Part IV. he has paid for the goods, or whether the holder of a bill of lading be an endorsee for value or not, the master can seldom have the means of discovering. In the case of conflicting claims, it may be prudent to require indemnity, but if he makes delivery to the person who first claims the goods under a bill of lading regularly assigned to him, the consignor will seldom have much colour to complain that orders drawn up by himself have been too strictly observed (a). 9. Description of Goods in Bills of Lading. [If there is any dispute about the quantity or condition of the goods, or if the contents of casks or bales are unknown, the words of the bill of lading should be varied accordingly. By the French 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 (b). It is obvious that the quality, and frequently also the quantity of the goods must be unknown to the master; and the commentator (c) 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 practice he approves, and mentions two disputes decided in favour of the master in consequence of this precaution. 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, will be entitled to the usual freight for the voyage.] Where on a closed package being shipped for carriage, a bill of lading, containing an innocent misdescription of its contents is presented to the master of the ship, and he, without asking questions or examination, stamps thereon "weight, value, and contents unknown," there is a contract to carry the package, whatever its contents may be. What is the measure of damages for loss of the contents seems doubtful (d). (a) See the judgment of MAULE, J., in Howard v. Shepherd, 9 C. B. 297. (b) [Liv. 3, tit. 2: Des Connoissemens, art. 2. See also the Code de Commerce, art. 281.] (c) Valin, ubi supra. See also, upon this subject, Boulay Paty, vol. ii, pp. 309, 313. (d) Lebeau v. The General Steam Navigation Co., 42 L. J. C. P. 1; L. R. 8. C. P. 88. As to the freight payable on such a package, see Tully v. Terry, 42 L. J. C. P. 240; Jessel v. Bath, L. R. 2 Ex. 267. 10. Admiralty Cases. Consignors' or Enemies' property. Goods going during war to be delivered in an enemy's country under a contract to become the property of the enemy on arrival, are considered by Prize Courts as enemies' property, and questions respecting the proprietary interest in cargoes, of the same nature as those mentioned in this chapter to have been decided between consignors and consignees, have arisen between captors and claimants in the Courts of Admiralty of England and the United States, and been determined upon the same principles. The general rule is, that the property of goods going for the account of the shipper and subject to his order and control remains in him during the transit; and this has been considered to be the case, although the goods were sent in pursuance of the orders of the consignee, or stated to be on his account in the invoice, whenever conditions are annexed to their delivery, or a discretion respecting it is entrusted to the agent of the shipper (e). "Where goods," said Lord STOWELL (f), " are shipped without orders, the consignor has an unlimited right to vary the consignment at pleasure. The seller, if he may be so described, retains an absolute power over them, for there is no purchase. But when orders have been received and executed, and delivery has been made to the master of the ship, and bills of lading (g) deliverable to the consignee signed and transmitted to him, the seller is functus officio, except in the peculiar case in which he is again reinstated by the privileges of the vendeur primitif. That will make it a matter of fundamental importance that the letters containing the original order should be produced. The mercantile law I take to be clear and distinct, that the seller has not a right to vary the consignment except in the case [insolvency] above stated. The mischief and inconvenience that would ensue on a contrary supposition are extreme. The goods might be put on board, and might be at the risk of the consignee for two or three months; and if the consignor could come and resume them at pleasure, it would place the consignee in a situation of great disadvantage, that he should be exposed to the risk during such a length of time, for an object which might be eventually defeated at any moment by the capricious or interested change of intention in the breast of the consignor." The transfer, by subjects of belligerent states, of property in ships Chap. 4 (e) See the cases from the American Courts, in Story on Prize Courts, by Pratt; the Abo, 1 E. & A. 347; and the Vrouw Margaretta, 1 Rob. 336. The Sally, 3 Rob. 300 (note); the Aurora, 4 Rob. 219. (f) The Constantia, 6 Rob. 321. (g) The words within brackets are not in Lord STOWELL's judgment, but it is evident from the facts of the case, and from a reference to ch. 11, sect. 2, of this Treatise, that they are implied. Part