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 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.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 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 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 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 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 was very anxiously discussed whether such an exception should be introduced into the Code. lie says that the free 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. 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 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 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 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, 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 ^ ° i FORMS OF BILLS OF LADING. FORMS OF BILLS OF LADING. Ill o ^ >* rH ce g ^ rH O t>> ;h rO o C^ r^J =+-! 1— ( O 1^ w a ^ 02 .2 o 03 , t— ( d well con ed the ^1 OQ a s M ci d O 0^. 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S G C C e3 rt ;^ ^ » ° ri^ '" ri: ^ fc, rQ .» .„ tn G a) 8, SP ° o § J ^" g >^'^ w tn G G ^ 2 '3 c -S ^ 5 rt' to be ^ '^ ,^'^ ^ -- "^ C3 M t£.2 i; " CO 0; ^ •2 M is J3 •" o fi '^ P~,< ■" r- i-i ^ o a JP S o 2 ^ > -1^ S^ M o " O 0:1 S -^ ^ d -^ ;h d g O O eg 15 ^ ^ EH -*^ rrj d O •r-<'lj '^ c 2 ° sti 1, '0 2 o ^ o ° -J ^ 1-- - ■•? o ^ s =?„ ?^ ^ &^ o o ic g ^ "^^■^ ^ S V J o ^ _. ^ p 55 :S V I S ^ « '^ g C o- ^. ^.s § o o = ^S § S^ «= o P •" ° O O -«-' „ Eh •" o g 5 T- •£ 13 5 ?o 2,% CO- § 2 ■^r^ 2 fi 3 § S '-' S ° .2 « ^ ^ Sf a 2 j- 2 y M '-' 'C o ^^ ^oS C O ?, f- ^ .S CO O O o 3 '^ -M ^ „- .9 d 3 t^- 2 f< Q r< S £ - 3 S ■: 2 3 VJ s "3 O-S ° P s o P o 3 ^^ "^ r> -« S O « O r-3 " ii .2 .=! ;- ^ 5 ^ , ''i -w O O O C5 tt O CO bO >i o - .- « ^ Q O " - 2 ^ -^ FOBMS OF BILLf^ OF LADING. vii Vlll FORMS OF BILLS OF LADING. o Eh < I— I o 2 a ^ 4^ :5 sfi Xi , -f^ CI S '^S C3 !-3 Ph O 2^ O M «4-l O ^H O -a o 'o ^ .3 =^ o d O > 02 >r3o jij 0^ •r-l p C •IT' 2 _o "-+3 Ph 0) o H ^ 4) O -+J o ^ -p o ^ -♦J o ^ s S d rH r^ 0) K o J?. 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O c3 Ph Ui O) r^ bD M = CO ? 0) ^ « ^" •2a2oC'Ho2t.o >> CD O S C- . 2. o o o o <= B, f- ^ ^ O '^ c 3 ^ o io c 2 i =S ^ 3 '^ c a jH O 5 o -c .2 i; U O S Oi O 1= o o .;^ -4J 2 i; o aj t- i? ^ CO O o o ^3 pq •^ ^ CC p o p rt -i£ O t^ C « c3 -;r .•t; « -^ I C 5 FORMS OF BILLS OF LADING. ix ^Sa O — ^ «;- O iioo ^^ rSC —3 " a? -r '^ ^ ^ O =6? a p=2 ^ Tf, to S3 -uFi^O^^^JSso r^M o 5- <2 -^^^ ;=|::::1 «*c: ^o^-=5"^ ej 2= -^'t -S^tS o o^ lo ^ogt.^-igo 2:^J M o a o lO .s s: f -4^ -kj h CO >, z; n — A E 5 _, - 5 o i 2 b^ O I S3 S : 1 ^ § ^ -^ ^ o 3 V- = - ? .2 = i P S ^.-T' - § " J^ .2 S S ^ S - o 5 „ I- s - ^ Q § o 3 > ^ I ^.. ot-^5^5 ==-SS^ J °=2oOO_^|^^2_jSi5o^^^3 ^•sitjt. iJ^I "^ li"^^ ^"^f^^ ^§"i5;i g^'=-is l-2f ^ i-^ >.K ? c I = 2 o •!=£ = :! ^ = ^ "S r -f o 2 it :.- ^ ^ ^ ^ a3 ^ ^ -^ - i; - ■-- i: -^ > 5 ^ -, b.5 9 £ 5 -r ^ ^ I' 5: := ~ •?,- ^ ? P 3 - 3 i-a -S^J^ ^ ~ 15 ^ FORMS OF BILLS OF LADING. en 5 I III i22^g "Ig-^'l-l^l I- r 1 ^ ,_. ,-4 S »-^ ^^ r: r^ "-^ , -, -i—i < ■ j i— ( 5 br rl Sj '4-1 ^ "S t - t! cv -^ . w .. ^ '^•^ r-i h ^ >; Pi -^ ;:7 s .IT-^ -in --! -^ f^ .a ^ M 2 g ja" -*J a •^ d r^ o rt be rf •4^ 02 CD o t> O •;i o fcl) CO i O ^^ -t-i Pu, ^ C£) FOIiMS OF VJTJS OF LADTXa. xi _ -• ~ ° i; 5 •:: - I--. •- c= ^^ ° 00 L. ~ c ^~3 v.- v! .^ ^ — ' ^ -3 «■- C3 - p ■£ '-^ i_) . « ; tc -3 "^ .~ rt = §^,-2 2 a 2 if- =- -s £;■•- -/= i: I P 2 ^ 'ii '^ I ? "i i ~ o "^ s 5:;"5 o "'■^ - I 7 2 E.'S =^,^•2 5 J- s s ^ ^ a o '^ d CD •^ g- o wi. __ 3nS"ii~-,. ^^ — _ . 3 . J *. S Q ,„ a) J) ^ _ H_, ^- S „ 5 3 t^S o&ga-2ic-".2_, ^ -^ ^ >-, ^.r- =5:_^-2cSo5r fc 2--^ S'" - ~ s'-'iJ =* «:^ ^ O"-^ - , >.-i: ° ^ S i f 5 := .^ £ £ - " - - ~ ' -" - O 5 < o S^q3 r^ r-- 1J 2 ri •73 -4J oj c 5J Pi ce ^ So t>^2 i,r2'S--_, aj N o o-r^ 3 - ^ .^ S £ o ^ 2 .i 2 ^. « -5 .tc o s ^3 -. ti ^ .t5 i 5 ^J " -3 S a -^ :S " ^ --: S .-( C CO -C— i O ri ?— ( O h- ^ _•" 1; 5D ^ o- ^ -t-< !2h » .if .2 - « ? - o o'S'oS .2-^ww = '-' o "^ -3 (- *^ .=" c -. _ -£1§^2S§J5 ^ 5 =♦, ~ '^^^i^ o .-3 O o ^ ^ to c.a S a 3 =s r; a, a ■: « xn FOBMS OF BILLS OF LADING. ^ O 91 U ^ -p'^._2 p ^- o'-« S _r o .^ a r:; -w ^ 1^ •^ p^ 'C o ^ p^ o c cc r2 C ^ eS ^ -t H ^ CL O S 1— 1 t> S < ^ M g -^ >•* pa 2 en ^ cc © M o Q .2 H O 3) H^l h^ ^ "^ >. s o (—1 S! eS F^ §1 ^ -1^ •c '^ ^ O •r= l-il: jj 1^ 1^ § P ^ ©' s w 1:2 ^ 6 •- '3 CO ° t'^cS 13 'C - t. <1 S= 2 tt ~ '5 i d .5 •« S o ^ rt o P O =4-1 p ° !Ho 5 2 t/, ^ /OD ^ p^ <; « o 5 ^ a = ompany's Ec anal : Companies or ippers The raiut of the ms upon the ( time-table ai he said term ompauy shall Q § >-. ft s — i.a p t'a a§ rP -P ., subject to the C^ istward of the Suez C; els belonging to other the cooper ition of Sb vitb or without c msti d do not eutitle to clai hs af.er the Steamer's als 6 months after t to be lost aud the C 3 s &>> »- ^ g P '-i Is p:.p r- OJ £3 c ft? ft !3 P^ CB - 1, animals, etc to the service es pany or by vess he ship without ship or after, ^ e'ivery so causei ;tination 2 mont ht at non-arriv are presumed • 'T3 . Pot... d by Shi ompany ; eclaratio discharg Compan; > ,c-^ ie, valuable? ial reference •s of the Cora e Master of t arture of the xys in the di ir port of des e total freig table arrival quest be deli lara.tion. Th tents with th they are to mbent upon 1 Goods, spec ct with spec by Steamev Ag nt or th 1, before dep pense. Del; ot reach the and for tli r the time- ompany's re untrue Deel mity of Con de ; if not, shall be incu 's So2''< c^'2 a 2 t e Confer Ship's si positary s s-^-I-^pS^^II PP2'-'T3«gc a ^ p PHJ^O-iiftcOo -t^ Ca — 57 t-'.^acePrr-ai, p p a tnesses, t over the orderly di rt £-3 oS-|-;?=l| »»-i j3 -w « 3: .3 ■p ft C * — > 'd P o;5 a ^i cS ertake ch the ed tot ;• theC an ship amers except mentis (f dest of two deliver ties of a §1 §•- ^oi .0 o-g ■J3 u 3 d p °-S'S ^3 cs -T a tN OT ri u ^ ^ — J l|ti^s E-^ ^ !^ cr S ^ " a ''^ ■" *^.p 5:"| 1 5 ". £> S g 3 .S ■^ s* ^ M K cj U B ^ « FOmrS OF BTLIS OF LADIxa, xlii oio .