(to whom the property is intended to pass) the same rights of suit as if the contract had been with himself, and, therefore, in the present case, as the bill of lading does not amount to an admission by the master that fifty tons of coal were shipped on board, the plaintiff could not, as a simple consignee of the coal, recover under that section against the master without proving that the fifty tons were actually shipped. Section 3, however, places a consignee or indorsee, who has given value, in a far better position as regards the master or other person signing the bill of lading. It says that in their hands the bill of lading, representing goods to have been shipped on board, shall be conclusive evidence of such shipment as against the master or other person signing the bill of lading, notwithstanding that such goods, or some part thereof, may not have been so shipped, unless the holder of the bill of lading shall have had actual notice, at the time of receiving the same, that the goods had not, in fact, been laden on board, and leaves only one ground of defence open to the person so signing the bill of lading to plead, namely, that the misrepresentation was caused without his default and wholly by the fraud of the shipper. "The first important question, then, is, what was the amount of coal which this bill of lading represented as having been shipped? Did it represent to third persons who might deal with the shipper that the exact amount of fifty tons of coal had been shipped? If the written and printed words are reconcilable, as they must be taken to be for the purposes of this argument, we are at a loss to see on what ground it can be contended that the bill of lading taken as a whole, represents to the public as a fact on which they may rely, that fifty tons of coal had been shipped. Undoubtedly the bill of lading commences by representing that there have been shipped on board the steamship' Hutton,' fifty tons of coal, but the representation referred to in section 3 must, we think, mean the representation made by the whole instrument. This appears from the preamble which says: "Whereas it frequently happens that the goods in respect of which bills of lading purport to be signed, have not been laden on board, and it is proper that such bills of lading in the hands of a bona fide holder for value should not be questioned by the master or other person signing the same, on the ground of the goods not having been laden.' Here, however, the bill of lading does not purport to be signed by the master in respect of fifty tons of coal, exactly. The object is to protect the bona fide holder, without notice, and to make those persons liable who have represented to him through the bill of lading that a certain amount of goods have been shipped. Here, however, the bill of lading gives him clear notice that the master, upon whose signature he is supposed to rely, does not admit that fifty tons were shipped. This conclusion follows irresistibly from the previous decisions as to the effect of the printed condition or the written words. If they are reconcilable and the bill admits of reasonable and fair explanation, it cannot be said that the bill of lading was signed by the master in respect of fifty tons of coal. But it was said that the Act prevents the master from guarding himself against the effect of the written words, or, in other words, the object of the Act was to throw on him, as between himself and bona fide holders, the obligation of ascertaining the truth of the 'written words.' But this would be to put a construction on the Act far beyond the object as stated at length in the preamble, and would, in our opinion, require distinct words to that effect-words which are certainly not to be found in this Act. "This view of the Act is adopted by the Chief Baron and Mr. Baron MARTIN, in the parallel case of Jessel v. Bath,' although it was not necessary to decide the question, as the action was against a person who had not signed and who was held by the Court not to be bound by the person signing. They both, however, expressed an opinion that no action could have been brought on the bill of lading, under section 3, of the Act, even against the person signing. We are of opinion, therefore, that this question should be answered in the negative." 