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Failure of Shipper to Tender Goods for Shipment. — In an action for
damages against a steamship company for failure to carry shipments of lumber
and machinery which it had contracted to carry on or about two dates specified,
the fact that plaintiff did not tender shipment on one of the dates specified is not
ground for granting a nonsuit, where defendant was not ready to receive the ma-
terial if tendered,^ or where other fault of the defendant caused the delay of
tender of the goods by the plaintiff. ^*^

Plaintiff Shipping Part of Goods by Other Ship. — In an action against a
steamship company for breach of a contract to carry shipments of freight on its
ships sailing on or about two dates specified, the fact that plaintiff shipped part
of the material which defendant had agreed to carry upon another ship could not

titled to recover from the steamer the any one steamer at any time in violation
damages suffered by reason of the refusal of the contract loaded an assembled ship-
to take the remainder of the cargo. The ment valued at $349,426.70 without plain-
Citta Di Palermo, 153 Fed. 378. tiff's knowledge on a single vessel, which
4. Failure to wait for entire shipment. shipment sustained a damage of $85,996.70.
—Dunbar v. Buck, 20 Va. (6 Munf.) 34. Held that, since the insurance company



5. Boat other than that stipulated. —



was only liable for such a proportion of



T • -11 J- T3 1 4. r> -D in the loss as $100,000 bore to the whole

Louisville, etc.. Packet Co. v. Rogers, 49 . e 4.\ a ^ • a a c a t.

■NT -c- n-n oA T„^ A en^ valuc of the goods Shipped, defendant was

J\. h,. 970, 20 Ind. App. 594. •, , r i i r ^ i. r it »

. . . ^ responsible for breach of contract for the

_ 6 Waiver of terms of contract— Lou- balance of the loss. Hood Rubber Co. v.

isville, etc.. Packet Co. v. Rogers, 20 Ind. Rutland Trans. Co., 161 Fed. 790.

App. 594, 49 N. E. 970. g. Right of cargo to refuse to go on

7. Carrying contrary to contract. — with voyage. — The Eliza Lines, 199 U.

Hood Rubber Co. v. Rutland Trans. Co., S. 119, 26 vS. Ct. 8, 50 L. Ed. 115, 4 Am.

161 Fed. 790. & Eng. Ann. Cas. 406.

Defendant having contracted not to 9. Failure of shipper to tender goods

place more than $100,000 worth of plain- for shipment. — Revett v. Globe Nav. Co.,

tiff's goods on any one of its vessels for 56 Wash. 550, 106 Pac. 176.

transportation at one time, and with 10. Failure of defendant to direct

knowledge that plaintiff's insurance was switching cars. — Revett v. Globe Nav.

limited to $100,000 worth of goods on Co., 56 Wash. 550, 106 Pac. 176.



3877



CARRIAGE OP PROPERTY.



§§ 4262-4266



be pleaded in bar of a recovery of general damages, the contract not having been
rescinded : but the freight money lost, if allowable at all, would only be an offset
to plaintiff''* damages. ^^

§ 4263, Who Liable on Contract. — An engagement of cargo space from a
steamship line for a shipment at an agreed rate of freight, made by a company
operating a connecting line, 'constitutes a contract, wdiich binds the latter to fur-
nish the cargo, or respond in damages, although it was in fact made in behalf of
a third part)' intending" to make a through shipment over both lines, where such
fact w^as not disclosed. i-

§ 4264. Abandonment of Contract. — Neither party is at liberty to abandon
the contract without the consent of the other, or without legal cause. ^^

Effect of Abandonment. — Where a contract of affreightment is abandoned,
the carrier in such contract can not be held liable for damages to the shipper for
losses arising out of a shipment of the same freight under another contract with
another carrier.^*

§ 4265. Assignment of Contract. — A contract for the carriage of cattle
on certain vessels is assignable by the shipper, and the assignment vests the as-
signee with the right to sue thereon in his own name, notwithstanding a provision
therein that no part of the space contracted for shall be sublet without the con-
sent of the shipowner.i-'^ The diff'erence between subletting and assigning is
material. In the one case, the lessee claims the whole or a part of the premises
he is entitled to occupy. In the other, he transfers all his right in a contract and
the assignee acquires all the rights and assumes all the liability of the assignor. ^^

