Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

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3 H. & N. 484 ; S. C. in Cam. Scacc. 4 ment of Lord Campbell, C. J., in Pear-

ib.%22. sony.Dawson,lE.,B.&EA56. See also

v'») Wither* v. Lyt^ Holt, 18 ; Zuinger as to what are sufficient acts of appro-

V. Samuda^ ib, 395 ; S. C, 7 Taunt 265 ; pristion to vest the property of goods in

lueas V. Dorrien^ ib. 278 ; Hammond V. a vendee, the recent case of Lang ton v.

Anderson, 1 N. R. 69 ; Hanton v. Meyer, Higgins, 4 H. & N. 402.

6 East, 614; Harman v. Anderson, 2 ix) M'Ewan v. Smith, 2 H. of L. C.

Camp. 343 ; Swanwiek v. Sothem, 9 A. 309.

& E. 895 ; Wood v. Tassell,6 Q. B. 234 ; (y) Akerman v. Humphery, 1 C. & P.

Tanner v. Scovell, 14 M. & W. 28 ; Lack- 63 ; recognized in Tucker v. Humphrey,

ington ▼. Jtherton, 7 M. & Gr. 860. If a 4 Bing. 516 ; and Jenkyns v. Usbome,1

delivery order is lodged with a ware- M. & Gr. 678.

house-keeper, and he accepts it, he be- (x) Stonard v. Dunkin, 2 Camp. 344;

comes the agent of the vendee who Hawes v. fVatson, 2 B. & C. 540.



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274 CONTRACT OF AFFREIGHTMENT

house of the vendors, who gave to the vendee a delivery ord&r
acknowledging that they held the goods to his order, and evi-
dence was given that by the usage of Liverpool the invariable
mode of delivering goods sold while in warehouse was that the
vendors should hand delivery orders to the vendees, the Court
held that, as between the vendor and the vendee, the right of
lien was not divested by the giving of the delivery order (a).

Of indorse- We have already seen that the bond fide negociation of the

of lading. bill of lading, that is to say, the transfer of it by a bond fide

indorsement, made by or under the authority of the shipper or
consignee, to a third person on good consideration, and without
notice of the insolvency of the vendee, will defeat the right to
stop(&). It is not material that the indorsee knows that the
consignor has not been paid for the goods in money, if he does
not know that the consignee is insolvent, or that the bills given
are not likely to be paid (c). No property, however, passes by
the indorsement if there is fraud in the transfer, or if there is
notice by the previous indorsement that the earlier transfer is
conditional only(rf); or if the indorsee knows of the insolvency
of the consignee («). Nor can the bond fide indorsee for value
interfere, by virtue of the indorsement to him, with the stoppage
in transitu^ if the person through whom the bill of lading
came to him had no authority from the shipper or consignee to
put it into circulation (/). It is expressly provided by the
18 & 19 Vict c. Ill, which transfers to the indorsees of bills of
ladmg the rights and liabilities contained in the contract, that
the provisions of the statute are not to affect in any way the
right of stoppage in transitu (g),

(a) Toumley v. Crumpy 4 A. & E. 68. and the judgment of Parke, J., in Dixom

{b) Ante, p. 226; Lickharrow v. Mason, v. Yates, 5 B. & Ad. 318) ; yet the right

4 Bro. P. C. C. 57 ; S. C. 5 T. R. 688 ; of stoppage exists if there has been no

Walley v. Montgomery, 3 East, 585 ; actual or constructive delivery to the

Wilmshurst v. Bowker, 7 M. & Gr. 882 ; vendee. In some of the cases as to

and the notes to Lickbarrow v. Mason, 1 stoppage in transitu, confusion has

Smith, L. C. 642. It is to be observed arisen from the use of expressions im-

that this peculiar effect of the assign- plying that the passing of the property

ment of a bill of lading does not seem is the test as to whether the right to stop

to depend upon the fact that the right is lost.

