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Y. 90, 28 Am. Rep. 113; Long v. New 567; Jones v. Hough (Eng.) 5 Exch. Div

York Cent. R. Co., 50 N. Y. 76. 115; Crooks v Allen (Eng.) 5 Q. B. Div

43. Actual assent required.-The Arc- ^«^/?;^ ^/J^ ^^^^^" ^- ^'''^'''^^ ^« ^PP
tic Bird, 109 Fed. 167. ^'7. ' No ""previous contract-Missouri

44. The Arctic Bird, 109 Fed. 167. Pac. R. Co. v. Beeson, 30 Kan. 289, 2

45. Missouri Pac. R. Co. v. Beeson, 30 Pac. 496.

Kan. 289, 2 Pac. 496; Strohn v. Detroit, 48. The Caledonia, 43 Fed. 681, 50 Fed.

etc., R. Co., 21 Wis. 554, 94 Am. Dec. 564. 567.



§§ 4269-4270



CARRIERS.



3882



cise due diligence to make it so," being ambiguous and vmcertain in its meaning,
can have no effect. ^^

§ 4270. Construction, Operation and Effect. — General Rules of Con-
struction. — The constructions of bills of lading must be governed by the law
and by all the circumstances by which the parties intended to be bound. ^" In the
construction of a bill of lading, as in construing other instruments, the obvious
and plain meaning should be accepted rather than the obscure and hidden.-'' '
A bill of lading is a contract of great importance in commerce, and is to be con-
strued according to its terms, the subject matter, the nature of the business to
which it relates, and the usages under which such business is generally con-
ducted.^^-

Evidence of the usage and custom of trade is admissible in mercantile
contracts to prove that the words in which they are expressed in a particular
trade to which the contract refers are used in a particular sense, and different
from the sense that they ordinarily import, and in certain cases for the purpose
of annexing incidents to the contract in matters upon which the contract is
silent; but it is never admitted to make a contract or to add a new element to
the terms of the contract previously made by the parties. ^^ Usage may be ad-
mitted to explain what is ambiguous, but not to vary a contract which is plain.
It can not control or vary the positive stipulations of the bill of lading.^^

Dual Character as Contract and as Receipt. — As to dual character as a
contract and as a receipt of bills of lading, see ante, "Dual Character as Con-
tract and as Receipt," §§ 466-479.

As Contract Generally. — A bill of lading, when signed by the carrier, and
delivered to and accepted by the shipper without objection, ill the absence of
fraud, constitutes the contract of carriage, and binds the shipper, though not
signed by him.-''^

Substitution of Bill of Lading for Original Contract. — The liill of lading
can not be said to have taken the place of the original contract of aff'reightment,
where the bill as it is made out was signed and accepted by the shipper, under
protest, in order to obtain this usual document of title. ■"'*^



49. Validity of particular stipulations.

— Insurance Co. ?'. North German Lloyd
Co., 106 Fed. 973. affirmed in 110 Fed.
420. 49 C. C. A. 1.

50. Construction governed by law and
circumstances. — Find v. LInited States, 44
Ct. CI. 558.

In construing and giving effect to the
provisions of a bill of lading, the condi-
tions and circumstances which the evi-
dence proves were known to the parties
and contemplated by them in making it
are to be taken into consideration. Pa-
cific Coast Co. V. Yukon Independent
Transp. Co., 155 Fed. 29, 83 C. C. A. 625.
Generally as to construction, operation
and effect of bills of lading, see ante,
"Construction, Operation and Effect," §§
455-513.

51. Obvious meaning accepted. — A pro-
vision in a bill of lading for a cargo of
coal to be delivered at Portland, Me.,
which required the consignee "to tow ves-
sel in and out of Back Bay free," is not
a contract to pay for the towage merely,
but to provide the same. Winslow v.
Thompson, 134 Fed. 546, 67 C. C. A. 470,
affirming decree, 130 Fed. 1001; S. C,
128 Fed. 73. See ante, "General Rules
of Construction," § 455.



