without such notice at any length of time would be to surrender them bound hand and foot to almost every claim which might be made. It would be next to impossible, where a thousand packages large and small are forwarded to them daily, to ascertain anything about the loss of one of them at a distance of six months or a year." A stipulation that "no claim for deficiency, damage, or detention would be allowed unless made within three days after delivery of the goods nor for loss unless made within seven days from the time they should have been delivered," has been held reasonable.2 § 389. Notice was placed on the back of a receipt for goods that the carrier should not be liable for loss or damage unless notice were given twenty-four hours after delivery of the goods and that after twenty-four hours from arrival storage would be charged. The goods remained several days and were damaged. In a suit it was held that the plaintiff was not bound by the notice although brought home to the shipper and that the defendant could not so limit his liability." In Alabama a different ruling has been made where a receipt given by a carrier stipulated that there should be no liability for loss unless the claim should be made in thirty days from the date of receipt in a statement to which the receipt should be annexed. The plaintiff was not informed of the loss for more than a year. The stipulation was held unreasonable, tending to fraud and inoperative and it was said that a common carrier cannot be allowed to make a statute of limitation so short as to be capable of becoming a means of fraud.' § 390. Where in consequence of the carrier's delay, horses in transit became ill, it was held that a clause requiring a demand for damages to be made before removal from the depot is in such circumstances unreasonable and void, as the extent of the illness could not be at once discovered. A condition in a bill of Weir v. Express Co., 5 Phila. Rep. 355. See also Express Co. v. Hunnicutt, 54 Miss. 566. 44 Ala. 101. This case was adversely criticised by the U. S. Supreme Court in Express Co. v. Caldwell, 21 Wall. Lewis v. Great Western R. R. Co., 270. 5 Hurlstone & Norman, 867. 3 Brown v. Railway, 54 N. H. 535. • Southern Express Co. v. Caperton, Ormsby v. U. P. R. R. (U. S. C. C. Colorado), 4 Fed. Rep. 170. a railroad company that all claims for damages should be made before the article was taken from the station, was held in North Carolina to be reasonable, but that it did not cover latent injuries.1 § 391. A reservation in an express company's bill that all claims for damages were to be presented at the New York office for settlement, was held not to make such presentation of them a condition precedent to the company's liability. Their readiness at that office to adjust the loss went only in defence of interest and costs and not to the cause of action.2 § 392. Where an express company gave a receipt for goods containing a clause exempting it "from any loss or damage whatever unless claim shall be made therefor within ninety days from the delivery" to it, it was held that the clause had no application to a suit against the company for the non-delivery of the goods themselves, that not being either for "loss or damage." Such a clause not being a condition precedent to the right to recover, but being rather in the nature of a limitation, cannot be availed of upon trial unless set up by the defendant in his answer. § 393. A stipulation in the bill of lading that the carrier should not be liable for loss unless a written claim were presented in thirty days after date of contract, has been held reasonable." § 394. The stipulation in a bill of lading "that claims for short delivery, if any, as well as every and all other claim or claims whatsoever against the vessel, must be made within three months from the date of this bill of lading, at the port of Calcutta, and at no other port and no such claim or claims will be entertained or admitted unless supported by certificates signed by the commander of the vessel before leaving the port of discharge," has in England been held to be a condition precedent to the institution of an action at the port of discharge, or elsewhere, for the recovery of damages for short delivery or 1 Capehart v. v. Seaboard, etc., R. Co., 77 N. C. 355. 19. 4 Westcott v. Fargo, 61 N. Y. 542. U. S. Ex. Co. v. Harris, 51 Indi 2 Place v. Union Ex. Co., 2 Hilt. ana, 127. See Adams Ex. Co. v. Porter v. Southern Ex. Co., 4 S. Regan, 29 Ind. 21; Southern Ex. Co. v. Caferton, 44 Ala. 101. C. 135. non-delivery, or for injury to the cargo. The stipulation makes it obligatory on the consignee or those claiming under him, to prefer his claim, or, in other words, to make a demand at the port, indicated in the clause, for payment before he can maintain his action for damages. The consideration of the legality and effect of a clause, stipulating that the claim be made before the goods are removed, came before the courts of England for the first time in 1876, in the case of Moore v. Harris, which was an appeal to the Privy Council from a judgment of the Court of Queen's Bench in Lower Canada. The clause in the bill of lading concerning the meaning of which the contention arose, was "no damage that can be insured against will be paid