does not transfer contract.

Reindorsement retransfers contract.

To consignor.

Consignor's rights under bill of lading.

complete delivery of the goods to a person having a right to receive them, or something equivalent to such delivery: it is not spent or exhausted by the landing or warehousing of the goods under a stop for freight,(o) nor by misdelivery.(p) But it seems that one who takes a bill of lading by indorsement, after the goods have been delivered in fulfilment of the contract to another person, would not be an indorsee within 18 & 19 Vict. c. 111, or have the rights which are conferred by that statute.(2)

§ 354. If a consignor indorses a bill of lading as a security for an advance, and upon the repayment of the advance, the bill of lading is, while still an effective instrument, reindorsed and delivered to him, he is remitted to all his original rights whether by statute or at common law, and is entitled to sue the shipowners for a breach of their contract with him, whether occurring before or after such reindorsement.(?)

Respective Liabilities of Master, Owner, and Charterer upon the
Contract contained in the Bill.(s)

§ 355. The master is the agent of his principals, who are generally the shipowners, to sign bills of lading for goods which he receives on board. We have seen that he can generally speaking, sue on the contract contained in a bill of lading so signed by him.(t) He is also liable to be sued upon it, for by his signature he binds himself, as well as his principals, to its due performance.(u)

If a consignor takes a bill of lading, deliverable "unto order or to his assigns,” he controls the possession of the master and makes him accountable to deliver the cargo according to the terms of the bill of lading.(x)

And although the goods have been shipped in a general ship, and the master has signed, at consignor's request, a bill of lading for delivery to a named consignee; or the consignor has indorsed in blank a bill drawn to his order, still, until the goods, or the bill of lading which represents them, are, by the consignor's authority, actually delivered to the consignee or his agent, with the intention of vesting a right of property in the consignee, the consignor may revoke the bill of lading, or by indorsement may vary it,

(0) Barber v. Meyerstein, L. R. 4 H. L. 317; L. R. 2 C. P. 38; 661.

(p) Short v. Simpson, L. R. 1 C. P. 248; Bristol, &c., Bank v. M. R., (1891) 2 Q. B. 653.

(q) See per Montague Smith, J., L. R. 1 C. P. at p. 255; see, however, per Field, J., The Rona, 51 L. T. at p. 30.

(r) Short v. Simpson, L. R. 1 C. P. 248; per Willes, J., at p. 255.

(8) As to the master's general responsibility for the safety of the goods, see § 236 et seq., supra.

(t) Supra § 314.

(u) Story on Agency, 294.

() Shepherd v. Harrison, L. R. 5

H. L. 116.

or change his purpose, or attach conditions to it. (y) And for any delivery contrary to such revocation or change of purpose the master, as well as his owners, will be liable to the consignor.

When the consignor parts with the bill of lading to a con- To consignee. signee or indorsee, with the intention of thereby passing the property-i.e. the whole property-in the goods, the master becomes personally liable upon the contract contained in the bill to such consignee or indorsee, to whom, as has been seen, all the consignor's rights of suit are transferred by the Bill of Lading Act, 1855.(2) And apart from the Act, the master will also be liable in case of non-delivery to a consignee who has only a special property in the goods, for this is sufficient, as was pointed out above,(a) to enable him to sue for a conversion.

master's

charterer.

§ 356. The question bas frequently been raised whether, Whether where the ship is chartered, it is the owners or the charterers signature who are liable upon a bill of lading given by the master. This binds owner or question, affecting, as it does, rather owners and charterers than masters, does not call for minute examination here. It is sufficient to point out that, unless, at all events, the charter-party amounts to a demise of the ship, so that the charterer becomes pro hac vice owner, (b) a person who ships goods on board a Liabilities of vessel, unaware that she has been chartered to another, is warranted shipowner, when ship is in assuming that the master is acting by virtue of his ordinary chartered, but authority, and therefore for the shipowners, in signing bills of not demised. lading. Until the fact that such a master's authority has been put an end to, is brought to the knowledge of a shipper of goods, the latter has a right to look to the shipowner as the principal with whom the contract is made. And this may be so although by the agreement between the owner and the charterers the master has authority to bind the latter.(c)