^^^---sco coj ■^^i;>. _ '^^S --a ^r;5 /WjTJC^s^-a c^^y c^- = ^ ^"^ t:^ '^a a ;^' « - ^ 1 J : :^ c '^ •■ ^ ^ '^ ; i [1.^.5 "S --? ^, - Q, ^ ^ *. 57 c^^itrt £"5-3 D.*". MvjOa.- Pfor^ 2-:-£i;3 £'-5 'S ofl J-,ofcoe;^^ .3-,^ l-jztz'^^-s .'^^r = ^ ,.= ^ £-e c3 eg pj:Ua_-=^ti E^ai- S'-::-^^ tea '^ Z 'x, '^ -- VT o-^a 11? ^:3 _; O J; S|^ a beg J ^^'.'S :^=Si:sa^2 c-^''^ ^7 = ? ^.S-^f s.E. 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'^ -^-e S^ 2 ;§ i^'-g^ .te 5:5 a'" ^-^ ^§ Jl^s-i-.'^'g.^ al|-^| ^ll-g-l i|i"i^> 1'^^.^lc'g^ .-3 ^..S^; /^ • •■- Sa-^-^-^IS '"'a^S-j^.g i^l^s^J^a-i^--^! •g-^3=:^^>s^o:g-|.l .|^j|.-5.|;-.i^'S''.g |=:u! mj •-.f-a-it.'^M a^i3 ^ u— ii r* 3"^ C-— ii o^ao ^ n XVI FORMS OF BILLS OF LADING. s-^ 5« "5 _ 2 ^ 1| S| '2 ^ r= a '^ 3 o ~ a M --J c o .£5 s a > -a o '5.2 P^-5 P^ M « M r- ^^^ Si FORMS OF BILLS OF LADING. mi 0> O. at S -25 t— 1 KM Eh ^ 1— 1 fc, to tf tS'x 1^ ® a w X o g a O CO c I— I o o G 2 >»"S bo > OH bo P5 P3 CO o O fc CO Ct. a Q a ° >» -i^ J « !z; O o - =1 r "^ bo • a M ^ Sfi «rt «« -s Ph p^ e»? o 3 ^ o ■^ o P. ■" •n t. 2 o . .9 ^«> a< S§ too ^ .3' o =4 .3 c^ B ft, £3 O O 'a J*Sft 5.H c? £ «*- ^ -^ 5 >> « . -^ 33 — ' o o Q So a J ,.-. j:^ fc. -" H .3 ^? o = a> «^-pjo^r..^ 1^21 a filiates C — 'A ,-1 *-" ^ t- *^ .*J 3 .^ W C ?^ _, *^- ^ -*! — ' t|H ^^•i £ o Q - "►-:»,> — X L. -- « rC^ 3" ~ ^-3 -j; =5 ? a "<^.£.£.^^'w M oTS- r, ^, 2 K O w 5 a; • a 3 o S S a _- j; 9 . a P-= „ 5 ^ r a t. (. = -e >. > : ^-^ - Q ; i; S _- 5. ^.^ o -r -s ;s -3 r^-S " " " ©■^J^-SoSfe^^o^a^:??;^^^-^^ ^ - cTO - C "7 ^ o ra Is oT „ -« '^ 9 o rt o:::^g ar= ?^^ c3 t- . eS.-ii 'a 5 o 1- ^ w '-^ ^~ .^. c3oi-.2-^Sa :" a S ^ - > a _ -Oa"o = gc!^-c vj^ - c = - •=* = ai)C--£^taw^'^i'a,a -»^~C -> '^:3£Otfi^'5.£:'-„-.-^=s'-~ ->ft-P^ O^'oQcg |,S ""S gir |_~ ^"l^g g .-^M^J C e £^-5 to rj »r >> :S a '3 t- ■w 0) o f -a o 5 CJ £.; tt-" '^ a -3 ■" "= " tec ?-— =^-^ Pf.h 5 o ? P^*^- ^':§ - ^ a u = ., £: o.— s»^ . be c 6r3 E-< X » c-'5x:-3 !;5--^oa-rcB5Bsg^u -pBa-t:eBrtB = P-=« c .a © = & - i :;^ "2 § u c 5 j= « a a s '« 9^3 S QE a XVlll FORMS OF BILLS OF LADING. t— I P < O pq CO 1^ <1 EH 02 W ^ P5 o M QQ a o o o -^ -** > t! (-1 '-^ °^° J; CO O O Oi .2 li y S P o re ,1) CO «tH g-g ^^ C "" rt 5 >, ^ >» oj r ~i fi "^ ri o rt-!^ :i o 1 ill 8 o -^ ■■ ^ (=-» . ? ? %^.^ O P. ^ If .i3 ? «> R CO _0 9^r^ r» ri C5 C3 C3 -^ CO CO CO r^ ^i "TS r2 -fl "^ H CO 21 .jj o fl CD r^a u o ce to « 2 M S S5 g ^ J ^ o "^ ■f^ V cc ^ O " S S ® ac3 a -^^.2* .««♦- o "O n o H "2 t3*3BbAoa>r- ?< « " ^j o Cj 05 sp, P => ft a o g"^ £ >, .„«" >4 c.S ■- c a a s- i- o o 3 3 ^ ^ £00 .gs| -H-s^ ii^o^ ^_-^-S i; -s g -a "i* aj '^ S", .s -^. to o o _-,a *j a a ^ ^^ - o iils^ -t 1;-^ lis -|c.|o tilt "s f-^ l3.|S| sslsts .s»a II ;| Jill I |o S-Jb-S'^ «o .-Mg„ Op^x ;5Sat, S^S,g « et-ifl iS'-^s-s H'p^l^l ■^f'l, o^^i g5?5. 2 :e2 5 ^"^ '"" "" lS-"i< "^I-SSu "ciia t, ^ M®:*! b-g-s^t i^^2.«g _-|^-; 1=11-5 ^£'^1 s aJi >> -a 1^1 11 t-^ii I'll t^^iiP^ ^ ii «Jo.2 3 32 g.-^l ££:| 'ggi^Sl-njigl' ^ ^a" sE^^l -^11^11" <2l-^ J^-si-^jMll -^ 5^ I^T,^^^ °^§lg-i 1 = 1 j=3-1l!li^ 1 'Si M a < Ill!lil|ii2||ls1.!lli|l iiit||= z fJ S^_SD.ruu 53 S-5 — "e^j— Ooo2 !«^ ^^ o^to'^3 "C*-" ' 6--^- '- cc - Cav sx FOmm OF BILLS OF LADING. o s S? o « O J c^ CO -fO u C T ri4 ^ o JH ^ ^ p.°^ ^5 s ^ ^ . c3 a> /^ &i ^ ■f-S s t> '^ a> ;^ c3 ri IH c S-^^ p< 1 ^ t€ S cQ o rt pd C cc •-" -p S o > u F::; ;i; ;■ s -p ^ ^ o o ■-< . ^ ^ > -P "T! -P TJ ** -5 jj '^ O o o > >::; A to .2 to to .a n3 (— t ai c to c5 fc£0 3*" to o ■p 03 CO '-So' •- rJd -P CO ;^ !^J '^ ^ g ..-^ fH o O .in CO -p .E-"^ 0) d ■^3 O ^g .2 5 'Ti u "^ 3 °*^ ^-d ft 55 0-P12 rfl-=) CO ft o o « o CO CO ft '^ ft d t3 i=l O w O M cj ta .2 i^ * o o ,_, o s 5 d !-' 3 ^ ^--1 d fl a « E '0 c g •s 5^ ^ if g g 0^ la C -w -2 - '.(-Tj © S « rt -S^" IliS ri cs a ® s s^ ^:3o °2, o © -2 o 2^ t>i O U 5=0 cS m d o ^ rt u H O <2 O c3 - c rt S a > . o '- a J3 a -S ." -Q o o f. § 33 a' & £ &;» ? o s g S «0':B g fl to © a; rg " m'a s 'T _ '^ 0.2 ^ &i a 'CO 57 o ,M = C C ™ © ^^=•5 © rt ^'O © >-r^ a ? s m "^ © «- © T) 4) ^ '^' ^ o t a a o © s ■© fl U2 © «-3 53 O p. m g ci rt s ^^ p .2 ^ p^'co O ■5 a g-W y_^ © Z -73 O O o ,a © © — ' 2 a jj a 3 o a o e.B' rt '"•'> • r- ^ a © © I- jt -^ c?© 2=2 tp S lo "73 O PI ^ o 52 a rt =*-! rt ■S J2 -r! c ^ !^ «^ d ■p 2 1^ S CO r^ ;' P CO y l"Hug S S .2 •SM D.3 s^a>&H •r, '-a "3 © © •- 5.> ce o s ;< FOR}rS OF BILLS OF LADIXG, xxi o a a ' ?^.JS^ f:.le^ ^t -it's -i sr-fg-g feo .§ I- S-S t52 ^S| SS5H ^S :^25 '^ y & o « =* ix ^ o o^ o ** 00 --3 -« =^ o g, o'ai o '5 o' o — ^ o ^ "-3 D.-Z; «> a d «= o zjZ. = ■^ cS ^ "T- o S rs to a c ^ S^ " 33 = ? M ^-s £ 2 a- 5"! >.g > ts tC P^ O •=' u -^ no rgin ion t toC il c ^ "t^ *- d -tJ _, > 3 O o ^ 5-^§ o ^ ?3 M * >, -S 0=*- cc r£ c J c g >.« «-2 to g g a"§32 - o^ '^'^S.,^©-^:^^. =">-=«r^x2 _"_=1.9J-:Se.M ^_:Sj ^2-3 S^|;:S>^t-2 If, S-« bc^^gfe-Sj c "•'^- ^13 « ^ S ° 1 1 s =^ 5 o S « £?° > ° « «g J-^ S = ^ ° -g s-g-tb 5^"-:S &-g, Sl-SSa all ^'--s |S'S^"3 o- -fJ^Sa tc£ .25g-g ^o>;3 ^gS" -^ "^ o S o ^^-^ .S ^2 a -g 3 i^ § « J o .S a rf >. S a 2 o^ g r^-^'S J 2^ S^t-2 3 =-sl §aoS e'^^if5-i2 2 ^ = ^^ >>J -si-^s -^'^-fe^^^gj «*- S 0-- g"^ - -5-== o « >.„ u >. g £.- § ~S-3 'S«"Sgu=^ §=-■!? Sl^ 2 °Sc§;, rf^-i«-^o^a=;:^£=-^i:„ ^ii ^ f'^ c'-i;'--; oo:gS"=.s.^ i ^ !£ ? g ^^^"^ ^ . S£2° o7^i--" c^ =^ i.'s-ro ii-3 S-^ i =.= cog ddg^^E S =^ » S H ^:=2.1 En's ^ fe E.S= ►S « -S « ^'^•■e .= u g ^1^ tco g, ^S2 3,i-tS "O -^cu- 3 "^d-SS £« *j ^J-Ja •J- E S-J n &. a-g 2 '-•C ^33 •E 3 " 5 &^.2 c -3 «■ 0.5 s-^ c >>'dla 3 rg^ >M X d S.a zxu FOBMS OF BILLS OF LADINO. rt £ e fB u o O g. O M O C i) . .5 5i X »: "S 2 o o -e ^-2 £• c 2 2 s -^ ts is p>> 00 3 o o ?- ^ ^ O 2 , >< .2 ?-3-S 00 5 O y ■-? a. ST. J J O ^ to J •P -P ii C cS Phh3 Is -p ,- 02 3 '^ 11 <^ o •- o Is tc c:2 1X5 > O J CO 0= ^ O s -p o o :2 S O CO -5 > rg ^a^'i-2 3 '-1-2 tc^ C o ^ >r! '-' « -U . rr O ;. go & >'^ -p ^< o S fl « ^ -P cc jr; '^ S «3 ^- o o o ^ "^ o tf O CO C o S; -p -P rt ,&■ P* P ;^ O-Ir r* ' y.r.Z. "Z rr. > c; S< '/j r" CO O S O o^ ■-' -p -p bD tr..- C.2 -p H- ' cJi' — -r -^ . ^ c^.