A PRACTICAL ABRIDGMENT OF THE REPORTS OF CASES ARGUED AND DETERMINED IN THE COURTS OF KİNG'S BENCH, COMMON PLEAS, AND EXCHEQUER, FROM THE RESTORATION, IN 1660, To Lading, Bill of. I. RELATIVE TO THE DIFINITION AND FORM OF p. 1. MENT OF, p. 4. WHO ENTITLED TO, p. 3. TO THE TRANSFER AND INDORSE THE EFFECT OF ACCEPTING PRO PERTY UNDER, p. 10. II. III. IV. ས. EN, p. 11. VI. VII. VIII. PRIORITY WHERE SEVERAL ARE GIV WHEN EVIDENCE; p. 11: The usual clause in á bill of la ding engag 2] signs, on 1. RELATIVE TO THE DEFINITION AND FORM OF.* 1. SHEPARD V. DE BERNALES. E. T. 1811. K. B. 13 East, 565. The master covenanted on a charter party to proceed with certain goods from A. to B., there to apply to the correspondent's factors, or agents of the eharterer, for orders whether he was to proceed to B. or C., and that pursuing the mas ant to the orders he would make a true delivery to the correspondent's agents ter of the of the charter, or agreeable to bills of lading; and the charterer covenanted ship to de that he would pay to the master, immediately on delivery of the cargo, in full liver the goods to A bill of lading is an acknowledgment by the captain of having received the goods the consign loaded on board his ship; see 2 T. R. 75. It has also been defined to be the written evi- ee or his as dence of a contract for the carriage and delivery of goods sent by sea for freight. The instrument is in effect not only a contract of affreightment, but a contract of bailment. By the delivery on board the ship the master acquires a special property in the merchandize. The general property remains with the shipper until he has disposed of it by some act sufficient in law for that purpose; see 1 H. Bl. 359. In the usual form of the instrument, the undertaking is to deliver to the order or assigns of the shipper; see 1 H. Bl. 360. But bills of lading are not drawn in any certain form. They sometimes do, and sometimes do not, express on whose account and risk the goods are shipped. They often especially in time of war, express a false account and risk. Beawes observes, that bills of lading not only 'contain an acknowledgment for the receipt of the goods and for the delivery to the order or assigns of the shipper, but they usually state the goods to have been shipped by the persons named in good order and well-conditioned, and that they are to be delivered in like good order and condition at the place to which they are consigned, which obliges a captain to make such a delivery. Hence, also, bills of lading are likewise called bills of consignment. Formerly, the exception contained in bills of lading was against the perils of the seas; but in latter times, captains and ship owners have, most wisely and properly, extended the exception to the acts of God, the King's enemies, fire and all other dangers and accidents of the seas, rivers, and navigations. In these instruments. as in charter-parties, it is necessary to make express exceptions from liability in all cases of extraordinary peril. ly, and not he or they for the freight of the ship at a certain rate in sterling money; afterwards bills paying of lading were signed and delivered, making the cargo deliverable at B. and freight for D. to B. P. (the charterer's agent at B.) or his assigns, he or they paying the said goods, is freight for the said goods so much in sterling money, at the current exchange introduced at C. on A.; and the master was ordered by B. P. at B. to deliver the cargo at for the ben C., and not at B. or D., agreeable to the bills of lading; and that he did deliver efit of the it at C. to B. P., the agent of the defendant in that behalf, according to the master on charter-party; the master, who had not received the freight from B. P. on defor the ben livery of the cargo to him, brought an action. The Court held, that the uefit of the sual clause in a bill of lading, engaging the master of the ship to deliver the consignor goods to the consignee or his assignees, he or they paying for the said goods, is introduced for the benefit of the master only and not for the benefit of the A condition consignor. in a bill of 2. BARROW v. COLES. M. T. 1811. N. P. 3 Camph. 92. lading must be fulfilled, By a bill of lading goods are deliverable to J. S. if he should accept and and until it pay a bill of exchange, if not, to the holder of the said bill of exchange. J. is, the S. accepts the bill of exchange, and indorses the bill of lading for a valuable goods shall consideration, but does not pay the bill of exchange when due. continue in the party in whose fa vour it is made.