When

*the consignees, the master and his owners had been safe, had he not departed from his contract in the bill of lading, to deliver only to the order of the shipper. In the cases of Haille v. Smith and Anderson v. Clark, the right of the consignees to the goods, resulted from the special circumstances under which they were consigned; but their right of action against the master, was founded on the neglect of his engagement to deliver to the orders of the shipper. The master should remember, that the cases in which the consignor is entitled to alter the destination fof a [† 338] consignment are not of frequent occurrence. once he has transmitted a bill of lading to a consignee named in the body of it, and not being his own agent, or in blank, or to his own order, indorsed by him, he may, if the goods were shipped on credit, and the consignee has become insolvent or failed, assert his right of stopping them in their transit; but even that right will avail him nothing against the title of an indorsee for value (r). The insolvency of the consignee may generally be easily ascertained; but whether he has paid for the goods, or whether the holder of a bill of lading be an indorsee for value or not, the master can seldom *have the means of discovering. In case of conflicting claims

(r) See post, also Stoppage in Transitu. Jones v. Jones, 8 M. & W. 431. The law in America recognises the same principles as the English law on the subject of the transfer of property by indorsement of the bill of lading. A consignor cannot stop goods in transitu, when they are shipped, to pay a precedent debt. Neither can he stop them when the consignee is his own agent, if the goods are a shipment for a cestui que trust who has paid the consideration, and when once the bill of lading is signed by the master after the goods are on board, under such circumstances, the consignor and master cannot change the right of property by any change of the papers, so as to divest the interest already vested in the consignee. But where a shipment is made to a creditor on account and risk of the consignor, and there is no contract respecting it between the consignor and consignee, there the right of stoppage and transfer of the property continues, so that the creditor may be defeated by a transfer or countermand before the bill of lading reaches him. And a factor who is a creditor also, has no lien on goods consigned to him by his principal for ac

count and risk of the shipper, if before they get into his actual possession the consignor has bona fide assigned the bill of lading.-Story, note to American edition, p. 388.

Where a consignment is made to a factor for the account and risk of the consignor, and the bill of lading makes the goods deliverable to the consignee or his assigns, then the bill of lading must be indorsed by the consignee to pass the property to a purchaser, claiming in virtue of a transfer by such bill only; and an indorsement by the consignor would not operate a legal transfer of the bill of lading, so as to defeat the rights of third persons. As against the factor himself, or any other person claiming the goods by a bona fide transfer of the bill of lading, the consignor as owner, may assign the property by any legal instrument of assignment whatsoever, but then the party takes by such assignment, for an indorsement can only be made of the bill of lading by the party to whom or whose order it is originally made assignable, so as by virtue thereof to pass the property.-Ibid. p. 391.

it may be prudent to require indemnity, but if he make delivery to the person, who first claims the goods under a bill of lading regularly assigned to him, the consignor will seldom have much color to complain that orders drawn up by him* self, have been too strictly observed.

9. If there is any dispute about the quantity or [339] 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 the ship, and the price of the freight (t).

It is obvious that the quality, and frequently also the quantity, of the goods must be unknown to the master; and the commentator (u) 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 favor 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. (1)

Having thus considered the several particulars, belonging distinctly 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.

(t) Liv. 3, tit. 2, Des Connoissemens,

(u) Valin, ubi supra. See also upon art. 2. So also the Code de Commerce, this subject, Boulay, Paty, vol. 2, 309,

Where goods are put on board clandestinely, the owner of the ship is not responsible for any loss or injury to them; nor indeed, where such goods are taken on board by the master clandestinely, beyond the scope of his authority. Walter v. Brewer, 10 Mass. R. 99. It may be otherwise, if he afterwards adopts the act of the master. Ib. Where several tenants in common make a shipment of the goods, and consign them to the master, although the instructions and bill of lading be to him as in a joint concern, yet the consignment is to be considered as several, and he has no authority on the return voyage to consign the whole exclusively to two of the owners, excluding the others. Jackson v. Robinson, 3 Mason, R. 138.

OF THE GENERAL DUTIES OF MASTER AND OWNERS; (1) AND HEREIN,

(Ss.)1. Of the Preparation.

2. Of the Commencement.

3. Of the Course.

4. Of the Completion of the Voyage.

I

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. 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. 1. 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 and apparel necessary for the intended voyage (a). 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 (b). (2)

(a) Emerigon, tom. 1, p. 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. 22.

*(b) 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, 1. That the ship was not properly

(1) { See 3 Kent, (5th ed.) 207, et seq. It is well settled in the English and in our American law, that carriers by water, whether in foreign or inland navigation, are liable as common carriers, in all the strictness and extent of the common law rule, unless the loss happens by one of the excepted perils. See Kent, (5th ed.) 216; 2 ib. 598-600; Story, Bailments, § 499, and cases in notes; Gilmore v. Carman, 1 Smedes & Marshall, 279; McGregor v. Kilgore, 6 Ohio, 358; post, 382, note; 394, note; Elliott v. Rossell, 10 John. 1; Kemp v. Coughtry, 11 John. 107; M'Arthur v. Sears, 21 Wendell, 193; which last case is considered as virtually overruling the contrary decision in Aymer v. Astor, 6 Cowen, 266. >

(2) The ship must be fit and competent for the sort of cargo and the particular

[† 341]

