the agent of the owner for freight as a general ship, and the notice had stated that she was to sail with convoy, this would amount to an engagement to that effect; and if she sails without convoy and be lost, the owner becomes answerable to the shipper in damages for the breach of that representation. (e) 3

(2.) Of the bill of lading.

In execution of the contract of charter-party, the master of the ship signs a bill of lading, which is an acknowledgment of the receipt of the goods on board, and of the conveyance of them

which he assumes. The bill of lading contains the quan*207 tity and marks of the merchandise, the names of the *ship

per and consignee, the places of departure and discharge, the name of the master and of the ship, with the price of the freight. The charter-party is the contract for the hire of the ship, and the bill of lading for the conveyance of the cargo; and though

Shackleford v. Wilcox, 9 Louis. 33. If goods are put on board a vessel without the knowledge of the master, he may put them ashore, for there is no implied contract of affreightment. But if they are not discovered until he sails, the better opinion is, that the master is not to leave them at an intermediate port without necessity, but to carry them to the port of destination. Ord. du Fret. art. 7; Pothier, de Charte-Partie, Nos. 10-12. Code de Commerce, No. 292; Boulay Paty, tom. ii. 373; Bonney v. The Huntress, Daveis, 82.

(e) Runquist v. Ditchell, 3 Esp. N. P. 64; Magalhaens v. Busher, 4 Campb. 54.

3 A representation that a ship will sail at a certain date, may be of the essence of the contract, and, as such, render the owner liable in damages for non-compliance therewith. Cranston v. Marshall, 5 Exch. 395. See, also, a dictum of Campbell C. J., in Denton v. Great Northern R. R. Co. 34 Eng. L. & Eq. 154; Howard v. Cobb, 19 Law Rep. 377; Gilkison v. Middleton, 40 Eng. L. & Eq. 295. A declaration of war by the country where the contract of affreightment was made against a foreign power, after the making of the contract, but before the expiration of the time for the defendant to load the vessel, is a good defence to an action for breach of the contract. Barrick v. Buba, 2 C. B. (N. S.) 563. And see Hicks v. Shield, 7 Ell. & Bl. 633.

A paper, signed only by the consignor, stating the shipment, and intrusted to the master, is not a bill of lading. Covill v. Hill, 4 Denio, 323. See Dows v. Greene, 16 Barb. (N. Y.) 72. Neither is an account for freight, usually called a freight-bill. Coosa River Steamboat Co. v. Barclay, 30 Ala. 120. A bill of lading is conclusive against the master in favor of a consignce not a party to the contract, who has advanced money on the faith of its statements as to the amount and condition of property shipped; but it is not conclusive against the owners as to property not actually shipped; to give bills of lading for property not shipped being beyond the master's authority. Sears v. Wingate, 3 Allen, 103; Hall v. Mayo, 7 Allen, 454; Ryder v. Hall, 7 Allen, 456. The words "in good order and condition" do not preclude proof that damage arose from defects of condition not apparent at the time of shipment. Nelson v. Woodruff, 1 Black, 156.

it be signed by the master, he does it as agent for the owners, and it is a contract binding upon them. (a) By the bill of lading, the master engages as a common carrier to carry and deliver the goods to the consignee, or his order, dangers of the sea excepted; (b) 1 and, by the common law, owners were responsible for damages to goods on board, to the full extent of the loss. But in England, by the statute of 53 Geo. III. c. 159, owners and part-owners of ships are not liable beyond the value of the ship and freight, even though the loss was occasioned by the misconduct of the master and a part-owner. (c) This statute assimilated the common law of England to the maritime law of France, and other commercial countries; and the great principle was, to limit the responsibility of part-owners to the amount of their respective capitals embarked in the ship. The value of the ship was to be calculated at the time of the loss, and the freight, in the statute, means all the freight, whether paid in advance or not. (d)

There are commonly three bills of lading; one for the freighter, another for the consignee, factor, or agent abroad, and a third is usually kept by the master for his own use. It is the document

(a) Beawes's Lex Mercatoria, 133, 142; Ferguson v. Cappeau, 6 Harr. & Johns. 394. See Abbott on Shipping, 5th Am. edit. Boston, 1846, pp. 396-417, the cases cited and considered at large on this subject.