52. Rules of construction. — Shepherd v.
Naylor (Mass.), 5 Gray 591.

53. Evidence of usage or custom. —
Louisville, etc.. Packet Co. v. Rogers, 20
Ind. App. 594, 49 N. E. 970.

54. To explain ambiguous. — Louisville,
etc., Packet Co. v. Rogers, 20 Ind. App.
594, 49 N. E. 970; The Delaware (U. S.).
14 Wall. 579, 20 L. Ed. 779; The Bel-
fast, 40 Ala. 184, 88 Am. Dec. 761,
and authorities there cited; Benson v.
Gray, 154 Mass. 391, 28 N. E. 275, 13 L.
R. A. 262.

55. As contract generally. — The Henry
B. Hyde, 82 Fed. 681, decree affirmed in
90 Fed. 114, 32 C. C. A. 534. As to op-
eration and effect of bills of lading as
contract for carriage, see ante, "As Con-
tract of Carriage," §§ 480-481.

56. Substitution of bill for contract of
affreightment. — See ante, "Issuance and
Acceptance," § 4268.

Where, after a vessel had sailed with
part only of the cargo, the shipper signed,
under a verbal protest, a bill of lading
covering the entire quantity, as the only
means of obtaining any bill of lading,
such bill did not supersede the original
contract, and the shipper is entitled to
recover back the freight paid on the cargo



3883 carriage; of property. § 4270

Effect on Charter Party. — When the charterer of a vessel is the shipper
of a cargo, a bill of lading given by the master operates merely as a receipt for
the goods and a document of title, and never, as between the shipowner and
charterer, affects the terms of the charter party. ^'''

As Evidence of Contract. — In the absence of a charter party, the bills of
lading delivered to the shipper are taken as the best evidence of the contract of
carriage. •''"'^

Operation as Evidence of Receipt and Acceptance of Goods. — See ante,
•'As Evidence of Fact and Time of Receipt and Acceptance of Shipment," S^
482-483.

Evidence of Receipt on Board. — A bill of lading issued by the master of a
ship is prima facie evidence of, and, in the absence of prOof to the contrarv, es-
tablishes, the receipt on board of the goods therein described."'"

Destination or Place of Delivery.— See ante, "Destination or Place of De-
livery." § 484.

Person to Whom Delivery Authorized. — If the document specifies that
the merchandise is to be delivered at the place of destination to a consignee
named, it will be the duty of the carrier to deliver to the person named as con-
signee.*^*^

Delivery to Holder. — If the document specifies that delivery is to be made
to the holder, a mere delivery of the bill of lading will be effective to transfer the
title, and the carrier will be bound to require production of the bill of lading,
and to deliver the merchandise to the holder, and to no one else.*'^

Operation of Bill of Lading as Vesting- Property in Consignee. — As to
the operation and effect of bills of lading as vesting the property in the con-
signee, see ante, "Eft'ect as Vesting Property in Consignee," §§ 499-510. If the
bill of lading contain the names of the consignor, and specifies that the property
is to be delivered to order, and is sent forward attached to a draft, the carrier
will not be authorized to deliver the property, if the drawee refuses to accept
the draft.*'^ Where, in receiving and transporting, the carrier is the agent of
the consignor, and the only contract for which the ship becomes liable is the
contract contained in the bill of lading, to which the consignee is not a party,
the consignee does not have any right to enforce it, or to collect damages for its
\iolation, where the document does not come into possession. If the contract by
the consignor for sale and delivery of the goods shipped is violated, the remedy
of the purchaser is in a personal action for damages against the vendor.*'^

not taken, as well as damages resulting signee. — The Prussia^ 100 Fed. 484; Grove

from the failure to take it. Decree, The v. Brien (U. S.), 8 How. 429, 12 L. Ed.

Citta Di Palermo, 153 Fed. 378, affirmed 1142, and note; National Bank v. Mer-

in Equi Valley Marble Co. v. Becker, 16.5 chants' Nat. Bank, 91 U. S. 92, 23 L. Ed.

Fed. 437, 91 C. C. A. .592. 208.

