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Pt. VII. 492.

PAET VII.—DELIVERY OF GOODS.

As to the respective rights and liabilities of the shipowner, and the consignee or the holder of the bill of lading, at Common Law, under the Sufferance Wharfs Act (11 & 12 Vict. c. xviii), and under the sections of the M. S. A. 1862, here reproduced, see per Willes, J., in Meycistein v. Barber (1866), L. E. 2 C. P. 38 (affirmed by Ex. Ch. and H. L.; see infra, s. 494).

Delivery of Goods and Lien for Freight. 492. In this Part of this Act unless the context otherwise Definitions

• under

requires— Pttrt VII

The expression " goods" includes every description of wares [1862, s. 66.]

and merchandise: The expression "wharf " includes all wharves, quays, docks,

and premises in or upon which any goods, when landed

from ships, may he lawfully placed: The expression " warehouse " includes all warehouses, build

ings, and premises in which goods, when landed from ships,

may be lawfully placed: The expression " report" means the report required by the

customs laws to be made by the master of an importing

ship: The expression "entry" means the entry required by the

customs laws to be made for the landing or discharge of

goods from an importing ship: The expression "shipowner" includes the master of the ship

and every other person authorised to act as agent for the

owner or entitled to receive the freight, demurrage, or

other charges payable in respect of the ship: The expression "owner" used in relation to goods means

every person who is for the time entitled, either as owner

or agent for the owner, to the possession of the goods (a),

subject in the case of a lien (if any), to that lien: The expression "wharfinger" (b) means the occupier of a

wharf as hereinbefore defined: The expression "warehouseman " (b) means the occupier of a

warehouse as herein-before defined.

(a) As to the position of a consignee for sale taking delivery from the warehouseman, see Furneii v. White, infra (s. 495).

(A) These expressions have been substituted for " wharf owner" and " warehouse owner" throughout thesc_sections.

Pt. VII. 493. 493.—(1.) Where the owner of any goods imported in any

^T f~h~ smP fr°m foreign parts into the United Kingdom fails to make

owner to enter entry thereof, or, having made entry thereof, to land the same and land or take delivery thereof, and to proceed therewith with all con

dtfault'bv venient speed, by the times severally herein-after mentioned, owner of the shipowner may make entry of and land or unship the goods goods. at the following times (a) :—

[1862, B. 67.] (a ■j a ^me for the delivery of the goods is expressed in the charter party, bill of lading, or agreement, then at any time after the time so expressed (&): (b.) If no time for the delivery of the goods is expressed in the charter party, bill of lading, or agreement, then at any time after the expiration of seventy-two hours, exclusive of a Sunday or holiday, from the time of the report of the ship. (2.) Where a shipowner lands goods in pursuance of this section he shall place them, or cause them to be placed—

(a.) If any wharf or warehouse is named in the charter party,

bill of lading, or agreement, as the whnrf or warehouse

where the goods are to be placed and if they can be

conveniently there received, on that wharf or in that

warehouse; and

(b.) In any other case on some wharf or in some warehouse

on or in which goods of a like nature are usually

placed ; the wharf or warehouse being, if the goods are

dutiable, a wharf or warehouse duly approved by the

Commissioners of Customs for the landing of dutiable

goods.

(3.) If at any time before the goods are landed or unshipped (c)

the owner of the goods is ready and offers to land or take delivery

of the same, he shall be allowed to do so, and his entry shall in

that case be preferred to any entry which may have been made

by the shipowner (d).

(4.) If any goods are, for the purpose of convenience in assorting the same, landed at the wharf where the ship is discharged, and the owner of the goods at the time of that landing has made entry and is ready and offers to take delivery thereof, and to convey the same to some other wharf or warehouse, the goods shall be assorted at landing, and shall, if demanded, be delivered to the owner thereof within twenty-four hours after assortment; and the expense of and consequent on that landing and assortment shall be borne by the shipowner (e).

(5.) If at any time before the goods are landed or unshipped (c) the owner thereof has made entry for the landing and warehousing thereof at any particular wharf or warehouse other than that at which the ship is discharging, and has offered and been ready to take delivery thereof, and the shipowner has failed to make that delivery, and has also failed at the time of that offer to give the owner of the goods correct information of the time Pt. VII.

at which the goods can he delivered, then the shipowner shall, 493. before landing or unshipping the goods, in pursuance of this "~

section, give to the owner of the goods or of such wharf or warehouse as last aforesaid twenty-four hours' notice in writing of his readiness to deliver the goods, and shall, if he lands or unships the same without that notice, do so at his own risk and expense (e) (/).

(o) The parties may make a contract by bill of lading or otherwise, which will exclude the operation of the statute. Wilsott v. London, Italian, $c. S. H. Co. (1865), 35 L. J. C. P. 9; L. R. 1 C. P. 61, 66; Oliver v. Cohen (1879), 27 W. R. 822. Where a charter party allows a certain time for landing, the shipowner cannot land the goods subject to the lien given by s. 494 until it is evident the ship cannot be discharged within the time allowed. Smailes v. Hans Lessen § Co. (1906), 94 L. T. 492.

