« ПретходнаНастави »
3. A French firm sold to S. & Co. goods, and shipped them. A bill of lading signed by the shipmaster and indorsed by the French firm was delivered to S. & Co. in exchange for his acceptance at three months' date. Afterwards, the bill of lading was delivered to the agent of the French firm in England to hold as security as against the acceptance. One of the firm of S. & Co. subsequently obtained by fraud the bill of lading, and indorsed it for value, without notice. Before the goods arrived in England, S. & Co. became insolvent. Held, that the consignor's right to stop in transitu was gone (o).
$ 53. Several parts of a bill of lading, signed by the master, Bill of lading are, as a general rule, delivered to the shipper. If such in parts. parts be indorsed to various parties, the first person to whom a part is validly indorsed is entitled to the goods (p).
When goods are shipped under a bill of lading drawn in parts, the master, or the warehouseman who has the custody of the goods, is justified in delivering them to the consignee on production of one part, although there has been a prior indorsement for value to the holder of another part, provided only the delivery be bona fide and without notice of the prior indorsement (a).
CASES. 1. Certain merchants in California agreed to ship wheat to a miller in England, payment to be by his acceptances against bill of lading. They accordingly shipped a cargo, making out a bill of lading in six parts. Three parts, with corresponding bills of exchange drawn on the miller for the price of the wheat, were indorsed by the shippers and transferred to a Californian bank for value. The miller accepted the bills of exchange with the bill of lading attached. The shippers by mistake forwarded an indorsed part of the bill of lading to the miller, who transferred it to an English bank for value. The bills of exchange were dishonoured. Held, that the English bank could not claim as holders of the bill without notice, and that it had no priority (r).
(0) The Marie Joseph, L. R., 1 P. (a) Glyn, Mills & Co. v. East of C. 219.
West India Dock Co., 7 App. Cas. (P) Gurney v. Behrend, 3 E. & 691 ; see “Cases" (2) at end of B. 622; Gilbert v. Guignon, L. R., 8 Ch. 16 ; see “ Cases" (1) at end (v) Gilbert v. Guignon, L. R., of this g.
8 Ch. 16.
2. Goods were shipped for London, the consignees being C. & Co. The shipmaster signed a set of three bills of lading marked “ 1st," “2nd” and “ 3rd ” respectively, making the goods deliverable to C. & Co. or their assigns, freight payable in London, the one of the bills being accomplished the others to stand void. During the voyage C. & Co. indorsed the bill of lading marked “ 1st ” to a bank in consideration of a loan. The goods, on the ship's arrival in London, were landed and placed in the warehouses of a dock company, the master giving the company notice to hold the cargo till the payment of the freight under sect. 68 of the Merchant Shipping Act, 1862 (8). C. & Co. then produced to the dock company the bill of lading marked “ 2nd” unindorsed. The company then entered C. & Co. in their books as owners of the goods; and on the removal of the stop for freight, without notice or knowledge of the bank's claim, delivered the goods to S. on delivery orders signed by C. & Co. Held, that the bank had no right of action against the dock company (t).
$ 54. Assignment By assigning the bill of lading the consignor can convey by consignor the property in the goods, so long as they continue in the lading hands of his agent (u), even though they may have been
landed at their port of destination (x).
Where the consignor indorses and delivers the bill of lading to a certain person, intending to transfer the property in the goods to him, and afterwards indorses and delivers to other persons bills of lading for the same goods, the latter will have no title to the goods, the property in them being already vested in the first indorsee (y).
If the master sign a bill of lading for the delivery of the goods to a certain person or his assigns, and the consignor afterwards sends to another person a second bill of lading, making the goods deliverable to him, the
(8) See Ch. X. § 66, p. 105.
(t) Glyn, Mills & Co. v. East & West India Dock Co., 7 App. Cas. 591.
(u) Ellershaw v. Magniac, 6 Ex. 570; Gabarron v. Kreeft, L. R., 10 Ex. 274 ; 44 L. J., Ex. 238.
(2) Meyerstein v. Barber, L. R., 2 C. P. 38, 661; 4 E. & I. App. Cas. 317; see“Cases” (1) at end of this §.
(y) Caldwell v. Ball, 1 T. R. 205 ; Hibbert v. Carter, 1 T. R. 745 ; McAndrew V. Bell, 1 Esp. 373; Hubbersty v. Ward, 8 Ex. 330.
latter person will have a good title to them, unless some further act be done to vest them in the former (-).
CASES. 1. A bill of lading drawn in three parts, and making cotton deliverable in London on payment of freight, was indorsed to A. A. made an entry under 16 & 17 Vict. c. 107, and the cotton was landed and conveyed to a sufferance wharf in London, where it remained with a stop on it for freight. A., by depositing two parts of the bill of lading, obtained an advance from the plaintiff on the 4th of March, and fraudulently kept the third part, which the plaintiff imagined to be in the captain's possession. On the 7th, the stop for freight being then removed, A. obtained advances from the defendants on the deposit of the third part. The defendants on the 11th, being informed of the prior advance, procured the cotton to be transferred into their names. Held, that the plaintiff was entitled to the cotton (a).
