stow and arrange the different items of his cargo so 
 as they shall not be damaged, either by the motion or 
 leakage of the ship, or by bad weather. ^ 
 
 Thus, where fifty-one hogsheads of beer, out of a 
 consignment of three hundred, were damaged by the 
 porous vent pegs being caked over by coal dust, the 
 hogsheads having been stowed amongst and covered 
 over by coals, whereby the escape of the carbonic 
 acid gas was rendered impossible, and the beer in 
 consequence was damaged; the Court held, that though 
 this mode of stowage was not uncommon, still it did 
 not follow thatif any damage resulted from that mode 
 of stowage, the master would not be liable ; and it 
 appearing that the damage was the result of this 
 method of stowage, the master was held liable. ^ 
 
 In many trades in which coal is carried along with 
 other goods, it is common for the shipowners to 
 provide against this responsibility by the insertion 
 in the bill of lading of a special clause exempting 
 them from any liability arising from coal dust. 
 
 In Mackili v. Wright^ the owners, by the charter, 
 guaranteed that the vessel should " carry not less 
 than 2,000 tons dead weight of cargo." The cargo 
 
 1 Abbott on Sh. 13th cd., p. 391. - Allsopp v. Thomas, Com. Ca. 396. 
 ' L. R. Ik App. Gas. 108.
 
 " NOT ACCOUNTABLE FOR SHORT DELIVERY:' 117 
 
 was macliincry and coal, but so mucli macliinery 
 of a larj^c size was sliippccl that, with that cargo, 
 the 2,000 tons could not be carried unless the coal 
 was stowed among the machinery. The charterers 
 contended, without effect, that it was the duty of 
 the shipowners to obtain permission from the 
 owners oC the coal and machinery to stow them 
 together. Lord Watson said: — " When coals are 
 stowed along with machinery not much harm is 
 dnne to the latter, but the damage to the coals may 
 be considerable ; that the evidence showed that 
 coals are frequently stowed in that manner by 
 special arrangement between the parties interested 
 in ship and cargo ; and that in such cases it is usual 
 for the shipowner to allow a deduction from the 
 freight oC the coals, varying from 2^. to 3s. per ton, 
 in order to cover damages. It is in vain to repre- 
 sent a practice of that kind, depending upon special 
 agreement, as constituting a proper mercantile 
 custom, and upon this point I agree with the 
 learned judges in both courts below, who were all 
 of opinion that loading coals amongst machinery is 
 improper stowage." 
 
 The clause occasionally met with in bills of lading, " xot ac- 
 such as " not accountable for short delivery," is tor siu.it 
 taken to apply to cargo in bulk, or the difference 
 between the intake and the output. As regards 
 ^lackages, bales, bundles, and all cargo shipped by 
 number as distinguished from quantity, weight, or 
 
 measure, the condition would not defeat the claims 
 53
 
 418 LEGAL EFFECT OF THE CLAUSES. 
 
 of the bill of lading holders for non- delivery of 
 goods entrusted to the ship for conveyaLce. Eills of 
 lading are presented for signature usually after the 
 goods have been shipped ; and if these documents 
 are accepted by the shipper without protest, he will 
 be bound by the stipulations contained therein, 
 subject to special circumstances. These contracts 
 of affreightment, like agreements, are governed by 
 common law, and if the shipper has reason to believe 
 that goods have been abstracted from a package, he 
 should receive the same under protest. The remedy 
 for any deficiency being by action against the master 
 or owners of the ship, the master cannot be 
 compelled to keep a jmckage and -pay for its value. 
 As a package may be delivered in the same state in 
 which it was received, it would therefore be 
 necessary for the shipper to prove that it was 
 delivered in a different condition from that in which 
 it was shipped. 
 
 " Letters Letters of marque are commissions for reparation 
 
 Marque." to mercliants for extraordinary reprisals taken and 
 despoiled by strangers at sea, grantable by the 
 Secretaries of State with the approbation of the 
 Sovereign and Council and usually in time of war. 
 The words marque and reprisal are used as 
 synonymous terms, although tlie latter is strictly, 
 taking in return ; the former, passing the frontiers 
 in order to such taking. 
 
 These letters may be granted by the law of 
 nations, even during peace, wherever the subjects of
 
 <' LETTERS OF MARQUE:' 410 
 
 one state are oppressed and injured by those of 
 another, and justice is denied hy tliat state to which 
 the oppressor belongs, and Government chooses thus 
 to compel indemnification, Avithout necessarily 
 incurring the evils of general warfare. 
 
 The term itself is now, however, somewhat 
 differently applied. If, during war, a subject should 
 take an enemy's ship, without commission from 
 the Crown, the prize would, by the effect of 
 the prerogative, become a droit of Admiralty, and 
 would belong, not to the captor, but to the Crown. 
 Therefore, to encourage merchants and others to 
 fit out privateers or armed ships in time of Avar, 
 the Lords of the Admiralty were empowered by 
 various Acts of Parliament, and sometimes by 
 proclamation of the Sovereign in Council, to grant 
 commissions to the owners of such shij)s, and the 
 prizes captured by them were directed to be divided 
 between the owners and the captors and crews. But 
 the owners, before the commission was granted, 
 had to give security to the Admiralty to make 
 compensation for any violation of treaties between 
 those powers with whom the nation was at peace, 
 and that such armed ship should not be employed 
 in smus^Grlinor. These commissions are ordinarily 
 denominated letters of marque, in Avhich sense 
 alone the term is now accepted. On the IGth of 
 April 1856, the plenipotentiaries of Great Britain, 
 Austria, France, Prussia, Russia, Sardinia, and 
 Turkev assembled in Contrress at Paris, and signed
 
 420 ' LEGAL EFFECT OF THE CLAUSES. 
 
 a declaration, of whicli the first article was 
 " Privateering is and remains abolished." The 
 United States of America were invited to accede to 
 this declaration, but declined. 
 
 If a merchant ship, carrying letters of marque, 
 meets with an enemy whilst in the prosecution of 
 the voyage, she may engage in her own defence, 
 and prosecute the engagement to capture, even 
 though in so doing, she may be obliged to depart 
 from the direct course of the voyage^ ; also, if an 
 enemy comes across her course, she may attack 
 and take him from other motives than those of 
 self-defence, if the so doing does not involve any 
 departure from the direct course of the voyage.^ 
 
 The true principle appears to be, that no departure 
 from the usual course of the voyage, caused by re- 
 pelling a hostile force, or even attacking an enemy's 
 ship, will be held, under such circumstances, to 
 amount to deviation, provided what is done can 
 fairly be attributed to motives of self-defence. 
 And as the master would be warranted in so doing 
 vmder his letter of marque, the shipoAvner will not 
 be lialjle for the loss of the goods, in the event of 
 the vessel being lost, or captured, in consequence 
 of his having thus been engaged with the enemy; 
 but, if the vessel's departure from her regular 
 course is plainly attributable to the desire of j)rofit, 
 and done with a view to capture prizes for the sake 
 of gain, then the acts of the master being in excess 
 
 ' Arnonlcl on M. I., 6th cd., vol. 1, 288. 
 ^ Parr r. Anderson, 6 East. 202,
 
 '' COLLTSIOX:' 421 
 
 of the authority confeiTcd upon liim under the 
 letter of marque, the clause in the hill of lading 
 would not exonerate tlie shipowner from loss to the 
 cargo resulting from such acts. Thus if a merchant 
 ship cruises, i. e., lies hy, or departs from the 
 direct course of the voyage, in hopes of meeting 
 with prizes, this act would he unjustifiahle, and the 
 shipo'^iier will he responsible for all loss arising 
 therefrom. 
 
 The four possibilities under which the accident of "Collision. 
 a collision could arise have been clearly stated by 
 Lord Stowell, thus, " In the first place it may 
 happen without any blame being imputable to either 
 party, as where the loss is occasioned by a storm, or 
 any other vis majo?' and in that case, the misfortune 
 must be borne by the party on whom it happens to 
 light, the other party not being responsible to him 
 in any degree. Secondly, a misfortune of this Ivind 
 may arise where both parties are to blame ; where 
 there 1ms been a want of due diligence or skill on 
 both sides. In such a case, the rule of laAV is, that 
 the loss must be apportioned among them, as having 
 been occasioned by the fault of both. Thirdly, it 
 may happen by the misconduct of the suffering 
 party only ; and then the rule is, that the sufferer 
 must bear his own burden. Lastly, it may have 
 been the fault of the ship which run the other 
 down ; and, in this case, the injured party would be 
 entitled to an entire compensation from the other." ^ 
 
 ' The Wooarop, 2 Dods. Ad. Pop. 83,
 
 422 LEGAL EFFECT OF THE CLAUSES. 
 
 The mere liappening of a collision, without more, 
 is no evidence of negligence on the part of the ship 
 sued, and in order to fix such ship Avith the loss, it 
 is necessary for the party suing to give evidence of 
 the absence of reasonable care and maritime skill, 
 on the part of the crew of the ship sued/ 
 
 If there has been a departure from any important 
 rule of navigation, and the absence of observance 
 can by any possibility have contributed to a colli- 
 sion, the party in default cannot be excused.^ 
 
 Where a reasonable doubt exists as to the cause 
 of the collision, the Court will regard it as the 
 result of accident. And if cross actions are brought 
 to recover damage which was occasioned by inevi- 
 table accident, both actions will be dismissed.^ 
 
 Inevitable accident is such as could not have 
 been prevented by the exercise of ordinary care, 
 caution and maritime skill."* 
 
 The common carrier by water is, and always has 
 been, exempt by the common law from losses 
 occasioned by the natural accidents peculiar to the 
 sea ; therefore, the shipowner will not be responsible 
 for any loss, either to the ship, or cargo, arising 
 from collision where no l)lame is imputable to his 
 vessel, it being held that such losses come ^nthin 
 
 ^ The Mary Stewart, 2 W. Rob. 244 ; IlamTnack v. White, 31 L. J. C. P. 129 
 Scott V. The London Dock Co., 34 L. J. Ex. 220. 
 
 2 Tlic Aiklow, L. R. 9 App. Gas. 136; 53 L. J. P. C. 9. 
 
 » The Shannon, 1 W. Rob. 463 ; The Ebenczer, 2 W. Rob. 206. 
 
 * The Virgil, 2 W. Rob. 201 ; The Marpesia, L. R. 4 P. C. 212 ; The Pladda, 
 L. R. 2 P, D. 34 ; 46 L. J. Adm. 61.
 
 ''COLLISION'' i-l'i 
 
 the exempted clause in the hill of lading, " dangers 
 or perils of the sea." ^ 
 
 13iit a collision arising from the negligence of the 
 crew of the ship in whicli the goods are carried, is 
 not "a peril of the sea," within the meaning of an 
 exception of *' loss arising from perils of the sea," 
 in a hill of lading. The shipowner will therefore, in 
 such case, l)e liable to the shipper for loss or damage 
 to his goods resulting from such collision.^ 
 
 AYlierc an action was brought hy the owner of a 
 quantity of rice shipped on hoard the " None-Such," 
 which was lost, upon a hill of lading in the usual 
 form, " excepting the dangers of the sea," it was 
 held, that the collision was the result of negligence 
 in the management of one or both the vessels, and 
 tlic owners of the " None-Such" were in either case 
 liable to the shipper, further, that a collision which 
 would excuse the carrier must be such as could not 
 be avoided by human prudence and skill.' If the 
 carrier vessel is sunk by a collision, and the goods 
 are lost through the fault of those on l^oard, it is 
 no defence to an action by the OAvner of the goods 
 that the colliding vessel Avas also in fault.* 
 
 By Section 298 of the Merchant Shipping Act, 
 1851, the owner of a ship guilty of a breach of the 
 Admiralty regulations is disentitled from recovering 
 
 > Smith V. Scott, -i Taunt. 125; The Kathleen, L. K. 1 A. & E. 269; 43 
 L- J. Adm. 39. 
 
 - Grill I'. Tlic General Iron Screw Collier Co., L. K. 1 C. V. GOO ; 37 L. J. 
 C. r. 205. 
 
 3 Ang. oil Car., s. 113(3, ((.1. * Aug. uu Car., s. 106, n. (a.)
 
 421 LEGAL EFFECT OF THE CLAUSES. 
 
 in the Court of Admiralty any recompense whatever 
 for any damage sustained by such ship in such 
 collision, unless it is shown to the satisfaction of the 
 court, that the circumstances of the case made a 
 departure from the rule necessary. And it is now 
 settled that the owner of cargo lost by a collision, is 
 not in eaclem conditione with the owner of the vessel 
 as to their right to recover, for though both ships are 
 to blame, the owner of the cargo, not having any 
 control over the blameworthy master and mariners 
 of the vessel upon A\'hich his goods are carried, is 
 not to be considered as having any share in the 
 delictum, so as to be thereby disentitled to recover 
 either under the old law of the Admiralty, or under 
 Section 298 of the Merchant Shipping Act, 1854. 
 The owner of the cargo ought not to suffer for the 
 breach of the rule ; he is innocent, and the master, 
 who is the guilty party, is not his servant.^ 
 
 The owner of the ship himself aj)points the master, 
 and he desires the master to appoint and select the 
 crew ; the crew thus become appointed by the owner, 
 and are his servants for the management and govern- 
 ment of the ship, and if any damage happens through 
 their default, it is the same as if it happened through 
 the immediate default of the owner himself.^ The 
 owner of the cargo, in case of loss or injury to his 
 good_s by collision, has liis remedy by action, where 
 
 1 The Milan, 31 L. J. Adm. 105 ; approved in " The City of Manchester," 
 L. R. 5 P. D. 221 ; 49 L. J. Ad. 81. 
 
 "^ Laugher v. Pointer, 5 B. &C. 55i; Quarman v. Burnett, 9 L.J. Ex. 308; 
 6 M. & W. 499.
 
 "COLLTSIOXr' l2o 
 
 l)otli vessels are in fault, against citlierone or Lotli; 
 but he cannot recover, il' he proceeds against one 
 only of two delinquent ships, more than a moiety of 
 the damage, because it is impossible in practice to 
 affix to the vessel proceeded against more than a 
 moiety of the l)lame, and the owner is therefore 
 left, with respect to the other half of his loss, to his 
 remedy against the other vessel Avhicli is equally 
 delinquent. These English authorities have been 
 recoi^nised and followed by the Courts in India/ 
 
 Where the plaintiffs had shipped goods on board 
 the defendant's vessel, the " CroAvn Prince," under 
 a bill of lading, which contained exceptions of, 
 amongst other things, "collision," and "accidents, 
 loss or damage, from any act, neglect, or default 
 w hatsoevcr of the pilots, master, or mariners, or 
 other servants of the Company in naA'igating the 
 ship." In the course of the voyage the " Crown 
 Prince" came into collision Avitli another of the 
 defendants' vessels, the " Atjeh," and the plaintiffs' 
 goods Avere in consequence lost. The collision was 
 due to negligence for Avhicli the "Atjeli" was 
 mainly in fault ; but the " Crown Prince" was also 
 in a measure to blame : — It was held, " that the 
 defendants had not committed a breach of the con- 
 tract created by the bill of lading, and that no action 
 could be maintained against them on the ground of 
 failure to perform the undertaking therein contained 
 to carry the goods safely upon the voyage, but that 
 
 » Ookcrdu ruuiiscy A: uLlieii v. S. S. "' Llavltri, I. L. 11. 10 Bum. lO'J.
 
 426 LEGAL EFFECT OF THE CLAUSES. 
 
 tliey vrevc liable in tort for the negligence of those 
 engaged in navigating the " Atjch," and that tlie 
 amonnt payable by the defendants was limited to 
 one-half of the loss snstained by the plaintiffs 
 pursuant to the Supreme Court of Judicature Act, 
 1873, s. 25, sub. s. 9."^ 
 
 The Admiralty Court rule that in cases of collision 
 the damages are to be equally divided where both 
 ships are to blame, does not apply to actions for 
 breach of contract of carriage, brought by owners 
 of cargo against the carrying ship to recover 
 damages for loss of, or injury to, their goods, and 
 hence the plaintiffs in such actions are entitled to 
 recover their full damages from the owners of the 
 carrying ship.^ 
 
 It may not be consonant ^vitli justice that the 
 owner of a cargo, Avho is not the owner of the ship, 
 should recover only a moiety from one of two ships 
 both in fault. Perfect justice, if it could be 
 administered, would afford a remedy in proportion 
 to the culpability of each. This, in cases of colli- 
 sion where both are to blame, is generally impos- 
 sible, and therefore, as a kind oijiulicium rusilciun, 
 the party sued is liable to one-half the damage only, 
 and the innocent owner of the cargo is left, as to 
 the other half, to sue the owner of the ship on 
 board which his goods were carried.^ 
 
 ' CLartored Mercantile Bank of India v. The Netherlands India Steam 
 Navigation Co., Ld., L.R. 10 Q.B. D. 521 ; 52 L.J.Q.B.220. 
 
 » The Bushire, 52 L. T. 740; 5 Asp. Mar. L. Cms. 41G. 
 
 3 The Milan, 31 L. J. Adm. Ill ; The City of Manchester, L. R. 5 T.D. 221} 
 4 Asp. Mar. L. Gas. 261.
 
 "COLLISION.'' 427 
 
 The cargo on hoard tlic ship doing the damage 
 cannot ho attached to make good that damage. 
 There is no instance in whicli the Court of AdmiraR y 
 has arrested a cargo for the purpose of making 
 good the damage done hy the ship in which it was 
 conveyed, and the reasons against such a course of 
 proceeding are most powerfuL Tlie damage is said 
 to be done by the sliip, but this is a mere form of 
 expression, the truth and reality being that it is 
 done by the master or tlie crew, as servants of the 
 owner of the ship, and upon no principle whatever 
 are the owners of the cargo responsible for the acts 
 of the master or crew. 
 
 The attachment of goods in cases where the 
 owner of the ship doing the damage is also owner 
 of the cari^o laden on board, is likewise without 
 precedent, and will not be sanctioned by the Court 
 of Admiralty.^ 
 
 AVlun-e cargo is lost in a collision, and the owners 
 bring a suit to recover its value, the damages must 
 be computed by taking the price paid at the port of 
 shipment, and adding the expense of lading it on 
 board, and of navigating the vessel to the place of 
 collision ; with interest on such account from the 
 date of collision.' 
 
 Part IX. of the Merchant Shipping Act, 1851,' 
 which limits the liability oC the shipowner for 
 damages to an extent beyond the value of his ship, 
 
 1 The Victor, 29 L. J. A dm. 110. 
 
 > Tho Ocean Queen, 2 Asp. Mar. L. Ca. 119. 
 
 ' 17 & 18 Vict., c. lai.
 
 Eesbipiueut. 
 
 42S LEGAL EFFECT OF THE CLAUSES. 
 
 and the freight due, or to grow due, in respect of 
 such ship daring the voyage, does not apply to 
 foreign ships ; therefore, Avhere a foreign ship is to 
 blame in a case of collision, her owners are respon- 
 sible to the full extent of the damage done, though 
 exceeding the value of the ship and freight.^ 
 Transiiipment. Provislou for the transhipment and reshipment of 
 goods is frequently made by the insertion in the bill 
 of lading of a clause to the following effect : — 
 
 " The company are to be at liberty to carry the 
 said goods to their port of destination by the above 
 or other steamer or steamers, ship or ships, either 
 belonging to the company or to other persons, 
 proceeding cither directly or indirectly to such port, 
 and in so doing to carry the goods beyond their port 
 of destination, and to tranship or land and store the 
 goods either on shore or afloat, and resliip and 
 forward the same at the comjoany's expense, but at 
 merchant's risk." In Stuart v. British and African 
 S. N. Co.,^ the goods were to be transliij)ped in the 
 course of the agreed voyage, and tlie following 
 clause was inserted : — " The goods to be transhipped 
 at Bonny, and forwarded to destination by brancli 
 steamer at ship's expense but shipper's risk." It 
 was held that the Avords " at shipper's risk " only 
 related to the operation of transhipment at Bonny, 
 and not to the forwarding to tlie destination, which 
 had been undertaken in the other part of the bill 
 of lading. 
 
 This privilege of tranLhipment in a bill cf 
 
 ' Copo V. Dohcity, 27 L. J. Cli. 600; Tl.c Victor, 20 L. J. Adm. 110. 
 '32 L. T. 2C7; 2 A^i. i'Jl.
 
 lading reserved to the carrier does not discliarc^e 
 him from any re.sponsil)ility Avliicli is incident to 
 his contract, until the goods be delivered at 
 their destined port. A stipulation, for instance, 
 in a hill of lading, that the shipper, in case of low 
 •water in the river, may reship in other craft, does not 
 vary his obligation to deliver safely. Such stipula- 
 tion is for the benefit of the carrier, in securing to 
 him the advantage of as great a portion of the freight 
 as he could earn, and to throw uj)on the owner of 
 the goods any increase of expense ; and the relation 
 and responsibility of a common carrier continue from 
 the shipment of the goods until their arrival at the 
 destined port of delivery. Where the undertaking 
 was to deliver a cargo, with the privilege of 
 reshipment at a particular place on tlie Avay, and 
 the undertaker stopped short of the point designated, 
 and the cargo was lost in a storm, it was held he 
 was responsible. As the storm AAas a peril of the 
 river, and an act of God, the carrier would have 
 be(Mi excused if he had encountered it in the 
 ordinary course of the voyage, and of his duty ; 
 but, as it was encountered when out of the course 
 of his voyage and of his duly, and might have Ix^en 
 avoided but for a disregai-d of his duty and of liis 
 contract, the carrier made himself lialde. I\v tlie 
 insertion, therefore, in the contract, of these words, 
 " the privilege of reshipping," although the cnrrier 
 is allowed to tranship or reship in another vessel, 
 his contract is not performed until lh(^ delivery of 
 the goods at the place of their destination.^ 
 
 » Ante, on Car. s. 227,
 
 430 LEGAL EFFECT OF THE CLAUSES. . 
 
 It seems, however, tliat where tlie ship is hy perils 
 of the sea so much damaged as to be incapable of 
 repair so as to prosecute the adventure, except at 
 an expense exceeding her value together with the 
 freight Avhen repaired, the Master is justified in 
 aljandoning the voyage, and is not bound, as agent 
 of his owner, to send the goods on in another 
 bottom/ 
 
 When goods are shipped with the privilege 
 of transhipment, and are damaged on tlie voyage, 
 and are transhipped under a bill of lading which 
 contains a provision that the second carrier shall 
 not be responsil3le for the damage done by the 
 first, the second carrier is not liable for such 
 damage, although the owner of the goods has not 
 received the second bill of lading.^ 
 
 As a rule, the shipowner, the agent, or some one 
 on his behalf, usually advises the consignees of 
 transhipped cargo of the arrival of the vessel, and 
 instructs the bill of lading holders to apply for their 
 goods. This practice of giving notice is adopted by 
 many sloamship companies, and should be followed 
 in all cases. If the goods are transhipped and 
 become lost, damaged, or confiscated in consequence 
 of the consignee not being informed of tlie change 
 of the vessel, whereby no demand could be made 
 for their delivery, the shipper can proceed against 
 the shipowner for transhipping the goods, and not 
 giving notice of the name of the second vessel. 
 
 » Do Cuadra v. Swann, 16 C. B. (N. S.) 772. 
 " Ang. on Car., .s. 227 (h.)
 
 TRAXSUIPMENT. RESUTPMEXT. r.l 
 
 AVlicrc the goods arc transhipped and upon 
 arrival at their port of destination arc stored in tlic 
 Custom-house, owing to their not being claimed hy 
 the consignee, to whom no notice of the change of 
 the ship has heen given, (he shipowner, having 
 failed to give notice of such transfer, aa ill he liable 
 for the extra expenses incurred. 
 
 A transhipment permit issued under section 1 28 
 of the Indian Sea Customs Act (YIII of 1878) docs 
 not, like a bill of lading, represent the goods 
 mentioned in it, or give any lien upon oi control 
 over thera.^ 
 
 Owing to the increased risks which gcxls arc 
 subjected to whilst in transit through Egypt some 
 steam companies have deemed it necessary to protect 
 themselves from liability, by the following clause 
 in the bill of lading : — 
 
 " In the event of transit to and from Suez and 
 Alexandria, the goods will be landed, forwarded, 
 conveyed, and reshipped at the owner's expense, but 
 at merchant's risk ; and in no case will the owners be 
 responsible for accidents, loss, damage, delay, or 
 detention, however caused in the course of such land- 
 ing, transit, or reshipment." 13ut, in all cases, it is 
 the duty of the master to use due care and diligence 
 in forwarding the goods, and it will be no excuse 
 that he delayed the transhipment in order to avoid 
 paying a high rate of fi'cight for forwarding on the 
 goods, or otherwise to avoid incurring expense. 
 
 ' rrcmji Trikamclas v. Mudliowji Muuji, I. L. K. 4 Bom. 447.
 
 432 LEGAL EFFECT OF THE CLAUSES. 
 
 Thus, in an action on a bill of lading by ^vliicli the 
 shipowner was bound to forward the goods by 
 steamer from London to a foreign port at his own 
 expense, the breach of duty being in not using due 
 diligence to do so, whereby the season was lost ; it 
 was held, that it was not enough that he had let the 
 discharge and sorting of the cargo take the usual 
 course of business at the docks where the vessel 
 discharged, if he neglected means which might well 
 liave been used to hasten the sorting, and to procure 
 vessels for the transhipment/ 
 
 If the vessel, having performed part of her voyage, 
 be disabled from completing the remainder, then 
 transhipment to the place of destination is in fur- 
 therance of the original purpose ; and it is settled 
 that in cases of such transhipment, if the goods be 
 conveyed safely to the place of destination, the 
 freight shall be that originally contracted for.^ 
 
 The master may tranship on the high seas, if the 
 opportunity of transhipment occurs, and the occa- 
 sion for it be pressing. And he is not answerable 
 in that case, although his own ship actually survive 
 the voyage, and the other perish with the cargo.^ 
 
 The voyage ought to be completed in the same 
 ship. But "if by reason of the damage done to 
 the ship, or through want of necessary materials, 
 she cannot be repaired at all, or not without very 
 great loss of time, the master is at liberty to 
 
 1 Carali v. Xcnos, 2 F. & F. 7 JO. 
 
 2 Shiptoii V. Thornton, <) Ad. & E. 31-i. 
 
 3 Maclaclilaa ou Shipping, 3Ui, 366,
 
 TliANSIIlPMEXT. IlE^SHirMEXT. 433 
 
 l^rocurc another ship to transport the cargo to tho 
 place of destination." ^ 
 
 "When tlie master effects the transhipment for the 
 benefit of the shipowner, lie must he regarded as 
 contracting on his behalf, and not as agent for the 
 OAvner of the cargo ; and the shipowner continues 
 under the same risks and obligations to the cargo- 
 owner during the substituted transport as he would 
 have been under if the conveyance had been effected 
 in liis own ship.^ 
 
 In the " Bernina," ^ the master after a collision, 
 had transhijiped the goods into the " Aveburv," 
 under bills of lading which excepted negligence 
 in navigation. The transhipment was justifiable, 
 and was done on account of the shipowners with a 
 view to earning the freight, and not on account of 
 tho plaintiff, the cargo owner. The original ship- 
 ment was under a charter-party which did not 
 except negligence. The goods w^ere lost by negli- 
 gent navigation of the " Avebury." It was held 
 that the shipowners Avere liable; and that "they 
 were not entitled as between themselves and the 
 plaintiff to substitute any other terms upon which 
 the cargo was to be carried than those which had 
 been agreed upon in the original charter-party." 
 
 The plaintiffs' cargo of coals on board the " K," 
 was damaged by a collision at C, the port of loading, 
 and had to be imloaded. It was ultimately 
 
 1 Abbott on Sli., 13th eil., p. 411. 
 
 ' :Matlie\vs v. Gibbs, 30 L. J. Q. B. bo. 
 
 * L. K. 12 P. D. 30. 
 
 55
 
 434 LEGAL EFFECT OF THE CLAUSES. 
 
 rcsliiiiped and carried on to B., and used by the 
 plaintiffs in smithies, thongli it was not purchased 
 for this purpose. The shipowner was not willing 
 to ship a fresh cargo except on fresh terms, and 
 the plaintiffs did not ascertain what those terms 
 Avere. In an action for damages hetAveen the owners 
 of the coal, and the owners of the vessel with which 
 the " K." came into collision, it was held, that the 
 shipowner had a right to insist on carrying on the 
 same cargo ; and as he had been willing to carry a 
 fresh cargo on fresh terms, it was the duty of the 
 plaintiffs to have ascertained what those terms 
 were, in order to diminish the loss as much as 
 possible, before comparing the loss on the damaged 
 cargo at B, and that from the sale of it at C, and 
 shipping a fresh one : — Held also, that the coal 
 having been used for a particular purpose, was not 
 a reason for estimating its value at that of coal 
 ordinarily used for such purpose.^ 
 
 " Risk of In cases where the shipowners have to convey 
 
 boats so far as -, , n xi i i i ^ i^i i 
 
 ships areUabie goods to, or trom, tlic sliorc by boats, they endeavour, 
 by the insertion of this clause, to protect themselves 
 against losses from causes beyond their control. 
 For instance, if goods are deposited in a warehouse 
 on account of the ship, and such goods have to be 
 taken off in a surf -boat, which may capsize or take 
 in water over all, the shipowner thus protects himself 
 from perils, the guarding against which is not within 
 his control. 
 
 » The BleuhcJm, L. E. 10 P. D. 107 j C4 L. J., Ad. 81.
 
 ''RISK OF boats:' 485 
 
 A boat or Imrge may also be run down or meet 
 with disaster, and from all such dangers and 
 accidents the shipowner would be exempt under 
 this clause, but not from damage or loss arising 
 from his own neglect. 
 
 "Where the exception in the bill of lading was " the 
 act of God, &c., and all and every other dangers and 
 accidents of the seas, rivers, and navigation, of 
 whatever nature and kind soever, save risk of boats 
 so far as ships are liable thereto, excepted," and the 
 goods were sent towards the shore in one of the ship's 
 boats and lost, owing to the boat being driven on 
 shore by the violence of the wind and sea, it was held 
 within the exemption, and that the shipowner was 
 not liable. "Whatever be the meaning of the words 
 in the above clause in this connection, it has been 
 held, that the words " save risk of boats," &c., were 
 unnecessary, and that with or without them, the 
 shipowner, in such a trade as the W^est Indian, incurs 
 no greater or other liability with regard to the goods 
 in the boats than exists in respect of those in the 
 ships. ^ 
 
 By a charter-party a vessel was to proceed to a 
 port, and there load a cargo from the shore by 
 the ship's boats and crew at ship's risk and expense. 
 A part of the cargo was lost, after delivery from 
 the shore and before it was loaded on board, through 
 one of the perils enumerated in the exceptions in 
 
 » Johnstone r, Benson, 4 B. Mooro 90, citodinMcLach. on Sh. 603 ; Kay 
 on Sh., vol. 1, p,!!. 303, ill.
 
 43G LEGAL EFFECT OF THE CLAUSES. 
 
 the cliarter-party. In an action by the cliarterer 
 for the non-delivery of this part of the cargo : — 
 Held, that the expression " at ship's risk" did not 
 mean at the absolute risk of the shipowner, but at 
 such risk as would attach if the goods were loaded 
 on board, and that consequently the exceptions 
 applied, and the shipowner was not liable for the 
 non-delivery/ 
 
 "Where the consignee had not boats ready alongside 
 to take delivery of his goods upon the vessel dropping 
 anchor, and the bill of lading provided that " the 
 goods on arrival at their port of destination were to l)e 
 delivered into the receiving ship, or to be landed at 
 the consignee's expense, the shipowner's liability 
 ceasing as soon as they were delivered from the 
 ship's tackle," and upon arrival of the ship at the 
 port the goods were put into other boats, one of 
 which, through the negligence of the boatmen, was 
 swamped and the contents damaged. The ship- 
 owner was held not to be liable, unless it was shown 
 that he had failed to take reasonable and proper 
 care in the selection of the boats.^ 
 
 The plaintiffs effected a policy of insurance on 
 a cargo of rails shipped from Hull to London, which 
 included all risk of craft, and was to continue 
 until the rails were discharged and safely landed at 
 London. The ship arrived safely in the port of 
 London, and the rails, instead of being landed, were 
 
 ' Nottcbohn v. Richter, L. R. 18 Q. B. D. 63 ; 56 L. J. Q. B. 33. 
 - Bullock Bios. & Co. v. Toay Aung, 21 Cal. W. R. C. R. 74.
 
 ''RUST." 437 
 
 placed in lip^hters for transhipment to an export 
 ship, and Avliik^ they ■\^'crc in the lif;hters "waiting to 
 he si lipped on hoard the export ship a portion "vvas 
 lost hy the SAvamping of the lighters : — Held, in an 
 action against the iinder^writers, that the risk 
 covered hy the policy did not include the risk of 
 "\\aiting in lighters for transhipment into an export 
 ship.^ 
 
 The clause in a hill of lading hy which the ship- "Rust." 
 owner is " not acconntahle for rust," is limited to 
 llie rust of the goods themselves, and does not 
 protect the shipOAnier from liahility for damage 
 done to other goods in consequence of such rust. 
 Grove, J., in delivering judgment in the case of 
 Thrift i\ Youle and Co.,^ said, the meaning of the 
 word "rust" in the hill of hiding was that if the 
 goods rust, the shipowner will not he responsihle. 
 The very use of the word " rust " shows that the 
 exclusion of the protection to consequential damage 
 was not intended, for it is difficult to see what 
 damage there would he from rust, except rust of 
 the things themselves which were shipped under 
 the bill of lading, and all that the shipoAvner means 
 by this exception is, that he will not undertake that 
 the goods may not rust from their knocking about 
 in the vessel. 
 
 But in order to exempt the shipowner fromliability 
 
 ' TTonldor r. IMercliauts' JIariiie Insurance Co., L. K. 17 Q. B. D. 'S'A ; 
 55 L. J. Q. B. 120. 
 
 2 L. R. 2 C. P. D. 132 ; 4G L. J. C. P. 402.
 
 438 LEGAL EFFECT OF THE CLAUSES. 
 
 under this clause, the rust must l)e such as is usual 
 and customary, and must not he occasioned hy the 
 improper stowage of the cargo in placing other 
 goods in such close proximity to the goods likely to 
 rust, as to occasion damage to them hy inducing an 
 unusual amount of rust, and more than might he 
 ordinarily expected. Thus, where iron hars were 
 shipped at London for Calcutta, and copperas Avas 
 stowed in such close proximity to them, that on 
 arrival, it appeared that the hars wTre covered with a 
 flaky foreign suhstance which subsequent analysis 
 proved to he not ordinary rust from atmospheric 
 causes, hut sulphate of iron or copperas. It w^as held, 
 that the damage was not occasioned hy rust within 
 the meaning of the exception in the hill of lading, hut 
 by the negligent stowage of the copperas in such 
 close proximity with the iron, which induced the 
 unusual rust complained of.^ 
 
 In the case of the ship ''Martha, " ^ a quantity of 
 sheet iron was found on delivery to he stained and 
 rusted with w^et. It was proved that the iron was 
 w^ell stowed, that the ship came in tight and dry, that 
 the iron was taken on hoard in dry weather, and not 
 exposed to the access of water. But the court held 
 that this was not enough, for the burden w^as on the 
 ship to show that the damage existed when the cargo 
 was laden on board. 
 "Leakage Tlic cxccption of " leakage and breakage," like that 
 
 breakage." of rust, will uot exoucrate the shipowner from 
 
 1 MacKinnon v. Taylor, Com. Ca. 514. 
 
 2 Olcott, Aclm. 140; Parsons on Sh., vol. 1, p. 189.
 
 "LEAKAGE AND BREAKAGES 4:39 
 
 damage or loss resulting therefrom ; it is only tlic 
 leakage or breakage of the articles themselves 
 against which this clause protects the shipowner/"' 
 The clause does not provide for losses consequent 
 upon such leakage or breakage. Therefore, where 
 hales of palm baskets were damaged by oil leaking 
 from casks, the court held, that as the term leakage 
 only applied to the leakage of the article itself, the 
 shipowner was responsible for the loss occasioned to 
 the baskets by the oil ; and it was stated that 
 similarly in the case of breakage the term applied 
 to the loss of the thing broken, and not to the 
 damage done by some other things.^ 
 
 Thus, where one bale of piece-goods was damaged 
 by oil having come in contact with it, and several 
 other bales were damaged by chafing during the 
 course of the voyage, it was urged at the trial that 
 the damage arising from the oil came within the 
 term leakage. But the court held, that the term 
 leakage in the bill of lading was applicable only to 
 the goods comprised in that bill, and did not extend 
 to damage caused to such goods by leakage from 
 other parts of the cargo. It was also ruled that 
 damage from chafing by rubbing, /. c. by the bales 
 rubbing against other portions of the cargo near 
 them, did not come within the exception of 
 *' breakage." - 
 
 The limitation of liability by the memorandum iu 
 
 (fO Black, 156. See Parsons on Sb., vol. 1, p. 2G1. 
 
 ' Thrift V. Youle & Co , L. R. 2 C. V. D. ly.'; 4G L. J. C. P. 402; TLo 
 Kcpotcr, L. R. 2 A. & E. 375 ; 38 L. J. Adm. G3. 
 « Graham v. llillc, 10 Bom. U. C. Rep. 60.
 
 4i0 LEGALIEFFECT OF THE CLAUSES. 
 
 tlie bill of lading, tliat the sliipowners arc not to be 
 accountable for leakage, is not restricted as to the 
 quantity of leakage, and protects the shipowners in 
 the absence of proof that the leakage was occasioned 
 bv their nes^lisrence.^ 
 
 The stowage of goods, in the absence of any special 
 agreement, forms part of the obligation which the 
 carrier takes upon himself. It is a duty to be discharg- 
 ed by the master and crew, it is therefore no defence 
 to an action by the shipper against the owner for 
 damage to a cargo of wine, by leakage resulting from 
 bad stoAvage (where the ship is chartered but the 
 general owners retain the possession by their servants, 
 the master and crew) that professional stevedores 
 had been engaged to stow the cargo, or that sucli 
 stevedores had been engaged by the charterer's 
 agents, there being nothing by which the master and 
 crew were released from the responsibility in respect 
 of the stowage.^ The exception of leakage does not 
 protect the shipowners from liability for damage 
 accruing through the negligence of their servants, 
 but shifts the onus of proof and makes it incumbent 
 upon the owners of the goods to prove affirmatively 
 the negligence of the shipowner's servants.'^ 
 
 In the Scotch case of Moes v. Leith and 
 Amsterdam Steam Boat Company/ where the 
 
 » The Ilelene, L. R. 1 P. C. 231. 
 
 2 Saudeman v. Scurr, L. R. 2 Q. B. 98. • 
 
 3 Czech V. The Gen. Steam Nav. Co., L. R. 3 C. P. 14; Phillips v. Clark) 
 26 L. J. C. P. 168. 
 
 ♦ Sc. Sesa. Cas., 3r(l scries, vol. 5, p. 988.
 
 " LEAKAGE AXD BREAKAGES 441 
 
 action was for damai^c to a number of loaves of refined 
 sugar, the jury found that a portion of the cargo 
 was damai^ed by breakage, but tliat the immediate 
 cause of the damaore Avas not established by evidence, 
 and the majority of the court {diss. Lords Cowan, 
 Deas and Ardmillan) lield tliat, as by the bill of 
 hiding, the ship A\'as "not answeral)le for break- 
 age," this was a verdict for the shipowner. Lord 
 Tresident Inglis, in the course of his judgment, 
 said : " There is one part of this added clause 
 which I read thus — 'not answerable for break- 
 age.' Now, what does that mean ? In the 
 first place, it is the shipowner Avho is not 
 to be answerable. He is not to be answerable for 
 breakage. This does not mean that he will n-jt be 
 answerable for breaking the goods. The Avord 
 ' breakage' is not here used in an active sense ; it 
 means the broken condition of the goods. If this 
 be so, the clause must mean that the shipowner is 
 not to be responsible for the broken condition of 
 the goods at the port of delivery. This is an excej)- 
 tion not of a cause of damage, but of a stipulation 
 of non-liability for a certain state of the goods. 
 AVheji the shipowner produces the goods in that 
 state, he brings himself within the exception." 
 His lordship thought the clause discharged the 
 shipowners from their liability, as carriers, for 
 breakage, and left them liable as custodiers of the 
 goods, and, therefore, that it discharged them from 
 the burden of disproving negligence, and imposed 
 the burden of proving it on the merchant/ 
 
 1 Abbott on Sh., I3th ed. 402.
 
 4i2 LEGAL EFFECT OF TEE CLAUSES. 
 
 Decay, corrup. rj^\iQ y^^Iq qE rcsponsibilitv cIoGS iiot covcr losses 
 
 tion; lubereut ■•■ *' 
 
 deterioration, arlsiiig from tlic Ordinary deterioration of goods in 
 quantity or quality in the course of transportation, 
 or from their inherent infirmity and tendency to 
 decay, or which arise from the neglect or misconduct 
 of the owner or shipper of the goods.^ The carrier, 
 for instance, is not liable for any damage from the 
 ordinary decay of oranges, or other fruits, in the 
 course of the voyage.^ But the master of a vessel 
 is nevertheless bound to take all reasonable care of 
 such bond perituj^a, and if they require to be aired or 
 ventilated, he must take the usual and proper 
 methods for this purpose;^ 
 
 So, the carrier is not responsible for the ordinary 
 diminution or evaporation of liquids, or the ordinary 
 leakage of the casks in which the liquors are put, in 
 the course of transportation, or from their acidity or 
 tendency to effervesce. Under this class of cases may 
 be included " ullage," or the quantity of fluid which 
 the cask wants of being full in consequence of the 
 oozing of the liquor : for his implied obligation does 
 not extend to such cases, unless to prevent loss from 
 such causes is within his control/ 
 
 In Nelson v. Woodruff,^ some casks containing 
 
 ^ Aug. ou Car., s. 210. 
 8 Ship Howard v. Wissmaii, 18 How. 231. 
 
 a Abbott on Sh., 13th ed. p. 430; Davidson v. Gwynnc, 12 East. 381. 
 * Ang. on Car., s. 211 ; Story on Bail, s. 492a. 
 ' 1 Black 15G.
 
 DECAY, COnnUPTTOX, cCr. 443 
 
 lard were shipped at New Orleans for New York, 
 where on arrival it was found it had leaked out. It 
 ai)pearing in evidence that lard when liquified ex- 
 panded and loosened the hoops on the casks, and 
 thus occasioned leakage, the carrier Avas exempt 
 from liahility. 
 
 The common carrier is liahle for the safe delivery 
 of all goods entrusted to him, but there is this 
 exception resting upon the common sense of mankind, 
 viz. with regard to any accident which occurs by 
 reason of its nature which may lead to its destruction. 
 
 Projier vice does not mean a moral vice of the 
 thing itself or its owners ; it is something naturally 
 inherent in the thing, which, by its natural develop- 
 ment leads to the destruction of the thing. If such 
 exists in the thing and leads to its destruction, it 
 is not a liability involved in the contract.^ In cases 
 of unforeseen and unprovided necessity, where the 
 owner of the goods cannot be communicated with 
 within reasonable time, or without considerable cost, 
 delay, and inconvenience,- the character of agent for 
 the o\nier of the cargo is forced upon the master.^ 
 In such cases he must exercise the discretion of an 
 authorized agent over the cargo, as well in the 
 prosecution of the voyage at sea, as in intermediate 
 ports.* 
 
 > The Gt. West. Rail. Co. v. Blower, L. R. 7 C. V. G55 ; 41 L. J. C. P. 271. 
 » The nambur^, 33 L. J. Adm. 110; Tlic Kiinuik, L. R. 2 P. C. 513; 
 The Lizzie, L. R. 2. A & E. 259. 
 
 ' Xotara v. Henderson, L. R. 5 Q. B. 353 ; 41 L. J. Q. B. 15S. 
 * The Gratitudine, 3 C. Rob. 2G0.
 
 441 LEGAL EFFECT OF THE CLAVfiEf^. 
 
 This cliaracter of agent for the owners of the 
 cargo, is imposed upon the master hy tlic necessity 
 of tlie case alone and not otherwise. He must put 
 liimself in the place of the owner of the cargo, and 
 do what the latter, as a prudent man, would himself 
 do for his own interest if he Avere j) resent.^ 
 
 Thus, in an action against a shipowner for non- 
 delivery of a cargo of maize which had become heated, 
 and was sold hy the defendants at an intermediate 
 j)ort during the voyage, the jury found that the cargo 
 was damaged by its own inherent vice ; that it was 
 impossible for the defendant to carry it to the port 
 of destination ; that the sale was what a prudent 
 man would have done under the circumstances.; but 
 that there Avas no such urgent necessity for the 
 sale as to give no time or opportunity to give notice 
 to the plaintiff, the OAvner of the cargo. On these 
 findings, it Avas held, that the defendant had no right 
 to sell Avithout the plaintiff's consent, and that the 
 action Avould lie.^ 
 
 But Avhere the shipoAA^ner had an agent at the 
 port where slie AA^as lying, authorised and ready to 
 supply the ship's requirements ; it Avas held, that 
 the Master had no implied authority to pledge the 
 owner's credit at such port for necessaries suj)plied 
 for the ship's usc.^ 
 
 The master must take reasonable care of tbe 
 goods entrusted to him, not merely by doing Avhat 
 
 > Notara v. Henderson, L. R. 5 Q. B. 46 L. R. 7 Q. B. 235. 
 2 Acatos I'. Burns, L. R. .3 Ex. D. 282 ; 47 L. J. Ex. 506. 
 - Gimn r. Roberts, L. R. 9 C. P. 331,
 
 DECAY, CORRUPTTOX, c{v. 41o 
 
 is necessary to preserve them on hoard the ship 
 (luriiii^ tlic ordinary incidents of the voyage, hut 
 also hy taking active measures, uhcre reasonahly 
 practicahle under all the circumstances, to check 
 and arrest the loss or deterioration resulting from 
 accident, for the necessary and immediate conse- 
 quences of uhich the shipowneris not liahle hy reason 
 of the exception in the hill of lading. This duty 
 ■\vhicli accident, necessity, and emergency impose 
 upon the master, entitles him to charge the OAvner 
 of the cargo Avitli the expenses properly incurred in 
 SO doing. ^ 
 
 If the mnster is chliged to unload upon a -wharf, 
 and the cargo is in such a condition as to need 
 assortment, it is the master's duty to see that such 
 assortment is properly made.^ 
 
 In deciding upon the measures ^vhich he should 
 adopt to check growing damage to the cargo, the 
 master must take into consideration the place, the 
 season, the extent of the deterioration of the goods, 
 the opportunity and means at hand, the interests of 
 other persons concerned in the adventure, ^vhom it 
 might he imfair to delay for the sake of the part of 
 the cargo in peril.'' If he has to put into port to 
 repair, and does all he can to mitigate an injury to 
 the cargo Avhilst there, he is not hound to remain 
 
 ' Cartro ox Argos, L. Tv. 5 P. C i:U; Xotara v. Honderson, L. R. 7 Q B" 
 223; Aiistraliisiiin Co. v. Moiso, L. K. 4 V. C. L'-'L' ; Gt. Xur. Ky. Co. r. 
 SwairicUl, L. R. 9 Ex. 130. 
 
 " Tho Xonvay, 12 L. T. X. S. 02. 
 
 3 X,,Tara V. TIiMulorson. L. 1?. 7 Q. B. 2:57.
 
 446 LEGAL EFFECT OF THE CLAUSES. 
 
 until the cargo is in a fit state to be carried on, if 
 this course would unduly protract the voyage ; neither 
 would he be justified if the cargo is damaged from 
 sea water, or is otherwise in an unfit state to be 
 carried on, in taking it on merely for the sake of 
 earning freight.^ Thus, where beans were shipped 
 from Alexandria to Glasgow with liberty to call at 
 intermediate ports, and the ship called at Liverpool, 
 but on going out met a collision (one of the perils 
 excepted in the bill of lading), and had to put back for 
 repairs which detained her a iG^Y days. The beans 
 being wetted by sea water, the plaintiffs offered to 
 receive them there, paying pi'o rata freight, which 
 was refused, full freight being demanded, and the 
 beans were carried on to Glasgow, where on arrival 
 they were found much deteriorated in value, beyond 
 what they would have been by the mere wetting hy 
 the collision, if they had been dried at Liverpool 
 instead of being carried on as they were; had they 
 been so dried, the decomposition would have been 
 materially arrested or mitigated, and it appeared 
 that the beans could have been taken out and dried 
 and reshipped without unreasonably delaying the 
 whole adventure ; it was held, that it was the 
 master's duty to have done so, and that his owners 
 were liable for the damage.^ 
 
 If a cargo of hides is lial)le to perish from worms 
 and tlie heat of the vessel, at an intermediate port, 
 
 ' Vliorboom r. Chapman, 13 M. & W. 230; Notara v. Henderson, L. R. 
 7 Q. B. 225. 
 
 * Notara v. Jlondcrson, L. R. 7 Q. B. 225,
 
 nVURIOUS EFFECTS OF OTHER GOODS. 447 
 
 it is the duty of the master to preserve them hy 
 havinj^ them hcaten or ventihxted ; and if goods are 
 wet he should, if possible, unpack and dry them, and 
 in order to dry the goods the master may, if neces- 
 sary, open the packages, hut he is not hound to 
 repair the goods.^ 
 
 If the goods arrive at the port of destination in a ^^,3 ^^^-^^„ 
 damaged condition, it is for the shipowners or master eff^tsTotUer 
 to prove that the original stoAvage was good, and ^°° ^' 
 that the perils of the sea caused the damage.^ 
 Frima facie y in such case the shipowners and the 
 master are liable to the shipper Avithout proof of 
 personal negligence,^ unless it appear that the 
 shipper assented to the manner in which his goods 
 were stowed,^ or that the shipper superintended the 
 stowage, and that the shipowners were ignorant of 
 the nature of the goods and of their liability for 
 injury from the way in which they were stowed,^ 
 or unless they were so stowed by the shipper's 
 own stevedore without any express orders or inter- 
 ference on the part of the master.^ 
 
 The authorities and text books are all uniformly 
 to the effect that, subject to any stipulations to the 
 contrary in the bills of lading, and in the absence of 
 
 ' rarsona ou Sli., vol. 2, p. 22. 
 
 ^ The Alexandra, 14. W. K. 4G6 ; 14 L. T. N. S. 7 12. 
 
 ' Swainstou v. Garrick, 2 L. J. Ex. 255; Brass v. Maitlaiul, G E. i B. 
 483 ; Gillespie r. Thompson, 2 Jnr. N. S. 712ii. 
 
 ♦ Major r. White, 7 C. & P. 41 ; Ilovill v. Stevenson, 4 C. & P. 409} 
 MackiU V. Wright, L. R. 14 App. Gas. 106. 
 
 » Ohrloff v. Briscall, L. It. 1 P. C. 231. 
 
 » Murray v. Currio, L. K. 6 C. P. 24 ; Sandemau i-. Scurr, L. R. 2 i^. B. 9S.
 
 4J:S LEGAL EFFECT OF THE CLAU8ES. 
 
 any notice of a cliarter, one of tlic primary duties of 
 the master is to stow the goods carefully. This is 
 a duty arising upon a mere receipt of the goods for 
 the purpose of carriage, and is one which it would 
 require an express contract to supersede or excuse. 
 Therefore, where oxide of zinc in casks was stowed 
 upon hags of sugar, wherchy the sugar was tainted 
 Aviih the oxide of zinc, and hecame damaged and 
 unmerchantahle, it was found as a fact that the 
 loading of the oxide was negligent; and upon this 
 tlie Court held it was a wrongful act, not as a 
 hreach of contract, hut as a wrongful act in itself. 
 If the defendants had done what was done wilfully, 
 that is to say, knowing that it would injure 
 plaintiff's goods, it was clear they would he liahle, 
 und it made no difference if they had done it 
 ignorantly ; the duty of care exists in all men not 
 to injure the property of others. That the act was 
 not a mere nonfeasance which was complained of ; 
 it Avas a misfeasance, an act and wrongful, and that 
 the damage done to the sugar was a tortious act, 
 in respect of which the plaintiffs could recover 
 from the defendants, whether the latter were hound 
 by the hill of lading or not.^ 
 
 The carrier is liahle to a shipper for damage done 
 to his goods by other goods stowed in the hold of a 
 Ycssel, without obligation or proof of any wilful or 
 negligent default on the part of the carrier;^ he is 
 
 1 Hajn V. CuUiford, L. R. 4 C. P. D. 182 ; 48 L. J. C. I', 372. 
 » Brass v. Maitluud, 26 L. J. Q. B. 54.
 
 INJURIOUS EFFECTS OF OTHER GOODS. 449 
 
 also liable, altliongli the goods arc stoAvcd in the 
 usual way, if the injury is caused by the goods of the 
 third party being in bad condition Avhen put on 
 board/ So, Avhere oilcake, tobacco and staves were 
 stowed together, on a voyage from New York to 
 London, and on arrival it was found that the oil- 
 cake had been considerably damaged by reason of 
 the improper stowage. In an action by the owner 
 of the oilcake to recover damages, several witnesses, 
 who had commanded large vessels, "liners," were 
 called, who stated they had been in the constant 
 habit of stowing oilcake and tobacco indiscrimin- 
 ately, taking no precaution against the heating 
 of the oilcake by ventilation or otherwise ; and a 
 stevedore also gave evidence as to the stowing 
 of such cargoes. Sir Robert Phillimore, in giving 
 judgment for the plaintiff, observed that this 
 practice of stowing, which the shipowner adopted, 
 was siw peinculo, and that he could not, by the 
 adoption of it, get rid of his obligation to carry the 
 goods of a shipper in proper condition.^ So also, he is 
 liable for an in j ury to Hour, caused by the effluvium 
 of spirits of turpentine, in the absence of any usage 
 to carry such articles as part of the same cargo.^ 
 
 In an action to recover damages for injury to salt- 
 cake by reason of improper stowage, it was pleaded 
 that the same was delivered by the shijiper in bulk, 
 
 * Aug. ou Cur., s. 212, uoto (c.) 
 
 " The Figlia Maggiorc, L. R. 2 A. & E. 115. 
 
 * Story on Bail, s. 492, uotc 3, 
 
 57
 
 450 LEGAL EFFECT OF TEE CLAUSES. 
 
 and not in casks, and was consequently stowed in 
 bulk in contact with, between, and amongst casks of 
 salt provisions, but owing to tlic corrosive and 
 destructive nature of the salt-cake, the said casks, 
 and their hoops, became corroded, rotten and 
 destroyed, whereby the brine and salt liquor in the 
 casks flowed out of them amongst the salt-cake, and 
 washed part of the same away and caused the 
 damage complained of. That the corrosive and 
 destructive nature of the salt-cake was unknoTMi to 
 the defendant, no intimation of its character having 
 been given to him by the plaintiffs, and that the 
 salt-cake was stowed in the manner in which it was, 
 with the knowledge, and by the direction, of the 
 plaintiffs. It was held, that this did not amount to 
 an authority by the plaintiffs to the stowing of the 
 cake in a negligent manner, but that the salt-cake 
 having been delivered in bulk, without any notice 
 of its corrosive and destructive qualities, the 
 defendant could not be held liable for the damage ; 
 it being no answer to the defendant's plea that the 
 salt-cake was an article known in commerce, and 
 that the defendants might, or ought to have known, 
 what sort of a thing it was.^ 
 
 Where the plaintiff shipped in good order and 
 condition on board the defendants' vessel at 
 Galveston certain bags of cotton-seed cake, and, by 
 the terms of the bill of lading, the defendants, 
 undertook to deliver them in like good order and 
 
 1 Hutchinson v. Guion, 28 L. J. C. P. 63.
 
 DANGEROUS GOODS. 4ol 
 
 condition at Liverpool subject to tlio above con- 
 ditions. Whilst the ship was loading other goods, 
 tlierc was a heavy storm of rain and the plaintiffs' 
 goods were damaged, either by the rain falling direct 
 upon them through the open hatchways, or by 
 bales of cotton, Avliich had become wet through 
 standing in the rain, being placed in contact with 
 them. 
 
 It was held, that under the negligence clause in 
 the bill of lading, the defendants were exempt from 
 liability for injury caused to the plaintiff's goods, 
 after they were shipped, by the negligence of the 
 persons in the service of the ship, and that judg- 
 ment must therefore be entered for the defendants.^ 
 
 If goods of a dangerous nature are delivered to 
 a shipowner or master to be carried, and are so ^^^'^^' 
 packed as to conceal their real character, or if such 
 goods are delivered to a shipowner or master, and 
 they cannot be reasonably expected to know by 
 inspection that the goods are of such a dangerous 
 and destructive nature, it is the duty of the shipper 
 to give due notice of the nature of the goods to the 
 shipo^vner, or those employed by him ; and if he 
 does not give such notice, and damage is caused to 
 other parts of the cargo, or otherwise, by reason of 
 the dangerous natm'e of the goods, or the insufficient 
 nature of their packing, the shipper is liable to the 
 shipowner for the damage caused by the dangerous 
 
 * Norman v. Biuniiigton, L. R. 25 Q. B. D. Ho. 
 
 Dangerous
 
 452 ' LEGAL EFFECT OF TEE CLAUSES, 
 
 nature of the goods.^ But where the defendant, as 
 owner, chartered a ship to the plaintiffs, and agreed 
 to load a cargo from the plaintiff's factors at Glasgow 
 and convey it to Colombo, and the plaintiffs shipped 
 camT)rics and sheetings, in respect of damage to 
 which the action Avas brought, but not wishing to 
 make up the whole cargo with goods of their own, 
 they contracted with M. and Co. to receive from 
 them and carry certain cases of sulphuric acid on 
 board the ship. M. and Co. shipped the cases on 
 board, but neither the plaintiffs nor the said M. and 
 Co. gave notice to the defendants that the cases 
 contained sulphuric acid. On the voyage the acid 
 leaked, and damaged the plaintiff's goods. In an 
 action to recover damages, it was held to be no 
 answer to the action that the defendant had not 
 been informed of the contents of the cases, the act 
 of the plaintiffs not being the j)i'oxiiii^te cause of 
 the damage, and that assuming that a cross action 
 would lie, the amount of damages would not 
 necessarily be the same in both actions.^ It is the 
 duty of the shipper of dangerous goods to give 
 notice to all who might be injured by the dangerous 
 character of the article ; persons are therefore bound 
 to give reasonable notice of the character of such 
 articles, and are liable, if they do not do so, for 
 the probable consequences of such neglect of duty. 
 
 1 Williams v. The East India Co., 3 East. 192 ; Gt. West. Eail. Co. v. 
 Blower, L. R. 7 C. P. G63 ; Brass v. Maitland, 26 L. J. Q. B. 63 ; Hearne 
 V. Garton, 2 E. & E. 66 ; Alston v. Herring, 25 L. J. Ex. 177 ; 11 Ex. 822 ; 
 Hutchinson v. Guion, 28 L. J. C. P. 63. 
 
 2 Alston V. Herring, 25 L. J. Ex. 197.
 
 DANGEROUS GOODS. 453 
 
 Thus, "wliorc tlic defendant caused a carhoy contain- 
 ing nitric acid to be delivered to the plaintifT, Avho 
 was one of the servants of a carrier, in order that it 
 miglit be carried by sucli carrier for the defendant, 
 and the defendant did not take reasonable care to 
 make the plaintiff a^vare that the acid was dangerous 
 but only informed him that it Avas an acid, and 
 the plaintiff Avas burnt and injured by reason of the 
 carboy bursting Avhilst, in ignorance of its dangerous 
 character, he was carrying it on his back from the 
 carrier's cart ; it AA'as held, that the defendant was 
 liable to the j^laintiff in an action for damages for 
 such injury.^ 
 
 The clause " If medicinal fluids or any other 
 goods of an inflammable, damaging, or dangerous 
 nature, arc shipped, without being previously 
 declared and arranged for, they arc liable, upon 
 discovery, to be thrown overboard, and the loss will 
 fall upon the shippers or OAvners of such fluids or 
 goods," which is frequently found in bills of lading 
 in order to protect the shipoAvner against the con- 
 sequences of dangerous goods being shipped Avithout 
 notice, has been rendered almost unneccssarj'' by 
 reason of an Act of Parliament- enacting some most 
 important provisions to protect masters and ship- 
 owners from having dangerous goods handed to 
 them for shipment, or carriage, Avithout due notice 
 of their dangerous nature ; and to enable masters 
 
 > Farrant r. Barucs, 31 L. J. C. V. 137. 
 » 3G & 37 Yict., c. 85, ss. 23-28.
 
