the directions of Atkins and Co., and, as it seemed, under an opinion that he was bound to do so. The lading was completed, and the ship's clearances obtained on the 28th of October, and the ship, having waited a few days for a wind, sailed out of the mole of Cronstadt, but soon meeting with adverse winds and frost was forced to return to Cronstadt, and was there frozen up, and remained until the 11th of May. The winter began earlier than usual. Upon the arrival of the ship and delivery of the cargo at Leith, the owner claimed of Jamieson and Co. freight at the usual rate for the voyage, demurrage from the 1st of September till the 11th of May, and an indemnification against a claim made upon him by another merchant, for whom he had shipped some flax soon after the arrival of the vessel at Cronstadt, for damages occasioned by the delay in bringing the flax to Leith.

The case was litigated in several Courts in Scotland, and was at last brought by appeal to the British House of Lords. It was admitted, on both sides, that the master might by law have returned empty, or have obtained another cargo after the 1st of September; but the owner of the ship contended, that as the master had waited at the request of the correspondents of Jamieson and Co., they were answerable for all the damage arising from that day.

The House of Lords decided that Jamieson and Co. should pay only the usual freight, and a compensation in the nature of demurrage for the period between the 1st of September and the 29th of October (t). This decision was conformable to one of the determinations which had taken place in Scotland, and also to the usage of trade, as represented by several merchants in London, who had been examined in the cause, and who deposed that the claim of demurrage ceased as soon as a ship is cleared out and ready for sailing.

By a charter-party, the owner covenanted that the ship should take a cargo at a port, and proceed with the first convoy that should sail for England fourteen working days after she was ready to load; and the merchant covenanted to load and despatch her within fourteen days after notice that she was ready to load, with liberty, however, to detain her fifteen running days after the expiration of the fourteen, paying four guineas per day demurrage. The first convoy sailed after the fourteen days were expired, but before the termination of the additional fifteen days. No other convoy sailed until nearly two months after the first. Under these circumstances, the owner sued the merchant for the demurrage, and also for compensation for the detention of the vessel beyond the fifteen days; but it was held that the merchant was not liable for the latter, and that the parties were in the same condition at the end of the fifteen days as they would otherwise have been in at the end of the fourteen days (u).

* 6. The decisions in Randall v. Lynch, Leer v. Yates, and the cases which followed upon them, have been the subject of much doubt and * controversy among merchants and lawyers. That the consignee of

(t) Jamieson and Others v. Laurie, decided in the House of Lords, 10th of November, 1796. Reported 6 Bro. P. C. p. 472,

2nd edit.

(u) Connor v. Smythe, 5 Taunt. 654; 1 Mars. 276.

* goods brought by a general ship should be liable for the delay of those for whose diligence he has not stipulated--over whom he has no control -between whom and himself there is no connexion but that which the contract of the shipowner with them has created, does certainly appear a case of peculiar hardship. Why should one man pay for the neglect of another? Because, it is answered, he has contracted to do so. But the question is, Whether it be not a condition of the contract into which he has entered, to clear the goods within the time specified in the charter-party or bill of lading, that the master should be ready to deliver them, and whether that condition can be considered as performed, while the goods, without any fault of the merchant, continue inaccessible?

Lord Tenterden, on one occasion (e), adverting to these decisions, expressed himself as follows:-"I have great difficulty in saying, that when the consignee has had no opportunity of taking his goods within the time stipulated, he is bound by the contract to pay for not doing so ; he cannot, I think, in that case, be said to detain the vessel. On the other hand, I do not agree to the proposition on the part of the defendant, that he has necessarily the stipulated time, to be computed from the period when the discharge of his own goods can be commenced; I think, after that period he must use reasonable despatch. The true principle seems to be this: If the goods of the particular consignee are not ready for discharge at the time of the ship's arrival, he must have a reasonable time for removing them after they are so; if in such a case, using reasonable despatch, he cannot clear them within the stipulated period from the ship's being ready to discharge her cargo generally, he will not be liable for demurrage till the expiration of such a reasonable time; but when it is expired, he will be liable, though the stipulated period, if computed from the time when the discharge of his own goods could have commenced, is not at an end."

