Abbott on one bill of lading unindorsed should be sent to him, and another Shipping indorsed to the shipper's agent; the one to inform the consignee of the shipment, the other to be handed over to him when the condition is performed. The consignee should also be told that a bill of lading, indorsed, is in the hands of the shipper's agents. When goods are shipped under a bill of lading, making them deliverable to the shipper's own order, the property does not vest in the consignee until the bill of lading has been delivered to and has been accepted by him. Then by framing the bill of lading so, and withholding its delivery to him, security may be obtained. The master must adhere strictly to his engagements with the shipper, as to the delivery. The bill of lading is at once the contract and his instructions. If the consignee be named, and he produce a bill of lading properly indorsed, the master can have no difficulty, and can run no risk. If he is to deliver to the order of the shipper, such order is to be looked for in a bill of lading properly assigned; and to the person producing such an order, the master is to deliver the goods mentioned in it. Master's duty. Whether specified in ing. The consignor's right to stop the goods in transitu is left for another chapter. If there is any dispute about the quantity or condition of the goods, or if the contents of casks or bales are unknown, the words of the bill of lading should be varied accordingly. By the French ordinance of Louis XVI., it was required, that bills of lading should contain the quality, quantity, and marks of the merchandise, the name of the merchant who loaded them, and of the person to whom they were to be delivered, the place of departure and destination, the names of the master and the ship, and the price of the freight. It is obvious that the quality, and frequently also the quantity, of the goods must be unknown to the master; and the commentator on the ordinance informs us, that by the quality, the exterior and apparent quality only is meant; and further, that it is usual for the master to insert words, denoting that the quality and quantity are only according to the representation of the merchant; of which practice he approves, and mentions two disputes decided in favour of the master in conseGoods put quence of this precaution. Some of the more ancient writers on maritime law, mention the case of goods put on board a ship without the knowledge or consent of the master or owners. It is evident that in such a case no contract for conveyance is made, but nevertheless the master, upon delivery of them, will be entitled to the usual freight for the voyage. on board without consent of master. d Having thus considered the several particulars belonging distinctly to the two different species of contract for the conveyance of merchandise by sea, I proceed, in the following chapters, to treat of those general circumstances which may belong to both. a Key v. Cotesworth, 7 Exch. 607. c Liv. 3, tit. 2. Des Con. art. 2; & Valin, ubi supra. By the 26 Geo. 3, c. 86, gold, silver, diamonds, &c. must be inserted in the bill of lading, or otherwise declared in writing: if not, the master or owner will not be liable for any robbery, embezzlement, making away with, or secreting thereof. See Gibbs. Potter, 10 M. & W. 70. 179 CHAP. XII. CHAPTER XII. THE GENERAL DUTIES OF THE MASTER AND OWNERS. IN whatever way the contract for the conveyance of merchandise be made, the master and owners are thereby bound to the performance of various duties of a general nature. I propose to treat of these duties in the present chapter, and shall consider them as they regard, 1st, the preparation for the voyage; 2nd, the commencement; 3rd, the course; and, lastly, the completion, of the voyage. And, firstly, as to the preparation for the voyage. The first duty Condition of is to provide a vessel tight and staunch, and furnished with all ship, &c. tackle and apparel necessary for the intended voyage. For if the merchant suffer loss or damage by reason of any insufficiency of these particulars at the outset of the voyage, he will be entitled to a recompense. An insufficiency in the furniture of the ship cannot easily. be unknown to the master or owners: but in the body there may be latent defects unknown to both. The French Ordinance (of 1681)b directs, that if the merchant can prove, that the vessel, at the time of sailing, was incapable of performing the voyage, the master shall lose his freight, and pay the merchant his damages and interest. Valin, in his commentary on this article, cites an observation of Weïtson, "that the punishment of the master in this case ought not to be thought too severe, because the master by the nature of the contract of affreightment is necessarily held to warrant, that the ship is good, and perfectly in a condition to perform the voyage in question, under the penalty of all expenses, damages, and interest.' And he himself adds that this is so, although before the departure the ship may have been visited according to the practice in France, and reported sufficient; because on the visit the exterior parts only of the vessel are surveyed, so that secret faults cannot be discovered, "for which by consequence," says he, "the owner or master remains always responsible: and this the more justly, because he cannot be ignorant of the bad state of the ship; but even if he be ignorant, he must still answer, being necessarily