Las one part, although consisting of very different articles; but that Chap. 5. the contents of one bill of lading are not bound to the payment due for the contents of another bill of lading, although consigned to the same person (i). In this country, however, it has been held, that the master may detain any part of the merchandise for the freight of all that is consigned to the same person (k), which seems to be a more reasonable and convenient rule. The master, however, cannot detain the goods on board the ship until these payments are made, as the merchant would then have no opportunity of examining their condition. By the ordinance of Wisbuy (1), and also by the French ordinance (m), the master may seize and detain the goods in the lighters or barges, which are to transport them to the quay, and by the former he may detain the lighters by the ship's side. Cleirac (n), in his commentary on the laws of Oleron, says that the same power is given by the ordinance of Philip the Second and by the Consolato del Mare, and that the latter allows him to detain goods equal in value to four times the amount of the freight. The ordinance of Rotterdam allows the master to detain the goods for his freight, but requires him to unload and take care of them, that they may not be diminished or spoiled (o). In England, the practice is to send such goods as are not required to be landed at any particular dock to a public wharf, and order the wharfinger not to part with them till the freight and other charges are paid, if the master is doubtful of the payment. And by the law of England, if the master once parts with the possession out of the hands of himself and his agents, he loses his lien or hold upon the goods, and cannot afterwards reclaim them (p). If the master land his goods at any particular wharf or dock, in obedience to an Act of Parliament, he does not thereby part with his lien (q).] We have noticed, ante, p. 240, the provisions in the 25 & 26 Vict. c. 63, as to a shipowner landing goods and preserving his lien over same. [The baggage of a passenger may be detained for the passage money, which is to be considered as payable in respect of the person and his baggage; but the passenger himself cannot be detained, nor the clothes taken from his person (r). The master has no right to] (m) Liv. 3, tit. 3, Fret, art. 23. (n) Art. 21, note 3, p. 72. (0) Arts. 157, 158; 2 Magens, 106. (p) [By the French Ordin. liv. 3, tit. 3, Fret, art. 24, the lien or privilege continues while the goods are on board the ship, in the lighters, or on the quay, and even for a fortnight after they have been delivered, provided they have not in the meantime (q) [Wilson v. Kymer, 1 M. & S. 157. (r) Wolf v. Summers, before LAWRENCE, J., at Guildhall, 2 Campb. 631. Part IV. [detain goods actually brought for the payment of what is usually called dead freight, as I have before observed (a). The manner of delivering the goods, and consequently the period at which the responsibility of the master and owners will cease, depend upon the custom of particular places, and the usage of particular trades (b). Thus, a hoyman, who brings goods from an outport into the port of London, is not discharged by landing them at the usual wharf, but is bound to take care and send them out by land to the place of consignment (c).] With respect to goods coming from a foreign country, it was said by Mr. Justice BULLER, that the bill of lading was only an undertaking to carry from port to port, and that, according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the master (d). The master should, however, recollect that his engagement is to deliver the goods to the persons mentioned in the bill of lading or their assigns; and where, to an action for not delivering goods shipped on board a steam-packet at Dublin to the plaintiff or his assigns at the port of London, pursuant to the bill of lading, the defendant pleaded, that he safely landed and deposited the goods in and upon a certain wharf called Fenning's wharf, at the said port of London, there to remain until the same could be delivered to the plaintiff or his assigns-the said wharf being a place at which goods conveyed in steam-vessels from the port of Dublin to the port of London were on their arrival used and accustomed to be landed and deposited, for the use of the consignees thereof, and a place fit and proper for the purpose; and that the goods were there destroyed by an accidental fire, without alleging such delivery to have been made according to the custom or practice of the port of London, or that a reasonable time was allowed to elapse after the ship's arrival at the port of London, in order to give time to the consignee to claim and receive his goods alongside the vessel-it was held ill. "The defendants," said Chief Justice TINDAL, "profess in their plea to substitute a delivery at Fenning's wharf, in the port of London, for and in the place of a delivery at the port of London, to the plaintiff or his assigns,' as required by the terms of the bill of lading. But we know of no general rule of law which governs the delivery of goods under a bill of lading, where such delivery is not expressly in accordance with the terms of the bills of lading, except that it must be a delivery according to the practice and custom usually observed in a port or place of delivery. An issue raised upon an allegation of such a mode of delivery would accommodate itself to the facts of each particular case, and would let in every species of excuse from the strict and literal compliance with the precise terms of the bill of (a) See ante, p. 231. (b) See Valin on the French Ordinance, tom. 1, p. 530. (c) [Wardell v. Mourillyan, 2 Esp. N. P. C. 693.] See Howard v. Shepherd, 9 C. B. 297, in which it was said by MAULE, J., that the master of a ship, after waiting a reasonable time at a foreign port, and no person having produced the bill of lading, may deliver the goods to some person to keep till the bill of lading is produced. (d) Arguendo in Hyde v. Trent and Mersey Navigation Co., 5 Term. Rep. 397. lading, which must be necessarily allowed to prevail, with reference Chap. 5. to the means and accommodation for landing goods at different places, the time of the arrival and departure of the vessel, the state of the tide and wind, interruptions from accidental causes, and all the other circumstances which belong to each particular port or place of delivery" (e). [If the consignee send a lighter to fetch the goods, it seems the master of the ship is obliged, by the custom of the river Thames, to watch them in the lighter, until the lighter is fully laden; and he cannot discharge himself