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received from a vessel arriving from Chicago and that a bill of lading had been issued by the vessel and was still outstanding. The vessel's bill was regarded as transferring the property and it alone was used in obtaining the goods from the carrier. It was held that the vessel's bill did not become functus officio upon the arrival of the grain at the intermediate point, but continued to represent the cargo until its arrival in Boston.

§ 427. One who holds a valid title to or interest in merchandise, as the holder of a bill of lading received by him in good faith and for value from one having a title so transferable, is not bound to give notice of his title to the carrier or to take any further measures to protect his interest, though he must not be guilty of laches or of such acts as will estop him from setting up his title. Upon his failure to obtain actual or constructive possession of the goods, his remedy may be in some cases against the carrier and in others against parties who have obtained the goods from the carrier; but his right to take the goods or to obtain equivalent damages remains unimpaired. It is the carrier's duty to deliver the goods to the party mentioned in the bill as the one who is to receive them. When there has been an indorsement or assignment it is the duty of the carrier to deliver the goods to the indorsee or assignee. When there are several copies of the bill the goods may properly be delivered to the first party presenting one of them if there be no notice of other indorsements of the other copies, although another has a paramount title by virtue of a prior indorsement." In such a case the prior indorsee is remitted to his remedy against the party who obtained the goods. He may justify a non-delivery to the holder of the bill of lading by interposing the jus tertii, but, except in the case of duplicate or triplicate bills, he cannot excuse himself for a delivery to the wrong person on the ground that the holder of the bill of lading was unknown to him and gave him no notice of his title. If after diligent inquiry the holder of the bill cannot be found, it is the

1 See Forbes v. Boston & Lowell

R. Co., 133 Mass. 154.

Glynn v. East and West India Dock Co., L. R. 7 App. 605.

3 Meyerstein v. Barber, L. R. 4 H. L. 317.

carrier's duty to retain the goods upon storage until a rightful claim to them is established. If by failure so to do the indorsee is deprived of his title, whatever damage has been suffered by the conversion, may be recovered from the carrier.1

1 The Thames, 14 Wall. 98; Forbes v. Boston and Lowell R. Co., 133 Mass. 154; Farmers' Bank v. Logan, 74 N. Y. 568; Meyerstein v. Barber,

L. R. 4 H. L. 317; Glynn v. East and
West India Dock Co., L. R. 7 App. Can
605.

313

CHAPTER XXXI.

BILLS OF LADING ISSUED BY CARRIERS WITHOUT
RECEIVING THE GOODS.

Carrier is not liable on such an unauthorized issuance by his agent. Grant v. Norway, §§ 428, 429.

The contrary rule prevails in some jurisdictions-New York, Kansas, Nebraska, § 434.

Effect of the English Bills of Lading Statutes providing that bills of lading

Act, § 430.

Issuance of second bill for goods re

ceived, § 431.

American cases-The Schooner Free-
man v. Buckingham, § 432.
The rule applies to bills issued by
shipping agents, § 433.

shall be conclusive evidence of the receipt of the goods, § 435. The bill gives title to goods received subsequently to its issuance, § 436. The rule is not affected by statutes prohibiting the issuance of the bill without the receipt of the goods, § 437.

§ 428. IT is a necessary incident to the purely symbolic character of the bill of lading that it cannot have the office and effect of a representative of goods where in fact none have been delivered to the carrier. It has no value which is fixed in measure by anything but the goods which it specifies and declares to be in the possession of the particular carrier and therefore when it fails to be a symbol of those goods it fails to be a symbol of anything. Stated in this form the proposition would seem to be self-evident, but there grows out of it a further question. Admitting that such a bill cannot possibly be considered a representative of the goods which it purports to represent, how are the relations which may be created by its issuance to be adjusted? Does the issuing of such a bill by an agent of the carrier impose upon the latter the liability he would incur as an actual recipient of the goods? The answer to this question involves considerations based upon the principles of agency, of estoppel and of negotiability. The question has been the subject of many well-considered decisions and it may now be regarded as a thoroughly settled principle in a majority of important commercial jurisdictions (though

