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CHAPTER II.

A BILL OF LADING IS A RECEIPT AND ITS TERMS MAY BE VARIED BY PAROL PROOF AS BETWEEN THE ORIGINAL PARTIES, AS TO THE DESCRIPTION OF THE GOODS AND AS TO THEIR WEIGHT AND QUANTITY.

Statement of weight and quantity only

prima facie evidence of amount, § 25.

The bill is a receipt and its recitals | Misdescription by the carrier, § 24. may be varied by parol proof as between the original parties, § 14. The bill is not conclusive evidence of delivery to the carrier, § 15. Illustrations of the principle, § 16. The bill is prima facie evidence of such delivery, § 17.

Carrier not bound by the statement of
quantity, § 26.

Illustrations of the principle, § 27.
Contrary doctrine in Georgia, § 28.

Effect of a bill executed before recep- Neither shipper nor consignee bound tion of the goods, § 18.

by the statement of quantity, § 29.

Effect of a bill receipting for goods im- Effect of the statement of quantity on properly described, § 19.

the burden of proof, § 30.

Misdescription by shipper inducing less "Quantity guaranteed" and similar

degree of care, § 20.

Instances of misdescription, § 21.
Further instances, § 22.

Misdescription to secure lower rate of

freight, § 23.

provisions, § 31.

Effect of the qualification
less," § 32.

66 more or

§ 14. The ordinary bill of lading, whether for transportation by land or water, contains an acknowledgment of the receipt by the carrier of certain goods; a statement of their quantity, weight, quality, or value and a statement of their condition at the time of shipment. That part of the bill which relates to these matters may be treated as a receipt and as distinct from those parts which contain the terms of the contract for carriage.1 The receipt, as between the original parties to the bill, is prima facie evidence of the truth of the statements contained in it.

Myer v. Peck, 1 Tiffany (28 N. Y.), 590; Higgins v. U. S. M. S. S. Co., 3 Blatchf. (U. S. C. C.) 282.

Its recitals as between the original parties, that is, as between the shipper, the carrier and the consignee, are, however, susceptible, in certain cases, of explanation, modification or contradiction by parol proof.1

§ 15. The acknowledgment in the bill that goods have been received for transportation, is not conclusive of the fact that they have been so received. It is competent for the carrier to show that the shipper had no such goods as those receipted for, or that, having such goods, they were never delivered to him.3

§ 16. An illustration may be found in the case of "The Lady Franklin." Here a bill of lading was given by a person who was agent for several vessels. The vessels had separate owners who were not connected by any joint undertaking to be responsible for each other's breaches of contract. The bill, through the mistake of the agent, acknowledged that certain goods had been shipped on one vessel, when in fact they had been previously shipped on another. The goods were lost by the vessel upon which they were shipped. A libel was filed by the shippers (who were the owners of the goods), against the vessel by which their bill recited the goods to have been received. It was held that she could not be made liable for the loss, the bill as between the original parties being open to

Cox v. Peterson, 30 Ala. 608; Wayland v. Mosely, 5 Ib. 430; Myer v. Peck, 1 Tiffany (28 N. Y.), 590; O'Brien v. Gilchrist, 34 Me. 554; Cafiero v. Welsh, 8 Phila. Rep. 130; Stm. Wisconsin v. Young, 3 Green (Iowa), 268; The Lady Franklin, 8 Wallace, 325; Glass v. Goldsmith, 22 Wisc. 488; Bissell v. Price, 16 Ill. 408; Wood v. Perry, 1 Wright (Ohio), 240; Witzler v. Collins, 70 Me. 290; Kirkman v. Bowman, 8 Robinson (La.), 246; White v. Van Kirk, 25 Barbour (N. Y.), 16; Lee v. Salter, Hill & Denio Supplt. (N. Y.), 163; Bradstreet v. Heron, 2 Blatchf. 116; The J. W. Brown, 1 Bissell (C. C.), 76; Fitzhugh v. Wyman, 9 N. Y. 559; Fowler v.

Stirling, 3 L. C. Jurist, 103 (Sup.
Ct.); contra, Pecks v. Dinsmore, 4
Porter (Ala.), 212.

2 Goodrich v. Norris, 1 Abbott's Admiralty Cases, 196; Greenleaf on Ev., vol. 1, § 305.

Berkeley v. Watling, 7 Adolph. & Ellis, 29; The Schr. Freeman v. Buckingham, 18 How. 182; Grant v. Norway, 10 C. B. 665; Meyer v. Dresser, 16 C. B. N. S. 657; The Delaware, 14 Wallace, 602; Hubbersty v. Ward, 8 Ex. 330; Sears v. Wingate, 3 Allen, 103; Baltimore, etc., R. R. Co. v. Wilkens, 44 Md. 11; Fearn v. Richardson, 12 La. Ann. Rep. 752; Fragano v. Long, 4 B. & C. 219; Hunt v. M. C. R. R. Co., 29 La. Ann. Rep. 446.

explanation, and it having been shown that the vessel had in fact never received the goods for which the receipt had been given.1