If therefore the master is not in fact authorised to bind the shipowners by bills of lading, it becomes his duty to give to shippers distinct notice of his want of authority; and this may best be done by using a form of bill of lading appropriate for the purpose.(d)

(c) Sandeman v. Scurr, L. R. 2 Q. B. 86, per Cockburn, C.J., at p. 97; see also The Patria, L. R. 3 Adm. 436; The Figlia Maggiore, 2 ib. 106; The St. Cloud, B. & L. 4, 15; Omoa, &c., Co. v. Huntley, 2 C. P. D. 464; cp. Wagstaff v. Anderson, 5 C. P. D. 171. For a recent case in which charterers were held liable, see Herman v. Royal Exchange, &c., Co. 1 C. & E. 413.

(d) As in Hayn v. Culliford, 4 C. P. D.

182.

Exceptions

but not duty

do not in

general excuse

Meaning and effect of exceptions in the Bill of Lading.

§ 357. Speaking generally, the "exceptions" in the contract limit liability of carriage limit the liability, but not the duty of the owners and master. They do not relieve the owners or master from the obligation to navigate with ordinary skill and care. It is still their duty to do what they can, by reasonable skill and care, to avoid all perils, including the excepted perils. If, notwithstanding such skill and care, damage does occur from these perils, the owners and master are released from liability; but if their negligence or breach of contract, (e) or barratry of the master or crew,(f) has brought on the peril, or has aggravated the consequences,(g) then the damage is attributable to their breach of duty, and the exceptions do not aid them,(h) unless aptly framed for that purpose.

negligence, breach of contract,

unsea

worthiness,

or mishap during deviation.

Nor from contribution in general average.

But even where the negligence of the shipowner's servants is not itself an excepted peril, the exceptions in the bill of lading throw upon the plaintiff, in an action for damage or loss to the goods prima facie occasioned by a peril which is excepted, the burthen of proving that it was such negligence that caused the mischief.(?) Again, the exceptions do not, in the absence of an express provision, protect the shipowner or master against the consequences of providing an unseaworthy ship, and the ordinary exception of negligence of the master and crew is insufficient for this purpose; (k) nor from the consequences of perils encountered during deviation.(1) And inasmuch as "the office of the bill of lading is to provide for the rights and liabilities of the parties in reference to the contract to carry, and is not concerned with liabilities to contribution in general average," the exceptions in the bill do not, unless the contrary appears, relieve the shipowner from such liability to contribute.(m)

§ 358. It remains to consider the meaning attached by the courts to the various exceptions commonly found in bills of lading.

(e) See Royal Exchange, &c., Co. v. Dixon, 12 Ap. Ca. 11; affg. Newall v. Same Co., 33 W. R. 868.

(f) The Chasca, L. R. 4 Ad. 447.

(g) Notara v. Henderson, L. R. 5 Q. B. 346; 7 ib. 225; The Ronu, 51 L. T. 28.

(h) Per Lush, J., Gill v. Manch. R. Co., L. R. 8 Q. B. 196; Czech v. General Steam, &c., L. R. 3 C. P. 17; Leuw v. Dudgeon, ib. n.; Phillips v. Clark, 2 C. B. N. S. 156; Lloyd v. Gen. &c., Co., 3 H. & C. 284; Tattersall v. National, &c., Co. 12 Q. B. D. 297; Grill v. General Iron, &c., Co., L. R. 1 C. P. 600; 3 C. P. 476; and see per Lord Herschell, The Xantho, 12 Ap. Ca. at p. 510; per Lord Watson, Hamilton v. Pandorf, ib. at p. 526.