* Where goods hav ing been dispatched from a ship in her boat, Lord Ellenborough held, that the special indorsement on the bill of lading ought to have made the defendant inquire whether the condition on which the cargo was deliverable had been fulfilled, and that after the dishonour of the bill of exchange the property continued in the party in whose favour it was made, 3. JOHNSTON V. BENSON. M. T. 1819. C. P. 4 Moore, 90; S. C. 1 B. & B. 454. By a bill of lading a shipowner undertook that goods should be delivered safe, the act of God, the King's enemies, fire, and all and every other dangers #ecording and accidents of the seas, rivers, navigation of whatever nature and kind soto the usual ever, save risk of boats so far as ships are liable thereto, excepted. The course of goods having been dispatched from the ship in her boat, according to the usu[3] al course of trade in the West Indies, were together with the boat, lost in a trade in the hurricane. West In dies, and that the was not lià Per Cur. The wording of the instrument in question is very obscure, and it were lost is this obscurity which has given rise to the cause now before the Court. The in a hurri counsel for the plaintiff has observed, that no argument was adduced by his cane, held, opponent, nor was any argument necessary, for the reason of the thing is apshipowner be but one construction put upon it. parent on the face of the instrument; upon reading the bill of lading there can ble, under of the ship, and the alteration from the old form of the bill of lading was inThe exception was taken by the owners a bill of la tended to be in their favour: to limit their responsibility, not to extend it.— ding, to de How does this saving clause stand? The words which comprise it, "save liver them risk of boats so far as ships are liable thereto," are evidently intended to place safe, the the owner's liability to the shipper in the matter of boats on the same footing act of God, the king's as it stood with regard to ships. Where goods stowed in boats by the usual enemies, custom of the trade are lost by the dangers of the sea, there is no reason why fire, and all the shipowner should be liable, when he certainly would not be liable had and every the goods been lost by such dangers on board the ship. The exceptions oriother dan ginally stood thus: "the dangers of the sea excepted." The case of Smith cidents of v. Shepherd is supposed to have caused the introduction of the exception which has prevailed since that time, namely, "the act of God, the rivers, and King's enemies, fire, and all and every other danger and accidents of the navigation, seas, rivers, and navigations of whatever nature or kind soever, exceptof whatev ed;" and to this exception the imperfectly worded saving which forms the gers and ac the seas, er nature and kind Boever,save risk of question here is now added. It is not necessary to say how far the liability of the shipowner to risk in boats may extend, nor to inquire what would or would not be considered the act of God, in case of the loss of the boat. It is suffi Under a bill of lading,' by which goods were to be delivered to A. B., net proceeds paid to C. D., he paying freight for the said goods as per charter-party, held that the freight was to be paid by A. B., and that C. D. was only entitled to what remained after such payment; Thompson v. Adams, 2 B. & B, 450, are liable ient in this case to say, that the boat in which the goods, according to the boats, so custom of the trade, were conveyed, was lost by the dangers of the sea; and far as ships that, had they been lost on board the ship, the owner would not have been lia- thereto, ex ble. Under this saving, shipowners may be liable for losses in boats in some cepted. cases, but certainly not to losses which arise from the dangers of the sea. Bills of la 4. LEER V. YATES. SAME V. COWELL. SAME V. GORST. H. T. 1811. C. P. ding may 3 Taunt. 387. Per Cur. Bills of lading may be appliable to payment of demurrage as well as freight. II. RELATIVE TO WHO ENTITLED TO. be applia ble to pay ment of de murrage as well as freight. ceives bound not S. P. MITCHELL V. SCAIFE. M. T. 1815. N. P. 4 Campb. 