of property in the goods passes by the (c) Cuming y. Brown, 9 East, 606 ;

indorsement, but upon the operation of Jones v. Jones, 8 M. & W. 481.

the indorsement to transfer a sort of {d) See the cases cited in the last

constructive possession of them. For in note, and Barrow y. Coles, 8 Camp. 92.

the ordinary case of the sale of an ascer- {e) Vertue v. Jewell, 4 Camp. 81.

tained chattel, the property passes by (/) See the judgment in Ommey t.

the law of England, by virtue of the Bekrend, 8 E. & B. 622.

bargain only (see Shep. Touchst. 224, {g) See sect. 2.



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AND ITS INCIDENTS. 276

After an indorsement and delivery of the bill of lading and Of counter-
invoice of the goods as a security against bills which are-to be ^^^ ^'
drawn by the indorsers of the bill of lading on the indorsees,
the indorsers cannot, after they have obtained the acceptances,
and whilst the balance of accounts is in the favour of the in-
dorsees, countermand the delivery of the goods ; and the master
is liable in trover if he acts on such an order (A). Where the
consignor was at the time of the indorsement of the bill of
lading indebted to the consignee on the balance of accounts,
including certain bills of exchange accepted by the consignee,
it was held, that the consignor had no right to stop the goods
upon the insolvency of the consignee before the bills were paid,
the Ck)urt thinking that, under the circumstances, the consignee
was to be considered as a purchaser for a valuable considera-
tion (i).

The indorsement of a bill of lading does not become irrevo-
cable immediately on its being made ; for although, as between
the shipper of the goods and the master, it determines the
person to whom, at the time, the former intends that the goods
should be delivered, the shipper may change his purpose, at any
rate before the delivery of the goods, or of the bill to the party
who is named in it {h). It must be observed, that where the
bin of lading is negociated by way of pledge, it is only the legal
right to stop that is defeated ; for in equity the vendor may, by
giving notice to the person with whom it is pledged, resume the
possession of the goods subject to the specific advance made by
the latter upon them (/).

Notice by letters of the consignment of goods to a person
who has accepted bills on the faith of it cannot be treated as
equivalent to the indorsement of the bills of lading (m); nor
does the transfer of a delivery order operate in the same way as
such an indorsement (n).

Where there would be a right to stop if the transitus had ofrighttore-
begun, there is, d fortiori, a right to refuse to deliver so as to fuse to allow

(A) HaiUe v. Smith, 1 B. ft F. 663. of lading had been sent to a person with- ^^8}^'

!i) Fertue ▼. Jetoell, 4 Camp. 81. out a regular indorsement, and a letter

k) See the judgment of Lord Den- had been written to him expressing an

man, C. J., in Mitchel v. Bde^ 1 1 A. ft E. intention to indorse it, it was held that

903. this was, as against an actual indorsee

(/) In rt Westzinthut, 5 B. ft Ad. 817 ; with notice of the facts, equivalent to an

SpaUUnZ ▼• Ruding, 6 Beav. 376. actual indorsement. Dick v. Lumsden,

(m) NUholt V. Clent, 3 Price, 647. Peake. N. P. C. 189.

In a case at Nisi Prius, where the bill (n) Ante, p. 273.

t2



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276



CONTRACT OF AFFREIGHTMENT



make the transitus commence (o) ; and we have seen, that where
there is no insolvency, a consignor who has hired the entire
use of a ship may, under ordinary circumstances, take out the
cargo before the vessel sails where the freight is made payable
independently of the carriage of the cargo at a day not then
arrived, and the charter-party does not provide that the goods
shall not be removed (p).

Of part pay- The right of stoppage is not taken away by part payment {q^ ;

ddivery.^ ^*^ ^^ ^y ^^^ acceptance of a bill for the price of the goods ; or by
a part delivery of them ; unless the vendee takes possession of
the part, meaning thereby to take possession of the whole (r) ;
in which case, the stoppage will only affect the goods which
have not been delivered ; that is to say, it will not revest in the
vendor any right over the goods actually delivered, although he
will, it would seem, be entitled to hold the goods which are
stopped until the price of the whole has been paid (5).