(b) This was formerly the only exception in bills of lading; but in later times, says Lawes's Treatise on Charter-Parties, 317, captains and ship-owners have wisely extended the exception to the acts of God, public enemies, fire, and all other dangers and accidents of the seas, rivers, and navigation. Piracy is deemed a peril of the sea,

as see post, 216.

(c) The statutes of Massachusetts of 1818, c. 122, and of 1835, c. 32, are to the same purport.

(d) Wilson v. Dickson, 2 B. & Ald. 2.

1 Embezzlement is not a peril of the seas; and robbery and theft are not, unless they amount to piracy, and are committed when the ship is on the high seas. The act of God must be the proximate cause of the loss, to excuse the carrier. King v. Shepherd, 3 Story C. C. 349. See De Rothschild v. Royal Mail S. P. Co. 14 Eng. L. & Eq. 327; The Gold Hunter, 1 Blatch. & Howl. Adm. 300. Nor is accidental fire included among the "perils of the seas." Garrison v. Memphis Ins. Co. 19 How. U. S. 312; Airey v. Merrill, 2 Curtis C. C. 8.

2 They are liable to the extent of the value of the vessel, in case of collision, immediately before the accident; and, therefore, it is not material that the vessel instantly founders. Brown v. Wilkinson, 15 Mees. & W. 391; Walker v. Boston and Hope Ins. Cos. 14 Gray, 288; Spring v. Haskell, 14 Gray, 309; Pope v. Nickerson, 3 Story C. C. 498; The Mary Caroline, 3 W. Rob. Adm. 101, and 6 notes of cases, 536; Leycester ». Logan, 3 Kay & J. 446; Dobree v. Schroder, 6 Sim. 291; The American Steamship Co. v. Swanzy, 2 Kay & J. 660.

and title of the goods sent; and, as such, if it be to order or assigns, is transferable in the market. The indorsement and delivery of it transfers the property in the goods from the time of the delivery. (e) The bona fide holder of the bill of lading, indorsed by the consignee, is entitled to the goods, if he purchased the bill for a valuable consideration.3

*208

*Where there are several bills of lading, each is a contract in itself as to the holder of it, but the whole make only one contract as to the master and owners. If the several parts of the bill of lading be indorsed to different persons, a competition may arise for the goods; and the rule generally is, that if the equities be equal, the property passes by the bill first indorsed. (a) 1

(e) See vol. ii. [548-550.] This is also the law in France. Code de Commerce, art. 281. A shipping note of goods at sea does not amount to a bill of lading, and it is not indorsable so as to effect a change of property, and arrest the right of stoppage in transitu by the consignor. Akerman v. Humphery, 1 Carr. & Pa. 53.

(a) Caldwell v. Ball, 1 Term Rep. 205; 1 Bell's Com. 545. When goods are sent by a ship hired by a charter-party, the bills of lading are delivered by the master to the person by whom the ship is chartered. But if they are sent by a general ship, employed as a general carrier, each individual who sends goods on board receives a bill of lading for the same.