bound to furnish a ship good and capable of the voyage." Pothier, taking notice of this article, and of the commentary upon it, declares his own opinion (in conformity, as he observes, to the general principles of law established a Emerigon, tom. 1, p. 373; Roccus, Not. 19, 57, 69; Ord. of Rotterdam, b Liv. 3, tit. 3, Fret. art. 12. c Traité de Charte-partie, n. 30. The author here refers to his own excellent Traité de Louage, part 2, ch. 1, sect. 4, par. 2. But it rather appears to me that the rules there laid down by himself, warrant the conclusion that in this in- Abbott on in his own treatise on the contract of letting to hire) to be, that if the Shipping. ship has been visited and reported sufficient, the master or owner shall not be answerable for damages occasioned by a defect, which they did not, nor could know; but he agrees that they shall lose their freight. It may be observed, however, that defects of this sort cannot exist, unless occasioned by the age, or particular employment of the ship, or some accidental disaster that may have happened to it; all of which ought to be known to the owner, and ought to lead to an examination of the interior as well as exterior parts. And indeed, this contract, although greatly partaking of the nature of the contract of letting to hire, is not precisely the same, but includes in itself a warranty, beyond that which is contained in the contract for letting to hire. In a charter-party, the person who lets the ship covenants that it is tight, staunch, and sufficient; if it is not so, the terms of the covenant are not complied with, and the ignorance of a covenantor can never excuse him. And with regard to a general ship, Ch. J. Holt, in his elaborate argument on the law of bailments, distinguishes the contract made for the carriage of goods from the contract of letting to hire; and speaking of the former, when made by a person in a public employment, says, "The law charges the person (viz. common carrier, hoyman, master of a ship) thus entrusted to carry goods, against all events but acts of God and of the king's enemies;" so that a common carrier is an insurer against all perils or losses not within the exception. And the contract of insurance, properly so called, is clearly void, if the ship, at the commencement of the risk, be not sea-worthy, although the person who has effected the insurance be ignorant of that circumstance. And not only must the ship, and her furniture, be sufficient for the voyage, but she must also be furnished with a sufficient number of persons of competent skill and ability to navigate her. And, for sailing down rivers, out of harbours, or through roads, &c., where, either by usage, or the laws of the country, a pilot is required, a pilot must be taken on board.c Must be properly manned. Pilot. Loading. The manner of taking goods on board, and the commencement of the master's duty in this respect (not to mention at present the observation of the regulations of the Custom-house)d depend on the custom of the particular place. More or less is to be done by wharfingers or lightermen according to the usage. If the master receive goods at the quay or beach, or send his boat for them, his Responsibi- responsibility commences with the receipt. And as soon as any lity of mas- goods are put on board, he must provide a sufficient number of persons to protect them; for, even if the crew be overpowered by ter for goods. a Coggs v. Bernard, 2 Ld. Raym. 918; 1 Smith's L. C. 82. b Ante, p. 62. c Ante, pp. 139, 148. d Post, p. 182. e See Cobban v. Downe, 5 Esp. 41. Molloy, b. 2, ch. 2, s. 2; Roccus, Not. 88; Wellwood, tit. 9, Dig. 4, 9, 3; see Morewood v. Pollok. 1 E. & B. 743. Morse v. Slue, 1 Vent. 190, 238; Rich v. Kneeland, Hob. 17; Dig. 4, 9, 1, 1. "Nisi hoc esset statutum, materia daretur cum furibus adversus eos quos recipiunt, coeundi, cum ne nunc quidem abstineant hujusmodi fraudibus." the word fures here means thieves only and not robbers, who come with a superior and irresistible force; they are called latrones: thus by the Digest, 17, 2, 52, But C a superior force, and the goods stolen, while the ship is in a port CHAP. XII. or river within the body of a county, the master and owners will be answerable for the loss, although they have been guilty of neither fraud nor fault: the law, in this instance, holding them responsible from reasons of public policy, and to prevent the combinations, that might otherwise be made with thieves and robbers. It is in all Care in cases the duty of the master to provide ropes, &c., proper for the shipping, actual reception of the goods into the ship. And if a cask be stowing, &c. accidentally staved in letting it down into the hold of the ship, the master must answer for the loss. The ship must also be furnished with proper dunnage (pieces of wood placed against the sides and bottom of the hold) to preserve the cargo from the effects of leakage according to its nature and quality.d And care must be taken by the master (unless by usage or agreement this business is to be performed by persons hired by the merchant) so to stow and arrange the different articles, of which the cargo consists, that they may not be injured by each other, or by the motion or leakage of the ship.e And more must not be taken on board than the ship can conveniently Quantity of carry, leaving room for her own furniture and the provisions of the goods. crew, and for the proper working of the