A charter-party, or memorandum in the nature of one, commonly contains clauses on the part of the shipowner, for seaworthiness, the reception and delivery of the cargo, and performance of the voyage, with an exception of certain perils. On the part of the charterer or freighter, the clauses are to load in a given time, and to pay freight and demurrage. As to stamp duties thereon, vide ante, p. 244.

As to bills of lading, vide infra.

The captain or master of a ship is an agent of the owners with larger powers than an ordinary agent. As between him and third persons, he is personally liable on contracts, made in the course of his ordinary employment, in his own name, or as agent of the owner, and he is able to sue on contracts so made. So, where like contracts are made by him, whether he sign expressly as agent or not, the owner may sue or be sued on them. Hence, he may sign a charter-party or bill of lading in his own name, and thereby bind his owners. 3 Kent, Com. 161-164; Story on Agency, cap. 6, ss. 116-123. And, he may sue in his own name for freight. Shields v. Davis, 6 Taunt. 65. The law of the country to which the ship belongs is prima facie that which binds the parties to a contract of affreightment; Lloyd v. Guibert, L. R., 1 Q. B. 115, Ex. Ch.; The Gaetans & Maria, 7 P. D. 137, C. A.; but this rule will be modified where the parties show a different intention. Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521, 529, 540. See further as to the master's authority to bind his owners, post, pp. 531, 562,

563.

Bill of lading.] A bill of lading contains a receipt for and description of the goods received on board, the names of the shipper and consignee, the place of delivery (certain perils excepted) and the freight; and it is signed (in three parts) by the master, as agent of the shipowners. It is the contract of carriage between the shipowner and merchant; Leduc v. Ward, 20 Q. B. D. 475, C. A.; and its terms cannot be varied by oral evidence. S. C. The words "or assigns" are usually added to the name of the consignee, and it is questionable whether it be transferable by indorsement, unless the words be subjoined; see Henderson v. Comptoir d'Escompte de Paris, L. R., 5 P. C. 253; except, perhaps, in the case of special custom in certain foreign trades; see Renteria v. Ruding, M. & M. 511. But the omission of the words "or assigns" does not of itself give notice that the person in whose name the bill is made out is entitled to deal with the goods absolutely. Henderson v. Comptoir d'Escompte de Paris, supra. Where the terms of the charter-party and bill of lading are inconsistent, those of the former prevail as between shipowner and charterer, and the latter is only a receipt for the goods. Rodocanachi v. Milburn, 18 Q. B. D. 67, C. A.

Although the indorsement of a bill of lading transferred the property in the goods, at common law, it conveyed no right of action to or against the indorsee in his own name as upon the original contract. Thompson v. Dominy, 14 M. & W. 403; Howard v. Shepherd, 9 C. B. 297; 19 L. J., C. P. 249. And, the receipt of the goods by the indorsee was only evidence for a jury of a new contract to pay freight in consideration of the delivery, on which he might be sued. Kemp v. Clark, 12 Q. B. 647. But, by the Bills of Lading Act (18 & 19 Vict. c. 111), it is enacted (sect. 1), that "every consignee of goods named in a bill of lading, and every indorsee of a bill of lading to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or indorsement shall have transferred to, and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with him

self." But (sect. 2) "nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason or in consequence of his being such consignee or indorsee, or of his receipt of the goods by reason or in consequence of such consignment or indorsement."

