or ultimate destination of the ship were changed, it would be the duty of the ship-owner to notice the same in his advertisement, and vary that accordingly.1

SECTION II.

DELIVERY TO THE VESSEL.

The reception of the goods by the master on board of the ship, or at a wharf or quay near the ship, for the purpose of carriage therein, or by any person authorized by the owner or master so to receive them, or seeming to have this authority by the action or assent of the owners or master, binds the ship to the safe carriage and delivery of the goods.2

bility of performance; and the failure operated a breach of the engagement, and subjected him to a return of the price paid. The winds and weather are no excuse for the non-fulfilment of a contract as to the time of the commencement of the voyage. If these circumstances had been intended as elements of it, they should have been expressly provided for by the owner, and then all parties concerned would have understood it." See also Denton v. Great Northern R. 5 Ellis & B. 860, 34 Eng. L. & Eq. 154. In Mills v. Shult, 2 E. D. Smith, 139, an action was brought against the owner of a steamship for the breach of a condition set forth in a handbill in which the steamer was advertised to sail. It appeared in evidence that when the plaintiff went to buy his ticket he saw at the office a handbill, which stated that the steamer would sail direct for New York on a day mentioned. The handbill was signed by A & B as agents of the steamer, of whom also the plaintiff bought his ticket. The vessel sailed on the day mentioned, but did not proceed directly to New York, but stopped on the way to perform a salvage service, for which her owners were paid. The ticket bought by the plaintiff was recognized on board as a valid one. The court held that these facts were not sufficient of themselves to warrant the presumption that A & B were the agents of the steamer, and so authorized to bind the company. The correctness of this decision we are inclined to doubt.

1 In Peel v. Price, 4 Camp. 243, Gibbs, C. J., said: "When a card has been published, advertising a ship for a specific voyage, if that be altered, I am of opinion that the owner is bound to give specific notice of the alteration to all persons who afterwards ship goods on board the vessel, and that he is otherwise answerable for the loss which they sustain by supposing that the destination of the vessel remains unaltered."

2 In Molloy, b. 2, c. 2, § 2, the law is stated as follows: "And therefore so soon as merchandises and other commodities are put aboard the ship, whether she be riding in port, haven, or any other part of the seas, he that is Exercitor navis is chargeable therewith. In Goff v. Clinkard, cited in Dale v. Hall, 1 Wil

SECTION III.

BILL OF LADING.

The bill of lading is a very ancient document, in general use among all commercial nations, and is much the same in its form

son, 281, an action was brought against a master of a ship who undertook to carry goods from London to Amsterdam. A puncheon of rum was delivered on board, and, while being let down into the hold, was staved. A verdict was rendered for the plaintiff, though the defendant proved that he endeavored to let it down with all possible care. See also Morse v. Slue, 1 Vent. 190; Rich v. Kneeland, Hob. 17; Williams v. Peytavin, 4 Mart. La. 304. In Cobban v. Downe, 5 Esp. 41, an action was brought against a wharfinger to recover the value of goods which had been delivered to the mate of a vessel by the wharfinger. Lord Ellenborough held, that, under these circumstances, the liability of the wharfinger had ceased, because that of the vessel had commenced. As soon as a delivery is made, the vessel is bound. Faulkner v. Wright, 1 Rice, 107; Greenwood v. Cooper, 10 La. Ann. 796; Clarke v. Needles, 25 Penn. State, 338; Snow . Carruth, 1 Sprague, 324. In this last case the damage was done to the goods after they were delivered, but before the bills of lading were signed. See also Greenwood v. Cooper, 10 La. Ann. 796. Judge Betts has, however, in a recent case in the District Court of New York, held that a vessel is not liable in rem until the goods are on board, although they have been delivered to the officers of the vessel; Dill v. The Bertram, Ms. In support of this the following cases are cited. The Sch. Freeman v. Buckingham, 18 How. 182; Vandewater v. Mills, 19 How. 82; The Young Mechanic, 2 Curtis, C. C. 404; The Kiersage, 2 Curtis, C. C. 421. But, after a careful examination of these cases, we are entirely of the opinion that they do not support the principle contended for by Judge Betts, although there are dicta in some of them which seem to lead to such a conclusion; but the points actually decided are in every respect consistent with the law as stated in the text. See note 3, p. 187. In The Bark Edwin, 1 Sprague, 477, s. c. nom. Bulkley v. Naumkeag Steam Cotton Co. 24 How. 386, it appeared that at Mobile it is necessary for ships drawing a certain amount of water to lie below the bar and have their cargo brought down to them in lighters which are hired by the master of the ship for this purpose. It was held that a vessel was liable in rem for goods which had been delivered to the master for purposes of transportation, and lost on board the lighter. In Trowbridge v. Chapin, 23 Conn. 595, goods were delivered on board a steamer, which was a common carrier between New York and New Haven. The defendant proved that the clerk of the boat was the only person whose duty it was to receive freight and give receipts for it. The goods were taken on board by a porter, who testified that he saw but one man on board, who was either a deck hand, or one employed to sweep the decks. He told this man that he had goods for New Haven, and the man told him to put them down in a certain spot. He then left without making

