vessel or cargo against the perils of the seas, lakes or rivers, the insurers are liable for losses arising directly from those perils-i. c., for any damage to, or loss of the property insured. Negligence by the master

or mariners does not relieve them; and on the other hand, they do not undertake for the good conduct, skill and prudence of these persons employed on the vessel. Hence where the insured vessel, through the negligence of her master and crew, comes in collision with another vessel and is condemned in damages therefor, the underwriters are not answerable for these damages; since they do not insure against the negligence of the master and mariners as a distinct cause of loss, considered apart from the property insured.2

The law holds the insurer to the terms of his contract, and where he insures against loss by a specific peril, it does not consider the secondary cause of the loss. "It were infinite for the law to consider the cause of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." Causa proxima, non remota spectatur.3 If two causes of loss combine in working damages, and the owner of the injured property holds a policy, insuring him against one of these causes and not against the other, he is entitled to recover the damages resulting from the cause covered by the policy, where these can be distin

1 The contract is intended to insure the owner against the specified sea risk; the owner impliedly engages that the vessel is seaworthy; and the underwriter engages to insure the vessel or cargo against certain risks. He may assume to bear all risks, and render himself liable for all losses except-such as arise from the fraud of the insured. Goix v. Knox, 1 John. Cases, 337. The general words in a policy are not construed so broadly. Moses v. Sun Mutual Ins. Co., 1 Duer, 159. An insurance on goods against loss by thieves, may bind the underwriter for losses by theft perpetrated by parties not connected with the ship. Atlantic Ins. Co. v. Sterrow, 5 Paige Ch., 285; and when the policy upon a cargo insures against perils from thieves, and barratry of the master and mar. iners, it covers a loss by theft, whether the offence is committed by the crew or by others; is it not limited to external or assailing theives. American Ins. Co. v. Bryan, 1 Hill, 25; S. C., 26 Wend., 563. Insurance against barratry is rather anomalous, and not to be extended by construction: Hallett v. Col. Ins. Co, 8 John., 272; 1 Term R., 330; it is not included among the perils of the Waters v. Merchants' Ins. Co., 11 Peters, 213; it implies bad faith on the part of the master; Atkinson v. Great Western Ins. Co., 65 N. Y., 531.

sea.

2 Mathews v. Howard Ins. Co., 11 N. Y., 1, 16; Gen. Mutual Ins. Co. v. Sherwood, 14 Peters, 351; De Vaux v. Salvador, 4 Adol. and Ellis, 420; 31 Eng. Com. Law, 104; Perrin v. Protection Ins. Co., 11 Ohio, 147.

Bacon's Max. Reg., 1; Brown's Leg. Max., 104; Babcock v. Montgomery Co. Mu. Ins. Co., 4 N. Y., 326; the rule is applied in Allison v. Corn Ex. Ins Co., 57 N. Y., 87.

guished and separated from the others. And he has no right of action where the uninsured cause is the efficient agent in creating a total wreck; as where he procures a policy of insurance on a building or on a vessel, excepting therefrom losses arising from an explosion, and the property is destroyed by an explosion.2

§ 590. A bill of lading is the written evidence of a contract for the carriage and delivery of goods sent by water, for a certain freight. It is signed by the captain or master of the ship or vessel, and states among other things, by whom the goods are shipped, and where, and to whom they are to be delivered. There are generally three or more parts of the instrument; one of which is usually sent to the consignee by the ship which carries the goods; another is sent to him by some other conveyance; and a third is kept by the merchant or shipper.3 The contract as used on our canals and rivers, is usually much less full and forma!, without losing its true character. It binds the master, the ship and the general owner. It is valid when signed by the owner, though not signed by the master; and it is not considered a bill of lading unless it expresses or imports a contract for the conveyance of the goods.7

6

Between the shipper and the carrier the contract is enforced according to its terms, qualified only by the common law obligations incident to the bailment. The shipper, being the owner of the goods, retains the control over them, with the right to dispose of them as he sees fit. The bill of lading naming the consignees or parties to whom the goods are to be delivered, does not conclude the owner and shipper; he retains a right to change his purpose and order their delivery to another party." He has the right to assign the bill of lading, which represents the goods, absolutely or as a security for the payment of advances on the property; and he may do this by indorsing over, or by simply delivering the bill

'Briggs v. North Amer. & M. Ins. Co., 53 N. Y., 446.

2 Evans v. Columbian Ins. Co., 44 N. Y., 146; Strong v. Sun Mut. Ins. Co., 31 N. Y., 103; St. John v. Am. M. Fire & Marine Ins. Co., 11 N. Y., 516. 3 Covill v. Hill, 4 Denio, 323, 330.

Dows v. Greene, 16 Barb., 72; Dows v. Rush, 28 Barb., 157; Dows v. Perrin, 16 N. Y., 325; Dows v. Greene, 24 N. Y., 638.