298. The plaintiffs, who were sugar-refiners, sold the goods in question to A. on When the the 5th of May, 1815, to be delivered free on board; on the 11th of May, A. master of a sold them to B., and there was another subsequent sale of them to C. The ship re plaintiff's shipped the goods on board a vessel, of which the defendant was mas- [4] ter and part owner, about the 13th of May, when their lighterman received a goods un note or receipt from the defendant's mate, purporting that the goods were re-board, and ceived for and on account of the plaintiffs. It appeared that this receipt vari- gives a re ed from the usual form, in stating the goods to be received for and on account ceipt for of the plaintiffs. On the same 13th of May, the defendant, at the request of them, he is B. the second purchaser, executed a bill of lading to B. or his assigns. About to deliver the 20th of May, before the credit from the plaintiffs to A., which by the us- the bill of nge of trade was two months, had expired, the latter stopped payment; and on lading ex the 23rd of May, the plaintiffs demanded back the goods from the defendant, cept to the who refused to deliver them, on the ground that he had already executed a person who bill of lading to A. The jury, being of opinion that the defendant had no duce the re right to deliver the bill of lading, without receiving the receipt in exchange, ceipt in and that as long as the plaintiffs kept possession of the receipt they had never exchange parted with the property, found a verdict for the plaintiffs. On motion to set for it. it aside,-Per Cur. We think the jury determined properly; they said it was contrary to the course of business, and to the defendant's duty, to give up the bill of lading without the receipt; and that the plaintiffs had never parted with the property as long as they kept possession of the receipt. P III. RELATIVE TO THE TRANSFER AND INDORSE MENT OF.* can pro The right 1. VIRTUE V. JEWELL. T. T. 1814. N. P. 4 Campb. 31. On the 30th of November, 1813, barley was shipped at Yarmouth, by A., Than on board the ship B. of which the defendant was master. The bill of lading paid con made the barley deliverable in the port of London, to the order of the shipper, signor to and was indorsed by him to C., corn-merchant in the city. They received the stop in bill of lading on the 4th of December. In the month of October preceding, D. transitu is for their accommodation, had accepted a bill for 350!. which was to become not taken away by an due in nine days, and they owed him several hundred pounds besides on ano- assignment ther account. They had then, to the knowledge of D., become much embar- of the bills rassed in their affairs, and unable to provide for the bill of exchange. They, of lading therefore, for the purpose of covering him, of their own accord proposed to in- for a valua ble consid A bill of lading is assignable by the indorsement of the shipper; see Ld. Raym. 271; 4 Burr. 2051; 1 T. R. 216 2 T. R. 63; 1 H. Bl 359, 360, 5 T. R. 367; 4 East, 217. The indorsement of a bill of lading is simply a direction for the del very of the goods. It may be general, that is, in blank, not describing or naming the person or persons to whom the delivery is directed to be made, but importing a general direction to deliver them to the bona fide holder or bearer of the bill of lading, whoever he may be, who, in such case is authorised to receive the goods and give a discharge to the master; but the holder of such a bill of lading, coming into his hands casually or without any just title, can acquire no property in the goods. A special indorsement defines the person appointed to receive the goods; his receipt or order, therefore, is a sufficient discharge to the shipmaster; see 1 H. BI. 359, 360. The bills seldom, if ever bear upon the face of them any indication of the purpose of the indorsement. [5] eration to a third per son, with notice of the insol Tency of dorse to him the bill of lading of the barley; they accordingly did so on the 6th of December, and made out a regular sale note to him. On the same day they stopped payment; D. immediately after indorsed the bill of lading. Lord Ellenborough ruled, that if the consignee does indorse the bill of lading for a valuable consideration to a bona fide purchaser without notice, the right to stop tn transilu is gone as against the indorsee, although it would have remained in force as against the consignee, the bill of lading not being indorsed. But D. here had notice of the insolvency of C., and if against them there existed any right to stop in transitu, he could not claim the barley.