and provisions in various countries;1 and long and repeated adjudications have left but few open questions as to its effect. It is generally signed by the master, but it is not unusual in some of our commercial cities for the bill of lading to be signed and delivered in the counting-room of the owners, by a clerk of the owner. If he says, "A B, for C D, the master of said ship," the master would only be held if it were proved that he had given this authority, which, however, might be inferred from his knowledge and assent, or even knowledge and silence. Then the master and owners would be bound in the same way as if he signed it himself. If the clerk says, "A B, for E F, etc., owners of ship, any further inquiry. A majority of the court, consisting of three judges, held that, as the deck hand was not the agent of the boat for the purpose of receiving freight, the owners had incurred no liability. The Chief Justice and the remaining judge held that the porter had a right to presume that the man had been left in charge by the proper officers of the boat, and that the rule that where one of two innocent persons must suffer by the fraud of another, the loss shall fall on him who placed that person in a situation to commit the fraud, applied. They therefore were of opinion that the defendant should be held. The Chief Justice, in the course of his opinion, gives this illustration: "Suppose a quantity of freight had been shipped by the boat from New Haven to a merchant in New York, and a carman had taken it and carried it to the merchant's store, which he found open and no one in, or about it, except a man at work in the store, would not the carman be justified in leaving the goods deposited in the store, in the manner directed by the man at work?" The dissenting opinion pronounced by the learned Chief Justice seems to us to be better founded on principle and authority than the decision of the majority of the court, and the case does not appear to us to differ substantially from that of Merriam v. Hartford R. 20 Conn. 354. See also Butler v. Hudson River R. 3 E. D. Smith, 571; Freeman v. Newton, ib. 246; Wells v. Wilmington R. 6 Jones, 47.

The mere putting of the goods on the deck, without a delivery to some one on board is clearly not good. In Wright v. Caldwell, 3 Mich. 51, a distinction was taken between the delivery to be made by a passenger and by a freighter. A person intending to take passage on a steamboat brought his trunk on board and put it in the usual place for baggage, but did not deliver it to any one on board. Through mistake he did not take passage, and the trunk was lost. It was held that he must sue either in the character of passenger or freighter. That as passenger the delivery was good, but as he did not take passage he could not recover, and as freighter he had not made a good delivery. But if goods are put on board without the knowledge of those in command, and they afterwards receive freight for the goods, this is a ratification of the shipment. The Huntress, Daveis, 82.

1 Pothier on Maritime Contracts, Cushing's Trans. p. 11, § 16; Beawes, Lex Mercatoria, 146.

Putnam v. Tillotson, 13 Met. 517.

etc.," the owners would be bound on proof of authority, which would be inferred from knowledge and assent or usage.1

If a written receipt is given for the goods, the obligation is no stronger, but the receipt is prima facie and very strong evidence of the reception of the goods.2 If, however, a bill of lading is given, this has an important influence over the rights and obligations of the parties.

It is now quite common for our railroad companies, and perhaps other carriers, to give a receipt closely resembling a bill of lading; but it is intimated in a recent English case that the bill of lading is properly a sea document, not applicable to land carriage, or inland carriages by water.3 We do not know, however, any important consequences of or inferences from a bill of lading as used in shipping which might not belong to a similar document in case of land carriage, if the facts and circumstances were, in other respects, similar. It is in substance the written acknowledgment of the master that he has received such goods as it describes, for the

On the ground that the bill of lading must be signed by the master or by some one authorized by him, and must state by whom the goods are shipped, and where, and to whom they are to be delivered, the following instrument was held not to be a bill of lading: "Elmira, July 2, 1842, shipped on boat Occidental, H. Banks, captain, 52,900 feet white pine boards and plank, to Albany." This was signed by the agent of the consignor, and delivered to the captain. Covill v. Hill, 4 Denio, 323. See also Wolfe v. Myers, 3 Sandf. 7. But in Dows v. Perrin, 16 N. Y. 328, a bill of lading signed by the clerk of a canal boat line, in the name of the owners, was held a valid bill of lading. See also Dows v. Greene, 32 Barb. 502, 24 N. Y. 638; Dows v. Rush, 28 Barb. 157; The Sch. Emma Johnson, 1 Sprague, 527; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120.