The consignee or indorsee of a bill of lading may deprive the unpaid vendor of his right to stop the goods in transitu by indorsing it for valuable consideration, although the goods are not paid for, provided the indorsee for value has acted bona fide and without notice. The Marie Joseph, L. R., 1 P. C. 219, 227; The Argentina, L. R., 1 Adm. 370. A past debt is sufficient consideration. Leask v. Scott, 2 Q. B. D. 376, C. A. ; overruling Rodger v. Comptoir d'Escompte de Paris, L. R., 2 P. C. 393. See further, post, Action for conversion of goods-Defence-Stoppage in transitu-how defeated. The indorsee has transferred to him the same rights and liabilities in respect of the goods as if the contract in the bill of lading had been made with him. The Helene, B. & L. 415. Hence, actions now lie on the original contract by or against the indorsee of the bill of lading, and the shipowner or master may sue him for freight, although he received the goods under circumstances which negative any intention or undertaking to pay. It seems that a person taking a bill of lading by indorsement after a breach, by a wrongful delivery of the goods to a stranger, can maintain an action by virtue of sect. 1. Short v. Simpson, L. R., 1 C. P. 248, and at 252, 255, per Willes, J. The first indorsee of one part of a bill of lading, drawn in a set, one of which being accomplished the others to be void," gets the property in the goods, though he take no steps to enforce his rights. Meyerstein v. Barber, L. R., 4 H. L. 317. But the master is justified in delivering the goods to the consignee, to whom they are by such a bill of lading made deliverable, on production of one part of the bill, although there has been a prior indorsement for value of another part, provided the master had no notice thereof and the delivery was bona fide. Glyn v. E. & W. India Dock Co., 7 Ap. Ca. 591, D. P. See further as to bills of lading in sets, Sanders v. Maclean, 11 Q. B. D. 327, C. A. The Act does not seem to render any bill of lading negotiable which would not have been so before the Act. See Henderson v. Comptoir d'Escompte de Paris, ante, p. 444. The shipper, A., of goods does not, by simply indorsing the bill of lading to B., and delivering it to him by way of pledge for a loan, "pass the property in the goods" to B., so as to make B. liable to the shipowner for freight under sect. 1. Burdick v. Sewell, 10 Q. B. D. 363; 10 Ap. Ca. 74, D. P., reversing C. A.; 13 Q. B. D. 159.

66

See further sect. 3 (cited post, p. 459), as to the effect of a bill of lading.

In the ordinary course of business the consignor of goods sends them to this country, accompanied by bills of lading and bills of exchange, which are to be accepted by the consignee of the goods as the consideration for the consignment: then, where the consignor sends those documents direct to the consignee, it is clear that he intended the consignee should have at once the disposal of the property and possession of the goods consigned, leaving it to him to return the bills of exchange accepted, not as a condition precedent to the property vesting, but simply as a matter of contract. Shepherd v. Harrison, L. R., 4 Q. B. 196, 203. But, where the consignor sends the bills of lading to an agent in this country to be by him handed over to the consignee, and accompanies them with bills of exchange to be accepted by the consignee, that indicates a different intention, viz., that the handing over the bills of lading, and the acceptance of the bills of

exchange, should be concurrent parts of one and the same transaction, and till the consignee has accepted the bills of exchange, the property in the goods does not pass to him although he has obtained possession of the bills of lading, making the goods deliverable to the consignor, "order or assigns," and indorsed by the consignor in blank. S. C., Id.; L. R., 4 Q. B. 493, Ex. Ch., and L. R., 5 H. L. 116. See also Ex parte Banner, 2 Ch. D. 278, C. A.; Mirabita v. Imperial Ottoman Bank, 3 Ex. D. 164, C. A. This intention is not inconsistent with a statement in the invoice, that the goods are shipped on account and at the risk of the consignee. Shepherd v. Harrison, L. R., 5 H. L. 116. See also Moakes v. Nicholson, 19 C. B., N. S. 290; 34 L. J., C. P. 273; and Gabarron v. Kreeft, Kreeft v. Thompson, L. R., 10 Ex. 274, as to effect of shipping goods under bill of lading; also Anderson v. Morice, 1 Ap. Ca. 713, D. P.; Ogg v. Shuter, 1 C. P. D. 47, C. A. As to property in goods passing when the bill of lading is posted, see Banco de Lima v. Anglo-Peruvian Bank, 8 Ch. D. 160.

It is a breach of contract if the master sail away with the cargo on board without signing bills of lading, but it does not amount to a conversion of the cargo, unless the circumstances show an intention by him to deprive the shipper of his cargo. Jones v. Hough, 5 Ex. D. 115, C. A. The right of suing upon a contract under a bill of lading follows the legal title to the goods as against the indorser. The Freedom, L. R., 3 P. C 594; see also The Figlia Maggiore, L. R., 2 Adm. 106. So where the consignors indorsed and delivered a bill of lading to A., who indorsed and delivered it to the plaintiff for value; this was held to be evidence of such an indorsement and delivery as to pass the property in the goods to the plaintiff within the meaning of sect. 1; Dracachi v. Anglo-Egyptian Navigation Co., L. R., 3 C. P. 190; and if goods are shipped by the seller to order, under circumstances which show that he intended to pass the property in the goods to the buyer, the mere fact of the seller having taken the bill of lading in his name, and its remaining unindorsed, will not prevent the property passing. Joyce v. Swann, 17 C. B., N. S. 84. See also Mirabita v. Imperial Ottoman Bank, supra.