(b) See Marzetti v. Smith, infra, and other cases cited in note (c).

(<•) The section only applies where the owner of the goods has previously failed to take delivery as mentioned in sub-s. (1); hence, when not in default, the owner cannot take advantage of sub-s. (3). Marzetti v. Smith (1883), 49 L. T. 680; 5 Asp. M. L. 0. 166 (C. A.); affirming 1 C. & E. 6. Nor of sub-s. (5). Oliver v. Cohen, supra. See also Glyn v. East and West India Ok. Co. (1882), 52 L. J. Q. B. 146; 7 App. Cas. 591, 607 (H. L.); affirming 50 L. J. Q. B. 62; 6 Q. B. D. 476; and 4 Aep. M. L. C. 220. But the default need not be wilful. The shipowner is at liberty to land the goods under the section, "whenever the delivery of them to the owner within the proper time has been prevented by the force of circumstances, whether the latter is or is not to blame." The Energie {Miedbrodt v. Fitzsimon) (1875), 44 L. J. Adm. 25; L. R. 6 P. C. 306, at p. 316; The Clan Matdonald (1883), 62 L. J. P. 89; 8 P. D. 178, 183.

It seems that, where part of the goods have been landed before he is ready to take delivery, the goods-owner may still avail himself of the provisions of sub-ss. (3) and (5), provided that the shipowner can deliver the remainder without any further loss or injury than he would have incurred if the goods-owner had been ready before any of the goods were landed. Wilson v. London, Italian, $c. S. X. Co., supra.

(d) The section does not entitle the goods-owner to demand delivery in a manner opposed to a custom of the port which is not inconsistent with the terms of the bill of lading. Marzetti v. Smith, supra.

(e) When goods are landed under sub-s. (4), sub-s. (5) does not apply, for the latter refers only to the discharging of cargo overside, and not to the landing of it for assortment on the wharf; and, therefore, the written notice referred to in sub-s. (5) docs not apply to cases under sub-s. (4). Ibid. But it is the duty of the owner to take delivery of the goods within a reasonable time after he knows that he can have them, whether sub-s. (4) or sub-s. (5) applies. Per Sir J. Hanncn, ibid. In the case cited, notice to the owner's lighterman that he could have the goods was considered sufficient notice to the owner under sub-s. (4).

(/) In order to entitle him to the benefit of sub-s. (5), the owner of the goods when he makes an offer to take delivery of them must be in a condition to receive the same if the offer be then accepted. Beresford v. Montgomerie (1864), 24 L. J. C. P. 41; 17 C. B. (N. S.) 379. And when such offer is made, the shipowner, if he then fails, not only to make delivery of the goods, but also to give such owner information of the time at which they can be delivered, is bound to give the twenty-four hours' notice before he lands the goods, although he was never asked to give such information. Ibid. But the concluding words of the section do not moan that, where the goods are landed without such written notice, they are to remain at shipowner's risk and expense for any time that tho goods-owner thinks fit to leave them. The written notice is only required as a condition of the shipowner's right to land tho goods at the goods-owner's risk and expense. The duty of the goods-owner remains, to take the goods within a reasonable time after ho has notice, whether written or verbal, that he can receive them. Per Sir J. Hannen, The Clan Macdonald, supra.

The sub-section was held inapplicable where the consignee's agent made a premature demand for the goods, and the shipowner, who was acting under the Pt. VII.

494 495. bill of lading and not under the Act, was unable to give delivery or correct

_ information as to the time thereof owing to his boniijide ignorance of the position

of the goods in the hold of the ship. Oliver v. Cohen, supra.

Lien for 494. If at the time when any goods are landed from any

freight on ship, and placed in the custody of any person as a wharfinger or

good"8 warehouseman, the shipowner gives to the wharfinger or ware

[1862, s. 68.] houseman notice in writing that the goods are to remain subject

to a lien for freight or other charges payable to the shipowner

to an amount mentioned in the notice (a), the goods so landed

shall, in the hands of the wharfinger or warehouseman, continue

subject to the same lien, if any, for such charges as they were

subject to before the landing thereof (b); and the wharfinger or

warehouseman receiving those goods shall retain them until the

lien is discharged as herein-after mentioned, and shall, if he fails

so to do, make good to the shipowner any loss thereby occasioned

to him (c).

(a) If a master wilfully inserts in the stop order an amount which he knows to be in excess of that for which he has a lieu, the delivery to the warehouseman is tantamount to a wrongful detention of the goods, and, as such, is an actionable breach of duty. The Energie {Miedbrodt v. Fitzsimoti) (1875), 44 L. J. Adm. 25; L. R. 6 P. C. 306. But, as to whether he would be liable if the excess were slight and inserted bona fide, see ibid, and cf. note (a) to s. 496.

