of Congress declares the ship-owner to be free. Such usage is not to be attached to words in a contract which have no such meaning of themselves.1 2 § 82. Terms used in the bill which by custom have acquired a technical meaning will be taken in that sense. Thus if the language of a bill of lading be deemed insufficient to determine the meaning of the words "quantity guaranteed" used therein, they may be regarded as a technical expression known and understood by persons in the business and evidence from such a person is proper to explain it.3 66 Where a carrier receipted for certain marble slabs as "unwrought marble," it was held that the words "wrought" and unwrought" were of doubtful signification and it was competent for the owner to show the meaning given to them by custom and usage and that such custom, in order to bind the carrier need not be universal, settled or uniform, among dealers and carriers." § 83. In a bill of lading a direct voyage is prima facie intended, but a custom of stopping at intermediate points, or an agreement of the parties so to do, may show the intention to have been otherwise.5 In Wright v. Holcombe, the plaintiff shipped flour in defendant's vessel which stopped at various places out of her direct course to complete her cargo. The vessel was wrecked while out of her course. The bill of lading contained the usual exceptions as to act of God, the Queen's enemies, fire and dangers and accidents of navigation. The Court held that the deviation not appearing to be in the usual course of trade, the defendant was liable for the value of the flour. Chief Justice DRAPER, in delivering the opinion, said: "Looking at the bill of lading and considering its terms only, the presumption would be that a direct voyage was intended. If it were shown. that there was a usage to stop at intermediate places, or if personal knowledge could be brought home to the shipper that 1 Walker v. Transp. Co., 3 Wallace, 150. 5 Bancroft v. Peters, 4 Mich. 619. 2 Wayne v. Stm. Pike, 16 Ohio, 360; Cobb v. Blanchard, 11 Allen, stopping at intermediate places must have been intended in order to complete the loading of the vessel, then the presumption arising from the language of the bill of lading would be qualified. The existence of such a voyage, or of such knowledge, are matters of fact to be determined by the jury. The parties have desired and agreed that the Court shall decide this case on the evidence. . . . . The evidence of usage was not of that character to warrant the legal inference that the direct contract is controlled by it." § 84. A usage of trade in conflict with positive law will not be sustained. Thus a usage of trade that a valid contract for carriage may be thrown up at the convenience of either party is not good. A consignee or an indorsee of a bill of lading has no right to have the value of missing goods deducted from the freight payable in respect of the goods delivered. This being the general law, it cannot be altered by a universal practice of merchants which is not confined to any particular place or trade to have the value of such goods deducted from the freight. There can be no such custom inconsistent with the law.3 § 85. A clean bill imports that the goods are to be stowed under deck and parol evidence to vary such a bill is, as a general rule, inadmissible. Even in an action by the vendor against the purchaser for the price of the goods which were lost in consequence of the stowage on deck by the carrier, it was held that parol proof that the vendor agreed that the goods should be so stowed could not be received. Testimony to prove a verbal agreement that the goods might be stowed on deck was rejected in the case of Barber v. Brace,5 on the ground that the whole conversation before and at the time the writing was given was merged in the written instrument. Where it appeared that the shipper or his agent who delivered the goods to the carrier repeatedly saw them as they were stowed in 1 Wright v. Holcombe, 6 U. C. C. P. Rep. 531. Randall v. Smith, 63 Me. 105. ૩ Meyer v. Dresser, 33 L. J. C. P. 289; 12 W. R. 983; 10 L. T. N. S. 612; 16 C. B. N. S. 646. Creery v. Holly, 14 Wendell, 28; Star of Hope, 2 Sawyer, 15. 6 3 Conn. 9. 6 See also The Wellington, 1 Bissell, 279. that way and made no objection, it has been held, that the evidence of these facts was not admissible to vary the legal import of the contract of shipment. The bill, being what is called a clean bill, bound the carrier to transport the goods under deck.1 Where the bill stipulated that goods were to be carried on deck, parol proof was held inadmissible to affect the stipulation. Clear extrinsic proof that the bill was signed by mistake and that the actual agreement was that the goods should be taken and stowed on deck, is admissible. It would be but a mistake committed in reducing an agreement to writing, a mistake from which a court of equity would relieve.3 4 § 86. Suit was brought for damages for non-delivery of cotton in good order, as stipulated by the bills of lading and the defendants answered that it was the custom of carriers to transport goods in open vehicles and boats exposed to the weather, that such custom was known to and acquiesced in by the shippers in the case in question and that the cotton suffered solely from rain falling upon it during the conveyance. It was held