terms of the charter (e), or that it contains terms not in the charter (f), will not necessarily vary the contract between shipowner and charterer (g). But the parties to a charter may agree to vary it; and their agreement to vary may be expressed in the bill of lading given to the charterer (h). Case 1.-C. chartered A.'s ship, "master to sign bills of lading, at any rate of freight, and as customary at port of loading, without prejudice to the stipulations of the charter." C. shipped goods under the charter, and the master signed a bill of lading containing an exception of "negligence of the master and crew," which was not in the charter. The goods were lost through the master's negligence. Held, that the master had no authority to insert such a clause in the bill of lading, that it could not prejudice the charter, but was a mere receipt for the goods shipped, and that the shipowners were therefore liable (ƒ). Case 2.-A ship was chartered, the charter containing a power to the master to sign bills of lading without prejudice to the charter, and exceptions inter alia of "restraint of princes." A shipper, who was practically identified with the charterer, and fully aware of the charter, obtained a bill of lading containing only an exception of perils of the seas. The ship was delayed by restraint of princes. Held, that the contract of affreightment was to be found in the charter and bill of lading, and that the one exception in the bill of lading did not supersede the several exceptions in the charter (i). Case 3.-D., as agent for C., negotiated a charter with A. for a lump freight of £735, "the master to sign bills of lading at any rate of freight without prejudice to this charter." C. shipped goods on his own account, and the master signed a bill of lading, making the goods "deliverable to C. or assigns, paying freight as usual." C. indorsed this bill to D. in part payment of advances on the cargo. Held, that D., both as agent for C. and as having knowledge of the charter, was liable to A.'s lien for the whole freight due under the charter, and not merely for the freight in the bill of lading (k). Case 4.-C. agreed with A. to ship oranges by A.'s ship at 4s. 6d. per box. E., A.'s master, then signed bills of lading for oranges shipped by C. (e) The San Roman (1872), 3 L. R. Adm. 583, 592. ( Rodocanachi v. Milburn (1886), 18 Q. B. D. 67; Pickernell v. Jauberry (1862). 3 F. & F. 217; Caughey v. Gordon (1878), 3 C. P. D. 419. (g) See note (b), ante, p. 38. (h) For instances where such a variation has been effected, see Gullischen v. Stewart (1884), 13 Q. B. D. 317; Bryden v. Niebuhr (1884), 1 C. & E. 241; Davidson v. Bisset (1878), 5 Sc. Sess. C., 4th Ser. 709; and note below p. 40. (i) San Roman (1872), 3 L. R. Adm. 583, 592. An action in rem against the ship; though the charterer and shipper were nominally different firms, they were in fact almost identical, and the decision cannot, it is submitted, be supported, except on this ground. (k) Kern v. Deslandes (1861), 10 C. B., N. S. 205, based, in Fry v. Mercantile Bank (1866), L. R. 1 C. P. 689, on the position that D. really represented C.; and sustainable on that ground, sed quære, whether on the facts this was so. Small v. Moates (1833,, 9 Bing. 574, and Gledstanes v. Allen (1852), 12 C. B. 202, are similar cases. at 3s. 6d. per box. Held, that C. was liable for freight at 4s. 6d. and was not relieved by the bill of lading (7). Case 5.-Charterer (C.) agreed to load a full cargo at a freight of "60s. Fer ton in full." The master was paid by the shipowner a fixed salary "to include all charges and allowances." He signed a bill of lading making the goods" deliverable to order or assigns, he or they paying freight, &c., as per charter, with 5 per cent. primage for cash on delivery as customary." D., indorsees of the bill of lading as agents of C., received the cargo at the port of discharge. Held, that the master could not sue D. for primage either for himself or for the owner (m). Case 6.-A ship was chartered with the usual stipulations for freight, demurrage, and a cesser clause. The charterers shipped the cargo thenselves, accepting bills of lading, making the goods deliverable to themselves at the port of discharge, "they paying freight and all other conditions as per charter." In an action by shipowners against charterers as consignees under the bill of lading, for demurrage at the port of discharge. Held, they were liable, for the bill of lading only incorporated those clauses of the charter which were consistent with its character as a bill of lading, and di not therefore incorporate the " cesser clause (n). Note. The recent cases of Rodocanachi v. Milburn (0) and Leduc v. Ward (p), both in the Court of Appeal, have brought into prominence the view, that where a charter has been effected, and the charterer himself ships the cargo and takes a bill of lading for the shipment, such a bill of lading is, in the words of Lord Esher (o):-"only an acknowledgment of the receipt of the goods, unless there be an express provision in the documents (the charter and bill of