^ r2 ;+-i cc 3 ^ ©"^ 5^ c y -=p^ 2 c IS OS r. CO ■•' — ; -P O r m " .2" o ^ 5 >• r5 -p ^ -^ P- CD ^ H -P P ^ o a §- ■Tr "^ ft c rs -*J ft o -tf tc ^^ a i'2 S S S , - o o ^Ti a ■% -^ M.2 o •-; S > -^ S^ .r- o r; -ut d o) -T" CO " O •;! -^ ,__^ o i: g ** 2 S o ^* rt 2 gag ci tt) 2 7> cj to ^?§ ^ o - d M 5 o « -^ u Q a r~ S> "' a M.d CfJ =tj '-+4 FORMS OF BILLS OF LADING. xxiii S ^« «^ Ef = .5-^i go § S - £ :^o2 " .= " -S £2 "i gaS^K^S a-f "3 ^.S ^ o ccEo „- 2 ^ l-^ II ^S fl^l^^S Sc| ^a -5 3 g 5^5s ^ •s^ si l!-rsS|!i!i ilaijl I! I illi I li ^ ■.•:: t^ -3 -^ ^ a =• * = «-=2u -so g-t„ac-) "♦•-S «= I o *" cT § ti a - .«=^-gc 5 o CS.5 ti < ^ 'M-1 so-3 f ts>-si.2 -^at^'i-l 5!- i llJl-e if J.I 3 '-5 "S '-? 5 >>r 5t 1^lo^-Sl°f^ ggiogS^S-i^ -Sllls-f! lay=S,^ o O ^^ S ' - l=fl,-o|- = .2|x J r^— sj- fctc-^o-3 f; s, « -5 - " — — r" -^ i ~ ■- ^a >5 ac — -ioja-^feS^i w r „ « e, >,>.« c a 5 b XXIV FORMS OF BILLS OF LADING. Cm O m p c3 ^ C3 W S % •- <1 W H m Ph O H ^ 1— 1 >> k1 O ^2; )5 o '2 cc o uq ^2 1— 1 5 > r' o r' c _5 1 -^ c IS O J E ^ " "1 2 O e3 5i s^ _ Xi o s ^ .2 == o £ c ?: J ca <1> 3 2 ^ H 3 ^ .■*3 • 5 « W M 2 MO? t'o ^ :S ^ ^ o ^ -a 2" o J T- r^ -S !^ O f^ O ^ -M Pi 5 Ph m S i' 13 u _^ -O 'S C o O tM ci o o & ,g O ^ ri (1 _c O 6 5 c! ^ m o o rt M &. .5 O -^ 3 C5 en o "3 o CQ r-; M i o 5 5 -e 1 S « e3 w § S to fi o tM to o .£ ^ 3 'S 1^ CJ ^ _-« ^ 13 o o tD o a . c3 -3 .5- o a o .£ M O ^ o ,r Pi -^ eS OT eS ^ "3 o o ^ o ■^^ ^ a O 2 S =3 so S ^ .f o »< o ^ o ^ S t>. (>■ S" <2 3 « 2 _& o o M *j e D. ■£ ^ s OJ c3 ai p. -^ o o. C o — (C fl ^ > o M O g CI d O o t— I TWO flog ^ — -" o := o a .-S f^ -a o ^ ^ fe «- 3.S3S2^ .- o ^ ^ 3 ^ 3 5 _ ci 3 2 ;i. " ■S ^ § 5 f 3 to o ^ I i «« o § d ° o w d -g "S S « >; -^ g I « a g « o 3 -^ "3 3 c. H ^ - J4 3 S O iS 3 . I; P O S g E I o 2 3 =i s « ": ■§ I -2 3 2 I >, — > tc ° O S 3 t>> S C " 2 ^ w ^ |b S^ -S O ^ - g ^. a I ; p: I § ° = d «! O 03 t. 03 ^- 2 ^ to o B .i2 03 c •" >. ,M to c« - CJ o -B ^^^ oj CO J^ ■S » O 5 ^' r 2 3 ^-"^ o. ^ ^, ^ 2 « =0 -a .5 o -^ o fc< ;^ , a-S P O l< > -i- O .-, — 3 oSgog-^gtco j= Ai "C = d 5 "s a » *^ M - * j; ce ■ -6 -.^ S r^ *^ !S o 05 • > * o 2 B ,Q •id c E « .2 3 - - -2 a g- .2 .2- -9 FORMS OF BILLS OF LADING. XXV ^ « 60 -C S ^- bo _- o -g ,- I ^2 a '^ ^ " a n ," ? 2 r' "^ be ca = -a s 1-^ ^ o o ~ ^ o a •♦J w XXVI FORMS OF BILLS OF LADING. o — 5* ~. H &_. 2 .O •« rS a fci o S 5 S a .2 ii -^ o a Iz; CO tc -g o c o S =5 ■^ ^ ^ " '^ ^ o "5 '=' '§ S g 2 S &» g II g [2 5 S « g S .=" •= ^ ^ -s a S fc to ^ a S M be 5 g h1 ■g !3 a 6: ^ r-' t» 5 ^ ^ o cJ p. C > fc H P? tfi O 'Xi '^ o -^ ^' ^ :^ a ~ r 3 ^ s^ bo CS 4^ r^ tc a ■[q "o tr, 5; 3 '/I t3 -5 t-. S C •S 'S "2 ^ "5 o « o .i: t> t. p c- ^ s ^ t^ 1 2 ^ § '■B a 2 c e ^ t: "5 5- "0 °o c ^ e a 1 © c .gi Si a o o u ■g O ^- c tB -«5 tc S3 'S s _o ci oi S ^ «*-i ^ C3 1 a tD a Efl b '3 p. El 0^ cS ^ ■? tc ■^ g to 3 ° o la "§ o l» ■*j J5 tB j5 tJ . e t< -2 C5 2 s 1 c3 P. a c3 5J _8 Cl '•5 2 to n § 13 so < S S ^ " "^ § s 3 Ti g c S" •e* © 0! ^ -3 ^ _o 13 *s s '^ s >5.fl?? I 2 s § H- 1 a I i? £ "S «5 ■§ P< fl be H > .s ^ c- o =^ c: -3 5r o •— .= :_. C -.fl ^ M Fnn^^!^ of bill^ of ladixg. XXVll .2 a •? 5 ^ ._ S a tj -3 c 2 ~ "3 o c -s o ; o § .s g jf i;c ■£ t-. "s .2 ? ^ •5 5 c " g tc -a 2 "5 c t: _ 2 ^ S .a cs 3 '?^ )4 S « « a — 9* ° a 2 = es o S - 2 S a J g S. i i = U 2 ^ ^ «5 S o "i o t^ " tc c - a I' " I 3 CO e a -s TS « «= O ti t- . a 1 1 ° „ _ '5 ■§ o g 5 3 fc "5 •o « 2 « . 5 ? c j^ a >■■ -3 o o S 2 S ?f =■ V b ■2 .. 5 O O ■'^ p fcj t-J 01 (S tt ^ C o a > P-. t4 tc o c ^- o 1^ I i ° O ^ --3 5 o -5 a 3 to 2* <2 a •£ tn 1 ° (2 2 •- « -s -"^ tc fo S *"* ^ ^ y ej t a" ■3 2 III fc O .2 u !^5"qoS^,_r te a H H « M « ^ o 2 t» g ^ !3 ^ Sag fe «. 1^ .° ^ a a " s ■" ti O (B 2 ;- J P ° o ■ I s I i a i5 to a a o. J) _« 2 -ti S 9 a 3 a o 5 ^ ^ « I S S 1 <« S a c a ja B a > a ^ 08 a In o a S a , a b a fl fc. ai to •TT i; a •?> * C! '^ o a /.X,1 a i >:•, o f, a '3 — fe u <2 a 5 J 1 1 .2 i< CO 3 a — c — • ° 5 ?? >> .f a g S O m j- l" o ■~ . T. >^, a > « o " -a e J3 ^ O -O 02- » xxviii FOBMS OF BILLS OF LADING. § E° 5 To .^ - 3 :f u 2 5 ? S S S ^ ;^ 1^; p. o a. m £ 01 a. rt cl V p. o ci s 'o 13 to X S rt r- t- cS J o C o o Vj c p. ^ -^ t: © tl) ^ S o ^ G^ o tfi r CD i^ '^ .r* OJ "d tc -P 1- ■« e ff> 13 m = t! o ••^ ° f O ^ " ®, 2 £ t: S ^ O ■5 :g re g o 2 2 b ^ ;- 03 ^ ^ - r^ -»- c 'S •S "5 * '^ .5 &• - .£ "^ S 5 =1 £ ^-' ^f i- '^ ^ "i c3 - J I i I § ?c S c^- o tc ". S 9 g 1= o I Jill Nll^illll |li«l 11 B ,i;i.lt ;ili lE!li"mi ill H £ " ; :s -s !; .-s >> ^2. > i5 cS '« O. -a ^ h a "' a OJCU'n^ 1^-Mr- -ZiiS'— ■" O.-eS 1-1= -t; M^.-ticsojn B -i; P. = O ci _i ai r/- M C> 't^ o .t: -r 3 «' -»:. s ■= g a trj ° fl S !« i? » J —' -^--v ^ v/* "" "z: ^ r" 1^ *" m ^~ Ci-^ _^ -*-» .. ~ Q^ .-h k- ^-' « S^-^C"^^ "£•--- rt^'^.^fe-^S-p.'S.S- *^ 5 5 -^ B 2 >2 " ° tc "S Q •- •" -^ § r P" oT S i -2 S °" > -^ o B tr.^ ^ -S ^ 2^ o W J » S • 2 a; 5 I § is 5 ^ S3 tc Ss?o ed'^S'^ r^ '£ ^ o o ■-■ a bo ,2 -^ Saro* ti - & ^ .5 ^ ""• ^ :£ § -^ -2 r -i ° .-§ ^ - t% o ^ 2 I I ^ S I p^ .= s ^ £ g ^ > .5- i f^ s g ^ § - f § ^ .p. j; 2 :^ i I :s a >. =^CCi-K "^^i; Cl->iI3ewt>, ^c^C "Sot; N~g ■=2 5 1 r3 to o a FORMS OF BILLS OF LADTXO. xxix •5 b-i 5 -^ -^ = t. — C o a; -a es o to S «: =" C - f^ — - ^ ^ c X rt ? o g aj _' ^ a o i 2 -^ ? M o o o .i 'o '5 ^ t 5 o '^ O T -o 5 o ^ «i - P -r .ri a t- X. ^ ^. -^ Q, ^ S S d t^ 2 H g -2 -r^ 3 §So§ .B-a "••^ •S .= S ';5 =^1-52 ^ .£• J ^ To ® §■ 2 ;^ -a '-t-tod c«*.d — 'S r> M_S-- -'^^•2 ^S i-oog £>°o^ S ■M^^--' a.o ?-o ^ E- « .^ .1 I 3 5 I g g . .|r ;| . ^„ g, c. i o "a. fe " ■" 5 -5 >> «5 .S g =s S 7t «« ^22'. o ^M ■"(•.C..2 "S2 pJ£ i-l^S iS^i^ ltd |=|T ^ao ^ 1 XXX FORMS OF BILLS OF LABTXa. o o -+J o 0) he !^ ^ r^^ Oj -M t» 5t-l pj O o r-H o CT< ; r^ r-l r> rr| ;-l -M O) 1) no § P^ «2 1. -< ^ o ci W rt ^ o H >-. a> rrj m ri^ Ph o P 1— 1 2 -M r — 1 o CO ^ j^ . n=l f3 W o P^ O o p- 6 O O r-l 03 w p^ 1—1 c5 525 )— 1 r^ <3 !zi m o W H? Ph l-H P^ o "rH f^ P=H C5 M rn CZ3 GO P 'A ,5^ ^H-^ O D cc O C « a m H cc -< p H -^ > O ce ?s rt TS cP ^ a a >-. p c3 Q> ^ M o C3 ffl O *^ I — ' O J oi (3 >; en O cri w P. ^ 2 0) C3 -r; ;5 J __ _ S o S o :^ u n -2 1 .9 d (M c3 O o - t^ Co to to 2 " 03 O ^ tC C r3 '« li2 -s "d X S ■^ M o — .