that the exemption from liability, claimed by defendants, seemed well founded in reason and a necessary result of the circumstances. In the case of "The Delaware," it was held that shipowners are bound to have goods safely secured under deck, unless they are authorized to carry on deck by the usage of a particular trade or the assent of the shipper. Mr. Justice CLIFFORD, said, inter alia, that, "Testimony to prove a verbal agreement that the goods might be stowed on deck was offered by the defence in the case of Barber v. Brace, but the court rejected the testimony, holding that the whole conversation, both before and at the time the writing was given, was merged in the written instrument, which undoubtedly is the correct rule upon the subject." In an action for the loss of certain lumber shipped from Gardiner, Me., to Boston, Mass., under a "clean" bill of lading 1 Sproat v. Donnell, 26 Me. 187. 2 Sayward v. Stevens, 3 Gray (69 Mass.), 97. 3 Doane v. Keating, 12 Leigh (Va.), 391. 4 Chevallier's Adm'r v. Patton, 10 Texas, 344. 5 The Delaware, 14 Wallace, 579. and stowed on deck, it was held that the bill was affected by the custom of stowing such cargoes as convenience required, either below or upon deck and that no liability attached to the carrier, no negligence having been shown.1 § 87. In the case of Lamb v. Parkman' a libel in admiralty was filed by the owner of the vessel to recover a balance of freight on a charter-party. The contract was in the usual form and contained the clause, "dangers of the seas, fire and navigation excepted." The respondent claimed a set-off for a loss occasioned by an alleged improper stowage of the cargo and injury to it from steam. Mr. Justice SPRAGUE, in entering a decree for the libellant, said: "It appears by the evidence that three-fourths, at least, of all the merchandise imported into the United States from Calcutta are brought into the port of Boston and that almost all the cargoes are more or less affected by this steam damage, as it is called. . . . It has not been shown, that the amount of injury in the present case is unusual. After a careful consideration of all the evidence I think that it clearly proves a usage to stow cargoes in the Calcutta trade, consisting of the same kind of goods as this, in the same manner as this cargo and these goods were stowed. It was further clearly proved, that this kind of damage had always been borne by the shipper and never by the ship-owner. There is no controversy that the parties may make a contract for any mode of stowage which they may see fit. What contract have they made in this respect? In the absence of expressed stipulations the usage of the trade answers this question. To that usage the contract tacitly refers, not to contradict or vary its terms, but for expounding its meaning and supplying details in the mode of its execution. But it is insisted that, under such a charter-party, it is the practice for masters to give a bill of lading at Calcutta, in the usual form and that, as this was done in the present case, the owners thereby became insurers against all losses not coming within the express or implied exceptions. Without pausing to inquire what would be the rights of an assignee, I apprehend that, as between the original parties, the bill of lading must be deemed a receipt 1 Sproat v. Donnell, 26 Me. 185. 21 Sprague, 343. or acknowledgment of the goods taken on board, without varying the obligations of the charter-party. But suppose that by virtue of this usage, the bill of lading is imported into the original contract, is not the usage for the shipper always to bear this steam damage also imported into the contract? If usage creates liabilities by giving a bill of lading, does not usage also limit those liabilities to the exclusion of the present claim? But independently of this view, what are the liabilities of the carrier, under the bill of lading? By the express exceptions, he is not responsible for loss or injury arising from the perils of the sea or navigation and the law also exempts him from liability for damage or deterioration arising from the nature of the article and its confinement in the hold during the voyage." § 88. It was the opinion of Mr. Justice RANDALL, in Knox v. The Miretta,' where the usage to carry wood on deck had been urged as a sufficient defence, that a usage or custom, if proved, cannot be suffered to vary the positive stipulations of a contract. The usage may always be waived at the will of the parties. Again, in another case, where it was contended that the goods were carried on deck with the consent of the shipper, it was held that: "It did not so appear in the bill of lading, which was what is called a clean bill, i. e., it was silent as to the mode of stowing the goods and contained no exception to the master's liability, but the usual one of the dangers of the sea. A bill of lading therefore imports, unless the contrary appear on its face, that the goods are to be safely secured under deck." 72 In an action for the loss of certain whiskey carried on deck and washed overboard, it was held that owners of vessels are responsible in any event for the loss of goods stowed on deck, unless such stowage is authorized by the consent of the shipper or by custom. 1 Crabbe's Reps., p. 534. 2 The Waldo, 2 Ware's Reps., 165. 66 Dorsey v. Smith, 4 La. 211. |