-Verdict Indorsing for the plaintiffs. the con signee. the bill of Jading is not essen 2. MEYER V. SHARPE. T. T. 1813. C. P. 5 Taunt. 74. Trover by the assignees of Grant, a bankrupt, against Sharpe, who is now tial to the also a bankrupt, to recover the value of divers goods. transfer, by Mansfield, C. J., held, that the goods shipped passed to Sharpe, and gave the owner him an equitable lien or right, though the bills of lading were not indorsed to go, of his give Sharpe a legal title to the goods. But the omission to endorse did not property prevent Sharpe from retaining those goods. of the car therein; Not even against third per son. A bill of Jading to deliver to 3. GILES V. NATHAN. E. T. 1814. C. P. 1 Marsh, 226; 5 Taunt. 558. A. deposits goods with B. as a security for money advanced by B., with a promise to deliver the bill of lading when it should arrive, indorsed to B. C, is employed as a broker to dispose of the goods for B.'s benefit; the bill of lading arrives; the goods are attached in the Mayor's Court, in the hands of C, by a creditor of A. The Court held that the transfer of the property to B was complete, though the bill of lading had never been endorsed, and that, therefore, an attachment was no answer to an action by B. against C. for the proceeds. the consign 4. MASON V. LICKBARROW. M. T. 1787. K, B. 1 H. Bl. 360; S. C, 2 T. R, ee, or his 93; S. C. 5 T. R. 683. assignees, Plaintiff gave in evidence that A, and B., merchants, shipped the goods in is, by the custom of question by the order and directions and on the accounts of C. and D.; that merchants. E. as master of the ship, signed four several bills of lading for the goods, in a negotia the usual form unto order, or to his assigns. The Court held, that a bill of ble instra lading to deliver to the consignee or his assignee, is by the custom of mer, ment, and chants a negociable instrument, and passes the property to the assignee. passes the 5. HIBBERT V. CARTER. E. T. 1787. K, B. 1 T. R, 745. property to the as signee; And so property A. was a merchant in London, and was in the habit of procuring insurances upon goods shipped by B. A. having received advice from B, of his having shipped a cargo, immediately effected on insurance; about which period B. [6] had endorsed the bill of lading to one C., to whom there was an arrear of interest due upon mortgage on, &c, A. had notice of this indorsment after completely the insurance was made, by a letter from B., wherein he informed him that he does the had been obliged to assign the bills of lading. The Court were all clearly of pass, that opinion, that a bill of lading is taken by a creditor as a security for his debt on the indors his own account; the whole property passes by the delivery, and is to be coner cannot sidered as a satisfaction of the debt pro tanto; that the parties were always at afterwards liberty to vary from the general rule, entering into any particular agreement insure it, between themselves, but that it must be shown in order to take advantage of it. pnless it be They considered the case of Caldwell v. Ball, (post, p. 8.) as deciding the general question; and, as to the case of Delaney v. Stoddart, there was an agreement that the policy should be transferred. transferred only as a collateral security: made to or 6. NIX v. OLIVE. T. T. 1805. K. B. Abb. Ship. 403. Fox, a wine-merchant at London, having ordered five pipes of wine from If a bill of Messrs. Abbott and Co. of (porto, they loaded them on board a vessel bound Jading be for London, and took from the master bills of lading for delivery to order or asder or as signs. One of these bills they transmitted to Fox in a letter, wherein they signs, the said they had shipped the wine on his account, had sent him a bill of lading, indorse and drawn upon him for the price. Fox accepted the bill of exchange thus ment of the drawn upon him, which was payable nine month after date. Before the bill of shipper is exchange became due the wine arrived, and Fox not being able to pay the then duties, it was sent to the King's warehouse, under the statute of 26 Geo. 3. c. necessary 59; while it remained there, Fox, being indebted to one Mary Nix, and cal- to give it led upon for payment and unable to pay, sold the wine to her for 40l., negotiabili paid to him, and the amount of his debt. He became bankrupt soon after-y wards, and the agents of the consignors having paid the duties and obtained the goods, Mrs. Nix brought an action against them for the value. The case was tried before Lord Ellenborough; and it was insisted on behalf of the plaintiff that there was no difference between the endorsement of the bill of lading by the consignor, and the sending it enclosed in a letter of this import. But his lordship declared himself to be of a different opinion, and held that the right of the consignor to stop the goods was not divested under these circum- An indorse stances. ment of a out consid transfers no a valuable 1. WARING V. Cox. E. T. 1808. K. B. Abb. Ship. 227; S. C. 1 Campb. 