BILLS OF LADING]
AFFREIGHTMENT
terms of the charter-party are entitled to look to the shipowner as the person responsible to them for the safe carriage of their goods. This right depends essentially on the fact that the master who signs the bills of lading, although in doing so he is acting for the charterer, remains nevertheless the servant of the shipowner, who is not allowed to deny as against third persons, who do not know the relations between the charterer and the shipowner, that his servant, the master of the ship, has the ordinary authority of a master to bind his owner by signing bills of lading. The forms of bills of lading vary very much, and their clauses have been the subject of judicial consideration and decision in a vast number of reported cases. The essential particulars, or at all events those common to all bills of lading, may be stated as follows: 1. The name of the shipper. 2. The name of the ship. 3. The place of loading and destination of the ship. 4. A description of the goods shipped. 5. The place of delivery. 6. The persons to whom delivery is to be made. 7. The freight to be paid. 8. The excepted perils. 9. The shipowner’s lien. The description of (1) the shipper, and (2) the ship, calls for no remark. The (3) description of the voyage is important, because there is, as we have already explained, an implied undertaking by the shipowner in every contract of carriage not unnecessarily to deviate from the ordinary route of the voyage upon which the goods are received to be carried. The consequences of a deviation are serious, inasmuch as the shipowner is liable, not only for any loss or damage which the shipper suffers in consequence of the deviation, but for any loss of goods which occurs after the deviation, even though such loss is caused by one of the excepted perils. The only exception to this rule is that a deviation may be made to save life, but not to save property. It is, however, very usual to qualify the strictness of this implied undertaking by introducing in the bill of lading certain “liberties” to deviate, as, for example, in the form given above, “ liberty to call at any ports in any order, to tow and assist vessels in distress, and to deviate for the purpose of saving life and property.” The nature and extent of the liberty will depend on the words of the contract. The inclination of English courts has been to construe clauses giving a liberty to deviate somewhat strictly against the shipowner. The (4) importance of the description of the goods shipped and their condition is obvious, as the contract is to deliver them as described and in the like good condition, subject, of course, to the exceptions. It must, however, be noted, that, as against the master or person who has himself signed the bill of lading, the description therein of the goods shipped is absolutely conclusive. But as against the shipowmer, unless he has himself signed the bill of lading, the description of the goods shipped is not conclusive. It is evidence as against him that the goods described were shipped, but he is allowed to rebut this evidence by proving, if he can, that the goods mentioned, or some of them, were not in fact shipped. As to (5) the place of delivery, very serious questions frequently arise. Primarily, of course, the shipowner is bound to deliver at the place named. Should he be prevented by some obstacle or difficulty which is of a temporary nature, the vessel must wait, and delivery must be made as soon as possible. Where, however, the obstacle is permanent, or at all events such as must cause unreasonable delay, having regard to the nature of the adventure, the shipowner is excused from delivery at the place named
ill
in the bill of lading, provided the difficulty arises from an excepted peril, or in consequence of delivery at the place named being forbidden by the law of England, as may happen, for example, in the case of a declaration of war between Great Britain and the state in which the port named in the bill of lading is situate. A party to a contract cannot be held liable for breaking his contract if its performance has become illegal. There may be other cases in which, from the circumstances of the voyage and adventure, it must be inferred that the parties intended the performance of the contract to be conditional on the existence at the time of performance of a certain state of things, the non-existence of which would render performance impossible. For instance, if the port named in the bill of lading became permanently closed and inaccessible to ' shipping in consequence of an earthquake, it would probably be held that the continued existence of the place named as a port wTas an implied condition of the i contract, and that the shipowner was excused. Where, I however, the performance of the contract remains lawful, and is not excused by the express terms of the contract, or by some implied condition, the shipowner is liable for any loss or damage suffered by the shipper by reason of his goods not being delivered at the named place, even though such delivery has become impossible. There is another reason why the precise description of the place of delivery often becomes important. It is only on the arrival of the ship at the place described as the place of delivery that the obligation of the consignee of the goods to take delivery commences. Delay involves considerable loss and expense to the shipowner. The shipper or consignee is not responsible for any delay which occurs before the ship has arrived at the place of delivery described in the bill of lading. (6) The goods may be deliverable by the terms of the bill of lading to a named consignee, and to him only, but more usually they are made deliverable to the “ order or assigns ” of the named consignee or of the shipper. If the goods are made deliverable to order or assigns the bill of lading is a negotiable instrument, or, in other wTords, the right to the goods, and the rights and liabilities under the contract contained in the bill of lading, may be transferred by indorsement and delivery of the document. When an indorsement has once been made by the shipper or consignee writing his name and nothing more on the back of the bill of lading, the rights in and under it may be transferred from hand to hand by mere delivery. A bill of lading so indorsed is said to be indorsed “ in blank.” But the shipper or consignee may restrict the negotiability of the bill of lading by indorsing it not “in blank,” but with a direction requiring delivery to be made to a particular person or indorsee, or to his order. This is called an indorsement “ in full.” When an indorsement has been made “ in full” to a named indorsee or order, such indorsee must again indorse “in blank” or “in full” to effect a new transfer of the rights in the bill of lading. (7) The amount or rate of freight payable is stated in the bill of lading, either expressly, or, not uncommonly when the freight under the bill of lading is the same as under the charter-party, by reference to the charter-party. A common form of such reference is “freight and other conditions, as per charter-party.” It may here be mentioned that this form of words does not incorporate in the contract under the bill of lading all the terms and conditions of the charter-party, but only those which apply to the person who is to take delivery, and relate to matters ejusdem generis, or similar to the payment of freight, such as demurrage and the like. The conditions of the charterparty thus incorporated do not include, for instance, the exceptions in the charter-party so as to add them to the