An indorsee of a bill of lading, who has indorsed it over before the arrival of the vessel and delivery of the cargo, does not, under this statute, remain liable for the freight; Smurthwaite v. Wilkins, 11 C. B., N. S. 842; 31 L. J., C. P. 214; and where the consignee of goods, before the arrival of the ship, indorsed over the bill of lading to wharfingers thus: "deliver to W. or order, looking to them for all freight, &c., without recourse to us," and the shipowners accepted the indorsement, and delivered the goods to W.; the shipowners could not sue the consignee for freight. Lewis v. M'Kee, L. R., 2 Ex. 37. But such acceptance of the indorsement by the shipowners is not proved by showing that it was on the bill when it was presented to the captain, without proving that the captain in fact assented to it. S. C., L. R., 4 Ex. 58, Ex. Ch. The consignee named in the bill of lading is liable thereon, unless he has indorsed it over, even though he has sold the cargo comprised therein. Fowler v. Knoop, 4 Q. B. D. 299, C. A.

Where goods are loaded, and the mate's receipt then given, and afterwards exchanged for the bill of lading, in the usual manner, the latter takes effect from the loading. The Duero, L. R., 2 Adm. 393. A bill of lading remains in force until there has been a delivery of goods thereunder to a person having a right to receive them. Meyerstein v. Barber, L. R., 2 C. P. 661; L. R., 4 H. L. 317.

The mere employment, by the shipowner, A., of a broker at a foreign port to find a cargo for a ship, and to adjust the terms of carriage thereof,

does not give him implied power to relieve the master, B., when he signs the bill of lading therefor, of the duty of seeing that the dates of shipment are correctly stated in the bill of lading, and B. is liable to A. for any damage A. may sustain by the breach of this duty. Stumore v. Breen, 12 Ap. Ca. 698, D. P.

Where the bill of lading provided " average, if any, to be adjusted according to British custom," the admitted custom of average adjusters is made part of the contract, and the custom, though erroneous, is binding. Stewart v. W. India, &c. Steamship Co., L. R., 8 Q. B. 88. See also cases cited ante, p. 427.

The mortgagee of a ship is bound by bills of lading given by the mortgagor before the mortgagee took possession of the ship. Keith v. Burrows, 2 Ap. Ca. 636, D. P.

As to stamp duties on bills of lading, vide ante, p. 243.

Shipowner against Charterer or Merchant.

Although there is a charter-party by deed, yet if there is a subsequent agreement by parol, for the use of the ship, at a period before the charterparty attaches, but embodying its terms, this may be proved, and the demand recovered as on a simple contract. White v. Parkin, 12 East, 578. So for other matters of agreement, express or implied, extra the contract. Fletcher v. Gillespie, 3 Bing. 635.

Where a charter-party contained the clause "in the event of war," &c., "this charter-party to be cancelled," it was held to be determined on war breaking out without the election of either party. Adamson v. Newcastle, &c. Ins. Assoc., 4 Q. B. D. 462, diss. Lush, J.

Compliance with warranties or conditions.] In an action for not loading, the plaintiff must prove compliance with warranties or conditions. On the mere contract by the shipowner to carry goods, shipped on board his vessel, there is no implied condition that his vessel shall be seaworthy. Schloss v. Heriot, 14 C. B., N. S. 59; 32 L. J., C. P. 211, post, p. 448. By undertaking that the vessel shall be seaworthy at the time of receiving the cargo, there is no warranty against "suspicion" of unfitness; therefore, where the master took antimony on board as ballast, so as to fill no more room than ballast, and the jury found it not injurious to a cargo of tea, it was held that the charterers, who were bound to load a "full cargo of tea, were liable for refusing to put it on board, although this ballast might raise "suspicions" as to the ship's fitness for such a cargo. Towse v. Henderson, 4 Exch. 890.

