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A purchaser of a cargo cannot claim as against the vendor for short delivery where, by the terms of the contract, he has to take the risk of its turning out more or less than the stated quantity (g).
CASES. 1. By a bill of lading goods were to be delivered to J. S., if he accepted and paid a bill of exchange; if not, to the holder of the bill of exchange. J. S. accepted the bill of exchange and indorsed the bill of lading for valuable consideration to the defendant. The bill of exchange was, when presented for payment to J. S., dishonoured. Held, that the holder of the bill of exchange was entitled to the goods, as against the indorsee of the bill of lading (h).
2. S. instructed P. & N. in Brazil to purchase cotton for him. They purchased and forwarded the cotton to Manchester, the invoice describing it as shipped on account and at the risk of S. They then forwarded the invoice and two bills of lading to G., their agent here; G. forwarded the invoice, one bill of lading, and a bill of exchange to S., who declined to accept the bill of exchange, but handed over the bill of lading to his brokers. The brokers paid the freight and got a delivery order from the shipowners, but before they obtained possession, G., on the authority of the duplicate bill of lading, got delivery of the cotton. Held, the property in the cotton had not passed to S., but remained with P. & N.; and that G. was therefore entitled to the cotton (i).
$ 51. The consignee of goods named in a bill of lading, or the indorsee of a bill of lading, has the same rights of action, and is subject to the same liabilities in respect of such goods, as if the contracts contained in the bill of lading had been made with himself (k).
The consignee or indorsee can determine the liabilities he thus acquires by indorsing the bill of lading and by so transferring his property in the goods (1). But his liability will not be determined in cases where the property does not pass to the indorsee (m).
Rights and duties of a consignee or indorsee.
(9) Coves v. Bingham, 2 E. & B. 836.
(h) Barrow v. Coles, 3 Camp. 92.
(i) Shepherd v. Harrison, supra.
(k) 18 & 19 Vict. c. 111, s. 1.
(0) Smurthwaite v. Wilkins, 11 C. B., N. S. 842; and see § 52,
(m) Lewis v. M.Kee, L. R., Ex. 58.
BILLS OF LADING.
If the bill of lading provide for the payment of freight or demurrage by the consignee, as it does occasionally, the consignee must pay such freight or demurrage if he take the goods under the bill of lading, even though he has no valuable interest in the goods (n); and even though the delay were caused by the consignees of any other goods carried by the same ship (o). Similarly any other peculiar clauses introduced into the bill of lading will bind the parties thereto and all persons claiming under them.
So an indorsee will take, subject to any condition inserted in the bill of lading or in the indorsement on it. Thus, supposing the goods are by the bill of lading only to be delivered on the consignee accepting and paying a bill of exchange, a subsequent indorsee cannot claim the goods till the condition be complied with (P).
In the absence of any special terms in the charter-party Consignee or bill of lading, the consignee, and not the consignor, is entitled to sue as a general rule the person entitled to sue the shipowner or charterer for any breach of the contract of affreightment, though the freight were paid by the consignor. For the property in the goods on their being shipped will generally pass to the consignee (9). In the following cases the consignor will be entitled to But consignor
in certain sue the carrier:
(1) Where the goods are sent merely on approval (r);
(2) Where the consignor retains a special property in the goods, so as to be liable for the risk (*);
(3) Where the consignor employs the carrier, and the goods are by a special contract with him sent at the consignor's risk (t);
(n) Scaife v. Tobin, 3 B. & Ad. (9) Evans v. Martell, 3 Salk. 290 ; 623; Jesson v. Solly, 4 Taunt. 52 ; Sargent v. Morris, 3 B. & Al. 277;
“ Cases" (1) at end of this g. Dawes v. Peck, 8 T. R. 330.
“ Cases” (2) at end of Rob. 223.
492, n. (p) Barrow v. Coles, 3 Camp. 92 ; (t) Dunlop v. Lambert, 6 C. & F. see “Case" (1) on p. 74.
(4) Where the property in the goods has not passed to the consignee, e.g., through the Statute of Frauds not having been complied with (u);
(5) Where the goods are not to be at the consignee's risk till they have been delivered to and accepted by him (c);
(6) Where the consignor has contracted with the carrier to be answerable for the price of the carriage (y); or
(7) Where under the bill of lading the goods are deliverable to the order of the consignor, even in cases where the goods are shipped at the risk of the consignee (x).
The shipper of goods in an English port for a foreign principal, who pays the freight for them, can sue in his own name for the non-delivery in accordance with the terms of the bill of lading (a).
CASES. 1. The memorandum to a bill of lading stipulated that the ship was to be cleared in sixteen days, and that 81. per day demurrage should be paid after their expiration. The consignee accepted the goods under the bill of lading. Held, that the master could on delivery of the goods claim demurrage at 81. per day from the consignee till the unloading was completed (6).
2. A charter-party entered into for the conveyance of grain from Cronstadt to London stipulated that fourteen working days should be allowed for loading and unloading at the port of discharge and also ten days on demurrage at 35l. a day. The ship was loaded. One of the bills of lading containing the words “paying freight for the same goods and all other conditions as per charter-party indorsed to the defendants. The grain was stowed under the goods of A.; and as A. did not unload his goods within the lay days, the grain was not delivered until three days' demurrage was incurred. Held that, in spite of that, the defendants were liable for three days' demurrage (c).