for, nor will any claim whatever be admitted unless made before the goods are removed." It was here said that a "shipowner may choose to say I will not be liable for any damage to an article of this kind unless a claim is made, so that it may be looked into and checked by my agents before the goods are removed from their control. And when a condition to this effect is found in a bill of lading expressed in language, which, in its ordinary and natural sense includes all damage, whether latent or not, can the courts undertake to say it is so unreasonable that the parties could not have meant what they said? No doubt this condition may bear hardly on consignees, but so also may the very large exception to the responsibility of the shipowner inserted in the body of this bill of lading. Certainly no reasons for narrowing the scope of the condition can be gathered from the general tenor of the instrument, which is manifestly framed throughout, with a view to exempt the shipowner (as far as could be foreseen) from liability for damage. It may be that this has been done to an unreasonable extent; but the plaintiffs are merchants and men of business and cannot be relieved from an improvident contract, if it really be improvident." § 395. The following condition in a bill of lading was held to be reasonable and binding on the holder of the bill: "The articles named in this bill of lading shall be at the risk of the owner, shipper, or consignee thereof, as soon as delivered from 1 Mahomed Ismailjee v. B. I. S. N. Co., 9 Cal. W. Rep. C. R. 396. 2 Ibrahim Moosum v. B. I. S. N. Co., 8 ib. 35. 8 45 L. J. P. C. 55. the tackles of the steamer at her port of destination and they shall be received by the consignee thereof, package by package as so delivered, and if not taken away the same day by him they may at the option of the steamer's agent be sent to store or permitted to lie where landed at the expense and risk of the aforesaid owner, shipper, or consignee." Where property carried under a bill of lading providing that notice of loss should be given in writing within three days, was lost, the Supreme Court of Missouri said: "We are not prepared to say that the failure of the plaintiff to make the claim in the manner designated would on that account alone deprive him of his right of action." Where a carrier's receipt said: "Consignees are requested to notice any errors within twenty-four hours or the company will consider their liability as ended;" it was held that "errors" must mean mistakes such as would be obvious on external inspection or comparison with the bill of lading. A consignor is not estopped by such a receipt and lack of notice from suing the carriers for the consequences of its negligence in transportation.3 § 396. In a Canada case, it was held that the plaintiff, not having given written notice of loss or damage within twentyfour hours after delivery according to the terms of the bill of lading under which some of the goods were shipped, could not recover in respect to said goods. A carrier cannot limit his legal liability by any notice, by publication or entry on receipts for goods, or on tickets sold, but may make an express contract with the shipper requiring a claim for loss or damage to be made within a limited time." 1 The Santee, 2 Ben. 519. Kyle v. B. & L. H. Ry. Co., 16 2 Oxley v. S. L., K. C. & N. Ry. U. C. C. P. 76. Co., 65 Mo. 629. 5 South. Ex. Co. v. Barnes, 36 Ga. 3 Sanford v. Housatonic R. R. Co., 532. 65 Mass. 155. 290 CHAPTER XXIX. THE BILL IN ITS RELATION TO THE DELIVERY OF GOODS TO THE CONSIGNEE. Surrender of the bill before the de- | Delivery by a carrier on land, § 410. the goods, §§ 398, 399. Wharf delivery by a vessel, §§ 400, 401, 402, 403, 404, 405, 406. W Vrong delivery by a vessel, §§ 407, 408, 409. Acceptance by the consignee, § 413. The person to whom delivery is to be made, § 414. Effect of marks on the goods upon the stipulations in the bill, § 415. § 397. A CLAUSE requiring the presentation to the carrier of bills of lading, properly indorsed, as the evidence on which the delivery of the goods is to be made, is valid.' In the case of Shepard v. Heineken, the facts were that the plaintiff shipped twenty firkins of butter. The voyage was abandoned (owing to the unseaworthiness of the defendant's vessel), before she sailed at all. The defendant refused to give up the butter to the plaintiff, who did not tender or offer to return the bills of lading, or to indemnify the defendant against them. The court held that the bills of lading required the property to be delivered to the consignees therein named, or to their assigns and, without a surrender of the bills or the consent of the consignees, the defendants were not bound to deliver. They had a right to require such surrender or consent, or (what they did require) an indemnity against the bills. The shipper may subject delivery to the consignee to any conditions he thinks proper. So, where flour was delivered to a carrier to be transported and delivered at destination to the consignees, upon presentation of a duplicate 1 Bishop v. Empire Trans. Co., 33 N. Y. Supr. Ct. 99; Ferguson v. Donville, 3 P. & B. (New Brunswick Reps.) 576. See the legislation in Pennsylvania and New York on this subject. 22 Sweeny (N. Y.), 525. |