 454 LEGAL EFFECT OF THE CLAUSES. 
 
 or owners to refuse to take on board packages or 
 parcels wliicli they suspect to contain goods of a 
 dangerous nature, and to throw them overboard if 
 sent aboard without notice. Tliese provisions are 
 as follows : — 
 
 39 & 37 Vict. c. Sec. 23. — " If any person sends or attempts to send by, or not 
 
 Sec. 23. being the master or owner of the vessel, carries or attempts to 
 
 carry in any vessel, British or foreign, any dangerous goods ; (that 
 is to say) aquafortis, vitriol, naphtha, benzoin, gunpowder, Jucifer 
 matches, nitro- glycerine, petroleum, or any other goods of a 
 dangerous nature, without distinctly marking their nature on the 
 outside of the package containing the same, and giving notice of 
 the nature of such goods, and of the name and address of the 
 sender or carrier thereof, to the master or o'vvner of the vessel, at 
 or before the time of sending the same to be shipped, or taking 
 the same on board the vessel, he shall, for every such offence, incur 
 a penalty not exceeding one hundred pounds : Provided, that if 
 such person show that he Avas merely an agent in the shipment of 
 any such goods as aforesaid, and was not aware and did not 
 suspect and had no reason to suspect that the goods shipped by 
 him were of a dangerous nature, the penalty which he incurs shall 
 not exceed ten pounds." 
 
 Sec. 24. Sec. 24. — " If any person knowingly sends, or attemptirj to send 
 
 by, or carries or attempts to carry in any vessel, British or foreign, 
 any dangerous goods or goods of a dangerous nature under a false 
 description, or falsely describes the sender or carrier thereof, he 
 shall incur a penalty not exceeding five hundred pounds." 
 
 Sec. 25. Sec. 25. — " The master or owner of any vessel, British or foreign, 
 
 may refuse to take on board any package or parcel which he 
 suspects to contain goods of a dangerous nature, and may require 
 it to be opened to ascertain the fact." 
 
 Sec. 2G. Sec. 26. — " Where any dangerous goods as defined in this Act, 
 
 or any goods which, in the judgment of the master or owner of the 
 vessel, are of a dangerous nature, have been sent or brought 
 aboard any vessel, British or foreign, without being marked aa 
 aforesaid, or without such notice having been given as aforesaid, 
 the master or owner of the vessel may cause such goods' to be 
 thrown overboard, together with any package or receptacle in
 
 DANGEROUS GOODS. 4oo 
 
 whicli they ave contained, and neither the master nor the owner 
 of the vessel shall, in respect of such throwing overboard, be sub- 
 ject to any liability, civil or criminal, in any coui-t." 
 
 Sec. 27. — " "Where any dangerous goods have been sent or Scc. 27. 
 cai'ried, or attempted to be sent or carried, on board any vessel, 
 British or foreign, without being marked as aforesaid, or without 
 such notice having been given as aforesaid, and where any such 
 goods have been sent or carried, or attempted to be sent or carried, 
 under a false description, or the sender or cai'rier thereof has been 
 falsely described, it shall be lawful for any Court having Admiralty 
 jurisdiction to declare such goods, and any package or receptacle 
 in which they are contained, to be and they shall thereupon be 
 forfeited, and, when forfeited, shall be disposed of as the court 
 directs. The Court shall have and may exercise the aforesaid 
 powers of forfeiture and disposal, notwithstanding that the owner 
 of the goods have not committed any offence under the provisions 
 of this Act, relating to dangeroiis goods, and be not before the 
 Court, and have not notice of the proceedings, and notwithstanding 
 that there be no evidence to show to whom the goods belong ; never- 
 theless, the Court may, in its disci'ction, require such notice as it 
 may direct to be given to the owner or shijiper of the goods before 
 the same are forfeited." 
 
 Sec. 28. — " The provisions of this Act relating to the carriage of gg^ 23 
 dangerous goods shall be deemed to be in addition to, and not in 
 substitution for, or in restraint of, any other enactment for the 
 like object, so, nevertheless, that nothing in the said provisions 
 shall be deemed to authorise that any person be sued or prosecuted 
 twice in the same matter." 
 
 46 AND 47 VICT, c. 3. 
 
 Sec. 8 (2). — " "Where the master or owner of any vessel has An&iy-v- t 3 
 reasonable cause to suspect that any dangerous goods or goods of a Hec. 8 (2. 
 dangcroiis nature which, if found, he would be entitled to throw 
 overboard in pursuance of the Merchant Shij^ping Act. 1S73, are 
 concealed on boai'd his vessel, he may search any part of such 
 vessel for such goods, and for the purpose of such search may, if 
 necessary, break oj)cn any box, package, parcel, or receptacle on 
 board the vessel, and such master or owner, if he finds any such 
 dangerous goods or goods of a dangerous nature shall be entitled
 
 456 LEGAL EFFECT OF THE CLAUSES. 
 
 to deal witli the same in manner provided by the said Act, and if 
 he do not find the some, he shall not be subject to any liability, 
 civil or criminal, if it appears to the tribunal before which the 
 question of his liability is raised that he had reasonable cause to 
 suspect that such goods -vrere so concealed as aforesaid." 
 
 In the United Kingdom the importation and transportation of 
 gunpowder and other explosives are governed by 38 and 39 Vict. c. 17; 
 whilst in India explosives are dealt with by Act. IV of 1884, and the 
 rules passed thereunder by the Governor General in Council and 
 the Local Governments. 
 
 34 and 35 Vict. c. 105, and 42 and 43 Vict. c. 47 provide for the 
 safe carrying and keeping of petroleum and other substances of a 
 like nature in the Uuited Kingdom, and the same subjects are dealt 
 with in India by Act. XII of 1886, and XIV of 1890. 
 
 "Negieotof Befoie dealing with the legal effect of this 
 
 or Crew." ' clausc, it may he as well to consider what the 
 position of the several parties is Avlien it does not 
 appear in the hill of lading. 
 
 By the maritime law, in the ahsence of custom or 
 agreement to the contrary, it is the duty of the 
 master, on the part of the owner, to receive and 
 properly stow on hoard the goods to he carried, 
 which, ordinarily, are to he delivered to him 
 alongside. Por any damage to the goods occasioned 
 hy negligence in the performance of such duty, the 
 owner is liahle to the shipper.^ 
 
 Thus, it is the duty of the master to provide 
 proper ropes and tackle for the reception of the 
 goods into the ship,^ and if a cask he accidentally 
 staved in letting it down into the hold of the ship, 
 the master is answerahle for the loss.* 
 
 1 Blakio V. Stembridgc, 28 L. J. 0. P. 331. 
 * Ch. and Tern, on Car. 153. 
 3 GofE V. Cliiikard, I. Wila. 2S2.
 
 " NEGLECT OF MASTER, PILOT, OR CREW." 457 
 
 If the damaije results from the misconduct of tlie 
 master, he is answerable to the owners, and probably 
 also directly to the shipper. If it happens through 
 the misconduct of the mate, or others of the crew, 
 without default on the part of the master, it has 
 been held that the master is not answerable to the 
 cvATiers.^ "Where goods are sent to be laden on 
 board a general ship, the master is not liable to 
 the owner of the goods for damage done to them by 
 the negligent stowage of a stevedore appointed by 
 the charterer, the stevedore not being an agent or 
 servant of the master. 
 
 Nor is the master liable, in such case, for the acts 
 of the stevedore, though the charter-party stipulate 
 that the stevedore shall be paid by, and act under, 
 his orders, except the acts of the stevedore be done in 
 pursuance and in the execution of the master's orders.3 
 
 This duty of the master has, however, in many 
 cases been modified by custom or contract.^ And 
 his liability for the safe conduct of the goods 
 continues until they are actually delivered to the 
 consignee ; when they are once delivered, however, 
 it ceases.'* 
 
 The owners of a ship are responsible to the owners 
 of cargo for any loss accruing from detention, it 
 being by maritime law the duty of the master to 
 convey the cargo to its port of delivery with all 
 
 1 Blakie v. Stembriagc, 28 L. J. C. P. 331. 
 
 '■ Blukic V. Stombridgc, 28 L. J. C P. 329; Sack V. Ford, 32 L. J, C. P. 12. 
 » I'er AVillcs, J., iu Blakie i'. StcmbriUge, 28 L. J. C. P. 332. 
 ♦ Kay ou ii\i., vol. 2, 1157. 
 58
 
 458 LEGAL EFFECT OF THE CLAUSES. 
 
 expedition ; and if by neglecting to avail liimsclf of 
 all fair opportunity, the voyage is delayed and 
 damage accrues to the owners of cargo, the owners 
 of tlic ship are liable to make good the sum. 
 
 Thus, where the master of a ship, whilst waiting 
 for cargo, omitted to take in sufficient stores and 
 provisions for his voyage, and whilst subsequently 
 taking in such provisions and stores, the frost set 
 in and the ship was frozen in port, and detained 
 from the beginning of October until the breaking 
 up of the ice in the ensuing year ; it was held, that 
 the shipowner was responsible to the owners of the 
 cargo for such detention/ 
 
 Where a steam ship having perishable goods on. 
 board, not usually insurable against detention, comes 
 into collision on leaving the port of loading with 
 another vessel and is arrested for excessive bail, 
 w hich her owners refuse to pay, and the vessel is 
 in consequence detained, the owners must exercise 
 all due dispatch in forwarding the cargo to its 
 destination, or they will be held liable for the 
 damage and deterioration it sustains in consequence 
 of the delay .^ 
 
 If the master deviates from the proper course of 
 the voyage, and the goods shij^pcd are afterwards 
 injured by a tempest, or lost by capture, or other 
 peril, the shipper Avould be entitled to a full 
 indemnity from the master and the owner .^ 
 
 1 The Wilhelm, 2 Asp. Mar. L. Ca. 343. 
 
 * Grew Widgery & Co. v. G. W, S. S. Co., Douglas M. L. Decisions, iO. 
 
 ^ Davis V. Garrett, 6 Bing. 716; Parker v. James, 4 Camp. 112 j Max v. 
 Kobcrts, 12 East. 89 j Scaramauga v. Stamp, L. 11. 4 C. P. D. 310; 48 L. J. 
 C. r. 478.
 
 "NEGLECT OF BLASTER, TTLOT, OR CREW." ^-^0 
 
 "Wlion tlic pilot continues in change of the naviga- 
 tion of the sliip, it is the duty of tlie master and 
 crew to keep a good look out/ to attend to the 
 general management of the ship,^ to sec that the 
 sliip and her equipments arc sufficient and proper, 
 and that her crew are competent/ and that ohedience 
 is promptly rendered to the pilot in all things 
 relating to the management of the ship/ and as 
 long as the pilot continues to act, not to interfere 
 with the conduct of the ship, except in cases of 
 extreme necessity/' 
 
 If the pilot is intoxicated, or is steering a course 
 to the certain destruction of the vessel, the master 
 •may interfere and ought to interfere ; hut it is only 
 in urgent cases ."^ 
 
 As soon as the pilot assumes his proper functions 
 on hoard, he supersedes the master in his control of 
 the ship, in all matters which relate to her naviga- 
 tion/ he is hound to use due diligence, care, and 
 reasonahlc skill, and is answerahlc if it is proved 
 that the ship either does, or suffers damage, through 
 his default, negligence, or want of skill, the persons 
 under him having done their duty.^ 
 
 A mere suggestion hy the captain of a ship to 
 the pilot as to the orders that should he given, not 
 
 ' The lona, L. R. 1 P. C. 42(1. 
 
 - The Velasquez, L. R. 1 P. C. 49k 
 
 = Tho City of Cambridge, L. R. 5 P. C. 459. 
 
 ♦ Tho Diana, 1 W. Rob. 136. " Tho Maria, 1 W. Rob. 110. 
 
 » Tho Peerless, Lush' 30, 32 ; The Duke of JIanchester, 2 W. Rob. 470, 480. 
 
 • The Diana, 1 W. Rob. 135. » Tho Portsmouth, G C. Rob. 317.
 
 4G0 LEGAL EFFECT OF THE CLAUSE!^. 
 
 amounting to an interference, will not transfer the 
 responsibility to the master, so as to render the 
 owners liable if the order is a negligent one. It is 
 within the province of the pilot compulsorily in 
 charge of a vessel to decide Avhether the state of 
 the weather is or is not such as to render it impru- 
 dent to get under way. But, there may be circum- 
 stances of weatlier in which the captain of a ship 
 would not be exonerated if he allowed his vessel to 
 be got under way by the pilot .^ 
 
 In the "Guy Mannering" ^ Brett, L. J., said: — 
 " The duty of a pilot in England is too well knoAvn 
 and too universally applied to require any enact- 
 ment with regard to it at all. It is to regulate the 
 navigation of the ship, and to conduct it so far as 
 the course of the ship is concerned. He has no 
 other power on board the ship ; he has no power 
 over the discipline of the ship ; he has no power 
 over the cargo on board, and he has no power with 
 regard to the various matters which are necessary 
 to enable him to perform his duty ; he cannot place 
 a man on the look-out, or regulate the place at 
 which the look-out man shall be on board the ship. 
 He has nothing to do but to control the navigation. 
 If a ship be a sailing ship, it is kno^m that she 
 cannot steer in a particular way -without her sails 
 being regulated as to quantity and as to position ; 
 and, therefore, for the purpose of steering the ship 
 the pilot is the person on board an English sailing 
 
 » The Oakfield, 55 L. J. Ad. 11 ; L. E. 11 P. D. 4G. 
 " L. E. 7 P. D. 132. .
 
 "NEGLECT OF MAfiTEU, PTLOT 07? CUEW.'' 4G1 
 
 ship wlio gives tlie orders witli regard to the sailing. 
 It is ohvious, therefore, tliat, in order to steer a 
 ship on lier course, he gives the orders as to tlie 
 time of tacking and as to tlie mode of progressing. 
 All the orders Tshicli an English jnlot has to give 
 are the orders for regulating the course of the ship 
 upon the "waters. He knows the course she has to 
 take, and must take. 
 
 " Applying the principles of law to such an 
 emj^loyment, I should say, if you are compelled to 
 put a man in that position where he is to exercise 
 those powers, then he is not a person who, in the 
 exercise of those jiowers, is to act according to your 
 directions. With regard to them he is to exercise 
 the power himself ; at all events, you are not hound 
 to give him orders. He is put there for a S2iecial 
 purpose ; therefore, so far as the exercise of those 
 known powers are concerned, if, in the course of 
 the ship upon the waters, damage arises hy reason 
 of his regulating the course of the ship, the owners 
 are not liable." 
 
 If the injury to the goods is caused hy the negli- 
 gence of the shipowner's servants, the shipowner 
 and master will he liahle, notwithstanding the 
 exceptions in the hill of lading.^ 
 
 But though the exceptions do not protect the 
 shipowners or master from liability for damage 
 caused l)y the negligence of their servants, they 
 
 ^ Czech V. Gen. S. N. Co., L. E. 3 C. V. 17 ; rhillips v. Clark, 2G L, J. 
 C. P. 168 ; Gill V. Manchester R. Co., 42 L. J. Q. B. 89.
 
 4G2 LEGAL EFFECT OF TEE CLAUSES. 
 
 make it incumlDcnt upon owners of cargo, who seek 
 to render tlie owners or master liable for such 
 negligence, to i^rove affirmatively that the injury 
 was caused by such negligence/ 
 
 The exceptions limit the liability, but not the duty 
 of the owners and master;^ nor do they relieve the 
 owners or master from the obligation to navigate 
 with ordinary skill and care. It is still their duty 
 to do what they can by reasonable skill and care 
 to avoid all perils, including the excepted perils. 
 If, notwithstanding such skill and care, damage 
 does occur from these perils, the owners and master 
 are released from liability ; but if their negligence 
 has brought on the peril, then the damage is attri- 
 butable to their breach of duty, and the exceptions 
 do not aid them.^ 
 
 The exception " any act, neglect, or default what- 
 soever of pilots, master, or crew in the management 
 or navigation of the ship," does not cover damages 
 arising from negligent stowage so as to exempt the 
 shipowner from liability for the same. In an action 
 w^hich was brought to recover damages for injuries 
 to cargo resulting from the improper stowage of 
 oxide of zinc and bags of sugar together, the 
 followinsj Avords had been inserted in the bill oE 
 lading after the above clause : "It being agreed that 
 the captain, officers, and crew of the vessel, in the 
 transmission of the goods as between the shipper, 
 
 » Czech V. Gen. S. N. Co., L. R. 3 0. P. 14. 
 
 2 Stcuiraann and Co. i;. Angier Line, L. R. 1 Q. B. (1891) 624. 
 2 Phillips V. Clark, 2G L. J. C. P. 1G8.
 
 " NEGLECT OF MASTER, PILOT, OR CREW." 403 
 
 owner, or consignee thereof, and the ship and ship- 
 owner, he considered the servants of such shipper, 
 owner, or consignee." The defence was, that the 
 case came within the above exceptions, and it was 
 contended that the word " transmission," in the 
 above chiuse, was even more extensive than the word 
 "navigating," and that it included everything to be 
 done with the goods, from the receipt of them from 
 the hands of the consignor, to their arrival at their 
 destination. The Court, acting upon the principle 
 laid down by Lush, J., in the case of Taylor v. The 
 Liverpool and Great "Western Steam Company,^ that 
 a word in the bill of lading being ambiguous and of 
 doubtful meaning, must receive such a construction 
 as is most in favour of the shippers, and not such as 
 is most in favour of the'shijoowuer, for whose benefit 
 the exceptions arc framed, held, with the j^laintiffs, 
 that the words " in transmission of the goods," if 
 operative at all, had a limiting effect upon the alleged 
 generality of the previous words, and confined their 
 application to a period subsequent to the period at 
 Avhich the locomotion in the ship should commence, 
 and that m the case of an exceptive clause similar to 
 the above, the Avords " in navigating the ship," or 
 " in transmission of the goods," did not include 
 negligent stowage.^ 
 
 The above case does not carry the shipowner's 
 freedom from liability fm'ther than for acts negli- 
 
 » L. R. n Q. B. 546. 
 - Kayn r. Cullifonl. L. K. 3 C. P. D. 410 ; L. R. -1 C. 1\ D. Ib2; 47 L. J. 
 g. B. 755; 48 L.J. C. P. 372.
 
 464 LEGAL EFFECT OF THE CLAUSES. 
 
 gently done in tlie navigation of the vessel, but it was 
 stated in Phillips v. Clark/ where the shipowner was 
 held liable for the negligent stowage of cargo by his 
 servants, that a carrier might protect himself, even 
 from the effects of his own negligence, by a contract 
 to that effect, if he can find any one to contract 
 with him ; and it was observed in Grill v. The 
 General Iron Screw Collier Co.,^ that if the ship- 
 OAvners wish to protect themselves from being respon- 
 sible for a loss occasioned by the negligence of their 
 servants they must do so by express words. Such a 
 stipulation Avould be almost repugnant to their 
 contract ; still if they wish to raise the question of 
 non-liabihty for such negligence, they must do so 
 by express terms; and wo accordingly find in 
 nearly all bills of lading a clause to the following 
 efFect, "negligence or default of master, pilot, or 
 mariners, or others performing their duties," and 
 this has been lield by the courts not to be an 
 unreasonable clause, and that the shipowner was 
 not liable for damage which falls witliin it. Thus, 
 where a cargo of nuts was stowed before the bill of 
 lading was signed, and was subsequently damaged 
 in the course of the voyage by the carelessness of 
 the master and crew ; Sir K. Phillimore, in srivin^ 
 judgment for the defendants, said : " The conclusion 
 at which I have arrived, is, that I have only to look 
 at the bill of lading as the expression of the true 
 contract existing between the parties, and to consider 
 
 » 26 L. J. C. P. 170. » L. il. 3 C. P. 476 j 37 L. J. C. T. 208.
 
 ''NEGLECT OF MASTER, PILOT, OR CREW.'' 4Go 
 
 Avlictlicr the delivery of these goods in a different 
 condition from that in which they were originally 
 placed on board does, or docs not, fall within the 
 excepted perils mentioned in that bill of lading. It 
 has been contended amongst other objections, for 
 the plaintiffs, that this contract was in itself unlawful, 
 inasmuch as it professed to provide against due care 
 being bestowed by the carrier upon the goods which 
 he undertook to convey. I must observe that it has 
 not been proved to me that a shipoA^^ler is in the 
 category of a common carrier, and that he is bound as 
 a common carrier would be bound, under the liability 
 of an action being brought against him, to carry 
 goods generally ; but, even if it were so, according to 
 the principles of the decisions affecting this part of 
 the case, it appears to me it is competent to the 
 common carrier to exempt himself from liability. 
 Assuming, for the sake of argument, that the ship- 
 owner was in the category of a common carrier, still 
 it would be competent to him, under the authorities, 
 to have protected himself from liability by such a 
 bill of lading as this : at all events, if not to have 
 protected himself from his own personal negligence, 
 still to have protected himself from the negligence 
 of the servants whom he employed. It must be 
 observed, that it must be presumed that this bill of 
 lading was accepted deliberately by the plaintiffs, 
 though it was, of course, competent to them to have 
 refused so to accept it. The contract does not 
 appear to me in itself to have been unreasonable."^ 
 
 1 The Ducru, L. 11. 2. A. i E. 3'JG; 3S L. J. Ad. GU.
 
 466 LEGAL EFFECT OF THE CLAUSES. 
 
 After this case, tlic insertion of the clause exempting 
 shipo^ATiers from neglect hecamemore general. In 
 the year 1875 a great outcry was made, about what 
 Avas alleged as the contracting of sliipowners out of 
 their liahilitics by express stipulations in bills of 
 lading. Meetings of merchants took place to protest 
 against and oppose all attempts, to cast upon them 
 the damage or losses arising from the negligence of 
 the servants of shipowners. On the part of the 
 latter, it was said, "We find seaworthy vessels with 
 certificated masters, mates, and engineers; we do our 
 best to secure immunity from sea damage, but if 
 our servants act negligently and injure our interests, 
 and at the same time inflict loss upon the goods on 
 board, the fault does not rest with us, and we will 
 not convey merchandise by our ships, unless we are 
 exonerated from all liability for the acts of the 
 masters and crew over whom, when they leave port, 
 we have no further control." The question was 
 then narrowed to that of a contract for the carriage 
 of goods under conditional terms. The merchant 
 was not compelled to forward, nor the shipowner 
 to carry, the goods; but if the former consented to 
 the terms of the latter, then the agreement rested 
 on the limitation of liability as expressed in the 
 bills of lading. A shipowner insures his vessel 
 against perils of the sea, but the destruction 
 inflicted by Avinds and waves does not include the, 
 at times, equally disastrous losses brought about by 
 the carelessness or ignorance of his servants.
 
 "NEGLKCT OF MASTER, PTLOT, OR CTiEW:* 4G\ 
 
 Where K.and Co., merchants, London, sold certain 
 ^oods to tlie plaintiITs,-\vlio were merchants in Dublin, 
 and it was agreed that the said goods shonld he 
 forwarded to tlie i)laintifn)y steamshijD from London 
 to Dublin ; K. and Co., sent the goods by their 
 OAvn carter and on their own carts (according 
 to their usual course of business) to H. and Co. 
 A\ harfingers, London, for the purpose of having 
 them placed on board the ship of the defendants, 
 ^\]\o were carriers by sea. IE. and Co. having 
 received the goods, gave a receijit therefor to the 
 carter, on the back of which receij)t were indorsed 
 special conditions ; amongst others, that the defen- 
 dants would not be responsible for any loss or damage 
 arising from the negligence of their own officers and 
 crew in the journey from London to Dublin, and 
 this was the usual form of receipt given by the 
 said wharfingers to K. and Co. The ship sailed and 
 the goods were lost, admittedly through the negli- 
 gence of the officers and crew. The plaintiff, to 
 whom the goods were sent, had paid K. and Co. for 
 the same, and knew nothing Avhatever of the condi- 
 tions of the receipts. In an action to recover 
 damages for the loss, it was held that it was not 
 necessary to read over and explain to the plaintiff's 
 agent the conditions embodied in the said receipt. 
 It was sufficient that the parties had the means of 
 knowing what the conditions in the receipt were. 
 
 Held also, that the verdict should be entered for 
 tlie defendants ; that they being carriers by sea, the
 
 4G8 LEGAL EFFECT OF THE CLAUSEI^. 
 
 condition was valid, and that K. and Co. being the 
 agents of the plaintiff in the making of the contract, 
 the plaintiff was hound thereby.^ 
 
 Tlie exception of " negligence" does not relieve 
 the shipowner from his obligation to supply a ship 
 that is seaworthy and fit for the cargo at the 
 commencement of the voyage. He is liable for a 
 loss caused by unseaworthiness or unfitness, although 
 it was caused by negligence of the master or crew.^ 
 
 In Steel v. The State Line Steamship Co.,^ where 
 the shipowners admitted tliat through the negli- 
 gence of some of the crcAV a port on the orlop deck 
 had been left unfastened, it having been merely 
 pulled in and not screwed up, through Avhich the 
 water entered, and found its way into the cargo, 
 consisting of 15,409 bushels of wheat, which had 
 been shipped from New York for Liverpool, the 
 damage to the cargo amounting to 2,793/. The 
 clauses in the bill of lading, ran as follows : " That 
 they were not responsible for the bursting of bags, 
 or the consequences arising therefrom, or for any 
 of the following perils, whether resulting from the 
 negligence, default, or error in judgment of the 
 pilot, master, mariners, engineers, or persons in the 
 service of the ship, or for whose acts the shipowner 
 
 ' Alexander v. Malcolmsoti, 3 Asp. Mar. L. C. 245. See also Palmer 
 V. The Midland Counties R. Co., 4 M. & W. 749; Steward v. The London 
 N. W. R. Co., 3 H. & C, 135 ; Mackillican v. The Compagnie des Message- 
 ries Maritimes de France, I. L. R. 6 Cal. 234. 
 
 2 Seville Sulphur Co. v. Colvils, 25 Sc, L. R. 437; Tattersall v. National 
 Steamship Co., L. R. 12 Q.B. D. 297; Cargo ex Laertes, L. R. 12 P.D. 187. 
 3 L. R. 3 App. Cas. 72.
 
 '' NEGLECT OE MAfiTETi, PILOT, OR CEEWr 4G9 
 
 was liable, or otlierwiso, namely, risk of craft, or 
 hulk, or transhipment, explosion, heat or fire at 
 sea, in craft or hulk, or on shore, boilers, steam, 
 or machinery, or from the consequences of any 
 damai^e or injury thereto, howsoever such damai^c 
 or injury might be caused, or for collision, strain- 
 ing, or other peril of the seas, navigation or land 
 transit of whatever nature or kind soever, and how- 
 soever caused, excepted." 
 
 The House of Lords on appeal held, that in order 
 to bring the loss within the exception, it must be 
 found that the ship sailed with the port in a sea- 
 worthy state, and the jury not having done so, a 
 new trial must be had, Lord Chancellor Cairns 
 observmg, " I will assume in favour of the respon- 
 dents that everything that is mentioned between 
 the words * not responsible' and the word 'excepted,' 
 is meant to be matter in respect of which there is 
 to be no liability on the part of the shipowner. 
 But lookinc: at all that is mentioned between those 
 two termini in the bill of lading, it appears to me 
 that everything which is mentioned is matter 
 subsequent to the sailing of the ship with the 
 goods on board. It appears obvious to me that 
 what is here referred to as ' peril of the seas' is, as 
 described, something which happens on the transit, 
 whether land or sea transit, and that, of course, 
 does not commence till the ship leaves the port. 
 Therefore, if it be the case, as I submit to your 
 Lordships it is, that in the earlier part of the bill
 
 470 LEGAL EFFECT OF TTTE CLAUSES, 
 
 of lading there is an engagement that the ship shall 
 be reasonably fit to perform the service which she 
 imdertakes, there is, in my opinion, nothing in the 
 latter part of the bill of lading ^vhich qualifies that 
 engagement." 
 
 This decision was followed in the case of " The 
 Marathon,"^ where it was held that the ordinary 
 warranty as to seaworthiness in a bill of lading 
 is a warranty that the ship is seaworthy at the 
 time, and reasonably likely to continue seawortliy 
 on the voyage specified. If from special circum- 
 stances in her construction she requires special 
 appliances to preserve the cargo from sea damage, 
 the OAvner is bound to provide those appliances, 
 and will be liable for damage to cargo arising from 
 the want of them. 
 
 A cargo of jute was shipped under a bill of 
 lading, which contained an exception from liability 
 for any act, neglect, or default whatsoever of the 
 master and crew in the navigation of the ship in 
 the ordinary course of the voyage. The ship 
 during her voyage encountered stormy weather, 
 and the pipe of the port water-closet was broken 
 by the pressure of the cargo, whereby water entered 
 the vessel, and the jute was damaged. In an 
 action at the instance of the indorsees of the 1)111 
 of lading, it was found as a fact. (1) " That the pipe 
 was uncased at the sailing of the vessel," and (2) 
 
 ^ 4 Asp. II. L. C. 75.
 
 "NEGLECT OF PILOT, MASTER, OR CREW:' 171 
 
 " That the default came Avithiu the exemption." 
 It was found also that (1) it ^m\s the usual practice 
 to case such a pipe before loading a cargo of jute ; 
 (2) that when the cargo was loaded, the pipe A^as 
 not visible ; and (3) that to case the pipe it would 
 have been necessary to remove part of the cargo, but 
 the evidence did not show how much : — 
 
 Held, reversing the decision of the Court of 
 Session^ that the findings of fact amounted 
 to a verdict that the ship was not seaworthy on 
 sailing, and, therefore, follo^Aing Steel v. The State 
 Line Steamship Co.," the exception in the bill of 
 lading did not relieve the shipoAvners from liability.^ 
 
 A provision in a charter-party exempting the 
 owners from liability for loss of or damage to cargo 
 caused by the " act, neglect, or default of the 
 master or crew in the navigation of the said vessel 
 in the ordinary course of the voyage," docs not 
 relieve them from liability for damage to cargo 
 caused by the joint negligence of one of their crew 
 and shore engineers employed by them to repair 
 the ship's engines, whereby water gets to the cargo 
 when the ship is moored in dock at her port of 
 destination and after part of her cargo has been 
 discharged.^ 
 
 The exceptions in a bill of lading of "negligence 
 or default of the pilot, master, mariner, engineers, 
 
 » 18 Court Sess. Cas. 4tb Series (Rettic) 5G9. 
 
 = L. R. 3 App. Cas. 72. 
 
 3 Gilroy v. Price, L. R. (1893) A. C. 5G. 
 
 * The Accomuc, L. K. 15 P. D., 208 j oD L. J. Ad. 91.
 
 472 LEGAL EFFECT OF THE CLAUSES. 
 
 or other persons in the service of the ship, whether 
 in navigating the ship or otherwise," apply to 
 damage done to goods whilst heing stowed and 
 before the voyage has commenced. 
 
 The above exceptions are to be read as meaning 
 an absolute exemption from liability for damage 
 caused, whether in negligently navigating the ship, 
 or in negligently bringing about any other losses 
 from which the shipowner has exempted himself 
 in the bill of lading/ 
 
 The plaintiff shipped a quantity of oranges on 
 board the defendants' vessel, under a bill of lading, 
 excepting (inter alia) "damage from any act, 
 neglect, or default of the pilot, master, or mariners 
 in the navigation or management of the ship." 
 The oranges were damaged by the neligent stowage 
 of the stevedore. Held, that the defendants were 
 not protected by the exception in the bill of lading, 
 as the stevedore was not included in the list of 
 persons whose acts, &c., were excepted; and the 
 words "management of the sliip" did not include 
 improper stowage.^ 
 
 By the terms of a charter-party a ship described 
 as being at A. is to proceed to B. and there load a 
 cargo for delivery at C; the sliipo^^aier not to be 
 liable (infer alia) for the negligence of the master 
 or crew, or other servants, "during the said voyage," 
 and after part of the cargo hasbeen taken on board 
 
 1 Korman v. Biiinington, L. R. 25 Q. B. D, 475. 
 = The Ferro, L. E. (1893) p. 38.
 
 "NEGLECT OF MASTEF, PILOT, OR CREW." 473 
 
 at B, and before the ship was started, such cargo is 
 damaged by water which gets into the hold through 
 a valve in the engine room bemg left open by the 
 nca'lifrcnce of one of the ensineers, such damage 
 is caused by the above excepted peril "during the 
 said voyage," and the ship was held not to be 
 unseaworthy, and therefore the shipowner is not 
 liable.^ 
 
 "Where by the terms of a bill of lading shipo^vners 
 are relieved from liability for damage to cargo when 
 caused by "perils of the sea and accidents of 
 navigation, even when occasioned by the negligence, 
 default, or error in judgment of the pilot, master, 
 mariners, or other servants of the shipowners," and 
 the cargo is damaged by sea water getting into the 
 hold through an iron rivet being loosened by stress 
 of weather, a fact which the master discovers during 
 the voyage, but neglects to remedy and thereby 
 permits the damage to be largely increased, such 
 damage is covered by the above exceptions, and the 
 shipowners are not liable for any portion of it.^ 
 
 In the case of Hamilton v. Pandorf,^ a cargo of 
 rice was shipped under a charter-party and bills of 
 lading, which excepted " dangers and accidents of 
 the seas .... of whatever nature and kind." 
 During the voyage the cargo was damaged by sea 
 water entering through a pipe which had been 
 gnawed by rats. It was admitted that the ship was 
 
 1 The CaiTon Tark, L. R. 15 P. D. 203 ; 59 L. J. Ad. 74. 
 » Tlic Cressington, L. R. (1891), 152; 60 L. J. Adrn. 25. 
 ' L. K. 12 App. Gas. 51S ; 57 L. J. Q. B. 24. 
 60
 
 474 LEGAL EFFECT OF THE CLAUSES. 
 
 seaworthy, and that there was no negligence. It 
 was held, that the damage was within the exception, 
 and that the shipowner was not liable. 
 
 Where one of two plate glass show cases whilst 
 being landed at Eangoon was entirely destroyed 
 owing to the carelessness of the defendants' servants, 
 it was held that the defendants were protected by 
 the negligence clause in the bill of lading, and that 
 the plaintiffs could not recover.^ 
 " Dangers and With vcry rarc exceptions, every bill of lading 
 
 perils of the , . . p j_i i 
 
 sea." provides against losses arising irom the dangers or 
 
 perils of the sea or river, and the clause protecting 
 the shipowner in this respect, which is usually met 
 with in bills of lading, is as follows : 
 
 " All and every other dangers and accident of the 
 seas, rivers, land carriage, and navigation of what- 
 ever nature or kind soever excepted." 
 
 In his work on " Perils of the Sea," Mr. Bailey 
 defines them as " all losses caused by the action of 
 wind and water acting on the property insured 
 under extraordinary circumstances, either directly 
 or mediately, without the intervention of other 
 independent active external causes." "The words 
 ' Perils of the seas ' embrace all kinds of marine 
 casualties, such as shipwreck, foundering, stranding, 
 &c., and every species of damage done to the ship 
 or goods at sea by the violent and immediate action 
 of the Avinds and waves, not comprehended in the 
 ordinary wear and tear of the voyage, or directly 
 
 'JcUicoe t. The B. I. S. N. Co., Ld., I, L. 11. 10. Cal. 489.
 
 ''DAXGEFS AND PERILS; OF THE SEA:' 475 
 
 referable to the acts and negligence of tlie assured 
 as its proximate cause." ^ 
 
 " The action of the sea itself is one of the causes 
 contemplated. "Whether the damage is done by 
 the sea water getting into the ship, and coming 
 directly into contact with the goods ; or, indirectly, 
 by the waves beating on the ship, and so injuring 
 her as to prevent or delay the voyage, or causing 
 her to roll, or strain, with the result that the goods 
 become displaced and damaged,^ these are all losses 
 by dangers of the sea." 
 
 "Wharton (referring to Jones on Bailments, p. 98,) 
 in defining " perils of the sea," says, " They are 
 strictly the natural accidents peculiar to the water, 
 but the law has extended this phrase to comprehend 
 events not attributable to natural causes, as cap- 
 tures by pirates, and losses by collision, where no 
 blame is attributable to either shij^, or, at all events, 
 to the injured ship. The word ' peril,' like 
 periculiu7i, Lat., from which it is derived, is in itself 
 ambiguous and sometimes denotes the risk of 
 inevitable mischance, and sometimes the danger 
 arising from the want of due circumspection." 
 
 Kent (vol. iii., p. 301, 10th ed.) says, " Perils of 
 the sea denote natural accidents peculiar to that 
 element, which do not happen by the intervention of 
 man, nor are to be prevented by human prudence." 
 
 1 Aruould on M. I., 6th ed. vol. 2. p. 7-4-t. 
 " The Catheriue Chalmers, 32 L. T. 847.
 
 476 LEGAL EFFECT OF THE CLAUSES. 
 
 The only exception wliicli he admits to the 
 definition is loss by pirates. . 
 
 A collision caused by the negligence of another 
 ship is a " danger of navigation" within an excep- 
 tion ill a charter-j^arty of " dangers and accidents 
 of the seas, rivers and navigation." 
 
 Thus, where by a charter-party made between 
 the plaintiffs and the defendants, the plaintiffs 
 agreed to load at Cardiff on board the ship " Garston" 
 a cargo of coals for Bombay. While in the port 
 of Cardiff the " Garston" came into collision with 
 another vessel, the "Creadon," in consequence of 
 which the coals laden on board the " Garston" had to 
 be discharged and rcshipped. The cargo of coals 
 was thereby damaged and a considerable quantity 
 was lost. The collision was due solely to the 
 negligence of the " Creadon." Tlie coals having in 
 consequence of the loss through the collision 
 been short delivered at Bombay, the defendants 
 deducted from the balance of the freight the cost of 
 the coals short delivered. 
 
 The plaintiffs brought an action to recover, 
 amongst other things, the balance of freight so 
 deducted. The defendants counter-claimed for the 
 damage caused to the coals in consequence of the 
 collision. At the trial, Grantham, J., held that the 
 defendants were entitled to deduct from the freight 
 the cost of the coals short delivered, notwith- 
 standing that the loss was occasioned by an excepted 
 peril within the charter-party ; and as to the
 
 ''DANGERS AND PERILS OF THE SEA:* All 
 
 defendants' counter claim, the learned Judge held 
 that the damage was caused by a danger of navi- 
 gation within the exception in the charter-party, 
 and that the plaintiffs were not liable. 
 
 The plaintiffs and defendants both appealed from 
 this decision which, however, was affirmed Ijy the 
 Coui't of Appeal, Lord Esher, M. R., remarking : 
 " The question arises whether a loss, the real moving 
 cause of v. Inch is a collision caused by the negli- 
 gence of another ship, is or is not a danger or 
 accident of navigation. I still think that such a 
 loss is not a loss by ' perils of the sea.' 13 ut in 
 the charter-party here, which is not the case with 
 all charter-parties, besides the exception of ' dangers 
 and accidents of the seas,' there is also the excep- 
 tion of ' dangers and accidents of navigation. ' 
 We must not construe these expressions as identical, 
 for if we do so, we make the latter expression of no 
 effect. ' Dangers and accidents of navigation ' 
 mean something different from and beyond ' perils 
 of the sea.' Therefore, a decision that a loss such 
 as the loss here has not been caused by a peril of 
 the sea does not determine whether or not it has 
 been caused by a danger or accident of navigation- 
 A loss caused by perils of the sea is a loss caused 
 by some unusual action of the elements, as, for 
 instance, by the sea causing a spiked instrument to 
 be driven into the ship. I3ut what is a ' danger of 
 navigation' — navigation being the act of navigating 
 a ship ? I will not say that it is confined to a danger
 
 478 LEGAL EFFECT OF THE CLAUSES. 
 
 arising from the navigation of another ship, for 
 -SVC can easily understand an accident arising 
 from the navigation of the ship herself. But, 
 besides a danger arising from the navigation of 
 your ovrn ship, there certainly is the danger of an- 
 other ship, by negligence running into you. The 
 danger arising from another ship being improperly 
 navigated is a well-known danger: and a danger 
 caused by bad navigation is surely a ' danger of 
 navigation.' I think, therefore, that a danger 
 caused by the bad navigation of another ship, though 
 not a ' peril of the sea,' is a ' danger of navigation.' 
 Where, however, the loss is brought about by the 
 shipowners' own servants, that, I think, is not a 
 * danger of navigation' within the meaning of tliose 
 words in a charter-party or bill of lading, for the 
 danger there is a danger arising from the ship- 
 owners having employed inefficient or negligent 
 servants."^ 
 
 In delivering judgment in the case of the Xantho^ 
 in the House of Lords, Lord Herschell said : " The 
 question what comes within the term * perils of the 
 sea' (and certainly the words ' dangers and accidents 
 of the sea' cannot have a narrower interpretation) 
 has been more frequently the subject of decision in 
 the case of marine policies than of bills of lading. 
 I will first notice the decisions pronounced with 
 regard to the former instrument, and then enquire 
 
 1 S. S. " Garston" Co. v. Hickie, L. R. 18 Q. B. D. 17 ; 56 L.J.Q.B. 38- 
 « L. R. 12 App. Gas. 503 ; 56 L. J. Ad. 116.
 
 ''DANGERS AND PERILS OF THE SEA." 479 
 
 liOAV far a diircrcnt interpretation is to be applied 
 in the case of the latter. I think it clear that the 
 term 'perils of the sea' does not cover every 
 accident or casnalty Avhich may happen to the 
 subject-matter of the insurance on the sea. It must 
 he a peril ' of ' the sea. Again, it is v>'e\\ settled 
 that it is not every loss or damage of which the 
 sea is the immediate cause that is covered by these 
 Avords. They do not protect, for example, against 
 the natural and inevitable action of the winds and 
 waves, which results in what may be described as 
 Avear and tear. There must be some casualty, some- 
 thing? which could not be foreseen as one of the 
 necessary incidents of the adventure. The purpose 
 of the policy is to secure an indemnity against 
 accidents which may happen, not against events 
 Avhich must happen. It was contended that those 
 losses only were losses by perils of the sea which 
 Avere occasioned by extraordinary violence of the 
 winds or waves. I think this is too narrow a con- 
 struction of the words, and it is certainly not 
 supported by the authorities or l)y common under- 
 standing. It is beyond question that if a vessel 
 strikes iipon a sunken rock in fair weather and 
 sinks, this is a loss by perils of the sea. And a loss 
 by foundering, owing to a vessel coming into 
 collision with another vessel, even when the collision 
 results from the negligence of that other vessel, 
 falls within the same category. Indeed, I am aware 
 of only one case which throws a doubt upon the
 
 480 LEGAL EFFECT OF THE CLAUSES. 
 
 proposition that every loss by incursion of the sea, 
 due to a yesscl coming accidentally (using that 
 word in its popular sense) into contact with a foreign 
 body, which penetrates it and causes a leak, is a 
 loss by a peril of the sea. I refer to the case of 
 Cullen V. Butler,^ where a ship having been sunk 
 by another ship firing upon her in mistake for an 
 enemy, the Court inclined to the opinion that this 
 was not a loss by perils of the sea. I think, how- 
 ever, this expression of opinion stands alone, and 
 has not been sanctioned by subsequent cases. 
 
 '' But it is said that the words ' perils of the sea' 
 occurring in a bill of lading, or other contract of 
 carriage, must receive a different interpretation 
 from that which is given to them in a policy of 
 marine insurance ; that in the latter case the causa 
 proxima alone is regarded ; while in the former you 
 may go behind the causa proxima, and look at what 
 was the real or efficient cause. It is on this view 
 that the Court of Appeal acted in Woodley v. 
 Michelh^* 
 
 " Now, I quite agree that in the case of a marine 
 policy the causa proxima alone is considered. If 
 that which immediately caused the loss was a peril 
 of the sea, it matters not how it was induced, even 
 if it were by the negligence of those navigating the 
 vessel. It is equally clear that in the case of a 
 bill of lading you may sometimes look behind the 
 immediate cause, and the shipowner is not protected 
 
 » 5 M & S. 461. » L. R. 11 Q. B. D. 47.
 
 ^'DANGERS AND PERILS OF THE SEAJ' 481 
 
 by the exception of perils of the sea in every case 
 in which he woukl be entitled to recover on liis 
 policy, on the ground that there has been a loss by 
 such perils. But I do not think this difference 
 arises from the "words ' perils of tlu) sea' having a 
 different meaning in the two instruments, but from 
 the context or general scope and purpose of tlie 
 contract of carriage excluding in certain cases the 
 operation of the excej^tion. It would, in my 
 opinion, be very objectionable, unless well-settled 
 authority compelled it, to give a different meaning 
 to the same words occurring in two maritime 
 instruments. I am unable to concur in the view 
 that a disaster which happens from the fault of 
 somebody can never be an. accident or peril of the 
 sea ; and I think it would give rise to distinctions 
 resting on no sound basis if it were to be held that 
 the exception of perils of the seas in a bill of lading 
 was always excluded when the inroad of the sea 
 which occasioned the loss was induced by some 
 intervention of human agency. Take the case of a 
 ship which strikes upon a rock and is lost, because 
 the light which should have warned the mariner 
 against it has become extinguished owing to the 
 negligence of the person in charge. Why should 
 this not be within the exception, whilst a similar 
 loss arising from a vessel coming into contact with 
 a rock not marked upon the chart admittedly would 
 be ? And what substantial distinction is there 
 
 between this latter case and that of a vessel founder* 
 CI
 
 482 LEGAL EFFECT OF THE CLAUSES. 
 
 ing tlirougli collision with a sliip at anclior left at 
 night without lights ?" 
 
 Where a ship is held liahle for a collision caused 
 by a defect in her machinery, and snch defect is 
 due, not to her master or crew, but to the negli- 
 gence or default of other persons employed by the 
 shipoT^Tier to repair the machinery on shore bsfore 
 the commencement of the voyage, and for the 
 purposes of the voyage. The collision is occasioned 
 by " improper navigation" within the meaning of 
 section 54, sub-section 4, of the Merchant Shipping 
 Act Amendment Act, 1862, so as to entitle the 
 owners to limit their liability under the provisions 
 of that Act. 
 
 All damage wrongfully done by one ship to 
 another Avhilst the ship which does the damage is 
 being navigated, and where the wrongful act of 
 the ship which does the damage is due to the 
 negligence of any person for whose negligence the 
 owner is liable, is comprised within section 54 of 
 the Merchant Shipping Act Amendment Act, 1862, 
 unless such negligence occurs with the privity of 
 the owner.^ 
 
 The clause '' from loss or damage of or to any 
 goods or merchandise caused by improper naviga- 
 tion of the ship carrying the goods or merchandise 
 or of any other ship," which is to be found in Club 
 insurance policies, does not refer simply to improper 
 navigation with reference to the ship berself, but 
 
 I The Warkwortb, L. E. 9 P. D. 145 ; 53 L. J, Ad, Co.
 
 "DANGEBS AXD PERILS OF THE SEA.*' 483 
 
 also to improper navigation with reference to goods 
 in the ship. It implies something wrongly clone, 
 or wrongly omitted to be done, by the shipowner 
 or his servants, for whom he is responsible at some 
 time or other. Thus where the j^laintiffs' ship 
 liaving encountered bad weather, put back to coal 
 and trim her cargo. Going into harbour she took 
 the ground but was got off. The pumps were put 
 on to try whether she had made any water, and 
 for this purpose the bilge-cock was opened, and 
 through the negligence of the crew, was not closed 
 when the pumping ceased. Shortly afterwards the 
 sea-cock was opened to fill the boilers, and through 
 like negligence was left open, and the water con- 
 sequently entered and damaged the cargo. On 
 these facts it was held that the damage arose from 
 " improper navigation" within the meaning of the 
 clause.^ 
 
 In another case " where the shipowner neglected 
 to efficiently close a loading port in the side of the 
 ship. The act of negligence occurred before the 
 completion of the loading. Goods were damaged 
 by sea water which leaked in during the voyage, 
 but the leak did not endanger or impede the naviga- 
 tion ( f the ship. It was held, that the damage was 
 caused by improper navigation of the ship within 
 the meanini? of the Articles of Association of a 
 Shipowners Mutual Indemnity Association. It is 
 
 > Good r. The London S. Shipowners Protecting Association; L.R. G C.P.563. 
 - Carmichacl & Co. r. The Liverpool Sailing Shipowners' Mutual Indem- 
 nity Association, L. R. 19 q. B. U. 242; 5G L. J. Q. B. -i28.
 
 4S4 LEGAL EFFECT OF THE CLAUSES. 
 
 necessary to bear in mind that the construction of this 
 clause proceeds upon considerations other than 
 those raised by somewhat similar conditions in the 
 bill of lading. Smith, J., in his judgment in this 
 case remarking " as to the authorities, I only desire 
 to add that I do not deal at all with the cases in 
 which similar words in bills of lading have been 
 discussed and construed, because I do not think 
 that those cases are in point." And Wills, J., said, 
 " The case is not free from difficulty, and the course 
 which the argument took is an illustration of the 
 danger of trying to arrive at the meaning of a term 
 in a particular contract by the aid of the construc- 
 tion placed upon the same term in a contract of a 
 totally different nature. "With regard to cases 
 dealing with bills of lading, the words which we 
 have to construe, are in the generality of cases, 
 found in connection with a number of other words 
 which have such a large effect in limiting or extend- 
 ing their meaning that we can gather but little 
 from them as to the construction of the words when 
 standing, as they do here, by themselves. In the 
 same way with reference to the case of " The Wark- 
 worth," the section of the Merchant Shipping Act 
 there construed, deals with a state of things so 
 different from this contract of insurance, that we 
 are in danger of being misled, rather than guided, 
 by the construction of the word in such widely 
 different circumstances." 
 Where, however, the act of putting cargo into
 
 "DAXGERS AND PERILS OF THE SEA.'' 485 
 
 hold so satui-at(Hl ^\\{]\ a tarry siiLstaiico lliat llio 
 ^vliolo cari^o was tainted, and damaged, it was lield 
 distingnisliing the above cases, that the damage was 
 occasioned hy the had management of the vessel as a 
 receptacle or warehouse for the goods, which did 
 not affect her qualities as a ship, and did not come 
 witliin the term " improper navigation," and fur- 
 tlier tliat it was a case of improper stowage within 
 the meaning of the rules of the defendants associa- 
 tion, and that on Loth these grounds the defendants 
 were protected from liability.^ 
 
 The words " dangers of the river" in the hill of 
 lading, signify the natural accidents incident to the 
 navigation, not such as might he avoided by the 
 exercise of that discretion and foresight which are 
 expected from persons in such employment.^ 
 
 In Alabama, where inland water transportation 
 is very great, there seems to be no disposition to 
 make any distinction between " dangers of the river" 
 and " dangers of the sea ;" and it is considered that 
 the "perils of the sea and of the river" are so 
 nearly allied that they may be considered the same, 
 except in the few instances in which the reason 
 differs. That there is a settled distinction between 
 perils of the " navigation" and the " act of God" in 
 bills of lading, is considered to be settled, and that 
 the bill of lading may, in transportation by water, 
 
 1 The Canada Shipping Co., Ld. v. The British Sliipo-smcrs Mutual Pro- 
 tection Association, Ld., L. R. 23 Q. B. D. 342; 5S L. J. Q B. 462. 
 * Ancr. on Car. s. 168.
 
 486 LEGAL EFFECT OF THE CLAUSES. 
 
 introduce exceptions not existing by the Common 
 
 " Dangers of the road," if applied to land, must 
 be construed of dangers of the kind that are properly 
 caused l)y roads, such as overturning of the carriages.^ 
 
 The following losses have been held to be included 
 in the term " dangers or perils of the sea," &c. : — 
 
 Loss by pirates.^ 
 
 Prom collision when it is loss by foundering, owing 
 to collision with another ship, if it occurs without 
 fault in the carrying ship/ 
 
 By the common risks of navigation, from rocks, 
 sands, rapids, and the like, when the loss occasioned 
 thereby happens without negligence or default in the 
 master or crew.^ 
 
 Damage by sweating when not occasioned by bad 
 stowage or negligence. ^ 
 
 Animals being killed or damaged by motion of the 
 ship during a storm. ^ 
 
 Where the ship is stranded.^ 
 
 Loss by the wilful, but not barratrous, act of the 
 crew, in throwing the ballast overboard.^ 
 
 A ship loaded with hides and tobacco whilst on 
 
 * Ang. on Car. s. 108. 
 
 2 De Rothschild v. The Royal Mail Steam Packet Co., 21 L. J. Ex. 273. 
 
 3 Pickering V.Barclay, Styles, 132; 2Roll. Ab. 248 ; Kay on Sh., vol. 1, 411. 
 
 * Buller V. Fisher, 3 Esp. 67 ; Smith v. Scott, 4 Taunt. 125 ; The Xautho, 
 L. R. 12 App. Cas. 503. 
 
 « Fletcher v. Inglis, 2 B. & Aid., 315. 
 
 Clark V. Barnwell, 12 How. 272 ; 19 Curtis 131. 
 
 ' Gabay v. Lloyd, 3 B. & C. 793 ; Lawrence v. Aberdein, 5 B. & A. 107. 
 
 « Hahn v. Corbett, 2 Bing. 205. 
 
 « Dixon V. Sadler, 9 L. J. Ex. 48. 
 
 \
 
 " DANGERS AND PERILS OF THE SEA/' 487 
 
 licr voyage encountered bad weather and shipped 
 much sea water, whereby the hides were wetted and 
 rendered putrid. Neither the tobacco nor the 
 packages containing it were immediately in contact 
 with nor directly damaged by sca-Avater, but the 
 tobacco was damaged and deteriorated in flavour 
 by the foetid odour proceeding from the putrid 
 hides. 
 
 Held, that this Avas a loss by perils of the sea.^ 
 
 Loss by jettison rendered necessary by storms or 
 tempests.^ 
 
 Where a vessel, for the jiurpose of discharging 
 her cargo, was fastened by tackles to a barge on one 
 side, and a lighter on the other, but the lighter's 
 tackle breaking, water got into her port holes and 
 damaged the cargo .^ 
 
 While a steamer Avas loading in a harbour, her 
 draught Avas increased by the AAcight of the cargo, 
 until the discharge pipe was brought boloAv the 
 surface of the Avater, which then flowed down the 
 jiipe under the A'alve, and some cocks or vah'es in 
 the machinery liaA'ing been negligently left open, 
 water floAved into the hold and injured the goods.* 
 
 Loss occasioned by hidden obstructions in the riAxr, 
 ncAA'ly placed there, and of a character that human 
 skill or foresight could not have discovered and 
 
 ' Montaya v. The London Ass. Co., 6 Ex. 451 ; 20 L. J. Ex. 2Gi. 
 
 - The MUwaukce Belle, 21 L. T. 801. 
 
 ^ Laurie r. Douglas, 15 M. & AV. 7-lG. 
 
 * Davidsou v. Buruand, L. 11. 4 C. P. 117; 3S L. J. C. P. 73.
 
 488 LEGAL EFFECT OF THE CLAUSES. 
 
 avoided.^ Thus, runniug on a recent snag which, 
 could not be seen, is within the exception " dangers 
 of the river. "^ 
 
 Where a vessel was chartered to proceed to New- 
 port and there load for San Praucisco, the freight of 
 which voyage was insured, but before reaching New- 
 port she got ashore, and the time necessary for 
 getting her off and repairing her so as to be a cargo- 
 carrying ship, was so long as to put an end, in a 
 commercial sense, to the commercial speculation, and 
 the charterers abandoned the contract, and hired 
 another vessel ; it was held, that there had been a 
 total loss of the chartered freight by perils of the 
 seas within the meaning of the policy.^ 
 
 The following losses have been held not to be 
 included in the term dangers or perils of the sea, 
 &c.:— 
 
 Collision arising from the negligence of master 
 and crew navigating the vessel which carries the 
 goods. ^ 
 
 Pire has never been regarded as a peril, danger, or 
 accident of the sea, within the meaning of those 
 terms as known to mercantile usage or the law.^ 
 
 Injury by rats to cargo, although every possible 
 precaution is taken to prevent it.*^ 
 
 ^ Ang. on Car., s. 1G8. 2 Parsons on Sh., vol. 1, 257 u.3. 
 
 2 Jackson v. The Union Marine Insurance Co., L. 11. 10 C. P. 125 : 44 L. 
 J. C. P. 27. 
 
 * Lloyd V. Gen. Iron Screw Collier Co., 33 L. J. E-t. 2G9 ; Grill r. Gen. 
 Iron Screw Collier Co., L. R. 3 C. P. 47G ; 37 L. J. C. P. 205. 
 
 = The Hongkong and Shangjiai Banking Corporation, r. T. Baker, 7 Bom. 
 II. C. Rep. O.C.J. 203. 
 
 » Kay V. Wheeler, L. R. 2 C. P. 302; Lavcroni v. Drury, 22 L. J. Ex.2, 
 The Carlotta, 3 Asp. Mar. L. C. N. S. 45C5 j Dale v. Hall, 1 VVils. 281. 
 
 I
 
 "DANGERS AND PERILS OF THE SEA:' 489 
 
 Damage hy cockroaches.^ 
 
 A loss arising from rats eating holes in the sliij)'s 
 bottom is not "svithin the perils insured against by 
 the common form of a policy of insurance.^ 
 
 Loss caused by worms Avhich have destroyed the 
 ship's bottom.^ 
 
 Loss by lightning, though an act of God, is not a 
 peril of the sea.'' 
 
 Loss by lieat.^ 
 
 If a ship be driven by stress of weather on an 
 enemy's coast and there captured.*^ 
 
 AVhere a vessel, about to sink from the effects of 
 bad weather, puts into an intermediate port and the 
 master sells the ship and cargo without necessity.'^ 
 
 If a ship, hove down on a beach within the tide- 
 way for repairs, be thereby bilged and damaged.^ 
 
 Meat shipped at Hamburg for London was 
 delayed on the voyage by tempestuous weather, and 
 solely by reason of such delay became putrid, and 
 was necessarily thrown OA'er board at sea ; this was 
 held not a loss by perils of the sea, or within the 
 words . *' all other perils, losses and misfortunes" 
 in the policy.^ 
 
 * Tlio Milotus, cited iu Parsons ou Sh., vol. 1, 258 u. 
 
 » Hunter v. Potts, 4 Camp. 203. ' Rohl v. Parr, 1 Esp. 445. 
 
 ♦ The Hongkong & Shanghai Banking Corp. v. T. Baker, 7 Bom. H. C. 
 
 Rep. o. c. J. 204. 
 » The Freedom, L. R. 3 P. C. 594. 
 Green v. Elmslie, Peake's N. P. C. 212 ; sec also Ilahu r. Corbett, 2 Biuj. 
 
 211; Li vie v. Janson, 12 Bast, 648. 
 ' Cannan v. Mcaburn, 1 Bing. 243. 
 » Thompson v. Whit more, 3 Taunt. 227. 
 9 Tavlor v. Dunbar, L. R. 4 C. P. 206. 
 
 C2
 
 400 LEGAL EFFECT OF THE CLAUSES. 
 
 Obliteration of TliG owiiei' of tliG goocls, "wlicii lie prcseiits them 
 
 marks. 
 
 for transportation, should always have them properly 
 marked, and if the carrier makes a misdelivery in 
 consequence of their being incorrectly marked, the 
 owner must hear the loss. Goods ought to he plainly 
 and Icgihly marked, so that the owner or consignee 
 may he easily knowji; and if, in consequence of 
 omitting to do so, without any fault on the part of the 
 carrier, the owner sustains a loss or any inconveni- 
 ence, he must impute this to his own fault.^ 
 
 In Krender v. Woolcott,^ it was held, that if a 
 carrier receives goods for transportation, and gives a 
 hill of lading for them, specifying the name of the 
 consignee, he is responsible for the safe delivery of 
 the goods ; and, if it is necessary, he is bound to see 
 that the goods are properly marked. 
 
 The exception "not accountable for inaccuracies, 
 obliteration, or absence of marks, numbers, address, 
 or description of goods shipped," will protect the 
 shipowner from liability for the misdelivery of the 
 cargo, if he can show that the absence or oblitera- 
 tion of the specified marks caused the landing of 
 the cargo at a port other than the port of destina- 
 tion ; but unless he can prove this, it will not be 
 sufficient for him to show that the packages or 
 cases did not bear, as alleged, on them the name of 
 the port at which they were to be delivered.^ 
 
 Where the plaintiff had shipped a quantity of 
 
 ^ Aug, ou Car., s. 136, and note. - 1 Hilton, 223. 
 
 .3 Madhub CLunder Dcy v Law, 13 Heu, L, K. 394.
 
 OBUTEBATTON OF MABKfi. 491 
 
 liomp from jManila to Liverpool in one of the 
 Company's steamers and claimed in respect of 70 
 bales of the hemp not delivered to him. According 
 to the hill of lading the hales missing had been 
 shipjx'd and received on hoard, and at the trial at 
 the assizes at Liverpool, before Mr. Justice Day, 
 Avitnesses Avere called to prove that the bales were 
 in fact received on board. The mate who gave the 
 receipt was called and so stated, and the custom- 
 house officer Avho had checked the entries also gave 
 evidence to that effect. As to 22 of the bales, the 
 defence set up was that they had been delivered to 
 tlie " master-porter" at Liverpool, and that by the 
 Liverpool Dock Acts delivery to him was good 
 delivery. The plaintiff, however, disputed the 
 delivery, and the jury found that in fact the bales 
 had not been so delivered. As to the other bales 
 missing, 5 i in number, it appeared that the addresses 
 on them had been effaced by the effect of sea water 
 so that they could not be identified, but there being 
 three consignees of hemp shipped on board, it was 
 proposed to divide the bales between them, but the 
 Company demanded as a condition that the claim 
 as to the 22 bales should be given up, and hence 
 the action in which the jury found for the plaintiff 
 for the amount claimed. On an application on 
 the part of the Company for a new trial on the 
 ground that the verdict was against evidence, Lord 
 Coleridge, in giving judgment, said: ^^ J?rimd 
 /<^c/(? the bill of lading was conclusive, but here it 
 
 \
 
 492 LEGAL EFFECT OF THE CLAUSES. 
 
 "was supported by evidence that the goods mentioned 
 had actually been received on board. Then, were 
 the bales missing delivered ? It was plain that the 
 plaintiff had never received them, and as to the 22 
 bales the jury had found that in fact they had not 
 been delivered to the master-porter." 
 