- o B « '3 -■ =3 •- 1 C3 w CO a, ._ O >. O '^ — o p3 ^ u C O P 03 OS"" c g 5: to ■«> ^ 3 to C eS •£ a ■- ei 9 rtl '" OT a o ii i I o.g £ - o a > to .H » =^ ■^ tT^ o .s 3 o rt o S" = .2 vn 3 m OT ^ i -d '^ 2 i o g • to • - o '- o o "^ •5 >> ^ 3 c; to O E -^ "3 M — a c rt - _a o 3 ,- o O o to ^ 3 d > O O 3 — ~ ^ ,, ^-» X to rt s J p ^ '^ cS J 0/ p to w S c j; ^ r=i cs ;: J CC j^ ,t3 to 3 C3 to ^^ c? "rt 3 1^ _o eS to a (P i. 3 P c3 Cl. rt u 3 c3 to 3 E 3 -*^ li ;^ to r^ rt a 3 to 3 a "^ n to 'S c O to CO 3 " O) o ^ ^ to "c S o to > ^ •- CO "o ■t; ii to ci 'T to -2 i ^ § = u ■^ c; CD o i» _a :2 -3 o a a ° .S -? 3 g 3 O g O _to ° ■c 'H 3 a 5 a. -^ I 5 o J;. E o '■^ ^ '"1 o ^ a :^ pa n. O : — C3 to o -r tc § < O 2 o tc o O 5 :^ O tc CJ O ' _3 .2- "o •^ 31 to to > -3 p to a M ^a i. :3 h e*- __ ■^ o to -u: a m CJ c: rt > 73 a ct JZ 3 rt J <-' a a to ^ tc c "5 > ;- O to . 2 '1 .2 ;£ - a S 2 » a -a > tK~ " H o Jill a s: ^ a — J O 2 3 «^ C If to « •a e =" •f g I » p -^ o >, c rt 2 ° 3 o a to J o <5 •< g t, to ^ 2 § S -^ J2 r^ -— a a a '~Z, ^ 3 — x J _^ ? a K ri X a m la a ."'• -r P ■-3 a .2 '5 5 5 _3 _tt to 03 Cu a> to eS c3 3 a. b M O H a CO P^ t-H ja 1 -*J 1 to p u t-i 06 ^ 1 to H •-: " a^ -3 (U H •= xxxii FOimS OF BILLS OF LADING. i|fi'- - lie! i ',2 o E ^^fflCr^rS 2 C I?- -U ^ ® 3 5 >. ^ c: ^ JS til 'S 2 ^ rO 2 o o 3 J;^ C5 a •^ e -2 ^ h^ o r^ 'O \^ ■^ a ^ .2 "^ ^ c: 3 O. ^ ~ a c3 CJ O ^ t^- a. O a r/T o o 0) rS 6 « 0) Eh c3 iD •< o d 2 r-i r3 C4 O cc rjj to 3 t£ ;:: i-'i OJ r=! ^L aj o ■= -^ o js Tz - r^ *" s; io -^ <^ ,„• isT^Brao - S" csa i:: — "a •-O^^o-p .Sa a *" ^-s -wo^ to V. "^ a. — o) "■*^c3'r;o3 a-- „cocj "a " £ca-- CO -^ -^ M w*-^ .— r' a aP oa ri- -*-a cs rr' •- a 3 ■r' ^ ~ > -r: "3 !^ r„- "S -2 :-: cs o h ,^ h 2 FORMS OF BILLS OF LADING, TTTJn 00 a> -a o J bo a 13 '£ fc " g «a 51 =« 5 S > M ^ OQ I' t; I i I 2-3 1 ^1 =^ CD "■' t M <] a. c-i __ a E_j u .*. < Q. a. la" -^5 IS* o Vi > _ BO ixxiv F0R3I8 OF BILLS OF LADING. o o O -+3 o O fin H-l 5i H ri3 •4^ <1 O • ^ t— I to > fl g -^f ,1 § -4^ w fS E-i d 02 o o O rrj h— 1 rH H rt -< HH o CO ? <1 o ^13 O o to ■+» pf o r4 cS p4 P4 eS fl "1 »< fi ^ Ph o H-l -^ w ^-^ CQ J 1 - ^ '^ .e^ g J. 2 J _s r s -i «^ .s- a f^. ^ ^ S ^ « 13 r°. «'SS^ 2f S ."•Bt.g ,c«? o o CO ^ 2 £i^ o to S .2 ^; -2 a; _, a -r :2 rt 'ri-*^ S'^^.'^ga»S,-SoOt^tog' Z S. ^ ^ S 1 1 1 1 -s --s o .!« i g § f, o 2 .%" ^ s J .-^ § (^ w --g, •;: ^ d I ^ ^ J? o s -^ -^ fl ^_ a « s S -S § § O go TSteH^*^ '3JP2o.artr^S>'?! -^t h § I ^ ^ ^ -^ ^- 1 i 1 ^-^ s B g 1 .a Ph o ^ ^p, ?^ ° ° " S -1 i» & S o o ^ a p, 5 Tc^_oS.gco ^Jo":a^2a§p^i-d^ii ^ § i I §1 '^^ ^- fS .2 :: I g 5 ^ I g 1 1 s -3 s-c n5 t>s rQ ^r m o .r: - :--' PH S ^ rt .. 2! S M o P to J ;: ^ t ^; " I S S S ^„ o g I . I g g o I :| II a - I" g I S^ S o I ^ "I ^ I § S ^ 1 o 2 3"'^o!!rt go opciai-qa^g'-5o^25-^« tc s I fc " 2 « ^ -d- i s ^^ tn JO" 2 -3 J -s j5 :^ g- ^ EP > P .„ r-^ ^ > o .a o d a ?; o -^ *i 2 •;, o .d a FORMS OF BILLS OF LADING. xxxv J £ II § ^- £ i; ; 1 1 i M I „- § |-B I -: I « I § ^ : 1 1 - "s 1 §' -s •§ ^ |f„ i I ^ a o g: ^ ^^ ; I 1 1 -^ II I jg ^ 2 o g a-2^^.^.2 Sfl 1-^5" g'S ^J^'o >.p-= g= -^S-^ ^'S^-g-l 5 cS 3 M o a. ^ rs ft^ .2 ^ =g to £; Tj S »2 feS'S^'g o ^'5_§r§ o^„o a^|.2g'''So.2 g ^ >. 5" => 9 c3 « 1 § I :- S g ^ S s S -S g o a £ :3 o » .^ I o £ -e ';' g I 1 f 2 3 ^ I? ^ I £ or o -S 2 ^ ^ g -^ J i ^ J I i- 1 a ^ ^ t ^ I > i S 3 t .2^'^"'2.2S 0.5=2 I"- if^=«lt.^ '^^ -^a g o^^^ g s^- £.§ S 5 ill S -o I.- i § III g^l ^ I I g II g S I t I S c ;§ .2 'y J g S « g f § ^ t .2 1 fl ^ 1 « f .2 § § g P -2 -S ^ 'i cS H § to .--< in^ § o5S).2 §5 EP'^^sT^ ^ ^ '^ 3 ° o. ° as^ =^cS t^ n-e S P a ®'o— >,>>oo.2; 2 o^'B ^2 ^ fl ^.£;5_§ 0;=^ r o«^^ fj — ^.2"^ ?r:=j Co g h rt I. "=5«-. 3j ov, H'^ ^^ o -^ ^S^-^^lg-i-f II op £2 1 i |o| glil^-f sN |« ."•s 1 1 cs § i ^ I 1 1 1 M g 1 1 -^ ^. I J J I J T ;2 1 1 1 II I g^ |S .-|5 g|l-a i-J I III IX-SS-gfl 5 : J| lliiiiiiiii-P|!i:|r|tsii!nii| S - II 1 I S I J I i ^ o I I II - ^ I 5 "^ -I .^ 2 . > 3 5 J t l^ggS^.o^-Jg^-^-goS^^og .§-§,50^1 2« O-t^ .. S.2 Z ^ 9- o^ =* '^m.? e.«3 0^5 — a> 0-2g«rb-§^3.-o^'S_§g'SSc3-S^o-g-5'^^;s--£„w & 2 ^ » 1 1 1 -I ^ ^ :^ 1 -^ g ^ a I -^ s I i s i I a I § •« g g w ^ "-"-g gO a'^:s ,^^ S o g »-ga'S 2 S"St.fl o °-s3'S ^®^ 3-3fco'^fc^r:;£°2"Sjo5ofeSt3.S^t!flgt;trno>3)gg«'-' o-gn^ -.■tio"'^S^^toCi.^20402«JJ3Eot>-,.-{ji^«"_jp, 6 1 |l ^-1 I -il S ^ ? I ? « 1 I I 1 = 3 J i "_ I 5 I .- g I S .oF; 2'rt g 2 O.-^ H'3 25o:3 tTg 3b §,rt |-- o eJ'^'^^ i o- "^ » 2 a ° ^^ r"^ ?- •- 2 t? o 5 .5 ^ ^ ^ = B T^ » .S' ji S ^r -3 2 f^ :2 illllllilgliliiJlllili2|tlirili d ^ 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 rile:2|ll|i|ii|"i::|-l.|iini=:i1 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 ^ & 6 §1'^:i|'a »'i i'l-i'l M I'll g^: I |l |1 ?c|| ^^^ I II g^ n 5 I E .1 IJI I I J i - I I ^g I S I Jl 1- 1^1 § ill M^:^l|lg^! s^lti^l .i|^l i.rlr;ilitl|ll^l":°=!f illlUllllJ •SEgi|.9|;^^5'S||^&l §•. "• g al^-^^ --1 Ill's s o ^ I ^ I s o a -H .2 i .s I -§ £ I J I ^ «= 5 -? J ^ i r - S &" I S i S i =3 •£ 1'^ "" ^ -S § ^ 1 a; 1 1 2 a O o ^ -2 'S j; -u u 2 "s I i "^ "S ^ § !i -S) s 'i i -2 I .2 ^ FORMS OF BILLS OF LADIXO. xxxyii bo ifi _c E '3 c o d ■"• > t^ ri O ^ u —^ a a! ^'t 0) b -t; .u jj e, »-" e» C = -«-«• I' r/5 '"' '^ «3 SOS) - O 5 ^ fe ® S iJ C r"? o S ^ -Z 'B c- =^ = 5 wS ^ § -2 "s d 13 .. <= " _- J is a bo g g 111 O _!_, -!5 C rt S 3 -=> v Ui i: 2 « :2 w S 2 ■'O O S 'tJ cj jj a) o ^ S « -D .a fe " ^ I ° ;t! !2 g ^ o ^ p IS C5 tt — ^a — o c S '-^ ^ o ^ J 5 :: ? 3 O" ft ■S ° ;; -^ %■ i 5 I o ° <- .~ " ^ o 2 - ^- w CO ^ cS r3 — ■? Q ^ - So© ©OS 12 o S .2 ft r3 o ^ 2 fe > I § Ij O o " 5 "3 O o ^ i| >. to e u S ^ «- d 2 2 rrf CU rT3 1-2 CD ^5 ^ "^ c* i< rt be 2 ^ .5 -e -^ -5 •= t- E ^ ^ O c ^ ^ a , *" 2 H CO d 5 ^ o — tJ -s § -2-a o o • i: o o tr-^ -; ^ o «-■ re ^ 2 §■ »- ^ S o o d -^ £• ':3 d O ri i: ft >, =: TJ a O TS ^ 2 O .-5" 5 > )5 O r^ ft o o ^ ft -e ^ 3 " r^ 3 -5 ^ S H 5;. •^ a =a o . o 2 .^ S 3 — a - — a O 03 o c3 d w -^ "C _o tc f* q •5 o „ 11-^ &: -^ °° ^ .2 O d t, O c| rt X ft ^ T) O ft d o c = c U: C c z, C2 3 O N- t. J -w S ^ CO O O .