Of a resale.



Of a Hen
against con-
signee.



A re-sale of the goods by the vendee, and payment to him,
does not, if there has been nothing equivalent to a delivery of
the goods to the vendee, destroy the right to stop (t).

A lien against the consignee cannot be set up to defeat the
stoppage of the goods by the consignor, for the right of lien is
not available against third persons (m).



Who may ex-
ercise right.



Lastly, this right must be exercised by or on behalf of the
vendor; a person who is neither vendor nor consignor, but only
a surety for the price of the goods, cannot stop them (x). The
consignor may stop, although the goods were consigned on the
joint account of himself and the consignee, and a bill of lading



(0) See Dixon v. Yates, 5 B- & Ad.
813, and Gibson v. Carruthers, 8 M. &
W. 821 ; AVE wan v. Smith, 2 H. of L.
C. 809. A person who has shipped
goods however on board of a general
ship is not entitled at plea<:ure to de-
mand them back without payment of
freight, Tindally. Taylor, 4 E. & B. 219.

(p) Ante, p. 259 ; Thompson v. Small,
1 C. B. 328.

(q) Hodgson v. Loy, 7 T. R. 440 ; Ed-
wards V. Brewer, 2 M. & W. 375. The
consignor is not bound in these cases to
tender back the bill. lb.



(r) Slubey v. Heyward, 2 U. BL 504;
Turner v. Scovell, 14 M. & W. 28.

(*) See the judgment in Wentworthv.
Outhwaite, 10 M. & W. 486.

(0 Craven v. Ryder, 6 Taunt 433;
DUon v. Yates, 5 B. & Ad. 313 ; see
alsa on this point Davis v. Reynolds, 4
Camp. 267.

(tt) Oppenheim ▼. Russell, 3 B. & P.
42 ; Morley v. ffay, 3 M. & R. 396
Nicholls V. U Feuvre, 2 B. N. C. 81
Leuckhart v. Cooper, 3 B. N. C. 99
Jaekson v. Nichol, 5 B. N. C. 508.

(*) Siffken v. fVray, 6 East, 371.



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AND ITS INCIDENTS. 277

has been sent to the latter making the goods deliverable to him
or his assigns (y). Where the foreign correspondent of an
English merchant procured goods abroad, on his own credit,
from persons who were strangers to the English merchant, and
shipped them on- the account and risk of the latter at the
original price, charging him only with a commission ; it was
held, that the foreign correspondent was so far a vendor, as
between him and the merchant here, that he might stop in tran-
situ {z). A person, however, who has a mere lien on the goods,
which he loses by parting with the possession of them, cannot
exercise this right (a).

Where the stoppage is effected by a person who has at the
time no authority, a ratification of his acts by the consignor,
made after the transitus is ended, is not sufficient ; for the ratifi-
cation must be made at a time when, and under circumstances
in which, the ratifying party might himself have lawfully done
the act which he ratifies (ft).

There may of course be, under ordinary circumstances, a
rescission of the contract of sale by the mutual consent of the
vendor and vendee, after the right of stoppage has ceased to
exist (c).

The proper and ordinary mode of stopping the goods, is to How it should
give notice to the carrier or person in whose custody they are, exercised,
and to demand them of him. This notice ought either to be
^ven to the person who has the immediate custody of the goods,
or to the principal whose servant has the custody, at such a
time and under such circumstances, that he may by reasonable
diligence communicate it to his servant in time to prevent the
delivery (rf).

The rights of factors to deal with bills of lading and other
indicia of property in goods, are now regulated by the statutes
commonly called the Factors* Acts, 6 Geo. 4, c. 94, and 5 & 6
Vict. c. 39.

