THE

AMERICAN LAW REGISTER.

NOVEMBER, 1869.

CARRIERS BY WATER.

THE rights and responsibilities of the owners and carriers of goods transported by water are similar to those established by law in regard to carriers generally. The shipowners who employ their vessels as general ships, the packet and mail companies whose boats are regularly despatched on fixed and certain lines of travel, in a word, all whose regular business it is to carry goods by water for any one who may choose to employ them, are alike, in the absence of express or implied stipulations to the contrary,' held liable for all loss of or damage to the goods during the carriage, arising from whatever cause except the act of God (or, as it is sometimes called, inevitable accident), and the doings of the public enemy: 2 Redfield on Railways 4. And the same general principles, of course, regulate alike the rights, duties, and responsibilities of all carriers by land and by water. But as in practice

1 McManus v. Lancashire Railway Co., 2 H. & N. 693; Austin v. Manchester Railway Co., 10 C. B. 454; Carr v. Lancashire Railway Co., 7 Exch. 707; Wise v. Great Western Railway Co., 1 H. & N. 63; Phillips v. Edwards, 3 Id. 813; Nicholson v. Willan, 5 East 507; Riley v. Horne, 5 Bing. 217; Parsons v. Monteath, 13 Barb. 553; Moore v. Evans, 14 Id. 524; Lee v. Marsh, 43 Id. 102; Fay v. Steamer New World, 1 Cal. 348; Stale v. Townsend, 37 Ala. 247 ; Cooper v. Berry, 21 Ga. 526; Laing v. Colder, 8 Penn. St. 479; Sager v. P., S., & P. Railroad Co., 31 Maine 228.

VOL. XVII.-41

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almost all maritime contracts of carriage are, to a greater or less extent, taken out of the rules of the common law, by the special terms of the bills of lading, charter-parties, or other contracts of affreightment, under which merchandise is almost invariably shipped, it is proposed in this article to consider solely some of the more important questions which have arisen, especially of late, under such contracts.

1

The office and effect of a common bill of lading have been fixed by numerous judicial decisions. It properly consists of two parts: first, an acknowledgment of the receipt of certain goods in a specified condition; and, secondly, an engagement to transport and deliver the same to the consignee at the place of destination, on fixed terms and subject to certain conditions and limitations. The contract, like all other written contracts, must be construed by its own language, and cannot be varied or explained by parol evidence, although evidence of usage has been admitted to fix the meaning of such phrases as "the dangers of the seas;" Gordon v. Little, 8 S. & R. 553; Sampson v. Gazzam, 6 Port. 123; and as a general rule parol evidence may be received to determine the signification of the words used: Steam Nav. Co. v. Silva, 13 C. B. N. S. 616; Bradley v. Dunipace, 1 H. & C. 521. See Chouteau v. Leech, 18 Peun. St. 224; Butler v. The Arrow, 1 Newb. Adm. 59. The receipt, however, as between the original parties, is subject to such modification, and is to be regarded as prima facie evidence only against the carrier: Sears v. Wingate, 3 Allen 103; Gowdy v. Lyon, 9 B. Mon. 112; Great Western Railroad Co. v. McDonald, 18 Ill. 172; Illinois Central Railroad Co. v. Cowles, 32 Id. 117; Blade v. Chicago Railroad Co., 10 Wisc. 4. But where the bill of lading has been endorsed for value to third parties, or where advances have been made or credit

↑ See Lickerson v. Seelye, 12 Barb. 99; Dows v. Greene, 16 Id. 72; s. C., 32 Id. 502; 24 N. Y. 638; Dows v. Rush, 28 Barb. 157; Wolfe v. Myers, 3 Sandf. 7; Ward v. Whitney, Id. 399; s. c., 4 Seld. 442; Covill v. Hill, 4 Denio 323; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120; Wayland v. Mosely, 5 Id. 430; O'Brien v. Gilchrist, 34 Maine 554; Knox v. The Ninetta, Crabbe 534; The Schooner Emma Johnson, 1 Sprague 527; Grove v. Brien, 8 How. U. S. 429; Bryans v. Nix, 4 M. & W. 775.

