359 CHAPTER II. BILLS OF LADING. WE have before had occasion to observe upon the exact analogy between the ship-owner, as a carrier by sea, and the common carrier by land; and to add, that from this consideration of their common nature, the law, when not qualified by the contract of the parties, imposes upon both relations the same duties and the same risks and liabilities. Their forms of business and dealing have likewise the same general resemblance. Thus the bill of lading of the ship-owner, (or his master,) is nothing more than his formal receipt as a carrier, by which he acknowledges that he has received certain goods on board his ship; and obliges himself to deliver them to the consignee or his assigns, "in like good order and condition as he received them, the act of God, the king's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatsoever nature and kinds, excepted." (a) It may be unnecessary to observe, that the common law liability of a land carrier comprehends all accidents and losses whatever, whether by negligence or mere contingency; the act of God and the King's enemies only excepted; and that under this liability the carrier is answerable for loss by fire. From the exact analogy of the two characters of the ship-owner and the land carrier, the common law would doubtless give the same extent to the liability of the ship-master, unless it were limited by this express precautionary restriction in the bill of lading.(b) The nature of a bill of lading. shipped under I. Where a vessel is hired by charter-party the merchant is Bills of lading usually given usually the hirer of the whole of such ship; and the charter-party, by the master, as observed in the preceding Chapter, is the deed and contract upon goods under which she is let. When the goods are shipped in pursuance charter-parties. of this contract, the master delivers to the merchant bills of lading; the charter-party being the agreement to carry and convey, and the bill of lading being the evidence of the shipping of the particular (a) These are the usual expressions in bills of lading; but they are not universally adopted. See post. (b) It is also limited by act of parliament. See post. Of the nature and properties of a bill of lading. Exceptions in bills of lading in the West India trade. merchandise to be conveyed in pursuance of the contract. But the bills of lading, which are more specifically such, are those which are usually given by the master or owner of a ship employed as a general carrier; and, in that character, receiving the property of various merchants, unconnected with each other, and engaging to convey their respective goods to the place of the ship's destination. Upon receiving such goods, the master, in the first instance, merely gives a written acknowledgment of having received them on board, and immediately afterwards signs two, or sometimes three, of the more formal acknowledgment and obligation, termed a bill of lading; one of which bills of lading is kept by the merchant for himself; a second transmitted to his consignee, factor, or agent abroad, by the post or packet; and the third usually sent to the same person by the master of the ship, together with the goods. But it will be prudent, in all cases, for the master to keep a copy of the bill of lading for himself. The substance of this bill of lading, as above mentioned, is the formal acknowledgment of having received the goods on board; and the engagement to deliver them to the consignee or his assigns, he or they paying the freight agreed, with the customary primage and average. Such bill of lading, therefore, may be considered as containing three specific stipulations. The first, that he the master will deliver the goods in like order and condition in which he received them to the consignee or his assigns. Secondly, that he expressly excepts himself from any liability for loss, damage, or accident, arising from 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. And, thirdly, that he shall be paid the freight agreed upon "before delivery," with the accustomed primage and average. When the ship is homeward bound from the West India Islands, which send their boats to fetch their 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 of the exception 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." (a) (a) By a bill of lading a ship-owner undertook, that goods should be delivered safe, 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." The goods bav ing been dispatched from the ship, ia The owner of a bound by the general ship is notices or ad vertisements ship's voyage, respecting the &c. II. A ship employed in the general carrying trade is termed a general ship, a name applying to distinguish it from vessels taken up upon charter-parties. When it is intended to employ a ship in this general carrying trade, it is usual to give notice of such intention by advertisement of printed papers or cards, mentioning the name and destination of the ship, her burthen, and (if during issued by him a period of war,) whether she is to sail with any and what convoy, and other matters relating to the voyage. This advertisement is understood by merchants as a special engagement, assurance, or warranty, to the shippers; and accordingly becomes a part of the contract, although not afterwards repeated in the bill of lading. Hence, if a general ship have been thus advertised for a particular voyage, and her destination be afterwards altered, the owner is bound to give specific notice of the alteration to every person who ships goods on board. Accordingly, in Peel v. Price, (a) a shipowner was held liable for special damage to a merchant, whose goods he had received under the notice of one voyage; and had afterwards changed the destination of the ship, and performed his voyage by a circuitous course, without any notice of the change. The action was in the form of a special action on the case for deceitfully representing that the defendant's ship would sail from the port of London to Messina and Naples, and then altering her destination to Naples and Messina, whereby the plaintiff, who had shipped goods on board her for Messina, and effected policies of Peel v. Price. insurance to cover that risk, was afterwards forced to effect other