from this obligation by declaring to the lighterman that he has not hands to guard the lighter, unless the consignee consent to release him from the performance of it (ƒ). But it has been much contested whether the master is by the usage bound to take care of the lighter after it is fully laden, until the time when it can be properly removed from the ship to the wharf. At a trial on this question, it was held that the master was not obliged to do this (g). When ships arrive from Turkey, and are obliged to perform quarantine (h) before their entry into the port of London, it is usual for the consignee to send down persons, at his own expense, to pack and take care of the goods; and therefore, where a consignee had omitted to do so, and goods were damaged by being sent loose to shore, it was held that he had no right to call upon the master of the ship for a compensation (i).] On the arrival of the vessel at her homeward port, and when com- Protests. pelled by accidents or injury to put back, or into a port other than that of her destination, it is usual for the master to present himself before a notary, and cause a protest to be noted, and afterwards drawn up or extended (k). British consuls at foreign ports are empowered by statute to perform notarial acts (1); but inasmuch as their attestation would probably not be deemed abroad of equal authenticity with that of the regular public notary, the master would do well to address himself to that functionary. He should remember, however, that our courts do not adopt the rules of evidence which prevail in foreign courts, and although copies of documents attested by a public notary may be evidence of the originals abroad, they will not be received as such in England (m). The protest is a declaration or narrative by the master of the parti (e) Gatliff v. Bourne, 4 Bing. N. C. 314; in the Exchequer Chamber, Bourne v. Gat. liff, 3 Scott, N. R. 1; 7 M. & G. 850; 11 Cl. & F. 45. (f) Catley v. Wintringham, Peak. N. P. C. 150. (g) [Robinson v. Turpin, Guildhall, Peak. 203 (notes), 3rd Ed., before Lord ELLENBOROUGH, Ch. J. This was an action by the owner of the goods against the lighterman, and the plaintiff obtained a verdict. At a former trial, before Sir James MANSFIELD, Ch. J., the plaintiff had been nonsuited.] And see Strong v. Natally, 4 Bos. & Pull. 16. (h) As to Quarantine, see stat. 6 Geo. 4, c. 78; 39 & 40 Vict. c. 36, s. 234; 38 & 39 Vict. c. 55, sched. 5, Part III.; and sec M'Culloch's Dictionary of Commerce. (i) Dunnage v. Jolliffe, before Lord KENYON, Ch. J., at Guildhall Sit. p. Mich. Term. 1789. (k) Brooke's Office and Practice of a Notary, p. 144. () 5 & 6 Will. 4, c. 62, s. 15; 18 & 19 Vict. c. 42. (m) Appleton v. Lord Braybrooke, 2 Stark. 6; 6 M. & S. 34; and Black v. Lord Braybrooke, 2 Stark 7; 6 M. & S. 39. Part IV. culars of the voyage, of the storms or bad weather which the vessel has encountered, the accidents which have occurred, and compelled him, if at an intermediate port, to resort to it, and the conduct which, in cases of emergency, he had thought proper to pursue. With whatever formalities drawn up, it cannot be received in our courts as evidence for the master or his owners (a); but it may be evidence against him and them, and he should take care to supply from the log-book, his own recollection, and that of the mate, or trustworthy mariners, true and faithful instructions for its preparation. Protests are often of great utility in matters connected with the adjustment of losses in marine insurance and in the calculation of averages; they are received as evidence in foreign courts, and with us credit is often given to their contents by merchants and underwriters, when free from all circumstances of suspicion (b). Protests are also made by the master against the charterers of the ship or the consignees of goods for not loading or unloading the vessel pursuant to contract, or within reasonable or stipulated delays; and by the merchant against the master for misconduct, drunkenness, &c., for not proceeding to sea with due despatch, for not signing bills of lading in the customary form, and other irregularities. Forms of protest applicable to ordinary occasions will be found in the Appendix. (a) Senat v. Porter, 7 Term. Rep. 158, and Rex v. Scriveners' Co., 10 B. & C. 511. See the Betsey, 2 Hagg. 28. (b) Brooke's Office and Practice of a Notary, p. 9; and see 5 & 6 Will. 4, c. 62, s. 15. See as to log-books, Rundle v. Beaumont, 4 Bing. 537. CHAPTER VI. ON THE CAUSES WHICH EXCUSE THE MASTER AND OWNERS; SECTS. 1. Acts of God, p. 327. 2. Perils of the Sea. Pirates. Collision, p. 329. 3. Lightning, p. 333. 4. Embezzlement, Robbery, &c., p. 334. 5. Neglect, &c., of Pilots, p. 334. 6. Restraint of Princes, p. 334. 1. Acts of God. [Ir has been already intimated (c), that a carrier is in general excused for a non-performance of the contract on his part, occasioned by any event falling within the meaning of the expression Act of God and the King's enemies. The expression Act of God denotes natural accidents, such as lightning, earthquake, and tempest, and not accidents, arising from the negligence of man (d), for which it has been already shown that the master and owners, like other common carriers, are sometimes answerable, although no actual blame may be imputable to them; for in considering whether they, or other carriers, are chargeable for any particular loss, the question is, not whether the loss happened by reason of the negligence of the person employed in the conveyance of the goods, but whether it was occasioned by any of those causes which, either according to the general rules of law or the particular contract of the parties, afford an excuse for the non-performance of the contract. Thus, the master has been held answerable for a loss of the goods occasioned by a seizure of the ship by the officers of the revenue for a supposed violation of the revenue laws, although, in the result of the proceedings under the seizure it may appear that there was no cause for condemnation (e). And where a shipowner contracted to carry goods safely to London, it was held, that the seizure and con-] (c) [In the preceding chapter, pp. 283, 284. In the preamble to the stat. 26 Geo. 3, c. 86, the cases in which the master and owners are exempted from responsibility are expressed to be accidents by the King's enemies, the perils of the sea, or the act of God.] This exception includes the enemies of the Sovereign of the person by whom the bill of lading or contract of carriage is made; though his title be not that of " King," that word in the exception meaning all Princes (d) [Trent and Mersey Navigation Co. v. Chap. 6. |