2. M., a planter in Jamaica, shipped on 4th April sugars on board a vessel of the defendant, to whom he owed more than their value. The vessel was employed in carrying supplies to M. and others in Jamaica, and in taking back consignments from them. On 4th April, the captain signed and delivered to M. a bill of lading, by which the sugars were made deliverable to the defendant in London on payment of freight. On 6th, M. indorsed the bill, making the sugars deliverable to the defendant on his giving security for certain payments, but if he did not, to the plaintiff's agent.
M. the same day indorsed and delivered the bill of lading to the plaintiff, to whom he was indebted in more than the value of the sugar. The defendant never had possession of the bill. The sugar arrived in London, but the defendant did not fulfil the condition of the indorsement. Held, that the plaintiff was entitled to the sugars, as M. could change their destination till he had delivered them or the bill of lading to the defendant (6).
STOPPAGE IN TRANSITU.
Stoppage in transituwhat?
$ 55. STOPPAGE in transitu is the right of an unpaid vendor to prohibit and stop the delivery by the carrier of goods forwarded to a vendee, in the event of the vendee becoming bankrupt or insolvent while the goods are in transitu. Thus there are three essentials for the right to exist, viz.: the non-payment of the price of the goods sold, the insolvency of the vendee, and the continuance of the transitus.
The goods are in transitu so long as they are in the custody of the carrier, or in any wharf or warehouse, or other place of deposit connected with their conveyance (a). Though the ship, with the goods on board, has arrived at the vendee's wharf, and the vendee has received the invoice, the transitus is not ended till the vendee takes possession (6).
The mere shipping of goods on board a vessel chartered by the consignee will not end the transitus (c). Even when the vessel is the property of the consignee the transitus will not be ended by the shipment, if by the terms of the bill of lading the goods are deliverable to the order of the consignor, and so a jus disponendi is reserved to him. So where the goods sold are to be carried “free of freight,
(a) Ex parte Rosevear China Clay Co., In re Cock, 11 Ch. D. 560 (C. A.); Ellis v. Hunt, 3 T. R. 464; Smith v. Goss, 1 Camp. 282; Hodgson v. Loy, 7 T. R. 440 ; Dixon v. Baldwin, 5 East, 175 ; Kendall v. Marshall, 46 L. T. 693; Ex parte Barrow, In re Worsdell, 6
Ch. D. 783.
(6) Tucker v. Humphrey, 4 Bing. 516.
(c) Bothlingk v. Inglis, 3 East, 381; Ex parte Rosevear China Clay Co., In re Cock, 11 Ch. D. 560; see “Cases" (2) at end of this g.
being owners' property,” the same rule will prevail (d). Though the goods are shipped on a vessel belonging to the consignee, and though they are made by the bill of lading deliverable to his order, the transitus will not therefore be ended, if the goods were consigned on condition of being paid for in cash against the bill of lading in the hands of the consignor's agent (e).
So delivery to a railway company will not defeat the right to stop in transitu, even though the consignee nominated and employed the railway company to carry the goods. Again, if the goods be warehoused by the company on arrival, at the risk of an agent instructed by the purchaser to ship them, that will not amount to a delivery to the purchaser or his agent (f).
CASES. 1. A purchaser ordered goods to be sent by rail to G., and at the same time (unknown to the vendor) instructed M. & Co. to ship the goods, on their arrival at G., to R. Delay occurring at G., owing to no ship being ready to take the goods, the railway company warehoused them at M. & Co.'s risk. Whilst in the warehouse the vendor stopped the goods. Held, the transitus was not ended, and vendor had a right to stop the goods (9).
2. Under a contract china clay sold was to be delivered free on board at a specified port, and to be paid for by an acceptance of the purchaser. The clay was delivered on board a ship chartered by the purchaser at the port agreed on.
Its destination was not communicated to the vendors. Before the ship sailed, the vendors hearing of the purchaser's insolvency gave notice to the shipmaster to stop the clay in transitu. No bill of lading had been signed, and no acceptance given for the price of the clay. Held, that, the clay being in the possession of the shipmaster only as carrier, the notice to stop was given in time (h).
(d) Berndtson v. Strang, L. R., 3 (5) Kendall v. Marshall, 46 L. T. Ch. Ap. 588; see “Cases" (3) at end 693; see “ Cases" (1) at end of of this $ ; Turner v. Trustees of this g. Liverpool Docks, 6 Exch. 543.
(e) Moakes v. Nicholson, 19 C. B., (h) Ex parte Rosevear China Clay N. S. 290; see “Cases" (4) at end Co., In re Cock, 11 Ch. D. 560; 48 of this §.
L. J., Bk. 100; 40 L. T. 730; 27
W. R. 591 (C. A.).