Part IV. [which bills being accomplished, the other two to stand void. And so God send the good ship to her destined port in safety. [The terms of this exception were altered, some years ago (a), in consequence of an alarm taken by the shipowners, at the decision of a cause that will be mentioned in a subsequent chapter (b); and of late the exception is usually made in the following words: "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." But in the case of ships homeward bound from the West India islands, which send their boats to fetch the cargo from the shore, there is introduced a saving out of this exception "of risk of boats, so far as ships are liable thereto." And in that case the whole clause is as follows: "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, save risk of boats, so far as ships are liable thereto, excepted." But these additional words are probably redundant; they do not make the owner liable for a loss in boats, to which he would not be liable in the ship, where boats are customarily used (c). Other clauses may be introduced, either to take away the responsibility of the master and owners in cases for which they would otherwise be responsible, or to give to them or to the shippers an advantage to which they would not otherwise be entitled. Instances of this kind, providing for a payment in the nature of demurrage, have been already noticed (d).] A clause may be inserted in the bill of lading that the shipowner shall not be liable for damage to goods unless a claim for the same be made before the goods are removed (e). [In the above-mentioned form of a bill of lading the name of a consignee is mentioned, but sometimes the shipper or consignor is himself named as consignee, and the engagement is expressly to deliver to him or his assigns; and sometimes no person is named as consignee, but the terms of the instrument are, "To be delivered, &c., unto assigns," which 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 consignor] order, or (a) This is taken from the 5th ed. of this work, which was published in 1827. The terms of this exception are now sometimes much enlarged. (b) [Smith v. Shepherd, post, Chap. 5 of this Part, sect. 1.] It has been held that a detention and seizure under fiscal regulations at a foreign port are not within the meaning of this exception, so as to exonerate the master and owners. Spence v. Chadwick, 10 Q. B. 517. (c) [See Johnson v. Benson, 4 B. Moore, 90, and Chap. 5 of this Part.] (d) [See Harman v. Clark; Same v. Mant, 4 Camp. pp. 159 and 161; Leer v. Yates, 3 Taunt. 387. And see ante, p. 241 ;] Jesson v. Solly, 4 Taunt. 52; Brouncker v. Scott, 4 Taunt. 1; Erans v. Foster, 1 B. & Ad. 118. (e) Moore v. Harris, 45 L. J. P. C. 55; L. R. 1 App. Ca. 318. The effect of such a clause was discussed in this case. Petrocochino v. Bott, 43 L. J. C. P. 214. [shall order the delivery, or to the assignee of such person. This Chap. 4. subject will be further considered in a subsequent chapter (ƒ).] Sometimes the bill of lading incorporates by reference the terms of the charter-party or some of them (g). Goods were shipped under a bill of lading which commenced : "Shipped in the steamship Hibernia ... with liberty to call at any ports, in or out of the route, to receive and discharge coals, &c., and to tranship the goods by any other steamer;" it was held that it was an implied term of the bill of lading that the voyage should be wholly or principally by steam (h). rect state The bill of lading is the written acknowledgment of the master Bill of lading that he has received the goods from the shipper, to be conveyed should not on the terms therein expressed to their destination, and there contain incordelivered to the parties by him designated. The master, therefore, ments. should be careful not to sign bills of lading until the goods are actually delivered to him, nor to permit the insertion of statements in the bill of lading at variance with the fact, or of a nature to mislead or give rise to misunderstanding (i). By so doing he may involve his owners in litigation, and become responsible to them and to other parties. In the case of Howard v. Tucker (k), goods were shipped in India. for London, on account of Wylie. The bill of lading was forwarded to him, and he endorsed it over for value. The goods were stated in the bill of lading to be "shipped on board the Bussorah Merchant, in the river Hooghly, for London, by R. Charlton, on Wylie's account and risk, unto shipper's order, or to his assigns, he or they paying freight for the said goods, being paid in Bengal, with primage and average accustomed." The freight had not been paid in Bengal. The captain had signed the bill of lading at the desire of Charlton, the shipper, and on the understanding that he meant to pay the freight before the ship sailed, but which he had not done. The court held, that the owners having given a bill of lading, by which freight appeared to have been paid before the ship's departure from India, were estopped, as against the assignee of such bill, from claiming freight when the vessel arrived; and Lord TENTERDEN said, "that the captain might be answerable to his principals for having signed (f) Chap. 10 of this Part: Of Stoppage in Transitu. (g) See Porteous v. Watney, 47 L. J. Q. B. 643; L. R. 