§§ 4266-4275. Bill of Lading— § 4266. Definition.— In commercial law,
a bill of lading is legal evidence of title to property in transit, and the rights of the
parties may be governed by its terms. ^'^ As restricted to transportation by water,
a bill of lading may be said to be a written acknowledgment, signed by the mas-
ter of a vessel, that he has received the goods therein described from the shipper,



11. Plaintiff shipping part of goods by
other ship. — Revett v. Globe Nav. Co., 56
Wash. 550, lOG Pac. 176.

Breach of contract not shown. — In an
action against a steamship company for
breach of contract to carry shipments of
freight on two dates specified, evidence
held not to show a breach of the con-
tract by the shipper by shipping a part of
the freight which he had contracted to
send over defendant's line by another
ship. Revett v. Globe Nav. Co., 56 Wash.
550, 106 Pac. 176.

12. Who liable on contract. — Baltimore
Steam-Packet Co. v. Patterson, 106 Fed.
736, 45 C. C. A. 575, 66 L. R. A. 193, af-
firming decree, 101 Fed. 296.

13. Reed v. United States (U. S.), 11
Wall. 591, 606, 20 L. Ed. 220.

14. Effect of abandonment. — Plaintiff
made an oral contract with defendants to
ship his sawmill and laborers on the
steamer Monarch from Eagle to Fair-
banks. When the Monarch reached Ea-
gle she was loaded, and refused to take
them. Defendants telegraphed to the Oil
City, another steamer, and she took them,
but was delayed on the way. Plaintiff
paid the Oil City the usual rate for both
freight and passengers and defendants
nothing. Held, that the contract with de-



fendants for the services of the Monarch
was abandoned, and that there was no
consideration to support plaintiffs claim
for damages against defendant caused by
the delay of the Oil City. Johanson v.
Sondheim, 2 Alaska 556.

15. Assignment of contract. — Morris v.
Chesapeake, etc., Steamship Co., 125 Fed.
62, decree affirmed in 148 Fed. 11, 78
C. C. A. 179.

16. Morris v. Chesapeake, etc., Steam-
ship Co., 125 Fed. 62; Lynde v. Hough
(N. Y.), 27 Barb. 415; Bedford v. Ter-
hune, 30 N. Y. 453, 86 Am. Dec. 394, 27
How. Prac. 422; Field v. Mills, 33 N. J.
L. 254.

17. Definition, etc.— The Prussia, 100
Fed. 484; Shaw v. Railroad Co., 101 U.
S. 557, 25 L. Ed. 892. See ante, "Defini-
tion and Nature Generally," § 413.

A bill of lading is a commercial doc-
ument of title, which represents the
goods, and which the master by the gen-
eral maritime law and expressly by
§ 3 of the Harter act (Act Feb. 13,
1893, c. 105, 27 Stat. 445 [U. S. Comp.
St. 1901, p. 2946]), in the case of vessels
in the foreign trade, is bound to give to
the shipper. Equi Valley Marble Co. v.
Becker, 91 C. C. A. 592, 165 Fed. 437.



§§ 4266-4268 carriers. 3878

to be transported, on the terms therein expressed, to a described place or desti-
nation, and there to be dehvered to the consignee or the parties therein desig-
nated.^^

What Constitutes. — A document purporting on its face to be a bill of pur-
chase by a vessel of certain stone, and signed by her master, the stone being de-
livered to her as cargo, has none of the elements of a bill of lading and can not
be interpreted as such. Nor is the vessel holden for stone purchased by her mas-
ter as cargo. ^^

§ 4267. Form and Contents. — For a treatment of the form and contents
of a bill of lading, see ante, "Form and Contents," §§ 414-424.