The description of a ship in the charter-party may be a warranty, or condition precedent. Thus, if it be described as of the class called A 1, and it is not so, it would be an answer to an action for not loading; but such a warranty only applies to the classification at the time of the contract. Hurst v. Usborne, 18 C. B. 144; 25 L. J., C. P. 209; Trench v. Newgass, 3 C. P. D. 163, C. A.; Routh v. Macmillan, 2 H. & C. 750; 33 L. J., Ex. 38. So, "now at sea; having sailed three weeks ago," is a condition; Ollive v. Booker, 1 Exch. 416; though had "or thereabouts" been added, as is wrongly stated in the marginal note in 1 Exch., the decision would probably have been otherwise. Per curiam in Behn v. Burness, infra. So, a description of the ship as "now in a particular port," amounts to a warranty; Behn v. Burness, 3 B. & S. 751; 32 L. J., Q. B. 204, Ex. Ch. ; and, in arriving at the true construction of the document, the court must look at the surrounding circumstances (as found by the jury) at the time

the contract is made. S. C. So, a stipulation to sail, or be ready for loading, on a particular day, is a condition precedent. Glaholm v. Hays, 2 M. & Gr. 257; Oliver v. Fielden, 4 Exch. 135; Croockewit v. Fletcher, 1 H. & N. 893; 26 L. J., Ex. 153; Seeger v. Duthie, 8 C. B., N. S. 45, 72; 29 L. J., C. P. 253; 30 L. J., C. P. 65. In such case readiness to sail on a particular day is not disproved by the fact that the captain, boná fide, though wrongly, thinking the ship already sufficiently loaded, refused to receive additional goods on board, and the dispute, decided ultimately against the captain, caused delay in sailing until after the day. S.C. Where the charter-party is for a stipulated time, time is of the essence of the contract. Tully v. Howling, 2 Q. B. D. 182, C. A. Delay, caused by the excepted perils, when so great as to put an end in a commercial sense to the speculation, entered into between the shipowner and charterers, exonerates the charterer from loading; Jackson v. Union Marine Insur. Co., L. R., 8 C. P. 572; L. R., 10 C. P. 125, Ex. Ch. ; such delay has not, however, this effect under any other circumstances; Hurst v. Usborne, ante, p. 447; Tarrabochia v. Hickie, 1 H. & N. 183; 26 L. J., Ex. 26; Jones v. Holm, L. R., 2 Ex. 335; but gives only an action for damages. MacAndrew v. Chapple, L. R., 1 C. P. 643, 648, per Willes, J. Where the ship was not chartered for any particular cargo, and a small loss of freight was all the loss occasioned by the delay: it was held, that the stipulation that the ship should with all convenient speed proceed to E., and there load a full cargo was not a condition precedent. S. C.

A statement of tonnage is not a warranty, or condition precedent. Barker v. Windle, 6 E. & B. 675; 25 L. J., Q. B. 349, Ex. Ch. See Pust v. Dowie, 5 B. & S. 20; 32 L. J., Q. B. 179; 5 B. & S. 33; 34 L. J., Q. B. 127, Ex. Ch. To an action by shipowner, A., against shipper, B., for contributions to general average, it is no answer that the ship was not seaworthy, unless it be shown that its unseaworthiness at the commencement of the voyage caused the loss, in which case it is a good defence, in order to avoid circuity of action. Schloss v. Heriot, 14 C. B., N. S. 59; 32 L. J., C. P. 211. So A. cannot claim contribution in respect of jettison rendered necessary by the wrongful acts of himself or his servants. Strang v. Scott, 14 Ap. Ca. 601, P. C. If the ship be not fit to carry a reasonable cargo of the kind for which the ship was chartered, the charterer is not bound to load. Stanton v. Richardson, L. R., 7 C. P. 421; L. R., 9 C. P. 390, Ex. Ch.

The question as to what representation amounts to a condition precedent, or to a warranty, depends entirely on the intention of parties, as apparent on the contract itself; there is no general rule that representations in a charter-party are equivalent to warranties, or to conditions precedent. Croockewit v. Fletcher, supra; see MacAndrew v. Chapple, supra.

Demurrage.] It is usual for the merchant to undertake to load and unload within a certain number of days, called lay days, with liberty to delay the ship for a longer specified period on payment of a daily sum, which, as well as the delay itself, is called demurrage. If the charter-party contains a fixed number of demurrage days, as well as lay days, and the ship is, by the fault of the merchant, delayed beyond them both, that is a detention, and is to be compensated for by damages; but, where no demurrage days are mentioned, all detention beyond the lay days is demurrage. Sanguinetti v. Pacific Steam Navigation Co., 2 Q. B. D. 238, 251, per Brett, L. J.; Harris v. Jacobs, 15 Q. B. D. 247, C. A. The days are, at the places of loading and unloading respectively, in the absence of contrary usage, to be taken as consecutive or running days; Brown v. Johnson,