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34 ANALYSIS OF CARVER.

CHAPTER IV.
BILL OF LADING.

A BILL of lading given to a charterer operates as

receipt for the goods shipped and as documents of
title which the charterer can negotiate, and thereby
transfer the possession of the goods. But the bill of
lading does not operate as a new contract or modify
the charter party.
When a bill of lading has been transferred by the
charterer to third persons for value, it becomes an
undertaking on the part of the shipowner with the
holders, which is independent of the charter party,
except so far as the charter party is expressly incor-
porated in it, although the third parties may have
notice of the charter party.
" OTHER CONDITIONS AS PER CHARTER PARTY."-
The context in each case must be looked at. It
means those conditions of the charter party which
are to be performed by the consignee of the
goods (a), or which relate to the mode of delivery
to him by the shipowner.

(a) Manchester Trust v. Furness, (1895) 2 Q. B. 545; &rraino v.

Campbell, (1891) 1 Q. B. 290.
 BILL OF LADING.

In Russell v. Niemann (b) it was held that these

conditions relate to " payment of demurrage, freight,
and the manner of paying, and so on, but by no
means incorporate all the conditions of the charter
party."
Terms of the charter party inconsistent with those
of the bills of lading are not incorporated by these
words (c). But liens given by the charter party may
be thereby preserved.
When goods are shipped the mate gives a receipt
for them, which is afterwards exchanged for a bill of
lading signed by the master.
A bill of lading cannot be stamped after signature.
A bill of lading is drawn in a set of two or three or
more. One is marked " original " and the others
" duplicate." In Fraser v. Telegraph Construction
Co. (d), Blackburn, J., said: " The bill of lading
must be taken to be the contract under which goods
are shipped." The shipowner has no right to alter
the contract after the goods have been put on board;
and if he refuses to give a bill of lading according to
the terms agreed, expressly or impliedly, the shipper
may demand his goods back and claim damages (e).
(b) 17 C. B. N. S. 163.
(c) Gardner v. Trechmann, 15 Q. B. D. 154; Thiis v. Liverpool,
<e. S. N. Co., 18 T. L. R. 226.
(d) L. R. 7 Q. B. 571.
(e) Peek v. Larsen, L. R. 12 Eq. 378; Jones v. Hough, 5 Ex. D.
116.
3 (2)
36 ANALYSIS OF CARVER.

By the Bills of Lading Act the property in the

goods passes to the indorsee, and all rights to claim
for breaches of the contract committed before or after
pass with the property. A bill of lading is trans-
ferred by indorsement. The indorsement need not
be special; simple delivery of the bill of lading
indorsed in blank is sufficient. The indorsee is not
affected by inconsistent arrangements made with
shipper (f), nor by estoppel of shipper (g), nor is
he bound by collateral stipulations unless he had
notice (h). The claim of the indorsee is confined to
goods put on board. In Thorman v. Burt (i),
master's agent signed bills of lading for 7,497 pieces
of timber as being " in the hold " in accordance with
the mate's receipt. 216 pieces were in some way lost
from rafts alongside. The Court of Appeal held the
indorsees had no right of action, since they could only
claim under the contract in the bill of lading, and that
only bound the shipowner in respect of the timber
actually put on board. So far as it related to goods
not put on board, it was given without authority.
The claim being under the Bills of Lading Act it
was confined to the contract in the bill of lading, and
the Court regarded the fact that the shipowner was
liable to shipper as immaterial.

(f) Ledue v. Ward, 20 Q. B. D. 475.

(g) Ohrlof v. Briscal (The Helene), L. R. 1 P. C. 231.
(A) The Emilien Marie, 32 L. T. 435.
(i) 54 L. T. 349.
 BILL OF LADING. 37

When an indorsee indorses to another person he

gets rid of the rights and liabilities.
Sect. 2 of the Act expressly keeps alive the
shipper's liability for freight, and subject to this
the liabilities are transferred. The Act says that
the rights of suit shall pass with the property. In
Glyn v. East and West India Dock Co., it was held
that all rights and liabilities are transferred, except
such as are reserved by sect. 2. And "no right is
reserved to the original owner or shipper, except the
right to stop in transitu."
The transfer of the rights and liabilities depends
on the passing of the property in the goods to the
consignee or indorsee. A primdfacie right of action
is established by showing that the indorsee gave value
for it (k). But a transfer of the legal property by
mortgage does not transfer the rights and liabilities (1).
The indorsement must take place while the bill of
lading is still in force as a document of title, i.e.,
before delivery of the goods. Where delivery is
improperly made to one not holding the bill of
lading, a subsequent indorsement may still transfer
the rights (m).
Where goods have been shipped in fraud of their
owner, the shipowner cannot detain them as against

(k) The Freedon, L: R. 3 P. C. 594.