- TS o B u> m o S o a 3 o '■^ >> >■ c3 >- t- o ' J Pi O ^ V m a -y a) rt 3 a a c a rs ^ r^ a d O ri ft S CO «?> o -P ro ^ ait m d CC o tr ^5 00 a o o to « <1 d u to c a ^ 'o M .2 '^ ^ ja tJ ^ «« /5 a> o O o s -2 ^ O 2 ^ I? ■§ XXXVIU FORMS OF BILLS OF LADim. o Q M w EH o o p M a o o n3 ^ >> ^ 03 c3 a o ta pS o (D o +3 o u o ;-( •■' o ^ h CO o ■*^ C8 g ^ w 03 ^ , , o o O o s tc o o ^ t> (^ 43 -»J 0/ P 3 C£ Oh i I— 1 a ■r-l o 03 o CO 02 o .s > W o ft O • - Si -^ ^T e lo t CO «> S CO fe c*r O t» »« 5* 5; 1 ■^ ■« h2 « • 5ra 1 -0 CO so < ^o i» B 2 p C^ 3 a I o •4J 03 n3 PI a 1 o & 2 -S .2 02 o 04 m PI O cS . CJ s rt ■'^ ^ p! h o 6D frJ O 1 m le is u o -2 o i o t/3 _bc CO J. CO 1 0) o -p fin 6 0) "o 1 s '3 bc 'be %4 Ph ■4J tc -5 CS .3 ^ 1 a § be "43 a a •3 2 •£ a 1i o ■^ rt t— 1 w o 00 o Ph o O 01 CO CO CQ I' w a P4 OS tc .2 ^ 00 e J c? -s O 12 FOmiS OF BILLS OF LADTXO xli .= to o ^ ■§_, |^§ QOcoS' 'fJ^S "^"o I D -E ° 2 ^ 2 § ®" M 5 =- 3 I a o 3 5; " s o O- u a b _~ o g o .a a 5 '* CD r. . o S -to OT° <^to^o"-_:&,=-o«— o^ i2>»-'"2.3-a©ai -a^&S-^P^ Ho ^-3^* 3jr. eao^Sg "3-S=sooKo>>^-a-r ^'=St-afeoaS'i:'-2"E" |P'3o§.2 .i:§^S ^'s'^S- c3 O O m '3 & c J o o S a ® £ — ^issll.s^^^. I^i^ss ^;: .»h5 "s^i 2"~5S 33^.g|^^-:S-^rcS S-si^'^^'H-^S - 2a«a «3 >" o3b°2~ !;c^g to :s .2 ^ t; >» to Q p,o«s°---gt3c3*^aH.Ha-s='?-r^„'S ss •= .. '-S - a .a m I. ^ ^ >» S 3 « ^ = 5=0 ^ .ti .5 fl o ^^ r^ .vx I : i ?o i -g s s M i I ^ J ^ -s -I ° i ^ t I ^ I ^ -^ slii FOBMS OF BILLS OF LADING. life 1 o ^ ^ S 11 :^ I %i'l i I i 1 1 ^ ® "k £ ^ " ^ 1 - -I" I - i ^ ^ ^ - 1 S o 1 -S I ^0 I I tl 'H c S S. c„ 2 ^ -S .2 - "^ =J^ J 1^ I _^ lei's -^C'StO.-'tJS ^-•i''Oc3<». 5? P v^ «■, bD ^ _ "— " br, -Ti a- 2 rt m . M « -S TJ . -S I ^ fe -I ! ^ -I I I -2 f^ I S I g I ^ ^ a g " -« ^ s s I I I -IVs i •" .s- l-^ ■ o •§ I g I i i S '^ ^ I -oSg £-fe S-3M«-Sg5og|.S';^gg-tfL^2 1^1 2 1^ '^ £ -§ - '-" I .3 I -? S '^ -I 1 2 '^ S- 1 -S - §-^•3 J:^a ^^-^ 'o'x^mo gS a"^ ®j.^®*.5StD •: I cT a '^ I I -i? :^ ^ '^ -"^ § -s -g " § 9 S s I :s -e s -s E ^" J5 tn -H ^ ?- § -S 8 ^ 2 g- a> I 5 jl I ^ :^ =1 g, § 1 . . ^ _§ &: .5 S <* w -^ p. M -M :-! > o -^ < v^ ^S "SS 6Cr,r6o_2'2bo£=« P4 ^ C3 02^rtcfbS_;-Sfc'j3lo.52g.^p.tS ^ to -5 ^ -5 S .9 .2 S ^ M -g S a J g I i^ I I I ! 1? 5 £ ^ a . ^ » e ^ 1 i l"^ "S .2 1, ^ -2' s « a I g g a- -i = a ^ .- ^ :: g s. o -s § I O 5 ^ ^ r^ a 1 0) +i rt a J ^ ^ 'a h1 OT rt .5 "is a Cm to r2 ee 5 -2 c3 _a i' 5) a ^ 2 'ai rt -13 13 a '0 s to a (D a (U ^ a. -*J &, to >< rJ3 M S a> •^ V ° § :! - -3 ^ a o S ^ ^ .•- -^ V .» ?o -^ I « 2 I ^ g- -t -f I i II I « ^- ^ 1 1 s g I : ?o 1 1 1 i I §^ g 1 1 5 s § 1 ^. 1 1 1 :-i 4 1^"! f I i s i I f I s -s I "i s 1 r| ifi B^i"at^''^mo^ 2 a^c-ts © HJOi-ra'-'-a, 1 1 1|. 1113 11 1 II 11 1 i ^ I ^ I : ri = M ^« S. ^ 2 C S /a a r^ ra .£P ^< OT g -5 '3 o, H fl W «? FORMS OF BILLS OF LADING, iliii 3 3 f*> -y o pq ra O 0) o So cr .i: O 03 a ^ 'o m 'i^ 3 ?: ^ 3 ^ g £ i s I P ^ ^ 5 '3 »^ t.. £^ is -e ^ ^ So O u ^ -^ 3 60 § -» .2 'T ^3 ns . .S a< n: « ^ ^ p^ o S;" .s ■2 *=^ i .i «5 o d .2, . -S "* ^ 00 fl 2 o -= ._ =M tc i^ r^ to o o a ■£ S3 ".^^ ,(-? o oS 1i°sg go's P ,„3 o t. "g o -^ ^" ^- P3 '^ •- ?J ^ooy-t>M rt^3"" 60 0QC3 «"i-aStiy <=« 2 =3^ ^ i -9 ^ g ^ '2 ° .§ "3 a rt^2ai-S ?P>M 5 ag S -S S o § rfi .E2 to to rt ^ Eo:ao „ _^-.-^J -^ _^ -go* !2a"3"S fe^S '9, S ^a ■ '^ 2 ^ i ^ :i '« •. ^ i Z an g jr ti 1 § ^q o xliv FORMS OF BILLS OF LADING. o -HrcJr^-. ^ o § i ^" _£> 3 "/f O riD CO 5^ .^ f— J ^ .+J ■""* '^ cIj &c8"^ o (ha discliar ssels in any per ns P-^ a " =^ '5 ■*= ;h receive i and assis uent of s c3 o rdcr to to tow i unencei ■*^ o •- a r^ X o fc^^S •+i o =^-p.5 3 '" o S 12 CO p.-Sjs 2 ^- § ::: .5 c g ■" ^ ^ o be I ^» t», d n rt ^^?? ^ '"-Sso-iis s^^s e'^^^g :2^ o-^ a I '^ P- g =^-p.5 ^=s i ^-^.^J^;: ii-s^^ •sS^i'^Q . 'S^ t f o2=2 .>o?-§-|?ri^.^i^.5gg, 3j=.g5^ J- a IB •'-I .-< o ■fcs 5^ ^^ r^ ^ >• s> 'CO '^i* ,-v c«i ,^1 Cu _■-< ir _j^ ■^ '^ '^^ "^ .5» "^ d S ?^ S 1?^ "5^ O Si O) 5 -J^ o -U § ^8 pill ?|lllfe:-fiJi>f a^|«3 |3 il^Jsjl IMllitirlrll -^^|-^ n ^ COM a-;;^Sss^&iS,^o?ss^_g AM '' o a _o O -*i CO a o o P 'cQ ci a o ^ V o a '^ .3 o o S -a FORMS OF BILLS OF LADING. xlv cf m fc< §6" r" S .— >^ u ». ■— ' *^ •-' . ^0 2^ 2 o o o C3 - o > _ -= j= -3 o, tb ca ?? ^ 5 o 2 9 CM w :j X ~i " ^ O >>2 2 =;5=" ,? CO S~rt>9; ^ °,i^'3'" ga>-52g.2a"r«^5S 2-? .= 0^5;^^ SJ S a, o „ p^ ri cc ^ ^ ■2-S2»='o^=s'3;:^§-5-S -S . =s cs .. 2 5 . . o tc= =• goo ml o -• rf 2^-s-i.l — c — 2 ^ .J fQ to o o %^ to 2 a O ^§ O O <1 1^ "* . 1—1 a g ■73 •73 P xlvi FOmiS OF BILLS OF LADING. Q O (—1 t+j -si §? rrj (^ ^ H PL, Ph t— I W o pi o o o o Oh c^ .2 pi he g Ph CO O .2 be «} fee ^ d TS o • "^ a:) CD — I rf o > T- O r- O ■+-> a S o Q p- ns •N (-1 c3 r-t o &D P4 1=1 •iH o -M O) c3 o •pH 2 c! S+-I 1=1 o ^ OJ (XI -4-^ m rH O f^ -+J ^ c3 ^ p. c3 5^ O «4H o o O o o o ^ ■73 i;H C5 3 W ^ rP Ph o bJ) .3 '5) rP CD fccpq bJD fco o bn c3 O O ^ bD o o 2 o-^ " "^ ^^ « ■^ - o "•'^ra.2'^ S '- o &.2 o o s^ -=<-' » C a ^e+j O ^ fj ^ § £ 5 >.-S S "S a =r d o a o <"r5 .. •* > &■ m o rt s-s « rt S - C3 jj.S t. 5 ?> j:3 E" O „ OrrS o K S ■^■y "T3 "w S.E: 'P Z ai cs "^ ' ^ d'^ljf^ ^l" ° d„"'T:Snl?©2o b 2 a) t, p, g J p^-- d^f5^-,ScSt^-R-S c ^ o p. d o a o y_, r— < W O -g"^ "^ 0"^^^ £> o "StJ ft to o d d d.'S'T' " ^ ■^1i^^ o „rodjjO-5— Co d2Sog^o^-2 o ors " e^t;'^ 2 a .g^^ .^.S £ « a ."S OT o o 1;^ fcc a, w 1.11^ is 111 rdc/Mojoiodxisj O "^ FOn^rS OF BILLS OF LADING. xlvii PP a o tn ^._ S o t, s*" " a.-".2 C CTm t, g 0-53 ort:S ?-£''' ' S !» 2 -i^s-^ U g| j: iii^-5 °j^ pli ill s ^ o-^j6 D.= ® -cq 2--- S V-"r3 fe-g-S .2-^ "T^ S a-J3 = d ^ c3 « 13 01 ^ o o be <1 rt s=^2a ^ ^ "'3-,^^S®-«oaod2>-g-gd3d-2.2gS^-.E°2d3' :j3 HH 0) O -^ s w ^ o 00 ^Sfcc ^a2='?ort— "■■*'-"«d£^oa -. " cj3-^ CH^ 2 rt g £-3.2-:? Ci SCd o 8 P..2 rt-S-S ^Jr'^J . P* '-' ^ xlviii FORMS OF BILLS OF LADING. R ^ I— I w En to bo 1 a M |Z1 o M <1 w 8 o ;-t 3 c3 .„ a 1 (U o rt CO ^ CD 3 ^ -U 3 -(-> ^ S '55 .£? fl •& 1—1 _d - o a ci B ^ &c a oj a Ki I— I o .^ •*^ 'S t. & to ^ ^ "oo a J:? o PI 02 >> 43 t3 o FORMS OF BILLS OF LADIXO. xlix '5 D< ^ " ,a n -5 -° ^ B o 3 J ■St ^ a 'o o ? ^ >. o a -J: 50 'i -H <^ ^^ !