The Interpleader Act (1 & 2 Will. 4, c. 58), which gives interpleadtr
relief to persons who are sued for money or goods in which they



Act.



(y) Neu>$om v. Thornton^ 6 East, 17. 410, where the Court held that in fact

(«) Feise v. Wrayy 3 East, 93. an offer to rescind had not been acted

(a) Sweet v. Pym, 1 East, 4. on.

(6> Bird V. Broum, 4 Ex. 786. {d) Whitehead v. Anderson^ 9 M. & W.

(c) See Htinekey v. EarU, 8 E. & B. 518.



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278



CONTRACT OF AFFREIGHTMENT



have no interest, and which are also claimed by some third
party, will be found sometimes to relieve masters of ships itom
difficulty in cases of conflicting claims to goods in their pos-
session. The application of this act, however, to these cases is
not so wide as might be supposed : for, as a general rule, it does
not apply where the party holding the goods has incurred a
personal liability to either of the contending parties (e) ; unless,
indeed, the title of the other claimant is not parcmount Ind deri-
vative; that is to say, unless it is a title derived from the
claimant to whom the personal liability has been incurred (/).



General

AVERAGE.



Where, as is usually the case, the property embarked in
the voyj^ and adventure belongs to different owners, it some-
times becomes necessary to sacrifice the rights of some of them
for the general good of all ; and in this event the law provides
that an equitable adjustment and distribution of the loss shall be
made between all the parties interested (g).

Cases of general or gross average (A) arise, therefore, where
loss or damage is voluntarily and properly incurred in respect of
the goods, or of the ship, /or the general safety of the ship and
cargo (i).



(e) Patorni v. Campbell, 12 M. & W.
277 ; Lindsey v. Barron, 6 C. B. 291 ;
Morton v. Earl of Devon, 4 Ex. 497.

(/) Crawshay v. Thornton, 2 Myl. &
Cr. 1.

{g) There are, perhaps, no subjects
upon which the laws of different countries
have differed more than questions as
to general average, and the mode of
contribution towards it These subjects
have been largely and ably dealt with
both by English and by foreign jurists.
The observations in the text are, how-
ever, almost entirely confined to the de-
cisions of our Courts upon these points.;
for although it is frequently interest-
ing and useful to know what may be the
rule of foreign systems in any given
case, these enquiries do not fall within
the scope of this work, and when any
point arises in our Courts which has not
been decided by them actually, or by
analogy, it is always uncertain how far
the principlei of foreign lawyers will be
adopted. See an elaborate summary of
the principles governing cases of general
average in the judgment in Barnard v.
Adams, 10 How. (American Rep.) 270.

(h) SUnple or particular averM^e arises
where any damage is done to the cargo



or vessel by accident or otherwiic, such
as the loss of an anchor or cable, the
starting of a plank, the turning sour of
a cargo of wine, which are all losses
which rest where they fall. See the
judgment of Sir W. Scott in The Copen^
hagen, 1 Rob. 289. This expression, as
applied to losses of this descriptioo, has
been said to be inaccurate; but the
term average appears strictly not to im-
ply any more than a damage. See
Ducange Gloss. Averia ; Encyclop^ie
du Droit, tit Avarie; Beneckl's Princ.
of Indemn. 167.

(i) It is well known that this rule is
of high antiquity, and that it was
adopted into the Digest from the so-
called Rhodian law. See Pardewos'
Dissertation on the Origin of this Com-
pilation, 1 Lois Marit Chap. 6, p. 209 ;
Park on Ins. 202 ; 3 Kent Comm. 282.
In the English Reports questions of
average do not occur early. Hick$ t.
Paling ton. Moo. Rep. 297 (32 EUx.),
appears to be one of the earliest reported
cases as to average. In Maute** Cote,
12 Rep. 6$ ; 1 Roll. Rep. 79, where it was
held that passengert may for the safety
of their lives and naoU levanda causa,
throw goods overboard without being



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AND ITS INCIDENTS. 279

The loss or injury must be voluntarily incurred; that is to Loss must be
say, there must be a sacrifice of part for the sake of the culreA^^^"*"
rest (A).

