cannot prejudice the contract in the charter by inserting exceptions in the bill of lading which go further than the charter (0).

Case 1.-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. at 38. 6d. per box. Held, that C. was liable for freight at 4s. 6d. and was not relieved by the bill of lading (p). Submitted, that a bona fide holder for value of the bill of lading would only have been liable for freight at 3s. 6d., the rate of freight being a matter within the master's ordinary authority (9).

Case 2.-A. chartered a ship to C., at a certain freight, "the owner or his agent to sign bills of lading at any rate of freight, without prejudice to this charter." D., C.'s agent abroad, advanced money to the ship, and in consideration of such advance the master shipped goods from D., giving a bill of lading "shipped by D., to be delivered to order or assigns, paying freight to D.'s agent G., as per margin." Held, that the master had no authority to make such a contract, and that A. was not bound by it to G., consignees of the cargo (r).

Case 3.-A. chartered a ship to C., "the master to sign bills of lading as presented, without prejudice to the charter." C. shipped goods, and presented bills in the ordinary form, which the master refused to sign unless they contained the clause: "The vessel not liable for duties on cargo, by non-arrival before July 1." Held, such refusal was a breach of the charter (s).

Case 4.-C. chartered a ship, "the 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." The master signed and delivered to C. bills of lading including an exception not in the charter. Held, that he had no authority, by so doing, to vary the contract between shipper and charterer; and that the shipowner was not freed from liability for loss through such excepted peril (t).

Article 21.—Statutory Liability of Persons signing Bill of

Lading.

In the hands of a consignee or indorsee for value (x) the bill of lading is by statute (u) conclusive evidence that the goods represented by it to be shipped were actually shipped, as against the person signing it (v), unless either (1) the

(0) Rodocanachi v. Milburn (1886), 18 Q. B. D. 67; in which case it was suggested by Lord Esher that the clause "captain to sign bills of lading . . . as customary at port of loading" referred only to the customary method of signature at port of loading; Lindley and Lopes, L.JJ., treated it as meaning "as usual.” (p) Pickernell v. Jauberry (1862), 3 F. & F. 217.

(q) See Mitchell v. Scaife (1815), 4 Camp. 298.

(r) Reynolds v. Jex (1865), 7 B. & S. 860.

(s) Jones v. Hough (1879), 5 Ex. D. 115.

(t) Meyer v. Dresser (1864), 16 C. B., N.S. 646.

(u) 18 & 19 Vict. c. 111, s. 3 (1855): see Appendix III., post.

(e) Formerly almost always the master, but now the broker usually signs

holder took the bill with actual notice that such goods were not on board; or, (2) the signer shews that the mistake was not occasioned by his default, but was wholly occasioned by the fraud of the shipper, holder, or some person under whom the holder claims (w).

Note.-The bill of lading is not conclusive as between the signer and the shipper, nor as between the owner and the shipper (x), nor as between owner and holder for value (y), unless the owner signs it himself or by a servant (z). Thus, where the master who signs is also part owner, and sues on the bill, the statute applies against him (y). But in all these cases the statements in the bill of lading are primâ facie evidence, which the person disputing them must disprove (a). Master and broker obtain some protection from the clause "weight, value and contents unknown" (Article 52).

Case.-F. shipped on board A.'s ship seventy and seventy-five quarters of wheat, and received two bills of lading signed by E., A.'s master; F. indorsed these bills to I. F. then by fraud induced E. to sign another bill for 145 quarters, which he indorsed to H. Submitted (b), that H. would have had no action against E., if he had delivered the wheat to I. under the first bill.

Article 22.-Through Bills of Lading.

A "through bill of lading" is one made for the carriage of goods from one place to another by several shipowners or railway companies.

bills for steamships: Hayn v. Culliford (1878), 3 C. P. D. 410. "The person signing" does not mean only the person who actually affixes the signature, but includes a person for whom a clerk or servant signs in a purely ministerial capacity, but not a person for whom an agent who has discretionary powers, such as a master or broker, signs: Thorman v. Burt (1886), 54 L. T. 349. For an action by indorsee against the master signing a bill of lading, see Smith v. Tregarthen (1887), 56 L. J. Q. B. 436. For an action by shipowner against master for negligence in signing a bill of lading, see Stumore v. Breen (1886), 12 App. C. 698.

(w) 18 & 19 Vict. c. 111, s. 3: see Appendix III., post. Mistake or negligence of the master, not fraudulent, will not enable the indorsee to sue, if there has been fraud either of the shipper, his agent, or his vendor: Valieri v. Boyland (1866), L. R. 1 C. P. 382. See also Pyman v. Burt (1884), 1 C. & E. 207, where the master's signature was obtained by pressure of the shipper's clerk, the authority of which was doubted by Lord Esher in Lishmann v. Christie (1887), 19 Q. B. D. 333.

(x) Bates v. Todd (1831), 1 M. & R. 106.

(y) Meyer v. Dresser (1864), 16 C. B., N.S. 646.

(z) See ante, note (v), p. 54.

(a) McLean v. Fleming (1871), L. R. 2 Sc. App. 128; Jessel v. Bath (1867),

L. R. 2 Ex. 267; Grant v. Norway (1851), 10 C. B. 665.

(6) On authority of Hubbersty v. Ward (1853), 8 Ex. 320, which see.

The contract in such bill of lading to carry for the whole distance is one contract made with the company signing and delivering the bill of lading (c), and in the absence of express provisions that company would be liable for loss occurring on any part of the journey (d).

The freight also, if paid in advance, is usually payable for the whole journey, and, should the goods be lost on one of the stages, the shipper is not entitled to a pro rata return of the freight for other stages, as if the consideration had failed (e).