Stipulations Stamped on Face. — Stipulations stamped on the face of a bill
of lading before its delivery to the shipper, and by express terms included therein,
become a part of the contract. ^'^

§ 4268. Issuance and Acceptance. — Although a bill of lading is the proper
and customary shipping document, and should be made out according to every re-
quirement, yet there is no rule of the common law requiring the carrier to issue
it to the consignor.-^ Rut in some instances common carriers are required by
statute to issue bills of lading, memoranda in writing, etc., to the consingor of
freight received. 2- And it has been held that a shipper of goods is entitled to a
bill of lading therefor as a matter of right. - '' And in this connection it was said
that where the master claims, demurrage for delay in loading, he has the right
to give notice of the claim in, or by indorsement upon, such bill, so as to charge
a transferee with such notice.-^

Duty of Consignor to Require Bill of Lading. — It has been held that a
shipper should in all cases require a bill of lading. -•'^ Where there is no evidence
that the contract of shipment was out of the usual course, or that the plaintiffs
could have made any better one, at the "lowest rate of freight," according to the
terms of the order, it was correct to instruct the jury that it was the duty of the
plaintiffs to have taken a bill of lading in a proper and usual form.-'' But there
IS a rule of law requiring a consignor to take out a bill of lading and forward
it to the consignee.-"

Time of Issuance. — A bill of lading should be signed and issued when the
goods noted therein for shipment have been received.-*^ When different parcels,
packages, etc., going to make up the consignment are received at different times,
receipts for them are or should be given, upon the return of which, when the en-
tire consignment is received, a bill of lading will be issued. -'^

18. Restricted to water transportation. 24. Right to give notice of claim in

— Louisville, etc., Packet Co. v. Rogers. bill. — \\'att 7: Cargo. 161 Fed. 104.

20 Ind. App. 594, 49 N. E. 970. 25. Shipper should require bill of lad-

19. What constitutes. — The Skylark. ing. — Tolinson v. Stoddard, 100 Mass.
Fed. Cas. No. 12,930. .-^OG: The Delaware (U. S.), 14 Wall. 579.

20. Stipulations stamped on face.— The 20 L. Ed. 779.

Henrj^ B. Hyde, 82 Fed. 681, decree af- 26. Duty to take bill of lading.— Field

firmed in 90 Fed. 114. 32 C. C. A. 534. v. Banker (X. Y.). 9 Bosw. 467. See ante,
See ante, "Form and Contents," §§ 414- ■ "Necessity for Issuance," ^ 425.

424. 27. No rule of law requiring it. — John-

21. No rule requiring carrier to give son v. Stoddard, 100 Mass. 306.

bill of lading. — The Peytona, 2 Curt. 21. 28. Time of issuance. — The Delaware

Fed. Cas. No. 11,058; Johnson v. Stoddard, (U. S.), 14 Wall. 579. 20 L. Ed. 779;

100 Mass. 306. Generall}^ as to the ne- Rowley r. Bigelow (Mass.), 12 Pick. 307,

cessity for issuing bills of lading, see 23 Am. Dec. 607.

ante, "Necessity for Issuance," § 425. Statutes forbidding issuance prior to

22. Necessity for issuance under stat- receipt. — 1 Rev. Stat. Mo. 1889, ch. 18, §
ute.— Tex. Civ. Stat. 1895, art. 322. As 739; 3 N. Y. Rev. Stat., p. 2259 (17 Ed.):
to duty to issue bills of lading, see ante. Act of Pa. 1866, § 2, P. L. 1363; Louisiana
"Duty to Issue," § 443. Statute construed, see The Idaho, 93 U.

23. Duty to issue.— Watt v. Cargo, 161 S. 575, 23 L. Ed. 978.

Fed. 104. 29. Shipping receipts. — The Delaware



3879



CARRIAGE OF PROPERTY.



§ 4268



Authority to Issue. — As to authority of particular agents, employees, etc., to
issue bills of lading, see ante, "Agents and Employees," §§ 426-428. The general
rule, under the decisions in the federal courts, and some of the state courts, is
that the master of a vessel has no power to bind the owners of the ship by a false
bill of lading.-"' Some of the cases, though, limit the rule to ca-ses where there
is no intent to defraud. -^^ Various state courts hold that common carriers are
estopped from denying their liability upon a false bill of lading given by the
master or agent.''- But this is not the rule in the federal courts. Most of the
cases in which the rule has been applied have been cases in which either no goods
were shi])ped, or a less amount was shipped than that stated in the bill of lading;
but the rule is based on the principle that a master has no implied authority to
give a false bill of lading of any kind."^-" .And it seems that the principle would
have the same ap])lication to a bill of lading which is false in the date as to one
which is false in the amount.'''*