+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. (1) The French ordinance directs, that if the merchant can prove that the vessel, at the time of sailing, was incapable of per

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 sea-worthy; but it appears that when she left Jamaica her sails were highly defective. It is not enough that a ship is supplied with such sails as are essential to her safety from the perils of the sea, and which might enable her, if not intercepted, at some period or other to complete her voyage. She must be rendered as secure as pos

sible from capture by the enemy, as well as from the dangers of the winds and waves. But here the Minorca appears to have been deficient in sails, on which her speed might materially depend; and, if so, the risk being thereby greatly increased, the policy never attached, and this action cannot be supported." With respect to insufficiency of such particulars after the commencement of the voyage, resulting from the negligence or default of the master and crew, as it affects the liability of insurers, see Hollingsworth v. Brodrick, 7 Ad. &. Ell. 40, and Dixon v. Sadler, 5 M. & W. 405.*

service for which she is engaged. It is an implied warranty in the contract, that the ship be sufficient for the voyage, and the owner, like a common carrier, is an insurer against every thing but the excepted perils. 3 Kent, (5th ed.) 205; Putnam v. Wood, 3 Mass. 481; Silva v. Low, 1 John. Cas. 134; Whitall v. The Brig William Henry, 4 Miller, (Lou.) 223; Elliott v. Rossell, 10 John. 1; Richards v. Gilbert, 5 Day, 415; Emery v. Hersey, 4 Greenl. 407; M'Clure v. Hammond, 1 Bay, 99; Harrington v. Lyles, 2 Nott & M'Cord, 88; Dickinson v. Haslet, 3 Har. & John. 345. >

In Putnam. Wood, 3 Mass. R. 481, the Court said, that "it is the duty of the owner of a ship, when he charters her, or puts her up for freight, to see that she is in a suitable condition to transport her cargo in safety, and he is to keep her in that condition, unless prevented by perils of the seas, or unavoidable accidents. If the goods are lost by any defect in the vessel, whether latent or visible, known or unknown, the owner is answerable to the freighter upon the principle, that he tacitly contracts, that his vessel shall be fit for the use for which he employs her."

If during the voyage the vessel meets with an accident, it is the duty of the owner to see that she is put in complete repair at the next convenient port. If he does not, he must abide the loss; for it is of the essence of his contract, that his vessel shall be able to receive, retain, and transport her cargo. And these principles govern, not only in charter-parties, and in policies of insurance, but are equally applicable to contracts of affreightment. Ibid. See, also, Kimball v. Tucker, 10 Mass. R. 192; Goodridge v. Lord, 10 Mass. R. 483; Ripley v. Scaife, 5 Barn. & Cres. 167; Bell v. Read, 4 Binn. 127.

The responsibility of the owner begins where that of the wharfinger ends, and when the goods are delivered to some accredited person on board the ship. 3 Kent, (5th ed.) 206. >

(1){"If there should be a latent defect in the vessel, unknown to the owner, and undiscoverable upon examination, yet the better opinion is," it is observed by Mr. Chancellor Kent, "that the owner must answer for the damage occasioned by the defect." 3 Kent, (5th ed.) 205, and note (a). See Lyon v. Mells, 5 East, 428; Whitall v. Brig Wm. Henry, 4 Lou. 223.

This flows directly from the position, that the master and owner of a general freighting ship are common carriers. See post, 382 and 394, notes. >

forming the voyage, the master shall lose his freight, and pay the merchant his damages and interest (c). Valin, in his commentary on this article, cites an observation of Weitson, "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, by consequence," says he, "the owner or master remains always responsible; and this the more justly, because he cannot be ignorant of the bad state of the ship; but even if he be ignorant, he must still answer, being necessarily bound to furnish a ship good and capable of the voyage.' Pothier (d), taking notice of this article, and of the commentary upon it, declares his own opinion (in conformity, as he observes, to the general principles of law established in his own treatise on the contract of letting to hire) to be, that if the ship has been visited, and reported sufficient, the master or owner shall not be answerable for damages occasioned by a defect, which they fdid not, nor could know; but he agrees that they [† 342] shall lose their freight (e). It may be observed, however, that defects of this sort cannot exist, unless occasioned by the age or particular employment of the ship, or some accidental disaster that may have happened to it; all of which ought to be known to the owner, and ought to lead to an examination of the interior as well as exterior parts. And indeed this contract, although greatly partaking of the nature of the contract of letting to hire, is not precisely the same, but includes in itself a warranty beyond that which is con

(c) Liv. 3, tit. 3, Fret. art. 12.

(d) Traité de Chartie-partie num. 30. The author here refers to his own excellent Traité de Louage, part 2, chap. 1, sect. 4, par. 2. But it rather appears to me that the rules there laid down by himself, warrant the conclusion, that in this instance the owner and master ought to be responsible for the loss, "Lorsque le locateur devoit par sa profession être informé du vice de la chose louée, il est tenu des dommages intérêts du conducteur,

sans qu'il soit besoin de chercher, si effectivement il en a eu connoissance ou non. And he instances the case of a cooper or shopkeeper, letting casks made of bad wood.

*(e) Le Capitaine perd son fret et, repond des dommages intérêts de l'affréteur, si celui-ci prouve que, lorsque le navire a fait voile, il était hors d'état de naviguer. La preuve est admissible nonobstant, et contre les certificats de visite au départ.Code de Commerce, art. 297.