In a subsequent case, Lord Tenterden said, "I am certainly of opinion, that if a consignee cannot get his goods because some other person's goods prevent him, he is not liable for the delay of the vessel" (y):

1

As, however, the decisions thus questioned are still referred to in the works of writers of great experience (2) for the rule of mercantile practice, it has been thought advisable to submit them to the attention of the reader.

(x) Rogers v. Hunter, 1 Mo. & M. 63. (y) Dobson v. Droop, 1 Mo. & M. 441. (2) See M'Culloch's Dictionary of Commerce, tit. Demurrage. See also a "Treatise

on the Office and Practice of a Notary of
England, and on the Law Merchant," by
Richard Brooke, Solicitor and Notary:
Saunders and Benning (1839), p. 162.

CHAPTER IV.

OF THE CONTRACT FOR CONVEYANCE OF MERCHANDISE IN A GENERAL SHIP; AND HEREIN,

(Ss.) 1. The usual Mode of entering into this Contract.

2. Of Bills of Lading-their Form, Signature, and Effect.

3. To whom the Master and Owners are responsible on Bills of Lading. Cases of Conditional Consignment, the Condition being unperformed, considered.

4. Cases of Conditional Consignment, the Condition having been performed.

5. Of the effect of Bills of Lading transmitted as Security for Advances, or to indemnify against Acceptances.

6. Of Actions by Consignees, being only Agents of the Owners of Goods.

7. Remarks on Cases cited.

8. Description of Goods in Bills of Lading.

9. Admiralty Cases. Consignors' or Enemies' property.

1. THE contract for the conveyance of merchandise in a general ship, is that by which the master and owners of a ship, destined on a particular voyage, engage separately with various merchants unconnected with each other, to convey their respective goods to the place of the ship's destination. It has been already shown (a) that this contract, although usually made personally with the master, and not with the owners, is considered in law to be made with them also, and that both he and they are separately bound to the performance of it.

When a ship is intended to be thus employed, it is usual, in London and other places, to give notice of the intention, by printed papers and cards, mentioning the name and destination of the ship, her burthen, and sometimes her force; and sometimes expressing also that the ship is to sail with convoy, or with the first convoy for the voyage, or other matters relating thereto. At a trial at Nisi Prius, in the 40 Geo. 3, it was said by the jury, that among merchants this expression was understood to be an assurance or warranty to the merchant, who laded goods in pursuance of the advertisement, and to become a part of the contract with him, although not afterwards contained in the bill of lading (b).

This dictum, where convoy is not mentioned in the bill of lading, must be considered as very doubtful. In an action afterwards brought by a person who had shipped goods on board a general ship for Grenada, against the owner, for having sailed without convoy, in consequence of which he had lost the benefit of an insurance which he had effected, the

(a) Ante, part 3, ch. 2.

(b) The case here referred to was probably the case of Rinquist v. Ditchell, 3 Esp. 64. It is stated in the report that the bills of

lading contained a warranty to sail with convoy, but that appears, from the observations of Gibbs, Ch. J., in Saunderson v. Busher, after cited, to be an error.

ship having been captured on the voyage, it appeared at the trial that the ship had been put up or advertised "to sail with convoy;" but that the bill of lading made no mention of convoy-that it was, in fact, intended that the ship should sail with convoy, but that she was blown out of the Downs in a gale of wind, and the master then intended to go into Falmouth to wait for a convoy, but being prevented from doing so by the appearance of a French privateer, by which he was chased, he made sail for Grenada, and was afterwards taken.

At the trial the defendant obtained a verdict. The Court was afterwards moved to grant a new trial, and the case was argued at some length. A new trial was granted, in order that the Court might receive further information; and the attention of the counsel was directed to the following points: Whether the concise expression, "to sail with convoy," meant anything more than that the ship was intended to sail with convoy, or could be construed as a warranty that the ship should sail with convoy, in the strict sense of the word warranty? What was the effect of the bill of lading, which made no mention of convoy? convoy? What was the effect of the endeavours used by the master to sail with convoy, and of the circumstances by which he had been prevented from doing so? The cause was not taken down to a second trial (c).