lading), to the contrary." It is submitted that this is stated a little too broadly. It is clear that (1) Pickernell v. Jauberry (1862), 3 F. & F. 217, cf. De Laurier v. Wyllie (1889), 17 Sc. Sess. C., 4th Ser., 167, where C. was agent for the real shipper. (m) Caughey v. Gordon (1878), 3 C. P. D. 419. Here the master, without owner's authority, tried to introduce a new term into the contract, contrary to the charter, and which could only be for owner's benefit. Held, he could not. (n) Gullischen v. Stewart (1884), 13 Q. B. D. 317. See also Bryden v. Niebuhr (1884), 1 C. & E. 241 ; Davidson v. Bisset (1878), 5 Sc. Sess. C., 4th Ser., 709. If, instead of expressly incorporating some terms of the charter in the bill of lading, the owner had signed, and the charterers accepted a bill of lading, binding themselves to pay demurrage and freight, without any reference to the charter, this case seems also to shew that such a bill of lading would have overridden the cesser clause in the charter. Brett, L.J., in giving judgment against the charterers, said: "Pushed to its legitimate conclusion, the argument for the charterers would free them from liability for freight." The argument was pushed so far, it is submitted wrongly, by Denman, J., in Barwick v. Burnyeat (1877), 36 L. T. 250. In that case the charterers, who were also consignees, pleaded that the cesser clause, which exempted them by name, after the ship's loading and payment of advanced freight, from subsequent liability, relieved them from any` liability under a bill of lading accepted by them, making the goods deliverable "to order cr assigns, he or they paying freight for the same, and other conditions as per charter" and they were held not liable for freight. This case was not cited in Gullischen v. Stewart or Bryden v. Niebuhr, but seems directly contrary to the principle of those decisions, and must, it is submitted, be taken as overruled. in the cases of Gullischen v. Stewart (n), Bryden v. Niebuhr (n), and Davidson v. Bisset (n), the contract made between shipowner and charterer in the charter was in effect varied by the bill of lading, and in Gullischen v. Stewart (n) at p. 319, Bowen L.J., speaks of the argument for the charterer, as "rendering the bill of lading a nullity: it would be a nseless form except as an acknowledgment that the goods had been put on board." It may be said that in Gullischen v. Stewart and Bryden v. Niebuhr (n), the liability was not on the contract originally evidenced by the bill of lading, but on the contract implied from the charterer-consignee's taking the goods under the bill of lading by which he was consignee. But the Court of Appeal do not rest their judgment on this ground, for Brett, M.R., says (at p. 318):-" The contract by a bill of lading is different from the contract by a charter, and the defendants are sued upon the contract contained in the bill of lading. It would be absurd to suppose that their liability upon the bill of lading would cease (under the cesser clause), upon the loading of the cargo." At any rate, in the Scotch case of Davidson v. Bisset (q), no such question arose, and Lord Moncrieff there takes an intermediate view: "I should be disposed to say that in matters which relate to the details of the mode in which the contract of carriage is to be performed, the charter may be varied by the bill of lading, although the substance of the contract of affreightment is to be looked for in the charter." It is submitted that this limitation is unnecessary. If the parties to a charter wish to vary their contract, even in a substantial point, they can do so; and why not by a bill of lading? But there appears to be a very serious difficulty in the way of the theory, even thus limited. It is admitted that where a bill of lading given to a charterer varies from the charterparty, though, as between shipowner and charterer, the bill of lading may be "merely in the nature of a receipt for the goods, yet, where it is indorsed over, as between the shipowner and the indorsee, the bill of lading must be considered to contain the contract" (r). The difficulty of this view is that the indorsee by statute (s) has transferred to him by the indorsement all such rights and liabilities," as if the contract contained in the bill of lading had been made with him." But in the case of the indorsement from the charterer-shipper of a bill of lading varying from the charter, there is, on the doctrine of Lord Esher in Rodocanachi v. Milburn, no "contract contained in the bill of lading," but only a mere receipt." How, then, can the indorsement pass what does not exist? Does a contract spring into 66 (9) (1878), 5 Sc. Sess., 4th Ser., 709. (r) Leduc v. Ward (1888), 20 Q. B. D. at p. 479, per Lord Esher. existence on the indorsement, which had no existence before? And, if so, what statutory authority is there for such a "creation," as opposed to the "transference" ordained by statute? It may be said as in Leduc v. Ward (p. 479), that between shipowner and indorsee the bill of lading must be considered to contain the contract, "because the shipowner