^ g. i) 60 2 ?- fc. 'E ^ ^ t> «> :s S -2 o ■^^ & rt S s '^ s^ 2 -^ a ?„ o ^ * ^ ;S a o bo ;^ to o ^ := 3 rt o to '^ tM f _i1 -^ -^ S f*> ^ H ^ r^^ S -a a rt „- a S a rt 5 5 > » ^ £ ^ M ^ .s* rt a ^ m o S S a OT ^• f- -3 .2; .2 ^ S S ^ o ?^ ^ TS 't; F-H « o,^ o ftiscSPn 6oS ft o 6 o "§ I s a ^ CO t: m 5J _o M j« >1 CC a bT eS Ed uT u > bi =2 )J <1 ^ ca o b d c O ►J al •r o U! fl O as 3 O tn' fid fl 3 cS _rt Si K ft -d i. o o S -i a C Pi .2 a <3 S O — . O S ft '9, a Pi w e" w o « ■rf o o - >t hJ rt 1-:! 3 -< :S O M H ^ g o o O ^ O CO 2 5 -3 a ^ fii: •5 H H-( ^ . > O i-( 0) _ ^3 2 p tc li ? Ch O M " ^ a 2 s =*^ a p "Z to o a 5 t4_ C .-. g « ^ S " - " ^3 m — o rJ WJ o o ra 60 o o « 5 J := <*^ — .- o C >. O o -2 t. — -3 a o ^ o -S > O •fi " § ■^ a -o _> O I— I to CM O ^ o ^ o '3 -(2 J D> n C .B- ft J. -5 13 « g o ii tc to > . a ^3 ■P 7 ^ 'c .2 1-3 rt ^ ra z: _5 o "^ r^ o E? .2 a 2 => o P >, -3 S) o 13 <2 -^ > -a ^ -- -w ^ o g in O -= o « a m •-:3 a d o _ o |1 § ^ to a " =" "^ >> O o a a ci a > u .2 o =2 -g .S- o o ^ ~ -" r/) •-= I. 5 O BJ a ^- •-- ^ S ° O e3 •- ° "^ ii o >; ? .& fe s — [» n, 03 ;:: - a ^ o to 3 >• S o '^ .2 pis >- -3 ft o " ^ .2 ." ■S o "^ IS "o, o ^ CI •— ) ^ rt to o :3 ^j:3 TT • — C J^ 5 M o ^ .S S -2 -ti ft =J 3 3 ^ Oi -a m ft .5f -s -^ .« CO rt *J 5 ^ .2 a ^ -S =« iii -S 2 o CO < ti 3 3 a 1 o u o to o 1 ^ s ^ ci S 11 ■J^ 3 ^ '5 'm -=. -5 -rf ^ s == .-r = g ® .a -a -S -^ o "JS rOi?3I.S OF PIXI/Sf OF LADING, w)S8) ^ ^ -2. 3^0^ g§ 11^" . ^ 2 ^ fS § ?- i S a '§ £-^ S ^^ t-oo Qja tjtSo^ o* ^ >, o 1s • i-) OQ be cl t>-> d 'c c3 be u 2 o 2 C4H d i CM a O eS t- >» ■D s 5 ■n «> t! 2 rt ^, -2 3 :2 o 1 o ^ ^ ft a d K"?? ", >*a'r*o^ -d c3 4^ >> d -S p ^, .^ ^ P. ^ 13 °» 1 1 i Ilia. 13 «l I II I -i_2 coll °'«d c^d ^>,j=)-rtd o-^ gd p-,^ t4H-n- rdOjj p-d^m60 ^ S.2S l^-S d.^oo-S ^S ^S)S %>^ -^ :||;:^sb gd lfi| 111 31^11 |«1 I ^ O -S I -^ 1T3 I tK C 2 1 ft > "d rd o _bc 'S d -13 o 3 et^ ^ o > ^ r? a J d o -S < ^ o I to •-3 < o u u .2 I t- Ol li. 2 o rt A > _^ 1- ^3 _l FORMS OF BILLS OF LADING. U 6C -d < ^ .2 El i=i >- o OS" g Q rt .2 o to P4 Sd ^ 0) c3 .3 -a -kj ^ ^ • S d =4-* ^ f^ ^ CD t-5 o >^ tJ > ° -I .9 o c« rt 3 S S w I I 1 I g O ^ 3 fc^ ^ '^ H g ^ r^ 3 • 1-1 O EC -4-) d o »" o CO o -u o Q Tfl -tJ 5 33 o s 1-5 ^ -p =4-1 3 rt o o Ti '— { o o :3 -tJ -p 03 ti) tj' fi a _o ^ rj rf :3 H ;^ ^ ^ -^ lii FORMS OF BILLS OF LADING. n < o o I— I Q P4 1^ h: ■< » w w H d ^ n !Z5 C3 **5 ^ s >H <1 <1 h:; ^ M t^ t-3 KH w <1 l-r» o {z; tJ p^ o P2 K C/} H W ^ W H P^ O Sz; pq w H N m tCT^ C3 Pi '$^ O ,/■ r-H M 1 — 1 -M O CI <« s o -e -^ S -*J o ^ o l2 UJ CO Q O) z t>. j? < .-^8 I -+^ „ o a: f5 +3 m S S ("1 ©"B VJ3 M ^3 O 0) ' fe ts^" -+^ .» 03 M P-T^ =^S qT g fccS CO 1^ -t^ Di Sbg UJ m ?>'S 2 rH 3 rt PI Z O d 3 Q '^ OT Z < CO ii r- s tt: o & ^ r73 ^ =4-1 < O 0) 1> o ■-> ^^ tC'"^rO m ci -e t; -»^ pi ci S i +3 a 5 o •'"''-< rH •■ ^-i rH ft c rt Rr^ rf Ph^;£ Hi'? k a 2 hH - « ft O 0) S-s p-^ H P^ w O P o M Pi o o p4 Oj ;-i o t> 5 :g3 o 'Ti ^ V, o o a> jS o r3 " -+J ' — ' Pi 'S (p =4H "H ria r^ O 03 ^ ->^ _ti -1^ S o <^ « • Ph . o ■^ — P! &I .2 OT jj Ph OJcS t>,^ S"^ IZjO « •; I ^ -: K ^ ^ c o ■Sd« ;-, ^ 2 "^ S g OT S3 ^^ o « O Pi fcO c3 2 ►^^ " - 1^ "3 i-i ? bJ — o 3 i se.!^ ^ O) ^ =4-1 J3 M J, -li Pi 5S o 1. -^ ^ W ■^ o,^ otI^ "l-*^ w OT 2 f;^ 3^ ^'3 rt si rH -fH jjj^ . _0 -^ ^ H -g g &J) O -^ O ci o ^ ^ &=h'^'o ^ J S^ 5=4^ rf a O ^ -*^ _13 "-* •4^ 2 20-S s^t^ P a; ' -r; \ g ?? Pl I 5 S^"^ 3^ 2 S-"' 1^ f-r"S "73 OT O O 'ot +5 O OT c3 "^^ rt OT •--2"o _^ :g ri tt^ 2 " " ."t^ T ^ 2 "^ ^ o H ^ S Pi'-pPi PI EH r^ :?; c2 « efH 01 « g 9 H o ^ C3 OT rt PI o .2 55 1+3 a> ^ ^ S Pi o o o o "x:! "-*j Pi 1 d .2 OT cS g a '^ ■-^. ■< FORMS OF BILLS OF LADING. liii e 5 ^ ^3 § ° " & 3 -g ° 2 S 5 g -. s 1 « -^ ^ a I s s; - - §S, ag. 1= -i^S-sSl^l^lig III 11 ■ i!i|i?- I l; II III i:-ii:- ^ a ". 2 g i -9 IS " ^ s a -s- « w OQ - ? c S >- S >J ■*^ .a '^s tfi O ^ ~So<5;i:Jt>M- "^o c= J2m-5 •I i § - i i s s Is ° I I I i i i •§ ts 1 2 -^ I I I I •§ t ? o ^' *= ^ i^ ° is .9 2 o .5 .,: -s a ^ <: .S S 2 I £ ^11 i^iini^li- Si II iiii||=|^l|i5 it « .s <) o o ^ti IlliBPl i if I liifliiliSil Pi- gllflls&tiSf^f slilsi I^^^Uft-! S^ao '==*o"oiSi-aoa2>S : i.2^ = £i'S§:^>.vjSie?5 °--S ^M'=BiS«i'5Ccg2-pgo§, l|>; -I IS 1^1 I l^lfglll^l 12 :| Jf a §^. ii_ o 3 C. o a o •f ft o a "o s 3 C3 a .3 3 & o _o o o _o o £" O a O u o j e3 1 _c3 g £ ^ "5 t4 o 2 o > o i O o o > ^ a a: •3 "3 3 cS > 5 11^ Ml S I -I I § I i Is -= 2 1 = i i 5 S ^ -' as ■§ *aa"5 ""i^St;— ■^5!t_.S->^?S'" — ?: "■so »- — -^ P3 <= ?. "cog— Bom"— Og^ OMO-2i?<«>3«'=^i.®BS.-<-^ — "* ^w|,og„_§2MM^_--.. -fe.-•9e•:?^==-. l ^ i I i ll ": ^ I :. 2 I § I £; ^ ^ :g o I 5 i ^ g S i I -- } : 1 a 3 aS3^|^«S;§l^|5i-l.s-a:=«|.9-^-g|^5|.||^ liv F0R2IS OF BILLS OF LADING. ■S .ii M 2 -^ S 2 y 3 S •? -^ o .3 p . o fl ^- - M o j;^ ib^SSgSS^ b^S:^^ '"g :^g ^ -^ a =3 •" te 2 n ^ -B ?? ^ . .5. ^ o ^ II : S I ^. ;3 g 2 S _s -g I •^ P tri ce 9* o a o 3 a - u o 03 '■^ ■m t! ;— ; 'S M o a 2 : g M o 71 S (3 J o u ^ .-! ? ; > o o ^ ^ 'u o o 1 « f .3 .g s; o tS ^ ° 2 H» o o g^ ^ .S" 5! O -S g a rf -3 p 5 g =3 ? 3 ^,5 5 "S i 9 oT 3 g :3 o to 3 to g g cj ■§ ;:^ o "3 a 1 o 2 Cl, o •S = .. js 3 33;= ^ o ^S-SSs g -9 O <» ;2 fe'°t'or|-3oa._ C:^"^--" o Si?9-" i2°'S o a I 1 •- ? o I 5 . 3 ^ § - I a 8 o ^ g I g 5 i >. ^ a I g- 1 "Sso^^ :^^__^|g ^-g-g5S^l^=2^ ^ 5 3 o °- i ^ ^ 5 -S ^ j3 eg S g 5 -. 5 g » I ■3 C3 ^ ^ ;? a a! 5 o o o ^ 2 " « t, a a <2 1 o t; :^ - . ^ .I -. a g =3 I -g S a ^ |.| ^ (^ jT ^ :S g § I g ". f " g § . S 5 I :2. 5 :: o - -2 -I 3 S 5 ^ - 2 S -g I .3 5 s im« ! I g ^ |i f 1^ 2 ^ 2 1 ° r§ r^ ■ S ^ i 1 J I ^a5,o.-.3a-«ro=2*^^2^1^ §«'5'^2°"1^5o-^Soo a* ./* '^ '^ f^'?g5to3'2'So35ot'o3sg.2- a S 3 "S ;:= 2 - to 5 o -3 -S S S p S « .0 ^ r. 3 o "3 .3 ^ I I 2 2 -; I S I o .|c 55 S 3 a I ;^ "2 I 2 I ■« I S 2 3 g S ■§ I ! I :3 s g 3 I 3 ga-S2"2 2-^ a^«3 " -g 2gc FOmrS OF BILLS OF LADING. Iv 1-2 I S ■£= III! 1-2 -^2 gS-g 4 1 -f-L- -g fi 1 I II gill °i iHii^ I I |i ^1 iiii ^1 t^ii^ II S^ fill ea f^ ^ r^ r^® ..00 ^ ?k ^c! t^^ C-r .S.SS b§ sss .,<« ••: 5i fc^ ce^ f Z a p. -"= «: ° 2 a |l irga li sii tip ^ ^^ fi t" ^s II iil^sif^fl i-l"^f, fei-.i 1.1-^-5 OSCg-S.Si^S C^Sr-CO O-t? a jjciS-'jKr;— t.tjfl^'^co X--0--& a cz n ?» 