2 Q. B. D. 223, 534, where the bill of lading contained the words "paying freight and other conditions as per charter-party." Gray v. Carr, 40 L. J. Q. B. 257. See Schmidt v. Tiden, 43 L. J. Q. B. 199, where it was held that the plaintiff was not entitled to recover freight from the defendants as shippers of goods, inasmuch as both parties made a mistake as to the charter-party referred to in the bills of lading, and were consequently never ad idem. (h) Fraser v. The Telegraph, &c., Co. 41 L. J. Q. B. 249. (i) Where 1,670 bags, some weighing 12 stones, some only 8 stones, were all marked alike, and the master signed a bill of lading "for 467 bags, gross, 35 tons 9 cwt. contents unknown and not responsible for weight," it was held that the master was bound to deliver 467 bags of the larger size, as the description of the weight in the bill of lading could not otherwise be satisfied, Bradley v. Dunipace in error, 7 H. & C. 521; 32 L. J. Ex. 22. The court below had been equally divided on the point, 7 H. & N. 200. (k) 1 B. & Ad. 712; see Campion v. Colvin, 3 Bing. (N. c.) 17. Part IV. When bill of sive evidence an instrument which contained an incorrect statement; yet that third persons, who took the bill of lading on the faith of such statement, for a value to which they might otherwise have thought it inadequate, ought not to suffer for it." But between the shipper and the shipowner the bill of lading is not conclusive. Thus, in an action against the owners of the ship Thames, on a bill of lading, signed by the master at Sincapore, for eight hundred and ninety bags of pepper, the declaration alleged that eight hundred and ninety bags were shipped, and that some of them had been lost. The defence was, that only seven hundred and ninety bags were shipped, and that the captain had been induced to sign the bill of lading for eight hundred and ninety, by the fraud of the plaintiffs' agent at Sincapore. It was contended for the plaintiffs, that the bill of lading was conclusive, and estopped the defendant, who was owner of the ship; but Chief Justice TINDAL said he was of opinion, that, as between the original parties, the bill of lading was merely a receipt, liable to be opened by the evidence of the real facts, and left the question to the jury, whether, in fact, eight hundred and ninety bags, or only seven hundred and ninety were shipped (a). Where a bill of lading, signed by the master in the usual form, but for goods which were never received on board, had been deposited, according to the custom of merchants, with the plaintiffs, by the parties to whom the master had delivered it, as a security for advances from the plaintiffs to them, and had been endorsed by them to the plaintiffs, together with a bill of exchange drawn by them, and afterwards dishonoured, owing to the non-delivery of the goods mentioned in the bill of lading, it was held, that the plaintiffs could not recover, in an action on the case against the owners of the ship, the amount for which the bill of lading, if true, would have been good security (6); and a second bill of lading, for the same goods, will not be binding on the owner (c). As respects the master, however, it is now expressly enacted,— "That every bill of lading in the hands of a consignee or lading conclu endorsee, for valuable consideration, representing goods to have been of shipment. shipped on board a vessel, shall be conclusive (d) evidence 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; and 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 (e) of the shipper or of the holder, or some person under whom the holder claims” (ƒ). (a) Bates v. Todd, 1 Moo. & Rob. 106. Berkely v. Watling, 7 Ad. & El. 29. (b) Grant v. Norway, 10 C. B. 615. (c) Hubbersty v. Ward, 20 L. T. 278. sive as to material and weights, see Blanchet v. Powell's, &c., Co., post, 261, 278. (e) Valieri v. Boyland, L. R. 1 C. P. 382. (f) 18 & 19 Vict. c. 111, s. 3. This section does not make the bill of lading conclusive against the owner or owners, but Construction of exception. The usual exemption only exempts the shipowner from the absolute Chap. 4. liability of a common carrier and not from the consequences of the want of reasonable skill, diligence, and care (g). Where the defendant had stipulated in a bill of lading that he should not be accountable for leakage and breakage, this was held to protect him from liability for accidental leakage and breakage in the course of the voyage, but not from leakage and breakage caused by his negligence or the negligence of his servants in stowing the goods (h); and generally clauses of this kind do not protect the shipowners from liability for damage to goods occasioned by the negligence of their servants (i). But a bill of lading may provide that the shipowner shall not be liable for the negligence of the master and crew (k). Where a vessel was secured while unloading in a dock by tackle which broke, and she canted over, and her cargo was damaged, it was held that this loss was within an exception in a bill of lading of "all and every the dangers and accidents of the seas and navigation (1). The usual exception does not take away the ordinary liability of the shipowner to contribute in general average (m). The bill of lading remains in force at least so long as complete How long in delivery of possession of the goods has not been made to some person force. having a right to claim them under it (n). 