 As to the 51 baleSj of which the addresses were 
 obliterated by sea water, it appeared that there 
 might have been an arrangement; but that the 
 Company made it a condition that the plaintiff 
 should forego all claim to the 22 bales, which Avas 
 a stipulation they had no right to make. 
 
 Mr. Justice Mathew concurring said : " As to the 
 22 bales it was a question entirely for the jury, and 
 if ever there were a case for a jury this was one. 
 It Avas for the jury to consider the arguments 
 urged as to the impossibility of so large a number 
 of bales disappearing, or the probability of their 
 having been delivered by mistake to some other 
 person. It was a question very difficult to answer, 
 and which the plaintiff was not bound to answxr. 
 .What had become of the goods ? As to the 54i 
 bales of which the addresses had been erased by the 
 action of sea water, he was not aware that such a 
 question had ever arisen before, and there was 
 certainly no decision upon it, But with the good 
 sense which generally characterized commercial 
 men, the parties would, doubtless, have arranged 
 the dispute by the consignees dividing between 
 them the bales remaining, and coming upon under-
 
 OBLITERATION OF MARK^. 403 
 
 'O'ritcrs for any loss or damage caused by perils of 
 the sea, liad not the Company insisted on the 
 plaintiff giving np his claim to the 22 bales, "«'hich 
 Avas not a reasonable position for them to take." ^ 
 
 Cotton belonging to different OAvners AA'as shipped 
 ill bales specifically marked, at Mobile for Liver- 
 ])ool : 43 bales belonged to the plaintiffs, and Avere 
 insured by the defendants against the usual perils. 
 In the course of her A'oyage the ship Avas AA'recked 
 near Key West , all the cotton AA'as more or less 
 damaged ; some of it AA'as lost, and some AA'as so 
 damaged that it had to be sold at Key "West. The 
 rest of the cotton Avas conveyed in another A'essel 
 to Liverpool. The marks on a very large number 
 of the bales Avere so obliterated by sea vrater that 
 none of the cotton lost or sold at Key West, 
 and a j^ortion only of that carried to LiA^erpool, 
 could be identified as belonging to any particular 
 consignee. Tavo only of the plaintiffs' 43 bales 
 Avere identified, and these Avere delivered to them. 
 
 Held, that in respect of the cotton lost, and that 
 sold at Key AVest, there AA'as a total loss of a part 
 of each OAA^ner's cotton, and that all the OAA^iers 
 became tenants-in-common of the cotton Avliich 
 arrived at Liverpool, and could not be identified ; 
 the share of each OAA'ner's loss in the cotton totally 
 lost or sold at Key West, and his share in the 
 remainder Avhich arrived at Liverpool being in the 
 
 ' Bencke v. The Anglo-Australasiau S. N. Co., 2 Times L. R. 71-1-.
 
 404 LEGAL EFFECT OF THE CLAUSES. 
 
 proportion that the quantity sliipped by him bore 
 to the -whole quantity shipped, according to the 
 rule in cases of general average ^vhere it is not 
 known whose goods are sacrificed : and, consequent- 
 ly, that there was no total loss, either actual or 
 constructive, of the plaintiff's 41 bales.^ 
 
 Eovill C. J, in delivering judgment said : " We 
 must necessarily consider what is the effect of 
 the obliteration of marks upon various goods of 
 the same descrij)tion which are shipped in ona 
 vessel, and which witliout any fault of the owners 
 become so mixed that one part is undistingnishable 
 from another ; and it seems to us not altogether 
 immaterial to inquire in whom the property in the 
 goods is vested under such circumstances, or 
 whether they become bond vacantia, and pass to 
 the first finder or to the Crown. In endeavouring 
 to arrive at a conclusion upon that subject, we 
 should be guided by any direct authorities, as well 
 as by analogous cases in our own law, and by the 
 principles of law which have been laid down and 
 established in our Courts ; and, as the rules and 
 principles of our mercantile and maritime law are 
 in a large measure derived from foreign sources, 
 we gladly avail ourselves of the codes and laws of 
 other countries, and specially of the Ptoman Civil 
 Law, to see what amongst civilized nations has 
 usually in like cases been considered reasonable 
 and just. In our own law there are not many 
 
 ^ Spence v. The Union Marine Insui'ance Co., Ld., L. R. 3 C. P. 427.
 
 OBLITERATION OF MARKS. 49i 
 
 authorities to be found upon this subject ; hut, as 
 far as they go, they are in favour of the view that, 
 ■when goods of different owners become by accident 
 so mixed together as to be imdistinguishable, the 
 owners of the goods so mixed become tenants-in- 
 common of the whole, in the proportions which 
 thev haA^e severally contributed to it. It has been 
 long settled in our law, that, where goods are 
 mixed so as to become undistinguishable, by the 
 wrongful act or default of one owner, he cannot 
 recover, and will not be entitled to his proportion 
 or any part of the property from the other owner : 
 but no authority has been cited to shew that any 
 such principle has ever been applied, nor indeed 
 could it be applied, to the case of an accidental 
 mixing of the goods of two owners ; and there is 
 no authority nor sound reason for saying that the 
 goods of several persons which are accidentally 
 mixed together, thereby absolutely cease to be the 
 property of their several owners, and become bond 
 vacantia. The goods, before they arc mixed being 
 the separate property of the several owners, unless 
 they cease to be property by reason of the acci- 
 dental mixture, when they would not so cease if 
 the mixture were designed, which is absurd, must 
 continue to be the property of the original owners ; 
 and as there would be no means of distinguishing 
 the goods of each, the several owners seem neces- 
 sarily to become jointly interested, as tenants-in- 
 common, in the bulk. The mixing together of
 
 406 LEGAL EFFECT OF THE CLAUSES. 
 
 things solid or dry {commix tio) or of things liquid 
 {confasio) ^vhich belong to different owners, has 
 no effect upon their rights in the things, if the 
 latter can be separated. If, on the other hand, 
 such separation is not practicable, then the former 
 proprietors of the things now connected will be joint 
 owners of the whole, whenever the mixture has 
 been made with the consent of both parties, or by 
 accident.' We are, by authorities in our OAvn law, 
 by the reason of the thing, and by the concurrence 
 of foreign writers, justified in adopting the conclu- 
 sion that, by our own law, the proj)erty in the 
 cotton of which the marks were obliterated did not 
 cease to belong to the respective owners ; and that, 
 by the mixture of the bales, and their becoming 
 undistinguishable by reason of the action of the sea, 
 and without the fault of the respective owners, 
 these parties become tenants-in-common of the 
 cotton, in proportion to their respective interests. 
 This result will follow only in those cases, where 
 after the adoption of all reasonable means and exer- 
 tions to identify or separate the goods, it was found 
 impracticable to do so." 
 
 Insufficient Negligent packing upon the part of the owners 
 
 S?tear7^^'^ of tlic goods, of wliicli the carrier cannot be aware, 
 or could not obviate, will exonerate him from his 
 liability for losses which are caused by such negli- 
 gent packing.^ But this rule must bo looked at 
 strictly, for it has been decided, that in an action 
 
 ^ Wharton ou Neg. Sec. 566.
 
 INSUFFICIENT PACKING, WEAR AND TEAR. 407 
 
 apjainst a carrier for damage to goods, it is enough 
 to prove the condition and value of the goods Avhen 
 delivered to him, and Avhen received by the con- 
 signee ; and if the goods arc damaged whilst in tlic 
 hands of the carrier, the consignee is entitled to 
 recover ; and it has been also held, that the fact 
 that the damage was partly caused by the packing, 
 goes only to the amount oC the damage.^ 
 
 In an action for injury to casks of oil, alleged by 
 the defendants to have arisen from defects in the 
 casks, it was left to the jmy to say Avhether the 
 injury arose from such defects, and whether, even 
 if it did, the carriers knew or ought to have kno^^•n 
 tliercof, and had acted negligently in sending them 
 on in that state.^ 
 
 It is possible for a consignor so to pack his wares 
 that there shall be no leakage or breakage; and 
 hence, perhaps, comes the ordinary proviso in bills 
 of lading, that for leakage and breakage the carrier 
 shall not be responsible. But this does not relieve 
 the carrier from due diligence in stowage, which he 
 owes midcr all circumstances, no matter how im- 
 perfectly the thing carried may be packed.^ 
 
 It has been held, that cases made of soft wood of 
 an average thickness of f of an inch with English 
 hoop iron bands f of an inch in width, and No. 25 
 B. ^Y. j^ausrc at both ends of the cases, were too 
 weak for the conveyance of steel from Europe to 
 
 » nicrgiubotham r. The Great Xortlicrn Ry. Co., 2 F. & F. 790. 
 • Cox V. Loudon & North Western Ry. Co., 3 F. & F. 77. 
 ' Wharcon on Xeg., sec. 50S. 
 
 (53
 
 498 LEGAL EFFECT OF TEE CLAUSES. 
 
 Cliina, and that such packing being insufficient, the 
 shipowners were not liable for damage resulting 
 from such bad packing.^ 
 
 In the case of the Peninsular and Oriental Steam 
 ]Sr ayigationCompany v. Manekji NusserwanjiPadsha,^ 
 it appeared that the appellants were carriers be- 
 tween Hongkong and Bombay, and by a condition 
 annexed to their bill of lading, stipulated that they 
 should not be responsible for damage to goods, arising 
 from insufficiency of package. It was admitted 
 that the goods were shipped in good order and 
 condition, but had been transhipped on the voyage in 
 accordance with the liberty given to the defendants 
 by the bill of lading. It appeared, that the goods on 
 arrival at Bombay were in such a state that a whole- 
 sale merchant would be justified in refusing to 
 receive them, all of the packages being more or less 
 broken. The contents also were in some instances 
 injured, and in others had partially, but not exten- 
 sively escaped, and lay on the floor of the warehouse 
 belonging to the Customs Department, in Avhich these 
 goods were stored on arrival in Bombay. The goods 
 consisted of glass bangles, yellow stone, and brass 
 leaf. The boxes of bangles, contained each about 
 three thousand glass bangles sewed on cards, four 
 pairs of bangles _on each card. These boxes were 
 composed of wood-work, three-eighths of an inch in 
 thickness. They were about two feet in length, 
 eighteen inches in width, and eighteen inches to 
 
 I Mit. Mar. Reg., 3rd Oct. 1879. - 1 Bom. H. C. Kep. o. c. J. 169.
 
 INSUFFICIEXT FACKIXG, WEAR AXD TEAIi. 409 
 
 two feet in doptli, and Avoiglicd about 170 lbs. cacb, 
 and were made of China pine, fastened togetlier with 
 Avooden pegs ; they were also fastened with cross 
 j)ieces of the same wood, and the whole was covered 
 with China matting tied round with pieces of sj^lit 
 rattan. Each box of yclloAV stone weighed about 
 130 lbs., the yellow stone and brass leaf being 
 in boxes about fifteen inches long, eight to ten 
 inches in width, and of like depth, the wood-work 
 being half an inch thick. They were wrapped 
 in matting in the same manner as the boxes of 
 bangles. The jiackages of the three kinds of goods 
 mentioned Avere proved to be such as are in ordinary 
 use for conA^eying such goods respectively from 
 China to Bombay — in fact, the only species of 
 packages in Avhich the trade is carried on. In 
 an action brought to recoATr damages in respect 
 of such injury, it was held, that evidence of 
 mercantile usage or of custom Avould be admissible 
 to show that the AAords " insufficiency of package" 
 should not be taken in their ordinary sense, but as 
 moaning insufficient according to a special custom 
 of the China trade. Held also, that evidence of 
 tliese packages being ordinary China packages, 
 having been always carried by the defendants 
 AAithout objection, Avas not sufficient, in the absence 
 of proof of negligence, to fix the defendants Avitli 
 liability for damage done to them, there being no 
 proof that it had been the practice, cither of the 
 defendants, or any other shipoAvncrs protected by a
 
 600 LEGAL EFFECT OF THE CLAUSES. 
 
 similar clause in their bill of lading, to make com- 
 pensation for injury to goods contained in such 
 packages. 
 
 In English v. Ocean Steam Navigation Company,^ 
 the bill of lading contained the clause " weight, 
 contents, and value unknown." Goods in cases 
 were, on delivery, found to be injured. Held, that 
 the presumption was that they were properly packed 
 in a fit state for transportation, unless there ^vas 
 something in their appearance or condition to afford 
 ground for a contrary inference, or unless some 
 evidence to tliat effect was given. And where 
 there is an exception against reasonable wear and 
 tear of packages, it would, in many instances, be 
 manifestly harsh and unjust to hold the ship liable 
 for such. Tlie consignee is bound to take delivery 
 of his goods subject to the risk of, and must bear 
 the loss arising from the goods being deteriorated 
 by such wear and tear as must necessarily arise and 
 to Avhich they would be liable, consequent upon 
 their transmission from one port to another.^ 
 
 The exception " Pines and expenses and losses by 
 detention of ship or cargo caused by incorrect marking 
 or l)y incomplete or incorrect description of contents, 
 or weights, or of any other particulars required by the 
 authorities at the poit of discharge, upon either the 
 packages or bills of lading, shall be borne by the 
 owners of the goods," does not appear as yet to have 
 
 > 2 BlatcLf. C. C. 425 ; Parsons on Sh., vol. 1, p. 189. 
 " Bull V. Eobison, 24 L. J. Ex. 165.
 
 INSUFFICIENT PACKING, WEAR AND TEAIi. 501 
 
 l)cen judicially considered, neither lias its practical 
 l)earin<:^ been fully settled. The English Customs 
 Act 39 and 40 Vict., c. 3G, hy sec. GO, directs that if 
 any goods are found concealed in any way, or packed 
 in any package or parcel, to deceive the officers of 
 customs, such package or parcel, and all the contents 
 thereof, shall be forfeited ; and hy sec. 67, " If 
 any person imports or causes to he imported goods 
 of one denomination, concealed in packages of 
 goods of any other denomination, or any package 
 containing goods not corresponding -with the entry 
 thereof, or shall directly or indirectly import or 
 cause to he imported or entered any package of goods 
 as of one denomination which shall afterAvards he 
 discovered, either before or after delivery thereof, to 
 contain other goods or goods subject to a higher rate 
 or other amount of duty than those of the denomina- 
 tion by Avhicli such package or the goods in such pack- 
 age were entered, such package, and the goods therein 
 shall be forfeited," and the person subject to fine. 
 The Indian Sea Customs Act VIII. of 1878 contains 
 . similar provisions, and enacts that if it apj)ears that 
 when any goods are entered at or brought to be passed 
 through a custom-house, that they dilt'er widely from 
 the description given, or the contents thereof have 
 been wrongfully described in the bill of entry, 
 or application for passing them as regards the 
 denomination, character, or condition according to 
 which such goods are chargeable with duty, or that 
 the contents of such packages have been misstated
 
 502 LEGAL EFFECT OF THE CLAUSES. 
 
 in regard to sort, quality, quantity, or value, or that 
 tlie goods have been so packed as to deceive the 
 authorities, and such circumstances are not 
 accounted for to tlie satisfaction of the Customs 
 Collector, such goods and packages will be subject 
 to confiscation and the parties liable to fine. 
 
 "Bursting of Grain is shipped from the Pacific and Indian 
 ports in sacks or bags. As a rule, the material of 
 which such sacks or bags are made is of poor quality, 
 and liable to burst from the swelling of the 
 grain, or from superabundant pressure. In cases 
 Adhere there happen to be several consignees, the 
 grain gets mixed, and then the shipowner is called 
 upon to pay compensation. In consequence of the 
 knoT^Ti tendency of the sacks to break open, it is 
 usual to sign bills of lading with a condition that the 
 shipowner will not be accountable " for breakage 
 of seals, torn wrappers, bursting of bags," but 
 notwithstanding this stipulation, claims are fre- 
 quently made by merchants for depreciation arising 
 from the mixing of the shipments, or for the damage 
 by water to the grain when in bulk or loose. Another not 
 uncommon cause of dispute between consignees and 
 sliipowners springs from the cutting open of the 
 sacks or bags to stiffen the cargo or trim the hold. 
 It is asserted by ship-masters that an entire cargo of 
 grain stowed in sacks or bags is as likely to make 
 a ship unsea worthy as a load in bulk ; cutting the 
 sacks or T)ags is, therefore, frequently resorted to, 
 and tliis is often done with the consent of the
 
 ''BURSTING OF BAGS." 503 
 
 shipper. In a judgment delivered by Mr. Sergeant 
 AYlieeler in the Liverpool County Court, in June 
 18G7, in the case of Smyth v. Dixon, in -which it 
 Avas stated that before the vessel sailed it was 
 necessary, in order to trim her, that some portion 
 of the sacks should be skipped, and this Avas done, 
 it was said, to 59G sacks out of 5,320, Avith the 
 consent of the shippers, it Avas held, that all the 
 grain taken on board at Valparaiso had been 
 deliA'cred, and that though the bulk had been inter- 
 fered AAith by the skipping of a number of the 
 sacks, that interference took place Avith the consent 
 oE the merchant, though the bill of lading AAas 
 silent on the subject. 
 
 On the Avest coast of South America, lioAvever, 
 vessels loading grain cargoes take about one-third 
 to one-half of the cargo in bulk, and remainder in 
 bags ; Avhen the sacks are cut and the grain emptied 
 into the hold, it is impossible to keep distinct lots 
 from mixing unless there are separate bins, or 
 diA'isions ; hence claims for compensation arc not 
 only made, but established, Avliere there has been 
 no agreement to alloAV the right of changing from 
 bags to bulk.^ 
 
 In the case of the " Arctic," WoodAvard v. Zeriga, 
 the bill of lading holder received the specilied 
 quantity of AA'heat, but during the voyage many of 
 the bases burst, and after the arriA^al of the A^cssel 
 and the delivery of the full sacks, the hold Avas 
 
 I Mit. Mur. N., vol. 3, 100.
 
 604 LEGAL EFFECT OF THE CLAUSES. 
 
 swept and eacli consignee received liis share. The 
 Conrt held that the merchant was entitled to recover; 
 for the nsual clause of not being accountable for 
 leakage and breakage, in the margin of the bill of 
 lading, did not apply, as the loose grain delivered 
 was not shown to be the plaintiff's, and, in point of 
 fact, was necessarily, and to a great extent, com- 
 posed of other and different grain, and was not a 
 compliance with the terms of the bill of lading. 
 Resin and other impurities had been swept up with 
 the grain. If, therefore, a master receives grain 
 of one description, on completing the voyage, it is 
 a breach of the contract to deliver another, and 
 perhaps less cleanly, description. 
 
 In the case of Messrs. Jump and Sons v, the 
 owners of the Norwegian barque " Ground-loven," ^ 
 that vessel took on board 19,738 sacks of grain at 
 Portland, in Oregon, and on discharge 2,862 bags 
 were empty. The grain, it Avas alleged, became 
 deteriorated by mixing. The case was fully argued 
 on both sides ; the merchants contended that the 
 sacks had been purposely cut, as proved by their 
 having been emptied, folded up, and placed in heaps. 
 On the part of the shipowners it was averred, that the 
 ship had encountered three terrific gales and had 
 been tlirown on her beam ends, which caused the 
 cargo to shift and the bags to burst; a marine surveyor 
 deposed that it was necessary to bleed sacks in 
 grain cargoes, so as to stiffen the] ship, and 'that 
 
 ^ Heard in the Hull Ad. Court, and rei)orted in the Shippirig Gazette 
 of 31st Oct. 1874,
 
 GOLD, SILVER, BULLION, &c. 505 
 
 he had never known a vessel arrive from California 
 "without loose cari^o. There Avas no proof that 
 permission had heen given to cut the sacks, and as 
 it Tvas sworn that the bags had been bled, the 
 Court, with the advice of the nautical assessors, 
 gave a verdict against the owners of the " Ground- 
 loven." ("> 
 
 17 & 18 Yict., c. 101, s. 503, provides that " no GoU, silver, 
 
 . , bullion, &,c 
 
 owner of any sea- going ship, or share therein 
 shall be liable to make good any loss or damage 
 that may lia[)pcn without his actual fault or privity, 
 of or to any gold, silver, diamonds, watches, jewels, 
 or precious stones, taken in or put on board any 
 such ship, by reason of any robbery, embezzlement, 
 making away with, or secreting thereof, unless the 
 owner or shipper thereof has, at the time of shipping 
 the same, inserted in his bills of lading, or otherwise 
 declared in writing to the master or owner of such 
 ship, the true nature and value thereof." 
 
 It has been doubted whether this Act of Parliament 
 applies to shipments made in foreign ports, and it 
 would seem, at all events, only to apply to cases in 
 which a shipment is made in a foreign port to 
 England. AMiere a shipment is made in a foreign 
 port, it is sufTicient to describe the value of the 
 goods in the current coin of the place where the 
 shipment is made, without showing theu.' value in 
 English money. 
 
 Therefore, where a shipment of specie was made 
 from Valparaiso to England, and the bill of lading 
 
 (a) For Graiu Cargo See -13 & 44 Vict. c. -13. 
 
 CI
 
 )06 LEGAL EFFECT OF THE CLAUSES. 
 
 described the property as 1,338 hard dollars, which 
 were coins current at Valparaiso at that time, this 
 was held to he a sufficient description.^ But a 
 description of a box as " one box containing about 
 248 ounces of gold dust," is not a declaration of the 
 true nature and value to satisfy the statute.^ 
 
 Section 516 excludes the master from the 
 protection afforded by the Act, although he may 
 also be owner or part owner of the ship, so that the 
 master will remain liable as at common law, unless 
 the bill of lading protect him against a loss by 
 robbers. 
 
 We find that most bills of lading contain stij)ula- 
 tions against loss of gold, silver, bullion, and similar 
 articles of value, unless the nature of the same is 
 declared at the time of shipment; the usual 
 clause being as follows : " not accountable for 
 gold, silver, bullion, specie, jewellery, precious 
 stones or precious metals, or beyond the amount 
 of 100^. for any one package, unless the bills of 
 lading are signed for such goods and the value 
 declared therein." The shipowner can only demand 
 that the shipper should make a declaration of 
 what he bond fide believes to be the value of the 
 articles forwarded, and the omission to enumerate 
 all the articles contained in a box, does not neces- 
 sarily vitiate the declaration. 
 
 Thus, where A. was the consignee and holder of 
 a bill of lading signed by B. at Bombay, as master 
 
 1 Gibbs V. Potter, 11 L. J. Ex. 376. 
 
 * Williams v. The African Steam-ship Co., 20 L. J. Ex, Gd,
 
 GOLD, f=iILYEB, BULLTOX, &c. 507 
 
 of the steam vessel "John Bright," for the safe 
 carriage and delivery of a box addressed to A., 
 which, in fact, contained diamonds of the value of 
 lis. 11,G70, three rubies, and three emeralds, in all 
 of the value of Rs. 15,910. One of the conditions 
 in the hill of lading was as follows: "a written 
 declaration of the contents and value of the goods 
 is required hy the owner, and must l)e delivered by 
 the shipper to the owner's agent with the bills of 
 lading. A wrong description of contents or false 
 declaration of value shall release the o\\Tier from 
 all responsibility in case of loss, &c., and the goods 
 shall be charged double freight on the real value, 
 which freight shall be paid previous to delivery." 
 The declaration in this case was contained in the 
 following letter from the shipper to the agent of 
 the shipowner : — " Be good enough to give me an 
 order for a smaU box containing diamonds to the 
 value of about Bs. 11,000, to be shipped on board 
 the steamer * John Bright' for Calcutta." The box 
 was lost by the negligence of B. or his servants. 
 In a suit by A. to recover the value of the goods, 
 viz., Es. 11,000, it was held, that all the shipowner 
 was entitled to was, that the shipper should make 
 a declaration of what bond fide he believed to be 
 the value, and that the declaration as to the con- 
 tents was not vitiated by the omission to enumerate 
 all the different species of articles contained in the 
 box. That upon the evidence the declaration as to 
 the value and nature of the contents was bond fide;
 
 503 LEGAL EFFECT OF THE CLAUSES. 
 
 tlierefore, A. was entitled to recover the value of 
 tlie diamonds lost.^ 
 
 The transportation of passengers or of merchan- 
 dise, or of both, does not necessarily imply that 
 the owners hold themselves out as common carriers 
 of money or hank hills. The nature and the extent 
 of the employment or business which is authorized 
 by the owners on their own account and at their 
 own risk, and wliich either expressly or impliedly 
 they hold themselves out as undertaking, furnishes 
 the true limits of their rights, obligation, duties, 
 and liabilities. 
 
 If a steam-boat company is incorporated by charter 
 which authorizes the company to carry goods, wares, 
 and merchandise, the company will not be liable for 
 the loss of bank bills which the master undertakes 
 to carry, the carriage of the same being no part of 
 their ordinary business under the charter.^ 
 
 In cases where specie or other goods are under- 
 taken to be delivered at a certain place other than 
 the steamer's ultimate port of discharge, or at some 
 place to which the vessel cannot proceed, and the same 
 are to be forwarded on to their place of destination by 
 the shipowners from the port at which the vessel 
 stops, at their own expense, it is usual for the ship- 
 owners to stipulate that they act only as forwarding 
 agents from that port, and tliat the specie or goods 
 will be forwarded by rail, or otherwise, to its 
 place of destination at the merchant's risk ; the 
 
 * Dhunjeebhoy Byramji Metha v. J. Betham, 2 lud. Jur. N. S, 303. 
 ' Ang. on Car. ss. 101, 102, 103.
 
 GOLD, SILVER, BULLION, &c. 509 
 
 sliipoTrncr's liability ceasing as soon as the specie 
 or goods are free from the vessel's tackles. 
 
 Where railway companies hold themselves out as 
 carriers, and receive goods to be carried to places 
 beyond the limits of their oa^ii line, and even beyond 
 tlie realm, they are responsible for a loss of or 
 injury to the goods, although the same may not have 
 happened on their own line of railway.^ 
 
 AVhere, however, on the delivery of goods by the 
 plaintiff at Bristol to the defendants, he received 
 from them a note stating that the goods were to be 
 conveyed by the Company as below, and on the 
 conditions stated on the other side : and below was a 
 statement that Bristol was the station from which, 
 and Paddington the station to -which, the goods 
 were to be carried, and that the plaintiff's address 
 was at Brompton. One of the conditions at the 
 back of the receipt stated that goods addressed 
 to consi2:nees resident beyond the immediate 
 vicinity of the Company's goods station would 
 be forwarded by public carrier, or otherwise, 
 as opportunity might offer ; but that the delivery 
 of goods by the company would be considered as 
 complete, and the responsibility of the Company 
 cease, Avlicn such carrier received the goods, and 
 that the Company would not be responsible for 
 loss or damage to goods beyond the limits of their 
 
 1 Scotthorn v. The South Staffordshiro Ry. Co., 7 Rail. & Can. Ca. 810 ; 
 Wilby V. The West Cornwall Ry. Co., 27 L. J. E.v. 181 ; The Bristol & E.vcter 
 Ey. Co. V. Collins, 29 L. J. Ex. 41 ; Crouch r. The L. & N. W. Ey. Co., 7 Rail. 
 & Can. Ca. 717.
 
 110 LEGAL EFFECT OF THE CLAUSES. 
 
 railway. The plaintiff's goods were safely coaveyed 
 to tlie Paddington Station, and there given to a 
 person sj)ecially appointed by the Company for the 
 collection and delivery of goods, and through his 
 negligence were damaged before their delivery at 
 Brompton; the defendant's charge included the 
 carriage from Paddington to Brompton. It was held, 
 that the contract of the defendant was to carry 
 from Bristol to Paddington, only and that they were 
 not liable for the subsequent damage.^ 
 
 It is no excuse for an omission to deliver money 
 delivered to a common carrier, to be by him 
 delivered to a bank, that he w^ent to the bank and 
 found it shut. 
 
 Thus, in an action of assumpsit against the 
 defendant as a common carrier, for a breach of 
 his undertaking, in that capacity, to convey a 
 package of money belonging to the plaintiff 
 in Connecticut to Poughkecpsie, in the State 
 of New York, and there deliver it to a bank 
 in that village ; and it appeared, that when the 
 defendant arrived at Poughkecpsie, the bank was 
 shut; that he went t"\^dce to the house of the cashier, 
 and not finding him at home, brought back the money, 
 and offered it to the plaintiff, who declined to accept 
 it, and that the defendant then refused to be further 
 responsible for any loss or accident. It was held, 
 that in the absence of any special contract (none was 
 proved in the case), these facts did not constitute a 
 
 ' Fowles V. The G. W. Ey. Co., 22 L. J. Ex. 76; 7 Rail. & Can. Ca. 421.
 
 GOLD, SILVER, BULLION, &c, oil 
 
 legal excuse to the defendant for the non-performance 
 of his undertaking. That the hank Avas shut Avhen 
 the carrier went there could amount to nothing, 
 unless it further appeared that he went there at a 
 proper time during the ordinary husiness hours, and 
 even then the court could not say, as a matter of law, 
 that this Avould be a legal excuse. That there may 
 he circumstances which would excuse a carrier from 
 the delivery of a package of money to a bank to which 
 he has undertaken to convey and deliver it, is doubt- 
 less true; it would depend upon the degree of diligence 
 which the carrier used to let the officers of the bank 
 know that he had a package to deliver there. The 
 proper time for a carrier of specie to deliver it to a 
 bank to which it is consigned, is not limited to banking 
 hours, unless such is the special contract or the 
 implied usage of the place ; and an offer to deliver it 
 at any time during the usual hours of business, 
 reasonable regard bemg had to its safety, and the 
 convenience of the consignee, is as good as one made 
 in banking hours.^ 
 
 If it is proved that goods are tendered by the carrier 
 to the consignee late in the day, after the termination 
 of the hours of business, and Avhcn the consignee 
 has dismissed his hands, and is thus incapable of 
 receiving and putting away the goods, the tender of 
 delivery is then unreasonable as to time, and the 
 consignee is guilty of no fault or laches in declining 
 to receive them. Therefore, the duty of a carrier, 
 
 1 Aug. ou Cur., sec. 2SG.
 
 512 LEGAL EFFECT OF THE CLAUSES. 
 
 under siich circumstances, is to keep the goods still 
 in custody, and lie continues to hold them under all 
 his responsibilities as carrier/ 
 
 In Marshall v. American Exp. Co,,^ a carrier 
 delivered a package of money to the teller at a hank, at 
 half-past five in the afternoon. He refused to receive 
 it, on the ground that the cashier had gone home, 
 and the vault was locked up. The carrier put it in his 
 own safe, and during the night the money was stolen. 
 Banking hours closed at 4 p.m. Held, that the carrier 
 was not liable. It appeared in evidence that the 
 bank had been accustomed to receive money from 
 the carrier after banking hours. 
 
 In Eagle f. "White, in Pennsylvania,Hhe defendants, 
 who were common carriers on a railroad from Phila- 
 delphia to Columbia, undertook to carry certain boxes 
 of goods belonging to the plaintiff, from Philadelphia 
 to Columbia. The cars arrived at the latter place 
 about sundown on a Saturday evening, and by direc- 
 tion of the plaintiff were placed on a sideling, that is, a 
 side track. The plaintiff declined receiving the goods 
 that evening, on the ground that it was too late ; 
 whereupon the agent of the defendants left the cars 
 on the sideling, taking with him the keys of the 
 padlocks with which the cars were fastened, and 
 promised to return on Monday morning. The cars 
 remained in this situation until Monday morning, 
 when they were opened by the plaintiff by means of 
 a key which fitted the lock, and on examination it was 
 
 1 Aug. on Car., sec. 287. « 7 Wis. 1. 
 
 » 6 Whart. 505.
 
 LOSS OF OR INJURY TO CATTLE. 613 
 
 discovered that one of the boxes liad been opened, 
 and the contents carried away. It Avas held, that 
 the defendants were liable to the plaintiff for the 
 value of the goods lost. Ro2;ers, J., who gave the 
 decision of the Court, was of opinion that if the 
 tender was wanting in any one of the essential 
 requisites of a proper time, a proper manner, and a 
 proper place, the responsibility as carrier still con- 
 tinues. Although his strict accountability of carrier 
 may cease, said the learned Judge, he becomes 
 liable, and as such must take ordinary care of the 
 goods.^ 
 
 It is usual for shipowners, whose vessels are in ^^,3 ^f q, 
 the habit of carrying live cattle, to insert in the bill bor"s?s.*^or 
 of lading a clause to the following effect : — ''^"^*^' °' 
 
 " The OAAiiers of the vessel Avill not be liable for 
 the loss of, or injury done to, any horses, cattle, or 
 other animals except as to 50^. for horses, 15/. 
 per head of veal cattle, and 21. per head as to sheep, 
 pigs, and dogs. The owners will not be liable for 
 any loss arising from suffocation or other causes 
 occurring to horses, dogs, cattle, or other animals, or 
 from kicking, plunging, or viciousness of the same 
 in transit, nor for any damage arising from sliipping 
 or landing, or while in the possession of the owners 
 or their agents before or after the voyage, from 
 whatever cause they may remain in such posses- 
 sion." 
 
 Notwithstanding this exception in the bill of 
 
 » Aus- ou Car., sec. 288. 
 
 65
 
 oli LEGAL EFFECT OF THE CLAUSES. 
 
 lading, the shipper will be entitled to recover for 
 any loss or damage to liis cattle, if it is proved that 
 such loss or injury is the result of negligence on 
 the part of the carrier. Thus, where several cattle 
 were suffocated and killed from the vessel over- 
 turning, it having been sent to sea without proper 
 ballast, the shipo^vner was held responsible for the 
 loss, which was occasioned by his negligence.^ 
 
 And where the plaintiff shipped on board the 
 defendants' steamer ten head of cattle, to be 
 carried from London to New York, during 
 the voyage some of the cattle were affected 
 with foot and mouth disease, and were so affected 
 on being landed at New York. On her voyage 
 from New York to London immediately preced- 
 ing the voyage in question, the ship had on 
 board cattle affected with the foot and mouth 
 disease, and the plaintiff's cattle caught the foot 
 and mouth disease while on board the ship, owing 
 to the negligence of the defendants' servants in not 
 properly cleansing and disinfecting the steamer 
 before receiving the cattle on board and signing the 
 bill of lading. By reason of the plaintiff''s cattle 
 bavin": caught the foot and mouth disease, the 
 plaintiff sustained damage amounting to more than 
 61. for each of the cattle. The bill of lading 
 contained the following clause : — 
 
 "These animals being in sole charge of shipper's 
 
 1 Leuw V. Dudgeon, 3 Asp. Mar. L .0, 3 ; Czech v. The Gen. S. N. Co., 
 L. R. 3C.P. 17.
 
 LOSS OF on INJURY TO CATTLE. 515 
 
 servants, it is hereby expressly agreed that the 
 National Steamship Company (Limited), or its 
 agents or servants, are, as respects these animals, 
 in no way responsible either for their escaj)C from 
 the steamer, or for accidents, diseases or mortality, 
 and that under no circumstances shall they be held 
 liable for more than 5/. for each of the animals. . . 
 and whether such jDcrils or matters arise from 
 tlie negligence, default or error of judgment of the 
 pilot, master, mariners, engineers, stevedores or 
 other persons in the service of the shipowner." 
 It was held, that the stipulation in the bill of lading 
 related to the carriage of the cattle upon the voyage, 
 and in no way affected the primary obligation of 
 the shipowner to provide a ship reasonably fit for 
 their reception on board, and further, that the 
 defendants' liability was not limited to bl. and that 
 judgment should therefore be in favor of the 
 plaintiff.^ 
 
 Where a dog had been delivered to a carrier and 
 the animal escaped by means of slipping from the 
 noose al)out his neck, the carrier was held liable, 
 because he had the means of seeing that the animal 
 was insufficiently secured ; and Lord Ellenborough 
 said, that the delivery of the dog was not like the 
 case of goods imperfectly packed, shice there the 
 defect is not visible, but the defendant had the 
 means of seeing that the dog was insufficiently 
 
 » Tattersall v. National Steamship Co., L. R. 12 Q. B. D. 297; 53 L. J. 
 Q. B. 332.
 
 516 LEGAL EFFECT OF TEE CLAUSES. 
 
 seciircclj and he was "bound to lock np the animal, 
 or take other proper means to secure it.^ 
 
 If a horse escapes from the fastenings on board of 
 a steamboat and is lost in the river, the OAvners of the 
 boat are responsible; for the horse must have been 
 negligently fastened, or the loss would not have 
 occurred ; d^n^ prima facie, this negligence is attribu- 
 table to the owners of the boat or their servants.^ 
 So, where an animal is sent over a railroad, the 
 company are liableforanyinjuryitmay sustain, either 
 by the improper construction of the carriage, or the 
 want of reasonable equipments, or the improper 
 position of the carriage in the train .^ The rule with 
 regard to proper equipments to insure the safety of 
 an animal, holds also as to ferry boats. ^ 
 
 If the animal, is injured ordestroyedby the peculiar 
 risks to which it is exposed, the carrier is clearly 
 excusable. Thus, if horses or other animals are 
 transported by water, and in consequence of a storm 
 they break down the partitions between them, and 
 by kicking each other some of them are killed, the 
 carrier will be excused, and it will be. deemed a loss 
 by perils of the sea.^ And in case of an animal sent 
 by railway, it has been ruled that the company are 
 not liable for an accident arising from the animal's 
 own viciousness or want of temper.^ 
 
 * Stuart V. Crawley, 2 Stark. 323. 
 
 * Porterfield v. Ilumphreys, 8 Humph. 497. 
 8 Ang. on Car., sec. 214. 
 
 * Hid. 
 
 » Gabay v. Lloyd, 3 B. & C. 793; Lawrence v. Aberdein, 5 B. & Aid. 107. 
 
 * Ang. on Car., sec. 214 a.
 
 LOSS OF OR INJUBY TO CATTLE. 517 
 
 In Clarke v. Rochester Railway,^ it was held, that 
 a carrier of animals is responsible for any injury 
 ■which can be prevented by foresight and care, 
 although arising from the conduct of the animals, 
 but tliat he is not an insurer against injuries arising 
 from the nature and propensities of the animals, 
 and Avliich diligent care cannot prevent. The 
 carrier is not liable for loss or injury to cattle, 
 arising from the negligence of the OAA'ner, in not 
 being at the place of their destination to receive 
 the same on arrival. Thus, where a horse was sent 
 by railway directed to the owner at Eton, the sender 
 signed a document in the following terms : — 
 " Mr. Wise paid for one horse 125. GcL, Newbury to 
 Windsor. Notice. — The directors will not be 
 answerable for damage to any horse conveyed by 
 tliis railway." The horse arrived in safety at 
 Windsor station, but the owner not apj)earing to 
 claim it, it was forgotten and left tied up in a 
 horse-box in an exposed situation for twenty-four 
 hours, and was injured by such neglect. As the 
 condition was reasonable, the company was held 
 not responsible for the injury done; it being stated 
 by the Court, that it was the duty of the sender to 
 have sent an intimation that the horse was coming, 
 in order that some person should meet it at the end 
 of its journey, and that thougli the company was 
 to a certain extent blamcable, they were freed under 
 the contract.^ 
 
 > 4 Korn. 570, - Wise v. TLo Gt. W. K. Co., 25 L. J. Ex. 258,
 
 518 LEGAL EFFECT OF THE CLAUSES. 
 
 Where a plaintiS sent three horses, including a 
 mare, to the defendant's wharf at Wapping, f or trans- 
 port by one of the defendant company's steam-ships 
 to Aberdeen. The horses were not carried under 
 any special conditions, but were shipped on board 
 without any bill of lading. The vessel encountered 
 some rough weather during the voyage, and partly 
 owing to such rough weather, and partly to the mare 
 being thereby frightened, aud consequently strug- 
 gling, she received injuries which caused her death. 
 It was held by the Court of Appeal, reversing the 
 decision of the Court of Common Pleas Division, 
 which had been given in favour of the plaintiff j 
 that a common carrier has done all that is reason- 
 ably to be required of him, if he has used all the 
 means to which prudent and experienced carriers 
 ordinarily have recourse, to insure the safety of 
 goods entrusted to them under similar circum- 
 stances. And that there was no foundation for the 
 doctrine which liad been laid down in the judgment 
 of the Court below, that all owners of ships carrying 
 goods for hire whether they be common carriers or 
 not, are subject to the same liability as that which 
 attaches to the common carrier.^ 
 
 "Cargo may Bv tlic Mcrcliant Shippin2^ Act Amendment Act, 
 warehoused^ if 1862, (25 and 26 Yict., c. 63, s. 67,) a shipowner is 
 
 not taken . , . , . • p 
 
 delivery of empowcrcd, to laud goods imported m his ship from 
 reasonable forcigu parts, subjcct to the condition that " if before 
 arrival." h^q goods are landed the owner thereof has made 
 
 » ^X?cnt V. Smith, L. R. 1 C. P. D. 423; 45 L. J. Q. B. 697.
 
 CARGO MAY BE LANDED AND WAREHOUSED, 519 
 
 entry for tlic landing and warehousing thereof at any 
 particular wharf other than that at which the ship is 
 discharscini? and has offered and heen ready to take 
 delivery thereof, and the shipoAAiier has failed to 
 make such delivery, and has also failed at the time of 
 such offer to give the owner of the goods correct 
 information of the time at which such goods can he 
 delivered, then the shipowner shall, before landing 
 or unshijoping such goods under the power thereby 
 given to him, give to the owner of the goods twenty- 
 four hours' notice in writing of his readiness to 
 deliver the goods ; and shall, if he lands or unships 
 the same without such notice, do so at his own risk 
 and expense." Under this section the o"\vner of the 
 goods, when he makes an offer to take delivery of 
 them, must be in a condition to receive the same if 
 the offer be then accepted, in order to entitle him to 
 the benefit of such condition ; and that when such 
 offer is made, the shipowner, if he then fails not 
 only to make delivery of the goods, but also to give 
 such owner of the goods, information of the time at 
 which they can be delivered, is bound to give the 
 twenty-four hours' notice above specified, before he 
 lands the goods, although he was never asked to give 
 such information.^ 
 
 The word " fails" in section 67 need not imply a 
 wilful default in the cargo owner, and the shipowner 
 may land goods and warehouse them whenever the 
 delivery to the owner Avithin the proj)er time has been 
 
 1 Beresford v. Moutgouicrie, 3-1 L. J. C. P. 41,
 
 520 LEGAL EFFECT OF THE CLAUSES. 
 
 prevented by force of circumstances, whether the 
 latter is to blame or not.^ 
 
 Where sixty-five pipes of lemon juice were shipped 
 on board the defendant's ship to be carried to Lon- 
 don, under two bills of lading, drawn to order, and 
 containing the following clause: "Simultaneously 
 with the ship being ready to unload the above- 
 mentioned goods, or any part thereof, the consignee 
 of the said goods is hereby bound to be ready to 
 receive the same from the ship's side; and in 
 default thereof, the master or agent of the ship is 
 hereby authorized to enter the said goods at the 
 Custom-house, and land, warehouse, or place them 
 in lighters,, at the risk and expense of the said 
 consignee." The ship arrived in London, and the 
 j)laintiff, who was the consignee of the said goods, 
 was not ready till fifteen pipes had been landed : 
 being then ready, he demanded delivery of the 
 residue, but the master (although no additional 
 expense would have been incurred) refused to 
 deliver to him, and landed the residue at his 
 expense, claiming a right so to do as he was not 
 ready before any goods were landed. It was held, 
 that the master was wrong, and that the plaintiff 
 was entitled to have the residue delivered to him 
 both on the construction of the contract, and of 
 the Statute 25 and 26 Yict., c. 03, s. 67 sub- 
 section 5.^ 
 
 ^ Miebrodt v. Fitzsimon, 44 L. J. Adni. 25. 
 
 * Wilson V. The Loudon, Italian, aud Adriatic St. Nav. Co., L. R. 1 C. P, 
 61j 35L. J. C. P. 9.
 
 CARGO MAY BE LANDED AND WAREHOUSED. 521 
 
 111 tlic case of "The Clan Macclonald,'" it uas 
 hold, that " sub-section 7, of section G7 of tlie 
 Merchant Shipping Act Amendment Act, 18G2, 
 rchxtes to tlie case of a vessel discharging overside 
 where the necessity to land for sorting does not 
 arise. And further, that section 67 includes cases 
 in Avhicli the owner of goods is not in default, hut 
 from any cause fails to obtain delivery." 
 
 "Where there is no express stipulation in a bill of 
 lading, it is an implied term of the contract contained 
 in it that the consignee named in the bill of lading, 
 or his assigns Avill take delivery of the goods within 
 a reasonable time; and the person to w^liom the 
 property in the goods has passed by reason of such 
 consignment, is, by virtue of the Bills of Lading Act, 
 1855 (IS & 19 Vict., c. Ill, sec. 1), subject to the 
 liability so to take them. 
 
 Where the charterers and the shippcrs^are the same 
 persons,'such contract will still be implied in the bill of 
 lading, notwithstanding the existence of an express 
 stipulation in the charter-party between the charterers 
 and the shipowner, in reference to the same matter.'^ 
 
 Where the bill of lading contained no provision 
 for the immediate landing; of the s-oods on arrival 
 at the port of discharge, it was held, that after a 
 reasonable time after the arrival of the vessel, forty- 
 eight hours in the case of a sailing ship, and 
 somewhat less in the case of a steamer, the master 
 
 > L. R. 8 r. D. 178; 52 L. J. Adin. 00. 
 
 = Fowler V. Kuoop, L. H. 1 (.). 13. D. liO'J ; 18 L. J. Q, B. 333. 
 
 C6
 
 522 LEGAL EFFECT OF THE CLAUSES. 
 
 "svas at liberty, if the consignee had not then sent 
 boats for them, to land the goods at the Custom- 
 honse wharf, or other place sanctioned by the Customs 
 authorities; and such landing was not unlawful, or a 
 breachof contract as carrier, on thepart of the master. 
 And that the landing of goods under the above 
 circumstances, and setting them apart on the Custom- 
 house wharf for the consignee, did not constitute a 
 delivery of them to the consignee ; but that such 
 goods, after being so landed, continued in the 
 possession of the master as carrier.^ 
 
 Where a bill of lading is silent as to the time 
 within which the consignee is to discharge the 
 ship's cargo, his obligation is to discharge within a 
 reasonable time. And that obligation is performed, 
 if he discharges the cargo within a time which is 
 reasonable under the existing circumstances, assum- 
 ing that those circumstances, in so far as they 
 involve delay, are not caused or contributed to by 
 him. 
 
 Thus, a cargo was shipped for the port of London 
 under bills of lading which did not specify the time 
 within which the consignees were to take the 
 discharge of it. Upon the arrival of the ship in the 
 dock, the Dock Company, as agents for the con- 
 signees, began to unload the cargo. The unloading 
 was interrupted for several days by a strike of the 
 dock labourers, which delayed the discharge far 
 
 1 The Hongkong and Shanghai Banking Coi'iDoratiou r. Baker, 7 Bom. 
 H. C. Kep. 0. c. J. 186.
 
 CARGO MAT BE LANDED AND WAUEEOJJ^ED. 523 
 
 l)cyoncl tlic time Avliicli "would otherwise liave 
 sufTiccd. Throughout the time during which the 
 discliarge ceased, and the Dock Company were 
 imahle to supply lahour to effect it, it was not 
 possible for the consignees either to find any other 
 person to provide the lahour, or themselves to ohtain 
 the necessary lahour in any other way. 
 
 On appeal to the House of Lords,^ the decision 
 of the Court of Queen's Bench was affirmed, Lord 
 Ashbourne in his judgment remarking : — " Tlie 
 question raised in this appeal is important, and is 
 up to this not covered hy any express authority, 
 llaving regard to the admissions of the parties, the 
 sole question is, who is to hear the loss caused hy 
 the strike ? Who is to bear the risk of the strike, 
 assuming each party to he innocent, that each party 
 did what he could, and that the happening of the 
 strike was entirely beyond and outside the control 
 of either ? The contract not naming any time for 
 unloading, the obligation of the defendants was to 
 unload within the time implied by law, that is, a 
 reasonable time. "What is the meaning of this 
 expression * reasonable time ?' It is obvious that 
 ' reasonable' cannot mean a definite and fixed time. 
 It would not be 'reasonable' if it was not sufficiently 
 elastic to allow the consideration of circumstances, 
 which all reason would require to be taken into 
 account. The appellant accordingly admits that 
 the consignee has a right to have all ordinary 
 
 > Hick r. Eavmoiul & Reid, L. K. (1893) A. C. 22,
 
 524 LEGAL EFFECT OF THE CLAUSES. 
 
 circumstances taken into account, hut insists that 
 all extraordinary circumstances are to be excluded 
 from consideration. Is this distinction sound, and 
 does it rest upon any real principle ? If the con- 
 sifT^nee does all he can, is not his conduct reasonable? 
 If by circumstances absolutely outside his control 
 he can do nothing, is his inaction imreasonable. 
 If it is reasonable to consider some circumstances 
 outside his control in favour of the consignee, why 
 are not all circumstances in the events which 
 actually happen, and Avhich he cannot control, also 
 to be taken into account ? In considering how to 
 ascertain ' reasonable time,' must not the question 
 come in, whether the consignee in the circumstances 
 which eventuated acted unreasonably ? If through- 
 out the consignee acted reasonably, if he did all 
 he could, if he omitted nothing that he should have 
 done, why should all the circumstances be arbitra- 
 rily divided into ordinary and extraordinary for the 
 purpose of putting a narrow and artificial meaning 
 upon the words ' reasonable time ?' Unless lex 
 cogit ad impossibilia, I think when the parties have 
 used a form of contract, which names no day, and 
 leaves the discharge of the cargo to be made within 
 the reasonable time implied by law, that reasonable 
 time should be ascertained by a consideration of all 
 circumstances which eventually happen, and which 
 are outside the control of the consignee. 
 
 "It is somewhat strange that this important 
 question has not heretofore been clearly and finally
 
 CABGO MAY BE LANDED AND WAmmOFSED. 525 
 
 sotUcd l)y direct authority, and it is manifest, from 
 the arguments addressed to your Lordships, that tho 
 decisions in somewhat similar cases are conflicting, 
 and the opinions of eminent Judges "would appear 
 not to harmonise. The particular point involved 
 in this appeal has never, I helieve, heen expressly 
 discussed or decided, although the decisions which 
 have heen referred to deal Avith topics and consi- 
 derations most apposite to the case before your 
 Lordships. The case of Ford v. Cotesworth^ is 
 worthy of attention. The contract was silent as to 
 time, and therefore the freighter w^as bound to 
 unload Avithin a reasonable time. Owing to threats 
 of bombardment the cargo could not be landed 
 in the usual time, and it Avas held that the 
 charterer was not liable for the delay. Cockburn, 
 C. J., in his summing up said: — "There Avould 
 be a point of laAV Avhether this case was to be 
 decided Avith reference to the ordinary state of 
 things at the port, or whether any extraordinary 
 circumstances that prevented the unloading might 
 1)0 taken into account." The questions left to the 
 jury AA'ere, Avhether, looking to the ordinary state of 
 things at the port, there AAas any unreasonable 
 delay ; Avhether, looking to the extraordinary 
 circumstances, there Avas any unreasonable delay, 
 A^ liether there Avas any delay caused by political 
 circumstances over Avhich the consignees had no 
 control; Avas any delay caused by the default of the 
 
 ' L. R. 1 Q. B. 127 ; L. R. 5 Q. B. 514.
 
 526 LEGAL EFFECT OF THE CLAUSES. 
 
 consignees ; and to contingently assess the damages 
 for the time during Avhich the ship was kept at her 
 berth doing nothing by the action of the Govern- 
 ment of the place and the threats of bombardment. 
 Tlie jury, in answer to the first two questions, 
 found that there had been no unreasonable delay, 
 and they assessed the damage, if any was to be 
 allowed. The plaintiff applied to the Queen's 
 Bench to enter the verdict for them, and that court 
 held that the contract implied by law Avas that each 
 party would use reasonable diligence in performing 
 his part of the delivery, which by the custom of the 
 port fell upon him ; and that there was no implied 
 contract that the discharge should be performed 
 in the time usually taken at the port. Blackburn, 
 J., in pronouncing the judgment of the Court 
 said : — " We are aware of no authority for saying 
 that the law implies a contract to discharge in 
 the usual time, except what is said in Burmester 
 V. Hodirson ^ in which case it was not necessary for 
 the decision. AYe think that the contract which 
 the law implies is only that the merchant and 
 shipowner should each use reasonable despatch in 
 performing his part. That such was the opinion of 
 Lord Tenterden appears to be implied from his 
 ruling in Rogers v. Hunter ^ as to what was the 
 obligation of the holder of a bill of lading. If this 
 be so, the delay having happened without fault on 
 either side, and neither having undertaken by 
 
 1 2 Camp. 488. * M. & M. 65 ; 2 C. & P. GOl.
 
 CARGO 3IAY BE LANDED AND WAREHOUSED. o27 
 
 contract, express or implied, that there should be no 
 delay, the loss must remain where it falls." The 
 Exche(|ucr Chamber also, on appeal, upheld the 
 verdict for the defendants. Martin, B. in giving 
 judgment, said: — "I am not aware of any case 
 which goes to impose by mere implication of law, 
 Avithout any stipulation whatever, so unreasonable 
 a liability as that which the plaintiffs seek to 
 impose on the defendants, that they are to be 
 answerable for the delay caused by vis major.'' 
 
 " Ten years later, in the year 1878, came the case 
 of AVright v. New Zealand Shipping Company,^ 
 which has been so much relied on by the appellant. 
 There the charter-party was silent as to time, and 
 therefore it was implied that the ship should be 
 unloaded within a reasonable time, Bramwell, L. J. 
 said, "a reasonable time for doing an act is a 
 time within which it can be done by a person 
 working reasonably ;" and Thesiger, L. J. said, 
 " a reasonable time means a reasonable time under 
 ordinary circumstances." The case of Postle- 
 thwaite v. Freeland- followed, and is most important 
 in consequence of many of the dicta, although 
 the precise point involved in this case did not 
 actually arise. The Earl of Selbornc, giving judg- 
 ment in the House of Lords said : — " If there is 
 no time fixed, the law implies an agreement to . 
 discharge the cargo within a reasonable time — 
 that is, as was said by Blackburn, J. in Ford v. 
 
 > L. R. i Ex. D. IGo. • L. K. o App. Cas. 509.
 
 i28 LEGAL EFFECT OF THE CLAUSES. 
 
 Coteswortli,^ witliiii "a reasonable time under all the 
 circumstances." Lord Blackburn's own judgment 
 in this case is tlio strongest decision in favour of 
 the contention relied on by the respondents, and 
 presents the topics against the appellant's conten- 
 tion with great force. These cases and otliers cited 
 during the argument shew that there is a conflict 
 of judicial opinion on the question involved, but 
 in my opinion the preponderance of authority and 
 reasoning is against the appellant. Besides, the 
 authorities by way of analogy (as forciljly pointed 
 out by Pry, L. J.) are also against the aj)pellant, 
 and in favour of the view that reasonable time 
 must be determined by reference to the actual 
 events which occur. In the case of Taylor v. The 
 Great Northern Raihvay Company,^ it was held 
 that a common carrier was only bound to carry 
 within a reasonable time, looking at all the cir- 
 cumstances of the case. Eric, C. J. says plainly, 
 " I take reasonable time to mean a time within 
 Avhich a carrier can deliver, using all reasonable 
 exertions." The case of Hall v. AYright,^ also shews 
 an effort to apply a liberal construction of " reason- 
 able time" in an action of breach of promise of 
 marriage. And the American case of; Cross v. 
 Beard,^ decided thirty years ago, shews that a 
 breach in a canal and a storm on a lake were taken 
 into account in measuring what was reasonable 
 time. 
 
 1 L. II. 5 Q. B. 544. ^^ L. R. 1 C. P. 385. 
 
 3 27 L. J. (N. S.) Q. B. 315. " 2fJ N. Y. Rep. (12 Smitli'e App.) 85.
 
 CARGO 3IAY BE LANDED AND WAREHOUSED, o20 
 
 But it is not upon analogies or upon conflicting 
 authorities alone that the decision of your Lord- 
 ships can rest, although they are most valuable and 
 important to elucidate the position. Principle and 
 reason, in my opinion, alike oppose the contention 
 of the appellant. It is somewhat hard to make 
 either party suffer, but there is no help for it. 
 It must be remembered that there aue forms of 
 bills of lading which expressly name strikes and 
 such contingencies, and cast the responsibility upon 
 the consignees. If the shipowner Avishes the 
 merchant to be answerable for such events, he can 
 stipulate for it expressly. It is no doubt hard on 
 the shipowner in this case, but I do not apprehend 
 any disturbance in mercantile contracts, as parties 
 can readily, if they i)lease, change the terms of 
 future contracts, and prevent the possibility of 
 misunderstanding or surprise. On the grounds 
 that I have referred to, I think the judgment of 
 the Court of Appeal should be aflirmed." 
 
 In the case of Tillett & Co. v. Cwni Avon '^Vorks 
 Proprietors,^ plaintiffs, shipowners, sued defendants, 
 consignees, for damages for delay in unloading. 
 In the bills of lading there was no stipulation as to 
 the time for unloadhig, and the plaintiffs' vessel 
 could only be discharged at one of three berths, 
 the property of the consignees, which at the time 
 of the arrival of the plaintiffs' ship at the port, had 
 all been occupied by other vessels with cargoes 
 
 1 2 Times L. K. 675. 
 
 07
 
 530 LEGAL EFFECT OF THE CLAUSES. 
 
 belonging to tlie defendants. The discharge of the 
 plaintiffs' ship was thereby delayed for several days. 
 It was held, that it having been an implied term 
 in the contract that the defendants should discharge 
 the cargo within a reasonable time, the plaintiffs, 
 under the circumstances, could recover damages 
 for the loss occasioned by the delay. 
 
 In all cases the master is required to give notice 
 to the consignee of the arrival of the vessel, and of 
 his readiness to discharge the cargo; and knowledge, 
 therefore, casually acquired that the vessel has arrived 
 and will discharge her cargo at a particular wharf, 
 is not enough. Generally, if a notice in the newspaper 
 is relied on, it must be shown that the consignee 
 read the notice. If, however, the consignee is absent 
 or cannot be found after diligent search, the want 
 of notice is excused. If the master has wrongfully 
 omitted to sign a bill of lading, and 'has sailed 
 without learning the names of the consignees, he 
 cannot avail himself of his ignorance as an excuse 
 for not giving notice of the landing of the goods. 
 But, if it is the fault of the shipper that there is 
 no bill of lading, notice published in a paper taken 
 by the consignees is sufficient. And it is the duty 
 of the master, if no consignee is named in the bill 
 of lading, to store the goods for the benefit of the 
 owner. And this is his duty generally, when the 
 consignee refuses to receive the goods.^ 
 
 "Where the bill of lading stipulates that "the cargo 
 
 1 Tursous oil Sli., vol. I. 225,
 
 CABGO MAY BE LANDED AXD WAUEnOUSED. 531 
 
 is to be discliargctl immediately after the arrival of 
 tlie steamer, or the same will he transhipped into 
 lic^hters, or landed or warehoused at the expense 
 and risk of the consignees," if the consignees fail 
 to comply with such stipulation, the master may 
 proceed with the discharge of the cargo. Thus, if a 
 steamer with grain arrives at her port of discharge 
 at 2 P.M., notice of which is simultaneously given to 
 the consignees, who promise to send lighters at 7 
 o'clock the next morning : the craft not coming 
 alongside till 2 p.m., the master commences to 
 discharge the cargo at noon, and will be justified in 
 landing the goods, both under the provisions of the 
 bill of lading, and by sub-section 1 of clause G7 of 
 the Merchant Shipping Act, 18G2, without waiting 
 21 hours before commencing such discharge ; sub- 
 section 1 providing that if a time for the delivery of 
 the goods is expressed in the charter-party, bill of 
 lading, or agreement, then the goods may be landed 
 or unshipped at any time after the time so expressed. 
 Under the terms of a bill of lading, goods were to 
 be delivered from the ship's tackle as fast as the 
 steamer could discharge, failing which, the agents 
 were to be at liberty to land the goods at their 
 godowns ; the bill of lading further, amongst other 
 exceptions, provided that the shipowners should not 
 be liable for loss by fire. The steamer, on arriving 
 at the port of discharge, came alongside the wharf, 
 and commenced unloading at the custom-house 
 godowns without giving the consignees the option
 
 532 LEGAL EFFECT OF THE CLAUSES. 
 
 of landing the goods from the ship's tackle. The 
 consignees, however, did not object to the goods 
 being landed at the godowns, and they paid, also 
 without objection, a sum for the wharfage of a part 
 of the goods in tlie godowns. It was held, that 
 the shipowners, if the goods when placed in the 
 godowns were in their possession as carriers, were 
 protected under the clause of the bill of lading, 
 l^roviding against fire, as much as if the fire had 
 occurred on board ship ; and, on the other liand, if 
 the goods were in possession of the shipowners as 
 wharfingers, they were not liable for the loss, 
 inasmuch as the goods were destroyed by fire 
 without any default on their part.^ 
 
 But the stipulation that " the goods may be 
 landed at the risk of the shipper," does not exempt 
 the shipowner from the obligation to take proper 
 precautions to prevent damage to the goods after 
 landing, and it is his duty to protect them from 
 injuries that may be occasioned by rain or other 
 similar causes, by covering them with tarpaulins 
 when piled on the quays awaiting delivery or 
 deposit in a warehouse. 
 