0-, fe"g •== t/o -^S' fcf,og fe-K Bi- ta-p - § g£ S^ fcS" c^ c-Exgo l-s'E^^ -C^o g:!St ? •- c> S III CO 5 S Ivi FORMS OF BILLS OF LADING. !=! O CD o 9 -^ _L "^ >• - o S ^ s--^ ^^o fS >_ 2 "J dJ 05 g bDg ^^,-^2 oj.^^ S^->,^^E 1^^3 5-5 & ^ .3 IJ f:=s^ Mist ii-ittU^s^ g " t? ^U°fcS ..^^3 loll o ^g ^i! §g -J^ll slia^.= .-„*§i -^ .S fen r -^is .22 ^ o --5 i) * „ =« ° '^ ® © fc tc j: ;= g O '^ « 'rt -5 -^ ^ ^ ^^ S rt ^ 2 g -5 § ^^ 5 _§ § S - c - C ri- jH -e ^ " ^^ O^ 1f 'o S ^ > ^ -7^ ;^ «--^ -. 5 £ ^ ^ - ° £ ■*i :o 3 'p ^ ?i S^'SS^^lS^E, DhSct o ^ '^Sr-'--4^_.'^"Tt--^'"i£S'=or FORMS OF JITLLS OF LADTXG. Ivii -§-! nil I SSgfl- >rb| afii ^^iljll ?>, 3 s =33^,, -i«. U) C .- t^ O >> *j ' 5 -^ ^ ■"" O E , ,2 >» "" ^ ■- -lj T. IJ I°"sls1i I il?l2?sg|£. |^lcit|l|i|oifs|| — tS^oco— -l^^^a 0.2^-" o?=-_^. — vrciu" rS I ~ •— I ^1 , -^ " "^ .n "' • Iviii F0B2rS OF BILLS OF LADING a -r ■::: ^ |"S &^ |S -gz: -SjjEiS ^ '^-^ g^ "1 o|PSa, O t; i f t » £ ! I ^-^ ! ^ ^ 2 ^ -^ 9 g 5 ^ "5. S © o O o rt a &.5 c to C5^ c 5. ^ -c - ;= ?- t: p CO - — - c. -2 « © «^ c >. ^ 'X -r •- A o r:; s c ^' © «u -^ o s « .£ Q g = - - .' -'^'^ "^" °c£ ^-E^^-gS c^ 2o ^z^ fe '^ c inly ; their k of c c © m ■^ C _o ^ ■» ■© ■t? CS JS r— Ci © § a c c © © X © c &- o c- « «* © tr © £ ^ ^ _c X be C 'S J^ d t. c " £ Q) JJ 05 O E c ^ S a e? © ^ © » 5 > 1e ©S-«T32^ CM ^© o-r; £" t, 2 ^t" '^ i?® P^ Z '^ ^o cSa. P^ ^^-a <«rt>~. §,•- "t-i -S «— a) c?©^it ""^cs P ^-^ il ^g-sS ! s Ji.l -^"i^s ? .5 a-H <2 ;; " ?• :^ £ S -; © L"^ " I; * = 68-1 i1 1^ I- -?I-S| i Is 1^1 I 1114 o ■oS«>§J "SS c'Sg^'Psf.9 f^.cgo ;"h'g 5 £2©°-^ r K &■ fe ^ ©- 1 ; ;- p g § £P J ' -« © i © I -5 '= - *i ^ ^■5 5^ ce _C '© © -^- (4-1 fe^ ^_ s * r— ty ^ -. © t^ 5 © J?^w^ 5P-S. M^e-r: .. ^'=--~S as"— .©-J^s "o- "> > ^'t^'^ "^-Z- o go--:=^.a c^,-i^=J^.2 t^^ eg ra >,— so g § £ « S ■g^>§ .1-5 |-5| Jr— |"-5^-Sp g.S ^- 1^^ -S 6>.S-«i § g g 5 -^ I .S r P/g «: 5 © ^.. ti;: 5 -g g Tc o „ .^ ° g 5 ^ -2 - ^ S 2 E I .§ tc -S S r .£ ^-5 2 -, - I S ^ •? •? S £ g ^ a I a §^ 3 -« "S =S ^ -« ^\5 =^.£ a^S ^ Eo^ :S^ a 5^ « S C.S «C-- 5 « 0.0 d gJ3 :^-2 .5ET^ ^5^3: -^1° :^|2 S^^S^I™ 31 ^^ <^'^ S-i* if© t;c£t>-©C'^© ^5 ;>£; !> K'Sa ^c^ ^=S -52 (^l::S^'3 -S £,-o O ? O &. O -^ »s " c i: •* S S e.^ £ oods d port, tl ck to steame ■hich tl goods. D tlr- g ^ ? 5) s C ^.£ "f Is © ^r^iii to CO © CO ■5 © -Q a *^ M ea i ?' 2 © vi t. a< ^ "S ^. T? -»* FORMS OF BILLS oF LADING. lix ■^5=^*^^ -S "^-5 SCO o t«-i ':r-^ ^ to O .a " ■ ■ ' O ■^ r^A 5^ .r^ fl ?^ C -3 a -a C ^ O rl "H .73 -1-3 '« g tf a.'3 -g o ^ a H -^ -3 =» O S^ '<3 = |p ^ ^ 2 a '°S5-2?.g .2 = fe.-^ fl < C5j-= « «.r<2ew «:_£ii = esa=« a-°Ma:o^rJ2 ss >o>>a>^ I^T, I— i^Ci-— v^j^*^;^ E;;;;^ p~i ^^ ^r2 ' — ' o — ^ S li FORMS OF BILLS OF LADING. 3 o^ o ii'-' I O CO ! O o Q P O P^ H^ I— ( ^' P^ o P p^ o o o W Eh la o o H Ph O Ph P3 M <1 > M tc o g so •' rt rt +-1 O 1 o'S o o.g ^ jj 'a> -t^ ■^ d ^ r-i r: ^ P! :2 o O Si »3 cc ^1 a; o ^ 1=1 o ^ o rt 3 fl CO a! i^ O C r:i ;h ^ „ =« pl O rt 1^ "^ P hi -'^ .:5^'t! d c! ^ ... ^ 0^0 o c:-43 3 "' p b Sr. 9 a g ^ ^ i=l' , r^ O ce . o o p4 o -v;. ?i 'CD o ph ^- .2 -^ P^ t: -^ 05 W O <:; 3 02 ? 8 >. r2 -fs y Q ?; .3 ^ ^ !=l 3^ 2^' O y S O j- o 5-^ B"-^ ? "m "^H ^ EH w m o H- 1 EH CZ2 P5 1^ P5 <1 r2 re O o so 0} ^ EC O 0-3 o to II Of, P. 2 o 3 " r^ -d >;; o d _ o ■F.W FORMS OF BILLS OF LADING. Ixi - «Su>0 A kii FORMS OF BILLS OF LADING. t. C .. « 5 . t. " -2 tJ 1-5 >-< bn -, -^' o "^ FOnMS OF BILLS OF LADTKG. Ixiii tf3 o ^^•s o c o .5 =5 5. ^ o O <«;s « t. C cj e^ -n o o £ '- > <- S o *i E J O g fc. > 3 o .1 P d 111 S o => £ b o rr 5; O O t: o5 o5 fc 11 1/. o B ft 1 2 poo ^ e! o •« >. I- t^ -£ >- c ° tr o m ^ s> ^■^ C 0) u: 5 5 =* " ■3, ;5 I; -a £^§i ?i li"l^ •^1 ^ „ X <- fti St2 -5 a tSio rl -a ^ t. to o o tr-rt o c ^■n "=-•5 5 =; 2 So O -,-r, c .5 ^5 ^ ^ o "■a o o c e o 5 r 2 Ji o ^ ao c •— ■ J -5 ^f 5 fe '3 :---5 M ir3 'Z t) a: o ° 5 e o-S° «- d -, p J; " O o - S o Ell , ^ _ c c ^ c t> s ^ ^ .. o .coo p p^ I'S^o •? 5 § ■^ i! C . -ts o s ■= 2 ^ - Es ? c o . ~ ■* — t-. ^ ~'j: o c::^ d « i^ O S f ,^, c .;^ - ii^ ■- 2 .2 ft |r d| " ■^"3 ■» ft 533 ^2 2 ^c =° s to \'. "■' > fc- £ C •^ d « o o r "Ec o «^-£ c e o = - d p d « o © ft •5.3 tj o TlSl ft «■" - ce g S3 O 5^ X "C " 5ci o lit 112 o S ^ ^ o P:5^^ til t'S rt = s c g .2 o o u f— . P5 a -= a tec; = P 2- c ft^ t— ' 5 ^* w C.S o « fc !^2o5 S i3 1-5 I- £ S g 3 O =e = m c-S f" " "S ^^ t^ C 5 ^2 O =S~ d ^fe h^^oS m2c Spg «t: fi6:.ST3 ^^2=5 lea So >§"'y! !<.2 2 >:g gSrsOo-gHcS Xg,.OC^ ftcS S fti. o >:: p-s tc ftp to !- O £3 ^2 ^ 2 rt g >-. O) £ oM ^ "'^ pq J S^ d 2 rt CO S :3 I o tr t^i vp o C S fl > " -(J o r^ S o •osnBp aoptioi i-H ^ c rt to .9 "Too >• -^ JS S S- e. '- tt- c e •-H -U» m CO r-l S£| ««-l ? CL, - C „ .2 in -^ s " CO ^0 rt 1= c; t. m •s ^ fH £ ■< t? 5= c t-^ ►-2 c r5 llli -1 S ^'^ .— • « _> p 3 t5^ 2 ^ ••-I -3 2 -O ca • - -S 53 ^ > -^ .2 M .S^ — -^ " ill 1^ C Trl; ftj ca tc"g 2 ^ c •^ ^ - ft< tn =- -^ -•J n s -«! t. t- ^ C - t. y «^ t- ^ '-r X c ^ *^ t- i C ci •" p- ? — tC -' — ' >.fcr C 2 C t3 S -S -« S ^5? Ixiv FOBMS OF BILLS OF LADING. l-H 9 o '-^ I— I EH v5y 1 cq H^ a o t» Si $4 K t*) o be 50 rH O .S be r:? ca cS Ph q-i rJ:1 O -fj CO m -M f£! rj 1-^ OI O -p h-f l-l E-i o <1 S+-I o .2 P3 j+j w o i p » J. Q C3 O M m M P3 <1 ci o ■^ 5 -(-3 rf p^ 5* Ph-43 .o Oi CO O 0) ;?; ^ d 50 ;3 w '2..§ o '-0 'e ^ ?, 5^S 5^e § y safely get, ination if be s d rd 'O O to ■» CO .Si ■^ S M « cu +5 ^ d O d Tj « bp ^ rfl '3 'S ^ d o fcj o .fc ^ o-§ ?^ "-c: ft, ^ O rO d Ph O ti .2 "1 s> 5 ^4- >> FORMS OF BILLS OF LA1)L\G. Ixv CO O P 'A O O to as^ ^.^ 2.1 3 P 53 3 S in ^ ^-Sg^g:.!^ °-3 2ib^ §'o S ■= S «> 1 g S •= 2 fe ^ ^ S •= =5 ^ = 5 =^-§ Oh 3 ^' '^ y f -^ /^"^ S j^ '^ '^t;£>, S5^ ^oint-j osS'^s.'^cj-E^ ^2+^'S'MrH <"c 2o go's-; .s^i:«s«8^o -s-J: g s sj 2| 2:^ Ji^^-i-gso?^ ^^a °oc2 '5-.!:^25^'§ •£s^=:*sig-_^o 2^^o>,.3.^"^ © 'S ""^g? &S.2S^:2^5 - logins >>-S£o -^ •5 2'-' o -u> -— ~ai>3<:;:gg-g'"c:53° scP 3 -c -^ Ph^ 'P -^ & 3 " 2 3 ^;-c?