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CHAPTER IV.

OF THE CONTRACT FOR CONVEYANCE OF MERCHANDISE IN A
GENERAL SHIP; AND HEREIN,

SECT. 1. The usual Mode of entering into this Contract, p. 277.

2. Of Bills of Lading—their Form, Signature, and Effect, p. 279.

3. To whom the Master and Owners are responsible on Bills of Lading. Cases of Conditional Consignment, the Condition being unperformed, considered, p. 283.

4. Cases of Conditional Consignment, the Condition having been performed, p. 292.

5. Of the Effect of Bills of Lading transmitted as Security for Advances, or to indemnify against Acceptances, p. 293.

6. Of Actions by Consignees, being only Agents of the Owners of Goods, p. 294. 7. Remarks on Cases cited, p. 298.

8. Description of Goods in Bills of Lading, p. 299.

9. Admiralty Cases. Consignors' or Enemies' property, p. 300.

1. The usual Mode of entering into this Contract.

THE Contract for the conveyance of merchandise in a general ship, is that by which the owners and master of a ship, or the charterer and master, 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 shown (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.

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. At a trial at Nisi Prius, in the 40 Geo. 3, it was said by the jury, that among merchants this expression was understood to be an assurance or warranty to the merchant, who laded goods in pursuance of the advertisement, and to become a part

(a) Ante, p. 196.

of the contract with him, although not afterwards contained in the bill of lading (b).

This dictum, where convoy is not mentioned in the bill of lading, must be considered as very doubtful. In an action afterwards brought by a person who had shipped goods on board a general ship for Grenada, against the owner, for having sailed without convoy, in consequence of which he had lost the benefit of an insurance which he had effected, the ship having been captured on the voyage, it appeared at the trial that the ship had been put up or advertised "to sail with convoy ;" but that the bill of lading made no mention of convoy-that it was, in fact, intended that the ship should sail with convoy, but that she was blown out of the Downs in a gale of wind, and the master then intended to go into Falmouth to wait for a convoy, but being prevented from doing so by the appearance of a French privateer, by which he was chased, he made sail for Grenada, and was afterwards taken.

At the trial the defendant obtained a verdict. The court was afterwards moved to grant a new trial, and the case was argued at some length. A new trial was granted, in order that the court might receive further information; and the attention of the counsel was directed to the following points: Whether the concise expression, "to sail with convoy," meant anything more than that the ship was intended to sail with convoy, or could be construed as a warranty that the ship should sail with convoy, in the strict sense of the word warranty? What was the effect of the bill of lading, which made no mention of convoy? What was the effect of the endeavours used by the master to sail with convoy, and of the circumstances by which he had been prevented from doing so? The cause was not taken down to a second trial (c).

In a subsequent case, before Lord Chief Justice Gibbs, at Nisi Prius, where the bill of lading expressed that the ship was bound for London, with convoy, that very learned judge held that the bill of lading amounted to an undertaking that the ship should sail with convoy (d). And in a similar case before Lord Ellenborough, at Nisi Prius, the point was not contested. The defendant, however, succeeded on the ground that his not sailing with the convoy arose from the fault of the shipper (e).

But if a general ship be advertised for a particular voyage, and it be altered, the owner is bound to give specific notice of the alteration to all persons who afterwards ship goods on board the vessel; and he is otherwise answerable for the loss which they sustain, by supposing that the destination of the vessel remains unaltered (f).

(b) The case here referred to was probably the case of Rinquist v. Ditchell, 3 Esp. 64. It is stated in the report that the bills of lading contained a warranty to sail with convoy, but that appears, from the observations of Gibbs, Ch. J., in Saunderson v. Busher, after cited, to be an error.

(c) Snell v. Marryatt, in K. B. 48 Geo. 3. (d) Saunderson v. Busher, 4 Campb. 54, in note.

(e) Magalhaens v. Busher,4 Campb. 54. (f) Per Gibbs, Ch. J., in Peel v. Price, 4 Campb. 243.

2. Of Bills of Lading—their Form, Signature, and Effect.

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 delivered at the place of destination; that is, one 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. The master must make out his bill of lading according to the direction of the shipper of the goods, or the holder of the receipt given on the shipment, for the shipper has a right to name the consignee to be mentioned in the bill of lading, even although it may not be expressed in the receipt that the goods are shipped for his account, this being tacitly understood; and if the master signs a bill of lading for delivery to another person, and delivers accordingly, he may be answerable to the shipper for the value of the goods (g).

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OLD FORM OF A BILL OF LADING.

SHIPPED, by the grace of God, in good order, by A. B. No. 1, a 20. J merchant, in and upon the good ship called the John and Jane, whereof C. D. is master, now riding at anchor in the river Thames, and bound for Barcelona, in Spain, twenty bales, containing one hundred 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 said goods per 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 destined port in safety.