(i) Czech v. General, &c., L. R. 3 C. P. 14; The Helène, L. R. 1 P. C. 231; disting. Taylor v. Liverpool, &c., Co., L. R. 9 Q. B. 546.

(k) Steel v. State Line, 3 Ap. Ca. 72 ; The Glenfruin, 10 P. D. 103; Gilroy v. Price, (1893) A. C. 56; Tattersall v. National, &c., Co., 12 Q. B. D. 297. For an example of conditions limiting the warranty of seaworthiness, see The Cargo ex Laertes, 12 P. D. 187.

(1) Leduc v. Ward, 20 Q. B. D. 475; Glynn v.Margetson, W. N. (1893) 76, affg. (1892) 1 Q. B. 337; see §§ 175-178 supra.

(m) Schmidt v. Royal Mail S.S. Co., 45 L. J., Q. B. 646; Crooks v. Allan, 5 Q. B. D. 38, 40; and see Burton v. English, 12 Q. B. D. 218, 222.

The first words of the ordinary exception are "the act of God." "The act of This limitation of liability exists at common law in the case of all God." common carriers, without any express agreement to that effect.(n) This exception includes only such events as could not happen by the intervention of man, as storms, lightning, tempests, and the like. (0) And in order to fall within its meaning they must be direct, violent, sudden, and irresistible by the exercise of any reasonable skill and diligence.(p) Thus in a case of inland carriage, a loss caused by a sudden gust of wind has been held to be within the exception.(1)

But a loss caused by a mere accidental circumstance-e.g. the tide in boisterous weather lifting up a ship and pitching her on the rudder of another ship;() or a loss caused by fire, which although caused by no negligence on the part of the carrier, yet was not occasioned by lightning (s)—is not within the exception. The expression is "confined to events which cannot be foreseen, or which, if they can be foreseen, cannot be guarded against" (t) by any reasonable exertions. But the carrier will be protected when some other circumstance for which he is not responsible unites with the act of God to produce an irresistible combination, though neither would have been irresistible if unaccompanied by the other.(u)

§ 359. The exception, "dangers and accidents of the seas, rivers, "Dangers and and navigation," includes, in addition to the common risk of navi- accidents of seas, rivers, gation from rocks, sands, heavy seas (x) and the like, loss by and navigation." collision, (y) although in this as in other cases an owner or master cannot avail himself of the exception where the peril was brought about by negligence for which he is responsible.(*)

wine casks

weather.

It has also been held to cover damage caused to the cargo by Damage by the oozing of wine from the casks through straining in bad straining of weather, provided the cargo is properly stowed, or is stowed by in heavy persons for whose acts the shipowner is not responsible; (a) damage by sea-water which escaped through a hole gnawed in a pipe by rats on board the vessel; (b) and damage by sea-water Sea-water admitted through the vessel accidentally canting over in the admitted by

(n) Coggs v. Bernard, 2 Ld. Raym. 909; 1 Smith, L.C., 9th ed. 201, 215; Dale v. Hall, 1 Wilson, 281; The Proprietors of the Trent Navigation v. Wood, 3 Esp. 127.

(0) See per Lord Mansfield in Forward v. Pittard, 1 T. R. 33.

(p) Nugent v. Smith, 1 C. P. D. 19, 423; per Cockburn, C.J., at pp. 434438; and see per Martin, B., Oakley v. Portsmouth, &c., Co., 11 Ex. 618.

(q) Amies v. Stevens, 1 Str. 128. (r) Oakley v. The Portsmouth, &c., Co., 11 Ex. 618; Smith v. Shepherd, cited ib.

622.

(8) Forward v. Pittard, 1 T. R. 27.
(t) Per Lord Coleridge, C.J., Reg. v.

Commissioners, &c., for Essex (Fobbing),
14 Q. B. D. at p. 574.

(u) Nugent v. Smith, ubi sup.
(x) See The Cressington, (1891) P.