IV. or goods in the course of their transit, to the effect of changing their national character, is not recognized by Courts of Admiralty, if it take place during actual hostilities, or imminent and impending danger of them (a). [Having thus considered the several particulars belonging dis tinctly to the two different species of contract for the conveyance of merchandise by sea, I proceed, in the following chapters of this fourth part, to treat of those general circumstances which may belong to both.] (a) The Danckebaar, 1 Rob. 107; the Herstelder, 1 Rob. 114; the Vrouw Margaretta, 1 Rob. 336; the San Frederick, 5 Rob. 128; the Fidentia, 1 E. & A. 314. And see, upon the subjects discussed in this chapter, Blackburn "On the Contract of Sale," pp. 135-146. CHAPTER V. OF THE GENERAL DUTIES OF THE MASTER AND OWNERS; AND SECT. 1. Of the Preparation for the Voyage, p. 281. 2. Of the Commencement of the Voyage, p. 297. 3. Of the Course of the Voyage, p. 306. 4. The Master's Duty as respects the Cargo in the Course of the Voyage, p. 310. 1. Of the Preparation for the Voyage. [IN whatever way the contract for the conveyance of merchandise be made, the master and owners are thereby bound to the performance of various duties of a general nature. I propose to treat of these duties in the present chapter, and shall consider them as they regard, first, the Preparation for the Voyage; secondly, the Commencement; thirdly, the Course; and lastly, the Completion of the Voyage. And first, as to the Preparation for the Voyage. The first duty is to provide a vessel tight and staunch, and furnished with all tackle (6) and apparel necessary for the intended voyage (c); for if the merchant suffer loss or damage by reason of any insufficiency of these particulars at the outset of the voyage, he will be entitled to a recompense (d).] Before the 39 & 40 Vict. c. 80, it was (b) As to insufficient anchors, see Harrison v. Douglas, 3 Ad. & E. 396. As to testing and sale of anchors and chain cables, see 27 & 28 Vict. c. 27; 34 & 35 Vict. c. 101; 37 & 38 Vict. c. 51. (c) [Emerigon, tom. 1, pp. 373, 374, 375. Roccus, not. 19, 57, 69. Ordinance of Rotterdam, 2 Magens, p. 101, art. 124. Molloy, book 2, chap. 2, sect. 10. Wellwood's Sea Laws, tit. 7, p. 72.] Kopetoff v. Wilson, 45 L. J. Q. B. 436; L. R. 1, Q. B. D. 377; Cohen v. Davidson, 46 L. J. Q. B. 305; L. R. 2 Q. B. D. 455. As to send. ing ships to sea in such an unseaworthy state as to endanger human life, and as to the power to detain such ships, see 39 & 40 Vict. c. 80. (d) The case of Wedderburn v. Bell, (1 Campb. Rep. 1) was an action on a policy of insurance on the ship Minorca, at and from Jamaica to London. The ship sailed from England with convoy, but parted from the fleet; and being no more heard of, was supposed to have foundered in a hurricane. The defence was, that the ship was not properly equipped with sails. It appeared that her sails to be used in stormy weather were in good condition, but that her maintop-gallant sails and studding sails, which are useful in light breezes, were rotten and almost unserviceable. Lord ELLENBOROUGH said, "The hull of the ship in this case was sufficient and seaworthy, but it appears that when she left Jamaica her sails were Chap. 5. Part IV. held there was no implied warranty on the part of a shipowner that his ship was scaworthy when contracting with a seaman to make a voyage in her (a). By sect. 5 of this statute, in every contract of service between the owner of a ship and the master or any seaman thereof, and in every instrument of apprenticeship whereby any person is bound to serve as an apprentice on board any ship, there is implied a certain obligation as to insuring the seaworthiness of the ship. [An insufficiency in the furniture of the ship cannot easily be unknown to the master or owners; but in the body there may be latent defects unknown to both. The French ordinance directs that if the merchant can prove that the vessel, at the time of sailing, was incapable of performing the voyage, the master shall lose his freight, and pay the merchant his damages and interest (b). Valin, in his commentary upon this article, cites an observation of Weytsen, "That the punishment of the master in this case ought not to be thought too severe, because the master, by the nature of the contract of affreightment, is necessarily held to warrant that the ship is good, and perfectly in a condition to perform the voyage in question, under the penalty of all expenses, damages, and interest." And he himself adds that this is so, although before its departure the ship may have been visited according to the practice in France, and reported sufficient; because on the visit the exterior parts only of the vessel are surveyed, so that secret faults cannot be discovered, "for which,] highly defective. It is not enough that a party, a ship was to be "tight, staunch, (a) Couch v. Steel, 3 E. & B. 402. |