vessel. Neither may the Contraband master take on board any contraband goods, whereby the ship and goods. other parts of the cargo may be liable to forfeiture or detention.g The master must also take on board no false or colourable papers, Proper pathat may subject the ship to capture or detention ; and he must pers, &c. procure and keep on board all the papers and documents required must be on for the manifestation and protection of the ship and cargo by the 3, a partner, who has the care of the joint property, is not answerable, "si id latrocinio aut incendio perierit,” but he is answerable, "si a furibus subreptum sit:" Upon which Gothofred observes, "adversus latrones parum prodest custodia ;-adversus fures prodesse potest, si quis advigilet. Latrocinium fatale damnum, sed casus fortuitus est; at non furtum." And the words of the Digest, title Nautæ caupones stabularii, &c. 4, 9, 3, are, "nisi si quid damno fatali contingat; inde Labeo scribit, si quid naufragio, aut per vim piratarum perierit, non esse iniquum exceptionem ei dari, idem erit dicendum si in stabulo aut in caupona vis major contigerit." So that our law at present is stricter in the case of carriers, than the Civil law; but it is said to have been the same formerly, and not to have charged a carrier in the case of robbery, unless he travelled by dangerous ways, or at unseasonable hours. See Jones on Bailments, p. 103; post, 191. a See De Rothschild v. R. M. S. P. Co. 7 Exch. 734. b Laws of Oleron, art. 10; Laws of Wisbuy, art. 22; Wellwood, tit. 9. c Goff v. Clinkard, cited 1 Wils. 282. d Ord. of Rotterdam, 2 Magens, 101, art. 125, 126. e Wellwood, p. 29; Ord. of Antwerp, 2 Mag. p. 16, art. 8; French Ord. liv. 2, tit. Du Cap. art. 12; Laws of Wisbuy, art. 23; Laws of Oleron, art. 11, and Cleirac thereon. f Roccus, Not. 30, Ord. of Rot. 2 Molloy, b. 2, ch. 2, s. 7; Roccus, Guidon, ch. 5, art. 33; Molloy, b. board. Abbott on law of the countries, from and to which the ship is bound, and by Shipping the law of nations in general, and treaties between particular states. The rule of the French Ordinance (of 1681), on this subject is, that the master must have on board the charter-party and other documents relating to the proof of his lading. Valin, in his commentary on the Ordinance, says, that this article relates chiefly to a time of war, and that if a ship should be condemned as good prize on account of the master's failure in this respect, he must answer for the event. I have confined the rule in the manner above expressed, because it would be unjust to charge the master or owners for some cases of omission, upon which ships have been condemned in France, although the terms of the condemnation have been such as to discharge the insurers from their responsibility, according to the established rule of the law of nations, which holds the sentence of a foreign court to be conclusive of the fact, upon which it is founded, when such fact appears on the face of the sentence free from doubt, and to which rule the courts of justice in this country have adhered with the dignity belonging to regular and permanent establishments. Where by the terms of a charter-party a number of days is appointed for the lading of the cargo, either generally and without payment on that particular account by the merchant, or by way of demurrage, the master must not sail before the expiration of the time. On the other hand, a delay in sailing, to be justified, can only be for the purposes of the voyage, as for papers, provisions, or the like.d When to sail. In what ships ware housed goods to be exported. As to the exportation and entry of goods, and the clearance of ships from the U. K. to parts beyond the seas, the Customs Consolidation Act, 1853 (16 & 17 Vict., c. 107), contains the most important matter. It declares that 66 no person shall export any warehoused goods, nor enter any such goods for exportation from the U. K. to parts beyond the seas in any ship of less burden than 50 tons, except to the islands of Guernsey and Jersey, in ships not being of less than 40 tons burden, regularly trading to those islands." That the master shall, before any goods be Certificate taken on board, deliver to the collector or comptroller a certificate of clearance from the proper officer of the due clearance inwards or coastwise of and entry such ship of her last voyage, and shall also deliver therewith an entry outwards of such ship. And if such ship shall have commenced her lading at some other port, the master shall deliver to the searcher the clearance of such goods from such other port; and if any goods be taken on board any ship at any port before she shall have been entered outwards at such port (unless a stiffening order, when necessary, shall be issued by the proper officer to lade any heavy goods for exportation on board such ship), the master shall forfeit the sum of 100%.f outwards. Goods only That "no goods shall be shipped, put off, or water-borne to be to be ship shipped for exportation, from any port or place in the U. K., except ped on pro- on days not being Sundays or holidays, nor from any place except per days and places, and not until entry and clearance. a See 16 & 17 Vict. c. 107. b Liv. 3, tit. 1, cha.-parties, art. 10, and Valin thereon. See also Poth. ch.partie, n. 31. c See 2 Smith's L. C. 453. d Langhorn v. Allnutt, 4 Taunt. åll; Raine v. Bell, 9 East, 195; Palmer v. Marshall, 8 Bing. 320; post, 190. e s. 117. £ s. 118. |