(1) Sewell v. Burdick, 10 A. C. 74, at pp. 94, 95.
(m) Pirie v. Warden, 8 Sc. L. R. 360.
 8 ANALYSIS OF CARVER.

him; on the other hand, he is discharged by a

delivery to the true owner.
The description of the goods and statement of
quantity are evidence against the shipowner that the
goods of that kind and amount have been shipped,
but they are not conclusive. He may show that they
are incorrect, whether the claim be by consignees or
indorsees for full value without knowledge of the
error (n).
The rhaster's statement in a bill of lading as to
QUALITY does not generally bind the shipowners (o).
Where the statement as to QUANTITY is agreed to
be conclusive, the shipowner is bound unless he can
show fraud (p).
MARKS.-.J 0 Parsons v. New Zealand SIpping
Co. (q) it was held there is no estoppel as to the
marks on the goods mentioned in the bill of lading.
The statement as to WEIGHT does not bind the
shipowner (r).
" WEIGHT, VALUE AND CONTENTS UNKNOWN."-
Both shipper and shipowner can rely on this where
the goods are inaccurately described. In Lebeau v.
(n) Grant v. Norway, 20 L. J. C. P. 93; Jessel v. Bath, L. R.
2 Ex. 267; McLean v. Fleming, 2 H. L. Sc. 128; Brown v. Powell
Coal Co., L. R. 10 C. P. 562; Thorman v. Burt, 54 L. T. 349.
(o) Cox v. Bruce, 18 Q. B. D. 147.
(_p) Lishman v. Christie, 19 Q. B. D. 333; Mediterranean, 4o.
S. S. Co. v. Mackay, (1903) 1 K. B. 297.
. (q) (1901) 1 Q. B. 548; (1900) 1 Q. B. 714.
(r) Blanchet v. Powell's Llantivit Collieries Co., L. R. 9 Ex. 74.
 BILL OF LADING. 39

General Steam Na. Co., silks were described by

mistake as linen goods. The master stamped
" Weight, &c. unknown " on the bill of lading.
Some silks were lost. The shipper recovered damages
for their loss (s).
" SHIPPED IN GOOD ORDER AND CONDITION."-In
Craig v. Delargy (t), it was held that it is not con-
clusive, even in favour of indorsees, and although
the master knew, or ought to have known, of the
defective condition of the goods when signing the
bill of lading. Where " QUANTITY AND QUALITY
UNKNOWN " were added the words " in good order,
&c." operated as an admission that the goods ap-
peared externally to be in good condition (u). The
undertaking to deliver in " THE LIKE GOOD ORDER
AND CONDITION" is subject to changes due to the
inherent defects and general average losses, and to
exemptions by statute.
The exceptions in a bill of lading are construed
against the shipowner when ambiguous; therefore,
negligence is not covered by general words, such as
"BREAKAGE AND LEAKAGE" (X).
" ACCIDENTS OR DAMAGE OF SEAS, RIVERS OR NAVI-
GATION" Will not cover a collision caused by negligent
navigation.
(s) Lebeau v. General Steam Navigation Co., L. R. 8 C. P. 88.
(t) 16 Se. L. R. 751.
(u) Peter cler Grosse, 1 P. D. 414.
(x) Phillips v. Clark, 26 L. J. C. P. 168; Czech v. General Steam
Nay. Co., L. R. 3 C. P. 14.
40 ANALYSIS OF CARVER.

The exception, " THIEVES," does not include

thefts by the crew or other persons on board the
ship.
The burden of proof that a loss has occurred by an
excepted cause falls upon the shipowner (y). But
if a loss apparently falls within an exception, the
person claiming must show that the shipowner is
not entitled to the benefit of it (z).
The warranty of seaworthiness is not affected by
the exceptions; unless it is clearly stipulated. Nor
is the shipowner's liability to contribution to general
average excluded by general words in the bill of
lading (a).
" KING's ENEMIES."-In the case of a foreign
ship this exception would probably include the
enemy of the Sovereign of the master who made the
stipulation.
" RESTRAINT OF PRINCES, RULERS, AND PEOPLES.
-This means any forcible interference by any con-
stituted government, whether done as an enemy or
not, e.g., prohibition of exporting or landing goods;
quarantine regulations (b).