57. Effect on charter party. — Decree, 63. The Prussia, 100 Fed. 484.

140 Fed. 123, reversed in The Fri, 154 Where, by a contract for the sale of

Fed. 333, 83 C. C. A. 205. lumber to be delivered at a distant port,

58. As evidence of contract.— The Eva ^ P^rt of the price was to be paid on de-
D. Rose, 151 Fed. 704, decree modified Hvery, and on shipment of the lumber a
on rehearing, 153 Fed. 912. ^^'^1 o^ lading was issued, by the terms of



59. Evidence of receipt on board. — De-



which delivery was to be made to the



.,..„„ io. IT 1 f. - (K 1 Ti 'p- consignor or order, and such bill was for-

cree, 124 red. 9<y, arhrmed in The 1 1- , , -.i i r^ r .i • ..

*^^\\ 101 -G^A oon cc r> r" A oi- warded, witli a draft for tlie price at-

tania, 131 I'ed. 229, 65 L. L. .'\. 21.). . u i i • i i. • i i .1

' . tached, whicli was not paid l)y tlic pur-

60. Person to whom delivery author- chaser, and the lumber was therefore not
ized.— The Prussia, 100 brd. 4m4. delivered to him, he never became the

Persons to whom dehvery authorized. owner of the consignment, so as to sus-

— See ante,^^"Persons t^o Whom Delivery t^in any contract relation with the carrier

Authorized, §s 48,)-487. which would support a suit in rem against

61. Delivery to holder.^The Prussia, the vessel for a breach of the contract of
100 Fed. 1H4. affreightment contained in the bill of lad-

62. Effect as vesting property in con- ing. The Prussia, 100 Fed. 484.



§ 4270



carrie:rs.



3884



Effect as Warranty of Quality, Quantity, Condition, etc.— In general, the
interior condition of goods, packed as usual, and necessarily so, for shipping, can
not be known to the shipmaster receiving them for carriage, and therefore the
words "in. good order and condition" must be limited to their apparently good order
and external condition. It is not unusual to insert in the bill of lading "con-
tents unknown," or some saving clause of like effect.^-*

Effect of Warrant of Quantity — In General. — Where a master, who is
also owner of a vessel, gives a shipper a bill of lading, reciting receipt of a cer-
tain amount of iron, and agreement to deliver it to the consignees, he is liable
for damages to the consignees, who, relying on the correctness of the recital,
pay the shipper for more iron than was actually on board.^'^

Operation as Evidence of Quantity, Quality, etc.— As to operation of
bill of lading as evidence of quantity, quality, conditions, etc., see ante, "As Evi-
<ience of Quantity, Quality or Condition of Goods," §§ 492-494. A bill of lad-
ing for a specified number of tons of scrap iron, "marked and numbered as per
margin," and concluding "weight unknown to" the master, binds the shipowner
to deliver only so much as is actually shipped.^^ The ambiguity, if there be
any, is a patent one, and must be removed by taking every clause and word in



64. Effect as warranty of quality, con-
dition, etc. — Shepherd v. Naylor (Mass.),
5 Gray 591. As to operation and effect
■of bill of lading as warranty, quantity,
etc., see ante, "Effect as Warranty or
Quantity, etc.," §§ 488-491.

But in Barrett v. Rogers, 7 Mass. 297,
5 Am. Dec. 45, the court held that such
must be the reasonable construction,
where no such words were used, and
therefore held that the receipt and un-
dertaking expressed in a bill of lading are
prima facie evidence of the quantity,
quality and condition of goods received
for carriage, but are not conclusive. See,
also, Clark v. Barnwell (U. S.), 12 How.
272, 13 L. Ed. 985; Haddow v. Perry
(Eng.), 3 Taunt. 303; Shepherd v. Nay-
lor (Mass.), 5 Gray 591.

65. Effect as warrant of quantity. —
Relyea v. New Haven Rolling-Mill Co.,
43 Conn. 579, 75 Fed. 420. _

66. As evidence of quantity or weight.
— Shepherd v. Naylor (Mass.), 5 Gray
591. See Sears v. Wingate (Mass.), 3 Al-
len 108; Hall V. Mayo (Mass.), 7 Allen
455.