3. To whom the Master and Owners are responsible on Bills of Lading. Cases of Conditional Consignment, the Condition being unperformed, considered. There is often some difficulty in deciding to whom the master and owners are responsible on their contract evidenced by the bill of lading, and whether actions for loss and injury, occasioned by their negligence or misconduct, should be brought by the consignor or consignee. No rule of general application can be laid down for the solution of this difficulty (o); but it will always be important to consider in whom the right of property, and sometimes in whom the right of possession, was vested, at the time of the breach of contract, or neglect of duty which is complained of. Where goods are sent by a vendor to a vendee, under a binding against the master or other person signing the same only. Meyer v. Dresser, 16 C. B. (N.S.) 646; 33 L. J. C. P 289. Brown v. The Powell, &c., Co., Lim., L. R. 10 C. P. 562; 44 L. J. C. P. 289, where the consignees were in a foreign country. Jessel v. Bath, 36 L. J. Ex. 149; L. R. 2 Ex. 267. See Blanchet v. Powell's, &c., Co., 43 L. J. Ex. 50, where bill of lading made in France and action brought for freight. (g) Notara v. Henderson, 41 L. J. Q. B. 158, per cur. 26 L. J. C. P. (h) Phillips v. Clark, 168; 2 C. B. (N.S.) 156. call, 35 L. J. P. C. 63. L. J. Ad. 63. A similar clause was held to be limited to leakage or breakage of the goods themselves. Thrift v. Youle, 46 (k) The Duero, 38 L. J. Ad. 69. (1) Laurie v. Douglas, 15 M. & W. 746. 187. (0) The Felix, 37 L. J. Ad. 48. The Figlia Maggiore, 37 L. J. Ad. 52. See, post, 272 note (f), and see 18 & 19 Vict. c. 111, s. 1, post, p. 275, enactment as to transfering rights of suit, in certain cases, to consignees, &c. Part IV. contract of sale, the delivery of them to a carrier of the vendees' selection is in general a delivery to the vendee, whose agent the carrier becomes, and the vendee is the person to sue the carrier for the loss of them; but it is in general otherwise where the property in the goods has not passed to the vendee (a). Delivery to the master of a ship would have the same effect were it not for the express contract in the bill of lading, which is the evidence of the master's having received the goods of the shipper, of his title or the title of the assignee of the bill of lading, or the consignee named in it, and in whose hands it is to claim them from the master, and of the terms on which he, for himself and for the shipowner, has contracted to carry and deliver them. Goods may be shipped to the order, and "on account and risk" of the consignee as purchaser, and yet his right to the possession of them be incomplete. It commonly happens that goods are not paid for, before or at the time of their shipment, but by bills of exchange drawn for their amount on the consignee, or on other parties. Between the consignor and consignee, the agreement or understanding may be, that the property in the goods shall not vest in the latter until such bills are accepted. When this is the case, the master will generally be required to sign bills of lading, to deliver the goods to the orders of the shipper, by whom one part, unendorsed, will be forwarded to the consignee, to notify the shipment, and another part, endorsed, to the agent of the consignor, to be delivered to the consignee when the condition of the consignment has been performed, by the acceptance of the bills of exchange (b). A vessel was chartered by one Berkely, for corn purchased in and to be shipped from Russia. The bills of lading were made for delivery to the shipper's own order; an unendorsed part was transmitted to Berkely, and an endorsed part to an agent of the shippers in London, who was to hand it over to Berkely, on his giving security by bills for the price. Berkely refused to give the required security, whereupon the agent of the shippers claimed the goods on their arrival, but the master delivered them to Berkely, on his assurance that he was entitled, as purchaser, and that the goods were shipped on his account and to his order. An action was brought by the shippers against the owners of the vessel, founded on the bill of lading, for not delivering pursuant thereto; and it was admitted on the trial and argument, that even if Berkely had established his right, there must have been a verdict against the defendants with nominal damages for the breach of their contract (c). "The complaint," said Lord TENTERDEN, "against the defendants is, that instead of delivering the goods to the plaintiffs' orders, they delivered them at another place and to a person who had not the plaintiffs' orders. This was a breach of the contract, for which the plaintiffs might undoubtedly (a) Dawes v. Peck, 8 T. R. 330. Dutton v. Solomonson, 3 B. & P. 584. Coats v. Chaplin, 3 Q. B. 483. Dunlop v. Lambert, 6 Cl. & F. 600. Brown v. Hodgson, 2 Campb. 36. Coleman v. Lambert, 5 M. & W. 502. Fragano v. Long, 4 B. & C. 219. (b) Bloxam v. Sanders, 4 B. & C. 941. Wilmshurst v. Bowker, 5 Bing. N. C. 541; 7 Scott, 561; 2 M. & G. 792. Wait v. Baker, 2 Ex. 1; and Key v. Cotesworth, 7 Ex. 595. (c) Brandt v. Bowlby, 2 B. & Ad. 932. H |