(y) Taylor v. Liverpool and Great Western S. S. Co., L. R. 9 Q. B.

546; Smith v. Bedouin Steam Nay. Co., (1896) A. C. 70.
(z) Taylor v. Liverpool and Great Western S.S. Co., supra; Czech
v. General Steam Nay. Co., supra; The Glendarrock, (1894) P. 226;
P. 4 0. Co. v. Shand, 3 Moo. P. C. N. S. 272.
(a) Schmidt v. Royal Mail Steamship Co., 45 L. J. Q. B. 646.
(b) Nesbitt v. Lushington, 4 T. R. 783.
 BILL OF LADING. 41

The restraint may be effected indirectly (c).

But seizure of goods under process of Court is not
restraint."
" FIRE."-This exception is made by statute in
the case of seagoing vessels, and means cases of fire
on board the ship only, and does not cover a fire on
a lighter. The shipowner is protected if the fire
is not caused by his personal fault or privity. An
express exception leaves the shipowner liable for fire
caused by the negligence of his servants.
" PERILS OF THE SEA."-This exception covers a
group difficult to define. It extends to rivers as
well as seas, and to risks in navigation in harbours
and docks as well as in the open water (d). In The
Thrunscoe (e) the cargo was damaged by heat from
the engines and boilers. Held, damage due to the
perils of the sea. The exception sometimes includes
losses brought about by acts or neglects of man.
Wind, rocks, shoals, icebergs are " perils " of the sea.
It was held in The Xantho (f) that FOUNDERING
by collision with another ship is a loss by "perils"
of the sea, though there was negligence. " AcTs
OF PIRATES " were held in old cases to be
within the exception. (The matter is doubtful-an

(e) Rodocanachi v. Elliott, L. R. 9 C. P. 618.

(d) Laurie v. Douglas, 15 M. & W. 746.
(e) (1897) P. 301.
(f) 12 A. C. 503.
42 ANALYSIS OF CARVER.

express clause is usual.) A SEIZURE OF CONTRABAND

by foreign authorities and an ARREST UNDER A
BOTTOMRY BOND are not within the exception.

The loss to be within the exception must be

accidental, so if the loss is caused by rocks charted
it would not be within the exception; but if the
rock is not charted, it would be if there is no negli-
gence. Stranding upon known rocks when the vessel
has lost her course owing to fog or other causes,
without any want of skill or care, is within the
exception (g). If there has been no accident the
exception will not apply. A loss may be accidental
although the natural result of an intentional act,
e.g., cargo damaged by seawater let in through
wrong valve opened by mistake (h).
Where a loss would not have occurred but for some
want of reasonable skill on the part of the shipowner
or his servants, the exception will not protect the
shipowner, e.g., stranding due to unskilful navigation,
or collision with another vessel.
Where goods or animals are thrown overboard
improperly or unnecessarily, the loss is not by perils
of the sea.
Pandorf v. Hamilton (i) laid down the difference
between the proximate and effective causes.

(g) The Xantho, supra.

(h) Blackburn v. Liverpool, 4-c. Co., (1902) L K. B. 290.
(i) 12 A. C. 518.
 BILL OF LADING.

The expression " perils of the sea " has the same
meaning in insurance policies and charter parties and
bills of lading (k). The loss must be due to a
proximate cause.
There is a distinction between a carrier and an
insurer. An insurer is only liable for losses by perils
which must be the proximate cause. The shipowner is
protected not only where the loss is caused by an
excepted peril directly, but also indirectly (1).
Illustrations of proximate cause with regard to
policies of insurance :-
A vessel, taken in tow by a ship of war, was
obliged to carry extra sail, and consequently shipped
water in a gale. Held, damage due to perils of the
sea (m). Ship went ashore because lights were out
owing to act of hostility during the American Civil
War. Held, loss was due to the perils of the sea (n).
But where ship was driven to hostile coasts and
captured, it was held capture was the cause of the
loss and not perils of the sea (o). But where goods
had been lost by sea perils, but were saved and con-
fiscated by the captors, the loss was held due to sea
peril, and not to capture (p).
(k) Hamilton v. Pandorf, supra.
(1) Pink v. Fleming, 25 Q. B. D. 396.
(in) Hfagedorn v. Whitmore, 1 Stark. 157.
(n) lonides v. Universal Marine Insuranco Association, 32 L. J.
C. P. 170.
(o) Green v. Elmslie, Peake, N. P. 278; Livie v. Janson, 12 East,
648.
(p) Hahn v. Corbett, 2 Bing. 205.
44 ANALYSIS OF CARVER.