3 Schooner Mary Ann Guest, 1 Olcott Adm. 498. A bill of lading is both a receipt and a contract. As a receipt, it may, as between the original parties, be varied and explained by parol. Wolfe v. Myers, 3 Sandf. 7; Dickerson v. Seelye, 12 Barb. (N. Y.) 99; White v. Van Kirk, 25 Barb. (N. Y.) 16; Ellis v. Willard, 5 Seld. 529; O'Brien v. Gilchrist, 34 Maine, 554; Bissel v. Price, 16 Ill. 408; Goodrich v. Norris, 1 Abbott Adm. 196; Sears v. Wingate, 3 Allen, 103, 105; Berkley v. Watling, 7 Adol. & Ell. 29; Blanchard v. Page, 8 Gray, 287; Bates v. Todd, 1 Mood. & Rob. 106; Sutton v. Kettell, Sprague Decis. 309. Indorsement of the bill of lading transfers the property in the goods, but not the special contract for their carriage, so that the indorsee can bring an action upon it in his own name. Thompson v. Dominy, 14 Mees. & W. 403. Sce Dows v. Cobb, 12 Barb. (N. Y.) 310. The consignee is not bound by a mere memorandum on the margin of the bill of lading under which he receives goods, (e. g. of the unexpired lay days,) when it varies from the charter-party. Chappel v. Comfort, 10 C. B. (N. S.) 802.

1 When the master has signed bills of lading for cargo on board, his power is ex hausted; and he cannot, by signing bills for cargo not on board, charge his owner. Hubbersty v. Ward, 18 Eng. L. & Eq. 551; Grant v. Norway, 2 Eng. L. & Eq. 337; S. C. 10 C. B. 665; Gibbs v. Gray, 40 Eng. L. & Eq. 531. See Coleman v. Riches, 29 Id. 323; S. C. 16 C. B. 104; Schooner Freeman v. Buckingham, 18 How. U. S. 182. Per Willes J., in Gattorno v. Adams, 12 C. B. (N. S) 567; Sears v. Wingate, 3 Allen, 103; Blanchard v. Page, 8 Gray, 287. Because it is not within the general scope of the master's authority to sign bills of lading for any goods not actually received on board. Sears v. Wingate, supra; Shepherd v. Naylor, 5 Gray, 592; Hall v.

(3.) Of the carriage of the goods. When the ship is hired, and the cargo laden on board, the duties of the owner, and of his agent, the master, arise in respect to the commencement, progress, and termination of the voyage. Those duties are extremely important to the interests of commerce, and they have been well and accurately defined in the marine law. (b) 2

* When the voyage is ready, the master is bound to sail * 209

(b) See Abbott on Shipping, 5th. Am. edit. Boston, 1846, c. 5, part 4, p. 417, for a view of the authorities and the law, on the general duties of the master and owners on this very interesting head, respecting the preparation, the commencement, the course, and the completion of the voyage. The duties of the captain are described minutely in the French statute codes. Every ship must be inspected by the captain, under the forms prescribed, before she sails; and if he has no such official report of the vessel, he becomes responsible for every accident. He must keep a regular journal of events on the voyage; and the ordinances prescribe very sage regulations in case of the death of any seaman on board, touching his effects. He must be exact in providing the requisite ship's papers before he sails; such as the bill of sale, register, role d'equipage, bill of lading, and charter-party, process verbal, clearance at the customs, and a license to sail. He must be on board when the vessel breaks ground. He is answerable for damages even by cas fortuit, when the goods were on deck, unless he had the consent of the owner in writing, or it was a coasting voyage; and if he sails not in conformity to the regulations of the ordinances, he becomes responsible for all damages, and cannot invoke the exception of force majeure, when those regulations have not been observed. (Ord. de la Mar. art. 10, tit. Testament, art. 4; Ord. 1720, 1739, 1779; Code de Com. arts. 224, 225, 226, 228, 229; Code Civil, arts. 59, 86; 1 Emerigon, 374; Boulay Paty, tom. ii. 1-35.) The foreign marine ordinances usually make special provision for the proper storage of the cargo. We have seen in the preceding part of these lectures, that the master was responsible, as a common carrier, for the carriage and safe delivery of the goods; and in the case of Sprott v. Brown, in the Scottish Courts, (Bell's Com. vol. i. 557, note,) a large mirror was shipped from London to Edinburgh, in a case marked glass, and the master had assumed to carry it safe, and it was found broken, on delivery, without any known cause, and the master was held responsible.