369. bill of lad Per Cur. If the person to whom the delivery may be so ordered is only ing, with an agent for the shipper, and has no property in the goods, he cannot maintain eration, an action in his own name against the master for not delivering them. 8. CUMING V. BROWN. E. T. 1808. K. B. 9 East, 506; S. C. 1 Campb. 104. property. Trover against the captain of a ship, who had signed bills of lading for A bona some pipes of wine, which had been originally consigned to A., and by him fide in conveyed, by indorsement of the bill of lading, to the plaintiff for a valuable dorsement consideration. Lord Ellenborough left it to the jury to consider whether the by the con indorsement was made to the plaintiff for a valuable consideration, and whe-sign, for ther he had then notice of any circumstance which ought in fairness to have considera prevented his taking it; and under this direction the jury found a verdict for [7] the plaintiff. On motion for a new trial, on the ground that the endorsee oftion, trans the bill of lading, having actual notice of the non-payment for the goods by fers the the consignee to the consignor, was thereby placed in the same situation property, the original consignee himself, and subject to all the legal and equitable rights though the of the consignor against such consignee, and consequently subject to the con- knew that signor's right to stop the goods in transitu, on the insolvency of the consignee, only accep although the bill of lading had been endorsed and delivered to the plaintiff tances of for a valuable consideration; the Court said: "We think that in this case no the consign circumstance appears to have existed at the time of the assignment of this ee, not due bill of lading, which should have prevented the plaintiff from taking it, or given for which should now render it not available in his hands. We are of opinion, the goods, therefore, that the rule for a new trial in this case should be discharged." 9. WRIGHT V. CAMPBELL. E. T. 1767. K. B. 4 Burr. 2051; S. C, 1 BI, Rep. 628. as had been In an action of trover for some wheat and beans, a special case was made; The in that on the 2nd of June, 1766, A. shipped the goods, value 4001. from B. to C. dorsement to be delivered to order or assigns, and took two bills of lading. A. indorsed by a factor, one of the bills to D. or his order, who being arrested for debt, applied to E. the indor see of a another creditor of his, for 800l., who had dealt with him in bills and notes, to bill of lad become bail for him. E. consented, on condition that D. gave him security, ing for val not only for the debt upon which he was arrested, but for his own debt of 8001. ue received also. D. upon this indorsed the bill of lading to E., pretending the goods and with were his own. Next day A. came down from B. and being informed of this out notice transaction, applied to E. assuring him the goods were consigned to D as a factor only, which was the truth, and indorsed the other bill of lading to the fers the defendant, who when the ship arrived, having given the master security, ob- property. tained possession, and soon afterwards became a bankrupt. Lord Mansfield, C. J. There is no difference between law and equity in this case. The assignees of a bond, &c. stand in the place of the obligee. In bills of exchange the drawer gives authority to negotiate it to a third person, who stands in the place of the drawee. If the property of a cargo at sea is transferable by indorsement, the indorsce must also be under the same circumstances as the original owner. This is also clear, that, if the owner gives an authority to deliver goods to A. or B., without declaring whether factor or po, he retains a lien upon the goods, so far as they can be traced specifical of goods at sea, trans |