(u) Coats r. Chaplin, 3 Q. B. 483; Coombs v. Bristol and Exeter Rail. Co., 3 H, & N. 510.
(2) Freeman v. Birch, 3 Q. B. 492, n.
(y) Moore v. Wilson, 1 T. R. 659; Dawes v. Peck, 8 T. R. 330; Davis
V. James, 5 Burr. 2680.
(2) Brandt v. Bowlby, 2 B. & Ad. 932; and see § 50, p.
73. (a) Joseph v. Knox, 3 Camp. 320. () Jesson v. Solly, 4 Taunt. 52.
(c) Porteus v. Watney, 3 Q. B.D. 534.
$ 52. An indorsement of a bill of lading, made in the usual Indorsement manner by the consignee, whether specially or in blank, of dinbill of
a , , and the delivery of the bill of lading to the indorsee (d), will transfer the property in the goods shipped to the indorsee from the date of its delivery to him (@). For a bill of lading is by the rules of the mercantile law a negotiable instrument.
An indorsee of a bill of lading, to whom the property in the goods passes, can sue and be sued thereon (f). However, if he re-indorse the bill of lading before the ship's arrival at her port of discharge, he cannot be sued for freight (9).
Though the consignee named in the bill of lading become insolvent before he has paid for the goods shipped, nevertheless an indorsement by him of the bill of lading for value, and without the indorsee being informed that the goods are not paid for, will convey the property in the goods to the indorsee, and deprive the vendor of his right to stop in transitu (1). This rule will hold good
) even in cases where bills of exchange have been given, which are certain to be dishonoured (i).
Indorsement in blank of a bill of lading and delivery to a bonâ fide transferee for value by a person who has improperly got possession of it, or without the owner's authority, will transfer no property in or title to the
(d) Dracachi v. The Anglo- Eg. Nav. Co., L. R., 3 C. P. 190; see “ Cases" (1) at end of this § ; Hoare v. Dresser, 7 H. L. Cas. 290.
(e) Wright v. Campbell, 1 Bla. 628; Hibbert v. Carter, 1 T. R. 745 ; Barber v. Meyerstein, L. R., 4 E. & I. App. 317.
(f) 18 & 19 Vict. c. 111, s. 1; Short v. Simpson, L. R., 1 C. P. 248 ; Dracachi v. The Anglo-Eg. Nav. Co., L. R., 3 C. P. 190 ; see “Cases" (1) at end of this $; Fou
ler v. Knoop, 4 Q. B. D. 299 (C. A.).
(9) Smurthwaite v. Wilkins, 11 C. B., N. S. 842, 848.
(h) Lickbarrow v. Mason, 5 T.R. 683; Smith's Leading Cases, i. p. 753 ; see “ Cases" (2) at end of this s; The Marie Joseph, L. R., 1 P. C. 219; Leask v. Scott, 2 Q. B. D. 376; and see Ch. IX. Stoppage in Transitu, p. 82.
(i) The Marie Joseph, L. R., 1 P. C. 219; see “Cases" (3) at end of this g.
goods (k), except in cases which fall within the Factors Acts (1). For the transferor must not only have the possession of the bill of lading, but also the right to transfer it, bills of lading not being negotiable to the same extent as bills of exchange.
The Factors Acts (1) enable any agent entrusted with the possession of goods, or of bills of lading, or other documents of title to goods, to pledge or give a lien over them in consideration of bonâ fide advances, including future or continuing advances, though the lender know the borrower to be merely an agent. Where, after a sale of goods, the vendor continues to hold the documents of title, any sale or pledge by him or his agent of the goods or of the documents of title will be valid, provided the purchaser or pledgee had no notice of the previous sale (7).
Cases. 1. An action on a bill of lading was brought by an indorsee against the shipowners for not delivering the goods. The plaintiff put in the bill of lading and proved that the consignors had indorsed and delivered it to A., and that A. had indorsed and delivered it to him for value. Held, evidence to go to the jury of such indorsement and delivery of the bill of lading as to vest the property in the goods in the plaintiff, and to transfer to him the right of action (m)
2. Certain merchants in Zealand shipped goods for Liverpool on the account of F. The shipmaster signed four bills of lading for the goods. Of these two were indorsed by the shippers in blank and sent to F. F. subsequently sent the plaintiffs the two bills of lading, along with the invoice he had received from the shipper, in order that they might take possession of and sell the goods on his account. On the same day F. drew three sets of bills of exchange, amounting to 5201., on the plaintiffs, who accepted and duly paid them. The plaintiffs were creditors of F. to the extent of 5421. A fortnight afterwards, and before the shippers had been paid, F. became bankrupt. Held, the plaintiffs' were entitled to the goods as against the shippers' right to stop in transitu (n).
(k) Gurney v. Behrend, 3 E. & B. (m) Dracachi v. The Anglo-Eg. 622 ; Coventry v. Gladstone, L. R., Nav. Co., L. R., 3 C. P. 190. 6 Eq. 44.
(n) Lickbarrow v. Mason, 5 T. R. (1) 6 Geo. 4, c. 94 ; 5 & 6 Vict. 683; Smith's Leading Cases, vol. i. c. 39; 40 & 41 Vict. c. 39, s. 3.