In Law V. Botsford, 26 Fed. 651, the
vessel took on board at Port Huron a
■cargo of wheat for Buffalo, and the meas-
urement at the port of delivery was less
than that called for by the bills of lad-
ing. The court saidL "It can not be too
well understood that a vessel has dis-
charged her entire duty when she has
delivered all she has received. This is
not only the dictate of common sense,
tut is also the law, as laid down in Shep-
herd V. Naylor (Mass.), 5 Gray 591, and
Kelley v. Bowker (Mass.), 11 Gray 428,
71 Am. Dec. 725. So that, while the fact
that the vessel did not tally as much at
Buffalo as Port Huron cast upon the
master the burden of proving that she
delivered all that she received, he fully
satisfied this requirement, and hence, I



think, is exonerated from liability in that
particular. In this view, it is not neces-
sary for me to solve the question which
in its nature is insoluble, viz, whether the
cargo was correctly weighed at Port Hu-
ron" or at Buffalo. It is impossible for
us to tell at this time where the mistake
occurred. There was a mistake in meas-
uring this cargo, either inboard or out-
board. If the mistake occurred at Buf-
falo, then the vessel is entitled to her
freight upon the amount of the bill of
lading. If the mistake occurred at Port
Huron, she is entitled to her freight upon
the Buffalo weight." Waydell v. Adams,
46 N. Y. S. 240.

Rhodes v. Newhall, 126 N. Y. 574, 27
N. E. 947, 22 Am. St. Rep. 859, was an
action against the consignee of a cargo
of wheat, under the bills of lading pro-
viding: "All deficiency in cargo to be
paid by the carrier and deducted from
the freight, and any excess in the cargo
to be paid for to the carrier by the con-
signee." The court, without questioning
the rule laid down in Ellis v. Willard, 9
N. Y. 529, Seld. Notes 242; Abbe v. Eaton,
51 N. Y. 410; Meyer v. Peck, 28 N. Y.
590; and similar cases — that "an ordinary
bill of lading is not conclusive as be-
tween the original parties, either as to
the shipment of the goods or the quan-
tity," and that, "as to those matters, it
operates merely as a receipt, and is open
to explanation on the trial by parol evi-
dence" — said: "This case is distinguish-
able in its facts from those considered in
the cases referred to. Here the parties
have provided by express language for
the particular contingency under this
contract. * * * The provisions fixing
the quantity of grain received, and pro-
viding a mode by which any deficiency or
excess in quantity shall be dealt with, do
not seem susceptible of any other effect
than to prescribe a rule by which the



3885 CARRIAGE OF PROPERTY. §§ 4270-4271

the contract, as they apply to the subject matter; they are to be construed to-
gether, and reconciled as far as possible, so as to extract from them the true
meaning and intent of the parties.^'^ Bills of lading, which, although containing
formal recitals of the weight of a commodity received, also contain a clause,
"Weight, measure and contents unknown," are not conclusive against the ves-
sel as to the exact weight; and the uncontradicted testimony of the master and
mate that the commodity was not weighed when taken on board, and that all
that was actually received was delivered, is sufficient to exonerate the ship from
liability for a prima facie 'shortage.^'^

In Actions for Freight. — The estimated weight -of a cargo stated in bills of
lading prepared by the shipper and signed by the master constitutes an agree-
ment binding on the parties for the purpose of computing freight, unless im-
peached by proof of a difference in the actual weight.*'^ In an action by the
charterers of a vessel against the shippers of the cargo for freight, a bill of lad-
ing, given by the charterers to parties from whom the shippers purchase*d the
cargo, and who placed it on board, is not conclusive as to the amount of goods
carried^"

Freight — Refunding Unearned Freight. — Bills of lading in the ordinary
form, which show prepayment of the freight, in connection with the established
rules of law, constitute a completed contract, binding the carrier to refund the
freight, if not earned; and, in the absence of fraud or mistake, parol evidence
is not admissible to change the conditions of stich contract."^

Operative as Evidence or Warranty of Title or Ownership. — See ante,
"As Evidence or Warranty of Title or Ownership," §§ 496-498.

Effect of Understating Quantity. — See ante, "Effect of Understating Quan-
tity," § 405.

