SECTION V.

THE BILL OF LADING AS A DOCUMENT OF TITLE.

Article 55.-Signature of the Bill of Lading.

AFTER the shipment of goods under a contract of affreightment, the bill of lading (a), which, where there is no charter, constitutes the most important evidence of the contract of affreightment, is signed by the carrier or his agent (b), and delivered to the shipper. Such signing does not give rise to any new contract, but only gives precision to one which had been previously made.

The signature and delivery of the bill of lading creates a document, subsequent dealings with which may have effects on the property in the goods shipped.

Article 56.-Indorsement of Bill of Lading.

Goods shipped under a bill of lading may be made deliverable to a named person, G., or to a name left blank, or to bearer," and in the first two cases may or may not be made deliverable" to order or assigns."

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Bills of lading making goods deliverable "to order," or "to order or assigns" are by mercantile custom negotiable. instruments, the indorsement and delivery of which may affect the property in the goods shipped (c).

(a) The shipper has usually obtained the printed form of the bill of lading used by the shipowner, and has filled in the details before presenting it; it is checked by the shipowner or his broker and then signed.

(b) Usually in London for steamers, the loading broker, or the person doing his work; for sailing ships, usually the master; abroad, either the branch house, or agent of the line, or the master. Difficulties experienced by a goods owner suing a shipowner in proving the agency of the person signing the bill of lading may frequently be avoided by suing in tort.

(c) Custom of merchants, as found in the special verdict in Lickbarrow v. Mason (1794), 5 T. R. 683; discussed by Lords Selborne and Blackburn, in Sewell v. Burdick (1884), 10 App. C. 74; and in Blackburn on Sale, 1st ed. pp.

282-289.

K

Indorsement is effected either by the shipper or consignee writing his name on the back of the bill of lading, which is called an "indorsement in blank," or by his writing "Deliver to I. [or order], F.," which is called an "indorsement in full" (d).

So long as the goods are deliverable to a name left blank, or to bearer, or the indorsement is in blank, the bill of lading may pass from hand to hand by mere delivery, or may be re-delivered to the original holder without any indorsement, so as to affect the property in the goods (e).

But the holder of the bill may at any time fill in the blank either in the bill or indorsement, or restrict by indorsement the delivery to bearer, such power being given to him by the delivery to him of such a bill of lading (d).

Semble. A bill of lading which does not contain some such words as " to order," or "to order or assigns," or which is indorsed in full, but without such words (f), is not a negotiable instrument (g).

Note. Where goods are to be carried under a through bill of lading, separate bills of lading are sometimes signed for the conveyance of goods on subsequent stages of the transit. In these bills of lading the company, or the shipowner signing the through bill of lading appears as the shipper, and there is indorsed on the bills, "Delivery to be made to the holders of the original bill of lading duly indorsed, per ss. S., from X., dated This is done to prevent conflicting claims to the goods from two sets of bills of lading for the same goods being in circulation.

Article 57.-Effects of Indorsement.

The indorsement and delivery of a bill of lading by the person entitled to hold it have effects depending partly on custom and partly on statute.

(d) See note (c), ante, p. 129.

Per Lord Selborne in Sewell v. Burdick, 10 App. C. at p. 83. The inference that an assignment of property is contemplated will be weaker from an indorsement in blank than from one in full.

(f) I.e., "deliver to A."

(4) Henderson v. Comptoir d'Escompte de Paris (1873), L. R. 5 P. C. 253, at p. 260.

I. By mercantile custom (h) such an indorsement and delivery of a bill of lading, made after shipment of the goods and before complete delivery of their possession has been made to the person having a right under the bill of lading to claim them (i), transfers such property (j), as it was the intention of the parties to the indorsement to transfer (k).

II. By the Bills of Lading Act (1), the indorsee of a bill of lading, to whom under the particular circumstances of the indorsement the property in the goods shipped under the bill of lading passes, has all the rights and duties of the original shipper under the contract evidenced in the bill of lading (m).

III. By the Admiralty Jurisdiction Act, indorsement of the bill of lading may give to the indorsee rights of action in the Court of Admiralty against the carrying ship (n).

Article 58.-Effects of Indorsement on Property by Mercantile Custom.

The presumed intention of the parties in indorsing a bill of lading may vary widely according to the circumstances. may be an intention:

It

1. To absolutely transfer the property in the goods (0), subject only, if the price be unpaid, to the right of the unpaid vendor (p) to stop the goods in their transit to the vendee, as a means of re-asserting his lien on the goods for the price unpaid, known as the right of Stoppage in transitu (q).

(h) As stated in the special verdict in Lichbarrow v. Mason (1794), 5 T. R. 683. See note (c), ante.

(i) Barber v. Meyerstein (1870), L. R. 4 H. L. 317. Wrongful delivery of the goods, apart from the bill of lading, does not render the bill ineffective as a symbol of property; and its indorsement, even after such wrongful delivery, may still pass the property: Short v. Simpson (1866), L. R. 1 C. P. 248.

(j) Strictly speaking, the property is transferred, not by the indorsement, but by the contract under which the indorsement is made: see per Lord Bramwell, 10 App. C., at p. 105.