 A. & Co. at Madras shipped by the B. I. S. N. 
 Co.'s S. S. " Mahratta" a box of coral, to be delivered 
 to their agent M. at Bimlipatam. At the time of 
 shipment they declared the value and paid enhanced 
 freight on account of such value. By the bill of 
 lading the Company undertook to deliver the case 
 
 » Chin llong & Co. v. Seng Moh & Co., I. L. K. 4 Cal. 736. 
 
 4
 
 CAIiGO MAY BE LAXDET) AND WABETTOVSED. 533 
 
 in good order, at Bimlipatam to llio consignee M., 
 siil)ject to certain conditions annexed. By one of 
 those conditions, if the consignee did not take 
 delivery Avhen the ship was ready to discharge, tlic 
 goods might he warehoused at the merchant's risk, 
 and the Company's liahility was to cease when tlie 
 goods left the ship's side. The consignee did not 
 take delivery at the ship's side, and the Company's 
 agent at ]?imllpatam took the case to the Custom- 
 house, as he was hound to do hy the Regulations of 
 the port. If the Superintendent of the Custom- 
 house had known that the case contained corals, it 
 would have heen placed in an inner room, hut the 
 Company's agent did not know the contents of the 
 case, and therefore was mialjle to give any such 
 information to the Superintendent. While the case 
 was lying at the Custom-house, application was 
 made, on plaintiff's behalf, to the Company's agent 
 for delivery of the case upon the usual guarantee. 
 The assent refused to deliver the case without the 
 production of the hill of lading. Afterwards tlie 
 hill of lading was received from Madras, and the case 
 was delivered up. At some time between its 
 leaving the ship's side and delivery to the consignee, 
 tlic case was opened and a portion of the contents 
 stolon. Ileld, that the defendants were not liable, 
 as they had iierformed their duty as carriers by 
 carrying the case to its port of destination, where 
 the consignee ought to have taken delivery at the 
 ship's side.^ 
 
 1 MacKiunon & JIacKeiizie v. :Mincliin, G Mail. II. C. E, 353.
 
 534 LEGAL EFFECT OF THE CLAUSES, 
 
 By the terms of a bill of lading, a ship ^vas " to 
 take her regular turn in unloading" at the port of 
 discharge. On the arrival of the ship the consignee 
 refused to accept and unload the cargo, in conse- 
 quence of some dispute between himself and the 
 consignor, and the ship was kept several days without 
 bemg unloaded. Held, that the bill of lading was 
 a contract between the master and the consignor, 
 and that A., who was master and part-owner, was 
 entitled to recover damages from the consignor for 
 his breach of contract in not allowing the ship to 
 unload in her regular turn, according to the terms 
 of the bill of lading.^ 
 
 " Blockade." Lord StowcU says, that " a blockade is a sort of 
 circumvallation (surrounding, enclosing,) round a 
 place, by which all foreign commerce is, as far as 
 human force can effect it, cut off. It is intended to 
 suspend the entire commerce of that place, and a 
 neutral is no more at liberty to assist the trafiSc of 
 exportation than of importation. The utmost that 
 can be allowed to a neutral is, that having taken 
 on board a cargo before the blockade begins, she 
 may be at liberty to retire with it. But it must be 
 considered as a rule, that a neutral ship, departing, 
 can only take away a cargo truly and honestly 
 purchased and delivered before the commencement 
 of tlie blockade, and if she afterwards takes on board 
 a cargo, it is a fraudulent act, and a violation of 
 the blockade. The blockade commences wdien it is 
 
 > Cawthron v. Trickett, 1 Asp. Mar. L. Ca. 414.
 
 "BLOCKADE.'' 535 
 
 really supported by sufficient forces ; it ceases ■when 
 these forces do not further support it ; in other 
 terms, the reality of a blockade is the sole condition 
 of its existence. Not only an attcmj)t to enter the 
 blockaded port in violation of that blockade is illegal, 
 but from the moment of quitting port to sail on 
 such a destination, and with the purpose of entering 
 the blockaded port, the offence of A'iolating the 
 blockade is complete, and the property engaged is 
 subject to confiscation. And it has been held, that 
 sailing after notification Avith instructions to proceed 
 to the mouth of the harbour of the blockaded port, 
 and inquire if the blockade Avas raised, is a forfeiture 
 of neutrality and a ground for confiscation."^ So 
 a vessel sailing -without notice of the blockade, will 
 be subject to condemnation if she touches at an 
 intermediate port, and there learns the fact of the 
 blockade, after which she attempts to enter the 
 blockaded port.^ 
 
 If a vessel is captured in attempting to enter a 
 blockaded port, because she is in a leaky condition, 
 it must be j)roved that entering of the blockaded 
 port arose from an imperious and overwhelming 
 necessity.^ 
 
 As regards a contract to deliver a cargo at a port 
 which is likely to be interrupted by the outbreak of 
 hostilities, the master ought not to sail with that 
 cargo without having a written authority in the bill 
 
 ^ The Iicuc, 5 Kob. 67. - Tlic Columbia, 1 liub. 13b. 
 
 3 The Panagia Rhimba, 3 Jui-. ^^ 8. 23.
 
 536 LEGAL EFFECT OF THE CLAUSES. 
 
 of lacliiipr, or otherwise, from tlie shipper, giving him 
 full discretion as to how to act with respect to the 
 goods, in the event of the port of destination being 
 blockaded, or of any other interruption resulting 
 from a state of w^ar. Hence, we find that it is nsual 
 for bills of lading to contain a stipulation authoriz- 
 ino; the master, in case of blockade or interdict of 
 the port of discharge, or if the entering of, or 
 discharging in, the port shall be considered by the 
 master unsafe by reason of war or disturbances, 
 to land the goods at the nearest safe and convenient 
 port, at the expense and risk of the owners of the 
 goods, and that the ship's responsibility will cease 
 when the goods are so discharged into proper and 
 
 safe keej)ing. 
 
 In an action for breach of a charter-party, by which 
 it was agreed that the defendant's vessel should 
 proceed to a port of loading, and after loading a 
 cargo convey it to a foreign port, it was pleaded, 
 that before breach there was a war between the 
 country of the port of destination and another 
 country, so that the performance of the charter- 
 party became illegal, and the defendants refused to 
 perform it. It was held, that the plea was good, as 
 the blockade Avas within the meaning of the 
 exception, " restraints of princes" in the bill of lading, 
 and that the the defendants were not bound to have 
 proceeded to the port of loading, or to have waited 
 in anticipation of the removal of the blockade, in the 
 absence of anything to lead to the inference that it 
 would be removed within a reasonable time.^ 
 
 1 Geipel v. Smith, L. 11. 7 (^. U. 404 ; 41 L. J. Q. B. 153.
 
 According to both English and German law, an 
 apprehension of captiu-e, founded uj)on circumstances 
 calculated to affect the mind of a master of ordinary 
 courage, judgment, and experience, Avould justify 
 delay. 
 
 Thus, Avhere S. E.>, a German ship "with an English 
 cargo, heing in need of repairs, put into Valparaiso 
 in the month of August, and there ascertained the 
 existence of the war between France and Germany. * 
 The repairs were completed on the 21st of Septemher, 
 but the master, nuder tlie advice of his consul, 
 did not set sail till the 23rd of December. In an 
 action for delay in delivery of the cargo, it was held, 
 that under the circumstances, the risk of capture was 
 such that the delay was justifiable.^ 
 
 The Venetians are believed to have been the first to «'QunrarHne. 
 establish Avhat we now understand as "Quarantine," ^''■"'^^^'^'^^• 
 and it is probable that their sanitary regulations 
 against the introduction of the jilague were first 
 issued in 1181, but it AAas not until the plague of 
 jMarseilles, in 1720, that quarantine regulations were 
 thoroughly understood. 
 
 The application of the particular provisions of 
 quarantine depends on the nature of certain docu- 
 ments, or certilicates called "Bills of Health," which 
 the British consuls residing in the ports of the 
 Mediterranean and elsewhere, are directed to furnish 
 
 1 The San Roman, L. II. 5 P. C. 301 ; 12 L. J. Adm. -10 ; Polcr.Cetcovich, 
 30 L. J. C. P. 10;i ; The Uciurich, L. K. 3 AUm. -l-'l ; The Teutouia, L. E. -i, 
 P. C. 171. 
 08
 
 5:3S LEGAL EFFECT OF THE CLAUSES. 
 
 to all ships that may come from tliencc. These hills 
 descrihe the state of the country, in respect of the 
 existence or non-existence of the plague at the time 
 of the departure of the vessel, and are of three 
 kinds : — 
 
 The first is what is denominated a " clean bill," 
 which imports that at the time of sailing no in- 
 fectious disorder existed, nor had any case indicative 
 of it occurred during the previous forty days. 
 
 The second is called a " suspected hill," in which 
 the general health of the place is stated, together 
 with the occasional arrival of vessels coming to such 
 port from infected places, which subjects it to 
 suspicion, although no illness among the crew may 
 have appeared. 
 
 The third is a " foul bill," and imports the 
 existence of the infection at the port, or in the 
 country, at the period of the departure of the vessel 
 from the port whence she sailed. 
 
 It is the duty of the British Consuls to furnish 
 masters of all vessels sailing from the ports within 
 their districts, with certificates, w^ritten upon the 
 back of the bills of health, specifying whether any, 
 and what part of the cargo had been received on 
 board in full pratique, from the shore, or whether it 
 had been received from the lazaretto, or tran- 
 shipped from any -other vessel. 
 
 A vessel in quarantine is still theoretically in 
 transitu, and if the agent of the consignor gives 
 notice and claims the cargo during such period,
 
 ''QFARANTTXE. VnATTQVE." r/10 
 
 there is sufTicicnt stoppage of the goods to prevent 
 the property vesting in the assignees of the con- 
 signee, if he shoukl hecome bankrupt, even although 
 one of the assignees had ah'cady hoarded the vessel 
 and taken possession of, hut not removed, the 
 cargo/ 
 
 *' Pratique" is Avliat a vessel receives when she 
 lias liberty to unload without impediment from the 
 laws of quarantine. Where such laws exist, vessels 
 arriving from suspected countries must have a 
 certificate to enable them to unload ; and this is 
 called being admitted to pratique. 
 
 The word itself means " liberty to unload." If 
 the vessel arrive at a place Avhere there is no officer 
 to examine and certify, that makes no difference to 
 tlie shipper ; he looks only to the actual liberty of 
 luiloading ; how he obtains it is immaterial. Where 
 there are officers of quarantine, a A'cssel coming 
 from a country not suspected, has pratique with- 
 out any form being gone through.^ 
 
 Tlie statute passed on the 27th June 1825, G 
 Geo. IV., c. 78, '*' An Act to repeal the several Laws 
 relating to the performance of Quarantine and to 
 make other provisions in lieu thereof," consolidates 
 the chief enactments of the former statutes concern- 
 ing quarantine, and is in force in the whole of the 
 United Kingdom. 
 
 In conformity witli the principles laid down in 
 
 ' Ilolst V. rowiial, 1 Esp. 210. 
 
 - Ballcy r. Dc Arroyave, 7 Ail. & E. i l).
 
 )40 LEGAL EFFECT OF THE CLAUSES. 
 
 tlie Conyention relating to licaltli, made at Paris, 
 Eebriiary 8rcl, 1852, between Prance, Sardinia, 
 Portugal, Turkey, and Tuscany, tlie liigli contracting 
 parties adopted general regulations to be observed 
 in tlieir ports in the Mediterranean and in the 
 Black Sea, wliicli were to be the basis of the 
 special rules of each country ; and those rules were 
 framed so as to establish the greatest uniformity 
 possible in the health service of the different 
 countries. 
 
 Quarantine is of two kinds, viz., of observation, 
 and strict. 
 
 Quarantine of observation commences for vessels 
 and all they carry from the time of a health officer 
 boarding them, and from the time of measures being 
 taken for airing and purifying them. Strict quaran- 
 tine commences for the vessel, and the persons and 
 goods on board, from the time that the cargo to be 
 landed shall have been so ; for the cargo landed in 
 the lazaret, or in any spot set apart for the purpose, 
 from the time of a purifying process being resorted 
 to; for the persons disembarked, from the time of 
 their entrance into the lazaret. 
 
 A quarantine commenced on board ship may 
 always be continued in the lazaret. 
 
 The quarantine of observation is limited to 
 observing during a fixed period, the vessel, the crew, 
 and the passengers, and does not entail the discharge 
 of the cargo in the lazaret. 
 
 With a few exceptions the cargo of every description
 
 « QUAEANTTXE. VBA TTQUE." 541 
 
 oil hoard a vessel Avitli a clean Lill of liealtli, which 
 vessel is in j^ood condition and well kept, and wliich 
 has not had on hoard cither any death or any 
 suspicious disease, "will he exempt from all sanitary 
 measures, and tog-ether with the vessel, the crcAV, and 
 tlie jmssengers, he at once admitted to pratique. 
 
 Leather, hair, Avaste paper, and rags of all kinds 
 are excepted. Cargo of this sort may, even when 
 accompanied hy a clean hill of health, he suhjected 
 to sanitary measures. Cargo and things spoilt or 
 rotten are equally excepted. 
 
 In conformity with Art. Y . of the Convention, and 
 in order to carry out sanitary measures, cargo is 
 divided into three classes. 
 
 The following belong to the first class, and are 
 sul ) jected to an obligatory quarantine and to purifying 
 processes, viz. : old clothes and articles in common 
 us'c, rags and waste paper, leather and skins, feathers, 
 hair, and in general any parts of animals, and, lastly, 
 wool and silk stuffs. 
 
 The following belong to the second class, and are 
 liable to perform quarantine, viz. : cotton, flax, and 
 hemp. 
 
 All articles not falling within the two first classes 
 belong to the third class, and as such arc exempt 
 from quarantine. 
 
 AYith a foul bill of health marked witli the plague, 
 cargo of the first class shall always be discharged at 
 the lazaret, and purified cargo of the second class 
 may be either immediately admitted to pratique or
 
 o42 LEGAL EFFECT OF THE CLAUSES, 
 
 discliargecl at the lazaret, in order to be purified, 
 according to circumstances, and according to the 
 special sanitary regulations of each of the contract- 
 ing countries. 
 
 Cargo of the third class being declared free, may 
 be delivered immediately to its consignees under 
 the suj)ervision of the health authorities.^ 
 
 The charterer of a ship, who covenants to send a 
 cargo alongside at a foreign port, is not excused 
 from sending it alongside, though, in consequence 
 of the prevalence of an infectious disorder at the 
 port, all public intercourse is prohibited by the law 
 at the port, and though he could not have com- 
 munication without danger of contracting and com- 
 municating the disorder.^ 
 
 The Italian vessel " Ernesto Parodi" arrived at 
 Havre with a cargo of Campeachy wood and coffee 
 consigned to P. and Co., and was ordered to perform 
 quarantine at Cherbourg, where her cargo was 
 discharged for the ship to be disinfected. The 
 costs amounted to 5,616 /s., and the master claimed 
 ten-twelfths of the sum from the consignees of the 
 merchandise. The Tribunal at Havre, in delivering 
 judgment, said, " By the regulations the quarantine 
 ordered comprised the sanitary discharge of the ship : 
 that is to say, the disinfection of the ship and cargo 
 according to the nature of the merchandise. It 
 follows that when the merchandise is exempt from 
 disinfection, the discharging and reloading must be 
 
 ' Baker on Quarantine. " Barker v. Hodgson, 3 M. & S. 267.
 
 "QUARANTINE. VnATIQVEr 54:3 
 
 considered as only done in order to disinfect tlie 
 sliip. The rcgnlations divide the dilTerent merchan- 
 dise into three classes : the first consistin^^ of articles 
 considered snsceptihle, and snhject to compulsory 
 disinfection ; the second, goods less liable, and for 
 Avhich the disinfection is optional; thirdly, goods 
 not susceptible and exempt from disinfection. 
 The cari]co of the ' Ernesto Parodi' consisted almost 
 Avholly of Campeachy Avood, besides ^hicli there 
 Avcre only 300 bags of coffee and nine bales of 
 cotton. The wood, Avhicli belongs to the third class, 
 was exempt fiom disinfection. Coffee, which is not 
 included in any of the classes, may belong to either 
 according to the packing, and in the present case 
 belongs to the second, which comprises cotton, flax, 
 and hemp, the disinfection of which is optional. 
 The coffee and cotton might therefore have been 
 subject to the measures of disinfection under the 
 general poAvers given to the authorities to apply 
 such a measure, if considered necessary; but to 
 render the car^o liable, it must be sliOAvn that such 
 a measure was ordered and executed. The instruc- 
 tions cf the quarantine master at Cherbourg, order- 
 ing the disinfection of the ship, did not imply that 
 the merchandise underwent the same operation, and 
 that if he ordered chloride of lime to be thrown on 
 the cargo when the hatches were opened, and on 
 each layer of the merchandise by degrees as it was 
 removed, it was to purify the air in the hold for 
 the safety of the labourers employed in discharging
 
 541 LEGAL EFFECT OF THE CLAUSES. 
 
 tlie sliip. Therefore, as the merchandise was not a 
 cause of the outhay incurred hy the quarantine 
 which was ordered for the disinfection of the sliip 
 alone the ship must alone hear the cost. 
 
 When ships arrive from Turkey, and are ohliged 
 to perform quarantine before their entry into the 
 port of London, it is usual for the consignee to 
 send down persons, at his own expense, to pack 
 and take care of the goods ; and therefore, Avhere a 
 consignee had omitted to do so, and goods were 
 damaged by being sent loose to shore, it was held 
 that he had no right to call upon the master of the 
 ship for a compensation.^ 
 Lien. That the shipowner, and the master, as his agent, 
 
 have a lien on the goods carried in their ship for the 
 freight, is a proposition Avliich appears never to 
 have been disputed.^ 
 
 The lien of the owners is as perfect for the hire 
 of the vessel stipulated in the charter-party, as it is 
 for the freight stipulated in the bill of lading. In 
 both cases the claim is privileged in the same degree 
 and to the same extent.^ 
 
 As long as the goods remain in the possession of 
 the master, the shipowners, and their agent, the 
 master, has a lien on them at common law, not only 
 for freight due, but also for general average, and 
 this lien is given to the master without any provi- 
 sion for it being made either in the bill of lading or 
 
 1 Dunnage v. JoUiffe, cited in Abbott on Sh. 13th ed., p. 448. 
 * Parsons on Sh., voL 1, p. 174 u. 2. 
 3 Ihid., 175.
 
 LIEN. 5i5 
 
 otlierwise, and lie cannot be compelled to part with 
 the goods until such freight he paid.^ 
 
 The essential foundation of the right of lien is 
 possession. The right of retaining possession of the 
 cargo until the freight of the ship Avas discharged, 
 appears to have hcen allowed to the master hy most 
 of the maritime codes of Europe, and according to 
 the principle by which all liens by the common law 
 are regulated, if the "master once voluntarily part 
 with the possession of the goods out of his own or 
 his agent's hands, he loses his lien upon them, and 
 cannot afterwards reclaim them;- but a master who 
 has delivered a portion of a cargo on j^ayment of a 
 sum on account of freight, may detain the balance 
 of the cargo for the balance of the freight.^ 
 
 The captain or master may, it is true, exercise as 
 agent and on behalf of the owner, a right of lien 
 upon the merchandise and cargo consigned by his 
 ship, for the carriage in respect thereof ; for the 
 owner's rights are as regards the carriage, co-exten- 
 sive with that of a common carrier, and any part 
 may be detained for the freight of all that is 
 consigned to the same person, even though some 
 part may have been previously removed into a 
 lighter alongside a ship which has been sent by 
 the consignee, but which the master has fastened 
 to the ship's side to prevent its final removal.* 
 
 'Cargo ex Galara, 33 L.J. Adm. 97; Sodergren v. Flight, 6 East. 622 j 
 Kirchner v. Venus, 7 W. R. 45G. 
 
 - Cross on Lien, pp. 4, 288, 289. ' Perez v. Alsop, 3 F. & F. 188. 
 
 ♦ Ward V. Fclton, 1 East. 507 ; Sodergren v. Flight, cited iu Ilauson v, 
 Meyer, 6 East. 622; Ang. on Car., s. 370. 
 
 60
 
 546 LEGAL EFFECT OF THE CLAUSES. 
 
 Sucli riglit, however, extends to the charges for 
 freight only, and not to those for wharfage.^ Nor 
 does it exist except in those cases where the master 
 of the vessel has a power to receive the freight. He 
 has no prospective lien thereupon, so as to insist 
 upon payment to himself instead of to the owner ; 
 although a payment to him in the absence of any 
 notice by the owner to the charterer to withhold it, 
 will be a good and valid payment.^ 
 
 In England, if goods are placed in the West India 
 or East India Company's Dock warehouses, the ship 
 master may give notice to those bodies to detain 
 them until the freight be paid.^ 
 
 Section 68, 25 & 26 Vict., c. 63, provides that, 
 " if the shipowner gives to the warehouse owner 
 notice in writing that the goods are to remain subject 
 to a lien for freight or other charges payable to the 
 shipowner to an amount to l)e mentioned in such 
 notice, the goods so landed shall, in the hands of the 
 warehouse owner, continue liable to the same lien, 
 if any, for such charges as they were subject to 
 before the landing thereof;" and under this section it 
 has been held, that a master who wilfully inserts 
 in a notice a sum in excess of that for which he 
 has a lien, is guilty of a wrongful detention of goods, 
 and is liable in an action for a breach of duty.'* 
 
 * Bishop V. Ware, 3 Camp. 360. 
 
 * Atkinson v. Cotesworth. 3 B. & C. 619. 
 
 3 Faith V. The East India Co., 4 B. & Aid. G30 ; Ilorncastle r. Farran, 3 
 B. & Aid. 497. 
 
 * Miebrodt v. Fitzsimon, L, R. 6 P. C. 306; 44 L. J. Ad. 25.
 
 LIE2s\ •' 547 
 
 Certain goods were shipped on hoard the defen- 
 dants' sliip under a hill of lading hy which they were 
 made deliverahle at the port of discharge to the 
 plaintiffs, the consignees, the freight to he payahle 
 on delivery at the rate of 22s. Gd. per ton, and all 
 other expenses were to he home hy the receivers, 
 " and other conditions as per charter-party." The 
 charter-party, which provided for payment of 
 freight at the rate of 11, lis. Sd. per ton, contained 
 a clause giving the shipoAvner " an ahsolute lien on 
 the cargo for freight, dead freight, demurrage, 
 lighterage at port of discharge, and average." There 
 was a further clause under which the captain was 
 to sign hills of lading at any rate of freight, " hut 
 should the total freight as per hills of lading he 
 under the amount estimated to he earned hy this 
 charter, the captain to demand payment of any 
 difference in advance." AVhen the ship arrived at 
 the port of discharge the shipowner claimed 
 payment of the freight speciiied in the charter-party, 
 and the plaintiffs, the consignees, in order to ohtain 
 delivery of the cargo, which had hcen detained hy 
 the defendant under sections 193 and 191 of the 
 Mersey Docks Acts Consolidation Act, 1858, were 
 compelled to pay the difference hetween the freight 
 specified in the hill of lading and the charter-party 
 freight. In an action to recover the amount so 
 paid,— Held, that the shipowner had no right of 
 lien for the charter-party freight, inasmuch as the 
 clause in the charter-party as to the payment of
 
 )48 LEGAL EFFECT OF THE CLAUSES. 
 
 freight ivas inconsistent vriih the contract as to the 
 payment of freight contained in the bill of lading, 
 and therefore could not be incorporated into the bill 
 of lading, and that the plaintiffs were only liable 
 for the amount of freight specified in the bill of 
 lading/ 
 
 In Bags of Linseed,^ the Court held that the lien of 
 a vessel for freight depends upon possession, and is 
 lost by delivery ; but this important qualification of 
 the rule is stated : " It is frequently understood 
 between the parties, that transferring the goods from 
 the ship to the warehouses shall not be regarded 
 as a waiver of the lien, and that the shipowner 
 reserves the right to proceed in rem to enforce it, 
 if the freight is not paid ; and if it appears by the 
 evidence that such an understanding did exist 
 between the parties, before or at the time the cargo 
 was placed in the hands of the consignee, or if such 
 an understanding is plainly to be inferred from the 
 established local usage of the port, a court of 
 Admiralty will regard the transaction as a deposit of 
 the goods, for the time, in the warehouse, and not as 
 an absolute delivery; and on that ground Avill consider 
 the shipowner as still constructively in possession, so 
 far as to preserve his lien and his remedy in rem."^ 
 
 "Where goods are not required to be landed at any 
 particular dock, and the common practice is to land 
 them at a public wharf, and direct the Avharfinger not 
 
 » Gardner & Sons v. Trechmann, L. R. 15 Q. B. D. 154 ; 54 L. J. Q. B. 515- 
 = 1 Black, 108. 3 ^ng q^ Q^r., note to sec. 370.
 
 LIEK. 549 
 
 to part with them until the charges upon them are 
 paid, in such case the wharfinger hecomes the ship- 
 master's agent, and the goods remain constructively 
 in the possession of the latter.^ 
 
 Where a ship is chartered, hut the shipowner and 
 master are still legally in possession of it, they have 
 a lien against the charterer, and all persons claiming 
 through him, on all goods shipped by the charterer for 
 the sum which is to he paid for the hire of the ship; 
 such possession is necessary, for a person who has 
 not in law the possession of the goods, cannot have 
 a lien on them ^ unless such right has been reserved 
 by express agreement in the bill of lading or 
 otherwise.^ 
 
 Where the shipowner is a vendor of the cargo in 
 his ship with a lien for the unpaid purchase-money, 
 and the cargo is delivered without payment of the 
 balance of the purchase-money which is treated as 
 freight, he may sue on an implied contract to 
 discharge the lien by payment of the purchase- 
 money Avhich remains owing. 
 
 Thus where the plaintiff shipped goods in his own 
 vessel to be carried on the ship's account, a nominal 
 freight of one shilling per ton being payable under 
 the bill of lading. lie subsequently sold the goods 
 whilst in transit, for G55. per 500 lbs ; " including 
 freiijht and insurance, freight to be reckoned at 
 605. per ton." After intermediate sales, the 
 
 ' Ang. on Car., sec 372. 
 
 » Saville v. Campion, 2 B. & Aid. G03; Tate v. Meek, 8 Taunt. 280. 
 
 » Small V. Moates, 9 BiDg. 57-4; Faith v. East India Co., 4 B. & Aid. 630.
 
 00^ 
 
 LEGAL EFFECT OF THE CLAUSES, 
 
 defendants loouglit the goods whilst still in transit 
 upon the same terms as to freight. The ship arrived 
 at the port of discharge, and the defendants, having 
 notice of the terms of the plaintiff's contract, paid 
 him a snm on account of freight at 605. per ton, 
 and thereupon ohtained delivery of the goods. In 
 an action hy tlie plaintiff to recover the halance 
 alleged to he due for freight, — 
 
 Held, that the 60s. per ton agreed to he treated 
 as freight in the plaintiff's contract for sale, was 
 unpaid purchase-money, in respect of which he had 
 a lien on the goods hefore delivery; that the 
 defendant's conduct under the circumstances 
 amounted to an implied contract to discharge the 
 lien, and therefore that the plaintiff was entitled to 
 recover.^ 
 
 If the ship is disahled, or the voyage is ahandoned 
 hy the master without transhipping the goods as 
 agent of the shipowner, or forwarding the same to 
 their destination, freight not having heen earned, 
 there will he no lien on the goods. 
 
 A sum of money payahle in advance, though 
 descrihed in the hill of lading as freight, does not 
 acquire its legal character, nor do its legal incidents 
 attach to it, nor lias the master any lien on the 
 goods for such sum.^ 
 
 Keither can any lieu he claimed if the shipowner 
 
 » Swann v. Barber, L. R. 5 Ex. D. 130; 49 L. J. Ex. 253. 
 " Kirchncr v. Venus, 12 Moo. P.C.C. 361 ; 7 W.R. 456; How v. Kirchner, 1 1 
 Moo. P.C.C. 21 ; G W.ll. 139; Blakey v. Dixon, 2 B. &. P. 321,
 
 LIEN. ool 
 
 stipulates that tlic freight shall not be paid until 
 after the delivery of the cargo.^ 
 
 If the goods, even of the same owner, are sent 
 in the same ship, under different contracts to carry, 
 with a di(fcrcnt terminus in each, no lien attaches for 
 freight under one contract upon goods shipped under 
 the other. ^ 
 
 Where a master, in order to preserve cargo, takes 
 measures such as a wise and prudent man would 
 think most conducive to the benefit of all concerned, he 
 has a lien on the cargo for the expenses so incurred.' 
 
 The Mer6hant Shi})ping Act, 1889, docs not give 
 the master of a ship a maritime lien on ship for 
 disbursements for which he has no authority to 
 pledge the shipowner's credit. 
 
 Where there is no maritime lien on ship there 
 can be no lien on freight in respect of the same 
 debt. 
 
 By a charter-party for the hire of a steamship it 
 was agreed that the charterers should provide and 
 pay for coals. In the course of the voyage it 
 became necessary to procure coals to enable the 
 ship to prosecute the voyage and earn freight. The 
 master, avIio had notice of the terms of the charter- 
 party, obtained the coals and drew on the charterers 
 for the value. The bill having been dishonoured 
 the master was sued on it, and then instituted a 
 
 » Foster r. Colby, 2S L. J. Ex. 61. 
 
 * Aug. on Car., s.373. 
 
 » Cargo ex Ai-gos, L, R. 5 P.C, 131 j 42 L.J. Ad. -19.
 
 552 LEGAL EFFECT OF THE CLAUSES. 
 
 cause of disbursements in the Court of Admiralty 
 against ship and freight : — 
 
 It was held, that as the shipowner was not 
 personally liable for the disbursements, the master 
 had no maritime lien on ship, and that although 
 his claim for payment out of the freight was 
 supjiorted by considerations of equity, he had no 
 lien on freight, since by the practice of the 
 Admiralty Courts, there cannot be a maritime lien 
 on freight where there is no lien on ship in respect 
 of the same debt.^ 
 
 Lord Herschell in delivering judgment said : — 
 *' The claim of the plaintiff to a maritime lien was 
 rested upon the 1st section of the Merchant Shipping 
 Act, 1889, and his case was that these were disburse- 
 ments and liabilities proj)erly incurred by him on 
 account of the ship, inasmuch as they "were incurred 
 for the purpose of procuring coals which were 
 necessary to enable the vessel to prosecute her 
 voyage as a steamer in the adventure in which she 
 was engaged. 
 
 "There can be no doubt that in a sense this 
 expense may be said to have been incurred 'on 
 account of the ship' if you regard those words as 
 including all disbursements which are necessary 
 or desirable for the purpose of enabling the ship to 
 be effectively used. But it is, in my judgment, 
 impossible to treat the question of the construction 
 of this section as if it had to be entered upon 
 
 1 Morgan v. Castlegatc Co., L. R. (1893) A.C. 38 j 62 L.J. P.C. 17.
 
 LIEN. 
 
 Avitliout any regard to previous legislation or 
 decisions. The words to wliicli I have called your 
 Lordships' attention were not new words ; they had 
 been used in legislation relating to the jurisdiction 
 of tlie Admiralty Court and had received judicial 
 construction. In the 10th section of the Admiralty 
 Court Act, ISGl, and the 33rd section of the 
 Admiralty Court (Ireland) Act, 18(57, it had been 
 provided that " the Court of Admiralty shall have 
 jurisdiction over any claim by a seaman of any 
 ship for wages earned by him on board the ship, 
 whether the same be due under a special contract 
 or otherwise, and also over any claim by the master 
 of any ship for Avages earned by him on board the 
 ship, and for disbursements made by him on 
 account of the ship." 
 
 " In the *'Mary Ann,"^ those words were held to 
 give the master of the ship a maritime lienfor dis- 
 bursements made by him on account of the ship; 
 and that decision remained unquestioned in this 
 noLise,was treated as law, and had effect given to it for 
 a considerable number of years. In the "Sara,"^ which 
 came to your Lordships' House, it was held that the 
 decisions to which I have referred were erroneous, 
 inasmuch as the Admiralty Court Act in England, 
 to which I have alluded (and of course the decision 
 applied equally to the Admiralty Court Act in 
 Ireland) did not create any maritime lien which had 
 not existed before, but merely conferred jurisdiction 
 
 ' L. II. lA.iiE.S. » L. K. li Ai>i). Cas. 1'09. 
 
 70
 
 551 LEGAL EFFECT OF THE CLAUSES. 
 
 upon the Court of Admiralty in cases in Avliicli it 
 did not possess jurisdiction before. Immediately 
 after the decision that the maritime lien which it 
 was supposed had been created by the Act of 1861 
 did not exist, the statute upon which the appellant 
 relies was passed. There can be no doubt that it 
 was passed for tlic purpose of creating tlic lien 
 which it had been supposed existed by virtue of the 
 section which gave jurisdiction to the Court of 
 Admiralty. Whilst that lien was supposed to exist, 
 the question arose in the Courts within what limits 
 the right was to be confined upon the true 
 construction of the words to which I have called 
 your Lordships' attention, " disbursements made by 
 the master on account of the ship." In the " Turgot"^ 
 the question arose under circumstances almost 
 precisely similar to those Avhich have given rise to 
 the present controversy. In that case the vessel 
 was under charter. The charterers were bound (as 
 in the present case) to provide, amongst other 
 things, coals. The master had put his name to a draft 
 in respect of the coals which had been provided, and 
 he sought to enforce a maritime lien, in respect of 
 that liability, against the ship and freight. The 
 then President of the Probate and Admiralty 
 Division held that he was not entitled to do so. 
 Pbeliancc was of course placed upon the very same 
 words which are relied upon here. This liability, 
 it AA as said, arises in respect of, and may therefore 
 
 3 L. ii. 11 p. D. 21.
 
 1)0 rc<?ar(lcd as, a tlishiirsement in respect of goods 
 supplied oil account of tlic ship. The learned 
 President, after calling attention to the fact that 
 '' l)y the charter-party" ^vhilc " the owners were to 
 provide and pay for provisions and wages," " the 
 charterer was to provide and pay for coals," and 
 *' the captain was to he appointed by and to follow 
 tlie instructions of the charterer," said, "After the 
 coals and provisions were sui)])lied, the captain 
 proposed to pay for them hy drawing on the 
 charterer," but believing, from a statement made 
 to him, that there were instructions from the owners 
 to draw on them, " the captain did draw on the 
 owners for the coals and provisions." The learned 
 President then proceeded : "I am of opinion that 
 the captain is not entitled to recover in respect of 
 the coals, as by the terms of the charter-party he 
 had no authority to j)lcdgc the owners' credit in 
 respect of them. It was argued that the master 
 had an implied authority to pledge the owners' 
 credit as their agent ear necessilate in order to enable 
 the ship to sail." " But the authority of the master 
 depends on the facts ; and as the charterers were 
 bound to pay for the hire of the vessel during its 
 detention, the o^mers had no interest in obtaining 
 its immediate departure." And he accordingly 
 held that the plaintiff, Avhilst entitled to recover for 
 the disbursements which he had made in so far as 
 they were disbursements which the owners under 
 the charter-party Avere liable to pay, had no right
 
 556 LEOAL EFFECT OF THE CLAUSES. 
 
 against the ship or freight in respect of the dis- 
 bursements which he had made for the supply of 
 coals, which the charterers were bound to provide 
 and pay for. It was therefore a distinct decision 
 that disbursements made by the master on account 
 of the ship must be limited to disbursements which 
 he had a right to make on the credit of the owners 
 of the ship, and did not extend to disbursements 
 made by him for purposes for which the charterers 
 ought to have made provision, even though in a 
 sense they might be said to have been made on 
 account of the ship. 
 
 " That decision did not stand alone. The same 
 conclusion was arrived at in other cases; and it 
 seems to me that it would be contrary to all sound 
 principle not to bear those facts in mind when 
 construing the statute which was passed after the 
 decision in the " Sara." ^ In relation to this very 
 matter there had been what may without impro- 
 priety be called a course of decision in the Court 
 of Admiralty, putting a construction upon those 
 words "disbursements on account of the ship." 
 
 " When the Legislature altered the law laid down 
 in this House in the case of the "Sara," ^ and restored 
 the law which was supposed to exist before, it 
 cannot for a moment be imagined tbat the Legisla- 
 ture was ignorant of the construction which had 
 been consistently put upon the words in the former 
 Admiralty Court Act, which was supposed to 
 
 1 L. E. 14 App. Cas. 209.
 
 LIEX. 
 
 create a lien. I cannot conceive that if it had been 
 intended to create a wider lien than had been held 
 to exist under the previous words which were 
 supposed to create it, the Legislature would not 
 have used difrerent words to those upon which this 
 construction had been put, so as to make that 
 intention clear and unambiguous. For these rea- 
 sons I entertain a clear opinion that the judgment 
 of the Court below in respect of the alleged 
 maritime lien on the ship must be affirmed. 
 
 '^ But it is said on behalf of the appellant, and 
 I own with very considerable force, that if it be 
 true that inasmuch as there was no power to pledge 
 the owner's credit there ought not to be and cannot 
 be a maritime lien upon this vessel, which is the 
 property of the owners, yet as regards the freight, 
 which was the charterers', inasmuch as there was 
 authority to pledge the credit of the charterers for 
 these coals, a maritime lien ought to be enforced 
 against the freight. As a matter of equity no 
 doubt there is much to be said for that contention ; 
 and certainly, speaking for myself, if I could have 
 seen my way to do so, I should have given effect to 
 the contention of the appellant. But there appear 
 to me to be insuperable difficulties to taking 
 such a course as that. In the first j^lace, one would 
 have to say that whilst these disbursements when 
 regarded as affecting the owners of the ship were 
 not "disbursements on account of the ship," the very 
 same disbursements when you were looking at the 
 
 00/
 
 558 LEGAL EFFECT OF TEE CLAFBEf^. 
 
 case as affecting the charterers were "disbursements 
 on account of the ship," because those are the words 
 and tlic only ^vords which could give the right 
 insisted upon under the statute. That appears to 
 me of itself to l)e a very great diificulty. But 
 besides that, no authority has been cited in which 
 the Court of Admiralty has ever granted process 
 against freight for the purpose of enforcing a mari- 
 time lien upon it except as consequential upon and 
 in connection with process against the ship. No 
 case was cited to us in which the one had not been 
 connected with the other, or in which, where there 
 was no power to arrest the ship because there was 
 no maritime lien enforceable against the shipowner, 
 there had nevertheless been held to be a power to 
 arrest the freight, or that from which the freight 
 arose, for the purpose of enforcing a lien against 
 the freight. 
 
 *' Under these circumstances, having regard to the 
 difficulties which arise upon the construction of 
 the Act of Parliament, which alone gives any such 
 maritime lien, and to the practice of the Court of 
 Admiralty with respect to lien upon ship and 
 freight, I do not see my way to giving, even in 
 respect of the freight, though I should be fully 
 inclined to do so if I could, the relief to the plaintiff 
 which he seeks in this action. 
 
 " For these reasons I am of opinion that the deci- 
 sion appealed from must be affirmed, and the appeal 
 dismissed,"
 
 LtEN. 559 
 
 o'J S: 5:> Vict. ilSS9,] ch. 4G — Aa Act to atncnd the Merchant 
 Shijyping Act, 1854, and the Acts amending the same. 
 
 S. 1. Every master of a ship and every person lawfully acting 
 as master of a ship by reason of the decease or incapacity from 
 illness of the master of the ship, shall, so far as the case permits, 
 have the same rights, liens, and remedies for the recovery of 
 disbursements properly made by [him on account of the shii), and 
 for liabilities properly incurred by him on account of the ship, 
 as a master of a ship now {has for the recovery of his wages ; and 
 if in any proceeding in any Court of Admiralty or Vice-Admii-alty, 
 or in any County Court having Admiralty jurisdiction, touching 
 the claim of a master or any person lawfully acting as master to 
 wages or such disbursements or liabilities as aforesaid, any right 
 of set-off or counter-claim is set np, it shall be lawful for the Court 
 to enter into and adjudicate upon all questions, and to settle all 
 accounts then aiising or outstanding and unsettled between the 
 parties to the proceeding, and to direct payment of any balance 
 which is found to be due. 
 
 Ill the absence of express agreement, the shipowner 
 and master have no lien on the goods for demurrage,^ 
 or for wharfage,^ or for pilotage or port charges,^ or 
 for unliquidated damages for short loading, which 
 have been contracted for in the chartcr-imrty, under 
 the term dead freight ;'' or for unliquidated damages 
 in respect of breaches of covenants contained in the 
 charter-party ;^ and as against a bond fide holder of 
 a bill of lading at a port of discharge, there is no 
 power to detain goods for a lien acquired by a 
 custom of the port of loading, the holder being 
 
 • Phillips r. Rodie, 15 East. 5t7; Gray v. Cair, L.U. U Q.B. 537; 40 L.J. 
 Q.B. 257. 
 
 = Bishop r. Ware, 3 Camp. 360. 
 
 3 Faith 1-. East India Co., 4 B. & Aid. 630. 
 
 ♦ Gray v. Carr, L. R. G Q.B. 523 ; McLean v. Flcmiug, L.R.2 H.L. Sc. 128. 
 5 Faith V. East India Co., 4 B. it -Ud. G30.
 
 ,00 LEGAL EFFECT OF THE CLAUSES. 
 
 ignorant of such custom, and not being bound to 
 take notice of it/ 
 
 Even if the charter-party gives to the shipowner 
 a lien on each part of the cargo for the "whole 
 freight, or a lien on the goods with regard to the 
 alleged dead freight, demurrage, and damage in the 
 nature of demurrage, such an obligation cannot be 
 imposed upon the owners and consignees of the 
 goods under the bill of lading, unless such liability 
 be clearly imposed by plain words in the bill of 
 lading.^ 
 
 "Where a vessel was chartered to load at New- 
 castle, " in the usual and customary manner a full 
 and complete cargo of coals and proceed to San 
 Erancisco and there to deliver the same at the 
 average rate of 100 tons per day, or charterers to 
 pay demurrage at the rate of 4^d. per ton per day 
 .... the charterers' liability to cease on the cargo 
 being loaded, tlie owners having a lien on the 
 cargo for freight and demurrage." The charterers 
 detained the vessel IdL days at the port of loading ; 
 in an action by the shipowners against the cliarterers 
 it was held that the word " demurrage" in the lien 
 clause did not cover damages for undue detention 
 at the port of loading, and that therefore the cesser 
 clause did not exempt the charterers from liability 
 for the dclay.^ 
 
 The holders of a bill of exchange drawn against 
 
 1 Kircbner v. Venus, 12 Moo. P. C. C. 361 ; 6 W. K. 456. 
 
 =« Smith V. Sieveking, 2-i L. J. Q. B. 257; 4 E. & B. 915; 5 E. & B. 589. 
 
 » Cliuk V. Radford & Co., L. K. 1 Q. \i. (1891) 625.
 
 BILL OF LADING TO BE GIVEN UP. 5G1 
 
 a particular cargo, not being the holders of the bills 
 of ladini^, have no lien on such cargo, in the absence 
 of express intention to give such a lien. Among 
 mercantile men a direction on the face of the bill 
 to the acceptor to charge the amount against a 
 particular shipment, is not understood to give a lien 
 or charge on that shipment, but only to show that 
 the bill is regular, that it is actually drawn against 
 a shipment, and that it is not an accommodation 
 bill. If a mercantile man is intended to have a 
 lien on a cargo, he expects to have the bill of lading 
 annexed ; if there is no bill of lading annexed, he 
 only expects to get the security of the bill itself.^ 
 
 The master, when he signs the bill of lading, Bin of lading 
 binds himself to deliver the goods to the holder of before^dliivery 
 
 11 L 1 J. 4 11 • °^ ^^^ ■ argo 
 
 that document. As a general rule, a master is not i^ granted. 
 bound to unload except on production of the bill of 
 lading, for if the goods should get uito the possession 
 of a third person, who should refuse to deliver them 
 up, the master Avould be responsible. Therefore, if 
 the bill of lading is not forthcoming, the master 
 is, in general, justified in refusing to deliver up 
 the goods, because the holder of the bill of lading 
 may come forward and say that he is entitled, and 
 consequently the master has a right to say, *' I am not 
 bound to unload imless I am secure from the claim 
 of the holder of the bill of ladiui::."^ 
 
 1 Brovra Shipley & Co. v. Rough, L. R. 29 Ch. D. SIS; 54 L. J.Cli. 1024. 
 
 = Cargo ex Argos, L. R. 5 P. 0.134; 42 L. J. Ad. 40} EiicliseQ v. 
 Barkwoith, 2S L. J. Ex, 95. 
 
 71
 
 562 LEGAL EFFECT OF THE CLAUSES. 
 
 Where the defendants chartered a vessel of the 
 plaintiff's, and thirty-five running days were to be 
 allowed for landing* and discharging, and ten days 
 more on demurrage, at 5Z. a day. The defendant's 
 factors abroad, under a contract, put a cargo onboard, 
 and the master signed bills of lading making the goods 
 deliverable to order or assigns, he or they paying 
 freight as per charter-party. The defendants refused 
 to accept a bill of exchange for the price of the 
 goods, on the ground that the goods were not 
 according to contract, and the factor's agents, in 
 consequence, retained the bill of lading. When the 
 vessel arrived, eight lay days remained for the 
 discharcre. The defendants informed the master 
 of the dispute respecting the cargo, and stated that 
 to prevent delay of the ship, they were ready to 
 receive the cargo for Avliom it might concern. The 
 factor's agent gave the master notice not to deliver 
 the cargo, except on the production of the bill of 
 lading, statingthat itwould not be produced until they 
 received advices from abroad, and suggested the 
 discharge of the cargo at some respectable house other 
 than the defendant's. On the last of the demurrage 
 days, the factor's agents produced the bill of lading 
 and received the cargo, which took seven days to 
 deliver. Held, that there was nothing in this case 
 to interfere ^\ith the ordinary right of the master 
 to refuse to deliver the goods without the produc- 
 tion of the bill of lading, and the defendants were 
 liable for the detention of the ship during the
 
 T^TIL or lADTXO TO BF riTVFX VP. r,C3 
 
 (lomiuTaq:c days, and for tlic few days hoyond thnn 
 tliat it took to unload.^ 
 
 If after tlie master lias signed a hill of lading 
 for goods, he yentures to deliyer tlicm, without 
 receiying the bill of lading from the proper holder 
 or indorsee of the same, according to its tenor, or an 
 indemnity, he may hecome answerable for the cargo 
 to a bond fide holder of the hill of lading for 
 yaliic.- 
 
 In " The Stettin,"^ the plaintiff haying shipped 
 c:oods nnder a hill of lading hy which they Averc 
 consigned to S. M. or his assigns, the master of the 
 ship deliyered the goods at the port of destination 
 to the said S. M. without the production of the hill 
 of lading. In an action hy the plaintiffs against 
 tlie owners of the ship to recoyer damages for the 
 Avrongful deliyery of the goods, it Mas held that the 
 ])laintilVs were entitled to recoyer. 
 
 The general rule applicahle to carriers and other 
 persons contracthig to deliyer goods, is that a 
 personal delivery is necessary. But this rule does 
 not apply to the case of ships : the usages of trade 
 haying constituted a deliyery on the wharf Avith 
 notice to the consignee sufficient. The delivery 
 must he on a wharf which is suitahle for the cargo 
 Avhich is to he placed upon it ; if, then the goods arc 
 injured in consequence of the insufficiency of tlie 
 
 » Erichson v. Barkwortli, 28 L. J. Ex. 95. 
 = Nathan v. Giles, 5 Taunt. 558. 
 3 L, R. 1-1 P. D. 112.
 
 'M LEGAL EFFECT OF THE CLAUSES. 
 
 wliarf, the vessel is liable as if no delivery had taken 
 place. ^ 
 
 But the master has no right to land the goods at a 
 wharf if tlie consignee is ready and willing to accept 
 delivery according to the terms of the bill of lading, 
 and requests the master to deliver to himself, and not 
 to land the goods at a wh'irf, although the veSsel be 
 moored against it. The master will be liable to an 
 action if, under such circumstances, he land the 
 goods on the wharf .^ 
 
 In an action by the consignees of goods against 
 shipowner for non-delivery of goods according to 
 bills of lading, in which there was a condition that 
 the goods should be taken from the ship by the 
 consignees immediately the ship was ready for 
 discharge, and that otherwise they would be landed 
 or put into craft at the merchant's risk and expense, 
 and the goods having been landed at a dock the 
 day after the ship was ready for discharge, but 
 after the consignees were ready to receive on pay- 
 ment of freight, and the goods having been detained 
 for some time for dock charges, payment of which 
 was refused : — Held, that, even if the plaintiffs 
 were entitled to recover, yet as they might have 
 received the goods on payment of a small sum 
 under protest, they would not be entitled to recover 
 full damages for the d(i]ay, as their proper course 
 
 ' Hyde v. Trent & Mersey Kav. Co., 5 T. E. 389; Parsons on Sh., 
 vol. I., 222. 
 
 - Sycds V. ITay, 4 T. R, 2C0.
 
 ONE BILL EXECUTET), OTTTEBS YOTD. 5C5 
 
 was to have paid the disputecl sum under protest, 
 and then sued to recover \\} 
 
 Cockhurn, C. J., told the jury, "The first point is, 
 what is the effect of the word ' immediately' here ? 
 Under ordinary circumstances, when a man is 
 called upon by a contract to do an act, and no time 
 is specified, he is allowed a reasonable time for 
 doinp; it, and what is a reasonable time may depend 
 on all the circumstances of the case. But here the 
 word used being ' immediately,' it implies that 
 there is a more stringent requisition than what is 
 ordinarily implied in the word 'reasonable.' Still, it 
 must receive a reasonable interpretation, so far that 
 it cannot be considered as imposing an obligation 
 to do what is impossible. 
 
 " For instance, it could not be reasonable to require 
 that the consignee should have craft ready by day 
 and by night, and, if the vessel arrived in the night, 
 no doubt it would be deemed sufficient to have the 
 craft ready at a reasonable hour next morning. 
 And again, there must be time to receive the neces- 
 sary documents and make the necessary entries at 
 the custom-house, and the like. Such is the inter- 
 l^retation whicli, apart from any evidence of actual 
 usage, you probably would be disposed to put upon 
 such a contract." 
 
 The bill of lading remains in force so long as com- One bin being 
 plete delivery and possession have not been given to others void. 
 some person having the right to claim it. 
 
 ' Alcxiadi r. Robinson, 2 F. & F.^679,
 
 566 LEGAL EFFECT OF THE CLAUSES, 
 
 As the bona fide parting with the hill of lading, 
 while the goods are at sea, he it one hill out of a set 
 of tlirce, or he it one hill alone, is a parting with the 
 ownership of the goods, it follows, that it is the duty 
 of the master to deliver the goods to the bona fide 
 transferee and the holder of the first hill of lading, ^ 
 under a proper indorsement of the hill of lading,^ in 
 accordance with the terms of the hill of lading, 
 on payment of the freight and of any other charges 
 which the master is entitled to makc.'^ 
 
 But it may happen that the consignor of the goods, 
 for which the master has signed hills of lading, 
 has indorsed one hill of lading to one person, and 
 another hill of lading of the same goods to another 
 person. 
 
 Thus, where the consignor indorsed one of the 
 hills of lading to the vendee of the goods, and 
 another to his own partner, with instructions to 
 present it in case the vendee was not solvent. On 
 the arrival of the vessel, the consignor's partner 
 presented his hill of lading, and at the same time 
 an indorsee for value of the other hill of lading 
 presented his bill. The master delivered the cargo 
 to the consignor's partner, and it was held, that he 
 was justified in doing so, as tlie master is only 
 hound, when hoth hills are presented at the same 
 time, to deliver the goods upon one of the hills of 
 lading, and hy the usage of trade, he is not hound 
 
 ' Barber r. Meyerstein, L. R. 4 li. L. 325. 
 2 Kay on Sh., vol. I., 344. 
 
 I ihia,
 
 ONE DILL EXECUTED, OTHERS VOID. 567 
 
 to inquire into the comparative merits of claims 
 under different bills of lading, but only to deliver 
 the goods upon one of the bills of lading ;' but in 
 Glyn i\ East and "West India Dock Co.,- it A\as 
 considered that the rule laid dow u in this case might 
 put too much power in the master's hands. 
 
 When several bills of lading have been made out 
 and for\Aarded to several consignees, it follows, that 
 the master is justified in delivering the goods to 
 the holder of the first bill of lading which is pre- 
 sented to him, if, at the time of such delivery, he 
 had not received any notice of a prior dealing with 
 the bill of lading.'* 
 
 But, if the master had notice or knowledge, before 
 he delivered, Avho was the first person, who for value 
 had got the transfer of a bill of lading of the goods, 
 it would be his duty to deliver them to such person, 
 inasmuch as the property of the goods is in him, 
 although liis bill of lading may be only one of a set 
 of three bills.' 
 
 It is only when the master has no notice of the first 
 dealing Avith the bill of lading, that he is justified in 
 delivering to the holder of either of the other after- 
 acquired bills.^ 
 
 In the case of conflicting claims, the master, before 
 
 ' Fo;iron r. Bowois, 1 II. Blkbt. 30i; cited in Lickbarrow r. Mason, 1 
 Sin. L. C., 9th ctl. 760. 
 
 - L. R. 7 App. Gas. 591, GIO. 
 
 ^ Tho Tigress, 32 L. J. Ad. 97 ; B. & L. 38 ; Barber v. Mcyerstoiu, 39 
 L. J. C. P. 187 ; Grecnway r. Fislicr, 1 C. & P. 192. 
 
 ♦ Caldwell i'. Ball, 1 T. K. 217. 
 
 ' Barber r. Meycrstoiti, L. K. i II. L. 3o(j.
 
 bdS LEGAL EFFECT OF THE CLAUSES. 
 
 lie parts with the goods, should take care to require 
 an indemnity. 
 
 If, before the master has delivered the goods, the 
 vendor claims to stop in transitu and to forbid the 
 delivery, the master is not entitled to retain the 
 custody of the goods until he ascertains who is 
 entitled to the delivery, but he must deliver them to 
 the vendor.^ 
 
 The vendor exercises his right of stoppage in 
 transitu at his own peril. It is the duty of the 
 master to give effect to that right, by giving up the 
 goods to the vendor, so soon as the master is satisfied 
 that it is the vendor who claims the goods, unless, 
 indeed, the master is aware of some legal defeasance 
 of the vendor's claim. It is not necessary for the 
 vendor to prove to the master that he (the vendor) 
 has a right to stop the goods.^ 
 
 The right of the vendor of goods to stop them in 
 transitu is not lost by the mere fact that by the bill 
 of lading under which they are shipped they are 
 deliverable to the vendee or his assignees. Thus 
 where the plaintiffs entered into a contract with the 
 defendants to purchase seventy tons of slates, at 
 the request of the plaintiffs, the defendants chartered 
 a ship and loaded her with the slates for Southamp- 
 ton, taking bills of lading by which the slates were 
 deliverable "to the vendees or their assignees." 
 Before the arrival of the ship at Southampton the 
 
 1 The Tigress, 32 L. J. Ad. 97. 
 
 » Ibid.
 
 ONE BILL EXECUTED, OTHERS VOID. .500 
 
 lU'fcndants heard of the insolvency of the plaintilfs, 
 and gave orders to the master to stop the slates in 
 transitn. In an action by the i^laintiffs for non- 
 delivery of the slates, — Held, that the transit Avas 
 not at an end, and that tlic defendants had a riglit 
 to stop the delivery of the slates.^ 
 
 The master may sometimes suffer from an innocent 
 mistake, but he can always protect himself by 
 requiring an indemnity from the person to whom 
 he delivers, or by filing an interpleader to try who 
 is entitled to the delivery of the goods. This step 
 it is his duty to take if he have any doubt. ^ 
 
 AVhen goods are shipped under a bill of lading 
 drawn in parts, to be delivered to the consignee 
 " or his assigns, the one of which bills being 
 accomplished, the others to stand void," the master, 
 or the Avarehouseman who has the custody of the 
 goods under the Merchant Sliipping Act, 18G2, 
 ss. 6G-78, is justified in delivering to the consignee 
 on production of one part, although there has been 
 a prior indorsement for value to the holder of 
 another part, provided the delivery be bond Jidr, 
 and without notice or knowledge of such jirior 
 indorsement. 
 
 Goods having been shipped for London consigned 
 to C. and Co., the shipmaster signed a set of three 
 bills of lading marked " First," " Second," and 
 *' Third," respectively, making the goods deliverable 
 to C. and Co., or their assigns, freiglit payable in 
 
 ' Briiullcy & Co. v. TIic Cilg«-yn Slate Co., 55 L. J. Q. B. 07. 
 - Kay on Sh., vol. 1, 3i(3. 
 
 72
 
 670 LEGAL EFFECT OF THE CLAUSES. 
 
 London, the one of the hills hcing accomplished the 
 others to stand void. During the voyage C. and Co. 
 indorsed the hill of lading marked " Eirst" to a 
 hank in consideration of a loan. Upon the arrival 
 of the ship at London the goods were landed and 
 placed in the custody oE a dock company in their 
 warehouses ; the master lodging with them notice 
 under the Merchant Shipping Act, 1862, s. 68 &c. 
 to detain the cargo until the freight should he paid. 
 C. & Co. then produced to the dock company the 
 hill of lading marked " Second" u.nindorsed, and 
 the dock company entered C. & Co. in their hooks 
 as proprietors of the goods. The stop for freight 
 heing afterwards removed, the dock company loud 
 fide and without notice or knowledge of the hank's 
 claim delivered the goods to other persons upon 
 delivery orders signed hy C. & Co. : — Held, affirm- 
 ing the decision of the Court of Appeal, that the 
 dock company had not heen guilty of a conversion, 
 and that the hank could not maintain any action 
 against them. ^ 
 
 Per Lord Blackhurn — "This is one of the cases 
 in which difficulty arises from the mercantile usage 
 of makmg out a hill of lading in parts. 
 
 " There is, since the decision of Lickharrow v. 
 Hason,^ now nearly a hundred years ago, no douht 
 that hefore there was any statute affecting the 
 matter, the hill of lading was a transfcrahie docu- 
 ment of title, at least to the extent, as was said hy 
 
 1 Glyn V. The East & West India Dock Cuinpany, L. 11. 7 App. Cas. 591. 
 « 1 Sm. L. C, 8tli ed. 753.
 
 ONE BILL EXECUTED, OTJTEU!^ VOW. o71 
 
 Lord Ilatherloy in Barber r. !^^oyc^stoill/ tli.at 
 " wlicn the vcssol is at sea and the cargo 1ms not 
 arrived, th(^ partini,^ Avith the hill of lading is the 
 parting uith that Avhich is the symbol of property, 
 and which for the purpose of conveying a right 
 and interest in the property is the property itself." 
 And the very ohject of making the hill of lading 
 in parts Avould he haflled, unless the delivery of 
 one part of the hill of lading, duly assigned, had 
 the same effect as the delivery of all the parts 
 A\ould have had. And the consequence of making 
 a document of title in parts is, that it is possible 
 lliat one part may come into the hands of one person 
 ^\]\o bond fide gave value for it, under the belief 
 that he thereby acquired an interest in the goods, 
 either as purchaser, mortgagee or pawnee, and 
 another part may come into the hands of another 
 ])erson, who Avith equal bond fides gave value for it, 
 under the belief that he thereby acquired a similar 
 interest. This cannot well happen unless there is 
 a fraud on the part of those who pass the two parts 
 to dillerent persons, such as would in most cases 
 bring them within the grasp of the criminal law, 
 and from the nature of the transaction such a fraud 
 must be speedily detected ; Ihe cases, therefore, in 
 which it occurs are not very frequent. Neverthe- 
 jess, it does at times occur, and there are cases in 
 our courts where the rights of the two holders have 
 had to be considered. The last of those was Barber 
 
 ' L. R. I H. L. 320.
 
 572 LEGAL EFFECT OF THE CLAUSES. 
 
 t'. Meyerstein,Mn this House; and, so far as that 
 decision extends, the hiw must he taken to be 
 settled. 
 