Thus, to put the simplest^ and in early times the most usual Jettisons.
form of this question, if goods are thrown overboard in a storm
for the purpose of saving the ship and residue of the cargo from
inuninent danger, the several persons interested in the ship,
freight, and cargo, must contribute rateably to indemnify the
person whose goods have been sacrificed against all but his pro-
pordcm of the general loss (/ ).

This is the general principle. Some cases which are men-
tioned below appear, however, hardly to fell within it.

There is, therefore, in general no contribution where the Nocontribu-
damage is only the natural result of a sea peril, although the of ordinary ^^
exposure to that peril may have been caused by extraordinary •«* P®^^'
exertions to avoid capture or wreck. Thus, where a ship, which
had been captured by a privateer, effected her escape by carry-
ing an unusual press of sail, and in so doing was much strained
and injured, and lost the head of her mainmast, it was held that
this was not a case for average, but only a sea risk, since if the
weather had been better, or the ship stronger, nothing might
have happened (»t).

Where a ship, in order to avoid being driven on shore, and
for the necessary preservation of the ship and cargo, stood out
to sea under a press of sail in tempestuous weather, and, in con-
sequence, suffered injury in her hull, sails and tackle, it was held

therefore responsible to the owners, no herein the Roman law was different)
question of average, properly speaking, every loss by fire, pillage, shipwreck, or



> to have been raised. There is no other mm^'or which could not be traced

doubt, however, that the principle of to any one, was to be made good by a

this rule was adopted from a very early general contribution on all that was

period into our maritime law, either saved. See 1 Pardessus Lois Marit.

from the laws of Oleron or some other 226.

continental source: for, in 1285, Edward (/) See the judgment in Butler v.

I. sent to the Cinque Ports letters Wildman, Z B, Si Aid. 398 ; Park on

patent declaring what goods were liable Ins. 160. In cases of jettison, the freight

to contribute. See post^ 286, note («). which the shipowner would have re*

(*) See the judgment of Lord Ellen- ceived for the goods thrown overboard

borough in Power v. Whitmore^ 4 M. & must be made good to him b^ a general

S. 149; aee also Sheppard v. Wright^ 1 contribution. Beneck6, Pnnc of In*

Show. P. C. 18. According to the demn. 176.

Rhodian law contribution was not only (m) Covington v. Roberts, 2 B. 2ft P^

to be made m cases of Jettison, but (and N. R. 378.



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280 CONTRACT OF AFFREIGHTMENT

that there was not a general average loss. The same rule was
also acted upon in respect of the wages and provisions of the
crew whilst the ship remained in a port which she had, earlier
in the voyage, been compelled to enter for safety, in order to
repair damages occasioned by tempest. The expenses of the
repairs, and the wages and provisions of the crew during her
subsequent detention in this port, on account of bad weather,
were also held not to be a general average (n). But it is other-
wise where there is a voluntary sacrifice of some portion of the
ship or cargo for the general good, although the immediate
cause of the damage may be a peril of the sea. Thus, where a
ship was caught in a violent squall as she was entering harbour,
and the master, in order to preserve the vessel and cargo, cut
the cable from the best bower anchor, and saved the ship by
mooring her with it to the pier; and he afterwards employed
men to give extraordinary assistance, and to go on board to
keep the ship clear of water, in order that the cargo might not
be spoiled, it was held that the value of the cable, and also,
apparently, the other expenses, were an average loss. The rule
laid down by Lord Kenyon, C. J., in this case was, that all
ordinary losses and damage sustained by the ship, happening
immediately from the storm or perils of the sea, must be borne
by the shipowners ; but that all those articles which are made
use of by the master and crew upon a particular emergency, and
out of the usual course, for the benefit of the whole concern,
and the other expenses incurred, must be paid for proportion-
ably as a general average (o). Where a ship was in the course
of her voyage run foul of by another ship, owing to the violence
of the wind and weather, and was damaged, and the master
was in consequence obliged to cut away part of the rigging , and
to return to port to repair the injuries sustained by the accident
and by the cutting away, and it appeared that the ship could
not have prosecuted her voyage, or have kept the sea in safety
without returning and repairing, the Court held that the expenses
of repairs, so far as they were absolutely necessary to enable the
ship with her cargo to prosecute the voyage, excluding from