A somewhat similar case was Crenshawe v. Pearce, where an admiralty suit was brought upon three bills of lading reciting the shipment of 848 bales of cotton on board "The Arizona" from New York for Liverpool. Only 289 bales were sent by "The Arizona," the rest being carried by "The Wisconsin," which sailed a week later. Between the time of the arrival of the two ships at Liverpool, the price of cotton fell. Both ships belonged to the same line, but to different owners. The agent of the line made the contracts for carriage upon a steamship of the line "expected sailing 6th and (or) 13th September, agent's option," etc. The order issued for the receipt of the cotton by the line, specified the steamship " Arizona and (or) Wisconsin, about 800 bales of cotton." By mistake without the knowledge or authority of the agent and partly by the carelessness of the libellant, the bills of lading recited the shipment of 848 bales by "The Arizona." The court held that the libel should be dismissed.2

In the recent case of Smith v. Tregarthen, the defendant, the master of a steamer, signed bills of lading for four hundred bales of cotton for Liverpool. In consequence of insufficient room, only one hundred and sixty-five bales could be shipped and the defendant directed the remaining bales to be shipped by another steamer which arrived at Liverpool three days later than the former. Within these three days a fall in the price of cotton took place and the plaintiffs sued the defendant for the loss occasioned thereby. The court held that the plaintiffs could recover and that the measure of damages was the fall in value at Liverpool of the goods, between the day on which they ought to have been delivered and that on which the plaintiff in fact received them.3

17. Though not conclusive, the bill of lading is nevertheless prima facie evidence of the actual delivery of goods to the

325.

The Lady Franklin, 8 Wallace,

2 Crenshawe v. Pearce, 37 Fed. Rep. 432.

Smith v. Tregarthen, 56 L. J. Q.

B. 437.

carrier.1

66

It distinctly acknowledges that goods have been shipped," or have been "delivered to" or "received by” him. Even where the bill contains no such acknowledgment by the carrier in the form of a receipt, his promise in the bill to convey and deliver certain goods implies their receipt by him." A carrier was sued upon a receipt in this form: "We have received from Walker 3 hhds. of tobacco, which we will freight to him to New Orleans, and, if they bear inspection, pay him the price they may sell for on our return." He was held liable for a lost hogshead, as if sold at New Orleans, though it never had been put on his boat. Again, a transportation company, guilty of negligence in signing a receipt without ascertaining by actual observation whether certain flour receipted for had arrived at its warehouse and simply relying upon the statement of a clerk of a connecting railroad that it had been delivered there, was held liable to the owner of the flour for its non-delivery.*

A bill executed eighteen days after the goods were received by the carrier acknowledging the goods to have been shipped, has been held admissible as evidence of their delivery to him in a case free from suspicion of fraud, where a fair reason could be assigned for the failure to execute the bill at the time the goods were received. The bill is not objectionable as evidence because it acknowledges the receipt of other goods besides those forming the subject-matter of the suit."

§ 18. The very nature of a bill of lading shows that it should not be signed until the goods are actually in the hands of the carrier, since, as has been seen, it describes the goods as "shipped" or "received." If, however, a bill of lading, through inadvertence or otherwise, is signed before the goods are actually shipped and afterwards certain goods are delivered to the carrier

Flower v. Douns, 12 Robinson (La.), 101; Southern Ex. Co. v. Hess, 53 Ala. 19; Lishman v. Christie, L. R., 19 Q. B. D. 333.

2 Southern Ex. Co. v. Craft, 49 Miss. 480.

3 Jones V. Walker, 5 Yerger (Tenn.), 427.

4 Northern Trans. Co. v. McClary, 66 Ill. 233.

5 Graham v. Penna. Ins. Co., 2 Washington C. C. 113.

6 Wallace v. Vigus, 4 Blackford (Ind.), 260.

7 Hunt et al. v. Mississippi, etc., R. R. Co., 29 La. Ann. Rep. 446.

as and for the goods thus receipted for, the bill will operate on these goods, as between the shipper and carrier, by way of relation and estoppel and the rights and obligations of all concerned will be thereafter the same as if the goods had been actually delivered at the time of the signing of the bill.'

In the case of The Idaho it was held that although the statutes of the State of Louisiana prohibited the issue of bills before the actual receipt of the goods, there was nothing in them forbidding the curing of an illegal bill by supplying goods, the receipt of which had been previously acknowledged.

A bill of lading, however, signed by the master of the vessel after the goods have been received by the carrier and lost, cannot create a liability. The rights of the parties have been previously fixed and the bill is wholly inoperative.

§ 19. While a common carrier is bound to deliver the specific goods entrusted to him, yet where goods are receipted for in the bill and are improperly described or are wrongly stated to be of a particular kind or quality, these statements, as between the original parties, are open to explanation or contradiction by extrinsic evidence.

§ 20. A misdescription of the goods covered by the bill may be due to the act of the shipper or to that of the carrier. The shipper may injuriously affect the rights of the carrier by describing the goods to be of a kind or quality different from their true one, thus inducing the carrier to relax his vigilance and to exercise a less degree of care in the transportation. This may result in injury to or loss of the goods. In such a case the consequences must fall upon the party who has misdescribed the goods even though he has done so innocently."

If there be fraud on the part of the shipper in representing the nature of the goods, the carrier is exempted from liability, except for that amount of care which should have been given

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