 " I have never been able to learn why merchants 
 and shipowners continue the practice of making 
 out a bill of lading in parts. I should have thought 
 that, at least, since the introduction of quick and 
 regular communication by steamers, and still more 
 since the establishment of the electric telegraph, 
 every purpose would be answered l)y making one 
 bill of lading only, which should l)e the sole 
 document of title, and taking as many copies, 
 certified by the master to be true copies, as it is 
 thought convenient ; those copies would suffice for 
 everv legitimate purpose for which the other parts 
 of the bill can now be applied, but could not be 
 used for the purpose of pretending to be holder of 
 a bill of lading already parted with. However, 
 whether because there is some practical benefit of 
 which I am not aware, or because, as I suspect, 
 merchants dislike to depart from an old custom for 
 fear that the novelty may produce some unforeseen 
 effect, bills of lading are still made out in parts, and 
 probably will continue to be so made out. So long 
 as this practice continues, it is of vast importance 
 not to unsettle the principles wliicli have been 
 already settled ; and when a new case has to be 
 decided, it is desirable to be very cautious as to 
 w^hat principles are applied. 
 
 ' L. R. 4 K. L. .')17.
 
 OXE BILL FXFXTTED, OTrTETiS VOW. 6/3 
 
 "The facts ill tho present case l)ear, in many 
 respects, a close resemblance to those in ]3arl)er 
 r. ]\[eyerstein/ hut tliey are not quite the same; and 
 the question on the solution of -which, in my 
 opinion, the decision in the present case ought to 
 (IcpcMid, did not arise in ]5arher 2\ Meyerstein,^ 
 tliough Lord AVestbury did in that case mention it 
 A\ lien he says, " There can he no douht, therefore, 
 tliat tlie fust person who for value gets the transfer 
 of a hill of lading, though it he only one of a set 
 of tliree hills, acquires the property, and all 
 subsequent dealings with the otlier two bills must 
 in law be subordinate to that first one, and for this 
 reason, because the property is in the person who 
 first gets a transfer of the bill of lading. It might 
 possibly happen that the shipowner, having no 
 notice of the first dealing with the bill of lading, 
 may, on the second bill being presented by another 
 party, be justified in delivering the goods to that 
 party ; but although that may be a discharge to the 
 shipowner, it will in no respect affect the legal 
 ownership of the goods." That point did not arise, 
 and Lord TVestbury did not express any opinion on 
 it. He only mentions it so as to shew that it was 
 not decided cither way. 
 
 " In the present case, Cottam & Co., on the 15th 
 of May 1878, applied in writing to Glyn & Co., 
 bankers in London, for an advance, on the security 
 of certain bills of lading. Prom the terms of the 
 
 ' L. K. -t U. L. 317.
 
 574 LWAL EFFECT OF THE CLAUSES. 
 
 application it is plain that the bankers were to have 
 a property, with power of sale in the goods 
 represented hy the hills of lading, so far as was 
 necessary to secure their advance, and that, subject 
 thereto, Cottam & Co., were to remain owners of all 
 the rest of the interest in the goods, and might do, as 
 owners, everything consistent with the property thus 
 given to the bankers. I do not think it necessary 
 to express any opinion on a question much dis- 
 cussed by Brett, L. J., — I mean whether the property 
 which the bankers were to have was the whole legal 
 property in the goods, Cottam & Co.'s interest being 
 equitable only,or whether thebankerswereonlytohave 
 a special property as pawnees, Cottam & Co. having the 
 legal general property. Either way the bankers 
 had a legal property, and at law the right to the 
 possession, subject to the shipowner's lien, and were 
 entitled to maintain an action against any one who, 
 Avithout justification or legal excuse, deprived them 
 of that right. 
 
 " Cottam & Co. delivered to the bankers as part of 
 their security a bill of lading for twenty hogsheads 
 of sugar by the " Mary Jones," shipped by Elliott, 
 in Jamaica, deliverable to Cottam & Co. or to their 
 assigns, indorsed in blank by Cottam & Co. This 
 bill of lading bore on the face of it, distinctly 
 printed, the word " Eirst," and at the end had the 
 usual clause, "In witness whereof the master of 
 the ship hath affirmed three bills of lading, all of 
 this tenor and date, the one of which bills being
 
 ONE BILL EXECUTED, OTHERS VOID. 
 
 accomplished, the otliers to stand void." There 
 coidd be no douht, therefore, that the bankers had 
 distinct notice that there Avcre tMO other parts of 
 the bill of Jadini!^. It appears in Barber v. Meyer- 
 st(un,^ that in a similar transaction the Chartered 
 Mercantile Bank, before making a similar advance 
 to Abraham, had insisted on having all three parts 
 of the bill of lading delivered to them, and so, no 
 doubt, might Glyn. & Co. have done liere, but I 
 infer that Abraliam, who soon after was guilty of 
 a very gross fraud, was not a person who could ask 
 any reliance to be placed on his honesty, and that 
 where the person depositing the bill of lading is of 
 good repute, a banker would rather run the risk, 
 in most of such cases nominal, of tlie depositor 
 having committed a fraud than the risk of oilVuiding 
 a good customer by making enquiries wiiich might 
 be construed as implying that they thought him 
 capable of committing a gross fraud. However 
 this be, it appears that Glyn & Co. made no enquiry, 
 and were content to take the one part, and as, in 
 fact, neither of the other parts had been transferred, 
 the security which Glyn & Co. had was not 
 imjieached Ijy such a prior transfer. And as the 
 " Mary Jones" was then at sea, the question mainly 
 discussed in Barl)er v. Meyerstcin,^ does not arise 
 in this case. 
 
 '' The " Mary Jones" arrived on the 27th of :May, 
 and the next day tlie master reported her at the 
 
 I L. K. 4 II. L. 317.
 
 576 LEGAL EFFECT OF THE CLAUSES. 
 
 customs, and the goods were there, for customs 
 jnu'poses, entered by Cottam & Co. as owners. All 
 this was quite right, and did not require the 
 production of any bill of lading ; it could and ought 
 to have been done as well if the other parts of the 
 bill of lading had been delivered to Glyn & Co., or 
 had remained locked up in the desk of the shipper 
 Elliott in Jamaica. 
 
 " The master appears to have been in a hurry to 
 get his vessel empty, and to have resolved to avail 
 himself of the provisions of the Merchant Shipping 
 Act, 18G2, sections 66 to 78. He had not, in strict- 
 ness, any right to do so till default had been made 
 in making entry, which never was the case at all, 
 or till default had been made in takiuGT delivery 
 within seventy-two hours after the report of the 
 ship, Avhich would not in this case be till the 31st 
 of May. But the master apparently being in a 
 hurry, on the 28th of May prepared and signed a 
 notice to the East and West India Docks to " detain 
 all the undermentioned goods which shall be landed 
 in your docks, now on board the ship " Mary Jones" 
 from Jamaica, Avhereof I am master, until the freight 
 due thereon shall l)e duly paid or satisfied, in proof 
 of which you will be pleased to receive the direc- 
 tions of James Shepherd & Co. The whole cargo 
 as per bills of lading." This stop was lodged with 
 the dock company on the 29th of May. 
 
 *' The dock company, it appears, were in the habit 
 of requiring the master to sign an authority at the
 
 ONE DILL EXECUTED, (fTITEnS miD. 
 
 foot of a CO])}' oC tl»e manifest. And in tliis cnsc 
 tlie copy of manifest Avas signed and lodged on the 
 28tli of May. It is not necessary to enquire ^vhat 
 would have happened if, before the seventy-two 
 hours iiad expired, a duly authorised person had 
 tendered the freight and demanded delivery, for no 
 such thing occurred. And I think as soon as the 
 seventy-two hours had elapsed the dock company 
 held the goods under the provisions of the Act, just 
 as much as if they had not heen landed till then. 
 Then on the 31st of May, on which the seventy-t^^•o 
 hours had expired, Cottam & Co. brought down 
 and shewed to the dock company a hill of lading 
 AAith the word "Second" distinctly printed on the 
 face of it, and in every other respect precisely 
 similar to tlic hill at that time in the hands of 
 Glyn & Co. It was not indorsed. The clerk of 
 the dock company entered in the hooks of the 
 company that Cottam & Co. were the proprietors 
 of the goods, and marked the hill of lading with 
 his initials and the date, so as to shew that he had 
 seen it and returned it to Cottam & Co. It was 
 proved, what I think Avould have been inferred 
 without proof, that after this tlio dock comi)any 
 would, according to their ordinary practice, have 
 delivered the goods when the stop for freight was 
 removed to the order of Cottam & Co., unless, in the 
 meantime, they had got notice that another hill of 
 lading was, as the witness says, out. 
 
 i •)
 
 LEGAL EFFECT OF THE CLA USES. 
 
 " It appeared in Barber v Meyerstein/ that in the 
 case of Abraham, -whose honesty they seemed to 
 have distrusted, the Chartered Mercantile Bank 
 had lodged a stop ; and so might Glyn & Co. 
 have done m the present case. They did not do so. 
 And the stop for freight having been removed, 
 the dock company, though not till the month 
 of July, delivered the goods to the order of Cottam 
 & Co., not having then either notice or knoAvledge 
 of the fact that one part of the bill of lading had 
 been indorsed to Glyn & Co., but having from the 
 form of the bill itself, noticed that there were two 
 other bills of lading, either of which Cottam & Co., 
 if dishonest enough, might have indorsed, and 
 delivered for value to some other party. 
 
 " The real question, I think, is, whether the dock 
 company were, under such circumstances, justified 
 in or rather excused for delivering to Cottam & Co.'s 
 order, though, if they had had notice or knowledge 
 of the previous transfer of the bill of lading to 
 Glyn & Co., it would have been a misdelivery for 
 which they would have been responsible. I do not 
 think the dock company held the goods by virtue 
 of any contract. They held them under the statute, 
 subject to a duty imposed by the statute to deliver 
 them to the j^erson to whom the shipowner was 
 bound to deliver tbem. And, as I think, they were 
 justified, or rather excused, by anything which 
 woidd have justified or excused the master in so 
 
 1 L. 11. 4 il. L. 317.
 
 OXE rJLL EXECUTED, OTEERS VOW. o70 
 
 delivering them. So tliat I think the very point 
 Avliich lias to be decided is that raised by Lord 
 AVestl)ury — namely, Avhat will excuse or justify the 
 master in delivering ? 
 
 " The case of Barber v. Meyerstein^ settles that the 
 mere fact that there were j^arts of the bills in the 
 ] lands of the mortgagor or pledgor does not form a 
 justification or excuse for an innocent purchaser 
 from the mortgagor or pledgor, whichever he was, 
 taking the goods. • If it could be proved that the 
 other parts of the bills of lading were left in the 
 hands of the mortgagor or pledgor in order that he 
 might seem to be the owner, thougli he was not, a 
 purchaser from the person in Avhose hands they 
 were thus left might either at common law or 
 under the Factors Acts have a good title ; but there 
 is not in this case, any more than there was in 
 Barber i\ Meyerstein' any evidence to raise such a 
 question. 
 
 " But the master is not in the position of a 
 lourchaser from the holder, or person supposed to be 
 the holder, of a bill of lading, lie is a j^erson who 
 has entered into a contract witli tlie shipper to 
 carry the goods, and to deliver them to the persons 
 naminl in the bill of lading, in this case Cottam 
 & Co., or their assigns, that is, assigns of the bill of 
 lading, not assigns of the goods. And I quite assent 
 to wliat was said in the argument, that this means 
 to Cottam Sc Co., if they have not assigned the bill 
 
 ' L. ]\. I II. L. 317.
 
 5S0 LEGAL EFFECT OF THE CLAUSES. 
 
 of lading, or the assign if they have. If there 
 T\'ere onlj^ one part of the hill of lading, the ohliga- 
 tion of the master under such a contract Avould 
 be clear — he Avould fulfil the contract if he 
 delivered to Cottam & Co. on their producing the bill 
 of lading unindorsed; he would also fulfil his 
 contract if he delivered the goods to any one 
 producing the bill of lading with a genuine indorse- 
 ment by Cottam & Co. He would not fulfil his 
 contract if he delivered them to any one else, 
 though if the person to whom he delivered was 
 really entitled to the possession of the goods, no one 
 might be entitled to recover damages from him for 
 that breach of contract. But at the request of the 
 shipper, and in conformity with ancient mercantile 
 usai?e, the master has affirmed to three bills of 
 lading all of the same tenor and date, the one 
 of which bills being accomplished, the others to 
 stand void. 
 
 " In Pearon v. Bowers^ decided in 1753, Lee, C. J., 
 is reported to have ruled " that it appeared by the 
 evidence that, according to the usage of trade, the 
 captain was not concerned to examine who had the 
 best right on the difi'erent bills of lading. All he 
 had to do was to deliver the goods upon one of the 
 bills of lading, which was done. The jury were 
 therefore directed by the Chief Justice to find a 
 verdict for the defendant." Lord Tenterden says : 
 *' (I quote from the fifth edition of Abbott on 
 
 ' 1 Sm. L. C, 8th ctl. ii. to Lickbarrow v. Mason.
 
 ONE BILL EXECUTED, OTHERS VOW. 581 
 
 Sliippino", the last published in his lifetime, part 3, 
 chapter 0, section 21.) "But perhaps this rule 
 might, upon further consideration, he held to put 
 too much power into the master's hands." It is 
 singular enough that one hundred and twenty-nine 
 years should liave elapsed without its having been 
 necessary for any court to say whether this rule 
 A\ as good law. It was suggested on the argument 
 Avith great prohahility that, especially after the 
 caution given immediately after the j^assage I have 
 read, masters have declined to incur the reponsihi- 
 lity of deciding between two persons claiming 
 under different parts of the bill of lading, so that 
 the case has not arisen. If this rule were the law, 
 it would follow, a fortiori, that if the master was 
 entitled to choose between two conflicting claims, 
 of both of which he had notice, and delivered to 
 either holder, he must be justified in delivering to 
 the only one of which he had notice. So that I 
 think it is necessary to consider Avhether it is law, 
 and I do not think it can be law, for the reason 
 given by Lord Tenterden, it puts too much power 
 in the master's hands. AVhere he lias notice or 
 probably even knowledge of the other indorsement, 
 I think he must deliver at his peril to the rightful 
 holder or interplead. 
 
 " But where the person who produces a bill of 
 lading is one Avho, either as bemg the person named 
 in the bill of lading which is not indorsed, or as 
 actually holding an indorsed bill, would be entitled
 
 582 LEGAL EFFECT OF THE CLAUSE^. 
 
 to demand delivery under the contract, unless 
 one of the other parts had been previously indorsed 
 for value to some one else, and the master has no 
 notice or knowledge of anything except that there 
 are other parts of the bill of lading, and that, there- 
 fore, it is possible that one of them may have been 
 previously indorsed, I think the master cannot be 
 bound, at his peril, to ask for the other parts. 
 
 " It is not merely that, as Lord Justice Bramwell 
 says, "It is the undoubted practice to deliver 
 without enquiry to any one who produces a bill of 
 lading" — that is, when no other is brought forward, 
 and that the evidence given in Pearon v. Bowers/ 
 must have proved that much, though it seems also 
 to have proved more — but that, as it seems to me, 
 unless this Avas the practice, the business of a ship- 
 owner could not be carried on unless bills of lading 
 were made in only one part. I cannot say, on 
 this, anything in addition to what Baggallay, L. J., 
 says, and I quite assent to his reasoning there ; I 
 think also that the only reasonable construction to 
 be put upon the clause at the end of the bill of 
 lading is, that the shipowner stijmlates that he shall 
 not be liable on this contract if he bond fide and 
 without notice or knowledge of anything to make it 
 wrong, delivers to a person producing one part of the 
 bill of lading, designating him — either as being the 
 person named in the bill if it has not been indorsed, 
 or if there be a genuine indorsement as being 
 
 1 I Sni. L. C, 8tli el. 782. 
 
 d
 
 ONE HILL EXECUTED, OTHERS VOID. 588 
 
 assign — as the person to whom tlic goods are to Ijc 
 delivered. In that case, as against tlie shipowner 
 llie other hills arc to stand void. Even Avithoiit 
 that clansG I should say that the case falls -within 
 the principle laid down as long ago as the reign of 
 James I, in Watts v. Ognell.^ " That depends," says 
 'Mv. Justice AVilles m De Nichols v. Saunders,-^ 
 " upon a rule of general jurisprudence, not confined 
 to clioses in action, though it seems to have hem 
 lost sight of in some recent cases, namely, that if a 
 jicrson enters into a contract, and Mithout notice of 
 any assignment fulfils it to the j^t'rson with whom 
 he made the contract, he is discharged from his 
 ohligation." The equity of this is obvious. It Avas 
 acted upon in Towusend v. Inglis,"* where goods 
 lodged in the dock by Reid & Co., were by them 
 sold to Townsend, and a delivery order was given 
 by Ileid & Co. to Townsend. Townsend paid for 
 the goods to Rcid & Co.'s brokers, who misappro- 
 priated the money. Then Reid & Co. countermanded 
 the order, and finally removed tlu^ goods from the 
 docks before the dock company had any notice 
 either of the sale to Townsend or of the delivery 
 order given to him. Townsend brought trover 
 against Ileid & Co. and the dock comjiany. 
 Gibbs, C. J., a veiy great commercial lawyer, left 
 to the jury the question as to Avhether Townseiul 
 was, on the evidence as to previous dealings, justi- 
 
 1 Ciu. Jac. l'J2. ■ L. 11. b. C. r. o'Jl, 
 
 = Uolt, N. r. 278.
 
 581 LEGAL EFFECT OF THE CLAUSES. 
 
 fied ill paying the broker, wliicli tlic jury found lie 
 was, and the phiintiff had a verdict against Reid&Co. 
 but he directed a verdict for the dock company, 
 saying, " Though the skins were the property of the 
 phiintiffs from the completion of the bargain, the 
 company had made no transfer, and had iio notice 
 of their possessory title when they delivered the 
 skins to Reid & Co." And in Knowles v. HorsfalP 
 Abbott, C. J., treats this as indisputable. Goods, 
 part of which were in a warehouse, had been sold 
 by Dixon to the plaintiff. Abbott, C. J., says as to 
 the parcel in the warehouse : " If the plaintiff had 
 given notice of the sale to the warehouse-keeper, 
 the latter would not have been justified in deliver- 
 ing them to any other order than that of the 
 plaintiff ; but not having received any such notice, 
 the warehouse-keeper would have been justified in 
 delivering them to the order of Dixon, who placed 
 them there." I know of no case in which this 
 principle has been departed from intentionally, and 
 though it is very likely that it may have been 
 sometimes lost sight of, I do not know to what 
 cases Willes, J., alludes. The sum involved in this 
 case is not large, but the amounts advanced by 
 those who lend money on the security of bills of 
 lading, and the value of the goods for which ware- 
 house-keepers and wharfingers become responsible, 
 are enormous. Which is tlie more important trade 
 of the two I do not know, but the decision of this 
 
 I 3 B. & Aid. 13<J. 
 
 i
 
 ONE BILL EXECUTED, OTHERS VOID, 585 
 
 case must liave an effect on both, and it is therefore 
 of great importance, and requires careful consider- 
 ation. And that being so, I have felt some difll- 
 dence in diifering from the two learned judges "who 
 had l)elow come to a different result. Mr. Justice 
 Piekr seems to have taken a view of the facts as 
 to the way in which the goods came into the hands 
 of the dock company different from tliat A\hich I 
 liave taken, and consequently to liave thought that 
 the very important question suggested by Lord 
 AVcstbury did not arise. Lord Justice Brett 
 thinks that the master cannot be excused as 
 against the first assignee of one part of 
 the bill, who has the legal right to the pro- 
 perty, for delivering under any circumstances to 
 one who produces another bill of lading bearing 
 a genuine indorsement, imless he Avould be 
 excused in all circumstances — in other words, unless 
 Fearon v. Bowers," is good law to its full extent. 
 In this I cannot agree. I think, as I have already 
 said, that wliore the master has notice that there 
 has been an assignment of another part of the bill 
 of lading, tlie master must interjilead or deliver to 
 the one who he thinks has the better right, at his 
 ])(M'il if he is wrong. And I think it probably 
 Avoidd 1)0 the same if he had knoM lodge that there 
 had been such an assignment, though no one had 
 given notice of it, or as yet claimed undor it. At 
 all events, he would not be safe in such a case in 
 
 1 L. R. 5 Q. B. D. 135. - 1 Sm. L. C, 8th ed. 782 n, 
 
 7i
 
 586 LEGAL EFFECT OF THE CLAUSES. 
 
 delivering without furtlicr enquiry. 13ut I think 
 that when the master has not notice or knowledge 
 of anything but that there are other parts of the 
 bill of lading, one of which it is possible may have 
 been assigned, he is justified or excused in delivering 
 according to his contract to the person appearing 
 to be the assign of the bill of lading which is 
 produced to him. 
 
 And I further think that a Avarehouseman taking 
 the custody of the goods under the provisions of 
 the Merchant Shipping Act, 18G2, section 66, &c., 
 is under an obligation, cast upon him by the statute, 
 to deliver the goods to the same person to whom 
 the shipowner Avas l)y his contract bound to deliver 
 them, and is justified or excused by the same things 
 as would justify or excuse the master. And I find, 
 as a fact, that this was the position of the respon- 
 dents here. And the appeal was accordingly 
 dismissed. 
 Eight and j^ rii^ht and true delivery of «fOods, according to 
 
 true delivery. ^ ^ n > n 
 
 bills of lading in the common form, means in law a 
 delivery of the entire number of chests or packages, 
 without reference to the condition of their contents 
 at the time of their being landed ; damage thereto, 
 although occasioned by the default and negligence of 
 the master and crew, being no answer to a demand 
 for freight, but only subject of a cross action for 
 damages.^ 
 
 In the case of a timber cargo, not liable to be 
 
 > Davidson v. Gwyniie, 12 East. 381, 303 ; Shields v. Davis, 6 Taunt 65 j 
 McLacli. on Sh, 436.
 
 CUSTOMAnr delivery. 587 
 
 stolen, a shipowner can prove lliat all the c;"irL!0 
 taken on hoard has heen (lcliycr<Hl : it rests witli the 
 consignees to prove short delivery, and if no tally 
 of the ontpnt he kept eitlier hy the ship or receivers 
 of cargo, hut the pieces simply counted after heing 
 stacked, the Court will hold that the shipowner has 
 satisfied the hurden thrown upon him, of j)roving 
 tliat notwithstanding the hills of lading he had 
 delivered all the timher received on hoard, and w ill 
 not hold him liahle for short delivery.^ 
 
 Speaking of a deliv(^ry that would satisfy and Jjeu^ry^ 
 exhaust the hill of lading, "Willes, J., says, " There 
 can he no complete delivery of goods until they are 
 l)laced under the dominion and control of the person 
 who is to receive them."- It is in this sense that 
 delivery is used here. The manner of delivering the 
 goods, and consequently the period at Avhich the 
 responsihility of the master and owners will cease, 
 depends upon the custom of particular places, and 
 the usage of particular trades.^ 
 
 Delivering cargo is as much the duty of the 
 shipowner and master as of the merchant ; and 
 consequently, if there is no stipulation respecting it 
 in the charter-party, the law implies that each party 
 shall use reasonahle diligence in performing his 
 part of the delivery at the port of discharge : the 
 merchant is to he ready to receive in the usual 
 
 ' Elliott Lowrcy v. Dol)cll, Douplns M. L. Decisions, 21. 
 " Meyorstcin r. Biubcr, L.R. 2 C.P. oO; 4 IF. L. 317. 
 
 » Gatliefe v. Bourne, 7 L.J.C.P. 172 ; Petrocochiuo r. Bott, L. R. 9 C.P. 355 ; 
 43 L. J. C. P. 214.
 
 588 LEGAL EFFECT OF THE CLAUSES. 
 
 manner, and the slii2:)owner, hy his master and crew, 
 to deliver in the usual manner.^ In such case there 
 is no implied contract that the discharge of the cargo 
 shall he performed in the time usually taken at the 
 port.^ 
 
 If the shipowner agrees to deliver at a named port, 
 no part of the port being expressly named for 
 discharging, there can l)e no doubt that under usual 
 circumstances, the ship ought to be brought to the 
 jilace in the port, where cargo such as she carries 
 is ordinarily discharged. But what is a compliance 
 with the shipowner's contract to deliver in the 
 named port, must always depend on, and vary with, 
 the existing state of things in the port.^ 
 
 Thus, where a cargo of pit-props was shipped to 
 be unladen at Sunderland, " at the usual place of 
 discharge, and according to the custom of the port;" 
 on arriving at S., the vessel at once proceeded to 
 the South Dock, and was being moored there, when 
 the consignees' agent directed the master to remove 
 her to the Gill Dock, which the master refused to 
 do. Both docks were usual and customary places of 
 discharge. Held, that the master was not bound to 
 lie in the river w^aiting for instructions, and was 
 justified in at once mooring in the South Dock, but 
 that having received instructions to discharge his 
 cargo in the Gill Dock, he Avas bound to obey 
 them. * 
 
 1 Ford V. Cotesworth, L. R. 4 Q. ]}. 131 ; L. R. 5 Q. B. 5io, 
 
 '- Ibid. 
 » Cargo ex Argoa, L. R. 5 P. C. i57. * The Fdix, 3" L. J. Adm. 48,
 
 CUSTOMARY DETJVEriY. 589 
 
 In the case of Waiigli v. Morris,' Blackburn, J., 
 said : — " The cliarter-party provides that the cargo 
 Avas to he taken from alongside, and that heing so, 
 the consio'nee mi"ht select anv lecral and reason- 
 al)le place Avithin the port, at Avhich to take it from 
 alongside." 
 
 The manner of delivering the goods, and conse- 
 quently the period at which the responsibility of the 
 master and owners will cease, depends upon the 
 ])ractice and custom usually observed in the port or 
 l)]ace of delivery. - 
 
 The delivery of goods under a hill of lading where 
 such delivery is not expressly in accordance with the 
 terms of the hill of lading, must he a delivery 
 according to the practice and custom usually 
 ohserved in the port and place of delivery. An 
 issue raised uj^on an allegation of such a mode of 
 delivery would accommodate itself to the facts of 
 each particular case ; and would let in every species 
 of excuse from the strict and literal comjiliance 
 with the precise terms of the hill of lading, which 
 must necessarily he allowed to prevail with refer- 
 ence to the means and accommodation for landing 
 goods at different places ; the time of the arrival 
 and departure of the vessel; the state of the tide 
 and wind ; interruptions from accidental causes ; 
 and all the other circumstances which belong to 
 each particular port or place of delivery.^ 
 
 ' L. R. 8 Q.B. 202. 
 
 - Gatliffe v. Hourno, 4 Ring. X. C. 314; Srcds r. liny, 1 T. R. 2G0; Kay 
 on Sh., pp. 350, 351. 
 
 » Gfxtliffo V. Bouino, 7 L.J.C.P. 172 ; retrocochino v. Bott, L.R. 9 C.P.3o5 ; 
 43 L.J.C r. 217.
 
 590 LEQAL EFFECT OF THE CLAUSES. 
 
 A custom of a port, that a charterer is not bound 
 to take delivery of cargo elsewhere than at port of 
 destination, cannot be set up in answer to a claim 
 by a shipowner on a charter-party, which provides 
 that the ship shall proceed to a certain port, or so 
 near thereto as she can safely get, and deliver.^ 
 
 " Landing goods means putting them upon the 
 land, or upon that Avhich. by custom of the port 
 is its equivalent. Nobody, in commercial or busi- 
 ness language, can say that goods are landed which 
 are transhipped without landing, or that goods 
 which are placed in lighters for transhipment are 
 placed in lighters to be landed."^ 
 
 In New York it has been held that landing goods 
 at a proper time, and upon a proper pier, with 
 notice to the owners, is equivalent to a delivery ; 
 after which the owners take all risks except those 
 A\'hich proceed from the ship herself. Where the 
 master of a vessel, under an ordinary bill of lading, 
 on arrival at New York, proceeded to land the 
 cargo on to a pier which was sufficient for it, 
 if the cargo had been properly discharged upon 
 it, giving notice thereof to the consignee. After 
 the goods were discharged, the ship employed a 
 watchman to watch them on the pier, but at 
 the expense of the consignees. AAliile a part 
 of tlie goods remained on the pier, the ship 
 so overloaded it with otlier goods that it gave 
 
 » Ilayton v. Irwin, L. R. 5 C. P. D. 130. 
 
 2 Per Bowen, L.J. in Hoiilder Brothers & Co., v. The Merchants Mar. Ins, 
 Co., Ld., 6 Asp. Mar. L. Cas. 1?,
 
 CUSTOMARY DELIVERY. 501 
 
 way, and those goods -were thrown into the ^^•ater 
 and damaged. The master was held liahk% as the 
 damage was caused hy his negligent act, and as that 
 Avas done in the ordinary discharge of his duty as 
 master, the ship was liable for tlie damage/ 
 
 The quantity to he delivered jier diem depends, 
 first, upon the terms of the agreement; secondly, in 
 the absence of any stipulation as to output, upon the 
 indisputable custom of the port ; and thirdly, where 
 no usage exists, upon reasonable dispatcli. The rate 
 of discharge should be such a reasonable quantity as 
 might be discharged and recciycd with ordinary 
 diligence, and projoer gear and vehicles. The custom 
 of one jiort is not that of all others ; in order to be 
 binding, the custom must be reasonable and 
 uniform. 
 
 Blackburn, J., in Postlethwaite ?; Freeland.^ said : 
 " Custom means a settled and established practice 
 of tlie port." 
 
 The old customs which took their rise when 
 vessels loaded or took in cargoes in rivers retained 
 their hold until a recent period, but the necessities 
 of the steam-shipping trade and competition, appear 
 to have completely set aside the usages of the early 
 01* first half of the present century. The system so 
 long in force with respect to lay-days has been 
 completely revolutionised by free trade and steam 
 navigation between them ; what might have been 
 
 > Kennedy v. DodgGj 2 Asy. Mur. L, Cu. 305, 
 » 0-2 L. J. H. L. 637.
 
 592 LEGAL EFFECT OF THE CLAUStJS. 
 
 clone in former years, will not suffice for the 
 exigencies of the present day. 
 
 It is frequently the practice in the steam- shipping 
 trades to pay for "dispatch," so essential is it that ves- 
 sels should not be kept idle. "Dispatch money" is also 
 claimed by consignees, under special contracts, for 
 all time saved under that allowed in the agreements 
 for discharging. The shipowner and the merchants 
 have thus separate reasons for giving the quickest 
 possible dispatch. 
 Claims for Tlic stipulatiou iu a bill of lading, " That claims 
 
 bemX"""'^ for short delivery, if any, as well as every and all 
 specified other claim or claims whatsoever against the vessel, 
 
 ^^"°'^" must be made within three months from the date 
 
 of this bill of lading at the port of C. and at no 
 other port ; and no such claim or claims will be 
 entertained or admitted, imless supported by certi- 
 ficates signed by the commander of the vessel before 
 leaving the port of discharge," is a condition prece- 
 dent to the institution of an action at the port of 
 discharge, or elsewhere, for the recovery of damages 
 for short delivery, or non-delivery, or for injury to the 
 cargo. The stipulation makes it obligatory on the 
 consignee, or those claiming under him, to i)refer 
 his claim, or, in other words, to make a demand at 
 the port indicated in the clause for payment before 
 lie can maintain his action for damages. 
 
 Thus, where the bill of lading provided that the 
 claim should be made at Calcutta, and an action 
 was brought at Rangoon, which was the port of
 
 CLAIMS FOR DAMAGE, 693 
 
 discharge, to recover damages for short delivery, 
 but it appeared that no claim had been previously 
 made at Calcutta, the suit was dismissed.^ 
 
 A stipulation by persons carrying on extensive 
 business as carriers that they should be apprised of 
 claims made on them for default on the part of 
 their servants at a specified i>lace and no other and 
 within a time -which will render inquiry likely to 
 be attended with some result is not unreasonable. 
 Thus where the defendants were owners of a fleet of 
 steamships plying periodically along the coasts of 
 British India, by which they undertook to convey 
 for freight parcels of goods for all persons indiffer- 
 ently from and to specified ports. They stipulated 
 in their bills of lading that claims for short delivery 
 should be made at the port of Calcutta only, and 
 within one month after delivery of any portion of 
 the goods entered in the bill of lading. It was 
 held, in a suit against defendants for compensation 
 for value of goods short delivered, that this was not 
 an unreasonable stipulation, and that a claim made 
 on agents of the defendants, who were authorized 
 only to retain the goods, receive freight, and give 
 delivery, was not a sufficient compliance with the 
 condition. ^Vlso, that defendants were common 
 carriers, though not for the purposes of the Indian 
 Carriers' Act, and that their character of carriers 
 continued so long as the goods remained in their 
 hands and undelivered.-^ 
 
 ^ Mahomed Ismailjeo v. B. I. S. N. Co., 9 Gal. W. Eep. C. R. 396; Ibrahim 
 Moosum V. B. I. S. N. Co., 8 Cal. W. Rep. C.R. 35. 
 
 == E. I. S. X. Co., V. Hajeo Mahomed Esack & Co., I. L. R. 3 Mad. 107.
 
 594 LEGAL EFFECT OF THE CLAUSES. 
 
 The clause as to tlie period "witliin wliicli tlie 
 claim for any loss or damage is to be preferred 
 varies in different bills of lading ; in some it is 
 provided as above, that " the claim must be made 
 within three months of the date of the bill of lading;" 
 in others " within one month after the delivery of 
 any portion of the goods entered in the bill of 
 lading," whilst some stipulate that "the claim must 
 be made before the goods are removed." 
 
 The consideration of the legality and validity of 
 this clause came before the courts for the first time in 
 187G, in the case of Moore v. Harris,^ which was 
 an aj)peal to the Privy Council from a judgment of 
 the Court of Queen's Bench in Lower Canada, 
 when it was stated " that this condition, stringent 
 as it is, Avas binding on the consignees." 
 
 "Weight, ^s already pointed out, a bill of lading is evidence 
 
 £l'*and°°' against the master or owner of the ship, both of 
 
 kno'^wn'!''" the reception of the goods described in it, and also 
 
 of any material fact stated in the bill of lading 
 
 resj)ecting the quantity, the quality, the condition, 
 
 or any other element in the description of the goods. 
 
 But where a person signs the bill of lading with 
 
 this qualification, "weight, contents, and value 
 
 unknown," he merely means to say that the weight 
 
 is represented to him to be so much, and that he 
 
 has himself no knowledge of the matter. The 
 
 insertion of the Aveight in the margin, and the 
 
 1 L. R. 1 App. Cas. 318 j 45 L. J. C. P. 55 ; See ante, p. 91.
 
 " WEIGHT AXD COXTEXT.^ UXKXOWX:* 
 
 calculation of freight upon it, docs not carry the 
 matter any further. 
 
 Thus, where a hill of lading was signed for 
 manganese, shipped in hulk and not weighed at the 
 time of shipment, which described the manganese 
 as of a certain weight, but contained in print the 
 words "weight, contents, and value unknown." 
 The whole of the manganese shipped was, on arrival 
 of the shij), delivered to the plaintiff, hut was found 
 to be short of the weight stated in the bill. In an 
 action brought by the plaintiff to recover damages 
 for non-delivery of the full weight, it was held, 
 tliat the printed words controlled the statement of 
 weight in the bill of lading.^ 
 
 In Bradley v. Dunipace,^ the bill of lading which 
 mentioned the gross weight of 4G7 bags of meal 
 which were of two sizes and of two different weights, 
 contained the words '* not resjionsible for weight." 
 AVightman, J., observed : " It may be that the 
 weight of these bags would not be exactly that 
 mentioned in the bill of lading, and that the provi- 
 sion in the memorandum would protect the Captain 
 from being responsible if the bags were not full 
 weight, but the mention of the weight in the 
 contract is important for the purpose of indicating 
 to which bags the contract applied," and it was 
 held that it was necessary to deliver 167 bags of 
 the larger weight in order to satisfy the terms of 
 the bill of lading. 
 
 ' Jessel r. Batli, L. R. 2 Ex. 2G7. » 32 L. J. Ex. 22.
 
 )9G LEGAL EFFECT OF TEE CLAUSES. 
 
 So where a bill of lading purported to be for 
 50 tons of coals, and contained a j)rinted clause 
 " weight, contents, and yalue unknown," and similar 
 words written above the signature of the master, it 
 was held this did not amount to an admission by the 
 master that he had received 50 tons of coal on 
 board.^ 
 
 And where a master signed bills of lading for 
 701 tons of cattle bones, with the condition " weight 
 and contents unknown," and on arrival at Aberdeen 
 there were but 38G tons on board, being 210 tons 
 short of what she could have carried. The holders 
 of the bill of lading demanded delivery of the 
 quantity specified therein; the captain, on the other 
 hand, offered to deliver the actual cargo on board, 
 which he said was all that he had got, but on 
 condition of receiving real freight for the 386 tons, 
 and dead freight for the 210 tons, and adduced 
 evidence to show he had delivered all the bones 
 he had received. The House of Lords held that 
 " the bills of lading signed by the master were 
 prima facie evidence that the quantities of bones 
 mentioned in them had been received on board," 
 and that "though the master had no authority 
 to sign bills of lading for a greater quantity of 
 goods than is actually put on board, yet, as it is not 
 to be presumed that he has exceeded his duty, his 
 signature to the bills of lading is sufficient evidence 
 of the truth of the contents to throw upon the 
 
 > Nicol V. CaBtle, 9 Bom. H. C. Eep. 321. See ante, p. 58.
 
 « WEIGHT AXD COXTEXTS UXKXOWX." 597 
 
 slnpoAMicr the onus of falsifying them, and proving 
 tliat he received a less quantity of goods to carry 
 than is thus acknowledged by his agent. And 
 the shipowner having satisfactorily rebutted tliis 
 presumption by evidence, was held entitled to 
 recover both his real and dead fi-eisrht." ^ 
 
 AVherc a closed package was shipped at Boulogne 
 
 for London, and in the bill of lading presented to 
 
 the master for signature the goods were described 
 
 as " linen " and the master asked no questions, but 
 
 stamped on the bill the words " value, weight, and 
 
 contents unknown," and signed it ; on the arrival of 
 
 the ship, it was found that the package had been 
 
 tampered with, and two out of seven pieces of 
 
 silk broad stuff, the real contents of the package, 
 
 abstracted. On the matter coming before the Court 
 
 of Common Pleas to enter a non-suit on the ground 
 
 that there was no evidence of any contract to carry 
 
 silk goods, and that the plaintiffs were estopped from 
 
 showing a delivery to the defendants for carriage of 
 
 silk goods, the Court lield, that the contract was 
 
 contained in the bill of lading, and that though the 
 
 plaintiffs represented that the contents of the 
 
 package were linen goods, the defendants refused to 
 
 contract on the footing that this was absolutely so. 
 
 The effect of this was that it was no part of the 
 
 contract that the package contained linen, and that 
 
 the defendants were not bound to deliver linen g-oods 
 
 and in law and fact by the printed memorandum 
 
 • McLean v. Fleming, L. R. 2 II. L. Sc. 128.
 
 )98 LEGAL EFFECT OF THE CLAUSES, 
 
 they expressly repudiated any contract as respected 
 the nature of the contents of the package, and that 
 the contract AA^as to carry the package, whatever its 
 contents might he. The declaration was shown to 
 have heen innocently made and without fraud, and 
 the Court was inclined to tliink that if the question 
 of damages had heen raised, the plaintiff might not 
 have heen entitled to recover larger damages than 
 if the goods were linen ; ^ hut this question not heing 
 before the Court, it was undetermined.^ 
 
 In Haddow v. Parry ;^ the hody of the hill of 
 lading expressed to he " shipped in good order hy 
 A. B.; in and upon the good schooner called " The 
 Eook," six boxes, containing 12,000 dollars, heing 
 marked and numbered as in the margin." This 
 instrument was signed " contents unknown: "in the 
 margin was written, hill of lading for 12,000 dollars, 
 dated 12th August 1808, under which were copied 
 the marks of several chests, and their numbers and 
 contents, describing them as containing 2,000 
 dollars each. It was held that the words " contents 
 unknown," rendered the bill of lading no declaration 
 of what the chests of dollars contained. Lord 
 Mansfield remarking if the master qualifies his 
 acknowledgment, l)y the words "contents unknown," 
 he acknowledges nothing. 
 
 In Clark v Barnwell,* where the bill of lading 
 contained the usual clause that the boxes containing 
 
 1 Lebeau v. The Gen. S. N. Co., L. R. 8 C. P. 88; 42 L. J. C. P. 1. 
 * M'Cance v. The L. & N. W. Ry. Co., 31 L. J. Ex. 39. 
 
 2 3 Tannt 330. * 12 How. 272.
 
 " WEIGHT AND CONTENTS UNKNOWN:* bOO 
 
 the goods were shipped in good order, " contents 
 unknown," the Court said, " It is obvious, there- 
 fore, that the acknowledgment of the master as to 
 the condition of the cases when received on hoard, 
 extended only to the external condition of the cases, 
 excluding any implication as to the quantity and 
 quality of the article, the condition of it at the time 
 when received on hoard, or whether proj)erly packed 
 or not in boxes." 
 
 Tlie object of this memorandum is merely to 
 protect the master against any mistake that might 
 occur in the invoice quantity in the bill of lading, 
 in case of alleged short delivery, or deterioration, 
 not caused by his default. But the effect of the 
 memorandum is not such as to strike out the invoice 
 quantity from the bill of lading. 
 
 Thus, where a ship was chartered to carry a 
 cargo of grain from A. to B. for a freight of 7s. " per 
 imperial quarter delivered," and the charter-party 
 provided that " in the event of the cargo, or any 
 part thereof, being delivered in a damaged or heated 
 condition, the freight shall be payable upon the 
 invoice quantity taken on board, as per the bill of 
 lading ; or half freight upon the damaged or heated 
 portion at the captain's option." Under this 
 charter-party 2,3GS imperial quarters 'were shipped 
 on board at A, and the master 'signed a bill of 
 lading -with the following words written at the 
 foot, which was proved to be usual in the grain- 
 carrying trade, " quantity and quality unknown."
 
 600 LEGAL EFFECT OF THE CLAUSES. 
 
 The ship experienced bad weather, and 80 quarters 
 were damaged by heating. It was hekl, that the 
 master was entitled to be paid freight as he claimed, 
 on the invoice quantity taken on board, notwith- 
 standing the words written at the foot of the bill. ^ 
 
 The memorandum in a bill of lading " not account- 
 able for leakage," is not restricted as to the quantity 
 of leakage, and protects the shipowners, in the ab- 
 sence of proof that the leakage was occasioned by 
 their negligence, from all loss arising from this cause. 
 
 Thus where 47 casks of olive oil were shipped at 
 Leghorn for Liverpool, and on arrival at Liverpool 
 many of the casks were wholly or partially empty, 
 causing a loss of 2,001 gallons out of about 4,888 
 gallons of the oil, the usual percentage of leakage 
 being about one per cent. only. It was held, 
 that the condition that the shipowners are not to be 
 accountable for leakage, does not in its ordinary 
 and grammatical sense put any limit to the quantity 
 of leakage, and that the memorandum in the bill of 
 lading protected the shipowner as to all leakage, 
 except that caused by negligence.^ 
 
 But where certain portions of the cargo, at the end 
 of the voyage, were found to have been damaged by oil, 
 and the bill of lading contained an exception against 
 ** breakage, leakage, and damage;" it was proved that 
 there was no oil in the cargo, but that near where the 
 goods were stowed, there were two donkey engines, 
 
 1 Tally V. Terry, L. R. 8. C. P. 681 j 42 L. J. C. P. 2i0. 
 a The Helene, L. E. 1 P. C. 231.
 
 " WEIGHT A^D CONTENTS UNKNOWN." GOl 
 
 "which wore lubricated with oil, and it was not shown 
 how the injury occurred. In an action against the 
 shipoAvners, it was hekl, that the exception did not 
 protect them from lial)ility for damage accruing from 
 thenegligenceof their servants, hut that it did shift 
 the onus of proof, and thatit was incumbent upon the 
 2)lainti£Cs to prove afTirmatively the negligence of the 
 defendants' servants.^ 
 
 The condition "weight and contents unknown" 
 can only he opposed to shippers when the packages 
 are delivered in the same state as that in which 
 they were received. It is without effect when the 
 packages arc not intact on delivery. Por instance, 
 in the case of "The Peter der Grosse,"- where seven- 
 teen bales of down and eight bales of feathers were 
 shipped at St. Petersburg for delivery at L., and 
 the master signed bills of lading that they had been, 
 shipped in good order and condition. At the port 
 of discharge it AA^as found that the bales of doAAii 
 and feathers Avcrc stained and damaged by some 
 offensive smelling liquid, the exact nature of Avliich 
 could not be ascertained. It was held in an action 
 to recover damages for the loss sustained, that the 
 fact that the bill of lading contained the AA^ords 
 "AAcight, contents, and A'alue miknoAAU," did not 
 amount to a repudiation by the master that the 
 goods Avhen shipped were in good condition. 
 James L. J. remarking, " the bill of lading taken 
 
 1 Czech V. Tho Coil. S. X. Co., L. E. 3 C. P. 14. 
 » L. R. 1 P. D. 41-i J 3 Asp. Mar. L. Ca. N. S. 105, 
 7(3
 
 602 LEGAL EFFECT OF THE CLAUSES. 
 
 together must be considered to admit that the goods 
 when shipped were, as far as they coukl be seen, 
 in good order, and by adding the Avords above quoted, 
 the master does no more than say that he does not 
 admit anything as to the contents of the packages, 
 which he cannot see. He does admit, however, 
 that the goods appear to be in good condition out- 
 side, and this throws the onus upon him of proving 
 that the damage did not arise whilst the goods were 
 on board the ship or in his custody, or that it comes 
 within the exception of the bill of lading." 
 
 If the fastenings of bales have been oj)ened, and 
 it appears that the bales on arrival contain a less 
 number than when shipped, the clause will not 
 protect the shipowner. 
 
 Where a bill of lading for a bale of cloth contained 
 the words " weight and contents unknown," it was 
 held, that the carrier was not called upon to prove 
 tlie delivery of any certain number of pieces of 
 cloth in the bale. But where -the bale, when 
 delivered from the ship, was seen to have its outer 
 ropes removed, and its outer covering cut, and on 
 its arrival at the store, it was found that its inner 
 covering had been also cut, and a piece of cloth 
 was missing, and no one of the employes of the 
 ship who stowed the bale or broke it out was called 
 as a witness : it was held, that it was incumbent 
 on the carrier to show that the injury was only 
 external.^ 
 
 ^ The Euergie, 2 Asp. Mar. L. Ca. 20(3.
 
 BOTTOMRY, G03 
 
 Tlie master of a ship is tlie agent of the owner Bottomry, 
 to pledge his credit in cases of necessity and then 
 only to such an extent as is necessary to enable tli(^ 
 ship to complete her voyage.^ 
 
 AVherc the master is without credit and re^oairs 
 cannot prudently be postponed, or the money for 
 repairs and other expenses as well as supplies 
 requisite to enable the ship to complete the voyage 
 be obtained until he has been furnished with funds 
 by his OAvncr or others interested, he is empowered 
 to hypothecate the freight, ship and cargo f but the 
 necessity for expenditure and hypothecation or sale 
 of the cargo to raise funds, must be so urgent as to 
 give the master no opportunity, in a practical sense, 
 of communicatini? with the OAvners or assents of the 
 cargo ; otherwise the authority of the master to act 
 on his own responsibility does not arise. If he can 
 prudently wait to communicate he must do so, and 
 a sale or hypothecation made without doing so is 
 invalid.^ 
 
 The contract of bottomry may be set out in, and 
 evidenced by, various forms of instruments. Some- 
 times it is made in the form of a bond, sometimes 
 in the form of a bill of sale, and sometimes in the 
 form of a simple written agreement. It is the 
 creature of necessity and distress, and may be 
 therefore expected to assume different shapes.* 
 
 > Tho rontida, L. R. 9 P. D. 177 ; 53 L. J. P. D. & A. 78. 
 
 » The Fuitlifiil, 31 L.J. Ad. 81 ; Tho Stafifordshirc, L. E. 4 P. C. 19 1. 
 
 » Tho Bonaparte, 18 :y[oo. P.C.C. 459 ; The Hamburg B. & L. 253, 273 ; 
 2Moo. P.C.C. (N.S.) 289, 320; 33 L. J. Ad. 116; Tho Onward, L. K. 4 
 A. &. E. 38, 55; Kleinwoit Cohen & Co. v. The Casa Maritima of Genoa, 
 L. R. 2 A. C. 156. 
 
 ♦ Simonds r. Hodgson, 3 B. & Ad. 50, 57 ; Kay on Sh. vol. 1., 511.
 
 G04 BOTTOMRY. 
 
 Bnt the ship cannot be hypothecated, either by 
 parol, or by bills of exchange, drawn by the master 
 on the owner, as a security for money advanced for 
 the necessities of the ship, even although they are 
 accompanied l)y a verbal agreement that the ship is 
 liable/ 
 
 The master has exactly tlie same poAver of 
 hypothecating the freight, that he has of hypothe- 
 cating the ship. AYherever he may hypothecate 
 the one, he may hypothecate the other. The same 
 circumstances are necessary to justify hyj^othcca- 
 tion in the one case as in the other. The freight 
 may be hypothecated in the same way and by the 
 same bond as the ship.^ 
 
 A general hypothecation of the freight will not 
 include advances of freight, which have been bond 
 fide paid the master or owner, before the execution 
 of the bond^ and freight to be earned on a voyage, 
 which is subsequent to the voyage, during which 
 a bond is running, cannot be included in sue 
 bond.^ 
 
 The master is the agent of the owners for the 
 purpose of procuring such advances which by the 
 terms of the charter are to be borne by tlie 
 owners in order to prosecute the voyage. Tlius 
 in the case of Citizens' Bank of Louisiana v. 
 
 1 Ex parte Halkett, 19 Ves. 474. 
 
 2 The Gratitudine, 3 C. Rob. 274; Parsons on Sh., vol.1, 159 j Abbott 
 on Sh. by Shee. Pt. III., ch. III. 
 
 3 The Karnak, L.R. 2 P.O. 50G. 
 
 * The Staffordshire, L.R. 4 P.O. 210. 
 
 4
 
 BOTTOMRY. C05 
 
 "Wendolin ^ the plaintiffs were a hank carrying on 
 business at ^Mobile, in the State of Alal)ama, United 
 States, and the defendant Avas the owner of tliG 
 Russian sliip " Suomi," whicli was chartered for a 
 voyage from London to Mobile, to there load a 
 cargo of deals. According to the terms of the 
 cliarter-party, the charterers or their agents at Mobile 
 A\ ere to advance cash for ordinary disbursements to 
 tlie master at the current rate of exchange, the 
 master to give a receipt on the bill of lading for 
 such expenses ; such advances to be deducted from 
 the first freight paid at the port of discharge. The 
 ship arrived at ^Mobile, and was placed in the hands 
 of the charterers' agents Avho advanced to the 
 master for necessary disbursements G50/. The 
 receipt for this amount was indorsed on the bill of 
 lading, in accordance with the terms of the charter- 
 party. After about 200Z. of this amount had been 
 advanced by the charterers' agents, they asked the 
 master for a bill of exchange, which he accordingly 
 gave for G50/, together with a security upon the 
 ship and freight, known in America as a letter of 
 lien. The charterers' agents discounted the bill with 
 the iilaintilf bank, and it was upon this bill that the 
 action was brought. On Wxa arrival of the ship in 
 London the charterers deducted the G50Z. from the 
 amount payable to the defendant for freight. The 
 facts were not in dispute, and the only question was 
 whether the master had exceeded his authoritv in 
 IDledgingthe ship and freight for necessary advances 
 in the manner stated. It l)eing held that the master 
 
 ' 2 Times, L. R. 219.
 
 GOG BOTTOMRY. 
 
 "was the agent of the owner and that he was acting 
 within the scope of his authority; judgment was 
 delivered for the plaintiffs. 
 
 In the case of Wagstaff, Brassey and others v. 
 Anderson, Moss and others,^ the defendants offered 
 the plaintiffs room for a cargo at a named rate in 
 the ship D. ; they then chartered the ship under a 
 charter- j)arty which provided, inte?' alia, that the 
 ship should go to C, should receive on board such 
 goods as might be required, that the whole ship 
 should be at the disposal of the charterers, that the 
 master and owners should be responsible as if the 
 ship w^ere loaded for the owners independently of 
 the charter-party, that the master should sign bills 
 of lading at any rate of freight the charterers might 
 require without prejudice to the charter-party, that 
 the ship should be addressed to the charterers' 
 nominee at the port of discharge, and the charterers' 
 responsil3ility, except for freight, should cease on 
 the vessel being loaded. 
 
 Shortly after, the defendants " acting for the 
 owners of" the D., agreed with the plaintiffs to 
 receive on board a cargo at the rate previously 
 mentioned by them to the plaintiffs, and further 
 agreed that the barges as they came along should 
 be immediately discharged or they undertook to 
 pay demurrage. The cargo was received on board, 
 the master signed bills of lading for the cargo to 
 be delivered at C. to the plaintiffs' order or assigns. 
 Half the freight, less discount, was, by agreement, 
 paid to defendants before the ship sailed; the 
 
 1 L.E. 5 C.P.D. 171 ; 49 L.J.C.P. 485.
 
 BOTTOMRY. G07 
 
 residue, l)eing the sum mcntioued in the hill oi' 
 hiding, Avas to he paid at C. 
 
 The ship sailed, met with had Avcather, put into 
 an intermediate port, and was condemned, the cargo 
 was discharged and the master sold it without 
 communicating with the plaintifi's. 
 
 In an action for the value of the cargo the jury 
 found that the sale was unjustifiahle : — 
 
 Held, that the defendants were not liahle, that 
 the contract hetwcen the plaintifi's and the defen- 
 dants was at an end when the cargo was on hoard, 
 and that the master was not the as-ent or servant 
 of the defendants. 
 
 If a vessel after she has started on her vovaijc 
 receive damage, the master, in considering Avhat 
 steps he shall take in regard to carrying on the 
 cargo or first repairing the ship, is hound to consider 
 not one individual interest, hut the interests of all 
 concerned, and to do that which a prudent master 
 A^'ould do under the circumstances, whether it he 
 to return to his port of loading and repair, or rejiair 
 at the nearest possihle place hefore proceeding, or 
 go on without repairing, hut if it he in his power 
 to efi^ect the repairs without any great delay or 
 expense to the interests intrusted to his charge it 
 is his duty to repair hefore proceeding.^ 
 
 A ship helonging to the defendants, who were 
 shipowners and shiphuilders at Eristol, shipped, in 
 addition to other cargo, some tin plates helonging 
 to the plaintiffs at Cardiff, for New York. The hill 
 of lading contained the usual exemptions from 
 liahility in respect of damage hy collision, SiC. lu 
 
 ' The Rona, L.R. 7 P.D. 247 j 51 L.J.P.D. & A. 65.
 
 G08 BOTTOMRY. 
 
 the course of the voyage the ship experienced very- 
 heavy weather, and repairs became necessary. The 
 master put into Queenstown at first, and after- 
 >Yards, having communicated with the defendants, 
 determined to return to Bristol for repairs. In the 
 Avon the ship came into collision with another 
 vessel and sank. She was subsequently raised and 
 taken to Bristol. The plaintiffs sued for damages 
 for the failure of the defendants to deliver the tin 
 plates in New York according to the bill of lading. 
 The case was tried before a judge and special jury, 
 and the verdict and judgment were for the defen- 
 dants. The plaintiffs applied for a new trial, and 
 contended that the master was not justified without 
 the consent of the cargo-owners in returning to 
 Bristol, but should have had the ship repaired 
 at Quccnstown or Swansea; that the jury had been 
 misdirected, and that the verdict was against the 
 weight of evidence. 
 
 Held, that the return to Bristol was not such a 
 deviation from the course as could not be held 
 to be reasonably necessary ; that the sliip being a 
 "generalship," it was not necessary to communicate 
 with the cargo-owners before returning to Bristol ; 
 that the question of reasonable necessity was one 
 for the jury, and that the verdict should not be 
 disturbed.^ 
 
 In the case of the August,^ where a German 
 vessel, loading at Singapore for London, took on 
 board, with other cargo, a quantity of j)cpper 
 
 ^ Phelps James & Co. v. Hill & Co., 7 Asp. Mar. L. C. 42. 
 »LR. (1891) P. 328; 60 L.J.Ad. 57. See also The Gactano & Maria, 
 U R. 7 P. D. 137; 51 L. J, Ad. 47.
 
 BOTTOMRY. 609 
 
 shipped, l)y British suhjects, under English bills o£ 
 lading in the usual form. On the voyage heavy 
 weather was experienced, and the vessel put into 
 a port of distress, both the ship and a portion of 
 the cargo hemg damaged. The master telegraphed 
 to this effect to the ship's agent at Singapore, and 
 the contents of the telegram were commimicated 
 to the various shippers; hut no instructions were 
 received. Thereupon the master, acting in good 
 faith on the best advice he could obtain, and 
 believing it to be for the benefit of the cargo- 
 owners, sold, with other cargo, a considerable 
 portion of the pepper, much of which might have 
 been re-shipped, and some of which was in fact sent 
 on by the purchasers in other vessels to London, 
 where it fetched substantially the price of sound 
 pepper. 
 
 In an action for breach of contract and conver- 
 sion, brought by the plaintiffs, who were the 
 consignees of the whole, and the purchasers of part 
 of the pej)per so sold by the master, it was held 
 that the defendants, the owners of the vessel, were 
 not liable, as the law of the flag must be looked 
 at to determine the propriety of the sale, and by 
 German law the conduct of the master was justi- 
 fiable. 
 
 On the 19th April an Austrian ship witli a 
 valuable cargo on board, ran upon a rock on the 
 eastern side of Algoa Bay, distant 50 miles by sea, 
 and about 80 miles by land from Port Elizabeth. 
 The Austrian Consul at Port Elizabeth came to the 
 spot, and there being no hope of getticg the vessel 
 off, he advised the master to sell her with the cargo. 
 77
 
 610 BOTTOMRY. 
 
 The master accordingly advertised the ship and 
 cargo for sale, and they were sold in one lot hy 
 auction on the 30th of April for 9,500/., after a 
 brisk competition. The purchaser got some part 
 of the cargo out of the wreck, but on the 19th June 
 the ship went to pieces with the rest of the cargo 
 on board. The owners of the cargo having aban- 
 doned it to the underAmters as a total loss, the 
 underwriters filed their bill to have the goods which 
 had been brought to land delivered to them as not 
 having been effectually sold. The master had not 
 gone to Port Elizabeth, nor endeavoured to procure 
 funds to enable him to save the cargo ; nor had he 
 made any effort to induce any persons to under- 
 take the salvage of the cargo. Several witnesses 
 at Port Elizabeth deposed that in their opinion, no 
 person could have been induced to undertake the 
 salvage ; others gave their opinion that efforts to 
 save the cargo could have been obtained if a large 
 percentage of the net proceeds had been offered. 
 There Avas a good deal of evidence to show that, 
 in the opinion of persons on the spot, the course 
 which had been adopted of selling the wreck and 
 cargo was the most advisable one in the interests 
 of all parties concerned. The Court of Appeal 
 affirming the decision of the Master of the Kolls, 
 held, that no such necessity was proved to have 
 existed as would make the master the agent of the 
 owners of the cargo to effect a sale ; that the sale 
 was void ; and that the plaintiffs were entitled to 
 the cargo saved, subject to a proper allowance for 
 salvage and other expenses.^ 
 
 1 Atlantic Mutual Insurance Co. v. Huth, L. R. 16 Ch. D., 474.
 
 cu 
 
 PART IV. 
 
 THE RIGHTS AND LIABILITIES OF THE SEVERAL 
 PARTIES UNDER THE BILL OF LADING. 
 
 Before the Statute 18 and 19 Vict., c. Ill, tlie Effectof 
 transfer of a bill of lading did not, like that of a Yict. c. in. 
 bill of exchange, confer any right on the assignee 
 to sue upon the contract expressed thereby. The 
 transfer of the bill of lading did no more than 
 transfer the property in the goods. It did not 
 transfer the contract.^ 
 
 Upon refusal to deliver the goods when they 
 arrived, the transferee of the bill of lading, even 
 before the 18 and 19 Vict., c. Ill, might sue the 
 owners or the master for the "wrongful conversion 
 of the goods,- because the property in the goods was 
 by the transfer of the bill of lading transferred to 
 the transferee ; but, inasmuch as the contract con- 
 tained in the bill of lading was not, before this 
 statute, transferred or transferable to the transferee^ 
 he could not maintain an action for a breach of the 
 
 » Thompson v. Dominy, 14 M. & W. 403 ; 14 L. J. Ex. 320 ; Howard v. 
 Shepherd, 9 C. B. 296 ; 19 L. J. C. P. 219 ; Sanders v. Vanzeller, 4 Q.B. 260; 
 12 L. J. Ex. 497 ; Tindall v. Taylor, 4 E. & B. 219 ; 24 L. J. Q. B. 12. 
 
 » Haille v. Smith, 1 B. & P, 564.
 
