*For remedy of this inconvenience it has recently been enacted that consignees named in bills of lading and endorsees of bills of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement, shall have transferred to and vested in them all rights of suit in respect of such goods, as if the contract contained in the bill of lading had been made with them. They are thus placed in the position of persons on whose behalf the consignors as agents had contracted with the master and ship-owner (e).

7. In considering to whom he will be safe in making and in refusing delivery, it may be useful to remind the master that he can rarely incur any responsibility by adhering strictly to his engagement with the shipper. The case of Ogle v. Atkinson was a case of fraud; in those of Brandt v. Bowlby and Harden v. Cox, whatever might have been the rights of the consignees, the master and his owners had been safe, had he not departed from his contract in the bill of lading to deliver only to the order of the shipper. In the cases of Haille v. Smith and Anderson v. Clark, the right of the consignees to the goods resulted from the special circumstances under which they were consigned; but their right of action against the master was founded on the neglect of his engagement to deliver to the orders of the shipper. The master should remember, that the cases in which the consignor is entitled to alter the destination of a consignment are not of frequent occurrence. When once he has transmitted a bill of lading to a consignee named in the body of it, and not being his own agent; or in blank, or to his own order, endorsed by him, he may, if the goods were shipped on credit, and the consignee has become insolvent or failed, assert his right of stopping them in their transit; but even that right will avail him nothing against the title of an endorsee for * value (f). The insolvency of the consignee may generally be easily

(e) 18 & 19 Vict. c. 111, s. 1.

(f) See post, Stoppage in Transitu; also, Jones v. Jones, 8 M. & W. 431. "The law in America recognises the same principles as the English law on the subject of the transfer of property by endorsement of the bill of lading. A consignor cannot stop goods in transitu when they are shipped to pay a precedent debt. Neither can he stop them when the consignee is his own agent, if the goods are a shipment for a cestuique trust who has paid the consideration; and when once the bill of lading is signed by the master after the goods are on board, under such circumstances, the consignor and master cannot change the right of property by any change of the papers, so as to divest the interest already vested in the consignee. But where a shipment is made to a creditor on account and risk of the consignor, and there is no contract respecting it between the consignor and consignee, there the right of stoppage and transfer of the property continues, so that the creditor may be defeated by a transfer or countermand before the bill of lading reaches him. And a factor who is a creditor also has no lien on goods

consigned to him by his principal for account and risk of the shipper, if, before they get into his actual possession, the consignor has bonâ fide assigned the bill of lading."-Story, note to American edition, p. 388.

"Where a consignment is made to a factor, for the account and risk of the consignor, and the bill of lading makes the goods deliverable to the consignee or his assigns, then the bill of lading must be endorsed by the consignee, to pass the property to a purchaser claiming in virtue of a transfer by such bill only; and an endorsement by the consignor would not operate as a legal transfer of the bill of lading, so as to defeat the rights of third persons. As against the factor himself, or any other person claiming the goods by a bond fide transfer of the bill of lading, the consignor as owner may assign the property by any legal instrument of assignment whatsoever; but then the party takes by such assignment, for an indorsement can only be made of the bill of lading by the party to whom or to whose order it is originally made assignable, so as by virtue thereof to pass the property."-Ibid. 391.

ascertained; but whether he has paid for the goods, or whether the holder of a bill of lading be an endorsee for value or not, the master can seldom have the means of discovering. In case of conflicting claims, it may be prudent to require indemnity, but if he makes delivery to the person who first claims the goods under a bill of lading regularly assigned to him, the consignor will seldom have much colour to complain, that orders drawn up by himself have been too strictly * observed (g).

8. 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, it is required that bills of lading should contain the quality, quantity, and marks of the merchandise; the name of the merchant who loads them, and of the person to whom they are to be delivered; the place of departure and destination; the names of the master and of the ship; and the price of the freight (h).

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 consequence 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.

*9. Goods going during war to be delivered in an enemy's country under a contract to become the property of the enemy on arrival, are considered by Prize Courts as enemies' property, and questions respecting the proprietary interest in cargoes, of the same nature as those mentioned in this chapter to have been decided between consignors and consignees, have arisen between captors and claimants in the Courts of Admiralty of England and the United States, and been determined upon the same principles. The general rule is, that the property of goods going for the account of the shipper and subject to his order and control remains in him during the transit; and this has been considered to be the case, although the goods were sent in pursuance of the orders of the consignee, or stated to be on his account in the invoice, whenever conditions are annexed to their delivery, or a discretion respecting it is entrusted to the agent of the shipper (k).

(g) See the judgment of Maule, J., in Howard v. Shepherd, 9 C. B. 297.

(h) Liv. 3, tit. 2: Des Connoissemens, art. 2. See also the Code de Commerce, art. 281.

(i) Valin, ubi supra. See also, upon

this subject, Boulay Paty, vol. 2, 309, 313.

(k) See the cases from the American Courts, in Story on Prize Courts, by Pratt; the Abo, 1 E. & A. 347; and the Vrouw Margaretta, 1 Rob. 336. The Sally, 3 Rob. 300 (note); the Aurora, 4 Rob. 219.

*"Where goods," said Lord Stowell(), "are shipped without orders, the consignor has an unlimited right to vary the consignment at pleasure. The seller, if he may be so described, retains an absolute power over them, for there is no purchase. But when orders have been received and executed, and delivery has been made to the master of the ship, and bills of lading (m) (deliverable to the consignee) signed (and transmitted to him), the seller is functus officio, except in the peculiar case in which he is again reinstated by the privileges of the vendeur primitif. That will make it a matter of fundamental importance that the letters containing the original order should be produced. The mercantile law I take to be clear and distinct, that the seller has not a right to vary the consignment except in the case (insolvency) above stated. The mischief and inconvenience that would ensue on a contrary supposition are extreme. The goods might be put on board, and might be at the risk of the consignee for two or three months; and if the consignor could come and resume them at pleasure, it would place the consignee in a situation of great disadvantage, that he should be exposed to the risk during such a length of time, for an object which might be eventually defeated at any moment by the capricious or interested change of intention in the breast of the consignor."