Mayo, 7 Allen, 454; Ryder v. Hall, 7 Allen, 456; Arguendo, Hoar J., in Lowell Five Cents Savings Bank v. Inhabitants of Winchester, 8 Allen, 118, 119; Bulkley v. Naumkeag Steam Cotton Co. 24 How. U. S. 392, 393. But if the consignor does afterwards put the goods on board, the bill of lading attaches, just as if they had been on board at the time. Per Willes J., in Gattorno v. Adams, 12 C. B. (N. S.) 567; Shaw C. J., in Rowley v. Bigelow, 12 Pick. 307. As to what sort of delivery of the goods will make the carrier liable for their safety, see Trowbridge v. Chapin, 23 Conn. 595; Wright v. Caldwell, 3 Gibbs (Mich.) 51; Doyle v. Kiser, 6 Porter (Ind.) 242; Steamboat Galena v. Beals, 5 Wisc. 91. The Supreme Court of the United States seem to hold the doctrine that the ship is not bound in rem till the cargo is actually on board. Schooner Freeman v. Buckingham, supra; Vandewater v. Mills, 19 How. U. S. 82. See the Flash, 1 Abbott Adm. 67; Fearn ». Richardson, 12 Louis. An. 752. 2 See The General Steam Nav. Co. v. Slipper, 11 C. B. (N. S.) 493.

as soon as the wind and tide permit; but he ought not to set out in very tempestuous weather. (a) If, by the charter-party, the ship was to sail by a given day, the master must do it, unless prevented by necessity; and if there be an undertaking to sail with convoy, he is bound to go to the place of rendezvous, and place himself under the protection and control of the convoy, and continue, as far as possible, under that protection during its course. (b) He is bound, likewise, to obtain the requisite sailing instructions for the convoy; (c) but these covenants to sail with the first fair wind, and with convoy, are not conditions precedent to the recovery of freight, and a breach of them only goes to the question of damages. (d)

The master is bound, likewise, to proceed to a port of delivery without delay, and without any unnecessary deviation from the direct and usual course. If he covenants to go to a loading port by a given time, he must do it, or abide the forfeiture; (e) and if he be forced by perils out of his regular course, he must regain it with as little delay as possible. Nothing but some just and necessary cause, as to avoid a storm, or pirates, or enemies, or to pro

*

cure requisite supplies or repairs, or to relieve a ship in *210 distress, will justify a deviation from the regular course of the voyage. (a)1 If he deviates unnecessarily from the usual course, and the cargo be injured by tempest during the deviation, the deviation is a sufficiently proximate cause of the loss to entitle the freighter to recover; though if it could be shown that the same loss not only might but must have happened if there

(a) Roccus, note 56; Ord. of Rotterdam, art. 128; Abbott on Shipping, 5th Am. edit. Boston, p. 431.

(b) Gordon v. Morley, Str. 1265; Lilly v. Ewer, Doug. 72; Jefferies v. Legendra, Carth. 216.

(c) Webb v. Thompson, 1 Bos. & Pull. 5; Anderson v. Pitcher, 2 Ibid. 164; Victorin v. Cleeve, Str. 1250.

(d) Constable v. Cloberie, Palmer, 397; Davidson v. Gwynne, 12 East, 381. (e) Shubrick v. Salmond, 3 Burr. 1637; Higginson v. Weld, 14 Gray, 165.

(a) Roccus on Ins. note 52; Patrick v. Ludlow, 3 Johns. Cas. 10; Post v. Phoenix Ins. Co. 10 Johns. 79; Reade v. Com. Ins. Company, 3 Ibid. 352; Suydam v. Marine Ins. Company, 2 Ibid. 138; Marshall C. J., Mason v. The Ship Blaireau, 2 Cranch 257, note.

1 Charterers of a vessel, who by themselves or their authorized agent waive the terms of the charter-party, and consent to and order a deviation from the voyage agreed upon, are liable to pay the stipulated price, in like manner as if the voyage originally contemplated had been performed. Baker v. Pratt, 4 Allen, 158.