(A) I.e., the shipowner's lien, which is not extended by the statute, that given to the warehouseman by s. 499 being another and a distinct lien. Tin Energie, supra.

(e) A warehouseman taking the custody of the goods under these provisions "is under an obligation cast upon him by the statute to deliver the goods to the same person to whom the shipowner was by his contract bound to deliver them, and is justified or excused by the same things as would justify or excuse the master." See Glun v. East and West India Dock Co., supra (s. 493).

Whether the shipowner remains under any obligation to see that the goods are rightly delivered by the warehouseman appears doubtful. As to this, and generally as to the respective rights and duties of shipowner and warehouseman, see Carver on Carriage by Sea, 5th ed. §§ 480, 481; Glyn v. East and West India Dock Co., supra; and Barber v. Meyentein (1870), 39 L. J. C. P. 187; L. R. 4 H. L. 317, at p. 337, &c.; affirming 36 L. J. C. P. 289; L. R. 2 C. P. 661 (Ex. Ch.); and L. R. 2 C. P. 38; &c. (see pp. 54, 65).

Discharge of 495f The said lien for freight and other charges shall be [i «. C3, discharged

70.] (1.) Upon the production to the wharfinger or warehouseman

of a receipt for the amount claimed as due, and delivery to the wharfinger or warehouseman of a copy thereof or of a release of freight from the shipowner (a), and (2.) Upon the deposit by the owner of the goods (a) with the wharfinger or warehouseman of a sum of money equal in amount to the sum claimed as aforesaid by the shipowner; but in the latter case the lien shall be discharged without prejudice to any other remedy which the shipowner may have for the recovery of the freight (b).

(«) See note (c) to s. 494; and as to meanings of "shipowner" and "ouner of the goods," sees. 492.

pt. vn.

(i) Whoro the consignee for sale of goods under a bill of lading (being thus 496.

owner of the goods within these provisions but not within the Bills of Lading

Act), made a deposit under the Act equivalent to the full amount of freight, accompanied by a notice to retain the deposit pending instructions, and accordingly had the goods delivered to him, it was held that the shipowner had no right of action against the consignee for the freight, as no promise to pay was to be implied from the receipt of the goods, and no liability for freight on his part was created by statute (viz., s. 496). White $ Co. v. Furneu, Withy S; Co., 64 L. J. Q. B. 161; [1895] A. C. 40. See also Montgomery v. Foy, Morgan $ Co., infra, s. 496, note (a); 11 T. L. B. 129.

496.—(1.) When a deposit as aforesaid is made with the Provisions as wharfinger or warehouseman, the person making the same may, to deposits within fifteen days after making it, give to the wharfinger or go^11618 0 warehouseman notice in writing to retain it, stating in the []862,». 71, notice the sums, if any, which he admits to he payable to the 72.] shipowner, or, as the case may he, that he does not admit any sum to be so payable, but if no such notice is given, the wharfinger or warehouseman may, at the expiration of the fifteen days, pay the sum deposited over to the shipowner.

(2.) If a notice (a) is given as aforesaid the wharfinger or warehouseman shall immediately apprize the shipowner of it, and shall pay or tender to him out of the sum deposited the sum, if any, admitted by the notice to be payable, and shall retain the balance, or, if no sum is admitted to be payable, the whole of the sum deposited, for thirty days from the date of the notice (b).

(•i.) At the expiration of those thirty days unless legal proceedings have in the meantime been instituted by the shipowner against the owner of the goods to recover the said balance or sum, or otherwise for the settlement of any disputes which may have arisen between them concerning the freight or other charges as aforesaid, and notice in writing of those proceedings has been served on the wharfinger or warehouseman, the wharfinger or warehouseman shall pay the balance or sum to the owner of the goods.

(4.) A wharfinger or warehouseman shall by any payment under this section be discharged from all liability in respect thereof.

(a) Where consignees as agents for shippers have deposited the freight with a notice to retain it under this section, there is jurisdiction under Ord. XVI. r. 11 (Bules of Supreme Court) to join the shippers of the cargo as defendants in any action by the shipowners for the freight, in order that they may counterclaim for short delivery and injury to the cargo. Montgomery v. Foy, Morgan f Co., 65 L. J. Q. B. 18; [1895] 2 Q. B. 321.

(A) The provisions re-enacted in this section were considered in While v. Furncss, Withy $ Co., supra (s. 495), see per Lord Herschell.

Sub-ss. (2), (3), (4) represent s. 72 of M. S. A. 1862, as to which the Privy Council, in The Knergie {Micdbrodt v. Fitzaimon) (1875), 44 L. J. Ad. 25 at p. 32; L. R. 6 P. C. 306 at p. 316, observed that that section assumed that the master in some cases may bond fide have claimed a lien for more than was really due to him. Cf. note (a) to s. 494.

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