Schooner Freeman v. Buckingham, 18 How. U. S., 182.

6 Rawls v. Deshler, 3 Keyes, 572.

7 Holbrook v. Vose, 6 Bosw., 76, 109; Gage v. Jaqueth, 1 Lans., 207.

* Dobbin v. Thornton, 6 Esp. R., 16; Simmons v. Law, 8 Bosw., 213; 8. C., 3 Keycs, 217.

9 Mitchell v. Ede, 11 Adolph. and Ellis, 888; Cayuga Co. National Bank, 47 N. Y., 631.

with the intent to pass the title. The carrier is bound to deliver the goods to the party holding the bill given by him to the shipper.2

When the owner of goods sells and ships them to the purchaser, and sends to him the bill of lading, thus enabling him to take possession of the goods on their arrival, the bill becomes evidence of title in the consignee; and while the sending of the bill of lading to the purchaser does not cut off the right to stop the goods in their transit, there is prima facie a presumption of title in the consignee. The legal effect of thus sending forward the bill depends upon the existing relation between the consignor and consignee. A shipment of the goods, in pursuance of a sale valid under the statute of frauds, and sending forward the carrier's receipt or bill of lading, vests the consignee with the title in form and in fact; but a shipment of goods under a verbal order, invalid as a sale, does not become valid so as to vest the title in the consignee, until the goods are accepted and received by him. When the goods are selected, and shipped by the conveyance chosen by the purchaser, the title passes on a delivery to the carrier; and here the bill of lading in the hands of the purchaser, is evidence of his actual title, though not required to perfect his title. The bill does not constitute the title, and the law does not give effect to it as a negotiable instrument.

§ 591. We have seen that the bill of lading may be indorsed or transferred as evidence of an absolute sale, and as a pledge or mortgage of the goods covered by it. It remains to notice the ground on which it is thus capable of being used to effect different purposes. A merchant making a consignment of goods to his factor for sale, takes from the carrier a bill of lading showing on its face his title to the property-a contract which is assignable conditionally or absolutely at his pleasure, and may be assigned by indorsing or delivering over the bill; and the assignment may be qualified by parol proof showing the purpose of the

'Bank of Rochester v. Jones, 4 N. Y. 497.

The City Bank v. Rome, W. & O. R. Co., 44 N. Y., 136; Tyndal v. Taylor, 4 Ellis and Black., 219; Howard v. Shepard, 9 M. Gr. and Scott, 296; Armour v. Mich. C. R. Co. 65, N. Y., 111.

3 Sweet v. Barney, 23 N. Y., 335; Fitzhugh v. Wiman, 9 N. Y., 559; Gossler v. Schepeler, 5 Daly, 476; Krulder v. Ellison, 47 N. Y., 36; Lacker v. Rhoades, 51 N. Y.. 611.

Rodgers v. Phillips, 40 N. Y., 519; Cross v. O'Donnell, 44 N. Y., 661; Can'kins v. Hellman, 47 N. Y., 449; Norman v. Phillips, 14 Meeson and Welsby,

277

Cross v. O'Donnell, supra, 44 N. Y., 661, 665 ; the goods must be accepted; Stone v. Browning, 51 N. Y., 211; see Magruder v. Gage, 33 Md., 344.

6 Barnard v. Campbell, 55 N. Y., 456, 462; S. C., 58 N. Y., 73.

7 Ante §§ 590, 211-214.

transfer.

As owner he may pledge or mortgage the goods covered by the bill, and order their delivery to the transferee. On the same principle, a merchant receiving advances upon goods under an agreement that he will ship them to the party making the advances, to be sold to meet the indebtedness, transfers the title by shipping the goods to the advancer and sending him the bill of lading or any like evidence showing an intent to transfer the title. The consignee having made advances upon the specific goods, stands in a position analogous to that of a vendee after he has paid the purchase money and the property has been shipped to him. And so when the bill of lading is delivered to the consignee to meet a draft drawn against the consignment, he cannot retain the bill without accepting or paying the draft, according to the agreement.5

§ 592. A stipulation in the bill of lading fixing the amount of the freight and demurrage, with a provision that the same is to be paid by the consignee, does not bind a factor to whom the goods are sent for sale on commission, until he accepts them. By accepting the consignment, he makes himself a party to the contract of affreightment, and becomes liable to the carrier for the freight and damages stipulated for in the bill of lading. And the rule is general, that the consignee receiving the cargo is liable for the freight; and that the assignee of the bill receiving the cargo is liable for the freight. The ordinary contract of the carrier is to deliver the goods to the consignce or his assignees, "he or they paying freight for the same;" and the party accepting a delivery under the bill impliedly engages to pay the freight. The rule does not apply to an intermediate consignee, receiving in order to forward the goods; 9

Haille v. Smith, 1 Bos. and Pull., 563; Bryans v. Nix, 4 Mecs. and Welsb., 791; 4 N. Y., 497, 501; Courad v. Atlantic Ins. Co., 1 Peters, 144.