DATED at London, the

(g) Craven and Another v. Ryder, 6 Taunt. 433, and 2 Marsh. 127. See Schuster v. M'Keller and Young,7 E. & B. 704; 26 L. J. (N. S.) Q. B. 281, in which it was held that the master and owners of a chartered ship, the charter being locatio navis et operarum magistri et nautarum, were liable in trover for delivering goods shipped upon the mate's receipt to the assignees of bills of lading obtained by the fraud of the vendee

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of the goods who had not paid for them, but had been allowed by the vendor to ship them, the mate's receipt being forthwith handed to him as security for their price, to be handed back to the vendee on payment for the goods, and exchanged on its production to the master for the bill of lading which the vendee would be entiled to claim.

The terms of this exception were altered, some years ago, in consequence of an alarm taken by the shipowners, at the decision of a cause that will be mentioned in a subsequent chapter (i); 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 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." But these additional words are probably redundant; they do not make the owner liable for a loss in boats, to which he would not be liable in the ship, where boats are customarily used (j). Other clauses may be introduced, either to take away the responsibility of the master and owners in cases for which they would otherwise be responsible, or to give to them or to the shippers an advantage to which they would not otherwise be entitled. Instances of this kind, providing for a payment in the nature of demurrage, have been already noticed (k).

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

order, or assigns," which words are generally understood to import an engagement on the part of the master 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 (1).

Where the defendant had stipulated in a bill of lading that he should not be accountable for leakage and breakage, this was held to protect him from liability for accidental leakage and breakage in the course of the voyage, but not from leakage and breakage caused by his negligence or the negligence of his servants in stowing the goods (m).

(i) Smith v. Shepherd, post, ch. 5 of this part, sect. 1. It has been held that a de:ention and seizure under fiscal regulations at a foreign port are not within the meaning of this exception, so as to exonerate the master and owners. Spence v. Chadwick, 9 L. J. Q. B. Where a vessel was secured while unloading in a dock by tackle which broke, and she canted over, and her cargo was damaged, it was held that this loss was within the exception, Laurie v. Douglas, 15 M. & W. 746.

(j) See the case of Johnson v. Benson, 4 B. Moore, 90, and ch. 5 of this part.

(k) See Harman v. Clarke and others; Same v. Mant and others, 4 Camp. pp. 159 and 161; Leer v. Yates, 3 Taunt. 387. And see ante, p. 221; Jesson v. Solly, 4 Taunt. 52; Brouncker v. Scott, 4 Taunt 1; Evans v. Foster, 1 B. & Ad. 118.

(7) Chap 10 of this part: Of Stoppage in Transitu.

(m) Phillips v. Clark, 26 L. J. C. P. 168; 2 C. B. (N. S.) 156.

The bill of lading is the written acknowledgment of the master that he has received the goods from the shipper, to be conveyed on the terms therein expressed to their destination, and there delivered to the parties by him designated. The master, therefore, should be careful not to sign bills of lading until the goods are actually delivered to him, nor to permit the insertion of statements in the bill of lading at variance with the fact, or of a nature to mislead or give rise to misunderstanding (n). By so doing he may involve his owners in litigation, and become responsible to them and to other parties.

In the case of Howard and others v. Tucker (0), goods were shipped in India for London, on account of Wylie. The bill of lading was forwarded to him, and he endorsed it over for value. The goods were stated in the bill of lading to be "shipped on board the Bussorah Merchant, in the river Hooghly, for London, by R. Charlton, on Wylie's account and risk, unto shipper's order, or to his assigns, he or they paying freight for the said goods, being paid in Bengal, with primage and average accustomed." The freight had not been paid in Bengal. The captain had signed the bill of lading at the desire of Charlton, the shipper, and on the understanding that he meant to pay the freight before the ship sailed, but which he had not done. The court held, that the owners having given a bill of lading, by which freight appeared to have been paid before the ship's departure from India, were estopped, as against the assignee of such bill, from claiming freight when the vessel arrived; and Lord Tenterden said, "that the captain might be answerable to his principals for having signed an instrument which contained an incorrect statement; yet that third persons, who took the bill of lading on the faith of such statement, for a value to which they might otherwise have thought it inadequate, ought not to suffer for it."

But between the shipper and the shipowner the bill of lading is not conclusive. Thus, in an action against the owners of the ship Thames, on a bill of lading, signed by the master at Sincapore, for eight hundred and ninety bags of pepper, the declaration alleged that eight hundred and ninety bags were shipped, and that some of them had been lost. The defence was, that only seven hundred and ninety bags were shipped, and that the captain had been induced to sign the bill of lading for eight hundred and ninety, by the fraud of the plaintiffs' agent at Sincapore. It was contended for the plaintiffs, that the bill of lading was conclusive, and estopped the defendant, who was owner of the ship; but Chief Justice Tindal said he was of opinion, that, as between the original parties, the bill of lading was merely a receipt, liable to be opened by the evidence of the real facts, and left the

(n) Where 1,670 bags, some weighing 12 stones, some only 8 stones, were all marked alike, and the master signed a bill of lading "for 467 bags, gross 35 tons 9 cwt. contents unknown and not responsible for weight," it was held that the master was bound to deliver 467 bags of the larger size,

as the description of the weight in the bill of lading could not otherwise be satisfied. Bradley v. Dumpace in error, 7 H. & C. 521; 32 L. J. (N. S.) Ex. 22. The court below had been equally divided on the point, 7 H. & N. 200.

(0) 1 B. & Ad. 712; and post, 282.

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