Where mischief has been set up by sea damage,

the spread is regarded as arising from the perils of
the sea (q). It is so treated also in a policy (r).
"NAVIGATION " in the exception means navigation
which begins at the loading port and continues after
the ship has got to her discharging berth, so damage
by water during loading or unloading is excepted (s).
Where goods properly placed in a boat for the purpose
of landing them are lost, the shipowner is not liable
where " RISK OF BOATS " is excepted (t).
" COLLISION."-The exception does not protect the
shipowner where it is brought about by the negli-
gence of the master or crew of the carrying ship, but
it does when it is due to the negligence of the other
ship, though the other ship belongs to the same ship-
owner (u). But it does not protect the shipowner from
liability in tort as the owner of the other vessel (x).
"PIRATES."-Held to be within the exception of
dangers."
" THIEVES, ROBBERS, PIRATEs."-Held, general
exception does not cover the acts of the crew or other
persons on board the ship (y).
(q) The Catharine Chalmers, 32 L. T. 847. Of. The Freedom,
L. R. 3 P. C. 594.
(r) Montoya v. London Assurance Co., 6 Ex. 451.
(s) Laurie v. .Douglas, 15 M. & W. 746.
(t) Johnston v. Benson, 4 Moo. 90.
(u) Chartered Mercantile Bank of India v. NetherlandsIndia Steam
Nav. Co., 10 Q. B. D. 521.
(x) Ibid.
(y) Taylor v. Liverpool, <f. Co., supra.
 BILL OF LADING. 45

The shipowner is liable for bad stowage. It is

not necessary to prove negligence. Ignorance of the
consequences of stowing particular kinds of goods
together does not of itself amount to negligence.
Even where the damage is excepted it will not
protect the shipowner from liability for negligence.
For damage due to dangerous quality of goods
known to shippers but not known to shipowner,
through no default on his part, the shipowner is not
liable.
" BARRATRY" means any wilful act of spoliation,
or violence to the ship or goods, or any fraudulent
or illegal act which exposes the ship or goods to
danger of damage, destruction or confiscation, done
by the master or crbw without the shipowner's consent,
e.g., wilfully running on rocks (z), or attempting to
scuttle or fraudulent delay, or deviation (a), for the
master's own purposes, or fraudulently selling the
ship and cargo, or confiscation through master
smuggling (b), or trading with an enemy (c), or
running a blockade (d). The effect is the same,
although the master intended to act for the benefit
of the owners.
The following acts are not barratrous :-Deviation
(z) Soares v. Thornton, 7 Taunt. 627.
(a) Moss v. Byrom, 6 T. R. 379; Dizon v. Reid, 5 B. & A. 597.
(b) Havelock v. Hancill, 3 T. R. 277.
(c) Ea'le v. Roweroft, 8 East, 126.
(d) Goldsmidt v. Whitmore, 3 Taunt. 507.
46 ANALYSIS OF CARVER.

through ignorance; negligent navigation without

improper motive; jettison through groundless fear.
N.B.-The act must be either fraudulent or done
knowingly in breach of the law.
" NEGLIGENCE OF MASTER, &c." -The shipowner
can expressly protect himself from it.
The exception of " negligence " does not cover
unseaworthiness, although that may have been due
to negligence of master or crew, unless it is clearly
excepted.
An exception of loss by unseaworthiness will not
excuse a shipowner when it has been caused by his
servants' negligence.
The clause "AT OWNER'S RISK " does not excuse
the carrier for not delivering the goods within the
time expressly or impliedly agreed, nor an improper
refusal to deliver the goods. The words must be
read with reference to their subject-matter (e).
" VERMIN."-The exception covers damage by
rats eating the cargo, where reasonable care has been
taken to keep the ship free from rats.
Damage by rats (f), or cockroaches eating the
goods, or accidental fire in hold (g), or by the heat-
ing or sweating of the cargo, or by fumes arising
from other goods, are not within the exception of
" perils of the sea."

(e) Stuart v. British <f African Steam Nav. Co., 32 L. T. 257.

(f) Kay v. Wheeler, L. R. 2 C. P. 302.
(g) Hamilton v. Pandorf, supra.