policies at a higher premium, giving the ship leave to sail to Naples before going to Messina. The defendant had printed and circulated a card, stating that this ship was to proceed to " Messina and Naples." One of these cards had been received by the plaintiff, but at what time did not appear. No freight offering, the defendant, about the month of April, altered the destination of the ship in this amongst other respects, that she was to sail to Naples and Messina." A fresh card was printed and placed in the defendant's counting-house. But there was no evidence that the plaintiff saw it; nor was it delivered to him. The ship sailed to Naples in the first instance, and the plaintiff effected policies in the manner stated in the declaration. It was proved to be customary to alter the destination of ships when freight cannot Discharge of one bill of lading discharge of all. Transfer of the bill of lading, be procured for them. Under these circumstances it was contended for the defendant, that the plaintiff was bound to have made specific inquiries as to the destination of the ship, before he put his goods on board; in which case he would have learned that it had been altered. His loss arose from his own negligence. But Gibbs, C. J. held, that where a card has been published, advertising a ship for a specific voyage, if that voyage was altered, the owner was bound to give specific notice of the alteration to all persons who afterwards should ship goods on board the vessel, and that he was otherwise answerable for the loss which they might sustain by supposing that the destination of the vessel remained unaltered. III. It has been said above, that it is the custom amongst merchants to have three copies of the bills of lading; one for the merchant at home, one for the consignee abroad, and one for the direction of the master on board the ship. Each of these bills of lading ordinarily contains a clause stating that the master of the 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." Accordingly, the fulfilment of one bill of lading vacates all, and no inconvenience can arise in practice from the multiplication of the copies. Although each part or copy of a bill of lading is of itself a separate and complete contract, as to the holder of that particular part; yet all the parts or copies make but one contract as to the master; therefore, if one be performed, all are so. IV. A bill of lading, in the usual form, stipulates to deliver the and effects of it. cargo to " A. B., merchant, or to his assigns." Under this stipulation, and, indeed, according to their general nature as explained by the usage of merchants, bills of lading are transferable by indorsement, and in practice are daily so transferred. This power of transferring bills of lading, though necessary for mercantile purposes, and, therefore, in their general effects, affording facilities to trade, is sometimes productive of cases of great fraud and hardship, but to which neither law nor equity can afford any adequate remedy; unless they should interpose at the expense greater evils than they propose to remedy. Bills of lading are indorsed either in blank, that is, not defining the consignee; or to a person specially appointed to receive the goods. But whether the indorsement be general or special makes no difference · whatever in their legal character. Effects of the transfer or in of V. When goods are shipped to be carried abroad by a merchant resident in this country, or are sent from one port of the king the bill of Of the indorsement of a bill dom to another, the persons to whom they are sent must necessa- dorsement of rily be in one of three relations to the merchant by whom they are lading. transmitted. They may be buyers; they may be his correspondents or consignees, with mutual dealings; or they may be merely his factors, agents, or brokers; and, in the latter character, having given no value for the cargo, are only his agents for the sale of it. But, under all these cases, a bona fide holder of a bill of lading, derived from the indorsement of any of them, is entitled to the cargo; and may claim it from the master, if he can prove that he has purchased it for a good consideration. If a factor, or other agent, indorse the bill, on his own account, with notice of of lading. his being only a factor to a third person, such third person is then only a sub-agent of the factor, and has no larger property or rights than the factor himself. But if the consignee, though a mere factor, make an absolute sale of the goods whilst at sea, and where no other delivery can be given than by the indorsement of the bill of lading, such sale will be good, upon the mercantile principle of the transferable nature of bills of lading; and the bona fide vendee is entitled to hold the goods by virtue of the bill of lading, though no actual possession be delivered, and though the factor may afterwards have embezzled the amount, or may have acted fraudulently, or in contravention of his duty to the consignor. Thus, in Davis v. Reynolds, (a) it was held, that the property of a cargo was so completely divested from the consignor, by a transfer by the consignee before the arrival of the vessel, that the consignor lost his equitable right of stopping in transitu, though the consignee became bankrupt before the arrival of the ship. This case, indeed, is stronger and more important, inasmuch as the buyer could not produce the bill of lading in evidence, the parties having neglected to stamp it. The consignee, in this case, was the purchaser of the cargo from the merchant by whom it was shipped. It consisted of some flax; and was first purchased, by the firm of Cooper and Co., merchants in London, from Peacock and Co., at Hull, payable by bill at two months. It was accordingly shipped for the port of London, and the bill was accepted. Before the arrival of the ship in the river it was re-sold by Cooper and Co. to the plaintiff, who immediately paid them for it in cash, and took a receipt from them, specifying the terms of the bargain. A few days afterwards it arrived, and was landed at the defendant's wharf. By this time Cooper and (a) 4 Campb. 267. But see post. Lickbarrow v. Mason, 2 T. R. 63, and 5 T. R. 683. Cumming v. Brown, 9 Davis v. Reynolds |