Receipt of Goods as Prerequisite to Issuance. — As to receipt of goods as
prerequisite to issuance of bills of lading, see ante, "Receipt of Goods as Pre-
recjuisite to Issuance," §§ 429-442. Under the rule of the federal courts a mas-
ter has no power to bind the owners or the ship by a false bill of lading, whether
the falsity is in relation to the amount of goods shipped on the date of the ship-
ment, except where the rule is changed by statute. The act of congress known
as the Harter Act subjects a person guilty of a violation of its provisions re-
specting bills of lading to a fine, which is made a lien on the vessel, but does not
make the vessel liable for the damages occasioned thereby.^-"'

The true construction of the provisions of the Harter Act in regard to
bills of lading is that the rule i)rc\iously estaljlished in the federal courts that
a false bill of lading is not binding on the owner or the ship still remains the
law; but, if a false bill of lading is given, the person giving it is liable to a fine
not exceeding $2,000, and the amount of that fine is made a lien on the vessel.
But any damage caused by the falsehood does not create any lien on the ship.
The true remedy of the party injured in such a case is an action against the per-
son who actually issued the false bill of lading.-^*'



(U. S.), 14 Wall. 579, 20 L. Ed. 779; The
Mercantile, etc., Co. v. Chase (N. Y.), 1
E. D. Smith 115; Keyser v. Harbeck (N.
Y.), 3 Duer. 373.

30. False bill of lading.— The Isola Di
Procida, 124 Fed. 942: Schooner Freeman
V. Buckingham (U. S.), 18 How. 182. 15
L. Ed. 341; Bulkley v. Naumkeag Steam
Cotton Co. (U. S.), 24 How. 386, 16 L.
Ed. 599; Pollard v. Vinton, 105 U. S. 7,
26 L. Ed. 998; The Loon, 7 Blatchf. 244,
Fed. Cas. No. 8,499; Robinson, etc., Co. v.
Memphis, etc., R. Co., 9 Fed. 129; S. C,
16 Fed. 57; American Sugar Refin. Co. v.
Maddock, 93 Fed. 980, 36 C. C. A. 42;
Missouri Pac. R. Co. v. McFadden, 154
U. S. 155, 14 S. Ct. 990, 38 L. Ed. 944.

31. Intent to defraud. — When the cargo
specified in a bill of lading was never re-
ceived by the carrier, the original con-
signee cannot hold the carrier liable for
the loss of the cargo, unless it appears
that the bill of lading was issued with
intent to defraud. Mclntyre Bros. & Co.
V. South Atlantic Steamship Line, 12 Ga.
App. 399, 78 S. E. 347.

32. State courts.— The Isola Di Pro-
cida, 124 Fed. 942; Armour v. Michigan
Cent. R. Co., 65 N. Y. Ill, 22 Am. Rep.
603; Rank v. New York, etc., R. Co., 106



N. Y. 195, 12 N. E. 433, 60 Am. Rep. 440;
Brooke v. New York, etc., R. Co., 108
Pa. 529, 1 Atl. 206, 56 Am. Rep. 235;
Wichita Sav. Bank v. Atchison, etc., R.
Co., 20 Kan. 519; Sioux City, etc., R. Co.
V. First Nat. Bank, 10 Neb. 556, 7 N. W.
311, 35 Am.. Rep. 488.

33. Rule in federal court. — The Isola
Di Procida, 124 Fed. 942.

A steamship carrier can not be held lia-
ble for nondelivery of goods not actually
received for shipment, although it issued
bills of lading therefor upon receipts pur-
porting to have been signed by its ship-
ping clerks at the wharf, but which were
in fact forged. Clark v. Clyde Steamship
Co., 148 Fed. 243.

34. The Isola Di Procida, 124 Fed. 942.

35. Power of master — False bill of lad-
ing.— The Isola Di Procida, 124 Fed. 942.

The rule is not changed by the Harter
Act of Feb. 13, 1893, c. 105, 27 Stat. 445
[U. S. Comp. St. 1901, p. 2946].