In a subsequent case, before Lord Chief Justice Gibbs, at Nisi Prius, where the bill of lading expressed that the ship was bound for London, with convoy, that very learned Judge held that the bill of lading amounted to an undertaking that the ship should sail with convoy (d). And in a similar case that occurred before Lord Ellenborough, at Nisi Prius, the point was not contested. The defendant, however, succeeded on the ground that his not sailing with the convoy arose from the fault of the shipper (e).

But if a general ship be advertised for a particular voyage, if that be altered, the owner is bound to give specific notice of the alteration to all persons who afterwards ship goods on board the vessel; and he is otherwise answerable for the loss which they sustain, by supposing that the destination of the vessel remains unaltered (f).

2. When goods are sent on board the ship, the master, or person on board acting for him, usually gives a receipt for them, and the master afterwards signs and delivers to the merchant, sometimes two, and sometimes three, parts of a bill of lading, of which the merchant commonly sends one or two to his agent, factor, or other person to whom the goods are to be delivered at the place of destination; that is, one on board the ship with the goods, another by the post or other conveyance, and one he retains for his own security: the master should also take care to have another part for his own use. master must make out his bill of lading according to the direction of the shipper of the goods, or the holder of the receipt given on the shipment, for the shipper has a right to name the consignee to be mentioned in the

(c) Snell v. Marryatt, in K. B. 48 Geo. 3. (d) Saunderson v. Busher, 4 Campb. 54, in note.

The

(e) Magalhaens v. Busher, 4 Campb. 54. (f) Per Gibbs, Ch. J., in Peel v. Price, 4 Campb. 243.

bill of lading, even although it may not be expressed in the receipt that the goods are shipped for his account, this being tacitly understood; and if the master signs a bill of lading for delivery to another person, and delivers accordingly, he may be answerable to the shipper for the value of the goods (g).

I. W. No. 1, a 20.

OLD FORM OF A BILL OF LADING.

SHIPPED, by the grace of God, in good order, by A. B. merchant, in and upon the good ship called the John and Jane, whereof C. D. is master, now riding at anchor in the river Thames, and bound for Barcelona, in Spain, twenty bales, containing one hundred pieces of broad cloth, marked and numbered as per margin; and are to be delivered in the like good order and condition at Barcelona aforesaid (the dangers of the seas excepted), unto E. F., merchant there, or to his assigns, he or they paying for the said goods per piece freight, with primage and average accustomed. IN WITNESS whereof, the master or purser of the said ship hath affirmed to three bills of lading of this tenor and date, one of which bills being accomplished, the other two to stand void. And so God send the good ship to her destined port in safety.

DATED at London, the

day of

The terms of this exception were altered, some years ago, in consequence of an alarm taken by the shipowners, at the decision of a cause that will be mentioned in a subsequent chapter (h); and of late the exception is usually made in the following words: " The act of God, the King's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, excepted." But in the case of ships homeward bound from the West India islands, which send their boats to fetch the cargo from the shore, there is introduced a saving out of this exception of risk of boats, so far as ships are liable thereto." And in that case the whole clause is as follows: "The act of God, the King's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, save risk of boats, so far as ships are liable thereto, excepted." But these additional words are probably redundant; they do not make the owner liable for a loss in boats, to which he would not be liable in the ship, where boats are customarily used (i). Other clauses may be introduced, either to take away the responsibility of the master and owners in cases for which they would

(g) Craven and Another v. Ryder, 6 Taunt. 433, and 2 Marsh. 127.

(h) Smith v. Shepherd, post, ch. 5 of this part, sect. 1. It has been held that a detention and seizure under fiscal regulations at a foreign port are not within the meaning of this exception, so as to exonerate the master and owners.-Spence v. Chadwick,

9 L. J. Q. B. Where a vessel was secured while unloading in a dock by tackle which broke, and she canted over, and her cargo was damaged, it was held that this loss was within the exception.--Laurie v. Douglas, 15 M. & W. 716.

(i) See the case of Johnson v. Benson, 4 B. Moore, 90, and ch. 5 of this part.