Semble, that the companies, other than the company which signs and delivers the bill of lading, are not liable and cannot sue (f) on the contract of carriage contained in such bill of lading, unless the signing company had authority to act in their behalf (g), or its action was afterwards ratified by them. But they will be liable as carriers for goods shipped on board their ships, or to an action of tort for negligent dealings with such goods (h).

(c) G. W. R. v. Blake (1×62), 7 H. & N. 987; Thomas v. Rhymney R. Co. (1871), L. R. 6 Q. B. 266; Bristol & Exeter Co. v. Collins (1859), 7 H. L. C. 194; Webber v. G. W. R. (1865), 34 L. J. Ex. 170.

(d) Such an express provision usually exists; e.g., "when any of the several companies connected with the transit of the goods shall have delivered the goods or any of them, to any other carrier to be transported to their destination, its liability shall cease altogether, such company being liable only for such loss or damage as may occur while the goods are in its possession, and for which it is legally liable. On its effects, see Forles v. G. W. R. (1852), 7 Ex. 699.

(e) Greeves v. West India Co. (1870), 22 L. T. 615. The case is frequently expressly provided for by the clause, "freight to be considered earned, ship lost or not lost, at any stage of the entire transit."

(f) Leech v. Glynn (1890), 6 T. L. R. 306.

(g) Such authority must be a question of fact in each case. It will not be proved by a statement in the bill of lading that the signing company signs as their agent, though such statement, if false, may subject the signing company to an action for misrepresentation of authority. The companies concerned will probably always acknowledge the through bill of lading, and claim its protection. See as to this an instructive article by Mr. H. D. Bateson, in the Law Quarterly Review, October 1889, p. 424, which raises the further points:-(1) Whether a Through Bill of Lading is a Bill of Lading within the Bills of Lading Act, 1855, so that its indorsement passes contractual rights to the indorsee; (2) the absence in the Through Bill of Lading of any evidence of shipment on a ship at an intermediate stage of the voyage; (3) by what law or laws the different parts of the transit are regulated. Shipowners at Liverpool have (June 1889), adopted a system by which the ship shall in addition give a Ship's Bill of Lading, referring to the Through Bill of Lading, but not negotiable apart from it, as secured by a restrictive stamp (vide ante, p. 8), and that the Law of the Flag shall govern ocean transit.

(h) Self v. L. B. & S. C. R. (1880), 42 L. T. 173; Foulkes v. M. D. R. Co. (1879), 4 C. P. D. 267.

Note. The through bill of lading sometimes incorporates the provisions of another bill of lading of one of the carrying companies; e.g., "All responsibility of the O. line is to cease on transhipment at Y., or on delivery of goods to the agents of the U. line at Y. for the purpose of transhipment, which company shall then be alone responsible on the terms of their bill of lading for the intercolonial trade." In some cases where the bulk of the carriage is done by one company, but goods are collected at foreign or out-ports before the commencement of the engagement, or delivered at foreign or out-ports on its termination, clauses like the following are used :—

or

"Goods shipped at foreign or out-ports may be conveyed to London by steamer and rail, craft, sailing vessel, and thence by rail to Southampton, or by steamer, craft, and sailing vessel to Southampton direct, always at merchant's risk, but ship's

expense.

and

or

or

"Cargo deliverable at foreign or out-ports will be landed or conveyed by rail, a craft, steamer, sailing vessel, to port of destination, at merchant's risk throughout. Freight will be chargeable at the highest rate of exchange current in London."

Another clause is: "That any loss, damage, or detention of goods in this through bill of lading for which the carrier is liable must be claimed against the party only in whose possession the goods were when the loss, damage, or detention occurred. These through goods are also subject to all conditions of the company or companies which assist in their conveyance; and all the provisions and conditions of this through bill of lading apply to said carriers and shipowners respectively. This bill of lading is also subject to all the conditions in the ordinary receipts given by each company respectively over whose line the goods carried by this bill of lading pass to their destination."

For discussion of a through bill of lading for sea and land carriage, see Moore v. Harris (i).

Who may sue and be sued for negligent carriage of goods: see Articles 92, 93.

Who may sue in rem, under the Admiralty Jurisdiction Act: see Article 77.

Who may sue and be sued for freight: see Articles 148, 149.

Who may sue and be sued for general average contributions: see Articles 118, 119.

Who may sue and be sued for demurrage: see Articles 134, 135.

() (1876), L. R. 1 App. C. 318.

SECTION III.

REPRESENTATIONS AND UNDERTAKINGS IN THE CONTRACT.

Article 23.-Representations and Conditions Precedent. REPRESENTATIONS inducing the signing of a charter are either::

(1.) embodied in the charterparty.

(2.) not embodied in the charterparty.

False representations not embodied in the charter may be material in civil cases, either as estopping the party making them from denying their truth, or as rendering the contract voidable at the instance of the party relying on them. If they are fraudulent (a), they will also give rise to an action in tort of deceit against the party making them.

Representations embodied in the charter are either of facts as then existing, as of the then position of the ship, or of her class on the register; or are promises for the future, as that a ship will be ready to load by a given day.

Such representations are either:

I. Conditions Precedent, to be regarded as essential parts of the contract, which is conditional on their truth. Their breach therefore entitles the other party to repudiate the charter, or

II. Terms of the Contract which one party has promised to be true. Their breach only gives rise to an action for damages, for their truth is not of such importance to the

(a) For a full discussion of the different effects of Misrepresentation and Fraud see Pollock on Contracts, 5th ed., pp. 502 et seq. For an authoritative definition of "fraud," see Derry v. Peek (1889), 14 App. C. per Lord Herschell, at p. 374. "Fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it is true or false.