CHAPTER THE SECOND.

OF THE CONTRACT FOR CONVEYANCE OF MERCHAN DIZE IN A GENERAL SHIP.

1. THE

HE contract for the conveyance of merchandize in a general ship is that, by which the master and owners of a ship, destined on a particular voyage, engage separately with various merchants unconnected with each other, to convey their respective goods to the place

of the ship's destination. It has been already [216] shewn (a) that this contract, although usually

made personally with the master, and not with the owners, is considered in law to be made with them also, and that both he and they are separately bound to the performance of it.

2. When a ship is intended to be thus employed, it is usual in London, and other places, to give notice of the intention by printed papers and cards, mentioning the name and destination of the ship; her burthen and sometimes her force; and sometimes expressing also that the ship is to sail with convoy, or with the first convoy for the voyage, or other matters relating thereto. Such expression is an assurance or warranty to the merchant, who lades goods in pursuance of the advertisement, and becomes a part of the contract with him, although it be not afterwards contained in the bill of lading (6).

(a) Ante, part 2. chap. 2.

(b) Said to be so understood among merchants, &c. by the jury,

in the case of Rinquist v. Ditchell, Sit. p. Mich. Ter. 40 Geo, 3. at

8. When goods are sent on board the ship, the master, or person on board acting for him, usually gives a receipt for them, and the master afterwards signs and delivers to the merchant sometimes two, and sometimes three, parts of a bill of lading, of which the merchant commonly sends one or two to his agent, factor, or other person, to whom the goods are to be de

livered at the place of destination, that is, one [217] on board the ship with the goods, another by the post or other conveyance; and one he retains for his own security. The master should also take care to have another part for his own use.

Guildhall.* This point however was brought before the Court of King's Bench in Mich. Term, 48

Geo. 3. The decision will be noticed in the Addenda, if it takes place in time.

This was decided in Rinquist v. Ditchell, referred to in the note under the text and reported. 3 Esp. Nisi Pr. Ca. 64. The case was on an action brought against the own er of the Ship Cromer, to recover damages to the value of the goods shipped on board of her under the following circumstances. The ship Cromer was put up at the Coffee as a general ship for Oporto, war. ranted to sail with convoy. The plaintiff shipped goods on board her, and effected a policy on goods on board the Cromer warranted to sail with convoy." She 'did not sail with convoy, and was lost and by reason of not comply ing with the warranty, the policy was void. The ship-broker proved that he had put up the ship as a general ship for Oporto, at the u

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sual places at the Royal Exchange, and that the Captain had, during that time, been frequently at the Exchange, that he had signed bills of lading on which the ship was warranted to sail with convoy, and that handbills to that effect had been handed about. The Captain however denied having given any authority, so to represent the ship. Lord Kenyon decided that the owner was bound by the act of his agent the broker. If he had done it without authority, it was a question between him and the owner; the public had nothing to do with it. The representation of the ship's sailing with convoy was announced to the public in the usual manner, and was sufficient to bind the parties.

I. W.

OLD FORM OF A BILL OF LADING.

2 SHIPPED, by the grace of God, in good No 1. a 20. Sorder, by A. B. merchant, in and upon the good ship called the John and Jane, whereof C. D. is master, now riding at anchor in the river of Thames, and bound for Barcelona in Spain, 20 bales, containing 100 pieces of broad cloth, marked and numbered as per margin; and are to be delivered in the like good order and condition at Barcelona aforesaid (the dangers of the seas excepted), unto E. F. merchant there, or to his assigns, he or they paying for the said goods piece freight, with primage and average accustomed. IN WITNESS whereof, the master or purser of the said ship hath affirmed to three bills of lading of this tenor and date, one of which bills being accomplished, the other two to stand void. And so God send the good ship to her designed port in safety.

DATED at London.

per

The terms of this exception were altered about [218] five years ago, in consequence of an alarm taken by the ship-owners at the decision of a cause (c), that will be mentioned in a subsequent chapter; 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

(c) Smith v. Shepherd, post, ch. 4. of this part, sect. 1.

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." Other exceptions are and may be introduced, to take away the responsibility of the master and owners in various cases, for which they would otherwise be responsible.

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 which words are generally understood to im- [219] port an engagement on the part of the master

order, or

assigns,"

to deliver the goods to the person, to whom the shipper or consignor shall order the delivery, or to the assignee. of such person. This subject will be further considered in a subsequent chapter (d).

4. 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 quantity and marks of the

(d) Ch. 9. of this part. Of Stoppage in Transitu.

merchandize, 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 the ship, and the price of the freight (e).

It is obvious that the quality, and frequently also the quantity, of the goods must be unknown to the master ; and the commentator (ƒ) 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.

[220]

5. 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.

Having thus considered the several particulars belonging distinctly to the two different species of contract for the conveyance of merchandize by sea, I proceed in the following chapters of this third part, to treat of those general circumstances which may belong to both.

(e) Liv. 3. tit. 2. Des Connoisse- (ƒ) Valin, ubi supra.

mens, art. 2.