2

By the usual course of trade in England and in this country, the master or mate signs a receipt for the goods, at the time of the shipment, and delivers it to the shipper. The master should then be careful not to give a bill of lading till the receipt is given back to him. If he does, he will render himself doubly liable. Beawes, Lex Mercatoria, p. 127; Abbott on Shipping, 346; Craven v. Ryder, 6 Taunt. 434; Bryans v. Nix, 4 M. & W. 775; Evans v. Nichol, 3 Man. & G. 614; Thompson v. Small, 1 C. B. 328; Gosling v. Birnie, 7 Bing. 339; Ruck v. Hatfield, 5 B. & Ald. 632; Hawes v. Watson, 2 B. & C. 540; Jones v. Bradner, 10 Barb. 193; Merc. Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115; Keyser v. Harbeck, 3 Duer, 373. So if he gives two bills of lading for the same goods to different persons. Stille v. Traverse, 3 Wash. C. C. 43.

3

Bryans v. Nix, 4 M. & W. 775. In New York, a bill of lading, given for goods to be transported by a canal, is called a commercial instrument. Dows v.

Greene, 16 Barb. 72. See also Grove v. Brien, 8 How. 429.

voyage stated, to be carried on the terms stated, and delivered to the persons specified in the bill. It is a document of great force, and therefore should not be signed and delivered until the goods are actually received (and if only signed, but not delivered, it has no force), nor should it contain any statements but those which are exactly accurate. If it be signed before the goods are received on board, or even before the shipper owns them or has bargained for them, it might nevertheless apply, as between the master and the shipper, to any goods shipped afterwards as and for those which are named in the bill of lading. But, in general, as the master has no authority to sign a bill of lading until the goods are received, such a bill would not bind his owners. If there is a con

1 O'Brien v. Gilchrist, 34 Maine, 554; Wolfe v. Myers, 3 Sandf. 7; Ward v. Whitney, 3 Sandf. 399, 4 Seld. 442; Knox v. The Ninetta, Crabbe, 534; May v. Babcock, 4 Ohio, 334; Wayland v. Moseley, 5 Ala. 430; Dickerson v. Seelye, 12 Barb. 99.

2 Buffington v. Curtis, 15 Mass. 528; Allen v. Williams, 12 Pick. 297; Graham v. Ledda, 17 La. Ann. 45. But in the case of The Peytona, 2 Curtis, C. C. 21, it has been held that an agreement for a bill of lading might bind the master, although none were signed or delivered.

In Rowley v. Bigelow, 12 Pick. 307, Shaw, C. J., said: "The bill of lading acknowledges the goods to be on board, and, regularly, the goods ought to be on board before the bill of lading is signed. But if, through inadvertence or otherwise, the bill of lading is signed before the goods are on board, upon the faith and assurance that they are at hand, as if they are received on the wharf ready to be shipped, or in the ship-owner's warehouse, or in the shipper's own warehouse, at hand and ready, and afterwards they are placed on board, as and for the goods embraced in the bill of lading, we think, as against the shipper and master, the bill of lading will operate on these goods by way of relation and by estoppel." The controversy in this case arose between the former owners of some corn, which was obtained from them by fraud, and the bonâ fide indorsees of a bill of lading given to the person thus obtaining the corn, and by him sent to the defendants. But the question arises whether if a captain sign bills of lading before the goods are on board, or delivered to some one authorized to receive them, and they are never shipped, the owners of the vessel are estopped from showing this fact in a suit brought against them for non-delivery by bonâ fide indorsees of the bill of lading. It is clear that they are not. It is a fraud on the part of the master to sign the bills before the goods are on board, and an act not within the scope of his authority as master. And the owners therefore are not liable. Lickbarrow v. Mason, 2 T. R. 63, 75, per Buller, J.; Grant v. Norway, 10 C. B. 665, 2 Eng. L. & Eq. 337; Hubbersty v. Ward, 8 Exch. 330, 18 Eng. L. & Eq. 551. See also Coleman v. Riches, 16 C. B. 104, 29 Eng. L. & Eq. 323. Nor, in such a case, is the vessel liable in rem. Sch. Freeman v. Buckingham, 18 How. 182;

The Bark Edwin, 1 Sprague, 477.