The transfer, by subjects of belligerent states, of property in ships or goods in the course of their transit, to the effect of changing their national character, is not recognized by Courts of Admiralty, if it take place during actual hostilities, or imminent and impending danger * of them (n).

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 of this fourth part, to treat of those general circumstances which may belong to both.

(The Constantia, 6 Rob. 321.

(m) The words within brackets are not in Lord Stowell's judgment, but it is evident from the facts of the case, and from a reference to ch. 11, sect. 2, of this Treatise, that they are implied.

(") The Danckebaar, 1 Rob. 107; the

Herstelder, 1 Rob. 114; the Vrouw Margaretta, 1 Rob. 336; the San Frederick, 5 Rob. 128; the Fidentia, 1 E. & A. 314. And see, upon the subjects discussed in this chapter, the very able Treatise of Mr. Blackburn "On the Contract of Sale," (Benning & Co.) pp. 135-146.

CHAPTER V.

OF THE GENERAL DUTIES OF THE MASTER AND OWNERS; AND

HEREIN,

(Ss.) 1. Of the Preparation.

2. Of the Commencement.

3. Of the Course.

4. Of the Completion of the Voyage.

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, first, the Preparation for the Voyage; secondly, the Commencement; thirdly, the Course; and, lastly, the Completion of the Voyage.

1. And, first, as to the Preparation for the Voyage.

The first duty is to provide a vessel tight and staunch, and furnished with all tackle and apparel necessary for the intended voyage (a); for if the merchant suffer loss or damage by reason of any insufficiency of these particulars at the outset of the voyage, and of delay or loss of market resulting from it (b), he will be entitled to a recompence (c). But there is no implied warranty on the part of

(a) Emerigon, tom. 1, pp. 373, 374, 375. Roccus, not. 19, 57, 69. Ordinance of Rotterdam, 2 Magens, p. 101, art. 124. Molloy, book 2, chap. 2, sect. 10. Wellwood's Sea Laws, tit. 7, p. 72.

(b) Christie v. Trott, 1 W. R. C. P. 15; 22 L.T.101; and see as to insufficient anchors, Harrison v. Douglas, 3 Ad. & E. 396.

* (c) The case of Wedderburn v. Bell, (1 Campb. Rep. 1) was an action on a policy of insurance on the ship Minorca, at and from Jamaica to London. The ship sailed from England with convoy, but parted from the fleet; and being no more heard of, was supposed to have foundered in a hurricane. The defence was, that the ship was not properly equipped with sails. It appeared that her sails to be used in stormy weather were in good condition, but that her main-top-gallant sails and studding sails, which are useful in light breezes, were rotten and almost unserviceable. Lord Ellenborough said, "The hull of the ship in this case was sufficient and seaworthy, but it appears that when she left Jamaica her sails were highly defective. It is not enough that a ship is supplied with such sails as are essential to her safety

from the perils of the sea, and which might enable her, if not intercepted, at some period or other to complete her voyage; she must be rendered as secure as possible from capture by the enemy, as well as from the dangers of the winds and waves. But here the Minorca appears to have been deficient in sails, on which her speed might materially depend; and, if so, the risk being thereby greatly increased, the policy never attached, and this action cannot be supported." With respect to insufficiency of such particulars after the commencement of the voyage, resulting from the negligence or default of the master and crew, as it affects the liability of insurers, see Hollingsworth v. Brodrick, 7 Ad. & Ell. 40; and Dixon v. Sadler, 5 M. & W. 405. See the observations of Baron Parke, affirmed 8 M. & W. 895, and White v. Crisp, 2 W. R. Exch. 624. To a declaration alleging that the vessel was not seaworthy at the commencement of the voyage, whereby the plaintiff was prevented from insuring, a plea that before any damage, loss, or prejudice accrued to the plaintiff, the vessel was made seaworthy, is no answer and bad. Dunbar v. Smaithwaite, 4 W. R. Q. B. p. 68.

a shipowner that his ship is seaworthy when contracting with a seaman to make a voyage in her (d).

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 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 (e). Valin, in his commentary upon this article, cites an observation of Weytsen, "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 its 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 (f), 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 in his own treatise on the contract of letting to hire) to be, that if the 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 (g). 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 cove

(d) Couch v. Steel, 3 E. & B. 402. (e) Liv. 3, tit. 3, Fret, art. 12.

(f) Traité de Charte-partie, num. 30. The author here refers to his own excellent Traité de Louage, part 2, chap. 1, sec. 4, par. 2. But it rather appears to me that the rules there laid down by himself warrant the conclusion, that in this instance the owner and master ought to be responsible for the loss"Lorsque le locateur devoit par sa profession être informé du vice de la chose louée, il est tenu des dommages intérêts du con

ducteur, sans qu'il soit besoin de chercher, si effectivement il en a eu connoissance ou non." And he instances the case of a cooper or shopkeeper, letting casks made of bad wood.

*(g) Le capitaine perd son fret, et repond des dommages intéréts de l'affréteur, si celui-ci prouve que, lorsque le navire a fait voile, il était hors d'état de naviguer. La preuve est admissible non obstant, et contre les certificats de visite au départ.-Code de Commerce, art. 297.*