36. The Isola Di Procida, 124 Fed. 942;
Schooner Freeman v. Buckingham (U.
S.), 18 How. 182, 15 L. Ed. 341; Stumore
V. Breen, 12 App. Cas. 698; Relyea v. New
Haven Rolling-Mill Co., 42 Conn. 579, 75
Fed. 420.



§ 4268



CARRIEIRS,



3880



Issuance in Duplicate. — J\s to issuance of bills of lading in duplicate, see
ante, "Issuance in Duplicate," § 444.

Acceptance and Assent to Provisions. — The general rule is that when goods
are delivered to a carrier for transportation, and a bill of lading or receipt is de-
livered to the shipper, he is bound to examine it and ascertain its contents ; and
if he accepts it without objection, he is bound by the terms, and resort can not
be had to parol negotiations to vary theuL^"^ In speaking of the legal efifect of
a bill of lading, and why, upon transportation, such an instrument is binding
upon the shipper it has been said ^^ that "it is the rule, rather than the excep-
tion, for carriers to stipulate for a release from the stringent liability of an in-
surer, and which otherwise the law would impose upon them ; and according to
the customary course of business such stipulations are contained in the bill of
lading issued by the carrier. This custom is so general that all persons receiving
fuch bills of lading must be presumed to know such custom, * * * and for
this reason the acceptance of such a paper by the shipper, without dissent, at
the time of the delivery of his goods for shipment, when no fraud or imposition
has been practiced upon him, is to be regarded as conclusive evidence that he
agrees to be bound by all lawful stipulation contained in such bill of lading."
However, it may be laid down as a general proposition that, when goods have
been received by a carrier under a prior contract such contract is not merged in
a bill of lading subsequently issued, unless it is shown that the shipper assented
to the terms contained therein. ^^^ And it is said that where a bill of lading pre-
sented by the carrier to the shipper for signature, after the shipment has been
made, does not conform to the original contract, but includes cargo not taken
by the vessel as agreed, it is a proper course for the shipper to sign the same un-



37. Acceptance and assent to purchas-
ers.— The Arctic Bird, 109 Fed. 167; Ger-
mania Fire Ins. Co. v. Memphis, etc., R.
Co.. 72 N. Y. 90, 28 Am. Rep. 113; Long
V. New York Cent. R. Co., 50 N. Y. 76;
Bank v. Adams Exp. Co.. 93 U. S. 174,
23 L. Ed. 872; Grace v. Adams, 100 Mass.
50.5, 97 Am. Dec. 117, 1 Am. Rep. 131;
McMillan v. Michigan, etc., Railroad, 16
Mich. 79, 93 Am. Dec. 208.

The shipper of a cargo of fruit took a
bill of lading containing permission to the
vessel to call at any port or ports. One
port, at which the ship was accustomed
to call, was known to all parties to be
quarantined. Evidence was given that the
agent of the ship let the shipper imder-
stand that the vessel would not call at
the quarantined port. The shipper there-
after accepted the bill of lading without
objection. The ship did so call, and was
detained in quarantine, and the fruit was
damaged. Held, that the bill of lading
governed, and that the shipper could not
recover. The Sidonian, 34 Fed. 805.

As to acceptance and assent to provi-
sions as requisite to making a binding
contract by way of the bill of lading or
in substitution of an original parol oral
contract, see ante, "Acceptance and As-
sent to Provisions," §§ 445-450.

38. The Henry B. Hyde, 82 Fed. 681,
quoted in The Arctic Bird. 109 Fed. 167.

39. Goods received under prior con-
tract.— The Arctic Bird, 109 Fed. 167;
Gaines v. Union Transp., etc., Ins. Co.,



28 O. St. 418; Park v. Preston, 108 N.
Y. 343, 15 N. E. 705; King v. Woodridge,
30 Vt. 565.

Where goods were delivered to and
laden upon a vessel for shipment, and a
receipt given therefor, under a written
contract for their carriage between the
shipper and carrier, the terms of such
contract can not be changed, and new
conditions and limitations favorable to
the carrier added, by a bill of lading sub-
sequently delivered by it to the shipper,
and accepted by him without reading, un-
less it is shown that his attention was
called to such changes, so that he may
be presumed to have assented thereto.
The Arctic Bird, 109 Fed. 167.