^33;^-So'r-2M£:f^3S^M-^ajrt -^01.3.5 2 :^-=-^P ^^3 ^jU2.-S| ^il-S^ o.&-£ J o g^l^ >. -.3 B.sl ^1 ^ «:2 2 i ^ g-:^^ 3 S5 s g g o 3 s^^^^l-g-ls g^^ j ^. s o g a* FORMS OF BILLS OF LADIXQ. Ixvii liviii FOBMS OF BILLS OF LADING, o ^ 'c -^ u y 2 >^ ci5 It ^-^ - 'n a teo S'g a o r-aS^'-il tc « -e jj .- ea 5^'^ ^ S, t'^^^^ ■^ rt CO <- o o-jj-c 5 oT S ►< 3 c 1 fe °5 O £►. — 5 ••- 9«- o :f^i 5 1^-2 i. £3 O O ® "-< O ? M I § i -2 §^0 'g >. lis 'i y „ r. . ^^ - o ft S - -^-^ o''5fo'3 a ^ ? i:Sj ::^r^» S «s5|| III Hill |||||lili||t|^t O oOi-qt-^Soo :r; -*-' o ;:3 -^ fl ^ a !^ ST? ,„-J?-a c o^ g^dgbn-^S i p.Jr^^^'^E" 1^ S^.tcS^ S.r-q ,-§4^1 = 1 g--^, ^5 alga ^ "-Fii- 1 1-.1 U p i ? i ^'§ ^1 ?;! .f 111 i ri:-f J o t.-=; W'f'«i;2"'^ '^^•■^'c-2:3 « ^g^X^'g-^lslss-s ^5.^'■£a° Fon^^s of bills of lading. ixix -►.» 2 t! S's fe»fli; 5.2-? fl--e;5;-y . o 9,00 =* o ^- " sjoo^ 'r'^^rt^-2c3 s.=it. S^ S'^":3t:"''-s3 'S_.2 "^^l^a gij-l S-§-5| g|^l.-"1-^>3 -Sj^I^M ^lo^il^J ^-a gl^l ^l.l-^ e-.gl'S ^ir^5^r.:^-g l%l^U -i-^^al^.gaoo-l a-^o- IS-go c-'^-|l5 Mpgfc •^.?^^ iiS-sliiS |8.2|5g"5^--§2^ -J^ g J o S 2 >-S a i^oio '--2^=--^n*.2^ |o3ao2 SJSJISSJ^^s i« § OQ^^ri t5;=;^3 1^-Sm^ 0i;:30?QPHk,>-l p,.?;o,a nO SiO'^moow^^' p.^ Ixx FORMS OF BILLS OF LADING. FORMS OF BILLS OF LADING. lixi J-r3 o O ^ gj ^ X ^ ••" -s r; ^ > ^ » o ■5 3= S a O C'5 '^ ~ .- O "^ « M " >-t w t-M ^ O) 9 .-s -? .H *r '3'"' s^TS d t» a , 3 fi •■g => o"o"S O to I- u i/> I. o jj fl t2 « o * o j; .-S a. g 3 iJ o to . ^1 o o j^S" ■■? ^^ ; a> D ^ o jj >e .-3 a a ■ — O 0^' >. t o ^ rt r- M a =« S o- Q; a 5^ 05-,-^ h: 9. > ."S -^ ^ ^"^ o 'i'S a — "S :d o _ o CO O o a •« o p. 2"^ '^ r§ cdr3 as" a.-, o to CJ '1' ^, d-S SO o IS ?! £ 9-3.^ § a o ?— H 2.2 § a " " i:.t;-3-a •- "'? m" ^a >. c a.3 ^ -jj o 3 i^ 2 rt o "S „, » to „ t< 0. ■^ to O O a a °; t- ^ * .^ ."ti a5 - o-^ a•- '^ a c< -r c o . # « 3 I-/ a to - 3 -u t; a o OQ3 33 <*- J= a u ^^ •— )? c 5 d -a OJ a >» ^ ^ 11 J a» 0. to to a*0 a_a "-St; a a3 r3 to O a c3^ W-" a a .- tc c3 a ::a J- o a ?J3 « o *^-=;o ^-2 O O be ci ■-S p ta j^ a tc^; ° ':::.£ ^s=i= a u ci o ^s. •*j it a 3 ■*-* J3 to i^-r. o . 0.=^^ a " i.T ^'t^ o IS i; c g ^o l' y -J 3 ?3 .2 -a z> rt rn J ^ m o-a y -M % f- f2 .a:2g°£t^i^o p. •- - '^ =^ -a 9 -^ ..■^^al % cS CO _j -S. d P< o Q, '-■« a 5 Ids isli li sS:ili°"-°^' 3.3 -. hij iT^ cj .V ri t; " L- " 60 jj^ -i-> rt .- _, ^ .- a c3 .^"S li -tJ -»J rt « o 9 .y fc- .^ 3 fc- • D'^S '^^SO S„.a32 boo S A o\ O 9r3 u o FORMS OF HILLS OF LAJJIXG. Ixxiii .2 S r^-? S-o n r— 2 '•a -- S, ■■*- B pOO-»i a, oa3 3 oat;-k-s >-,*; ^.t-O %--^ "s :3 cif c -3 ?; -a ,-_:: rsoa =- c -v^i.--3 --^3 "-aio) ?'£j^?>«> .i-r ._c-2— .. ay-;. j2 = S'-», =^3 •2'^ ^ o ^ a ^ ££-|8- .2= I go o ? *« -^ 3 £'7:'^.S o .2 = 3 &= a tf, --^ •-C^- » 2^ ^2 ^ >• 2 c^!* o-iio" V-w13 o'^2 "^ <=^ ~ -J »-rt!o ._g 2^3 ''-ij jg®^ -^-Sr-^gs 'oS2 -Hjg -£^ *- c >, ? - P c- --^ o ^>.o e-^^- "-^iio t-^^a^-S a-_= =. Sioo 5=ao_;- -i- S'p-S^S ^5"^ 2^>M^3 c--^» « o « r ?. M g .„ .2 J^-S V. 9 2 ^f.2 r. r. m ^ a t .2-S " 2o3 §S2 -SOS "S^ 5:So it--" 5-3 5C2 >. > -Prim 'S- a^S jj^ ^Tl^, S-»J to'--" -TjCS '^ .-__ i.1 T- r- wj ^ _z: — oj ^J , 1 -^ w •— ' ^ -ij to ^^ TT c Oi .-§ "-^SS^g §S=S -^-^a o^-S „t:^ -^:2 c* ^i: = -^ "-^^rS-^l ^^l cB? -^S £°g 1=^^ ^1i f im 2i^i^s ^^^ tn H% 11^ ^'^^ ^^ -^-^^ a c ^ &^^^ .SS=S*^i^ r^S" „&■= O.SJ E^g £•- o --J ^-. c o o.=3 53 «sS£-S?' ."^^..^ o-^^ o^r:: .£■.= a ^^aa -s^^ fe"c«= .-o i PU5 a"" ^ --2^ m c o .tit<.3 -^"3 .*j5j a -a o o o-- o •SaS'S =^mot^'^(^ "^i^si ^ 9,'t 02 ■» '^"Sm gag a'? ".S'SS a, St,=^ -^ i -£•2^.2 £2^^ia§ |„§ ^^^ o-S S^t. o-gS ^S) 'l;..'?^ -§-: « a S.'3 "2=^w^aa) o o .__ s^™ „" oS^© _22 S-a Pg. s — »~ g«^i a-S^-g^gS c?2 J--; -3 0-^3 pjg ^|g H^ <|§-5 :^'f ? 7*.bS ►T^-2pi«-«« i5" 723 75^ 7~o \ a Z la |:.5.2 15 « CO Tt»aot-io6oi2rt^ 2 Ixxiv FORMS OF BILLS OF LADING. a n::'^ t>>":2 a"> S^ao c » J II. 2 c gi; b ,—1 .a to CO a 90 u rt C3 5r?^ 1^9 -S •2'' ^o |S=g »" S^._3 52- % ^a g ^|>. Ma O^^to a t!a MO °^^S a 2; a d a ~ =3 „ - _ 30 ■-:3 oiJ'S Sa ogPi ^O S a a^S o-^- "S ° B j'^- -iJ-Si ^^ "aa fenm-^ ?°S c^9-^ '^1-^ a^ 3§ ^^-° -ia-a ss& fSJ^?? 0^3 -^ >■ m -> -^-'-'-''^rjocs .^ajj a-^ X, lA bo^„ oa 9, o3S'-*3-^^ cjOt^^M bc-i: ■^ -u ->^ ..a 'Ti.a li " CO "' bo cs o^ - 3 p H-( " SPS^sS-^ ap>a^ama g,-^ .Co ==^ S '53 §§> -l^.l >^S ^->> l;5S^ S-2 cS r? •2-tfl.H >c3S ^■-4^>> i:dl ^'Ti ooC OS'S ^ .s •-- 1— I >.^ ,-,.„ ^ 30?: p a I p^ bc^ r:3 d:=! g >.-^ a a5o a ^ ■» S3 * . -3 S^-g -I o a .2-Sg S5ce^ a^ 2 s-s: -Si ^ "s^i si! s^i i^ss^^ii cst = -^s- i",! -^ s^': §5=2 s-ss ggg =^i:: ^S" g ?c-|"a« |S !• -|| :^|§ -^U V^B f oSj S| fc 2 2-^. S2 ^ g'o^ S°--:3 a o I"; ^o^ S^r^^ ^a a ?o '^".a o-afl:3oaq2?:_5 aS^ £0-3^ cS .3 ^^'-s'^i; j-o iioSo-^o'^-.Da^ao^co^'aaS ,-,? rt j:2-^ ^" aS C'— '"..'■^ -ya >-. ""a ,^-oct^-^!^aJ aS J:i rrt-,ra a :^ 0--? !S PI a IS T^ 5 O .^ _ t-i a .- '^ m == r<-i "ara . a a ,/:w-! " >. 3 a to ^ a> 13 ■3 58 .t) a _a a .r.« 13 m r; rf a £ a 3 a "c -Ij to a a a d K a> JD^ a '3 _a a • r-l n -S E 43 6 '^ > to a n3 ,a a to -*-* -*^ QJ ct '^ ^^ 3 r5 a a (4^ rt S ? -S ,t- a &-> >> 'a i^ "tr 3 a ) a ^ to 'S _a c3 a !-< ^ 6 5 to ^ _>. "3 > a P bo s .2 S4 p s d a s _a B '0 'tn a boa, 11 > £ r2 "o ^ c: -£ c a a Z2 .*j a bo t3 ■^ CJ2.2 =0 I -g ® « gi:ii :Sa-?o a -^ S o o ^ bo g g I" S3 " g-:^ l.ll 5-3 ^ ogo So..^ |.^|5 ^^o :5t,fe-9a ^l& £? 33 |^^.5> 'Sa? to.a 5 ^-z: 5: g -^ o ™=m^i^ :g 1 " >.-?--" 2 a -ti § " 13 | ^agS s^.oa" -gj -^ ii^ 5ii ag>o ^8s -lis:! ;m :-i ^=3-£--B ;^1 § III I al-S ^la^ -^ g.i2 -§ bo^S g-^ 0..° S.|: < -»^-*J J.--*^5icS .J+3 I. .jJOjjoi '.So '. O .c.-::;c> FORMS OF liJLLS OF LADING, Ixxv 3 — ' ;- Ci pq •- ;::; "o to. •s-^ to g* &^ a tD o a Q-3 •r d O in -^ 2 S to Ot; f^ i I— I ^ I— < ^ '^ re! S M 01 CO o Ph w H O Cm a o » J- O X o O c/2 -•I -1 o O o Q '-^ =^ o o ■S -♦J o o o • 1-1 O O d a 73 ^ O ^ o -|J i) /: ^ P) :j ^-^ p. s -^ ~ S r^ « ^ . fcJD .2 5^ ^-^ o h:^ cj o ■u (^ o . =4-1 1=1 o s ^ r/J ^ • rt > -M i> «4-l TS ^^ W JH .2 3 o r» 043 ^ 3 H g w 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)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 5y 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 J