have sold the cargo, and that the indorsing of the bill of lading to him gave him no greater rights than any other delivery by symbol could have given; that such a delivery had no greater efficacy than a manual delivery of the property itself, and therefore his action could not be maintained.

It is well settled that the master may prove a short delivery of cargo in cases where he is not responsible even against an assignee of a bill of lading.""

A master cannot bind the vessel or owners by receipting for goods not actually in his custody, and such defense can be set up even against a bona fide holder of the bill of lading, though it is sometimes a nice question as to the exact point at which the goods passed into the custody of the master.2 26

A recital in the bill of lading that goods are received in good condition puts upon the carrier the burden of proving a loss by excepted perils in case the goods when delivered are in a damaged condition."7

SAME-EXCEPTIONS IN GENERAL

81. Independent of statute, a carrier cannot stipulate for exemption from negligence in a bill of lading, as such a stipulation contravenes public policy.28

25 Seefahrer (D. C.) 133 Fed. 793; John Twohy (D. C.) 243 Fed. 720.

26 American Sugar Refining Co. v. Maddock, 93 Fed. 980, 36 C. C. A. 42; Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386, 16 L. Ed. 599; Missouri Pac. R. Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990, 38 L. Ed. 944; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 36 Sup. Ct. 665, 60 L. Ed. 1050.

27 BRITTAN v. BARNABY, 21 How. 527, 16 L. Ed. 177; Nelson v. Woodruff, 1 Black, 156, 17 L. Ed. 97; Jahn v. Folmina, 212 U. S. 354, 29 Sup. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748.

§ 81.

28 NEW YORK C. R. CO. v. LOCKWOOD, 17 Wall, 357, 21 L. Ed. 627; Kensington, 183 U. S. 263; 22 Sup. Ct. 102, 46 L. Ed.

But he may independent of statute, require the shipper to value the goods in the bill of lading, and limit his liability to that valuation." And he may limit his liability for a passenger's baggage. He may require claims to be made against him in a limited time."1

80

Under the decisions of the English courts, a carrier may stipulate for exemption from negligence. As much of the foreign carrying trade is done in English bottoms, some smart Englishman inserted in their bills of lading a clause known as the "flag clause," which stipulated that the contract of carriage should be governed by the law of the vessel's flag. The object was to protect the English carrier against the American shipper. The American courts as a rule have refused to enforce this clause, looking upon it as an indirect attempt to stipulate against negligence.2

It is beyond the limits of this treatise to discuss the construction of the various exceptions contained in bills of lading, or the acts of Congress passed in recent years in regulation of common carriers, and primarily directed at land carriage, though often affecting sea carriage.

29 Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Reid v. Fargo, 241 U. S. 544, 36 Sup. Ct. 712, 60 L. Ed. 1156.

30 Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711, 37 L. Ed. 587.

31 Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Jamison v. New York & P. S. S. Co. (D. C.) 241 Fed. 389; San Guglielmo, 249 Fed. 589, 161 C. C. A. 514.

32 Guildhall (D. C.) 58 Fed. 796; Id., 64 Fed. 867, 12 C. C. A. 445; Glenmavis (D. C.) 69 Fed. 472; Victory (D. C.) 63 Fed. 640; Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190.

1

SAME EXCEPTION OF PERILS OF THE SEA

82. The term "perils of the sea” in a bill of lading means accidents incident to navigation which are unavoidable by the use of ordinary care.

There is a mass of learning and refinement of distinction as to the proper construction of that universal clause, “perils of the sea." It means such accidents incident to navigation as are unavoidable and are the sole proximate cause of the loss. Mr. Justice Woods rather broadly defines the expression as "all unavoidable accidents from which common carriers by the general law are not excused, unless they arise from act of God." 883

The accident from which a carrier is exempted under this clause must arise independently of his acts. If his negligence co-operates, the carrier is responsible. Hence there

are a great many decided cases on the question whether the proximate cause of the loss was his act or a peril of the

sea.

