New York, taking from it bills of lading in which the vessel undertook to deliver it there to his order. For the purpose of obtaining money to pay for the cotton, the purchaser made his draft upon his firm in New York on whose account the cotton had been bought, and attached the bills of lading to it. The draft with the bills of lading attached was discounted by a Georgia bank, and the bills of lading were indorsed to the order of the bank's agent in New York to secure the payment of the draft. The draft and bills of lading were at once forwarded to the New York agent, who procured the acceptance of the former by the firm. Before the draft became due the vessel arrived at New York and gave notice to the firm there of the arrival of the cotton. It had before regularly brought cotton in the same way to the firm, which was considered solvent, and the master knowing that they were the parties for whom the cotton was intended, and having no information or knowledge from the bank's agent or from any other source of any other consignee or claimant, delivered the cotton to them, taking their receipt for it. Some two weeks or more afterwards, the draft falling due and not being paid, the cotton was demanded of the owners of the vessel by the bank's agent. It was claimed that the delivery thus made was justifiable under the circumstances and that the vessel had thereby discharged its obligation; but it was held that though it had been made in good faith and in total ignorance of any outstanding claim to the cotton, the delivery was nevertheless in breach of the contract of affreightment, and that the agent of the bank as libelant could subject the vessel which was bound for its proper delivery at all events. "It is no excuse, say the court, "for a delivery to the wrong person that the indorsee of the bills of lading was unknown, if indeed he was, and that notice of the arrival of the cotton could not be given. Diligent inquiry for the consignee at least was a duty, and no inquiry was made. Want of notice is excused when a consignee is unknown or is absent or cannot be found after diligent search. And if, after inquiry, the consignee or indorsees of a bill of lading for delivery to order cannot be found, the duty of the carrier is to retain the goods 202 THE LAW OF CARRIERS. [§ 185. until they are claimed, or store them prudently for and on account of the owner. He may thus relieve himself from a carrier's responsibility. He has no right under any circumstances to deliver to a stranger.''s This decision has been followed in many cases.9 Sec. 185. Same subject-Pledge of bill of lading to shipper's order-Time draft attached.-If the draft attached to the bill of lading which has been indorsed to a bank as collateral security for an advance of money be a time draft, the very nature of such a transaction, it is said, suggests that the consignor contemplated an executory contract of sale, to become complete on an acceptance of the draft by the drawee. Unless, therefore, it is expressly stipulated that the bill of lading is intended to secure payment of the draft, it is held that the title of the bank as pledgee will become extinguished on the acceptance of the draft by the drawee, and that the drawee will at once become entitled to the goods. And if, after an acceptance of such a draft by the drawee, the bank should continue to hold the bill of lading pending payment of the draft, the carrier will nevertheless be justified in making delivery to the drawee, and cannot thereafter, because of the drawee's failure to pay the draft at maturity, be subjected to liability for having made delivery without requiring the drawee to produce the bill of lading.10 8. The Thames, 14 Wall. 98. 9. Pennsylvania R. Co. v. Stern, 119 Penn. St. 24; North Penn. R. Co. v. Commercial Bank, 123 U. S. 727; Boatmen's Bank v. Railroad Co., 81 Ga. 221; Bass v. Glover, 63 Ga. 745; Furman v. Railroad Co., 106 N. Y. 579; Joslyn v. Grand Trunk R'y, 51 Vt. 92; Libby v. Ingalls, 124 Mass. 503; Holmes v. Bailey, 92 Penn. St. 57; Halsey v. Warden, 25 Kan. 128; Commercial Bank v. Pfeiffer, 22 Hun. 327; Walters v. Railroad Co., 66 Fed. 862, 14 C. C. A. 267, 30 U. S. App. 25; The Ravensdale, 75 Fed. 413; s. c. 75 Fed. John O'Rourke, ilton Cohen, '23. ittees were appointed 272 Flatbush Extension Brooklyn, N. Y. § 186.] THE BILL OF LADING. 203 Sec. 186. (§ 131a.) Same subject-Invoice alone not evidence of title.-So S. & S. shipped goods consigned to themselves. At the same time they wrote a letter to the purchaser stating that they had shipped the goods and drawn on him "as per arrangements" and requested that the draft be protected. Inclosed in the letter was an invoice of the goods which stated on its face that the goods were "shipped from Bay City, Mich., via F. & P. M. R. R. to B. L. with draft." They also drew on the purchaser for the price, attached the bill of lading to the draft, and sent the draft on for collection. The purchaser exhibited the invoice and letter to the agent of the carrier and received the goods. He failed before paying the draft and the carrier was held liable.11 "The title to the property," said Paxson, J., "remained in the consignors until delivery in accordance with the conditions. Bills of lading are symbols of property, and when properly indorsed operate as a delivery of the property itself, investing the indorsees with a constructive custody which serves all the purposes of an actual possession, and so continues until there is a valid and complete delivery of the property under and in pursuance of the bill of lading and to the persons entitled to receive the same.12 There could be no delivery except in accordance with the bill of lading.13 The invoice alone furnishes no proof of title."'14 Sec. 187. (§ 131b.) Same subject-Direction to notify certain person does not dispense with production of bill of lading. -It is a common practice, where the bill of lading provides for delivery to the consignor's order and has gone forward attached to a draft on the purchaser or other person by whom payment is to be made, to give directions that such person be notified of the arrival of the goods in order that he may pay the draft and 11. Pennsylvania R. Co. v. Stern, 119 Pa. St. 24. 