has given it for the purpose of enabling the charterer to pass it on as the contract of carriage in respect of the goods." But this view, which appears to rest on some sort of estoppel against the shipowner, fails in the numerous cases where the variation from the charter is in favour of the shipowner and against the shipper; and is also difficult to reconcile with the admitted law that a shipowner may repudiate against an indorsee for value a bill of lading, which his agent had no authority to give, as for goods not shipped (t). It is to be hoped that the English Courts will shortly have an opportunity of explaining the rather curious doctrine of a" springing contract," involved in Rodocanachi v. Milburn and Leduc v. Ward. The Scotch Courts had a similar point before them in De Laurier v. Wyllie (u) (1889), where C. who had made a charter containing a negligence clause, shipped some iron belonging to F. in his own name, taking a bill of lading without a negligence clause. The goods were then lost by negligence, and F. sued the shipowner. The majority of the full Court held that as the shipowners only knew C. in the transaction, the bill of lading was only a receipt to C., and did not become anything more by an indorsement to F. which did not pass to him the property, which he had already. Lord Adam (p. 184) assumes that indorsees for value could sue on the bill of lading alone, but offers no explanation of how the bill of lading contains a contract in their case, when it did not in the case of their indorsers. (b.) Where the Shipper is other than the Charterer. Where a ship, while under charter is still in the possession of the captain, as servant of the shipowner (v), shippers of goods other than the charterer, who receive bills of lading signed by the master or broker: I. If they are ignorant of the charter, will be held to have contracted with and can sue the shipowner and not the charterer (x). (1) Grant v. Norway (1851), 10 C. B. 665, and Article 20. (u) (1889), 17 Sc. Sess. C. 167. (r) Baumroll v. Gilchrest (1892), 1 Q. B. 253; (1893), A. C. 9. If the master of the ship is not the servant of the owner, the owner will not be liable on the master's bills of lading (same case). (x) Sandeman v. Scurr (1866), L. R. 2 Q. B. 86 (C.A.); The Figlia Maggiore They cannot be required to accept bills of lading in accordance with the charter, if such charter involves unusual or onerous terms, but can demand their goods back, if shipped, at the ship's expense (y). II. If shippers are aware of the charter, the master or broker in signing bills of lading will be held to have acted as the charterer's agent (z) and the shipper cannot sue the owner (a) on the contract, unless his liability is reserved by special provisions of the charter (b). The burden of proving the shipper's knowledge of the charter will be upon the shipowner (c). Where the ship is demised (d), or, being under charter, is out of the possession and control of the owner, as where under a time charter the captain is appointed, paid and dismissed by the charterer, the owner will not be liable for bills of lading signed by the master or broker, even though he be registered as managing owner (e). Unless there is a demise of the ship the owner will be liable to third parties, not parties to bills of lading, for (1868), L. R. 2 Adm. 106; Hayn v. Culliford (1878), 3 C. P. D. 410; Wagstaff v. Anderson (1880), 5 C. P. D. 171 (C.A.); The St. Cloud (1863), B. & L. 4. If the charter is a demise, they can sue the charterer in tort, he being in possession of their goods, and also in contract, if the master is his servant: Baumroll v. Gilchrest (supra). (y) Peek v. Larsen (1871), L. R. 12 Eq. 378; The Stornoway (1882), 51 L. J. Adm. 27. So also where there are a charter and a sub-charter, and the shipper only knows of one, he will not be bound by the other: Tharsis Sulphur Co. v. Culliford (1873), 22 W. R. 46; The Emilien Marie (1875), 44 L. J. Adm. 9. So also where a mate's receipt not agreeing with the terms of the shipping note is tendered: Armstrong v. Allan (1892), 8 T. L. R. 613. (z) The St. Cloud (1863), B. & L. 4, at p. 15; Newberry v. Colvin (1832), 1 Cl. & Fin. 283; Sandeman v. Scurr (1886), L. R 2 Q B., at pp. 97, 98; Blaikie v. Stembridge (1859), 6 C. B., N.S. 894. See per Bramwell, L.J., in Wagstaff v. Anderson, 5 C. P. D., at p. 177. "I do not think that because a bill of lading is signed by the captain as agent for the ship, a contract is made between the shipowner and shipper, the shipper having previously arranged with the charterers that they shall carry his goods. I think that the remedy of the shipper would be against the charterer, with whom he made the contract of affreightment, and that he would not get an additional remedy because he had taken a bill of lading from the shipowner." (a) Marquand v. Banner (1856), 6 E. & B. 232; Major v. White (1835), 7 C. & P. 41. (b) The Helene (1865), B. & L. 415; Sack v. Ford (1862), 32 L. J. C. P. 12. (c) The St Cloud (1863), B. & L. 4. (d) Article 2, above. (4) Baumvoll v. Gilchrest (1892), 1 Q. B. 253; (1893), A. C. 9. |