 612 EFFECT OF 18 & 19 VICT., C. 111. 
 
 contract contained in tlie bill of lading: as, for 
 instance, for not delivering the goods according to 
 the contract, to which the transferee had not been 
 a party .^ 
 
 This continued to be the law until the statute 18 
 and 19 Vict., c. Ill, was passed.^ 
 
 The effect of this Act is to pass to the indorsee 
 the rights and liabilities of the shipper under the 
 contract.^ 
 
 The contract between the indorsee of a bill of 
 lading and the shipowner is contained in the bill 
 of lading.^ 
 
 And now an indorsee of a bill of lading has a 
 right to sue for damage to the cargo arising from 
 a breach of the contract contained in the bill of 
 lading, and in the case of a foreign vessel to take 
 proceedings in rem under the Admiralty Court Act, 
 1861 (24 Vict., c. 10), though at the time of the 
 institution of the suit he has sold the car go. ^ 
 Delivery under Tlic shipowucr must generally see that the goods 
 are delivered to the person to whom he has 
 contracted to deliver them. That is to say, as a 
 rule, to the person named as consignee in the bill of 
 lading, or to the assignee of the person who is 
 empowered by the bill of lading to make an order 
 or assignment of it. 
 
 ^ Howard v. Shepherd, 19 L. J. 0. P. 248 ; Thompson v. Dominy, 14 L.J. 
 Ex. 320; Sanders v. Vanzeller, 12 L.J. Ex. 497. 
 
 2 Kay on Sh. vol. I., p. 400. 
 
 3 Cox. V. Bruce, L.R. 18 Q.B.D. 150. 
 
 * Leduc V. Ward, L.R. 20 Q.B.D. 475, 
 « The Marathon, 4 Asp. Mar. L.C. 75.
 
 ASSIGmiEXT OF GOODS WITHOUT TBAXSFEB. 613 
 
 J3ut this is subject to claims to the goods which 
 may exist indeiicndent of the contract, and superior 
 to those of the persons who would he entitled under 
 that. If the goods have been originally shipped 
 without the authority of their owner, and he claims 
 them, the shipowner must give them up to him ; 
 and will in that case, cease to be bound by 
 the contract.^ So, also, if the property in the 
 goods be transferred to one person, without any 
 reservation of rights of possession, but the order 
 as to delivery under the contract be made impro- 
 perly in favour of some one else, the owner 
 of the goods will, it would seem, be entitled to 
 them as against the person to whom delivery has 
 been ordered.^ 
 
 Though the ordinary manner of transferring Assignment of 
 goods represented by a bill of lading is by indorse- f^nsfer of^tL 
 ment and delivery of the bill of lading itself, it 
 seems clear that the rights of property in the goods 
 may be completely assigned to another without any 
 assignment or delivery of the bill of lading at all ; 
 and, therefore, subject to the Eactors Acts, that if 
 the owner of the property in the goods assigns them 
 to A., without a transfer of the bill of lading to B., 
 the latter will have no right to the goods as against 
 A., except, perhaps in respect of the lien of the 
 original owner, if any. Parke B. said in Bryans v. 
 ^iK,^ " If the intention of the parties to pass the 
 
 1 Finlay v. Liveqiool & G. W. S. S. Co., 23 L. T. 251 ; Sheridan v. New 
 Quay Co., 28 L. J. C. P. 58. 
 
 * Lillaclhnr Jairam Naranji v. George Wreford, I. L. R, 17 Bom. 62, 
 3 4 M. & W. 775. 
 
 bill of lading.
 
 614 ASSIGNMENT OF GOODS WITHOUT TRANSFER, 
 
 property, whether absolute or special, in certain 
 ascertained chattels is established, and they are 
 placed in the hands of a depositary, no matter 
 whether such depositary be a common carrier or 
 shipmaster employed by the consignor, or a third 
 person, and the chattels are so placed on account of 
 the person who is to have that property, and the 
 depositary assents, it is enough, and it matters not 
 by what documents this is effected. Nor is it 
 material whether the person who is to have the 
 property be a factor or not, for such an agreement 
 may be made with a factor as well as any other 
 individual. And Lord Bramwell said, *'I take this 
 opportunity of saying that I think there is some 
 inaccuracy of expression in the statute. It recites 
 that 'by the custom of merchants, a bill of lading 
 being transferable by indorsement, the property in 
 the goods may thereby pass to the indorsee.' Now 
 the truth is that the property does not pass by the 
 indorsement, but by the contract in pursuance of 
 which the indorsement is made. If a cargo afloat 
 is sold, the property would pass to the vendee even 
 though the bill of lading was not indorsed. I do 
 not say that the vendor might not retain a lien, nor 
 that the non- indorsement and non-handing over 
 of the bill of lading would not have certain 
 consequences. My concern is to show that the 
 property passes by the contract. So if the contract 
 Avas one of pledge the property would be bound by 
 the contract, at least as to all who had notice of it, 
 though the bill of lading was not handed over." ^ 
 
 > Sewell V. Burclick, L.R. 10 A.C. 105.
 
 SHIPPER'S RIOnTS HOW TRANSFERRED. 615 
 
 It lias been held, that under the true construction Original 
 
 . Shipper's 
 
 of the statute, it was not the indorsement of the "ghts confer- 
 
 red to 
 
 hill of ladini:^, hut the vcstincf of the property, which consignee by 
 
 >-" c X X ./ ' vesting of the 
 
 gave to the consignee of goods the rights of the p^perty. 
 original shipper, with respect to the contract con- 
 tained in the hill of lading.^ 
 
 Lord Selborne in Sewell v. Burdick ^ said : — *' I 
 cannot persuade myself that its operation is alto- 
 gether restricted to cases of out-and-out sale, or 
 that an indorsee of a hill of lading by way of 
 security, who converts his symbolical into real 
 possession by obtaining delivery of the goods, ought 
 never to derive any benefit from it, that the indorsee 
 by way of security, though not having *thc property' 
 passed to him absolutely and for all j)urposes by 
 the mere indorsement and delivery of the bill of 
 lading while the goods are at sea, has a title by 
 means of which he is enabled to take the position 
 of full proprietor upon himself, with its corres- 
 ponding burdens, if he thinks fit-; and that ho 
 actually docs so as between himself and the ship- 
 owner if and when he claims and takes delivery of 
 the goods by virtue of that title." 
 
 In Fox V. Nott,^ the only question determined 
 was, that the shipowner retained his remedy by 
 action against the shipper after the indorsement of 
 the bill of lading (a case provided for by the 2nd 
 section,) but some of the learned judges expressed 
 opinions bearing upon the general construction of 
 
 ' The Felix, L. R. 2 A. &. E. 273. 
 2 51 L. J. Q. B. 1G3. » G II. & N. 630.
 
 616 SHIPPER'S BIGHTS HOW TRANSFERRED. 
 
 the statute. Chief Baron Pollock, said, — " The 
 indorsee of the hill of lading may he sued under the 
 statute, hecause bi/ taldng the goods he also takes 
 the liahility to pay the freight." Baron Martin, 
 said, — " That statute means an actual vesting of 
 the property as hy hargain and sale ;" and Baron 
 Wilde, said, — " I agree with my brother Martin 
 that the Act applies only to an ahsolute transfer of 
 the goods, and was never intended to deprive a 
 person who made advances on the security of the 
 bill of lading of the henefit of the original contract 
 of the shipper to pay the freight." 
 
 If the indorsee proves that the immediate indorse- 
 ment to him was for valuahle consideration, he need 
 not also prove that the indorsement to his indorser 
 was for value, in the ahscnce of any evidence of 
 fraud or other circumstances invalidating the 
 indorsement. 
 
 In an action upon a hill of lading hy an indorsee 
 against the shipowners, for not delivering the goods, 
 the plaintiff put in the bill of lading and proved 
 that the consignors had indorsed and delivered it to 
 A., and that A. had indorsed and delivered it to the 
 plaintiff for value : — Held, that this was evidence 
 to go to the jury of such an indorsement and 
 delivery of the bill of lading, as to vest the property 
 in the goods in the plaintiffs, and so as to transfer 
 to him the right of action under the Act.^ 
 
 To entitle the indorsee of a bill of lading to sue 
 
 ^ Drucachi v. Auglo-Egyptiau Xavigutiou Co,, L. R. 3 C. P. 190,
 
 hufivrmvs jugiits how transferred. gi7 
 
 on it hy virtue of the Act, the circumstances under 
 A\hich the hill oC hiding has Ijccn indorsed must he 
 such tliat the pi'02)crty in the goods shall have 
 passed to the indorsee hy reason of the indorse- 
 ment.^ 
 
 If the property in the goods he not transferred, 
 then the contract contained in the hill of lading is 
 not transferred, either to the consignee of goods 
 named in the bill, or to the indorsee of the hill.^ 
 
 Goods Averc shijiped from Canada to Avonmouth 
 under hills of lading made to the order of the 
 consignor or his assigns. The consignor drew hills 
 of exchange against the goods on C, of Bristol, 
 and sold these, with the hills of lading attached, to 
 a Canadian I3anlv. The Canadian Bank forwarded 
 the hills of exchange and hills of lading to a 
 London Bank, with a hypothecation note- autho- 
 rising the London Bank, in case C. should not 
 accept the hills of exchange, or his acceptance 
 should not he considered satisfactory, or the hills of 
 exchange should not he paid at maturity, to retain 
 the hills of lading and sell the goods. On arrival 
 at Avonmouth the goods were delivered hy the 
 shipowners to the defendants to he carried to 
 Bristol, and there held to the order of the ship- 
 owners. C. accepted the hills of exchange, and 
 they were at his rc(piest paid at maturity hy the 
 l)laintiffs, his hankers, who thereupon received the 
 
 1 Tlic Freedom, L. R. 3 P. C. 599. 
 
 "- Fox V. Nott, 30 L. J. Ex. 259 ; Scliuster v. McKolkr, 2G L. J. Q. B. 281 ; 
 The Felix, L. K. 2 A. & E. 277. 
 
 7S
 
 618 INDORSEMENT NOT TRANSFERRING PROPERTY 
 
 bills of lading from the London Bank, and by- 
 means thereof obtained from the shipowners orders 
 for delivery of the goods. On presenting the 
 delivery orders the plaintiffs fonnd that the defen- 
 dants had wrongfully delivered the bulk of the goods 
 to C. before the maturity of the bills of exchange : 
 Held, that the plaintiffs were pledgees of the goods, 
 as assigns of the London Bank, and that in respect 
 of their right of property, and independently of 
 section 1 of the Bills of Lading Act, 1855, they 
 could maintam an action for conversion against the 
 defendants, notAvithstanding that their title first 
 accrued after the Avrongf ul delivery to C} 
 
 But if the property in the goods named in a bill 
 of lading is in the consignor, and if he, by consign- 
 ment or by indorsement and delivery of a bill of 
 lading, transfer to the consignee, or indorsee, the 
 j)roperty in the goods, ho does with it, by virtue of 
 the Act, transfer also the contract and all his rights 
 and liabilities under the bill of lading, except his 
 liability for freight.^ 
 
 A consignee who retains the bill of lading for 
 
 goods, but has parted with the beneficial interest 
 
 in them, is still a " consignee" Avithin the meaning 
 
 of the Act.^ 
 
 wiicntiio ^^ there is no transfer of the property in the 
 
 indorsement 
 does not trans- 
 fer the ' Bristol & West of England Bank, Ltd. v. The Midland lly. Co., Gl L. J. 
 property, the q jj ^15 
 consignee 
 
 continues " The Felix, L. K. 2 Adm.277 ; Sliaudr. Saudersou, 28 L. J. Ex. 278 ; Foster 
 
 liable for ^._ Colby. 28 L. J. Ex. 88. 
 
 freight. 
 
 » Fowler i'. Knooi^, L.ll. i Q.B.D. 200.
 
 LIABILITY FOR FUEIGIIT COXTIXUES. C19 
 
 goods, the consignee cannot transfer liis liahility to 
 pay freiglit except Avlth tlie sliipow ikm- s or master's 
 assent. 
 
 Thus wliere the consignee named in the l)ill of 
 hiding, indorsed tlie hill hefore the arrival of the 
 ship, in the words, " Deliver to AV. and K. or ord(^r, 
 looking to them for all freight, dead freight, 
 and demurrage, without recourse to lis." It was 
 admitted, that the property in the goods liad not 
 l)assed to AV. and K., and that the consignee would 
 have heen liahle to them for any freight jiaid hy 
 them. It Avas held, that it was immaterial whether 
 such indorsement was or was not on the hill of 
 lading, unless the master saw it, and that the 
 consignee having heen, at the time of the alleged 
 indorsement, liable for the freight, and the property 
 not having been transferred, the consignee remained 
 liable, unless he could prove that the shipowner or 
 the master had agreed to discharge him from such 
 liability, and that such agreement could not ])e 
 proved by merely showing that the indorsement 
 was on the bill when it was jiresented to the master, 
 and when he delivered the cargo, Avithout proving 
 that the master in fact assented to it.^ 
 
 The mere indorsement and deliviM-y of a bill of 
 lading by way of pledge for a loan does not pass 
 "the property in the goods" to tbc indorsee, so as 
 to transfer to him all liabilities in respect of the 
 goods within the meaning of the Bills of Lading 
 
 ' Lewis V. M'Koc, L.K. 1 E\. 58.
 
 G20 IXDOBSEMENT NOT TRANSFERRING PROPERTY 
 
 Act (18 and 19 Yict., c 111,) s. 1 — Goods were 
 shij^pcd to a foreign port nndcr bills of lading 
 making the goods dcliyerable to the shipper or 
 assigns. After the goods had arrived and been 
 Avarehoused, the shipper indorsed the hills of lading 
 in blank and deposited them with the indorsees as 
 security for a loan. The indorsees never took 
 possession of or dealt with the goods : — Held, 
 (reversing the judgment of the Court of Appeal, 
 and restoring the judgment of Pield, J.), that "the 
 property " in the goods did not " pass " to the 
 indorsees within the meaning of the Bills of Lading 
 Act, so as to make them liable in an action by the 
 shipowner for the freight.^ 
 
 " The statute contemplates the passing of *' the 
 property in the goods" by the indorsement of the bill 
 of lading as a thing which may or may not happen, 
 according to the nature and intent of the contract 
 or dealing for the purpose of which that indorsement 
 is made ; and it seems to provide for those cases 
 only in which the i)roperty so passes as to make it 
 just and convenient that all rights of suit under 
 the contract contained in the bill of lading should 
 be " transferred to " the indorsee, and should not 
 any longer " continue in the original shijiper or 
 owner." One test of the aj)plication of the statute 
 may perhaps be, whether, according to the true 
 intent and operation of the contract between the 
 shipper and the indorsee, the shipper still retains 
 
 1 SewcU V. Burdick, L.R. 10 App. Cas. 74.
 
 LIABILITY FOB FBEiailT COXTIXUES. C21 
 
 any siicli proprietary rii^lit in the goods as to nial<c 
 it just and reasonable that lie should also retain 
 rights of suit (the Avord is " suit," not " action,") 
 against the shipowner under the contract contained 
 in the hill of lading. If he does, the statute can 
 hardly he intended to take from him those rights 
 and transfer them to the indorsee. If they are not 
 transferred to the indorsee, neither is the indorsee 
 subjected to the shijiper's liabilities. 
 
 It is very difficult to conceive that viien the 
 goods arc still in transitu, when the substance of 
 the contract is not sale and purchase, but borrowing 
 and lending, and when the indorsement and deposit 
 of the bill of lading is only by way of security for a 
 loan, it can be the intention of either party thereby, 
 ^vithout more, to divest the shipper of all 
 proprietary right to the goods, and to take from 
 him and transfer to the indorsee all rights of suit 
 under the contract with the shipowner. That some 
 proprietary right (his original right, subject only 
 to the creditor's security) remains in him is 
 indisputable. If that proposition needed illustration 
 from authority it would be found in the cases of 
 In re JFestzinthus,^ Spcddlng v. Undlng^' and 
 Kemp V. Falk.'^ Can it l)e that he is by the statute 
 dejirived of all remedies, legal and equitable, under 
 the bill of lading, as long as it remains in the hands of 
 the secured creditor? The creditor, in the ordinary 
 
 ' 5 B. & Ad. 817 ; 3 L. J. K. B. 5G. 
 
 » G Be.a\-. 37G; 12 L.J. Ch. 503. 
 
 = L. K. 7 App. Cas. 573 ; 52 L. J. Ch. 167.
 
 622 IMPLIED PROMISE TO PAY FREIGHT. 
 
 course of tilings, will do nothing until the time for 
 payment or delivery oL" the goods arrives. Can it 
 then he material ^vhether the proprietary right thus 
 remaining in the shipper while the goods are 
 in transitu is legal or equitahle ? The statute relates 
 to a subject of general mercantile law in which not 
 Englishmen only hut foreigners also may he and 
 often are concerned. Foreign as well as British 
 indorsements of bills of lading hy way of security 
 for advances (which may he made ahroad, perhaps 
 in countries not governed hy English laws) are 
 liable to he affected hy it whenever recourse must 
 be had to British Courts. It seems to me to be 
 inconceivable that the construction of the words 
 " the property in the goods " in such a statute can 
 have been intended to depend upon any such 
 technical disthiction as that made in English law 
 (but by no means in the laws of all other countries 
 in which the customs of merchants prevail) between 
 legal and equitable titles." ^ 
 Implied In Allen v. Coltart^ where a cargo was loaded and 
 
 fi^^ght! ° ^^^ bills of lading were signed, which provided for the 
 delivery of the cargo at the port of Liverpool "unto 
 the order of the shipper or to his assigns, he or they 
 paying freight for the said goods. Dead freight 
 and demurrage, if any, may be shewn due as per 
 charter-party, conforming to all the conditions 
 thereof, with average accustomed." 
 
 » Per The Lord Chancellor in Sewell v. Eu'dick, L.R. 10 App. Gas. 74; 
 54 L. J. Q. B. 162. 
 " ^ L.R.U Q. B, D. 7^2 ; 52 L. J. Q, B, 686.
 
 IMPLIED rnOMISE TO PAY FREIGHT. 023 
 
 "When the sliip first arrived in llic Mersey, llic 
 plaintiffs set up a claim to detain the cargo until 
 payment of a sum claimed for the detention of the 
 ship at Quebec for 103 days. This claim the 
 ])laintin's afterwards abandoned, and the question 
 disputed at the trial was, whether this claim of the 
 plaintiffs was the sole cause of the delay in the 
 delivery, or Avhether there was a further delay 
 after that claim had been abandoned owing to any 
 refusal by the defendants Messrs. Coltart & Co. 
 to take delivery elsewhere than in the Canada Dock. 
 Upon this question the jury found a verdict for the 
 plaintiffs for 100/. against Messrs. H. Coltart & Co., 
 and a verdict for the defendants Dempsey & 
 Harrison. 
 
 At the hearing it was contended that Messrs. 
 Coltart & Co. had no jn-operty in the goods, as they 
 only held the bill of lading to recoup themselves 
 for advances they had made on the timber, and conse- 
 quently Avere not liable as assignees of the bill of 
 lading under the IS & 19 Vict., c. 111., s. 1, and in 
 support of this contention, Burdick v. SewelP was 
 cited. Cave, J., in delivering judgment said : "I 
 am of opinion that this contention is well founded. 
 I think that luuler tlie circumstances proved at the 
 trial I ought to hold that the intention of !^[cssrs. 
 Knight and Messrs. Coltart & Co. was, that the 
 latter should hold the bill of lading and the timber 
 mcrclv as a securitv to cover the advances thev had 
 
 ' L. K. 10 Q. B. U. 303.
 
 62 i IMPLIED VROMISE TO PAY FREIGHT. 
 
 made, and that tlio iutoiition oE both parties in 
 giving and receiving the indorsed bill of lading 
 was, not to pass the property in the goods to 
 Messrs. Coltart & Co. ; but to enable them to 
 obtain possession of the timber on its arrival in 
 Liverpool, in order that they might have the security 
 of the timber for their advances. It appears to mo, 
 however, that the plaintiffs are entitled to maintain 
 this action quite independently of the 18 & 19 
 Vict, c, 111. As far back as 1811, it was held, in 
 Cook ?7. Taylor,^ that where the master of the ship had 
 contracted by bill of lading with the shippers to 
 deliver goods to certain persons or their assigns, ho 
 or they paying freight for the same, the demanding 
 and taking of such goods from the master by a 
 purchaser and assignee of the bill of lading, without 
 the freight having been paid, Avas evidence of a 
 new agreement by him, as the ultimate appointee 
 of the shippers for the purpose of delivery, to pay 
 the freight due for the carriage of such goods, the 
 delivery of which was only stipulated to be made 
 to the consignees named in the bill or their assigns, 
 he or they paying freight for the said goods. It is 
 true that that decision only extends to the payment 
 of freight ; but that is because that was the only 
 condition of delivery in the bill of lading there under 
 consideration. Stindt v, Roberts- is explained by 
 Mr. Baron Parke in Young v. Mocller^ as establish- 
 ing that the receipt of the cargo by an indorsee of 
 
 ' 13 East 390. * 17 L. J. Q. B. 1G6. ^ 5 g, & B, 702.
 
 IMPLIED PROMISE TO PAY FPiEIGUT. C25 
 
 the 1)111 of lading is evidence of an agreement to 
 be bound by its terms, Avliatever tliey may be. 
 
 Is there, then, evidence in this case on •which I 
 ought to find that the defendants Coltart & Co. 
 agroed to take delivery on the terms of the bill 
 of lading ? I am of ojoinion that there is. It seems 
 to me that if the holder of a bill of lading, 
 under which he is entitled to the delivery of goods 
 on certain terms, presents that bill of lading and 
 demands delivery of the goods, he thereby, prima 
 facie, oilers to perform those terms of the bill of 
 ladini' on which alone the sroods are deliverable to him. 
 According to the evidence of Mr. Castle, which I do 
 not find to be contradicted, Mr. Coltart said he 
 had a right to name the dock according to the 
 charter-party, and he had named the Canada Dock, 
 and wanted delivery there. He named the Canada 
 Dock, not because he refused to perform the condi- 
 tions of the bill of lading, but because lie conceived 
 that, under those conditions, he was entitled to 
 name the Canada Dock. The jury found in effect 
 that the plaintiffs Avere ready and willing to deliver 
 on the terms of the bill of lading, and that there 
 was a delay caused by the refusal of Messrs. Coltart 
 &Co.to accept delivery elsewhere than in the Canada 
 Dock. Having regard to this finding of the j ury, 
 I think I ought to come to the conclusion that 
 there Avas an agreement between the plaintiffs and 
 the defendants Coltart & Co., that the former should 
 give, and the latter should take, delivery under the 
 71)
 
 626 INTENTION OF THE STATUTE. 
 
 terms of the bill of lading, and that there Avas a 
 delay in such delivery by reason of the defendants 
 Coltart & Co. refusing to take delivery elsewhere 
 than in the Canada Dock. 
 All ridits of a Since the passing of the Statute if the property 
 b^p-iS by''^ ill the goods passes to the indorsee of a l)ill of lading 
 hy reason of such nidorsement, all the rights ol the 
 consiscnor under the contract contained in the hill of 
 lading may be passed by the indorsement, and if so 
 passed, are enforceable by the indorsee so long as the 
 bill of lading is in force;^ but the consignor himself 
 remains always liable for the freight, unless the 
 shipowners or charterers, or their master, agree to 
 discharge him from such liability. So an indorsee 
 of a bill of lading, Avho has indorsed the same over 
 before the arrival of the vessel and delivery of the 
 cargo, does not remain liable for the freight.^ 
 
 The obvious meaning of the Statute is that the 
 assignee of the bill of lading, to whom the property 
 in the goods passes, shall have all the rights and bear 
 all the liabilities of a contracting party, just as if the 
 contract contained in the bill of lading had been 
 made with such assignee, but that if he passes on the 
 bill of lading by indorsement to another, he passes 
 on to such indorsees also all the rights and all the 
 liabilities which tlie bill of lading carries with it, and 
 which lie himself had.* 
 
 1 Short V. Simpson, L. R. 1 C. P. 2o5 ; The Freedom, T.. 11. 'S V. C. 509. 
 « Smurthwai<;c r. Wilkius, 31 L.J.C.l'. 215; Lewis v. M'Kee, L.il. •lJ:;x. 58. 
 " Ibid; The Hcieuc, L.K. 1 P.C. 231. 
 
 Int"ntioa of 
 Statute.
 
 WHEX TXT)nn,^EE NOT TJAP.LE. C27 
 
 Til order that tlic consignee or indorsee sliould be Tomndoran 
 
 Til 1 1 • 1 1 ^ 1 imlorsee liaMr>, 
 
 liable under this Act, lie must be the Jiokler of tlie I'e must be the 
 
 liold.T ot the 
 
 bill of lading ; ])ut if lie has assigned or indorsed the '^'" ofiaaiui,'. 
 bill over, he is no longer liable upon the contract 
 contain(Hl in the bill, but passes on to siicii third 
 l)arty nil the rights and liabilities he himself had. 
 
 Therefore, after the indorsee of a bill ol' lading to 
 ■whom the property in the goods has passed by 
 reason of such indorsement, has passed it on by 
 indorsement to another, before the delivery of the 
 cargo, such indorsee does not remain liable for the 
 freight/ 
 
 Thus, Avhere goods Avere shipped under an ordi- 
 nary bill of lading, Avhich was assigned to the 
 defendants, and by them assigned over before the 
 arrival of the A'cssel and delivery of the goods. The 
 contention Avas, that because the assignment of the 
 bill of lading passed the property in the goods to the 
 defendants, they Avere liable, under the Statute 18 
 and 11) Vict., c. Ill, to pay freight, although they 
 did not receive the goods. It Avas argued that 
 section 1 of the Statute meant that because the con- 
 signor remained always liable for frei<;-ht, and th(» 
 assignee of the bill of lading had transferred to 
 him 1)y the Statute the liability of the consignor, 
 sueli assignee was to remain liable, although he 
 had passed away the goods and bill of lading to 
 a third jiarty. Erk% J., said, "The party Avho 
 recciA'cs the cargo is considered generally to 1)3 
 
 ' Smunlnvaito v. Wilkins, 31 L.J.C.P. 21.7.
 
 628 WHEN INDOFiSEE NOT LIABLE. 
 
 liable for the freight, hut that is under an implied 
 contract arisin^^ from the fact of his receiving the 
 cargo, and not from the bill of lading. Now, I think 
 the meaning of the Statute is, that the assignee of 
 the bill of lading who receives the cargo shall have 
 all the rights and liabilities of the contracting party : 
 but that if he assigns the bill of lading before the 
 arrival of the cargo, he parts with all such liabilities. 
 The preamble of the Statute leads me to this 
 conclusion ; and the Statute enacts, in effect, that 
 if the consignor assigns the bill of lading, the 
 assignee shall take all the rights of the consignor. 
 Then, where such assignee assigns over, does he 
 still retain all the rights of the consignor ? Accord- 
 ing to the construction contended for, he would 
 have a right to the cargo, but that he clearly has 
 not. It must therefore be contended that, although 
 by the assignment he has passed all rights, he never- 
 theless has retained all liabilities : a doctrine very 
 convenient to shipowners, but contrary to justice. 
 The preamble to the Act points to its being 
 expedient that the rights in respect of the contract 
 should pass with the property, and the i\.ct provides 
 for the passing of the rights and liabilities in respect 
 of the contract with the property : when, therefore, 
 the assignee of the bill of lading passes the property, 
 he passes not only the rights, but the liabilities 
 also. It is said that because the assignee who takes 
 the cargo under a bill of lading is liable for freight 
 according to tlie terms of the 1)ill of lading, that
 
 IXDOESEMEXT OF BTLL OF LAVING. 629 
 
 therefore the defendants are lial)le hy a construc- 
 tive takinc: of the sroods. Theoriprin of tlie liability 
 at common law Avas a giving np of the lien on the 
 cargo on an undertaking by tlie party receiving the 
 cargo to pay freight ; but I never remember any 
 such liability to pay freight being implied A\here 
 Hie party did not actually receive the goods." ^ 
 
 Bills of ladinG^ are transferable by indorsement : indorsement 
 it may be to a particular jierson, or m blank, or to ludiog. 
 the bearer. 11. & Co. at Manchester consigned 
 goods for sale to L. & Co. at Hongkong, upon the 
 terms that the proceeds should be remitted to 
 II. & Co. to meet the acceptances of L. & Co. 
 L. it Co. indorsed the bill of lading for considera- 
 tion to their bankers, and on the arrival of the 
 goods they were delivered to the bankers. The bill 
 of ladin2: omitted the Avords " or order or assicjns :" 
 Held, that the omission of these words did not 
 operate as notice of the agreement between H. & Co. 
 and L. & Co., and that the bankers had a good legal 
 and equitable title to the goods.- 
 
 Lord Ilardwicke, in Snee v. Prcscot,^ thought 
 that " there was a difference between an indorse- 
 mpnt of a bill of lading in blank and a personal 
 indorsement, and (for some purposes) I think there 
 is mucli reason for that opinion. If from a personal 
 indorsement the inference might properly be drawn 
 that a title l)y assiiinment, as distinguished from 
 
 » Smurthwaite r. Wilkins, 31 L. J. C. P. 215. 
 
 * Henderson v. Comptoir d'Esconipte de Paris, I..R. 5 P.C. 253; 42 L.J. 
 P.O. 60. 
 
 ' Atk. 245, 249.
 
 G30 IXDOBSEMEXT OF BILL OF LADING. 
 
 pledge, "was meant to pass to the indorsee, it wonld 
 not, in my opinion, follow that the same inference 
 onglit to l)c drawn from an indorsement in Ijlank." 
 Part of the custom of merchants found in Lick- 
 harrow V. jMason,^ Avas that " indorsements of hills 
 of lading in hlank may he filled up hy the persons 
 to whom they are so delivered or transmitted, with 
 words ordering the delivery of the goods to he made 
 to such person ; and, according to the practice of 
 merchants, the same aa hen filled up have the same 
 operation and effect as if it had heen done hy the 
 shipper." 
 
 AVhether it is or is not usual^in practice to fill up 
 tlie hlank with any name hefore taking delivery 
 it is certainly not to he implied from the custom as 
 thus found that the operation of the indorsement, 
 while it remains in hlank, is necessarily to all intents 
 and purposes the same as if it were filled up witli 
 the holder's name. So long as it remains in hlank 
 it may pass from hand to hand hy mere delivery, 
 or it may he redelivered to tlie shii)per without any 
 new transfer or indorsement, which would not he 
 the case if there were a personal indorsement. It 
 would he strange if the Bills of Lading Act has 
 made a person whose name has never heen upon 
 the hill of lading, and who (as l)et\veen himself and 
 the shipowner) has never acted upon it, liahle to 
 an action hy the shipowner upon a contract to 
 which he was not a party. - 
 
 1 1 Sm. L.C., 8th ed. 753. 
 
 « Per Lord Selborne in S;>well v. Burdick, 54 L. J.Q. B. IGl ; L. R. 10 
 App. Gas. 74,
 
 TTOLVEl! WITirOUT NOTICE. 631 
 
 The consignee or sliii)per may, as lie thinks 
 ])roi)er, lill ii]) the name of any person to uliom the 
 i;()0(ls are to he delivered, or attach any conditions 
 to the indorsement ; and actini^ in good faith, and 
 according to the hest of his judgment, the master 
 is safe in making delivery to the holder a\ ho first 
 ])rodiices the bill of lading, duly indorsed, unless 
 he is satisfied that the circumstances are such as to 
 iustifv a susi)icion of such holder havinii- come hv 
 the bill imi)r()i)erly, unfairly, or fraudulently. 
 
 The holder or indorsee of a bill of lading for UuUci- 
 
 all •! !• • I ii'j.11 witbnut notice 
 
 uable consideration, is not aiTected by any not aiTected by 
 
 conditions not appearing on the face of the bill 
 itself ; and if he has no notice of any circumstance 
 to prevent him from fairly and honestly taking the 
 indorsement, as that the indorser is likely to fail 
 and not pay the price in due course, the indorse- 
 ment has the effect of vesting in him the right to 
 demand delivery of the goods. ^ 
 
 But if he knous that the indorser is insolvent, or 
 that no bill has been accepted for the price of the 
 goods, or that being accepted, it is not likely to be 
 paid" : then the interposition of himself between the 
 consignor and consignee, in order to assist the latter 
 to disappoint the just rights and expectations of the 
 former, uoidd be an act done in fraud of the 
 consignor's right to stop in transitu, and would 
 therefore be unavailable to the ])arty taking an 
 assignment of the bill of lading under such 
 circumstances, and for such purpose. 
 
 » Joucd V. Jones. 10 L.J. Ux. 481 ; b M. .5: \V. 431. 
 ' Cuaiiai; v. livown, 'J i^ast. oUt!.
 
 632 HOLDER WITHOUT NOTICE. 
 
 A mistaken or wrongful delivery of goods by the 
 carrier after notice to stop in transit does not defeat 
 the right of the unpaid vendor/ 
 
 When there is a special or conditional indorse- 
 ment as — " deliverable to B. if he accept and pay 
 the accompanying draft, and, if not, then to the 
 holder of the draft," this puts the indorsee for a 
 valuable consideration to inquire -whether or not 
 the condition has been actually performed ; and if 
 not, he has no title to the goods.^ 
 
 Where the consignee of a cargo received the 
 bill of lading on the day he stopped payment, 
 and transferred it, being insolvent, to a person or 
 persons whom he called L. & Co., and from whom, 
 after tlie consignee had on his own petition been 
 adjudged bankrupt, a third ])n,Yty professed to 
 purchase it, and afterwards, and before the ship 
 arrived, another firm fairly and honestly bought it 
 from the third party; and on the ship's arrival 
 the assignees in bankruptcy of the consignee took 
 j)ossession of the cargo ; it was held, that as the 
 evidence showed the whole transaction between 
 the consignee and L. and Co., and M. the third i)arty, 
 to be collusive and colourable, and with the design of 
 defrauding the creditors of the consignee, the ques- 
 tion submitted to the jury was, whether the third 
 j)arty had fairly and honestly made his purchase.^ 
 
 1 Litt. r. Cowley, 7 Taunt 1G9; Lilladlmr Jairaiu Narraujee v. Wreford 
 I.L.R. 17 Bom. 62. 
 
 - Barrow r. Coles, 3 Camp. 92. 
 3 Whitmore v. Lloyd, 2 F. & F. 3 j.
 
 INDORSEMENT TO UECOVER ADVANCES. 633 
 
 AVIhmi llic Ijill of lading is taken to a named con- luaorsoment 
 
 to recover 
 
 silence, or is specially indorsed and transmitted to him previous 
 
 ° ' ■•• "^ ^ advaucea. 
 
 as a security for previous advances, or to indemnify 
 liim against his liabilities on account of that 
 particular consignment, an absolute or special 
 property in the specified goods is vested in him from 
 the time of their delivery on board, and the master 
 is responsible to him for the safe delivery of the 
 cargo. Thus, where goods were shipped, and bills of 
 lading signed and transmitted to a factor, making 
 them deliverable to him, and it "was proved by 
 correspondence that it was the intention to vest the 
 jiroperty in the factor in security of previous 
 advances : it was held, that the factor had a special 
 property in the goods from the time of their delivery 
 on board, and that he could sue the master for their 
 non-delivery.^ 
 
 So, Avhere the London factors of a Newcastle 
 manufacturer had remonstrated with him on the state 
 of his account, and he had consigned goods to them, 
 specifically to meet a bill drawn on them, and trans- 
 mitted them a receipt signed by the mate of the ship, 
 acknowledging the goods to have been received on 
 board, to be delivered to them ; it was held, that the 
 appropriation of these goods was complete, and that 
 the shipowners were liable iu not delivering them to 
 the factors." 
 
 Thus, where a corn merchant m Langf ord, who had 
 
 ' AiuloiHou I'. Cliu-k, 2 Biug. 20. 
 
 = Evuus V. ^'icllol, 4 Scott, N.ll. 13 ; il L.J.C.r. U. 
 
 80
 
 63 1 INDORSEMENT TO RECOVER 
 
 been in the liabit of consigning com for sale to liis 
 factors in Liverpool, and obtaining their acceptances 
 on the faith of snch consignment, on 81st January 
 obtained from the masters of two canal-boats (No. 601 
 and No. 51) receipts for full cargoes of oats, as on 
 board their boats, deliverable to an agent in Dublin, 
 " in care for, and to be shipped to," the factors in 
 Liverpool ; at the time, boat 604 was loaded, but no 
 oats were then on board boat M. On 2nd Eebruary 
 the corn merchant forwarded these receipts to the 
 factors, and drew a bill on them for the value, which 
 they accepted and paid ; but, some days afterwards, he 
 gave a pressing creditor an order on the Dublin agent 
 to deliver to that creditor both the cargoes. Boat 601 
 had then sailed, but boatSli was only partially loaded, 
 and on their arrival in Dublin, the creditor took 
 possession of both cargoes. It was held, that 
 the cargo of boat 604i had vested in the factors, 
 and that they could maintain an action for delivery 
 of it to them ; but that they could not maintain such 
 action for the cargo of boat 54, since none of it was 
 on board, nor otlierwise specifically appropriated to 
 the factors when the receipt for that boat was granted 
 by the master.^ And where A., residing at Man- 
 chester, bought a quantity of oak-bark from B., at 
 Dumfries, to be paid for in cash, and to be shipped 
 " for delivery at Liverpool ;" and a bill of lading 
 deliverable to A., or assigns, and a draft for the 
 price payable on demand, were sent to Manchester 
 
 1 Bryans v. Nix, 4 M. & W. 775 } 8 L.J. Ex. 137.
 
 PREVIOUS ADVANCES. C3; 
 
 bankers to present the draft for acceptance. The 
 bai'k "was accordingly shipped and delivered at Liver- 
 pool to Avharfmgcrs and carriers, to he forwarded 
 l)y them to Manchester; hut the Manchester hankers, 
 being unable to find A., returned the bill of lading 
 and draft to B., who thereupon claimed the bark and 
 received it from the wharfingers ; it Avas held, that 
 under the circumstances, the property in the bark had 
 not passed to A., and that B. had a right to counter- 
 mand the delivery.^ 
 
 Althoui^h the vendor's intention may be that the Coi^i't'-inni 
 
 ~ *' lutfiitiou to 
 
 property in the goods shall not pass on shipment, p'^^^ property 
 
 and though he may therefore take a bill of lading 
 
 to his OAvn order, it is a common case that there is 
 
 a further intention on his part that as soon as the 
 
 intended buyer shall have performed some condition, 
 
 such as accepting or paying bills drawn against the 
 
 goods, they shall become his property. If this be 
 
 so, and if the vendor has only dealt with the bill 
 
 of lading with a view to securing performance of 
 
 the condition, the property in the goods may pass 
 
 to the buyer as soon as he has performed that, or 
 
 has been ready and has offered to perform it ; 
 
 although the bill of lading may be in llie hands 
 
 of a third person. Thus where the vendor shipped 
 
 under a bill of lading to his own order, and drew 
 
 bills on the purchasers (the plaintiil's) for the price, 
 
 intending that payment of the bills should be a 
 
 condition of delivery to them. The bills Avcre 
 
 ' Slicriaau r. The Now Quay Co., 4 Scott, N.S. CIS; 28 L.J.C.P. 58.
 
 C3G CONDITIONAL INTENTION 
 
 discounted "witli the defendants, and the hill of 
 lading was delivered to them with directions to give 
 it np to the plaintiffs on payment of the hill of 
 exchange. The plaintiffs offered to pay the hills 
 when they hecame due and to receive the hill 
 of lading ; hut the defendants, under the mistaken 
 belief that they had become liable for the freight, 
 refused the offer. Ultimately the defendants took 
 possession of the cargo and sold it. The plaintiffs 
 sued for loss which they had thereby sustained. It 
 was held, that they had acquired the property and 
 were entitled to sue.^ 
 
 Cotton, L. J., said '' Under a contract for sale of 
 chattels not specific, the property does not pass to 
 the purchaser unless there is afterwards an appro- 
 priation of the specific chattels to pass under the 
 * contract, that is, unless both parties agree as to the 
 specific chattels in which the property is to pass, 
 and nothing remains to be done in order to pass it. 
 In the case of such a contract the delivery by the 
 vendor to a common carrier, or (unless the effect 
 of the shipment is restricted by the terms of the 
 bill of lading) shipment on board a ship of, or 
 chartered for, the purchaser, is an appropriation 
 sufficient to pass the proj)erty. If, however, the 
 vendor, when shipping the articles which he intends 
 to deliver under the contract, takes the bill of 
 lading to his own order, and does so not as agent, 
 or on behalf of the purchaser, but on his own 
 
 1 Mirabita v. Imperial Ottoman Bank, L.R. 3 Ex. D. 164.
 
 TO 7M.W rnoPFnTY. GPA 
 
 l)ohalf, it is hold that ho thorchy rosorvcs to himself 
 a jiOAvcr of disposing of the property, and that 
 consequently there is no final appropriation, and 
 the projierty does not on shi2)ment pass to the 
 ])urchasers. Wlien the veudoi* on shipment takes 
 tlu^ hill of lading to his OAvn order, lie has the power 
 of ahsolntely disposing of the cargo, and may 
 prevent the purchaser from ever asserting any right 
 of property therein." 
 
 And that is the case, even though llie shipment 
 he in the purchaser's 0-^11 ship; ^ and although the 
 purchaser may have paid for the goods hefore they 
 "were shipped;- and may have contracted to huy all 
 goods of that kind so to he shii^ped.'' 
 
 But the question in each case is one of the 
 vendor's intention, and is not ahsolutely concluded 
 hy the form of the hill of lading. It may he shown 
 that the vendor in shipping was really acting as the 
 buyer's agent, although the hill of lading was made 
 to his own order.' And on the other hand, the 
 vendor may still slroAV that he did not intend to 
 part with the propo'ty, though he took a hill of 
 hiding, which in form made the goods deliverable 
 to the purchaser.^ And if that was so, he was still 
 the person to dispose of the hill of lading. 
 
 Cotton, L. J., continuing said : "If Ih • hill of 
 
 ' Turner v. Liverpool Dock Trustees, 20 L.J. Ex. 39^. 
 
 - Ellershaw i-. Maj^niac, G Ex. 570 /».; Gabarron r. Kreeft, L.R. 10 Ex.27 1. 
 
 3 Gabarron v. Kreeft, L.R. 10 Ex. 27-4. 
 
 ♦ Jovco r. Swnn, 17 C.R.N. S. 84 ; Brown v. ITare, 27 L.J. Ex. 372 ; 20 L.J. 
 Ex. G;" Co.ve V. ILirilcn, 4 Ea.st. 211. 
 
 = Mitchol V. Edo, 11 A. & E. SS8 ; Moakes v. Nicholson, 34 L.J.C.P. 273.
 
 638 CONDITIONAL INTENTION TO PASS PROPERTY. 
 
 lading lias been dealt with only to secure the con- 
 tract price, there is neither principle nor authority 
 for holding that in such a case the goods shipped 
 for the purpose of completing the contract do not, 
 on payment or tender by the purchaser of the 
 contract price, vest in him. When this occurs 
 there is a performance of the condition subject to 
 T\'hich the appropriation was made, and everything 
 which, according to the intention of the parties, is 
 necessary to transfer the property is done; and in 
 my opinion, under such circumstances, the property 
 does, on payment or tender of the price, pass to the 
 purchaser." 
 
 Eramwell, L. J., said: "If the plaintiffs had paid 
 and the defendants had accepted the amount of the 
 bill of exchange, can it be doubted that the property 
 would have vested in the plaintiffs ? "Why ? not 
 by any delivery ; none might have been made : the 
 defendants might have wrongfully withheld the 
 bill of lading. The property Avould have vested by 
 virtue of the original contract of sale. It follows 
 that it vested in tender of the price, and that, 
 whether the vendor's right was a right of property 
 or a, jus disponeiidi \ iQv whichever it was, it was 
 their intention that it should cease on the plaintiffs 
 paying the price, and therefore it would cease 
 unless, meanwhile, some title had been conferred 
 on a third person to something more than tlie price. 
 This, though wrongful as regards the plaintiffs, 
 would have been valid. But no such title exists 
 here."
 
 CONDITIONS ATTACHED TO SniPMENT. C39 
 
 Thougli the sliiimicnt be made, and bills of lading shipper may 
 taken to a consignee by name, the shipper and conduionsto 
 owner of the goods mav alter the bills of lading '^' '^'p^'"''- 
 or attach conditions to the shipment, at any time 
 before the bill of lading be transmitted, or the 
 goods delivered to the consignee named.^ 
 
 In a contract for the sale of a cargo of timber, it 
 was stipulated that the buyers should accept bills 
 on receipt of "all" the shipping documents. The 
 sellers Avere unable to supply more than three of 
 five jmrts of the bill of lading. In an actioii for the 
 price of the cargo the jury found that the insertion 
 of the word "all" had not altered the rights of the 
 j)arties, and, as the term "shipping document" had 
 only a wide and not a strict technical sense, the 
 sellers had been entitled to payment on furnishing 
 three out of the five parts of the bill of lading.- 
 
 If goods are shipped " free on board " by the 
 sellers to the purchasers, and a bill oC lading, 
 specially indorsed to the purchasers, is transmitted 
 to them, the property of the goods is in the latter, 
 and they are liable for the price, though the ship be 
 lost.^ 
 
 "VYhen goods are shipped to the order and " on 
 account and risk " of the consignee or purchaser, 
 to be paid for by bills to be drawn and accepted 
 for the amount, and not to be delivered until 
 such bills are accepted, the property of the goods 
 
 ' Bnico V. Wait, 3 'SI. Sc W. 15. 
 
 - Cederberg v. Borries Craig & Co., 2 Times, L.R, 201. 
 
 ' Bio\\-u r. Ilaie, 3 U. i X. 4S4; 29 L. J. Ex. U.
 
 640 SHIPPER MAY ATTACH 
 
 does not vest in the latter ; and in such case it is 
 likely the Captain ^vill he required to sign hills of 
 lading delivcrahle to the shipper's own order, hy 
 Avhom one part unindorsed is transmitted to the 
 consignee or purchaser to notify the shipment ; and 
 another part, indorsed, is sent to the consignor's 
 own agent, to he delivered when the hills are accepted. 
 In this case, therefore, the Captain ought not to 
 deliver the goods, unless to the holder of a hill 
 of lading specially indorsed, as has hcen decided 
 in Brandt v. Bowll)y,^ which was an action against 
 the shipowners for not delivering a quantity of 
 wheat according to the shipper's orders ; it was held, 
 that the property in the corn did not, upon the 
 shipment of the same, ahsolutely helong to the corn 
 merchant, hut only under the condition that the hills 
 were accepted, and that as these were not accepted, 
 the corn never helonged to the corn merchant, and, 
 therefore, that the plaintiffs w^ere entitled to recover 
 from the shipowners its value at the time it was 
 delivered to the corn merchant. 
 
 Where hy the hill of lading, goods are made 
 delivcrahle to the shipper, or his order, and not to 
 the consignee, the jus disponendi, or control over 
 the property in the goods shipped, remains with 
 the shippers, although the invoice states that the 
 goods were shipped "on account of, and at the 
 risk of," the consignee ; such statement heing not 
 conclusive, of itself, that the right to the possession 
 of, as well as the property in the goods, was intended 
 to he imconditionally passed to the consignee. 
 
 1 2 B. & Ad. 932,
 
 CONDITIONS TO THE SHIPMENT. 641 
 
 "Where the bill of lading, intlor.sctl in blank, was 
 sent to the consignee, accomjmnied ])y a bill of 
 exchange drawn against the cargo, for acceptance 
 by him : — Held, that it was the duty of the con- 
 signee, either to ajiprobate or reprobate the transac- 
 tion til tolo ; and that he could not accept the bill 
 of lading and the cargo, unless he also accepted the 
 bill of exchange for its value. Also, that it was 
 not necessary for the shipper to advise the consignee 
 expressly that he was not to use the bill of lading 
 luiless he accepted the bill of exchange.^ 
 
 Lord Cairns saying, " I hold it to be perfectly 
 clear that when a cargo comes protected by a bill 
 of lading and a bill of exchange, it is the duty of 
 those to whom the bill of lading and the bill of 
 exchange are transmitted in a letter, either "to 
 approbate or to reprobate" entirely and completely 
 then and there. If they accept the cargo and the 
 bill of lading, and accept the bill of exchange drawn 
 against the cargo, the object of those who shipped 
 the goods is obtained. They have got the bill of 
 exchan2:e in return for the cariro; thcv discount or 
 use it as they think proper ; and they are virtually 
 paid for the goods. But if, on the other hand, the 
 persons to whom the bill of lading is sent do not 
 refuse in toto the consignment of the goods, but 
 keep the bill of lading, but do not accept the bill 
 of exchange, then the agents of the foreign shippers 
 have neither the goods nor the money to deal with ; 
 
 » Shepherd f. llaniaon, L.K. 5 U.L. llGj lU L.J.Q.C. 14S. 
 Si
 
 642 SHIPPER 3IAY ATTACH 
 
 if tlicy had repudiated the transaction in toto the 
 agents of the shippers might have dealt with some 
 other house and raised money on the goods. I 
 therefore think that when one merchant in this 
 country sends to another, imder circumstances like 
 the present, a hill of lading and a hill of exchange, 
 it is not at all necessary for him to say in words, 
 ' We require you to take notice that our ohject in 
 enclosing these hills of lading and hills of exchange 
 is, that hefore you use the hills of lading you shall 
 accept the hills of exchange.' Merchants know 
 perfectly well what they mean when they express 
 themselves, not in the language of lawyers, hut in 
 the language of courteous mercantile communica- 
 tion; and I do not think that any merchant in 
 England receiving a hill of lading and a hill of 
 exchange under these circumstances, when he came 
 to reflect on the matter would feel any douht that 
 he could not retain the one without accepting the 
 other." 
 
 But if goods are shipped on the order of a 
 merchant, hy parties ahroad indehted to him, and 
 on hoard his own ship, the shippers at the time 
 telling the Captain that they helong to him, and 
 they advise the merchant that they have shij^ped 
 the goods for his account and risk, and send him 
 invoices in Avhicli they charge him a commission 
 on the amount, hut they induce the Captain to sign 
 hills of lading deliverahle to hlank or order, on the 
 assurance that it was immaterial, as they ^)crc to he
 
 cnxr)TTTnx,<^ to the STTrp}rEXT. c-is 
 
 (IcHvoi'od to liis ownoi", and one of those tliov for- 
 ward to their own agent in tliis country witli IjIUs 
 for the amount, wliicli tlie niereliant refuses to 
 accept, and, in conseciuence, the agent indorses the 
 hill of lading to a third party, by whom, and also hy 
 tlic merchant on arrival of the ship the goods arc 
 claimed ; in such a case it has been held that the 
 property vested in the merchant, and that, under the 
 circumstances, the Captain was justified in making 
 delivery to his employe^'/ 
 
 By an agreement in AAliich C. was described as 
 vendor, and P. as purchaser, C. agreed to ship a 
 cargo of ice, and on the same being shipped, to 
 forward to P. bills of lading, on receipt of wliicli 
 P. was to " take upon himself all risks and dangers 
 of the sea, &c. ;" P. agreeing also " to buy and 
 receive the ice on its arrival," taking the ice from 
 alongside the shij^, and paying for it in cash on 
 delivery at the rate of 20 S per ton, weighed on 
 board during delivery : — Held, that upon the true 
 construction of the agreement, the effect of the 
 clause as to risks and dangers of the seas was not 
 merely to save C. from liability for non-delivery, 
 but to bind P. to insiu*e the car";o on receivini]: the 
 bills of lading; and that the ship and cargo having 
 been lost on the voyage through jierils of the seas, 
 P. was liable to jiay C. the price or tlie value of 
 the cargo.- 
 
 ' Ogle V. Atkinson, 5 Taunt. 759. 
 
 « Castle V. Plnyford, L.K. 7 Ex. 98; 41 L.J. Ex.44.
 
 of the shipper. 
 
 644 EFFECT OF INDOBSEMENT TO AGENT, 
 
 Indorsement AYlien the liolclei' of the indorsed bill of lading is 
 the prope^ty^ merely the agent for the shipper, and has no other 
 'a"mere^agent° interest in the goods, the indorsement of the hill of 
 lading to him docs not pass the property ; and if the 
 master, "without knowledge of an indorsed hill, has 
 delivered them to order, or in terms of his bill of 
 lading, the holder of the indorsed bill has no action 
 against him for delivery. As where, on the order of a 
 correspondent in this country, goods were shipped on 
 account and at the risk of the consignee, to whom an 
 invoice and imindorsed bill of lading were trans- 
 mitted, informing him of the shipment, and that 
 he had been drawn on for the amount ; but, as a 
 precaution, an indorsed bill of lading was sent by 
 the shipper to his own agent, of which he did not 
 inform the consignee ; it was held, that the con- 
 signee having, upon the arrival of the ship, obtained 
 possession of the cargo by delivery from the captain, 
 though improperly, on the production of the un- 
 indorsed bill of lading, he had thereby become 
 absolute proprietor of the goods, and that the holder 
 of the indorsed bill of lading had no action against 
 him for delivery of them.^ And where goods were 
 shipped to order, on account and risk of the con- 
 signee, and an invoice and a blank indorsed bill of 
 lading were transmitted to him, and bills drawn on 
 him for the amount ; but another bill of lading was 
 sent by the shipper to his own agent, under which 
 
 > Coxc V. Harden, 4 East. 211; Moakes v. Nicholson, 3-i L.J.C.P, 273; 
 Brandt v. Bowlby, 2 B. & Ad. 932.
 
 WEEN CONSIGNOR MUST SUE. C45 
 
 lie obtained delivery of the goods, and refused to 
 give them up, miless npon immediate payment; 
 tlie consignee offered to accept the hills as drawn 
 at three months, and this being refused, he brought 
 an action against the agents for delivery of the 
 goods ; and it was held, that by delivery of the 
 goods to the Captain, on account and at the risk of 
 the consignee, to whom the invoice and ImU of 
 lading Avere transmitted, the property had passed 
 to him, and that he was entitled to the goods under 
 condition of acceptance of the bills.^ 
 
 AVlien goods are shipped in the name of the where 
 consignor to be delivered to a factor, or agent, or hag no 
 broker, who has himself no jn'operty in the goods, goods, 
 
 action for 
 
 and the Captain refuses to deliver them to him as damages 
 
 must be 
 
 such, he cannot brine? an action in his own name brought 
 
 ^ in the name or 
 
 for delivery of the goods, or for any damage they the consignor. 
 may have sustained, but such action must be in 
 the name of the consignor. As where, by a bill 
 of lading, the Captain was to deliver the goods for 
 the consignors, and in their name, to the consignee 
 ■ ^\\\o had no property in the goods : it was held, that 
 an action against the shipowners for damage done 
 to the goods must be brought in the name of the 
 consignors, although the consignee had insured the 
 goods and advanced the premiums of insurance 
 before the arrival of the shij).- But on the insol- 
 Yoncy of the consignee, the consignor can indorse 
 
 ' Wiilloy V. Jlontpomcrj-, 3 East. 583. 
 ' Sargent r. Morris, 3 B. & Aid. 277.
 
 to sue in tort. 
 
 G-IG WHEN OWNER MAY SUE IN TORT. 
 
 the bill of lading to liis agent, without value, in 
 order to cnahlc the agent to stop the goods in 
 transitu.^ 
 Right of owner Thc owuer of goods has the right, apart from 
 contract, to claim compensation from any person 
 ■who Avrongfully injures his goods, or deprives him 
 of them. Thus, an owner of cargo may have a 
 right to sue the shipowner, although not the holder 
 of the bill of lading ; for example, for improperly 
 stowing the goods in contact with others injurious 
 to them^ or for delivering them to some person who 
 was not entitled to have them.^ 
 
 Where goods have been shipped in fraud of their 
 owner, the shipowner cannot claim to detain them 
 as against him ; and, on the other hand, he is 
 discharged of his contract by a delivery to the true 
 owner.* 
 
 Where, however, goods have been shipped with 
 the consent of the owner, though not under contract 
 with him, he will not be in a position to claim 
 against the shipowner for the consequences of a 
 tortious act, if the shipowner is exempted from 
 liability for such acts by the contract. Thus, in 
 Delaurier v. AVyllie,^ the shipowners were not liable 
 to the owners of the iron in tort for negligently 
 destroying it, as the goods were on board with their 
 consent under a charter which excepted negligence. 
 
 ' Morison v. Gray, 2 Binp;. 2G0. 
 
 » J[ayn v. Culliffjrd, J..R. 4 C.P.D. 182. 
 
 '^ Schuster v. McKcllar, 26 L.J.Q.B. 281. 
 
 * Finlay v. Liverpool & G.W.S.S. Co., 23 L. T. 251. 
 
 '' 27 Sc. L. R, 148.
 
 RIGHT OF OWNER TO SUE IN TORT. Gt7 
 
 The Admiralty Court Act, 18(51, 2t Vict., c. 10, section 6, 24 Vict., 1861, 
 
 ... c 10 a. G 
 enacts — " The High Court of Admiralty shall have jurisdiction ' ' • • 
 
 over any claim by the owner or consignee or assignee of any bill 
 
 of lading of any goods carried into any poi-t in England or Wales 
 
 in any shij), for damage done to the goods, or any part thereof, by 
 
 the negligence, or misconduct of, or for any breach of duty, or 
 
 breach of contract on the part of the owner, master, or crew of the 
 
 ship, unless it is shown to the satisfaction of the court that at the 
 
 time of the institution of the cause, any owner or pai-t owner of 
 
 the ship is domiciled in England or Wales: provided always that 
 
 if in any such cause the plaintifl" do not recover 20?, he shall not 
 
 be entitled to any cost, charges, or expenses, incurred by him 
 
 therein, unless the judge shall certify that the cause was a fit one 
 
 to be tried in the said court. 
 
 This provision lias in view chiefly the case of 
 foreign vessels, but covers also the case of British 
 shijis similarly circumstanced, which, whatever 
 liability to the English resident had been incurred, 
 too often defied, by distance, the process of English 
 common law. Even within this narrow sphere there 
 is no maritime lien created by the section.^ All 
 beyond remains as before at common law. 
 
 The short delivery of goods brought to this 
 country in foreign ships, or their delivery in a 
 damaged state, was frequently a grievous injury for 
 which there was no practical remedy ; for the owners 
 of such vessels being resident abroad, no action 
 could be successfully brought againt them in a 
 British tribunal. To send the merchant "who had 
 sustained a loss to commence a suit in a foreign 
 tribunal, ^n'obably in a distant country, could not be 
 deemed a practical or elVectual remedy. AVitli a 
 
 ' The Two Ellens, L. Fv. 3 A. i E. 34u.
 
 6-i8 INDORSEMENT BY AGENT, 
 
 view to obviate a grievance so oppressive to British 
 merchants, the enactment contained in the 6th 
 section was passed. It was intended to operate by 
 enabling the party aggrieved to arrest the ship in 
 cases, where, from the absence of the shipowner in 
 foreign parts, the Common Law tribunals could not 
 afford effectual redress. And it has been held, that 
 the consignees named in a bill of lading are entitled, 
 under the above Statute, to sue for negligence in 
 the carriage of the goods, or for a breach of the 
 contract contained in the bill of lading, although 
 the property in the goods has not passed to them. ^ 
 Agent can If goods are consigned to a factor or agent, and 
 
 transfer the 
 
 property in the thc bill of lading Is iu lils uamc, he can indorse the 
 
 goods, by 
 
 indorsement, ])i\\ of lading f or a valuablc consideration, so as effec- 
 tor valuable ^ 
 
 consideration, tually to trausfcr tlic propcrty of the goods, or he can 
 pledge the bill of lading for advances, either original 
 or continued, provided the person honestly advanc- 
 ing the money has no notice that the agent is 
 thus acting fraudulently or without authority ; but 
 mere notice that the agent is not the owner, will not 
 affect the validity of the transaction. 
 
 It is often a matter of great nicety to determine 
 whether or not the vendor's purpose, or intention, was 
 really to reserve sijiis dlsponeMll. 
 
 There is no rule of law to prevent parties from 
 making whatever bargain they please. If they 
 use words in the contract showing that they intend 
 that the goods shall be supplied by the person who 
 
 ' The Neputcr, L.ll. :2 Adiu. 375; Tho rigliaMaggioro, L.R.2A(.liu, 106.
 
 INDORSEMENT BY AGENT. 6i9 
 
 is to supply them, on the terms that Avhen shipped 
 they shall be the consignee's property and at his 
 risk, so that the vendor shall be paid for them 
 whether delivered at the port of destination or not, 
 this intention is effectual. Such is the common 
 case where goods arc ordered to be sent by a carrier 
 to a port of destination. The vendor's duty is in 
 such cases at an end when he has delivered the 
 goods to the carrier, and if the goods perish in the 
 carrier's hands, the vendor is discharged, and the 
 purchaser is bound to pay him the jorice. See 
 Dunlop V. Lambert.^ If the parties intend that 
 the vendor shall not merely deliver the goods to 
 the carrier, but also undertake that they shall 
 actually be delivered at their destination, and 
 express such intention, this also is effectual. In 
 such a case, if the goods perish in the hands of the 
 carrier, the vendor is not only not entitled to the 
 price, but he is liable for whatever damage may 
 have been sustained by the purchaser in conse- 
 quence of the breach of the vendor's contract to 
 deliver at the place of destination. 
 
 Sometimes the sale of a cargo is made by the 
 bill of lading, and the condition imposed by the 
 contract on the vendor must be strictly complied 
 with, in order to enable him to enforce the bargain.^ 
 
 Where by the terms of a contract of sale the 
 vendor was to deliver to the purchaser a bill of 
 
 1 6 01. & Fin. 630. 
 