The G. R. BOOTH" is instructive on this point, as it reviews the American decisions. In it the Supreme Court held that a loss caused by an explosion of detonators which blew a hole in the ship, and let the water rush in, was not a peril of the sea; that the phrase alluded to some action. of wind or wave, or to injury from some external object, and did not cover an explosion arising from the nature of the cargo; and that the proximate cause was the explosion, and not the inrush of the water.

To show how narrow is the line of demarkation, the court

§ 82. 83 Dibble v. Morgan, 1 Woods, 406, Fed. Cas. No. 3,881. See, also, Southerland-Innes Co. v. Thynas, 128 Fed. 42, 64 C. C. A. 116.

34 Jeanie, 236 Fed. 463, 149 C. C. A. 515. Compare the meaning of the clause in a marine insurance policy, ante, pp. 75, 80.

85 171 U. S. 450, 19 Sup. Ct. 9, 43 L. Ed. 234.

36

distinguishes this from Hamilton v. Pandorf, in which rats had gnawed a lead pipe, which permitted water to escape and cause damage. The House of Lords held that this was a peril of the sea. The Supreme Court distinguished it on the ground that the water escaped gradually, and therefore was the proximate cause.

At first it was thought that a collision caused by the negligence of either of the two vessels was not a peril of the sea, as a human agency intervened. But it is the better opinion that, if the carrying ship is blameless, a collision is a peril of the sea as to her and her cargo, though the other ship was to blame.3

Although the measure of care as to deck cargoes may not be as rigid as to others, yet even there a stipulation against perils of the sea does not protect from a loss caused by negligence."

"CHARTER PARTIES" DEFINED

83. When the owners of a vessel hire her out, the contract of hire is called a "charter party," and the hirer is called a "charterer."

There are many different kinds of charter party in use. The owner hires his ship out for a definite time, as for a month or a year. This is called a "time charter." 39 A voyage charter is one in which he hires her out for a definite trip, as, for instance, a single trip between two points, or a round trip from one port by one or more others back to the initial port.

36 12 A. C. 518. Compare Citta di Palermo, 226 Fed. 529, 141 C. C. A. 285.

87 Xantho, 12 A. C. 503; ante, p. 76.

88 Compania de Navigacion La Flecha v. Brauer, 168 U. S. 104, 18 Sup. Ct. 12, 42 L. Ed. 398.

§ 83.

39 Mary Adelaide Randall, 39 C. C. A. 335, 98 Fed. 895.

Charters vary also according to the manner in which the hire is payable. A "lump sum" charter, for instance, is one in which the charterer pays a fixed price for the ship. The owner gets his money whether the charterer puts any cargo aboard or not. If he can sublet room to shippers at good rates, the charterer makes a profit; otherwise, a loss. It is much the same transaction as renting a house and trying to sublet the rooms.

A tonnage charter is where the charterer pays a certain rate per registered ton, or per ton of dead weight carrying capacity.*°

Charters vary also with the cargo to be carried. There are grain charters, cotton charters, petroleum charters, coal charters, charters for general cargo, and many others. Though similar in the main, each has its own peculiar provisions growing out of the needs and customs of the particular business.

Again, an owner may charter his bare ship, leaving the charterer to furnish a crew, or he may merely charter the use of the ship, furnishing the crew himself. This distinction is important if a question should arise whether the owner or the charterer is responsible for any tort of the crew. If the crew is employed by the owner, then they are his agents, and he is responsible for their acts within. the scope of their employment. If they are employed by the charterer, the latter is responsible.11

Charter parties are usually made by shipbrokers, who keep on hand printed blanks of the various kinds, and execute them by telegraphic or cable authority.

40 "Dead weight," in its usual acceptation, means the abstract lifting capacity, not deducting dunnage. Thomson v. Brocklebank, 34 T. L. R. 284.

41 Nicaragua (D. C.) 71 Fed. 723; Bramble v. Culmer, 24 C. C. A. 182, 78 Fed. 497; Clyde Commercial S. S. Co. v. West India S. S. Co., 169 Fed. 275, 94 C. C. A. 551; North Atlantic Dredging Co. v. McAllister Steamboat Co., 202 Fed. 181, 120 C. C. A. 395; Willie, 231 Fed. 865, 146 C. C. A. 61.