(k) Sewell v. Burdick (1884), 10 App. C. 74, and see Article 58.

(1) (1855), 18 & 19 Vict. c. 111, vide post, Appendix III.

(m) Sewell v. Burdick, vide supra, and see Article 75. The indorsee does not obtain any rights and duties of the original shipper, which are not derived from the contract evidenced in the bill of lading. Leduc v. Ward (1888), 20 Q. B. D. 476.

(n) (1861), 24 Vict. c. 10, § 6, vide post, Article 77, and Appendix III.

(0) See Article 59.

(p) See Article 60.

(1) See Articles 63-71.

2. To pass the property on certain conditions, as on the acceptance of bills of exchange for the price (r).

3. To effect a mortgage of the goods as security for an advance (s).

4. To effect a pledge of the goods for the same purpose (t).

5. To pass no property at all in the goods (u).

Note. The decision in Sewell v. Burdick (x) has made it clear that the effect of the indorsement of a bill of lading depends entirely on the particular circumstances of each indorsement, and that there is no general rule that indorsement passes the whole legal property in the goods, as had been strongly contended by Brett, M.R., (y), in the Court below, and in Glyn, Mills, & Co. v. East and West India Docks (z). In the light of this decision, the special verdict in Lickbarrow v. Mason (a), which recites that "the property is transferred by indorsement," must be read "the property which it was the intention to transfer is transferred; " (b) and many obiter dicta on the subject, such as the statement of Lord Hatherley in Barber v. Meyerstein (c), that, when goods are at sea, assigning the bill of lading is parting with the "whole and complete ownership of the goods," and of Lord Westbury in the same case (c), that the transfer of the bill of lading for value "passes the absolute property in the goods," must be taken as overruled, or strictly limited to the circumstances of the particular case (d).

Article 59.-Intention to transfer the whole Property by
Indorsement of the Bill of Lading.

Property in goods at sea may be completely passed by indorsement and delivery of the bill of lading under which they are shipped, in exchange for payment of the price.

Note 1.-The question of property in goods shipped is not of great importance to the shipowner, as he is safe in delivering to the holder of the first bill of lading duly presented, if he has no

(r) See Articles 61, 62.

(s) See Article 72.

t) See Article 73.

(") See Article 74.

(x) (1884), 10 App. C. 74.

(y) 13 Q. B. D., at p. 167.

(z) (1880), 6 Q. B. D., at p. 480.

(a) (1794), 5 T. R. 683.

(b) As suggested by Lord Selborne, 10

App. C., at p. 80.

(c) (1870), L. R. 4 H. L. 325, 335. (d) See 10 App. C., at pp. 81, 104.

notice or knowledge of other claims (e), while if he has such knowledge, though probably in strict law he must either deliver at his peril to the rightful claimant, or interplead (f), yet in practice he can almost always obtain in exchange for delivery of the goods an indemnity against legal proceedings, which will render him virtually safe. For this reason I have not gone minutely into the numerous cases on this subject. An exhaustive discussion of them will be found in Benjamin on Sale, 3rd ed. pp. 328–354, and a summary of the results at p. 352. Part of this summary has been approved by the House of Lords (g), and a similar summary is to be found in the judgment of Cotton, L.J., in Mirabita v. Ottoman Bank (h).

Note 2.-The property in goods shipped under a bill of lading may be passed without indorsement of such bill (i), and it would seem that subsequent indorsement of the bill of lading will have no effect. But see Kemp v. Falk (j). On the effect of a sale of goods at sea C. F. I. (cost, freight and insurance), see Delaurier v. Wyllie (k).

Article 60.—Unpaid Vendor's Securities.

Where goods are shipped by a vendor, in pursuance of his buyer's order, for delivery to the buyer, such shipment prima facie passes the property to the buyer, delivery to the ship being equivalent to delivery to him (7).

But under these circumstances the unpaid vendor has the right to stop the goods in transitu (m), though they are made by the bill of lading deliverable to the vendee (n).

An unpaid vendor frequently insists on more than this security for the price, and deals with the bill of lading so as to prevent the property in the goods from passing to the vendee on their shipment, either by :

(I.) Reserving to himself the jus disponendi (o).

(II.) Conditional indorsement of the bill of lading (p).

(e) Glyn Mills v. West India Dock Co. (1882), 7 App. C. 591; see Article 125. (f) Per Lord Blackburn, 7 App. C., at p. 611.

(g) Shepherd v. Harrison (1871), L. R. 5 H. L. 116, at p. 127.

(h) (1878), 3 Ex. D., at p. 172.

(i) Meyer v. Sharpe (1813), 5 Taunt. 74; Nathan v. Giles (1814), 5 Taunt.

558.

(j) (1882), 7 App. C. 573.

(k) (1889), 17 Sc. Sess. C. 167.

(Shepherd v. Harrison (1871), L. R. 5 H. L. 116, at p. 127; and see Article 68. (m) Vide pot, Article 63.

(n) Ex parte Banner (1876), 2 Ch. D. 278, at p. 288.

(0) See Article 61.

(P) See Article 62.