(n) Power v. Whitmore, 4 M. & S. post, p. 283, note (rf).
149. According to the judgment of (o) Birkley v. Presgrave, 1 East, 220;

Buller, J., in Da Costa v. Neuniham, 2 see also Marsham v. Dutrey, Select Cases

T. R. 418, these expenses were a general of Evidence, 58; 2 Phillips on Insur.

average ; but the expressions used in 88.
that case appear to be too wide. See



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AND ITS INCIDENTS.

this calculation any benefit to the ship beyond the mere removal
of her incapacity to proceed, might properly be considered as a
general average ; and that the expenses of unloading might also
be included, if this was necessary in order to effect the repairs.
It was considered, however, that the expenses of the master,
during the unloading, repairing, and reloading, and the cost of
crimpage to replace deserters, during the repairs, must be borne
by the shipowner (p). Where a ship was stranded by perils of the
sea, and in order to get her off the cargo was discharged, and
forwarded in another vessel, and subsequently expenses were
incurred in getting the ship off and taking her into a port for
repairs, it was held that the expenses incurred from the misad^
venture until the cargo was discharged constituted a general
average^ but that the subsequent expenses were not chargeable
to general average, but to the ship alone (q). In this case it did
not however appear that it was in any way for the advantage of
the owner of the cargo that the ship should be got off and re-
paired, and the view taken of the facts by the Court was, that
the goods had been in the first instance saved by a distinct and
completed operation, and that afterwards a new operation began
for the benefit of the shipowner. But in a later case, where the
ship being stranded the goods were rescued and placed in a
lighter, and remained under the control of the master until the
ship was afterwards repaired and enabled to take in the goods
again and prosecute her voyage, it was held that this was to
be deemed one continuous transaction, and that the goods were
liable to contribute to the expenses of the repairs to the ship,
although they happened to be saved in the earliest part of the
operation (r).

Upon the same principles it is said, in an early case (s), that
there must be contribution if parcel of the goods is given as a
composition to a pirate to save the residue, but that it is other-
wise if a pirate takes part by violence.

If to avoid danger, or to repair damage occasioned by a
storm, the ship is compelled to take refuge in a port to which

(p) Plummer ▼. Wildman, 3 M. & S. by the 22 Geo. 8, c. 25, 43 Geo. 3, c.

482 ; and see as to the expenses of re- 160, and 45 Geo. 3, c. 72, ss. 16 and 17

pairs and unloading in these cases, po«/, (the last two of which acts expired with

p. 2S3, and Hall t. Janson, 4 E. & B. the last general war), and by the 1 7

60a Vict. c. 1 8 (which expired with the late

Iq) Job T. Langton, 6 £. & B. 779. Russian war), contracts tor the ransom

(r) Moran ▼. J<mes, 7 E. & B. 523. of captured ships or goods were made

(«) Hicki V. Palington, Moo. 297. But wholly void.



281



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282



CONTRACT OF AFFREIGHTMENT



the 18 not destiaedy and in order to enter is obliged to lighten
the ship by removing part of the cargo into barges, and this
portion is lost on its passage to the shore, this loss is a general
average, for it b occasioned by the voluntary removal of the
goods for the common benefit <0.



Damage done
to ship to faci-
litate jettison.



There appears to be no doubt that damage voluntarily and
necessarily done to the ship in order to facilitate the jettison, ia



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 36 of 101)