6 § 62. "A mere receipt for the goods without the words 'in good order and condition,' has the same effect, notwithstanding the addition of the words, weight, contents and value unknown.' Therefore when on delivery, the goods are found to be injured, it will be presumed that they were properly packed in a fit state for transportation unless there is some 1 Law R., 2 Ex. 267. thing in their appearance or condition to afford ground for a contrary inference or unless some evidence to that effect is given." The converse of the rule is also true. Therefore, where the carrier contracts to carry certain closed cases alleged to contain specific goods [linen], but adds "contents, weight and value unknown," he must carry the cases whatever they contain. "The effect of the words is to do away with the description of the goods as linen." English v. Ocean Stm. Nav. Co., 2 Blatchford, C. C. 425; The Peter der Grosse, 1 L. R. Prob. Div. 414; 34 L. T. N. S. 749. 44 2 Lebeau v. Gen. Steam Nav. Co., 42 L. J. C. P. 1; 8 L. R. C. P. 88. CHAPTER V. A BILL OF LADING IS A CONTRACT-RULES OF A bill of lading is a contract, § 63. Verbal agreement is not merged where Illustrations of the principle, § 67. Parol evidence is admissible to explain 74. The bill is to be construed according to the intention of the parties, § 77. § 63. A bill of lading is more than a receipt. It is an agreement for a consideration to transport certain goods to a specified place and there to deliver them to a person named or to his order or assigns. It is a written contract for the performance of a certain duty.' The contract between ship and shipper is contained in the bill delivered to the shipper. If the bill kept by the captain differs from the shipper's bill, the latter prevails and the captain's bill must fall. In Dunn v. Branner, it was held that the bill does not create the contract Shaw v. Merchants' N. B. of St. L., 8 W. N. C. (Penna.), 221; Hostetter v. Baltimore, etc., R. R. Co., 11 Atl. Rep. (Pa.), 609; Wayland v. Mosely, 5 Ala. 430; Ontario Bank v. Hanlon, 23 Hun (N. Y.), 283; Bishop v. Empire Trans. Co., 48 How. Pr. (N. Y.), 119; Horrell v. Parish, 26 La. Ann. Rep. 6; C. & N. W. R. R. Co. v. N. L. Packet Co., 70 Ill. 217; Helliwell v. G. T. R. W. Co., 10 Bissel, 170; Lawrence v. McGregor, v. Wright (Ohio.), 193; Huntingdon v. 2 Ontario Bank v. Hanlon, 23 Hun (N. Y.), 283. 13 La. Ann. Rep. 453. between the shipper and the carrier and that it has only been adopted as a convenient mode of establishing the contract. In Swift v. Pacific, etc., Steamship Co., it was held that if the bill of lading made out by the carrier does not conform to a special contract between the parties, the contract and not the bill must control.1 § 64. Parol evidence is inadmissible to vary the terms or legal import of a bill of lading which is free from ambiguity as to the destination of the property or the freight to be paid or any other of the terms of the contract for carriage. The rule, however, that the bill cannot be varied by parol, is binding only upon the parties to it. The rule does not apply to other persons whose rights are incidentally affected by the bill of lading. The principle that the bill as a contract is not to be varied by parol evidence, does not exclude testimony showing that it is the contract of other persons than those in whose name it is executed. Thus a plaintiff was permitted to charge by parol evidence, the owner of a steamboat with a loss under a bill given by the master in his own name.' § 65. The bill of lading, receipt, or other voucher expressing the terms and conditions of transportation, accepted without objection by the shipper from the carrier, in the absence of proof of fraud or mistake, is to be taken as the sole evidence of the final agreement of the parties and by it their duties and I 106 N. Y. 206. Fitzhugh v. Wiman, 9 N. Y. 559; Collender v. Dinsmore, 55 ib. 200; Sayward v. Stevens, 3 Gray (64 Mass.), 97; Creery v. Holly, 14 Wend. (N. Y.), 26; Sproat v. Donnell, 26 Maine, 187; Center v. Torry, 8 Martin's La. Rep. 206; Hostetter v. Baltimore, etc., R. R. Co., 11 Atl. Rep. (Pa.), 609; Camden & Atl. R. R. Co. v. Bausch, 6 Cent. Rep. 121; Petrie v. Heller, 35 Fed. Rep. 310; Peck's v. Dinsmore, 4 Porter (Ala.), 212; Babcock v. May, 4 Ohio, 346; May v. Babcock, ib. 334; McTyer v. Steele, 26 Ala. 487; White v. Vankirk, 25 Barbour (N. Y.), 16; Ind. & Cin. R. R. Co. v. Remmy, 13 Ind. 518; White v. Ashton, 51 N. Y. 280; Simmons v. Law, 8 Bosw. 213; Arnold v. Jones, 26 Texas, 335; Tudor v. Macomber, 14 Pick. (Mass.) 34; Wolfe v. Myers, 3 Sandf. 7; Wayland v. Moseley, 5 Ala. 430; Higgins v. U. S. M. S. S. Co., 3 Blatchf. (U. S. C. C.), 282; Wayne v. Str. Gen. Pike, 16 Ohio, 421; Scovill v. Griffith, 12 N. Y. 509; Dixon v. C. & I. R. R. Co., 4 Bissell's Rep. 137; Adams Ex. Co. v. Boskowitz, 107 Ill. 660; Ide v. Sadler, 18 Barb. 32. The Phebe, 1 Ware's Rep. (D. C. Me.), 263. McTyer v. Steele, 26 Ala. 487. |