152.

(y) Buller v. Fisher, 3 Esp. 67; The Xantho, 12 Ap. Ca. 503; Garston Sailing Ship Co. v. Hickie, 18 Q. B. D. 17.

(2) 12 Ap. Ca. at p. 510; see notes (e) to (h) supra.

(a) The Catherine Chalmers, 32 L. T.

847.

(b) Hamilton v. Pandorf, 12 Ap. Ca. 518; reversing Pandorf v. Hamilton, 17 Q. B. D. 670, and restoring the judgment of Lopes, L.J., 16 ib. 629.

rats;

by accident in

course of unloading.

"Risk of boats."

To what cases it does not extend: damage by

rats.

Temporary obstruction does not dis

solve contract.

Revenue Laws.

course of unloading, and after the crew had been discharged.(e) But it does not cover damage by sea-water admitted by the barratrous act of the crew.(d)

Under a clause which was usual in the case of vessels trading to the West Indies, where it was the practice to carry the cargo to and from the shore in boats, excepting "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," the ship's boat, with cargo on board for delivery, having been lost in a hurricane, it was held that the shipowner was under no greater liability in respect of the goods while in the boat than while on board ship, and that he was protected by the exception.(e)

It was held in some early cases that a loss by pirates came within the exception of "perils of the sea ;"(f) but this particular danger is now generally the subject of an express exception.

§ 360. The exception under consideration does not relieve from liability for injury caused by rats to the goods themselves.(g) Nor does it enable the shipowner to take advantage of an impediment which is merely temporary in its nature, such as neap tides or obstruction by ice, for the purpose of evading altogether the further performance of his contract; (h) though no doubt in such a case he would incur no liability for delay occasioned by the Seizure under impediment. And the seizure and sale of the goods as contraband under the revenue laws of the country at one of whose ports the ship calls in the course of her voyage is not a loss by "dangers and accidents of the seas," or of "navigation."(¿) Nor does this exception, in the absence of an adequate negligence clause, cover damage by sea-water which has arisen in consequence of improper stowage, or stowage in an improper place, by persons for whose acts the master is responsible; (k) nor injury arising in part from the perishable and putrescible nature of the goods, and in part from their collocation in the ship and the want of due ventilation.(?) § 361. The words "perils of the seas" have received a construction in numerous cases which have arisen upon policies of insurance. And although, owing to the effect of the rule which

Improper stowage.

"Perils of the seas" in

policies of insurance.

(c) Laurie v. Douglas, 15 M. & W. 746. This was held to be a peril of navigation; but it is doubtful whether the decision would now be followed. See The Accomac, 15 P. D. 208, 211; Davidson v. Burnand, L. R. 4 C. P. 117, 120.

(d) The Chasca, L. R. 4 Ad. 446.

(e) Johnston v. Benson, 1 B. & B. 454. The negligence clause received a similar extension in Nottebohm v. Richter, 18 Q. B. D. 63, where "cargo was to be taken from the bank in ship's boats . . . . at ship's risk."

(f) Pickering v. Barclay, 2 Roll. Ab. 248; Barton v. Walliford, Comb. 56;

Abbott, 13th ed. 461; Russell v. Niemann, 17 C. B. N. S., 163, 175, per Byles, J. See, however, Cullen v. Butler, 5 M. & S. 461; Carver, § 86.

(g) Kay v. Wheeler, L. R. 2 C. P. 302; Laveroni v. Drury, 8 Ex. 166. Cp. Rohl v. Parr (damage by worms: insurance), 1 Esp. 445; infra § 361.

(h) Schilizziv. Derry, 4 E. & B. 873 (a charter-party case).

(i) Spence v. Chadwick, 10 Q. B. 517. As to the exception "Restraint of Princes" see § 365 infra.

(k) The Oquendo, 38 L. T. 151.
(1) The Freedom, L. R. 3 P. C. 594.