12. Citing Hieskell v. National Bank, 89 Pa. St. 155. 13. Citing Dows v. Milwaukee Bank, 91 U. S. 618; Stollenwerk v. Thatcher, 115 Mass. 224. 14 Citing Benj. on Sales, § 332; Dows v. Bank, supra; See also, Delta Bag Co. v. Kearns, 112 III. App. 269. procure the goods. Such a direction to notify, however, does not dispense with the production of the bill of lading as in other cases, and if the carrier delivers the goods to the person so to be notified without requiring him to produce the bill of lading, he will be liable for any loss thereby incurred.15 The very presence of the word notify in such a case, it is said, shows that the person named is not intended as the consignee.16 And although it has been the custom for the carrier to permit the person to be notified to stop the goods at a point short of their destination and there receive them without producing the bill of lading, such custom, as against a bona fide transferee of the bill of lading, will 15. Furman v. Railroad Co., 106 N. Y. 579; North Penn. R. Co. v. Commercial Bank, 123 U. S. 727; Joslyn v. Grand Trunk R'y, 51 Vt. 92; Libby v. Ingalls, 124 Mass. 503; National Bank v. Railway Co., 25 S. C. 216; Myrick v. Railroad Co., 107 U. S. 102; Railroad Co. v. Southern Bank, 41 Ill. App. 287; Walters v. Railroad Co., 63 Fed. 391, s. c. 56 Fed. 369, affirmed, 66 Fed. 862, 14 C. C. A. 267; Railroad Co. v. Berry, 116 Ga. 19, 42 S. E. Rep. 371, citing Hutchinson on Carr.; Union Stock Yards Co. v. Westcott, 47 Neb. 300, 66 N. W. Rep. 419, citing Hutchinson on Carr.; Wright, etc. Co. v. Warren, 177 Mass. 283, 58 N. E. Rep. 1082; General Electric Co. v. Railway Co., S. Car. 51 S. E. Rep. 695; Isham v. Erie R. Co., 98 N. Y. Supp. 609. 16. Furman V. Railroad Co., supra; Atlantic Nat'l. Bank v. Railway Co., 106 Fed. 623; Railroad Co. v. Lowe, 101 Ga 320, 28 S. E. Rep. 867, citing Hutchinson on Carr. In Furman v. Railroad Co., supra, goods had been delivered for transportation, over a long line of steamships and railroads, from Norfolk, Va., to Denver, Col. The goods were marked "Y," and the bill of lading given by the initial carrier recited the receipt of the goods "marked Y-order notify Zucca Bros. to be transported to Denver, Col." The goods finally came into the hands of the defendant, the last carrier in the line. With the goods the defendant received what was known as a "transfer sheet," in which the consignee was named as follows: "Consignee, "Y,' order Hup, Zucca Bros., Denver, Col.," the word notify having, through the carelessness of some previous carrier, been changed to Hup. When the goods reached Denver they were delivered to Zucca Bros., upon their order, without the production of the bill of lading. The consignors meantime had drawn on Zucca Bros., attaching the bill of lading indorsed by them, and the draft had gone forward for collection. The goods not being paid for, the consignors brought this action against the defendant to recover their value, and were successful. The court of appeals of New York held that the persons entitled to receive the goods furnish the carrier with no excuse for making delivery at an intermediate point to the person to be notified without requiring him to produce the bill of lading.17 Sec. 188. (§ 131c.) Same subject-Duplicate bills of lading to consignor-Possession of one duplicate not indorsed. The practice also prevails of taking in the name of the consignor bills of lading in duplicate, one of which is to be indorsed and attached to a draft for the payment of the price, while the other, not indorsed, is sent forward to the person who is to receive and pay for the goods, as notice of their shipment. Such a delivery of the unindorsed duplicate, where the intention is not thereby to part with the title to the goods, does not justify a delivery without the indorsement or order of the consignor. Thus in a case1s decided by the supreme court of Iowa, it appeared that the Elgin, Iowa, Canning Company had received an order for goods from one Evans, residing in Pueblo, Colorado. Not being acquainted with Evans, and not wishing to sell the goods to him. on credit, the company delivered the goods to the first of two connecting carriers, consigned to itself at Pueblo, and took two receipts or bills of lading, which were in fact duplicates, but neither of which showed that the other had been issued. The canning company drew a draft on Evans, through a bank in Pueblo, for the price of the goods and sent the draft to the bank with an order for the delivery of the goods to Evans upon payment of the draft. At the same time the company sent to Evans one of the bills of lading, not signed or indorsed by the canning company, instructing him that the goods had been shipped and that he was to pay the draft and obtain the order. When the goods reached Pueblo, Evans, without paying the draft or obtaining the order, presented the duplicate bill of lading to the final carrier and the goods were delivered to him without any other were at least so doubtful under the terms of the transfer sheet that it was most negligent in the defendant to deliver the goods without further evidence. Banking & Trust Co., 107 Ga. 512, 33 S. E. Rep. 821. 18. Weyland v. Railway Co., 75 Iowa, 573, 39 N. W. Rep. 899, reversing the former decision in 17. Railroad Co. v. Ohio Valley 33 N. W. Rep. 133. |