Stipulations as to Value. — As to stipulations and bills of lading as to value,
see ante, "Stipulations as to \'"alue," § 511.

Freight and Demurrage. — See ante, "Freight and Demurrage," § 512.

Operation as Evidence of Carrier's Liability as Warehouseman. — As to
operation and effect of bills of lading for evidence of liability of carriers as
warehousemen, see ante, "As Evidence of Caarrier's Liability as Warehouse-
man," § 513.

§ 4271. Transfer. — Negotiability. — As to negotiability of bills of lading,
see ante. "Negotiability," §§ 514-518.

Transferability and Assignability. — See ante, "Transferability and As-
signaljility," § 519.

Mode of Transfer. — As to the mode of transferring bills of lading, see
ante, "Mode of Transfer," §§ 520-536.

Person Who May Make Transfer. — As to who may transfer bills of lading,
tee ante, "i'ersons Who May Alake Transfer," §§ 537-539.

Consideration. — See ante, "Consideration," § 540.

consisrnce can determine the amount of shippers have purchased it, and who are

freight and cliarges payal)le by him to accordingly, for this purpose, the ship-

the carrier." Waydell v. Adams, 46 N. per's agents, and the charterers of the

Y. S. 240. vessels have given a bill of lading for a

67. Shepherd v. Naylor (Alass.), 5 Gray certain quantity of merchandise, but spe-
501. cially stamped on its face. ''Weights and

68. Conflicting recitals. — The Seefah- measurement unknown," such charterers
rcr, i;;:; I'vd. 7!Ki. are not estopped from disputing the state-

69. Statements as to weight — Comput- ment of the l)ill of lading as to the amount
ing freight. — Symons'z'. 10, 406 Barrels of of merchandise, though the shippers have
Cement. \U', l''ed. 1017. settled with the vendors thereof on the

70. Conclusiveness in action for freight. basis of the quantity so stated. Waydell
—Waydell v. Adams, 46 N. Y. vS. 240. v. Adams, 46 N. Y. S. 2-10._

See ante, "In General," § 493. 71. Freight — Refunding unearned

When the cargo of a vessel has been freight. — De Sola v. I'omares, IIU Fed.
put on board by persons from whom the 373.



§§ 4271-4272 carriers. 3886

Effect of Transfer. — As to operation and effect of transfer of bills of lad
ing, see ante, "Effect of Transfer," §§ 541-576.

Effect of Statutes. — The Pennsylvania Act of Septemer 24, 1866, declaring
bills of lading negotiable, is not limited merely to bills representing goods in
transit to warehousemen or persons in like business J- But aside altogether
from statute, bills of lading may be so far negotiable that, by the indorsement
thereof by the consignees, the title to the goods is transferable to a bona fide
purchaser or pledgee for value." ^ By the well-settled principles of commercial
law, the consignee is thus constituted the authorized agent of the owner, who-
ever he may be, to receive the goods ; and by his indorsement of the bill of lad-
mg to a bona fide purchaser, for a valuable consideration, without notice of any
adverse interest, the latter becomes, as against all the world, the owner of the
goods. This is the result of the principle that bills of lading are transferable by
indorsement, and thus may pass the property. It matters not whether the con-
signee in such case be the buyer of the goods, or the factor or agent of the owner.
His transfer in such a case is equally capable of divesting the property of the
owner, and vesting it in the indorsee of the bill of lading."^ The principle that,
where one of two persons equally innocent of actual fraud must suffer from the
tortious act of a third, he who gave the wrongdoer the means of perpetrating the
wrong must bear the consequences of the act, has often been enforced by the
courts against a party who, by documentary evidence of title or otherwise,
I. as clothed his agent or any other person with the apparant absolute ownership
of personal property, and thus enable him to deal with it as if he were the
owner.'^'''

Breach, Mortgage or Collateral Security. — See ante, "Pledge, Mortgage
or Collateral Security," § ^17 .

Purchase or Discount of Draft with Bill of Lading Attached. — As to
purchasing or discounting drafts with bill of lading attached, see ante, "Pur-
chase or Discount of Draft with Bill of Lading Attached," §§ 578-587.