 ' Taiuvaco v. Lucas, 28 L.J.Q.B. 150, 301. 
 
 82
 
 G50 INDORSEMENT BY AGENT. 
 
 lading for the cargo which had been bought on the 
 purchaser's orders, it was held that the delivery of 
 the bill of lading within a reasonable time after its 
 receipt, and without reference to the unloading of 
 the cargo, was incumbent on the vendor, and that 
 the buyer was justified in rejecting the purchase 
 on the refusal to deliver the bill of lading. ^ 
 
 Where payment is to be made in cash in exchange 
 for the bill of lading, it would seem that it is the 
 duty of the seller to forward the bill of lading to 
 the buyer within a reasonable time after shipment 
 of the cargo, but it is not an implied condition of 
 such a contract entitling the buyer to reject the 
 goods, that the bill of lading shall be in the hands 
 of the buyer, or of his agent, before the arrival of 
 the ship.^ 
 
 Stoppage in transitu is so highly favoured, on 
 account of its intrinsic justice, that it has been 
 extended by the courts to quasi vendors : to persons 
 in a position similar to that of vendors.^ 
 
 The transfer of the bill of lading by the vendor 
 to his agent, vests a sufficient special property in 
 the latter to entitle him to stop in transitu in his 
 own name. This was held to be the law, even before 
 the Bills of Lading Act.* 
 
 The vendor of an interest in an executory agree- 
 ment may also stop the goods, as if he were owner 
 of them. ^ 
 
 J Barber v. Taylor, 5 M. & W. 527. 
 
 ^ Tcr Brett, M.R. in Sanders v. Maclean, L.R. 11 Q.B.D., 337. 
 
 " Feise r. Wray, 3 East. 93. * Morrison v. Gray, 2 Biug. 260. 
 
 * Jeukyns v, Usborne, 7 M. & G. 678.
 
 TXDOJlf^EME^T BY AGENT. Col 
 
 A principal consigning goods to ca factor has the 
 right of stoppage in transitu, on the latter hecoming 
 insolvent, even if the factor have made advances 
 on the faith of the consignment/ or have a joint 
 interest with the consi":nor.^ 
 
 The vendor's right of stoppage is exercised hy 
 liim at his peril, and the master of the sliip is bound 
 to give effect to it, unless he is aware of a legal 
 defeasance of the vendor's claim.'' 
 
 Notice of stoppage in transitu, given to a sliip- 
 owner is not effectual till it is communicated to the 
 master, but it imposes on the owner an obligation 
 to send it on with reasonable diligence, and if this 
 has been done, though the whole of a cargo cannot 
 be stopped because the bill of lading has been 
 transferred, the interest which still remains in the 
 vendee or his assigns, or in anybody else except 
 those who had become transfei'ees of the bill of 
 lading, may be stopped in transitu and become 
 vested in the original vendor. 
 
 Thus where the consignees of a cargo of goods 
 sold the cargo "to arrive" before the arrival of the 
 ship, to sub-purchasers. The original purchaser 
 having become bankrupt, the unpaid vendor gave 
 a notice of stoppage in transitu to the master, after 
 tlie sub-sales, and after a small part had been 
 delivered. The bill of lading had been indorsed to 
 
 > Kinloch v. Craig., 3 T.R. 119. 
 - Xcwsom V. Thoiniton, 6 East., 17. 
 
 3 The Tigress, 32 L.J. Ad. 97. See Glyn r. East & West India Dock Co., 
 L.R. 7 App. Gas. 591.
 
 BESEBVATION OF JUS DISPONENDL 
 
 a bank as security for an advance to tlie original 
 purchaser, and the consignees remitted the proceeds 
 of the sub-sales to the bank. 
 
 Held, that the vendor was entitled, as against 
 the trustee in the bankruptcy, to the balance of the 
 purchase-money after satisfying the claim of the 
 bank. ^ 
 
 The subject of the reservation of the jus dis- 
 ponendi is fully considered by Mr. Benjamin in his 
 work on Sale who prefaces his discussion of the 
 several cases with these preliminary observations : 
 " It has already been shown that the rules for 
 determining whether the property in goods has 
 passed from vendor to purchaser, are general rules 
 of construction adopted for the purpose of ascer- 
 taining the real intention of the parties, when they 
 have failed to express it. Such rules from their 
 very nature ca,nnot be applied to cases where excep- 
 tional circumstances repel the presumptions or 
 inferences on which the rules are founded. How- 
 ever definite and complete, therefore, may be the 
 determination of election on the part of the vendor, 
 when the contract has left him the choice of appro- 
 priation, the property will not pass if his acts show 
 clearly his purpose to retain the ownership, not- 
 withstanding such appropriation. 
 
 *'The cases wliicli illustrate this proposition arise 
 chiefly where the joarties live at a distance from 
 each other, where they contract by correspondence, 
 
 * Kemp r. Falk, 5 Asp. Mar. L.C. 1.
 
 RESERVATION OF JUS DTSPOXEXDT. Gu3 
 
 and where tlic vendor is desirous of sceurinp^ him- 
 self against tlic insolvency or default of the Iniyer." 
 
 After carefully rcvicAving all the leading cases 
 bearing on the subject, ]\Ir. Benjamin says : " The 
 following seem to be the principles established by 
 the foregoing authorities : — 
 
 Firstly . — "Wliere goods are delivered by the vendor 
 in pursuance of an order, to a common carrier for 
 delivery to the buyer, the delivery to the carrier 
 passes the property, he being the agent of the 
 vendee to receive it, and the delivery to him l)eing 
 equivalent to a delivery to the vendee.^ 
 
 Second 1 1/. — Where goods are delivered on board 
 of a vessel to be carried, and a bill of lading is 
 taken, the delivery by the vendor is not a delivery 
 to the buyer, but to the Captain as bailee for 
 delivery to the person indicated by the bill of 
 lading, as the one for whom they are to be carried. 
 This principle runs through all the cases, and is 
 clearly enunciated by Parke, B., in AYaitc r. Baker,' 
 by Byles, J., in Moakes v. Nicholson,^ by Bramwell 
 and Cleasby, B.B. in Gabarron v. Kreeft,* and by 
 Cotton, L. J., in Mirabita v. Imperial Ottoman 
 Bank.^ And the above two points were approved 
 as an accurate statement of the laAV by Lord 
 Chelmsford in Shepherd v. Harrison.*^ 
 
 1 Waite V. Baker, 2 Ex. 1 ; Dawca v. Peck, 8 T.R. 330 ; Button r. 
 Solomonson, 3 B. & P. 582; London & North Western Raihviiy Co. r. 
 Bartlett, 31 L.J. Ex. 92; Dunlop v. Lambert, 6 CI. & Fin. GOO; Cork Distil, 
 leries Co. v. Great Southern Ry. Co., L.R. 7 H.L. 2G0. 
 
 ''2EX. 1. 3 34 L.J.C.P. 273. * L.R. 10 Ex. 281, 285. 
 
 ' L.R. 3 Ex. D. 172. " L.R. 5 ILL. 116.
 
 654 BESETS VATION OF JUS DTSFONENDL 
 
 TMrdhj. — The fact of making the bill of lading 
 clclivcrable to the order of the vendor, is, when not 
 rebutted by evidence to the contrary, almost deci- 
 sive to 'show his intention to reserve the jus d'ls- 
 2)onendij and to prevent the property from passing 
 to the vendee.^ 
 
 Foiirthly. — Th.Q prima facie conclusion that the 
 vendor reserves the jus disjwneudi, when the bill 
 of lading is to his order, may be rebutted by proof 
 that in so doing he acted as agent for the vendee, 
 and did not intend to retain control of the property, 
 and it is for the jury to determine as a question of 
 fact, what the real intention was.^ 
 
 Fifthly. — That although as a general rule the 
 delivery of goods by the vendor, on board the 
 purchaser's own ship, is a delivery to the purchaser 
 and passes the property, yet the vendor may by 
 special terms restrain the effect of such delivery, 
 and reserve i\\QJus disponendl, even in cases where 
 the bills of lading show that the goods are free of 
 freight, because owner's property.^ And on a sale 
 of goods which are not specific, although the goods " 
 
 1 Wilmshurst v. Bowker, 2 M. & G. 792 ; Ellersliaw v. Magniac, 6 Ex. 570 ; 
 White V. Baker, 2. Ex. 1 ; Van Casteel v. Booker, 2 Ex. 691 ; Jenkyns v. 
 Brown, 14 Q.B. 496; Shepherd v. Harrison, L.R. 5 ILL. 116; Gabarron v. 
 Kreeft, L.R. 10 Ex. 274 ; Ogg v. Shuter, L.R. 1 C.P.D. 47; Ex parte Banner, 
 L.R. 2 Ch. D. 78. 
 
 2 Van Casteel v. Booker, 2 Ex. 691 ; Brown v. Hare, 29 L.J. Ex. 6 ; 
 Joyce V. Swan, 17 C.B.N.S. 84; Moakes v. Nicholson, 34 L.J.C.P. 273. 
 
 3 Turner v. Liverpool Dock Trustees, 6 Ex. 543 ; Ellershaw v. Magniac, 
 6 Ex. 570; Brandt v. Bowlby, 2 B. & Ad. 932; Van Casteel u. Booker, 
 2 Ex. 691; Moakes v. Nicholson, 34 L.J.C.P. 273; Palke u. Fletcher, 34 
 L.J.C.P. 146 ; Schotsman v. Lancashire & Yorkshire Railway Co., L.R. 2 Ch. 
 332; Gumm v. Tyrie, 33 L.J.Q.B. 97 ; in error, 34 L.J.Q.B. 124.
 
 RESERVATION- OF JUS DISPONENDI. 
 
 liave Ijccn delivered on board a ship of, or chartered 
 for, the purchaser, yet, in the absence of any appro- 
 priation of the goods in fulfilment of the contract 
 previous to shipment, the fact that the vendor has 
 taken a bill of lading, making the goods deliverable 
 to his own order, or that of a third person, will 
 prevent the property in them from passing to the 
 purchaser/ 
 
 SlxtJily. — That where a bill of exchange for the 
 price of goods is enclosed to the buyer for accept- 
 ance, together with the bill of lading, the buyer 
 cannot retain the bill of lading unless he accepts 
 the bill of exchange : and if he refuse acceptance 
 he acquires no right to the bill of lading or the 
 goods of which it is the symbol.^ And the vendor 
 may exercise his jus disponendi by selling or other- 
 wise disposing of the goods, so long at least as the 
 buyer remains in default.^ 
 
 SeventJily. — But although the vendor may intend 
 tlie transfer of the property to be conditional upon 
 the buyer's acceptance of the bill of exchange, yet, 
 if he puts into the post addressed to the buyer a 
 bill of lading making the goods deliverable to the 
 buyer's order, he thereby abandons all control over 
 the goods, and the property thereupon vests un- 
 conditionally in the buyer, and does not revest in 
 the vendor on the buyer's failure or refusal to 
 accept the bill of exchange.' 
 
 > Gabarron v. Krecft, L.R. 10 Ex. 274. 
 
 - Slicplicrd r. Harrison, L.R. 5 ILL. llGj Ogg V. Sliutor, L.K. 1 C. P. D. 
 47 ; llcw V. Payne, 53 L.T. 932. 
 
 3 Ogg V. Shutcr, L.K. 1 C.P.D. 17. 
 
 * E.xparto Banner, L.K. 2 Ch. D. 7b, tUsLiuguisLiiug Shepherd v. lluni. 
 sou, L.K. 6 U.L. 11(3,
 
 656 
 
 INDIAN LAW OF STOPPAGE IN TRANSIT. 
 
 Indian 
 
 Contract Act, 
 IX. of 1872. 
 S.S. 99—100. 
 
 Power of seller 
 to stop in 
 transit. 
 
 "SVlien goods 
 are to be 
 deemed in 
 transit. 
 
 Eighthly. — ^Wlien the vendor deals with tlie bill 
 of lading only to secure the contract price, as, e. g., 
 by depositing it with bankers who have discounted 
 the bill of exchange, then the property vests in the 
 buyer upon the payment or tender by him of the 
 contract price.^ 
 
 In India the law relating to stoppage in transitu 
 is contained in the following sections of the Indian 
 Contract Act (IX of 1872) :— 
 
 S. 99. A seller wlio lias parted -with the possession of the goods, 
 and has not received the whole price, may, if the buyer becomes 
 insolvent, stop the goods while they are in transit to the buyer. 
 
 S. 100. Goods are to be deemed in transit while they are in the 
 possession of the carrier, or lodged at any j)lace in the course of 
 transmission to the buyer, and are not yet come into the possession 
 of the buyer or any person on his behalf, otherAvise than as being 
 in possession of the carrier, or as being so lodged. 
 
 Illustrations. 
 
 {a.) B. living at Madras, orders goods of A., at Patna, and 
 directs that they shall be sent to Madras. The goods are sent to 
 Calcutta, and there delivered to C, a wharfinger, to be forwarded 
 to Madras. The goods, while they are in the possession of C, are 
 in transit. 
 
 (6.) B., at Delhi, orders goods of A. at Calcutta. A. consigns 
 and forwards the goods to B. at Delhi. On arrival there, they are 
 taken to the warehouse of B. and left there. B. refuses to receive 
 them, and immediately afterwards stops payment. The goods are 
 in transit. 
 
 (c.) B., who lives at Puna, orders goods of A. at Bombay. A. 
 sends them to Pun4 by C, a carrier appointed by B. The goods 
 arrive at Puna, and are placed by C, at B.'s request, in C.'s 
 warehouse for B. The goods are no longer in transit. 
 
 1 Mirabita v. Imperial Otloman Bank, L.R. 3 Ex. D. 104, determining 
 a point left undecided by Lord Cairns iu Ogg v. Sliutex', L.R. 1 C.P.D. 51 j 
 Benj. ou Sale, 4th Ed. 345, ct. seq.
 
 INDIAN LAW OF STOPPAGE IN TBANSIT. Co7 
 
 (d.) B., a mercliant of London, orders 100 bales of cotton of A. 
 a niercbant at Bombay. B. sends bis own sbip to Boiuljay for tbo 
 cotton. Tbe transit is at an end wben tbe cotton is delivf^-ed on 
 board tbe sbip. 
 
 (e.) B., a mercbant of London, orders 100 bales of cotton of A., a 
 niercbant at Bombay. B. sends his own sbip to Bombay for tbe 
 cotton. A. delivers tbe cotton on board tbe sbip, and takes bills of 
 lading from tbe master, making tbe cotton deliverable to A.'s order 
 or assigns. Tbe cotton arrives at London, but, before coming into 
 B.'s possession, B. becomes insolvent. Tbe cotton bas not been 
 paid for. A. may stop tbe cotton. 
 
 S. 101. Tbe seller's rigbt of stoppage does not, except in tbe Continuance 
 cases bereinafter mentioned, cease on tbe buyer's re-selling the gtoppajre*^ 
 goods wbile in transit, and receiving tbe price, but continues until 
 tbe goods ba%'e been delivered to tbe second buyer, or to some 
 person on bis bebalf . 
 
 S. 102. Tbe rigbt of stoppage ceases if tbe biiyer, baving Co^snHon of 
 
 obtained a bill of lading or otber document sbowing title to tbe ^^S^^ °° . , 
 
 . . ° assignment, by 
 
 goods, assigns it, wbile tbe goods are in transit, to a second buyer, buyer, of 
 
 wbo is acting in good faitb, and wbo gives valuable consideration showkrgtitlo. 
 for tliem. 
 
 Illustrations. 
 
 (a.) A. sells and consigns certain goods to B. and sends bim tbe 
 bill of lading. A. being still unpaid, B. becomes insolvent, and 
 wbile tbe goods are in transit assigns tbe bill of lading for cash to 
 C. wbo is not aware of bis insolvency. A. cannot stop tbe goods in 
 transit. 
 
 (h.) A. sells and consigns certain goods to B. A. being still 
 xmpaid B. becomes insolvent, and, wbile tbe goods are still in 
 transit, assigns tbe bill of lading for casb to C, wbo knows tbat B. 
 is insolvent. Tbe assignment not being in good faitb, A. may still 
 stop tbe goods in transit. 
 
 S. 103. "Wbereabill of lading or otber instrument of title to any How seller 
 
 goods is assigned by tbe buyer of sucb goods by way of pledge, to where ilistru- 
 
 secure an advance made specifically upon it, in cjood faitb. tbe °^''?* "*',*'*'•'' 
 
 ,, . . assigueJ to 
 
 seller cannot, except on payment or tender to tbe pledgee of tbe secure 
 
 advance so made, stoi) tbe goods in transit. epecifac 
 
 83
 
 C58 
 
 INDIAN LAW OF STOPPAGE IN TBANSIT. 
 
 Stoppage bow 
 effecteii. 
 
 Notice of 
 seller's claim. 
 
 Eight of seller 
 ou stoppage. 
 
 Illustrations. 
 
 (a.) A. sells and consigns goods to B. of the value of Rs. 12,000. 
 B. assigns tLe bill of lading for these goods to C. to secure a specific 
 advance of Rs. 5,000 made to liim upon the bill of lading by C. B. 
 becomes insolvent, being indebted to C. to the amount of Rs. 9,000. 
 
 A. is not entitled to stop the goods except on paymont or tender 
 to C. of Rs. 5,000. 
 
 {h.) A. sells and consigns goods to B. of the value of Rs. 12,000. 
 
 B. assigns the bill of lading for these goods toC, to secure the sum 
 of Rs. 5,000 due from him to C, upon a general balance of account. 
 B. becomes insolvent. A. is entitled to stop the goods in transit 
 Avithout payment or tender to C. of the Rs. 5,000. 
 
 S. 10-i. The seller may effect stoppage in transit, either by 
 taking actual possession of the goods, or by giving notice of his 
 claim to the carrier or other depositary in whose possession they 
 ai'e. 
 
 S. 105. Such notice may be given, either to the person who has 
 the immediate possession of the goods, or to the principal whose 
 servant has possession. In the latter case, the notice must be 
 given at such a time, and under such circumstances, that the 
 principal, by the exercise of reasonable diligence, may communicate 
 it to his servant in time to prevent a delivery to the buyer. 
 
 S. 106. .Stoppage in transit entitles the seller to hold the goods 
 stopped until the price of the whole of the goods sold is paid. 
 
 Illustration. 
 
 A. sells to B. 100 bales of cotton ; GO bales having come into B.'s 
 possession, and 40 being still in transit, B. becomes insolvent, and 
 A., b.nng still unpaid, stops the 40 bales in transit. A. is entitled 
 to hold the 40 bales until the price of the 100 bales is paid.
 
 APPENDICES
 
 IS & 10 VICT., CAT. CXI. 001 
 
 18 & 19 Vict., 1855, Cap. CXI. 
 
 An Act to amend the Law relating to Bills of Lading. 
 (lith August 1855.) 
 
 Abstract of the Enactments. 
 
 1. Riijhts under hills ofluding to vest in consignee or indorsee. 
 
 2. Not to affect right of stoppage in tratisita or claims for freight. 
 
 3. Bill of lading in hands of consignee, &c., conclusive evidence of 
 
 the shipment as against master, &-c. — Proviso. 
 
 By this Act, 
 
 After reciting that by the custom of merchants a bill of lading 
 of goods being transferable by indorsement, the j)ropcrty in the 
 goods may thereby pass to the indorsee, but nevertheless all rights 
 in respect of the contract contained in the Bill of lading continue 
 in the original shipper or owner, and it is expedient that such 
 rights should pass with the property : And that it frequently 
 happens that the goods in respect of which bills of lading purport 
 to be signed have not been laden on board, and it is proper that 
 such bills of lading in the hands of a bona fide holder for value 
 should not be questioned by the master or other person signing the 
 same on the ground of the goods not having been laden as 
 aforesaid, — 
 
 It is Enacted as follows : — 
 
 1. Every consignee of goods named in a bill of lading, and every 
 indorsee of a bill of lading to whom the property in the goods 
 therein mentioned shall pass, upon or by reason of such consign- 
 ment or indorsement, shall have transferred to and vested in him 
 all rights of suit, and be subject to the same liabilities in respect 
 of such goods as if the contract contained in the bill of lading had 
 been made with himself. 
 
 2. Nothing herein contained shall prejudice or affect any right 
 of stoppage in transitu, or any right to claim freight against the 
 original shipper or owner, or any liability of the consignee or 
 indorsee, by reason or in consequence of his being such consignee
 
 662 18 & 19 VICT., CAP, CXI. 
 
 or indoi'scc, or of liis receipt of the goods by reason or iu conse- 
 quence of sucli consignment or indorsement. 
 
 3. Every bill of lading iu the hands of a consignee or indorsee 
 for valuable consideration representing goods to have been shipped 
 on board a vessel shall be conclusive evidence of such shipment 
 as against the master or other person signing the same, notwith- 
 standing that such goods or some part thereof may not have been 
 so shipped, unless such holder of the bill of lading shall have had 
 actual notice at the time of receiving the same that the goods had 
 not been in fact laden on board : Provided, that the master or other 
 person so signing may exonerate himself in respect of such 
 misrepresentation by showing that it was caused without any 
 default on his part, and wholly by the fraud of the shipper, or of 
 the holder, or some person under whom the holder claims. 
 
 I
 
 ACT No, IX. OF ISuO. CG3 
 
 B ILLS OF LADIXG. 
 
 Act No. IX. of 1S5G. 
 
 (Received the assent of the Governor General on the 11th April 185(3.) 
 
 Recites expediency of the contract imssing, as well as the property, 
 h ij indorsement of hill of lading, and that shipi-master he hound hy 
 hills of lading in hands of hona fide holder, cdthoitgh goods not shipped. 
 
 1. Indorsee having property in the goods to have same henefit as 
 
 though named in the contract. 
 
 2. Not to prejudice stoppage in transitu or liahilities of shipper or 
 
 consignee. 
 
 3. Bill of lading in hands of indorsee for value, conclusive evidence 
 
 against Master, saving right of proof hy latter of fraud of 
 ahipper or holder. 
 
 An Act to amend the Law relating to Bills of Lading. 
 
 Whereas by the custom of Merchants a Bill of Lading of goods 
 
 T, , , being traiisferuble by indorsement, 
 
 Preamble. ° "^ ' 
 
 • the property in the goods may there- 
 by pass to the indorsee, but nevertheloss all rights in respect of the 
 contract contained in the Bill of Lading continue in the original 
 shipper or owner, and it is expedient that such i-ight should pass 
 with the jiroperty ; and whereas it frequently happens that the 
 goods in respect of which Bills of Lading purport to be signed have 
 not been laden on board, and it is pro^^er that such Bills of Lading 
 in the hands of a hona fide holder for value should not be question- 
 ed by the Master or other person signing the same, on the ground 
 of the goods not having lioon laden as aforesaid" : It is enacted as 
 follows : — 
 
 1. Every consignee of goods named iu a Bill of Lading, and 
 
 every indorsee of a Bill of Lading to 
 .o'l'fJ'l^.nSleo'o^CfJf::?^^ whon. the property in the goods 
 
 therein mentioned shall pass, upon
 
 664 ACT No, IX. OF 185G. 
 
 01" Ijy reason of sucla consignment or indorsement, shall have 
 transferred to and vested in him all rights of suit, and be subject 
 to the same liabilities in respect of sixch goods as if the contract 
 contained in the Bill of Lading had been made with himself. 
 
 II. Nothing herein contained shall prejudice or affect any i*ight 
 
 of stoppage in transitu, or any right 
 Not to affect riglit of stoppage ^^ ^^^^^ freight against the original 
 ^n transitu or claims tor treight. o o ... 
 
 shipper or owner, or any liability of 
 
 the consignee or indorsee by reason or in consequence of his being 
 such consignee or indorsee, or of his receipt of the goods by reason 
 or in consequence of such consignment or indorsement. 
 
 3. Every Bill of Lading in the hands of a consignee or indorsee 
 
 for valuable consideration, ]-epresen- 
 _ Bill of lading in hands of con- ^j ^^^ ^^ ^^^^ ^^^^^ shipped on 
 
 siguee, &c. conclusive evidence => ° -^ _- 
 
 of the shipment as against mas- board a vessel, shall be conclusive 
 
 °^' '°' of such shipment as against the 
 
 Master or other person signing the same, notwithstanding that 
 
 snch goods, or some part thereof may not have been so shipped, 
 
 unless such holder of the Bill of Lading shall bave had actual 
 
 notice at the time of receiving the same that the goods had not in 
 
 ^ . fact been laden on board. Provided 
 
 Proviso. 
 
 that the Master or other person so 
 
 signing may exonerate himself in respect of such misrepresen- 
 
 tation, by showing that it was caused without any default on his 
 
 part, and wholly by the fraud of the shipper, or of the holder, or 
 
 some person under whom the holder claims.
 
 .?/? ({• 40 VICT., CAT, XXXVL ^ 5?. CO' 
 
 CUSTOMS LAWS COXSOLIDATIOX. 
 
 39 .1 W) Vict., 187G, Cap. XXXYI. 
 
 An Act to consolidate the Customs Laws. 
 
 {2Wi July 1876.) 
 
 Section 52. The captain or other officer havin;^' the charge of 
 any ship (having cominis8ion from Her Majesty or from any foreign 
 state,) having on board any goods hiden in parts beyond the seas, 
 shall, on arrival at any port in the L^nited Kingdom, and before 
 auy part of such goods be taken out of such ship, or when called 
 upoii so to do by any officer of the customs, deliver an account in 
 writing under his hand to the best of his knowledge of the 
 quality and quantity of every package or parcel of such goods, and 
 of the marks and numbers thereon, and of the names of the 
 respective shippers and consignees of the same, and shall make and 
 subscribe a declaration at the foot of such account declaring to the 
 truth thereof, and shall also truly answer to the Collector or other 
 proper officer such questions concerning such goods as shall be 
 roquired of him, and on failure thereof such captain or other officer 
 shall forfeit the suuj of one hundred pounds ; and all siich ships 
 shall be liable to such searches as merchant ships are liable to, and 
 the officers of the Customs may freely enter and go on board 
 all such ships, and bring from thence on shore into the Queen's 
 warehouse any goods found on board any such ship as aforesaid, 
 subject nevertheless to such regulations in respect to ships of war 
 belonging to Her Majesty as shall from time to time be diivcted in 
 that respect by the Commissioners of Her Majesty's Treasury. 
 
 Section 53. The master of every ship arriving from parts beyond 
 the seas shall, at the time of making report, answer all such 
 questions relating to the ship, cargo, crew, and voyage as shall be 
 put to him by the collector oi- other proper officer ; and if he refuses 
 to answer, or does not answer truly, or if after the arrival within 
 four leagues of the coast of the United Kingdom bulk shall be 
 broken, or any alteration nuide in the stowage of the cargo of such 
 .=ilup so as to facilitate the unlading of any part of such cargo 
 before report of such ship and cargo, or if any part be staved, 
 destroyed, or thrown overboard, or any package be opened, unless 
 cai;se be shown to the satisfaction of the Commissioners of 
 Customs, in every such case the master shall forfeit the sum of cue 
 hundred pounds. 
 
 SI
 
 CGG XXV (f- XXVr VTCT., CA V. G!], 
 
 LIABILITY OF SHIPOWNERS. 
 
 (Part IX. — Merchant Shipping Act, 1854.) 
 
 Section 54. The owners of nny ship, Avlietber Biitisli or foreign, 
 shall not, in cases where all or any of the following events occur 
 without their actual fault or privity, that is to say, — 
 
 (1) Where any loss of life or personal injui-y Is caused to any 
 person being carried in such ship ; 
 
 (2) Where any damage or loss is caused to any goods, nier- 
 chandise or other things whatsoever on board any such ship ; 
 
 (3) Where any loss of life or personal injury is by reason of 
 the impi'oper navigation of such ship as aforesaid caused to any 
 person carried in any other ship or boat ; 
 
 (4) Where any loss or damage is by reason of the improper 
 navigation of such ship as aforesaid caused to any other ship or 
 boat, or to any goods, merchandise, or other things whatsoever 
 on board any other ship or boat ; be answerable in damages in 
 respect of loss of life or personal injury, cither alone or together 
 with loss or damage to ships, boats, goods, merchandise, or other 
 things, to an aggregate amount exceeding 15 lb. for each ton of 
 their ship's tonnage ; nor in respect of loss or damage to ships, 
 goods, merchandise, or other things, whether there be in addition 
 loss of life or personal injury or not, to an aggregate amount 
 exceeding 8 lb. for each ton of the ship's tonnage ; such tonnage to 
 be the I'egistered tonnage in the case of sailing ships, and in the 
 case of steam ships the gross tonnage without deduction on 
 account of engine room. In the case of any foreign ship which 
 has been or can be measured according to British law, the tonnage 
 as ascertained by such measurement shall, for the purposes of this 
 section, be deemed to be the tonnage of such ship. In the case of 
 any foreign ship which has not been and cannot be measured 
 nnder British law, the surveyor general of tonnage in the U. 
 K. and the chief measuring officer in any British posses- 
 sion abroad, shall, on receiving from or by direction of the 
 court hearing the case such evidence concerning the dimensions 
 of the ship as it may be found pi-acticable to furnish, give a 
 certificate under his hand, stating what would in his ojiinion hav<' 
 been the tonnage of such ship if she had been duly measured 
 according to British law, and tho tonnage so stated in such 
 cevtilicate shall, for the purposes of this siM/tion, Ix- deemed to be 
 the tonnage of such ship.
 
 62 & 6S VICT.y CAP. XLV. GOT 
 
 FACTORS ACT, 1889. 
 
 52 A 53 Vict., Cap. io. 
 
 An Act to amoid and consulidatc the Factors Ac's. 
 
 (30fh August 1889.) 
 
 Be it enacted by tlie Queeu's most Excellent Majesty, hy and 
 with the advice and consent of the Lords Spiritual and Temporal 
 and Commons, in this present Parliament assembled, and by the 
 authority of the same, as follows : — 
 
 Preluninanj. 
 
 1. For the purposes of this Act. 
 
 (1.) — The expression " mercantile agent" shall mean a mercantile 
 agent having in the customary course of his business as such agent 
 authority either to sell goods, or to consign goods for the purpose 
 of sale, or to buy goods, or to raise money on the security of 
 goods : 
 
 (2.) — A person shall be deemed to be in possession of goods or of 
 the documents of title to goods, where the goods or documents are 
 in his actual custody or are held by any other person subject to his 
 control or for him or on his behalf : 
 
 (3.) — The expression '" goods" shall include wares and mer- 
 chandise : 
 
 (t.')— The expression "document of title" shall include any bill 
 of lading, dock warrant, warehouse-keeper's certificate, and 
 warrant or order for the delivery of goods, and any other document 
 used in the ordinary course of business as proof of the possession 
 or control of goods, or authorising or purporting to authorise, either 
 by endorsement or by delivery, the possessor of the document to 
 transfer or i-eceive goods thereby repi'esented : 
 
 (5.)— The expression " pledge" shall include any contract 
 pledging, or giving a lien or security on, goods, whether in con- 
 sideration of an original advance or of any further or continuing 
 advance or of any pecuniary liability: 
 
 (6.) — The expression '"person" shall incU'dc any body of persouii 
 corporate or unincorporate. 
 
 Defiaitions.
 
 6B8 
 
 5,9 & 53 VICT., CAP. XLV: 
 
 Powers of 
 mercantile 
 agents with 
 respect to 
 disposition of 
 goods. 
 
 Effect of 
 pledges of 
 docunieiits 
 of title. 
 
 Pledge for 
 autccedcut 
 debt. 
 
 Eights 
 acquired by 
 exchange of 
 goods or 
 ducuuicuts. 
 
 Dispositions by Mercantile Agents. 
 
 2. (1.)— Where a mercantile agent is, with the consent of the 
 owner, in possession of goods or of the documents of title to 
 goods, any sale, pledge, or other disposition of the goods, made 
 by him when acting in the ordinary course of business of a 
 mercantile agent, shall, subject to the provisions, of this Act, be 
 as valid as if he were exin-essly authorised by the owner of the 
 goods to make the same ; provided that the person taking vmder 
 the disposition acts in good faith, and has not at the time of 
 the disposition notice that the person making the disposition 
 has not authority to make the same. 
 
 (2.) Where a mercantile agent has, with the consent of the 
 owner, been in possession of goods or of the documents of title to 
 goods, any sale, pledge, or other disposition, which would have been 
 valid if the consent had continued, shall be valid notwithstanding 
 the determination of the consent : provided that the person taking 
 under the dispositioai has not at the time thereof notice that the 
 consent has been determined. 
 
 (3.) Where a mercantile agent has obtained possession of any 
 documents of title to goods by reason of his being or having been, 
 with the consent of the owner, in possession of the goods repre- 
 sented thereby, or of any other documents of title to the goods, 
 his possession of the first-mentioned documents shall, for the 
 purposes of this Act, be deemed to be with the consent of the 
 o^^ier. 
 
 (4.) For the purposes of this Act the consent of the owaier shall 
 be presumed in the absence of evidence to the contrary. 
 
 3. A pledge of the documents of title to goods shall be deemed 
 to be a pledge of the goods. 
 
 '4'. Where a mercantile agent pledges goods as security for a 
 debt or liability due from the pledgor to the i^ledgee before the 
 time of the i^ledge, the i^ledgee shall acquire no further right to 
 the goods thp.n could have been enforced by the jiledgor at the 
 time of the pledge. 
 
 5. The consideration necessai-y for the validity of a sale, pledge, 
 or other disposition, of goods, in pursuance of this Act, may be 
 cither a payment in cash, or the delivery or transfer of other 
 goods, or of a document of title to goods, or of a negotiable
 
 o2 & 53 VtCT., CAP. XLV. 0(30 
 
 stciirity, or any ulli'-i- valiiahlo consulcnition ; but ^vllel•c floods 
 are pledged by a iiicrcantile agent in con.sidi'ration of tlic 
 delivery or transfer of other goods, or of a document of title 
 to goods, or of a negotiable security, the j^ledgee shall acquire 
 no right or intei'est in the goods so pledged in excess of the value 
 of the goods, documents, or security when so delivered or trans- 
 ferred in exchange. 
 
 (5. For the purposes of this Act an agreement made with a Atcipcmcuts 
 ,., . ., Ill ,1 , . , , throuL'li 
 
 mercantile agent through a clerk or other person authorised in the clerk, &c. 
 
 ordinary course of business to make contracts of sale or pledge on 
 
 his behalf shall be deemed to be an agreement with the agent. 
 
 7. (1) — Where the owner of the goods has given possession of rrovisions as 
 the goods to another person for the pui-pose of consignment or ^'^ conoignuis 
 sale, or has shipped the goods in the name of another person, consignees. 
 aud the consignee of the goods has not had notice that such 
 person is not the owner of the goods, the consignee shall, in 
 respect of advances made to or for the use of such person, have 
 the same lien on the goods as if sueli person were the owner of 
 the goods, and may transfer any such lien to another person. 
 
 (2.) Nothing in this section shall limit or affect the validity of 
 any sale, pledge, or disposition, by a mercantile agent. 
 
 Dis2')ositio)i by Sellers and Bayers of Goods. 
 
 8. Where a person, having sold goods, continues, or is, in rispositlon 
 possession of the goods or of the documents of title to the "y **'■.'''.'■ . 
 goods, the delivery or transfer l)y that person, or l>y a nier- possession. 
 cantile agent acting for him, of the goods or documents • of 
 title under any sale, pledge, or other disposition thereof or under 
 any agreement for sale, pledge, or other disposition thereof, to any 
 person receiving the same in good faith and without notice of the 
 previous sale, shall have the same effect as if the person making 
 the delivery or transfer were expivssly authorised by the owner of 
 the goods to make the same.
 
 070 
 
 o2 & 63 VICT., CAP. XLV. 
 
 Dispositiou 
 buyer 
 obtaiuing 
 Ijosscssion. 
 
 l^y 0. Where a person, liavinj^ bought or agreed to l)uy goods, 
 obtains with the consent of the seller possession of the goods, or 
 the documents of title to the goods, the delivery or transfer, by 
 that person or by a mercantile agent acting for him, of the goods 
 or documents of title, imder any sale, pledge, or other disposition 
 thereof, or under any agreement for sale, pledge or other disposition 
 thereof, to any person receiving the same in good faith and 
 without notice of any lien or other right of the original seller 
 in respect of the goods, shall have the same elfect as if the person 
 making the delivery or transfer were a mercantile agent in pos- 
 session of the goods or dociimeuts of title with, the consent of the 
 owner. 
 
 Effect of 
 trans- for of 
 documeuts ou 
 vendor's lien 
 or right of 
 stoppage in 
 trausitu. 
 
 10. Where a document of title to goods has been lawfully 
 transferred to a person as a buyer or owner of the goods, and 
 that person transfers the document to a person who takes the 
 document in good faith and for valuable consideration, the last- 
 mentioned transfer shall have the same effect for defeating any 
 vendor's lien or right of stoppage in transitu as the transfer of 
 a bill of lading has for defeating the right of stoppage in transitu. 
 
 SnpiAcmental. 
 
 Mode of 
 
 tranisferriuj 
 
 documeuti. 
 
 Saving for 
 riglits of true 
 owner. 
 
 11. For the purposes of this Act, the transfer of a document 
 
 may be l)y indorsement; or, where the document is by custom 
 
 or Ijy its express terms transferable by delivery, or makes the 
 
 goods deliverable to the beai-er, then by delivery. 
 
 12 — (1) Nothing in this Act shall authorise an agent to exceed 
 or depart from his authority as between himself and his principal, 
 or exempt him from any liability, civil or criminal, for so doing. 
 
 (2) Nothing in this Act shall prevent the owner of goods from 
 recovering the goods from an agent or his ti-ustee in bankruptcy 
 at any time before the sale or pledge thereof, or shall prevent the 
 owner of goods pledged by an agent from having the right to 
 redeem the goods at any time before the sale thereof, on satisfying 
 
 k
 
 rjo & rj.') VTCT., CAP. XLV. en 
 
 tlio claim for wliieli tho goods wore plodgoil, and paying; to the 
 agent, if liy him required, any money, in respect of which tho agent 
 wonid by hiw l)e entitled to retain the goods or the documents of 
 title thereto, or any of them, Iiy way of lien as against the owner, 
 or from recovering from any pei'son with whom the goods have 
 been pledged any balance of money remaining in his hands as the 
 produce of the sale of the goods after deducting the amount of his 
 lien. 
 
 (o) Xotliing in this Act shall prevent the owner of goods sold 
 by an agent fi'oni recovering from the buyer the price agreed to be 
 paid for the same, or any part of that price, subject to any right 
 of set off on the part of the buyer against the agent. 
 
 !.*>. Theprovisionsof this Act, shall be constriTcd in amplification o • r 
 '^ ^ Savinp for 
 
 and not in derogation of the powers exerciseable by an agent coimuon law 
 independently of this Act. ageut ^ °
 
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 FORMS OF BILLS OF LADING. 
 
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 XXV 
 
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 XXVI 
 
 FORMS OF BILLS OF LADING. 
 
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 FORMS OF BILLS OF LADTXO. xxix 
 
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 FORMS OF BILLS OF LABTXa. 
 
 
 
 
 
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 FORMS OF BILLS OF LADING. 
 
 XXXI 
 
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 xxxii FOimS OF BILLS OF LADING. 
 
 
 
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 ixxiv F0R3I8 OF BILLS OF LADING. 
 
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 Ph o ^ ^p, ?^ ° ° " S -1 i» & S o o ^ a p, 5 
 
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 FORMS OF BILLS OF LADING. xxxv 
 
 J £ II § ^- £ i; ; 1 1 i M I „- § |-B I -: I « I § ^ : 1 1 - 
 
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 ^ I? ^ I £ or o -S 2 ^ ^ g -^ J i ^ J I i- 1 a ^ ^ t ^ I > i S 3 t 
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 S - II 1 I S I J I i ^ o I I II - ^ I 5 "^ -I .^ 2 . > 3 5 J t 
 
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 SxxtI forms of bills OF LADING. 
 
 •XI i : c I - -J I ^ -I Ji I § 's ? c-ii i -f ^ 1 6 ^ -.-I -g 1 I 
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 S I i I ? I : b' ll^ -i i "^ I 5 I I- a ^ i I i i II -I -I ;S 
 
 g I ^ I .c J 1 1 1 s ^ 1 1 ^ I « g -II n i ^ I -^ i -f I J ^ 
 
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 1- 1^1 § ill M^:^l|lg^! s^lti^l .i|^l 
 
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 "s I i "^ "S ^ § !i -S) s 'i i -2 I .2 ^
 
 FORMS OF BILLS OF LADIXO. 
 
 xxxyii 
 
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 CO Tt»aot-io6oi2rt^ 2
 
 Ixxiv FORMS OF BILLS OF LADING. 
 
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 -»^-*J J.--*^5icS .J+3 I. .jJOjjoi '.So '. O .c.-::;c>
 
 FORMS OF liJLLS OF LADING, 
 
 Ixxv 
 
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 33 
 
 INDEX. 
 
 Abandonment page 
 
 of vessel, excuses payment of freight 277 
 
 Acceptance 
 
 of goods on riuay, or alongside, renders shipowner responsible. 
 
 Accident 
 
 collision is presumed to be, where doubt exists 'i'-2 
 
 Accidents 
 
 from machinery ^^'^ 
 
 peculiar to the sea, carrier not liable for 422 
 
 Acids 
 
 damage to goods by . . . ... ... ... • • . • • • ■ • • '*^-> 
 
 when shipped, should be declared ... ... ... ... ••• 451 
 
 Act of God 
 
 definition of ... ... ... ... ... ... • • • ■ ■ • ^'-^ 
 
 differs from perils of the sea ... ... ... ... • • ■ 485 
 
 Action 
 
 may be brought either against the shipowner, or master, on 
 
 bill of lading 44 
 
 Acts of the Legislative Council of India 
 
 9 of 185G— Indian Bill of Lading Act 4,50,663 
 
 3 of 1865— Indian Carriers' Act 123 
 
 9 of 1872— Indian Contract Act 35, 51, 122, 123, 210, 656 
 
 12 of 1875— Indian Ports Act 9 
 
 8 of 1878— Indian Customs' Act 67,501 
 
 1 of 1879— Indian Stamp Act, s. 16 8,14 
 
 7 of 1880— 153 
 
 1 of 1SS7— 153 
 
 9 of 1800— Railways Act 00,123 
 
 Adjustment 
 
 of average, in case of deck cai'goes... . . ... ... ... SbO 
 
 Admiralty Court 
 
 jurisdiction of, in cases of short delivery ... ... ... m. 64:7 
 
 Admissibility 
 
 of evidence, to explain bill of lading 54,63 
 
 1
 
 Ixxviii 
 
 INDEX. 
 
 Advances 
 
 cannot be deducted in assessing damages for non-deli\'ei7 
 
 made in the nature of fi-eight 
 
 cannot be recovei*ed ... 
 
 master has no lien for 
 
 indorsement on bill of lading to recover ... 
 
 freiglit not included in general hypothecation of freight 
 Agent 
 
 bill of lading signed by 
 
 authority of, to sign bills of lading ... 
 
 master is not, of owner, to sign for goods not received... 
 
 signing bills of lading, personal liability of 
 
 effect of signing bills of lading as ... 
 
 cannot bind ovraer, or charterer, for greater qiiantity than 
 shipped 
 
 of owner, may appoint new master. . . 
 
 when master is, for owner of cargo 
 
 j)roperty does not pass to, by indorsement ... 
 
 may transfer jiroperty in goods by indorsement for valuable 
 consideratioti 
 
 Alongside 
 
 delivery of goods 
 
 and/or ... 
 Animals 
 
 when shipped without any bill of lading ... 
 
 injury to, in a storm, is a peril of the sea. . . 
 
 loss of, or injury to ... 
 Application 
 
 to enter vessel may be refused, if the bill of lading is not 
 produced 
 
 Arrival of ship 
 
 notice of, to consignee, when not necessary 
 
 when necessary 
 Assignee 
 
 is estopped by rate of freight stated in bill of lading ... 
 
 when liable to pay demurrage 
 
 of goods, must take delivei'y within a reasonable time ... 
 
 may stop goods in transitu, whilst in quarantine 
 
 rights and liabilities of, under the Statute 
 Assignment 
 
 of mate's receipts 
 
 of no avail without notice to the party to 1:)C boiiud 
 
 of goods without truuyf er of the bill of lading 
 
 PAGE 
 
 255 
 297 
 550 
 633 
 60i 
 
 23, 53 
 23 
 33 
 
 45, 47 
 49 
 
 62 
 
 161 
 
 236, 444 
 
 644 
 
 648 
 
 140 
 172 
 
 518 
 486 
 613 
 
 67 
 
 159 
 530 
 
 54 
 314 
 521 
 538 
 611 
 
 16 
 
 16 
 
 613
 
 IX DE X . Ixxix 
 
 Assortment of goods page 
 
 wliL'U nuister is bound to attoiid to .. .. ., ... ... 442 
 
 at merchants' risk . . ... ... o77 
 
 AUTHENTICATIOX 
 
 of bill of liidin;^' ncfi'ssavy, in an action on tho polioy TtS 
 
 Authority 
 
 of master to sign bills of lading ceases upon his signing one sot. . . 30, 32 
 
 of master to sign, subject to limitations ... ... ... ... 34 
 
 to sign for shipowner and charterer ... ... ... ... 40 
 
 continues until notice of change of ownership ... ... ... 6G 
 
 Auxiliary Screw 
 
 steamer must be propelled by steam as far as possible 154 
 
 Average accustomed 293 
 
 Average 
 
 general, definition of . . . ... ... ... ... ... ... 395 
 
 particular, definition of ... ... ... ... ... ... 396 
 
 place and time of ad.justmcnt ... ... ... ... ... 396 
 
 security for contribution ... ... ... ... ... ... 403 
 
 to be adjusted according to the York- Antwerp Rules ... ... 406 
 
 Baltic Clause 310 
 
 Barge 
 
 is not included in the definition of ship I'jG 
 
 Barratry 
 
 meaning of ... ... ... ... ... ... ... ... 348 
 
 includes every species of fraud in relation of the master to his 
 
 owners 349 
 
 in the sense of policies can only be against the shipowner ... 350 
 to constitute, must be without the knowledge or consent of the 
 
 sh ipowner ... ... ... ... ... ... ... ... 3,50 
 
 where part-owner sells the ship and misappropriates proceeds. 351 
 
 is a felony, and punishable as such... ... ... ... ... 351 
 
 carrying passengers contrary to the Kidnapping Act is ... 354 
 
 deviation for fraudulent purpose i.s ... ... ... ... 351 
 
 Beer 
 
 stowage of, amongst coals ... ... ... ... ... ... 410 
 
 Berth 
 
 meaning of safe ... ... ... ... ... 106 
 
 Bill of Lading 
 
 its nature ... ... ... ... ... ... ... ... 1 
 
 by whom signed ... ... ... ... ... ... ... 1 
 
 represents the property for wliiili it is given .. ... ... 4 
 
 date of, is material ... ... ... ... . ... ... 4
 
 Ixxx 
 
 TX DE X . 
 
 Bill of Lading — continncd. 
 
 must not be ante-datecl 
 
 definition of 
 
 operation of 
 
 form of . . . 
 
 addition may be made to the usual clauses 
 
 mai'ginal notes in 
 
 stamp on 
 
 must be stamped before execution ... 
 
 exemption of, from stamp 
 
 copies of, need not be stamped 
 
 master should not sign copies 
 
 clean bill of lading 
 
 in sets ... 
 
 should be signed only on production of the mate's receipts 
 
 master is bound to sign 
 
 master may sign, under reservation 
 
 master to sign as presented ... 
 
 course where master refuses to sign 
 
 effect of signing per procuration ... ... ... ... 23, 45 
 
 covers goods from time of shipment 
 
 contract of, to carry with reasonable care 
 
 broker's signature to ... 
 
 title to . . . 
 
 master's right to copy of 
 
 eflect of master, who is also charterer, signing 
 
 master cannot legally sign two sets of, for the same goods 
 
 master cannot legally sign for goods not on board 
 
 when signed on i^roduction of Dock Co.'s receipts 
 
 though obtained by fraud, is binding, if signed by master 
 
 under his authority .. . 
 must be presented by shipper for signature ... ... 2 
 
 when revocable ... 
 
 master may refuse to sign, when differing from charter-party 
 
 master's signature to, binds shipowner ... 
 
 personal liability of parties signing 
 
 effect of, as evidence ... 
 
 is jprma/acie evidence, but not conclusive ... ... 54, 
 
 may be corrected by evidence of the real facts ... 
 is only prima facie evidence that the property is in the holder 
 is no evidence in action on the policy without authentication 
 is not evidence of an insurable interest in the goods ... 
 in hands of consignee, or indorsee for value 
 
 1. 
 
 I-AGE 
 
 5 
 
 7 
 4 
 7 
 7 
 7,232 
 8 
 
 10 
 10 
 10 
 
 226 
 11 
 16 
 19 
 20 
 20 
 22 
 
 ,49 
 2 
 
 133 
 25 
 
 249 
 28 
 29 
 30 
 32 
 33 
 
 47 
 
 1, 
 
 26. 
 
 )0, 
 
 20 
 
 418 
 
 36 
 
 39 
 
 40 
 
 44 
 
 54 
 
 225 
 
 228 
 
 58 
 
 58 
 
 58 
 
 58
 
 Tx dt: X , 
 
 Ixxxi 
 
 PAGE 
 
 58, 
 
 140 
 
 
 60 
 
 
 67 
 
 1.J2. 
 
 137 
 
 14.'], 
 
 225 
 
 
 150 
 
 
 1.59 
 
 
 314 
 
 
 561 
 
 
 565 
 
 1, 4, 
 
 618 
 
 
 631 
 
 ... 
 
 418 
 
 
 537 
 
 502, 
 
 505 
 
 Bill of labino — cnntinued. 
 
 when conclusive ufjainst the master 
 
 not effected l>y sale of ship without notice 
 
 delivery "of, on arrival, to Custoius'-Collector 
 
 construction of... 
 
 is evidence of the shipment of goods 
 
 must bear the shipper's name 
 
 production of, necessary, before payment of insurance... 
 
 condition in, for payment of demurrage ... 
 
 to be ^'ivi'n up, before delivery of the cargo 
 
 continues in force ixntil delivery is made... 
 
 indorsement of... 
 
 bolder of, without notice not affected 
 
 stipulations on, binding on shipper 
 Bill of health 
 
 granting of 
 
 Bleeding OF sacks 
 
 Blockade 
 
 Avhat constitutes 
 Boats 
 
 damage to goods in ... 
 
 Boilers 
 
 damage occasioned by defect in 
 
 Bottomry 
 
 principles of 
 
 contract of, governed by the law of the flag 
 
 master may pledge owner's credit for necessaries 
 
 when master ma.> hypothecate freight, ship and cargo 
 
 contract must be in writing ... 
 no form necessary for bond ... 
 freight may be hypothecated in same way as ship 
 
 advance freight not included in general hypothecation of 
 
 freight 
 
 subsequent freight cannot be included in the bond 
 
 before effecting hypothecation master must communicate with 
 
 owner if possible ... ... • •■ •■■ ••• "'^'*> "^' 
 
 hypothecation when made without communicating with owner 
 
 when invalid t!"'% '^'"'^5 
 
 master must consider interests of all concerned 607 
 
 if possible to make repairs before proceeding, master must 
 
 do so 607 
 
 question of reasonable necessity, one for the jury COS 
 
 ... .534 
 
 ... 434 
 
 ... 361 
 
 ... 603 
 
 136, 609 
 
 ... 603 
 
 . . . 603 
 
 ... 604 
 6(13 
 
 ... 604 
 
 6U4 
 6(4
 
 Ixxxii 
 
 INDEX. 
 
 Breakage 
 
 tlie exception applies only to that of tlie articles themselves 
 
 of chain used to discharge cargo ... 
 Broker 
 
 signing hills of lading per procuration 
 
 is not agent of shipowner to sign bills of lading 
 Bulk 
 
 freight payable for goods in... 
 
 carrying grain in 
 
 Bullion 
 
 declaration of, at time of shipment 
 Bursting of bags 
 
 from swelling of grain 
 By a. B. (the shipper) 
 
 meaning of 
 Cabin 
 
 freight for goods stowed in . . . 
 Calendar month 
 
 is meant, where the contract is for a month 
 Calling 
 
 at intermediate ports ... • 
 
 Canal 
 
 when blocked, duty of master 
 Capture of prizes 
 
 when justifiable 
 Capture of vessel 
 
 when not a peril of the sea 
 
 entering ])lockaded port 
 Cargo 
 
 in bulk 41^ 
 
 damage to, on quay or alongside ... 
 
 bills of lading cannot be legally signed for, when not on board 
 
 must be delivered to persons authorised to receive it ... 
 
 must be discharged to lighten vessel if unable to enter port 
 
 delivery of, subject to the exceptions in the bill of lading 
 
 must be delivered in good order and condition 
 
 what constitutes a delivery of 
 
 shipped without the master's knowledge is lialile to freight 
 
 full and complete, what is ... 
 
 of diii'erent descriptions, freight for 
 
 improper collocation of ... ... ... ... ... 374, 447, 646 
 
 average adjustment of deck ... ... ... ... ... ... 378 
 
 PAGE 
 4.39 
 35.5 
 
 1, 25 
 
 283 
 503 
 
 502 
 
 149 
 
 283 
 
 281 
 
 191 
 
 173 
 
 420 
 
 489 
 535 
 
 503 
 242 
 32 
 139 
 182 
 232 
 235 
 240 
 262 
 279 
 281
 
 IN D E X . Ixxxiii 
 
 Cargo — contimad page 
 
 short delivery of ... ... ... ... ... ... ... 417 
 
 lost in collision, damages for ... ... ... ... ... 423 
 
 on delinquent vessel, cannot be attached for damages in 
 
 collision ... ... ... ... ... ... ... ... 425 
 
 if damaged, may not be taken on merely to earn freight ... 4-l<J 
 
 delivery of, releases master of liability ... ... ... ... 457 
 
 may be landed and warehoused, if not taken delivery of ... 518 
 
 divided into three classes for purposes of (juarantine 541 
 
 value of, in general average ... ... ... ... ... ... 412 
 
 (juantity of, to be delivered per diem ... ... ... ... 591 
 
 when and how it may be hypothecated 603 
 
 Carrier 
 
 not liiible for value of undeclared goods 120,121 
 
 must prove that goods were damaged before shipment... ... 146 
 
 not responsiljle for ordinary wear and tear, or inherent vice of 
 
 cargo 205,442 
 
 not liable for loss arising from the act of God ... ... ... 320 
 
 not liable for accidents peculiar to the sea ... ... ... 422 
 
 Carriers' Act, 1 Wm. IV. s. 68 120,124 
 
 Carriei's' Act Indian 3 of 1865 ... ... ... ... ... 128 
 
 Cats on board 
 
 do not exonerate master from damage by rats 413 
 
 Cattle 
 
 carriage of, with through tickets ... ... ... ... ••• l'*l 
 
 freight payable on dead, as well as li\ing 271 
 
 loss of, or injury to ... ... ... ... ... ... 137, 513 
 
 Certificates 
 
 admitting vessels to pratique ... ... ... . • ■ ^^ ' » 531) 
 
 Chafing 
 
 does not include breakage ... ... ... ... ... . . 430 
 
 Chafing of goods 
 
 master not liable for the ordinary ... ... ... ... ... 235 
 
 Charterer 
 
 when also master, signing bills of lading... ... ... ... 20 
 
 when, may relaud goods at port of shipment ... ... ... 37 
 
 effect of, signing bills of lading as agent for the owner ... 46 
 
 not bound for greater quantity than shipped ... ... ... 62 
 
 may refuse to load a vessel not named in the charter-party ... 15t3 
 
 liable for not loading a full and complete cargo. . , ... . . 270 
 
 of a general ship, entitled to the freight 200
 
 Ixxxiv INDEX. 
 
 Charter-party page 
 
 effect of, cliroctin,2; bills of lading to be signed as presented ... 20 
 
 binds persons -with notice of it ... ... ... ... ... 38 
 
 does not bind shipper -svithoiit notice of it 39 
 
 f reiglit payable as per 253 
 
 conditions as per 306 
 
 Christmas-day is not a working day 320 
 
 Claim 
 
 when to be made at port of discharge 91,99,592 
 
 Clauses 
 
 in bill of lading, effect of 58 
 
 clean bill of lading 226 
 
 Clerk 
 
 signing bills of lading ... ... ... ... ... ... 23 
 
 Coals 
 
 stowage of cargo amongst ... ... ... ... ... ... 416 
 
 may not be iised as dvinnage ... ... ... ... ... 416 
 
 Coble 
 
 included in definition of a ship ... ... ... ... ... 155 
 
 Cockroaches 
 
 injury to goods by ... ... ... ... ... ... 415,489 
 
 Collision 
 
 effect of, in Suez Canal ... ... ... ... ... ... 175 
 
 causes of ... ... ... ... ... ... ... ... 421 
 
 mere happening of, no evidence of negligence ... ... ... 422 
 
 when i^resumed to be an accident ... ... ... ... ... 422 . 
 
 cross-action in cases of ... ... ... ... ... ... 422 
 
 when accidental, is a peril of the sea ... ... ... ... 422 
 
 owner of goods may recover damages for ... ... ... ... 424 
 
 damages, in case of, how estimated ... ... ... ... 426 
 
 in case of foreign ship ... ... ... ... ... ... 428 
 
 when not the result of negligence, is a peril of the sea ... ... 486 
 
 when caused by negligence, is not a peril of the sea ... ... 488 
 
 Collocation 
 
 of different goods 147, 236, 372, 447, 449, 646 
 
 Common carriers 
 
 Shipowners sa'Q jprima facie .. . ... ... ... ... ... 232 
 
 definition of ... ... ... ... ... ... ... ... 233 
 
 liability of, for goods destroyed by fire ... ... ... ... 362 
 
 liability of, where goods are transhipped ... ... ... ... 428 
 
 of goods, not necessarily cai-riers of money, or bank bills . . . 508 
 
 in India are governed by English principles 123
 
 IN DE X . 
 
 Ixxxv 
 
 Compensation page 
 
 where master refuses to sign bills of lading .. • • • • '-- 
 
 where shipper Joes not present bills of lading for signature ... 35 
 
 Compulsory Pilotage 206 
 
 in Suez Canal, effect of 175,179 
 
 Computation 
 
 of time for payment of freight ... ... . . ... ... 280 
 
 for ascertaining demurrage ... ... ... ... ... ... 317 
 
 Conditional intention 
 
 to pass the property ... ... ... ... ... ... ... 635 
 
 Conditions 
 
 when unreasonable ... ... ... ... ... ... ... 102 
 
 in bill of lading, construction of ... ... ... ... ... 134 
 
 in bill of lading, binding on shipper ... ... ... ... 418 
 
 respecting payment of freight ... ... ... ... ... 265 
 
 as per charter-party ... ... ... ... ... ... ... 306 
 
 may be attached to bill of lading by consignor ... ... 031, 639 
 
 bolder without notice not affected by ... ... ... ... 631 
 
 Confiscation OF GOODS 501,502 
 
 Consent 
 
 of both parties uecessaiy to revoke bill of lading 36 
 
 Consignee 
 
 may be named by shipper in bill of lading ... 7 
 
 effect of knowledge of charter ... ... ... ... ... 44 
 
 has no lien on ship named, if goods have been put on board 
 
 wrong ship ... ... ... ... ... ... ... ... 38 
 
 can sue master personally for non-delivery of goods 45 
 
 cannot proceed against owner if he elects to sue master ... 45 
 
 when bill of lading not conclusive against ... ... ... 58 
 
 must prove that the goods were damaged by the master's 
 
 negligence ... ... ... ... ... ... ... ... 146 
 
 when not entitled to notice of arrival of ship 159 
 
 name of, in bill of lading ... ... ... ... ... ... 'J48 
 
 is liable for freight on goods, though damaged 208 
 
 when liable to pay demurrage ... ... ... ... ... 314 
 
 not liable for demurrage at port of loading ... ... ... 315 
 
 notice to, of arrival of vessel with transhipped goods ... ... 430 
 
 notice of arrival to be given to ... ... ... ... ... 530 
 
 entitled to delivery of the goods at the ship's side ... ... 504 
 
 when he cannot transfer his liability to i)ay freight 618 
 
 not liable on the bill of lading after indorsement 620 
 
 having no property in the goods must sue in the name of the 
 
 consignor 645 
 
 Consignor 
 
 cannot insist on master signing for goods not on board ... 20 
 
 may relaud his goods ou payment of freight, »ie. 30
 
 kxxvi INDE X . 
 