Where a bill of lading does not con-
form to the original contract of ship-
ment, it must yield, in the absence of
proof that the parties intended thereby to
create a new agreement. The Citta Di
Palermo, 153 Fed. 378.

A parol contract for the shipment of
goods, pursuant to which they were
laden on board, may be shown to affect
the construction of bills of lading signed
and delivered after the goods were loaded
and when the vessel was about to sail,
and, in order that provisions of such bills
shall override the prior agreement, the
burden rests on the carrier to show that
they were called to the attention of the
shipper and assented to by him. Pacific
Coast Co. V. Yukon Independent Transp.
Co., 155 Fed. 29, 83 C. C. A. 625.



3881 CARRIAGE OF PROPERTY. §§ 4268-4269

der protest, and such protest will preserve its rights.'**^ Of course it is compe-
tent for the parties to modify the prior contract by the introduction of additional
terms, or by the substitution of the contract contained in the bill of lading, but
the circumstances under which the bill of lading is delivered must show that it
was the intention of the parties that the prior contract was to be merged in, and
the freight carried subject to the conditions and exceptions named in the bill of
lading.41 j,-, gome later cases in New York it seems to be held that the doc-
trine just stated is applicable only to the cases where the evidence shows that
at the time of the delivery of the bill of lading the goods were actually in transit
to their place of destination, and for that reason could not have been reclaimed
by the shipper.^- But the Federal District Court, in holding that the rule could
not be so limited, said that when the claim is made that a contract under which
goods were accepted has been superseded by a bill of lading subsec[uently de-
livered, it is reasonable to require, in support of such claim, proof of the actual
assent of the shipper to the terms contained in the bill of lading.'*^ And it is
^Iso held by that court that proof of the delivery of the bill of lading, and its ac-
ceptance by the shipper without dissent, will not be sufficient to show his actual
assent, but that it must be shown in addition thereto, that he bad notice
that such bill of lading was delivered to him by the carrier as the contract un-
der which his goods were to be carried. ^^ And there are many cases which so
hold.'*'^ A contract for the carriage of goods by sea may doubtless exist without
a bill of lading, and when the parties have made such a contract the ship owner
can not, without the shipper's consent vary its terms for inserting new provi-
sions in a bill of lading, and the shipper may decline to assent to the modifica-
tions, and insist upon his right to have the goods carried under the original con-
tract.4<^

No Previous Contrajct. — Of course, if no previous contract has been made
between the parties, the bill of lading will be conclusive evidence as to the char-
acter of the contract.^'' The bill of lading is often given by the shipowner, and
accepted by the shipper, as expressing the terms of the agreement between them,
f,nd when this is the case both parties are bound by its provisions.*^

§ 4269. Validity of Bills of Lading. — As to the validity of bills of lad-
ing as affected by fraud, mistake, forgery, no delivery of goods, and partial in-
validity, see ante, "Validity," §§ 451-454.

Validity of Particular Stipulations. — A stipulation in a bill of lading that
"the ship is warranted seaworthy only to the extent that the owners shall exer-

40. Proper to receive bill under pro- In The Caledonia, 43 Fed. 681, 50 Fed.
test.— The Citta Di Palermo, 153 Fed. 567, affirmed in 157 U. S. 124, 15 S. Ct.
378. 537, 39 L. Ed. 644, the court held upon

41. Merger of original contract. — The the particular facts before it that a prior
Arctic Bird, 109 Fed. 167, in this case it written memorandum was merged in a
was held that the prior contract was not subsequent bill of lading, but the rule was
superseded by the bill of lading. And recognized that a prior contract for the
the case of Bostwick v. Baltimore, etc., carriage of goods could not be changed,
R. Co., 45 N. Y. 712 is a similar case. by a subsequent bill of lading, without

42. New York cases.— Germania Fire the assent of the shipper

Ins. Co. V. Memphis, etc., R. Co., 72 N. 46. The Caledonia, 43 Fed. 681, 50 Fed



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