Deposit of Draft with Bill of Lading Attached for Collection. — As to
depositing draft with bill of lading attached for collection, see ante, "Deposit of
Draft with Bill of Lading Attached for Collection," § 588.

Duplicate and Triplicate Bills. — As to duplicate and triplicate bills of lad-
ing, see ante, "Duplicate and Triplicate Bills," § 589.

§ 4272. Effect on Connecting Carrier. — As to operation and effect, a
bill of lading as binding intermediate and terminal carriers, see ante, "Effect as
Binding Intermediate and Terminal Carrier," § 590.

72. Effect of statutes.— Munroe v. Phil- Co., 75 Fed. 545, writ of error disniissed
adelphia Warehouse Co.. 75 Fed. 545. See by stipulation 79 Fed. 999, 24 C. C. A.
Shaw V. Railroad Co., 101 U. S. 557, 25 685. .

L. Ed. 892. 74. Munroe v. Philadelphia Warehouse

73. Munroe v. Philadelphia Warehouse Co.. 75 Fed. 545.

Co , 75 Fed. 545. 75. Munroe v. Philadelphia Warehouse

Plaintiffs,' in Paris, advanced money Co., 75 Fed. 545; Calais Steamboat Co^.

upon goods in transit to this country, tak- Scudder (U. S.), 2 Black 372, 17 L.^ Ed.

ing a trust receipt, whereby the consign- 282; Pennsylvania R. Co.'s Appeal, 86 1 a.

ees agreed to hold the merchandise on 80; Robertson v. Hay, 91 Pa. 242; Miller

storage as plaintiffs' property until the v. Browarsky, 130 Pa. 372, 18 Atl. 643.
loan was repaid or otherwise provided In the case of Pollard v. Reardon, 33

for. Plaintiffs thereafter voluntarily put C. C. A. 171, 65 Fed. 848, it was said by

the bills of lading, indorsed in blank, into Judge Putman: "There is every reason

the hands of persons who obtained ad- found in the law of equitable estoppel

vances on them from defendants, in Phil- and in sound public policy for holding

adelphia, who were ignorant of plaintiffs' and no injustice is involved in holding,

claim. Held that, independently of stat- that, if one of two must suffer, it should

ute, the bill of lading were so far negotia- be he who voluntarily puts out of his

ble that defendants were entitled to hold hands an assignable bill of lading, rather

the goods as against the claim of plain- than he who innocently advances value

tiffs. Munroe v. Philadelphia Warehouse thereon."



3887 carriage: of property. §§ 4273-4277

§ 4273. Modification or Rescission. — As to modifying or rescinding bills
of lading, see ante, "Modification or Rescission," § 591.

§ 4274. Surrender, Discharge or Release. — As to surrendering, discharg-
ing or releasing bills of lading, see ante, "vSurrender, Discharge or Release,"
§592.

§ 4275. Actions on Bills of Lading. — As to actions to enforce rights aris-
ing under bills of lading, see ante, "Actions," §§ 593-602.

§§ 4276-4337. Transportation and Delivery— §§ 4276-4277. Gen-
eral Consideration — § 4276. Title, Custody and Control of Goods. — Title
and Rights of Consignor, Consignee or Third Person — Right to Maintain
Action against Carrier. — See ante, "Title, Custody and Control of Goods,"
chapter 9; post. "In General," § 4313.

Title and Rights of Carrier — Right to Maintain Action Respecting
Property Transported. — See ante, "Title, Custody and Control of Goods,"
chapter 9; post, "By Carrier," § 4312.

§ 4277. Liability as Warehouseman.''' — In the case of a carrier by wa-
ter, where the time of the arrival of the goods is uncertain the ship remains lia-
ble as a carrier until the consignee has had a reasonable time after notice to
remove the goods.'''" A steamship company, which, on the arrival of its vessel,
placed the cargo of a shipper in a warehouse on the wharf, w^hich it had the
right to use, and from there made delivery to the shipper, the goods not having
been stored for the account and risk of the shipper, remained responsible there-
for until delivery and is liable for a shortage due to some of the goods having



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 146 of 214)