 Consignor — continued. page 
 
 cannot demand votuvn of floods when bill of lading lias boon 
 
 transmitted lo cousio-nee ... ... ... ... .■• •■• "^^ 
 
 may vary or revoke bill of lading ... ... ... ... ... 37 
 
 eifect of transfer of the property in tlie goods by ... ... 613 
 
 rights of, may be passed by indorsement ... ... ... ... 618 
 
 always liable for freight ... ... ... ... ... ... 618 
 
 in through bill of lading, enters into one contract only ... 87 
 
 Construction 
 
 of bill of lading must be liberal 63, 132, 364 
 
 of the words -^ in the bill of lading ... ... ... ... 172 
 
 of clauses in through bill of lading ... ... ... ... 88 
 
 Constructive possession 
 
 preserves lien ... ... ... ... ... ... ... 545, 54.'9 
 
 Consul 
 
 may grant bills of health ... ... ... ... ... ... 538 
 
 Contents 
 
 and value unknown, effect of clause ... 58, 148, 225, 227, 504 
 
 Contract to carry goods 
 
 damages for bi-each of 42, 44, 67 
 
 is presumed to be made with reference to the prescribed 
 
 voyage ... ... ... ... ... ... ... ... 102 
 
 ceases on abandonment of vessel ... ... ... ... ... 277 
 
 Contribution 
 
 for general average in case of jettison ... ... 380,385,392 
 
 by shipowner, to general average ... ... ... ... 302, 401 
 
 Copies 
 
 of bills of lading need not be stami^ed ... ... ... ... 10 
 
 master must not sign... ... ... ... ... ... ... 11 
 
 Copy 
 
 of bills of lading, master's right to... ... ... ... ...11,28 
 
 "not negotiable " sometimes stamped on... ,. ... ... 11 
 
 Corruption 
 
 exception of ... ... ... ... ... ... ... ... 442 
 
 Costs 
 
 where master improperly defends an action ... ... ... 237 
 
 Cotton in bales 
 
 meaning of ... ... ... ... ... ... ... ... 65 
 
 Crew 
 
 shipowner liable for thefts of cargo by 331,352 
 
 Cross-action 
 
 lies for damage to gooda 235
 
 7 X T) F X . 
 
 l^fXXTll 
 
 CrsTOM 
 
 ailmissiblo to explain bill of lading... 
 
 of merchants, when recognised without proof 
 
 has prescrilied the ordinary course of voyages 
 
 parties presumed to be cognizant of 
 
 delivery of cargo to be governed by 
 
 as to delivery of cargo must be reasonable and uniform 
 
 meaning of 
 
 Customary delivery 
 meaning of 
 
 Customs-Collector 
 
 can demand bill of lading on arrival of vessel ... 
 
 can forfeit concealed goods 
 
 Damage to Goods 
 to fruit .. 
 by fresh water ... 
 >)y valves being left open 
 
 by mne ... 
 
 to nuts by negligent stowage 
 
 to sugar 
 
 by acid 
 
 by oil 
 
 to rice cargoes 
 
 by salt ... 
 
 by bilge-cock being left open 
 
 by ports being left open 
 
 by pipe being eaten by rats 
 
 by donkey pump being injured 
 
 by collision 
 
 by smell from other goods 
 
 loss of market by 
 
 by smell of chloride of lime, disinfectants & turpentine 
 
 by tobacco 
 
 by heating 
 
 by sea water 
 
 resulting from negligent stowage 41 
 
 is presumed to be the act of the master or cai-rier 
 
 by negligence ... 
 
 does not excuse payment of freight 
 
 from machinery 
 
 by steam 
 
 PAGE 
 
 03 
 Ot 
 198 
 247 
 591 
 591 
 591 
 
 587 
 
 
 67 
 
 ... 501 
 
 ... 269 
 
 
 .. 146 
 
 
 .. 487 
 
 
 41 
 
 
 2 
 
 
 ..3,448 
 
 
 452 
 
 
 .. 355 
 
 
 .. 369 
 
 
 .. 368 
 
 
 .. 483 
 
 
 483 
 
 
 415 
 
 
 .. 360 
 
 
 .. 476 
 
 
 485 
 
 
 .. 70, 79 
 
 92, 
 
 369, 449 
 
 
 449 
 
 
 371 
 
 146, 269 
 
 92, 372, 447 
 
 145, 235 
 
 ... 235 
 
 235, 268 
 
 355 
 
 
 .. 361
 
 Isxxviii 
 
 INDEX, 
 
 Damage of Goods — contimied. 
 
 by nist ... 
 
 from improper collocation of cargo 440, 
 
 by jettison, average adjustment of... 
 
 claims for, must be made witliin a specified period 
 
 claims for, must be made before goods removed 
 
 Damages 
 
 where master refuses to sign bills of lading 
 
 for unreasonable detention of goods 
 
 measure of 
 
 for unreasonable detention of sliip 
 
 recoverable, where freighter prevents freight being earned 
 
 measure of, where no rate of freight is mentioned 
 
 are not recoverable, where performance of the contract is pr 
 hibited by the ruling authorities 
 
 in collision, how estimated ... 
 
 action for, must be made in name of consignor 
 
 for breach of contract 
 Dangerous Goods 
 
 carriage of 
 
 provisions of Statute, relating to 
 Dangers of the river 
 
 meaning of 
 Dangers of the Road 
 
 construction of . . . 
 Dangers op navigation 
 
 collision is a 
 
 meaning of 
 Dangers of the sea 
 
 do not apply to a canal inevitably rendered impassable 
 
 exception of 
 
 do not include fire 
 
 accidental collision is 
 
 Date 
 
 in bill of lading, is material ... 
 Days 
 
 meaning of 
 
 running days, meaning of ... 
 Dead freight 
 
 when payable as per charter-party. 
 
 definition of 
 
 lien for ... 
 Death of Master 
 
 entitles mate to succeed 
 
 PAGE 
 .. 437 
 
 448, 646 
 
 407 
 
 592 
 
 91 
 
 22 
 
 67 
 67 
 
 187 
 281 
 282 
 
 340 
 
 426 
 
 645 
 
 42,44 
 
 451 
 454 
 
 485 
 
 486 
 
 476 
 
 477 
 
 173 
 
 486 
 488 
 486 
 
 65 
 320 
 
 254 
 256 
 
 257 
 
 160
 
 JNBEX . 
 
 IttxiIt 
 
 PAGE 
 
 442 
 
 377 
 378 
 
 505 
 451 
 121 
 
 Decay 
 
 except ion of 
 
 Deck cargo 
 
 carried at the merchant's risk 
 
 average adjustment of 
 
 Declaration 
 
 of nature of valuable articles, must be made at time of ship- 
 ment ... 
 as to dangerous goods 
 effect of when not made of valuable articles 
 
 Delay 
 
 compensation for, when shipper does not present bill of lading 
 
 for signature 
 occasioned by unjustifiable trading, is a deviation 
 in delivery of cargo, justified by risk of capture 
 
 Delivery 
 
 of goods alongside 
 
 from the ship's deck' ... 
 
 of bill of lading to Customs'-Collector 
 
 of cargo must be made to person authorised to receive it 
 
 of goods, at other than specified port 
 
 of goods, subject to exceptions and conditions in the bill of 
 
 lading 232 
 
 of goods, what constitutes 240, 241, 521, 587 
 
 
 35 
 
 
 205 
 
 
 537 
 
 140, 
 
 144 
 
 
 91 
 
 
 67 
 
 139. 
 
 612 
 
 171, 
 
 172 
 
 of goods, on the wharf 
 
 with notice to consignee sufficient .. . 
 
 of cargo and payment of freight, simultaneous acts ... 
 
 of cargo to be made on production of bill of lading 
 
 of cargo to be made according to existing circumstances 
 
 of bullion, &c., at place other than port of discharge ... 
 
 at a bank 
 
 Demurrage 
 
 in cases where the ship cannot enter the port ... 
 
 payable as per chartei'-party 
 
 what is ... 
 
 consignee and indorsee when liable to pay 
 
 made payable by the bill of lading 
 
 computation of time for 
 
 is payable for the fraction of a day 
 
 lien for, does not exist unless expressly agreed ... 
 
 247. 563 
 ... 563 
 
 26- 
 
 286 
 561 
 564 
 508 
 510 
 
 183. 187 
 308 
 313 
 314 
 314 
 317 
 328 
 
 550, 559
 
 1 
 
 xr T N T) F X . 
 
 Derelict page^ 
 
 salvage of ... ... ... ••■ .•• "• •■• ^it.'-tt 
 
 Destination 
 
 of voyage cannot be cliangecl, witliont consent of both parties.. 169 
 
 Detention 
 
 by frost or ice 321 
 
 of goods by delay of voyage 457 
 
 tbrongb not presenting bills of lading 35 
 
 unreasonable delay in sailing is a 35 
 
 Deviation 
 
 includes inexcusable delay in sailing 35 
 
 touching at intermediate ports, when not a ... ... ... 191 
 
 from prescribed voyage, exonerates underwriter 199 
 
 meaning of ... ... ... ... ... ... • ■ • 35, 199, 205 
 
 if for a fraudulent purpose is barratry 351 
 
 permissible, if made for the purpose of self-defence 420 
 
 to save life or property 212.221 
 
 Disinfection of ship 
 
 expenses of, fall on shipowner ... ... ... ... ... 544 
 
 Dispatch-Money 
 
 payment of ... ... ... ... ... ... ... ... -"^SS 
 
 Docks 
 
 being full, cour.se where ship cannot enter 188 
 
 company, may stop cargo for freight 546 
 
 Dunnage 
 
 coals may not be used as 41G 
 
 Eaethquake 
 
 is an act of God 329 
 
 Electricity 
 
 used as motive power for launch 153 
 
 English Law 
 
 bill of lading is to be construed by 137 
 
 Estoppel 
 
 when rate of freight is mentioned in the bill of lading... 5G, 232, 292 
 when marks and numbers are mentioned in tlu* bill of lading... 231 
 
 does not apply to shipowner in case of non-delivery ... ... 151 
 
 Evaporation 
 
 of liquids ... ... ... ... ... ... ... ... 442 
 
 Evidence 
 
 admissible, to explain bill of lading ... ... ... ...54,63 
 
 effect of bill of lading as ... ... ... ... ... ... 54, 63 
 
 bill of lading is prima facie, but not conclusive ... ... ... .54. 63 
 
 when bill of lading is conclusive ... ... ... ... .. 54
 
 / .V IJ E X . xci 
 
 Evidence — continued. page 
 
 of usage and custom wht'U iiiluiissiLlo ... ... ... ••■ Go 
 
 of usage inadmissible Avhen excluded by the tcnii.s of tbc.- bill 
 
 of lading ^^-^ 
 
 of custom, when recognised without proof '^^' 1- 
 
 to explain meaning of " days " and " month " 65 
 
 freight 65 
 
 cotton bales 65 
 
 port.. 
 
 162 
 
 as to effect of the words, " weight and contents unknown " ... oO-i 
 
 Exceptions 
 
 in bill of lading do not exonerate shipowner from negli- 
 gence 1^6, 234 
 
 throws the onus of proving negligence on the shipper 410 
 
 in bill of lading, do not exonerate master from careless 
 
 navigation ... ... ... ... ... •■■ •■• ••• *""- 
 
 Execution 
 
 can be issued against master personally -l-^ 
 
 Expansion 
 
 of goods, freight on -^" 
 
 of goods by heat ... ... ... ... ••• ••• ■•• '^''^ 
 
 Expenses 
 
 of relandiug goods, must be borne by the owner 37 
 
 Fermentation 
 
 of cargoes 'J''^ 
 
 Fire 
 
 does nut fall within the exception " act of God "' 330 
 
 is not a peril of the sea 363, 364, 488 
 
 destruction of goods on wharf by 531 
 
 general average, losses incurred in extinguishing 407 
 
 statute relating to 3t)i. 
 
 Forfeiture 
 
 of goods by the Customs' authorities ... ... ... 50l, 50- 
 
 Fraud 
 
 in obtaining a bill of lading, does not invalidate it, if master 
 
 has authority to sign -*^ 
 
 is an essential element of barratry '■^^''^ 
 
 Freight 
 
 payable on through bills of lading 1'-'- 
 
 must bo stated in the bill of lading, as rc'iuircd by the 
 ckirter-purty -1> -■-'3
 
 xcii INDEX. 
 
 FREiaiiT — continued. page 
 
 uiastor cannot bind owner to carry goods free of 34 
 
 •v\Lon rate of, is mentioned in the bill of lading, estops the 
 
 assignee ... ... ... ••• ••• ••■ ••■ «^") -'-*-^' -^-' 
 
 is payable, tlioiigb the goods are damaged 235 268 
 
 is due though goods are relanded. ... ... ... ... • • • 36 
 
 receipt of goods, implies an obligation to pay 252, 265, 622 
 
 payable as i^er charter-party 253 
 
 definition of 255 
 
 when it becomes payable ... ... ... ... • • . • • • 260 
 
 payable on goods shipped without the master's knowledge . . . 262 
 payable, though goods are conveyed to destination by another 
 
 vessel ... ... ... ... ... ... ... ■•• ••• 267 
 
 Avhen payable for a fixed period ... ... ... ... 271,276 
 
 when freight is not payable ... ... ... ... ... ... 272 
 
 not payable, when performance of voyage impossible . . . 272, 297 
 
 not payable, when delivery is made at intermediate port ... 272 
 shipment of goods implies an obligation to pay... ... ... 275 
 
 not payable when vessel is abandoned ... ... ... ... 277 
 
 how calciilated . . . ... ... ... ... ... ... ••■ 2<9 
 
 payment of, per ton, cask or bale ... ... ... ... ... 279 
 
 payable per month or week ... ... ... ... ... ... 280 
 
 how calculated, when different kinds of cargo are specified . . . 281 
 for goods stowed in cabin ... ... ... ... ... ... 283 
 
 in bulk, or by admeasurement ... ... ... ... ... 286 
 
 payable on the intake quantity ... ... ... ... ... 286 
 
 by and to whom payable ... ... ... ... ... ... 288 
 
 is payable to the owner of the ship at the time it is earned . . . 289 
 when payable to the charterer of a general ship... ... ... 290 
 
 made payable in a pai-ticular manner ... ... ... ... 291 
 
 payment of, in advance, cannot be recovered ... ... ... 297 
 
 payable at port of loading, at all events 299 
 
 on transhipped goods 432 
 
 loss of, when general average ... ... ... ... ... 412 
 
 when payable as per invoice ... ... ... ... ... ... 600 
 
 when it may be hypothecated ... ... ... ... 603, 604 
 
 subsequent freight cannot be hypothecated 604 
 
 implied promise to pay • ■ • 622 
 
 Feeighter 
 
 cannot change destination of voyage 169 
 
 Fresh-water damage 
 
 meaning of 146
 
 T X D E X 
 
 XCIU 
 
 FroKT I'AGB 
 
 ilotontiou l>y ... ... ... ... ... ... ... ... 321 
 
 injury to Ijoilors by ... ... ... ... ... ... ... 3(il 
 
 Fruit 
 
 damage to, or loss of, by (loc;iy 2»jy, 442 
 
 Full and complete cargo 
 
 meaning of -Zli), 2S1 
 
 General average 
 
 adjustment of deck cargoes ... ... ... ... ... ... ,j.SO 
 
 definition of 30.5 
 
 time and place of adjustment 3<>6 
 
 can only arise in respect of damage on hliip ... ... ... 402 
 
 of jettison, according to York-Antwerj) Rules 407 
 
 does not include damage arising from press of sail ... ... 408 
 
 contribution to 392 
 
 General ship 
 
 charterer of, is entitled to freight ... ... ... ... ... -^'Jt) 
 
 German laav 
 
 when applicable to bills of lading 137 
 
 Gold, &c. 
 
 must be declared at tim-:; of shipment ... ... ... ... 50,5 
 
 Good Friday 
 
 is not a working day ... ... ... ... ... ... . 3^20 
 
 Goods 
 
 effect of mate taking delivery of, on quay, or wharf, or alon""- 
 
 side ... ... ... ... ... ... ... ... . . ].5 
 
 liability for non-delirei-y of, where master is also charterer ... 29 
 
 two sets of bills of lading cannot bo signed for the same ... 30 
 
 when shipped, should not be relanded without an indemnity ... 36 
 
 shipped I )y mistake on wrong vessel, and lost ... ... ... 38 
 
 damaged, by iuiproi^er stowage ... ... ... ... ... 41 
 
 damages for unreasonable detention of ... ... ... ... (J7 
 
 when stowed alongside others of an injurious nature ... 146, 147, 
 
 23li, 372, 440, 447, 448, 449, 646 
 
 though damaged, liable to payment of freight ... ... ... 268 
 
 eai'ried on deck at merchants' risk... ... ,., ... ... 377 
 
 must be iJrotected against rain 532 
 
 Grain 
 
 heating of ... ... ... ... . . ... ... ... 374« 
 
 damage to, from bursting of bags ... ... ... ... 502 
 
 in bulk ... ... ... , . ... ... ... 503
 
 xciv INDEX . 
 
 Haebour page 
 
 Kliip unuble to cutor, from ovov-drauglit ... ... ... ... 183 
 
 He or they paying freight for the same 252 
 
 ckuisc iu bill of lading is inserted for the benefit of the master 253 
 
 Heat 
 
 is not a peril of the sea ... ... ... ... ... 071, 480 
 
 Hidden obstructions 
 
 in the river 487 
 
 Hides 
 
 precautions to prevent damage to, by worms ... ... ... 44G 
 
 Holder 
 
 of mate's reeoipts, entitled to bill of lading ... ... ... 26 
 
 of l)ill of lading, entitled to tlie goods 249, 561 
 
 of bill of lading Avithoiit notice, not aifeeted by conditions ... 681 
 
 Holidays 320 
 
 Horses 
 
 loss of, or injury to ... ... ... ... ... ... ... 5J3 
 
 Houses 
 
 permanently fixed to the deck are treated as under-deck 370, 407 
 
 Hypothecation 
 
 of freight, ship and cargo hj master ... ... ... ... 603 
 
 advance freight not included in general, of freight ... ... 604 
 
 subsequent freight cannot be included in bond ... ... ... 604 
 
 Ice 
 
 rendering api^roach to harl>our impossible ... ... ... 187 
 
 detention l)y 321 
 
 Illegible marks 231,490 
 
 Implied condition not to deviate 109 
 
 Impressed Labels 
 
 to be used on bills of lading 9 
 
 Increase of goods in bulk 
 
 freight on ... ... ... ... ... ... ... ... 286 
 
 Indemnity 
 
 may be taken when mate's receij^ts are lost, or cannot be found. 19 
 to the master when signing a second set of bills of lading for 
 
 the same goods ... . . ... ... ... ... ... 30 
 
 to master, where goods have been relanded 36 
 
 should be taken where the true owners of the goods is doubtful. 249 
 
 Indian Contract Act IX. op 1872 35, 50, 52, 123, 210, ()b6 
 
 Indian Evidence Act I. of 1872, s. 02 
 
 liability of Agent under ^1 
 
 Customs' Act 8 of 1878, s. 58 ^7
 
 TX n F X . xcv 
 
 PAGE 
 
 Indian- Limitation Act XV. of 1877 ^ 
 
 Railways Act IX. of 1890 90. 1 2:5 
 
 Carriers' A<^t III. of 18fi5 1-^ 
 
 INDOR.SEE 
 
 of mate's receipts acqxiires no title as against the bona fide 
 
 holder of the bill of lading without notice ... 1<5 
 
 cannot assume that master has power to sign for goods not 
 
 , . 1 34 
 shipped 
 
 right of, to sne, by virtne of the Statute 61o 
 
 to\e liable, must be holder of bill of lading 627 
 
 re-indorsing, not liable for freight... 6-7 
 
 Indorsement 
 
 transfer of bill of lading by G17, G31 
 
 on bill of lading need not be stamped 1" 
 
 when, does not transfer the property 618 
 
 passes rights of consignor "-" 
 
 may be in blank, or to order ""^ 
 
 effect of, when special or conditional 
 
 to recover previous advances ... ■•• ••• ••• •• 3 
 
 vests in vendee, rights of action ... •■• •■• •■• •■• * 
 
 by way of pledge does not pass the property 619 
 
 special, puts vendee on enquiry "^-' 
 
 does not pass the property in the goods to mere agent of the 
 
 shipper "**^ 
 
 Inevitable accident 
 
 e 422 
 
 meanmg ot ... ... ... ... •■• ••• ••* ••• *""• 
 
 loss by, when a peril of the sea ... •-. •.• •■• •■• ''^^ 
 
 Infection 
 
 measures to prevent ... ... ... ... • • ■ • • • • • • "^^^ 
 
 In good order and condition 
 
 meaning of ...144, 148, 2.'?;j 
 
 refers only to the external condition of the goods 148 
 
 cargo must be delivered ... ... ... ... ••• ■•• — ^"^ 
 
 Inherent infirmity of cargo 
 
 master not Uable for 23.'), 442 
 
 Injurious effects 
 
 of other goods ... ... ... ... ... ••• ••• 11(.41< 
 
 Injury 
 
 to goods, by intrinsic defect... ... ... ... ••• ••• 1" 
 
 Inquiries 
 
 should be made, when 1/ills of lading are signed per procuration 24
 
 xcvl INDEX. 
 
 Insanity "page 
 
 of master, entitles mate to succeed IGO 
 
 Insurance 
 
 name of vessel necessary for ... ... ... ... ... 157 
 
 not i^ayable, without production of bill of lading 157 
 
 void, where vessel deviates ... ... ... ... ... ... 199 
 
 void, where i^ilot has not been engaged 206 
 
 freight i^ayable subject to 271 
 
 Intake 
 
 meaning of, as to j)ayment of freight ... ... ... ... 286 
 
 Intermediate ports 
 
 calling at ... ... ... • • ■ • ■ • • • • • • • • • • 191 
 
 freight not payable Avhen delivery made at 272 
 
 Jettison 
 
 definition of ... ... ... ... • • ■ • • • • • • • • • 383 
 
 mnst be made for the common benefit of all 383 
 
 of cargo stowed on deck with owners' consent, not general 
 
 average ... ... ... ... ... ... ... ... 384 
 
 of timber, carried on deck ... ... ... ... • • • • • • 388 
 
 of vitriol, carried on deck ... ... ... ... ... ... 392 
 
 of cargo, on account of its vice propre ... ... ... ... 392 
 
 when held to be a peril of the sea 487 
 
 general average of, according to York- Antwerp Rules 407 
 
 Kidnapping Act, 1872 
 
 35 & 36 Yict. c. 19 354 
 
 Knowledge OF USAGE OR CUSTOM presumed 65 
 
 Launch 
 
 propelled by t-lcctricity not a ship 153 
 
 Law 
 
 of tlieflag 43, 136 
 
 as to bills of lading 132 
 
 as to policies of insurance 132 
 
 Lazaret 
 
 deposit of cargo in ... ... ... ... ■ ■ ■ • • • • • • ^'*^ 
 
 Leakage 
 
 of wine, from improper stowage ... ... ... ••■ ••• 41 
 
 arising from secret defects ... ... . • . • • • • • • • • • ^ ' " 
 
 and breakage, effect of the exception 438, 496 
 
 is not restricted to quantity 440, 600 
 
 Letters op marque 
 
 when and how granted 418
 
 tkt)t:x. 
 
 XOTll 
 
 Ltabtlttv 
 
 of luastor in ftl<;;nlnf» two sots of liill^i of larlincc for tlic srimo 
 goods ... 
 
 of nuistev, for sign in<^ for goods not on board ... 
 
 of shipowner, when goods have been received on the quay, l>ut 
 not shipped ... 
 
 of shipper, in not presenting bills of lading for signature 
 
 of shipowner, when vessel is chartered 
 
 personal, of parties, signing bills of lading 
 
 of agent, Sic. signing bills of lading in his own name 
 
 of shipowner ceases, when goods are landed at the wharf 
 
 „ ,, for damage to cargo in boats 
 
 Liberty 
 
 to touch and stay 
 Lien 
 
 does not attach to vessel when goods have not been shipped .. 
 
 of shipowner for freight ,,. ... ... ... ... 2 
 
 for freight, when destroyed ... 
 
 for demurrage ... 
 
 exists on the whole cargo, for general contriliution "... 
 
 contingent on possession 
 
 does not exist, where freight has not been earned 
 
 does not exist, when freight is payable after delivery ... 
 
 master has, for expenses of preserving cargo 
 
 for demiirrage and wharfage does not exist iinless unde 
 special agreement ... 
 Lighter 
 
 receipts by mate for goods in 
 
 is not included in the definition of ship ... 
 Lightning 
 
 is an act of God 
 
 is not a peril of the sea 
 Limitation 
 
 of master's authority .. . 
 
 law relating to ... 
 
 of liability of English Railway Companies under through bill 
 of lading 
 
 of liability of Indian Railway Companies imder through bill 
 of lading 
 
 Loss OP GOODS 
 
 shipped on wrotig vessel by mistake 
 
 Loss OF SHIP 
 
 1>y the fraudulent misconduct of the master is barratry 
 
 PAGE 
 
 no 
 
 32 
 
 33 
 
 35 
 
 40 
 
 44, 47 
 
 47 
 
 247 
 
 434 
 
 203 
 
 38 
 5, 544 
 201 
 550 
 403 
 545 
 550 
 550 
 551 
 
 559 
 
 15 
 150 
 
 329 
 
 489 
 
 34 
 83 
 
 89 
 
 90 
 
 38 
 
 349
 
 XCVlll 
 
 r X T) E X 
 
 Lump freight 
 
 definition of 
 
 Luggage 
 
 carried as moreliandise 
 Lying-days 
 
 means working-days ... 
 Machineey 
 
 stowed witli coals is bad stowage ... 
 
 damage to, in discharge 
 
 loss or damage from ... 
 
 only includes wliat is used for propelling the vessel 
 
 marginal notes in bills of lading ... 
 Marked and numbered 
 
 as per margin ... 
 Market 
 
 damages for loss of ... 
 Marks and numbers 
 
 when they estop the shipowner 
 
 should )>e legibly made 
 Marque 
 
 meaning 
 Master 
 
 of 
 
 should attest bill of lading ... 
 
 should not sign copies 
 
 non-liability of, in delivering the' bill of lading to supposed 
 
 owner... 
 should not sign bills of lading without production of the mate's 
 
 receipt 
 is bound to sign bills of lading 
 
 course of, when not allowed to sign under reservation... 
 should not refuse to sign bills of lading without good reason., 
 must sign bills of lading as presented, when required to do so 
 
 by charter- j)arty 
 must sign bills of lading for freight as required by charter 
 
 party 
 
 only responsible on bills of lading signed by himself ... 
 
 course where master refuses to sign 
 
 when also charterer, effect of signing bills of lading ... 
 
 right of, to copy of bill of lading ... 
 
 cannot legally sign two sets of bills of lading for the same 
 
 goods ... 
 should not sign a second set without having the first set 
 
 delivered up . . . 
 cannot substitute bills of lading for others at a lower rate of 
 
 PAGE 
 
 2.57 
 
 82 
 320 
 
 41G 
 241 
 354 
 355 
 7,232 
 
 69, 79 
 
 231 
 
 490 
 
 418 
 
 5 
 11 
 
 IG 
 
 16 
 19 
 
 20 
 20 
 
 20 
 
 21 
 25 
 
 22 
 29 
 
 30 
 
 30 
 30
 
 IN DUX. xcix 
 
 Master — continued. page 
 cannot legally sign for goods not on board ... ... ...02, 151 
 
 is not sliipowner's agent, to sign for goods not received ... 33 
 
 liability of, in signing for goods not on board ... ... ... 32 
 
 authority of, subject to limitation ... ... ... ... ... 3-t 
 
 may detain vessel to sign bills of lading ... ... ... ... 35 
 
 should take indemnity, before relanding goods ... ... ... 36 
 
 should obtain bills of lading before redelivering goods to 
 
 consignor ... ... ... ... ... ... ... ... 36 
 
 must give notice of charter-party, when signing bills of lading 38 
 
 may refuse to sign bills of lading differing from charter-party. 39 
 course where he declines to sign bills of lading except with 
 
 objectionable provisions ... ... ... ... ... ... 39 
 
 is presumed to be shipowner's agent to sign bills of lading ... 40 
 
 binds shipowner by signing bills of lading ... ... ... 40 
 
 makes himself personally liable by signing bills of lading ... 44 
 
 may be arrested in action, for non-deli vei-y of goods ... ... 45 
 
 may aiithorise persons to sign bills of lading ... ... ... 53 
 
 when concluded by the bill of lading ... ... ... ... 58 
 
 authority of, continues until notice of change of o\vnership of 
 
 vessel 66 
 
 may show that goods were injured by intrinsic defect ... 141, 442 
 
 liable for contents of package as shipped Avhen he ijualifies 
 
 the bill of lading 14S 
 
 may hire another vessel to carry on the goods ... ... ... 159 
 
 name of, in bill of lading, not necessary ... ... ... ... 160 
 
 substitution of ... ... ... ... ... ... ... ... 1^1 
 
 cannot substitute voyage for the one named ... ... ... Itil 
 
 duty of, where route is impracticable ... ... ... ... 173 
 
 must engage pilot when required by usage or Statute 206 
 
 is justified in entering harbour when no pilot can be obtained. 207 
 
 bound to assist vessels in distress ... ... ... ... ... 210 
 
 liable for negligence notwithstanding the exceptions in the 
 
 bill of lading 233 
 
 may also be agent for the owner of the cargo ... ... 2;>(?, 444 
 
 should take indemnity if doubtful as to the true owner ... 249 
 
 has no prospective lien on the freight 288,544 
 
 cannot sue for freight, if the owner demands it ... ... ... 289 
 
 may not enter enemy's settlement to trade ... ... ... 349 
 
 fraudulent niiseonduet of. in losing vessel, is barratry... ... 351 
 
 not justified in deviating to take prizes ... ... ... ... 421 
 
 bound to use diligence in transhipping goods . , . 432 
 boiuid to attend to stowage of goods... ... ,,, 410,447
 
 c INDEX. 
 
 Mastek — continued. paob 
 
 1 )0\uicl to see to tlie ventilation of goods 412, 447 
 
 may not take on damaged goods, merely to earn freiglit . . . 446 
 
 is not bound to repair damaged goods 447 
 
 neglect of, effect of exception 456 
 
 liability of, ceases on delivery to consignee 457 
 
 is bound to carry goods witli expedition 458 
 
 may only interfere in cases of necessity when pilot is on board 459 
 is not protected by Statute 17 and 18 Vict., c. 104, from loss of 
 
 biilliou, &c 505 
 
 duty of, to store goods for the benefit of the OAvner 530 
 
 duty of, in case of blockade 535 
 
 loses his lien, if he parts with the goods ... 515 
 
 not bound to deliver cargo, until bill of lading is given up . . . 561 
 
 duty of, to deliver to the holder of the first Ijill of lading . . . 566 
 
 should require indemnity, in case of conflicting claims 569 
 
 when he is a bailee for the vendor 653 
 
 when, may hypothecate freight, shi J) and cargo 603 
 
 must communicate with owner before hypothecating . . . 603, 607 
 
 must consider interests of all concerned 607 
 
 if possible to effect repairs in case of damage to vessel 
 
 must do so if possible ... ... ... ... ... • • • 607 
 
 may pledge his owner's credit for necessaries 603 
 
 may demand security in case of average contribution 403 
 
 Mate 
 
 cannot be compelled to sign receipts for goods alongside ... 15 
 
 succeeds master in command 160 
 
 Mate's receipts 
 
 should not be given unless goods are on ship's deck ... ... 15 
 
 assignment of, by indorsement ... ... ... ... ... 16 
 
 when lost, or cannot be found ... ... ... ... ••. 1!^ 
 
 holder of, entitled to bills of lading 26 
 
 bill of lading to be made according to 150 
 
 Measuke of damages 
 
 for unreasonable detention ... ... ... ... . ■ • • • • 67 
 
 Medicinal goods 
 
 carriage of ... ... ... ... . . .■ ■•• ••■ 453 
 
 provisions of Statute relating to ... ... ... ... • . • 453 
 
 Mercantile instruments 
 
 construction of... ... ... ... ... ... ... ■■■ 63 
 
 Merchant Shipping Acts 
 
 17 & 18 Yict. 1854, c. 104 362, 423, 427 
 
 25 & 26 Vict. 1862, c. 63 518,531,551 
 
 52 & 53 Vict. 1889, c. 46 153
 
 I N D E X . ci 
 
 Mistake page 
 
 in naino of ship ... ... ... ... ... ... ... 158 
 
 in shipping; goods on wron^ vessel ... ... ... ... ... 38 
 
 in description of goocTs shipped ... ... ... ... ... 82 
 
 in delivery of goods does not prevent stoppage in transitu ... 632 
 
 Molasses 
 
 expansion of, by Leat ... ... ... ... ... ... ... 375 
 
 Months 
 
 meaning of 65,281 
 
 Mortgagee 
 
 ■vvbo takes possession during the voyage, is entitled to freight... 289 
 
 Mutiny 
 
 of mariners, compelling the master to deviate, is barratry... 351 
 
 Name 
 
 of ship in bill of lading, necessary ... ... ... ... ... 1.56 
 
 of master in bill of lading, not necessary... ... ... ... IGO 
 
 of vessel to which goods have been transhipped, to be given to 
 
 consignee 430 
 
 Navigation 
 
 dangers of, do not include breaches in a canal 173 
 
 does not include negligent stowage ... ... ... ... 463 
 
 perils of, distinct from the act of God 485 
 
 Neglect of master, pilot or crew 
 
 exception of, not unreasonable 461 
 
 Negligence 
 
 of master, makes him personally liable to shipowner 41 
 
 consignee or o^vner of goods may prove 146 
 
 of master, in entering harbour without a pilot 206 
 
 renders shipo^vuer liable, notwithstanding the exceptions 232, 231. 
 
 must be proved in cases of collision 422 
 
 Negligent stowage ... ... 2 41 
 
 Negotiability of bill of lading 1 
 
 affected by absence of the shipper's name 150 
 
 necessity of hypothecating ship, question for the jury 608 
 
 Net weight delivered 
 
 freight on ogg 
 
 non-delivery of goods, damages for 73 
 
 Notice 
 
 of assignment of mate's receipts 16 
 
 to be given by master, when not allowed to sign qualified bills 
 
 of lading ... ... ... oq 
 
 to master, on his refusal to sign bills of lading 22 
 
 of charter-party, binding on shipper 3\)
 
 cii INDEX. 
 
 Notice — continued. page 
 
 to consignee, of arrival of vessel when not necessary 159 
 
 of arrival of vessel witb transhipped goods should be given to 
 
 consignee ... ... ... ... •■• ••• ••■ •■• 430 
 
 of sale of goods should be given to the owner 444 
 
 must be given, when goods are of a dangerous nature 451 
 
 must be given to the consignee before the master can land and 
 
 ■warehouse goods ... ... ... ... ... ... . ■ . 5o() 
 
 of arrival of goods when necessary 530 
 
 Nuts 
 
 damage to by negligent stowage 2 
 
 Obligation 
 
 to pay freight on receipt of goods 252 
 
 Obliteration of marks 231, 490 
 
 Obstruction 
 
 of canal or harbour ... ... ... ... ... ... 173, 182 
 
 Oil 
 
 damage to goods by ... ... ... ... ... ... ... 355 
 
 Oilcake 
 
 negligent stowage of ... ... ... ... ... ... ... 41 
 
 On board, in or upon 151 
 
 Onus 
 
 of i^roving bill of lading incorrect, lies on holder ... ... 54, 56 
 
 on shipowner, to prove goods were damaged before shiiiuient. 146, 372 
 on shipper, to prove negligence ... ... ... ...440,462,601 
 
 Outward and homeward voyages when distinct 
 
 freight payal; le for ... ... ... ... ... ... 268 
 
 Overdraught 
 
 preventing vessel entering harbour ... ... ... ... 183 
 
 Owner of goods 
 
 entitled to compensation, when master refuses to sign bills of 
 
 lading 22 
 
 must make enquiries, when bill of lading is signed i)er 
 
 procuration ... ... ... ... ... ... ... ... 25 
 
 may revoke bill of lading l>efore delivery of the goods... ... 36 
 
 must bear all expenses incidental to the relanding of the goods. 37 
 
 liable for salvage, when necessary by defective machinery ... 358 
 if consenting to deck-shii^ment, cannot recover for jettison. 278. 385 
 
 may recover damages where cargo is lost in a collision... ... 423 
 
 may recover damages from either one or both vessels in fault, . . 424 
 
 not responsible for acts of master or crew ... ... ... 427 
 
 entitled to notice before sale of goods l)y master ... ... 44 1 
 
 of animals, must receive them at place of destination' 517
 
 TN n E X . ciii 
 
 Packino of Goobs page 
 
 owner of goods lialilo for noj^'li'^'ont or insuffR-i.-nt 49(1 
 
 only affects tin' <|U<'stion of dauiai^i's ... ... ... ... 49iJ 
 
 Parol evidp:nce 
 
 admissible, to explain meanini: of ... ... ... ... O"* 
 
 Particular average 
 
 meaning of . . . . , . ... ... . • • • • •'^^H 
 
 Parties 
 
 other than master, signing bills of lading, effect ®f ... ... 44 
 
 are presumed to contract with knowledge of an usage Co 
 
 Party 
 
 contracting as agent, is personally Hal lie 47 
 
 Part-owner 
 
 selling vessel and misappropriating proceeds i.s giiilty of 
 
 barratry ... ... . . ... ... . . . ■•• 351 
 
 Passenger 
 
 shipowner lial)le for theft by ... ... ... ... ■•• 335 
 
 Payment 
 
 of freight, is secured by a lien on the goods 255 
 
 of freight to the master, without notice, is a good and valid . . . 288 
 
 Penalty 
 
 for executing iinstamped bill of lading 8 
 
 People 
 
 means the supreme power ... ... ... ... ... ... 345 
 
 Perils of the sea 
 
 difference between, and act of God .. ... ... ... ... 485 
 
 fire is not a 362,363,364,488 
 
 sweat is . . . ... ... ... ... ... ... • • . ... 486 
 
 heat is not 271,489 
 
 accidental collision is... ... ... ... ... ... ... 486 
 
 meaning of ... ... ... ... ... ... ... 474, 485 
 
 losses which are not included in ... ... ... ... ... 488 
 
 Per procuration 
 
 meaning of ... ... ... ... . • . • • ..."... 23 
 
 effect of signing bills of lading ... ... ... ■. •. 23 
 
 who may sign ... ... ... ... ... ■■• •■■ •■• 1 
 
 Personal liability 
 
 of parties signing bills of lading 41-, 47 
 
 Petroleum damage 369 
 
 PiLfering 
 
 does not amount to barratry ... ... ... ... 352
 
 civ INDF X . 
 
 Pilot page 
 
 duties of, in Suez Canal 175,179 
 
 must be engaged, wLen required by usage or Statute ... ... 206 
 
 eif ect of leaving vessel before she is moored ... ... ... 206 
 
 neglect of 177,459 
 
 master and crew bound to assist ... ... ... ... 178,459 
 
 bound to use due diligence and .slv ill ... ... ... ... 459 
 
 Pilotage and poet charges 
 
 master has no lien for, without express agreement 559 
 
 Pirates 
 
 loss by, is a peril of tbe sea 486 
 
 Plague 
 
 provisions in case of ... ... ... ... ... ... ... 537 
 
 Policy 
 
 may be avoided, by inexcusable delay in sailing 35 
 
 when not vitiated by error in the name of tbe ship ... ... 157 
 
 void, in case of deviation ... ... ... ... ... ... 200 
 
 of insurance, what is . . . ... ... ... ... ... ... 132 
 
 Poop 
 
 is treated as imder-declf, in stowage of cargo 379 
 
 Port 
 
 meaning of 1C2, 198 
 
 charges —master has no lien for ... ... ... ... ... 559 
 
 choice of, when more than one is named 172,199 
 
 of entry, meaning of 198 
 
 calling at intermediate 191 
 
 Ports of call 
 
 must be taken in the order in which they are named 199 
 
 not in geographical order ... . ... ... ... ... 199 
 
 Possession 
 
 essential to lien 544 
 
 Pratique 
 
 meaning of ... ... ... ... • ■ • . • • • • • 537, 5-39 
 
 does not apply to vessels coming from an unsuspected country. 539 
 
 Presentation 
 
 of bills of lading by shipper, for signature 35 
 
 Presumption 
 
 that goods are projDerly packed 500 
 
 Primage and average accustomed 293 
 
 Production 
 
 of receipts necessary, before signing bills of lading 16
 
 INDEX . 
 
 cv 
 
 Propeutt in goods page 
 
 passed by iiulorscment ... ... ... . . C26 
 
 does not pass by indorsement to a mere agent ... tl 
 
 when it passes ... ... ... ... ... ... . Cl-i 
 
 Pro rata freight 
 
 when due 
 Protest 
 
 by master, if not allowed to sign qualified bills of lading 
 
 by shipper, when master refuses to sign 
 Public holidays 
 
 do not count as working days 
 Qualification 
 
 of bill of lading by master, effect of 
 Quantity and quality of the goods 
 
 evidenced by the bill of lading 
 
 quality marks ... 
 Quarantine 
 
 origin of 
 
 vessel in, is still in transitu ... 
 
 regulated by Stat. 6, Geo. 4, c. 78 
 
 of observation, and strict 
 
 what articles are excepted . . . 
 Quay 
 
 delivery to mate of goods on 
 
 master's duty to protect goods on, with tarpaul 
 Queen's ENEMIES 
 
 RaIIWAY COMPANIES 
 
 liability of under through bills of lading ... 
 
 Rate of freight 
 how calculated... 
 
 Rats 
 
 damage to goods by, is not a peril of the sea 
 
 eating a hole in the ship's bottom is not a peril of the sea 
 
 Repairs 
 
 if possible to effect rei»tiirs before proceeding, master must 
 do so . . . ... ... ... ... 
 
 Reasonable time 
 
 meaning of ... ... ... . . •■. ••■ ••. 348, 527 
 
 for delivery, what constitutes ... ... ... ... 5"2T, 591 
 
 dispatch must be used in landing the cargo 316,591 
 
 Receipt 
 
 for goods on board ... ... ... ... ... ... 2, lo, 19 
 
 for coods when tendered alongside 15 
 
 2G1 
 
 20 
 
 22 
 
 320 
 226 
 
 225 
 
 229 
 
 537 
 538 
 539 
 540 
 541 
 
 15 
 532 
 332 
 
 89,90 
 
 279 
 
 413, 488 
 ... 489 
 
 607
 
 OTi 7 N n E X . 
 
 Receipt — contuined. page 
 
 to be given up on signing bills o£ lading 2, 16, 17 
 
 lioldor of, retains control of goods 17,503 
 
 by dock company ... ... ... ... ... ... ... 33 
 
 of goods, is evidence of an obligation to pay freight . . . 252, 2G5, 622 
 
 lightermen's, bolder of ... ... ... ... ... ... 26 
 
 Recovery 
 
 of dead freight for deficiency of cargo 257 
 
 Refusal 
 
 of master to sign bill of lading 22 
 
 regulations for navigating Suez Canal 179 
 
 re-landing goods ... . . . ■ • • ■ • • • • • • • • • • 36 
 
 Reprisal 
 
 meaning of ... ... . • • • • • ■ • • • • • • • ■ • • 418 
 
 Reshipment 
 
 of goods 42S 
 
 Responsibility 
 
 of shipowner, for safe carriage of goods 41 
 
 Restraint or princes, rulers or people 
 
 does not apply until the ship is loaded, &c 311 
 
 must be operative and actual ... ... ... ... ... 3il 
 
 Restraints of courts of law 
 
 should be excepted in the bill of lading 3ii 
 
 not included in the term restraints of princes 3 !• !• 
 
 Revocation 
 
 of bill of lading ... ... ... ... ... ... ... 30 
 
 Right and true delivery 
 
 meaning of ... ... ... ... ... ... ... ... 586 
 
 Risk of boats 
 
 so far as ships are liable thereto ... ... ... ... ... 43 i 
 
 River 
 
 dangers of the, and perils of the sea synonymous 485 
 
 Robbers 334 
 
 Rocks 
 
 stranding on, is a j)eril of the sea ... ... ... ... ... 486 
 
 Rovers 332 
 
 Running days 
 
 meaning of ... ... ... ... ... ... ... ... 320 
 
 Rust 
 
 damage to goods by ... ... ... ... ... ... ... 437 
 
 the exception of, is limited to the rust of the goods themselves. 437 
 Sacks 
 
 cutting open to stiffen the vcs.3el 502
 
 I N D E X 
 
 evil 
 
 PAGE 
 
 Safe berth 166 
 
 Safe Pokt 
 
 what is dcciULHT a ... . . . . . . . . i''3, 182 
 
 Sale 
 
 of sbip without uotico, does not attV-ct the bill of liidiug ... <!•> 
 
 of goods to an-ivo 71 
 
 Salvage. 
 
 effect of deviation to render salvage services 217 
 
 should be rendered in all cases of distress 218 
 
 where necessary, from defective machinery ... ... ... 355 
 
 Sands 
 
 stranding on, when a peril of the sea ... , . . . ... 486 
 
 scuttling of ship ... ... ... ... . . ... 353 
 
 Sea customs acts 
 
 39 and 40 Vict. c. 36 501 
 
 Indian Legislative Council's Act 8 of 1878 ... ... ... 50l 
 
 Seaworthiness 
 
 implies the engagement of a pilot 206 
 
 of vessel, to carry goods ... ... ... ... ... 237, 239 
 
 Security for average contribution 403 
 
 Sets of bills of lading 
 
 rejiresontiug the goods ... ... ... ... ... 1,11,506 
 
 each one of. must be stamped ... ... ... ... ... 8 
 
 Ships 
 
 cannot be detained to procure master's signature to bills of 
 
 lading 2o, oo 
 
 definition of ... ... ... ... ... ... ... 153, 154, 155 
 
 name of, must be inserted in bill of lading ... ... ... 156 
 
 may be lightened to enable her to enter port 182 
 
 lost or not lost ... ... ... ... ... ... ... ... 297 
 
 when it may be hypothecated .. ... ... ... 603,604 
 
 162 
 
 169 
 
 182 
 
 275 
 
 now lying in the port of 
 bound for 
 
 so near thereto as she can safely get 
 
 Shipment of goods 
 
 implies a contract to pay freight ... 
 
 Shipowner 
 
 not liable for antedated bill of lading 
 
 liability of, when receipts have been passed for goods not on 
 board ... ... ... ... • ■ ■ • • • • • • ' 
 
 not bound to deliver a greater . quantity than shipped 
 
 bound by signature of agent or clerk to bill of lading 
 
 6 
 
 3. 151 
 
 21, 62 
 
 24
 
 cviii INDEX. 
 
 SmrowxER — continued. PAGE 
 
 is uot respousible for iiou-clolivery of goods, where the master 
 
 is the charterer ... ... ... ... ... ... ... 29 
 
 liable, where master signs two sets of bills of lading ... ... 31 
 
 not liable where bills of lading are signed for goods not on 
 
 board ... ... ... ... ... ... ... ... ...33, 151 
 
 liability of, for goods delivered on the quay, though not 
 
 shipped ... ... ... ... ... ... ... 33, 139 
 
 liability of, when ship is chartered... ... ... ... ... 40 
 
 responsible for the safe carriage of the goods ... ... ... 41 
 
 or master, may be sued on the bill of lading ... ... ... 44 
 
 can sue master for loss resulting from his negligence 44 
 
 liable, where charterer has signed bills of lading, as his agent. 46 
 
 not so, when unauthorised ... ... ... ... ... ... 53 
 
 must j)rove the goods were damaged when shipped 146 
 
 cannot deny master's right to assist vessels in distress . . , 210 
 
 not entitled to any benefit when goods lost are insured ... 83 
 
 when estopped by marks and numbers in the bill of lading . . . 229 
 
 is j3}-i?Ha/«cie a common carrier ... ... ... ... ... 232 
 
 has primary right to receive freight ... ... ... ... 288 
 
 estoj)ped by the rate of freight mentioned in the bill of lading. 292 
 
 has no lien upon the goods if ship is lost ... ... ... ... 299 
 
 liable for theft by passenger 335 
 
 not liable in case of collision, in the absence of negligence . . . 423 
 
 liability of, for goods, until delivery ... ... ... ... 429 
 
 when liable for expenses of warehousing transhipped goods . . . 431 
 
 not liable for decay, or inherent deterioration ... ... ... 442 
 
 not liable for evaporation ... ... ... ... ... ... 442 
 
 not liable for loss arising from illegible marks 490 
 
 liable, for loss of, or injury to, cattle by negligence 513 
 
 must give notice before landing and warehousing goods . . . 519 
 must contribute to general average, notwithstanding excep- 
 tion in bill of lading 401 
 
 is bound to take steps for the adjustment of general average. 402 
 
 lien of, for freight and general average 544 
 
 Shipped 
 
 meaning of, in bills of lading 139, 227 
 
 Shipper 
 
 has right to name consignee in bill of lading ... ... ... 7 
 
 must see that person signing bill of lading, had jiower to do so 25 
 
 without notice, not bound where master's authority is limited 34 
 
 may assume that master has power to do all usual acts ... 40 
 
 liability of; in not preheating biiljs of lading for signature ,., 35
 
 1 N n E X 
 
 CIX 
 
 Shipper — conlin ncd. 
 
 need not iniiuire whetlier ship is charteied 
 
 without notice, may refuse to be Ixjund l)y the charter-party... 
 
 name of, must be mentioned in the bill of ladin;^ 
 
 coui'se of, where he has reason to believe goods have been 
 abstracted 
 
 bonnd to give notice when goods are of a dangerous nature 
 
 rights of, transferred by vesting of the i)roperty 
 
 may attach conditions to the bill of lading ... '>31, 
 
 may attach conditions to the shipment 
 
 bound by stipidations in bill of lading 
 
 name of, to be furnished to Collector of Customs 
 Shipping order 
 
 stamp on 
 
 to be granted when vessel is ready to receive cargo 
 Short delivery 
 
 liability for ... ... ... ... ... ... ... 41~> 
 
 when claims for, to be made ... 
 Signature 
 
 to bill of lading 
 
 not to be withheld without good reason ... 
 
 per pi'ocuration, special notice to consignee 
 Sling 
 
 cargo slipping out of in discharge 
 
 Smuggling 
 
 goods on board, without the shipowner's knowledge, is 
 barratry 
 
 Smell 
 
 damage to goods by 92, 369, 
 
 Snag 
 
 running on unknown, is a danger of the river 
 
 So NEAR THERETO AS SHE CAN SAFELY GET 
 
 meaning of 182, 
 
 Special indorsement 
 
 puts vendee on inquiry 
 
 Specie 
 
 must be declared at time of shipment 
 
 carriage of 
 
 delivery at place other than port of disclKii-L;e . . , 
 Speculative damages 
 
 for nou-delivery of goods cannot be recovered . . . 
 5 
 
 AGE 
 38 
 
 39 
 
 119 
 
 418 
 451 
 615 
 639 
 639 
 118 
 151 
 
 U 
 15 
 
 592 
 592 
 
 , 11 
 19 
 25 
 
 211 
 
 350 
 449 
 
 •188 
 
 187 
 
 632 
 
 5<I5 
 5(t5 
 5<.iS 
 
 71
 
 ex INDEX. 
 
 Spontaneous Combustion page 
 
 of cargo... ... ... ... ... ... ... ... ... 302 
 
 Stamp 
 
 ou bill of lading ... ... ... ... ... ... ... 8 
 
 bill of lading when exempted from ... ... ... ... ... 9 
 
 must be denoted by an impressed stamp ... ... ... ... 9 
 
 when bill of lading executed out of the U. K. may be stamped. 10 
 
 when exempted ou bill of lading ... ... ... ... ... 10 
 
 ou indorsement exempted ... ... ... ... ... ... 10 
 
 by whom payable ... ... ... ... ... ... ... 11 
 
 ou shipping order ... ... ... ... ... ... ... 14 
 
 Statutes 
 
 5 Geo. 2, c. 20 206 
 
 26 „ 3, c. 86, s. 2 ' 363 
 
 6 „ 4, c. 78 539 
 
 1 Wil. 4, c. 68 120, 124 
 
 17 & 18 „ c. 104 153,362,423,427,505 
 
 18 & 19 „ c. Ill 59,152,315,521,611 
 
 24 „ c. 10. s. 6 153. 612 
 
 25 & 26 „ c. 63,8.67 518,531 
 
 25 & 26 „ c. 63 s. 68 546,570 
 
 31 & 32 „ c. 119, s. 14 89 
 
 34 & 35 „ c. 78, s. 12 89 
 
 35 & 36 „ c. 19 ... 354 
 
 36 & 37 „ c. 85, ss. 23-28 454 
 
 39 & 40 „ c. 36, s. 52... 151 
 
 39 & 40 „ c. 36, ss. 66-67 501 
 
 43 & 44 „ c. 43 505 
 
 46 & 47 „ c. 3, s. 8 455 
 
 52 & 53 „ c. 46, s. 1 559 
 
 52 & 53 „ c. 46, s. 5 153 
 
 54 & 55 „ c. 39, s. 40 8 
 
 Steam 
 
 injury to goods by 36l 
 
 Steam-ship 
 
 definition of 153, 154 
 
 Stevedore 
 
 employment of, no excuse for bad stoAvagc 440 
 
 employment of, by shipper ... ... ... ... ... ... 447 
 
 eftect of a2)])ointm('ut of , by charterer 457 
 
 not one of the crew 335
 
 J A" n r.x . 
 
 rxi 
 
 Stoppage in transittt 
 
 of goods in (luarantlne 
 
 by voiuloi- 
 
 not cffoetod l>y mistake in di-livory of goods 
 Storm 
 
 is a peril of the soa ... 
 Stowage 
 
 damage to nuts by negligent 
 
 wine damaged l)y negligent ... 
 
 sugar „ „ 
 
 of goods alongside others of an injurious nature 
 
 master bound to attend to . . . 
 
 under deck is implied... 
 
 of cargo amongst coals 
 
 if negligent, is not protected by the exceptions ... 
 
 bad packing of goods does not excuse negligent... 
 Stranding 
 
 of a vessel is a peril of the sea 
 
 damage by, when voluntary, is not general averag* 
 Strikes 
 
 meaning of 
 
 detention of ship by ... 
 Substitution . 
 
 of master 
 Suez canal 
 
 via the ... 
 
 efEect of compulsory pilotage in 
 
 regulations for... 
 Suffocation 
 
 of animals 
 Sugar 
 
 damage to by negligent stowage 
 Sundays 
 
 when excluded in demurrage 
 Sweat 
 
 is a peril of the sea ... 
 Tackle 
 
 delivery of cargo from the ship's ... 
 
 master bound to pi-ovide proper 
 Tau 
 
 expansion of by heat . . 
 Tarpaulins 
 
 goods on wharf must be protected by 
 
 PACE 
 
 53S 
 
 rm 
 
 032 
 429 
 
 
 o 
 
 41, 
 
 440 
 
 
 3 
 
 3, 147, 
 
 374 
 
 230, 
 
 440 
 
 
 377 
 
 
 415 
 
 
 401 
 
 
 4}t7 
 
 
 4S0 
 
 
 407 
 
 
 346 
 
 340, 
 
 347 
 
 100 
 
 
 173 
 
 
 175 
 
 17.-. 
 
 17f» 
 
 
 513 
 
 
 3 
 
 
 320 
 
 305, 
 
 486 
 
 
 241 
 
 
 45(i
 
 cxii 
 
 INDEX. 
 
 Tempest 
 
 is an act of God 
 
 Thieves 
 
 Theft 
 
 by crew, is not barratry 
 Through Bill of Lading 
 
 consignor enters into one contract only ... 
 
 constrnction of clauses in ... 
 
 limitation of Eng-li.sli Railway Companies' liability nndcr 
 
 limitation of Indian Railway Companies' liability under 
 
 responsibility of carrier under, when limited to its own line 
 
 responsibility of carrier nndcr, when not limited to its own 
 line 
 
 goods lost under, j5ro rata freight not recoverable 
 
 contract entered into under, is with the first carrier ... 
 
 construction of contract in 
 
 carrier under, when entitled to benefit of Act 
 
 carrying company liable for goods under its control . . . 
 
 conditions extending to others than the carriers servants held 
 unreasonable and void 
 Timber 
 
 jettison of, from ship's deck 
 
 carrying of, on deck ... 
 Title 
 
 to bill of lading 
 
 to goods... 
 
 To A, B, OR order OR assigns 
 
 Tobacco 
 
 damage to goods by . . . 
 Ton 
 
 payment of f ix'ight -pn' 
 
 To sail with OR without pilots 
 
 to tow and assist vessels in distress 
 
 Trading 
 
 not contemplated by the policy, when justifiable 
 
 by master with enemy, is barratry and illegal ... 
 Transfer of property in goods 
 
 under the Statute IS & 19 Vict., c. Ill 
 
 transfers the contract 
 
 by agent, for valuable consideration 
 Transhipment op Goods 
 
 provision for ... 
 
 when vcEsel is cliiabled 
 
 PAGR 
 329, 429 
 ... 334 
 
 103 
 88 
 89 
 90 
 99 
 
 100 
 102 
 106 
 112 
 120 
 100 
 
 102 
 
 384 
 384 
 
 26 
 249 
 
 248 
 
 449 
 
 280 
 200 
 210 
 
 205 
 319 
 
 611 
 615 
 648 
 
 428 
 432
 
 INI) E X 
 
 CXIU 
 
 TunPENTiNE r 
 
 damage to goods by snifll of 
 Ullaoe 
 
 diunagf to cart^o liy ... 
 Undkuwuitkr 
 
 liable, only wliorc vessel pursues the prescribed voyafT'o 
 
 discharged, where no pilot was on boai'd ... 
 
 •when liable for jettison of vitriol ... 
 
 liable for fidl value of cargo jettisoned ... 
 
 may sue for contribution in the name of the assured ... 
 Unreasonable delay 
 
 in the arrival of the vessel, damages for ... 
 Usage 
 
 authorises master to sign for the nature, quality and condition 
 of goods 
 
 justifies consignor in re-landing cargo on payment of 
 freight, &c 
 
 admissible, to explain bill of lading 
 
 presumed to bo within the knowledge of the i^arties ... 
 
 that pilot should be engaged 
 
 to carry vitriol on deck 
 
 when lien is claimed under ... 
 Valuable articles 
 
 must be declared at time of shipment ... ... ^ ... 
 
 Value 
 
 of goods lost or damaged, .shipowner lial>lo for 
 
 Vendor 
 
 right of, transfei-red by bill of lading ... ... ... ... 4, 
 
 right of stoppage id /rafiszVii 
 
 right oi jus disi^oncnili 
 Ventilation of cargo 
 
 master's duty to attend to 236, 369, 442, 447. 
 
 Vermin 
 
 damage to goods by ... 
 
 not a peril of tlie sea ... 
 Vessel 
 
 definition of 
 
 unable to enter harbour from over-draught 
 
 detention of, by accumulation of ice 
 
 sale of, by master, withoiit necessity, is not a loss by 
 the sea ... ... ... ... 
 
 with clean bill of healtli. entitled to pratique 
 
 expenses of disinfecting, fall on shipowner 
 
 AGE 
 
 449 
 
 442 
 
 109 
 206 
 392 
 394 
 394 
 
 68 
 
 34 
 
 36 
 63 
 171 
 206 
 392 
 5.59 
 
 505 
 237 
 
 615 
 568 
 652 
 
 449 
 
 
 
 413 
 
 
 413, 
 
 489 
 
 
 153, 
 
 155 
 
 184 
 
 .. 1S7 
 
 ,321 
 
 458 
 
 peril 
 
 of 
 
 489 
 539 
 542
 
 rxiv 
 
 INDEX, 
 
 Vesting pace 
 
 of the proporty. tviuisfors shipper's rights ... ... ... 01.") 
 
 Vitriol 
 
 stowage of ... ... ... ... ... ... ... ... 302 
 
 Voyage 
 
 cannot be altered l)y master ... ... ... ... ... ... 161 
 
 prescribed by custom ... ... ... ... ... ... ... 108 
 
 must be complete before freight is payable 200 
 
 Wages 
 
 of mate, on assuming command ... ... ... ... ... 100 
 
 Warehoused goods 
 
 in cases of transhipment ... ... ... ... ... ... 431 
 
 may be detained for freight ... ... ... ... ... .... 546 
 
 Warehousing goods 
 
 by master, where consignee fails to take delivery ... ... 518 
 
 Wear and tear 
 
 master not liable for ordinary ... ... ... ... 235, 490 
 
 Weather-working days 
 
 meaning of ... ... ... ... ... ... ... ... 320 
 
 Weight 
 
 contents and value unknown, effect of clause . . . 58. 225, 226 594 
 
 to make clause operative, goods must be delivered in good 
 
 condition 601, 602 
 
 Wharf 
 
 goods taken delivery of, u^wn ...15, 139, 247 
 
 goods on, must be protected by tarpaulins ... ... ... 532 
 
 delivery on, with notice to consignee sufficient ... ... ... 503 
 
 Wharfage 
 
 lien for, does not exist without express agreement 559 
 
 Wharfinger's 
 
 responsibility ceases, by delivery to the mate on the wharf ... L39 
 
 Wine 
 
 leakage of, from improper stowage 41,440 
 
 Working-days 
 
 exclude Sundays and public holidays 320 
 
 Worms 
 
 damage to hides by 446 
 
 destroying a ship's bottom is not peril of the sea 489 
 
 Wreck 
 
 cutting away, is not general average ... ... ... ... 407 
 
 York-Antwerp Rules 407 
 
 average to be adjusted according to ... ... ... ... 406 
 
 PRINTED AT THE ".MERCANTILE" PRESS, K.4RACHI. 
 
 1
 
 UC SOUTHERN 
 
 ,(V 000 758 419 6 
 
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