2 First Nat. Bank of C. v. Kelly, 57 N. Y., 34; Marine Bank of Chicago v. Wright, 48 N. Y., 1; Cayuga Co. Nat. Bank v. Daniels, 47 N. Y., 631; M. & T. Bank v. F. M. Nat. Bank, CO N. Y., 40; First Nat. Bank of Toledo v. Shaw, 61 N. Y., 283.

3 Bailey v. Hudson River R. R. Co., 49 N. Y., 70; 11 English R., 316. Grosvenor v. Phillips, 2 Hill, 147; Holbrook v. Wight, 24 Wend., 169.

5 Bank of Rochester v. Jones, 4 Denio, 489; S. C., 4 N. Y., 497; Grant v. Shaw, 16 Mass. R., 341; Murdock v. Mills, 11 Metcalf R., 5; Allen v. Williams, 12 Pick. R., 297; Craig v. Sibbett & Jones, 15 Penn. St., 23; See EDWARDS on Bills and Notes, 422-424, marg. page; Ogg v. Shuter, 11 English (Moak), 316.

6 Dupeirat v. Wolf, 29 N. Y., 436; Milliken v. Dehon, 27 N. Y.,364; Morse v. Peasant Brothers, 7 Bosw., 199; 26 N. Y, 86.

'Davison v. City Bank, 57 N. Y., 81; Seggart v. Scott, 6 Esp. R., 22; Moller v. Living, 4 Taunt., 102.

Dart v. Ensign, 47 N. Y., 619; Hinsdell v. Weed, 5 Denio, 172; post § 643, 9 Davis v. Pattison, 24 N. Y., 317, 320.

and it does apply to the ultimate consignee, both when he is, and when he is not, the owner of the goods.1 Being the owner of the goods, the contract of shipment binds him from the beginning;2 and where the bill does not otherwise provide, he is liable on the contract for the freight," to be computed and ascertained according to the stipulations contained in it.4

5

§ 593. A provision in the bill relating to the time and mode of the delivery, with a stipulation for demurrage at a certain rate, binds the consignee accepting and receiving the property; on the ground that when he accepts the consignment, he makes himself a party to the contract embodied in the bill of lading. The carrier recovers according to the terms of the stipulation; and where the time for unloading is left to be regulated by the custem of the port, the consignees are only liable for damages by the delay not warranted by the custom.5 Prima facie, Sundays are to be excluded, under a stipulation fixing the charge to be allowed per day for demurrage; these not being regarded by the law as working days. If the boat or vessel be delayed a certain number of days and hours beyond the stipulated time, a day is to be reckoned as twenty-four hours; and the stipulated time counted from the arrival of the vessel in the adjacent waters, with notice of readiness to discharge cargo. The carrier has no lien on the goods for damages in the nature of demurrage.

When the contract is specific, it is enforced quite strictly; but in the absence of any stipulation fixing the time for unloading, there is an implied agreement for a reasonable time, which may be affected by a press of business; 10 and cannot be extended for the purpose of giving the consignee an opportunity to effect a sale.11

1 Nelson v. Hudson River R. R. Co., 48 N. Y., 498; Davison v. City Bank, 57 N. Y., 81.

2 Idem; Sheets v. Wilgus, 56 Barb., C62.

3 Gilson v. Madden, 1 Lans., 172; Barker v. Havens, 17 John. R., 234; 47 N. Y., 619.

4 Ward v. Whitney, 8 N. Y. (4 Seld.), 442; the liability arises on contract and not on title; Martin v. Smith, 1 N. Y. S. C. (T. & C.), 20; S. C., 58 N. Y., 672.

Morso v. Peasant Brothers, 7 Bosw., 199; S. C., 2 Keyes, 16; Merian v. Funk, 4 Denio, 110; N. Y. & Havre Steam Nav. Co. v. Young, 3 E. D. Smith, 187. Kingney v. White, 4 Daly, 400; Cargo of the Mary E. Taber, 1 Benedict, 106; Cochran v. Retberg. 3 Esp., 121.

7 Wiles v. N. Y. Central & H. R. R. Co., 4 N. Y. Sup. Court (T. and C.), 264. Crommelin v. N. Y. & H. R. Co., 10 Bosw., 77; S. C., 4 Keyes, 90.

9 Randal v. Lynch, 2 Campb., 352; Burmster v. Hodgson, 3 M. and C., 267. 10 Cross v. Beard, 26 N. Y., 85.

11 Huntley v. Dows, 55 Barb., 310.