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the contrary rule obtains in others'), that an agent cannot bind the carrier by issuing a bill of lading for goods which are not delivered to him for transportation. The adoption of this rule has been founded upon the cardinal principle that a servant cannot create any liability upon the part of his master by the commission of acts beyond the scope of his ordinary employment. This principle appeared in a dictum by Mr. Justice LITTLEDALE, in the case of Berkley v. Watling, decided by the King's Bench in 1837, although the same court had decided a few years before, on what would appear to be the directly contrary principle, that the ship-owner who has given a bill of lading by which freight appears to have been paid before the ship's departure from port is estopped, as against an assignee of such bill, from alleging that the freight was not so paid.*

§ 429. The leading English case is that of Grant v. Norway. In that case the subject was treated chiefly as a question of agency. "The point presented," said the court, "is whether the master of a ship, signing a bill of lading for goods which have never been shipped, is to be considered as agent of the owner in that behalf, so as to make the latter responsible. The authority of the master of a ship is very large,

. . but is subject to several well-known limitations. . . It is not contended that the captain had any real authority to sign bills of lading, unless the goods had been shipped. Nor can we discover any ground upon which a party taking a bill of lading by indorsement, would be justified in assuming that he had any authority to sign such bills, whether the goods were

1 Grant v. Norway, 10 C. B. 665; Coleman v. Riches, 16 ib. 103; McLean v. Fleming, L. R. 2 H. L., S. & D. App. 128; Jessel v. Bath, L. R. 2 Ex. 267; Brown v. Powell Coal Co., L. R. 10 C. P.462; Berkley v. Watling, 7 Ad. & El. 29; Erb v. Great Western Rwy. Co., 5 Duval (Canada), 179.

2 The Schooner Freeman v. Buckingham, 18 How. 182; Pollard v. Vinton, 105 U. S. 7; The Lady Franklin, 8 Wall. 325; Friedlander

v. Texas, etc., Ry. Co., 130 U. S. 416; Batavia Bank v. N. Y., etc., R. Co., 106 N. Y. 195.

3 7 Ad. & El. 29.

Howard v. Tucker, 1 Barn. & Ad. 712. The cases may be reconcilable upon the ground that issuing a receipt for freight charges is within the captain's powers, Grant v. Norway, 10 C. B. 680, though he cannot bind the owners by a contract to carry freight free. Ib. 687.

5 10 C. B. 665.

on board or not. If, then, from the usage of trade and the general practice of ship-masters, it is generally known that the master derives no such authority from his position as master, the case may be considered as if the party taking the bill of lading had notice of an express limitation of the authority and in that case, undoubtedly, he could not claim to bind the owner by a bill of lading signed, when the goods therein mentioned were never shipped. The very nature of a bill of lading shows that it ought not to be signed until goods are on board, for it begins by describing them as "shipped." The general usage gives notice to all people that the authority of the captain to give bills of lading is limited to such goods as have been put on board and a party taking a bill of lading, either originally or by indorsement, for goods which have never been put on board is bound to show some particular authority given to the master to sign it." The case is of course made doubly strong where a plaintiff consignee, in an action against the owners of the ship, is also the shipper and alleges that he, the plaintiff, caused the goods to be shipped; since, in such a case, the plaintiff can support his issue only by making the defendant, and consequently the latter's agent, his agent and thereby affecting himself as principal with knowledge of the fact that the goods were not shipped. No liability can, of course, be imposed upon the owner by his master's false bill where the former has himself, or by a separate agent, assumed the exclusive performance of a master's duties by loading his own ship.3 In Canada the rule of Grant v. Norway has been adopted, though not without a vigorous dissent, notably in the case of Erb v. Great Western Railway Co., in which the question divided successively the Queen's Bench, the Court of Appeals and the Supreme Court.

1 Coleman v. Riches, 16 C. B. 103; McLean v. Fleming, L. R. 2 H. L., S. & Pl. App. C. 128; Jessel v. Bath, L. R. 2 Ex. 267; Brown v. Powell Coal Co., L. R. 10 C. P. 562.

29.

2 Berkley v. Watling, 7 Ad. & El.

3 Walter v. Brewer, 11 Mass. 99.

42 Up. Can. Q. B., 90; 3 Tupper, 446; 5 Duval, 179. See, also, Oliver v. Great Western Railway Co., 28 Up. Can. C. P. 143.

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