2 Shaw v. Gardner, 12 Gray 488; Sayward v. Stevens, 3 Id. 97; Wolfe v. Myers, 3 Sandf. 7; Simmons v. Law, 8 Bosw. 213; White v. Van Kirk, 25 Barb. 16; May v. Babcock, 4 Ohio 334; Ind. Railroad Co. v. Remmy, 13 Ind. 518; Cor v. Peterson, 30 Ala. 608; The Schooner Reeside, Sumner 567.

given by third parties, acting bona fide, on the faith of the statements contained in this receipt, it becomes, to that extent at any rate, conclusive upon the carrier in favor of such third parties: Sears v. Wingate, 3 Allen 103; Cox v. Peterson, 30 Ala. 608; Howard v. Tucker, 1 B. & Ad. 512. The bill of lading is also prima facie evidence that the goods were, at the time of shipment, in the condition in which it describes them as being: Nelson v. Woodruff, 1 Black U. S. 156; Ellis v. Willard, 5 Seld. 529. See Benjamin v. Sinclair, 1 Bailey 174; Hastings v. Pepper, 11 Pick. 41; Hill v. Sturgeon, 35 Mo. 212; Bradstreet v. Heran, 2 Blatchf. C. C. 116. Of course, however, any such statements in the receipt as "contents unknown," or the like, would prevent such questions from arising against the carrier, even under ordinary circumstances, in favor of third parties; The Columbo, 19 Law Rep. 376; Shepherd v. Naylor, Id. 43; Bissell v. Price, 16 Ill. 104; Ohrloff v. Briscall, Law Rep. 1 P. C. 231; but in one case, where the bill of lading contained the clause, "weight, contents, and value unknown," and on delivery goods packed in cases were found to be injured, it was held that they would be presumed to have been properly packed and fit for transportation, unless there was something from which the contrary could be inferred: English v. Ocean Steam Nav. Co., 2 Blatchf. C. C. 425. If the master signs a bill of lading for goods not delivered to the ship, the owners are not bound by this, even to bond fide endorsees of the bill, as it is not within the scope of the master's authority to subject the owners to responsibility for goods not received: Grant v. Norway, 10 C. B. 665; Hubbersty v. Ward, 8 Exch. 330; Rowley v. Bigelow, 12 Pick. 307. See The Bark Edwin, 1 Sprague 477; Coleman v. Riches, 16 C. B. 104. Nor is the vessel liable in rem by reason of such an acknowledgment: The Bark Edwin, 1 Sprague 477; Schooner Freeman v. Buckingham, 18 How. U. S. 182. But where, merely through inadvertence,• the bill of lading is signed before the goods are on board, but upon the faith and assurance that they are at hand and ready to be shipped, and afterwards they actually are shipped, then, as against the shipper and master, the bill of lading may operate upon these goods by way of relation and estoppel: SHAW, C. J., in Rowley v. Bigelow, 12 Pick. 307.

The contract of a bill of lading usually is, to deliver the goods at the port of destination, to the consignee or his assigns, he or

they first paying the freight or other customary charges thereon, and with an exemption from liability for certain perils. In this, the only points calling for special attention are, the exception of responsibility for certain risks; the provision for delivery to the assigns of the consignee or endorsees of the bill of lading; and the stipulation for prior payment of the charges for transpor

tation.

The carrier is not to be charged for any loss or injury arising solely from the excepted risks. And the exceptions specially contracted for are in addition to those made by law to the responsibility of all carriers; thus, under a bill of lading which excepts the dangers of the seas only, the carriers are not responsible for a loss by the public enemy. Under an exception of liability for detention of a ship by ice, where lighterage was necessary to load the ship, a detention of the ship from the lighterage being delayed by ice, was held to be excused: Hudson v. Edes, Law Rep. 2 Q. B. 566; s. c., 3 Id. 412. But an agreement to load a full cargo upon a ship, "fire excepted," is not discharged by the ship catching fire when part of the cargo is on board and the rest at the ship's side, though the ship was scuttled to put out the fire, and the master afterwards sold the part of the goods thus damaged, and forwarded the remainder by another vessel: Jones v. Holm, Law Rep. 2 Exch. 335. And a snow storm is not included in an exception of riots, strikes, or any other accident beyond the contractor's control: Fenwick v. Schmalz, Law Rep. 3 C. P. 313. Fire is not, and cannot be made by usage, a peril of the seas: Garrison v. Memphis Ins. Co., 19 How. U. S. 312. But see Gordon v. Little, 8 S. & R. 553; Sampson v. Gazzam, 6 Port. 123; Steam Nav. Co. v. Silva, 13 C. B. N. S. 616; Bradley v. Dunipace, 1 H. & C. 521. So, where the cargo of a steam-vessel was damaged by water escaping from the pipe of a boiler which had been cracked by frost, this was held not to be the act of God, but the result of negligence on the part of the captain in filling his - boiler over night; and a custom to fill the boiler over night was

1 Gage v. Turell, 9 Allen 299. But in this case it appeared that there was a previous written contract for the carriage of the goods, containing no clause affecting the carrier's responsibility; and the bill of lading sued on was given merely to furnish the usual shipping documents for transmission; and the court lay some stress on this fact: BIGELOW, C. J., citing Lamb v. Parkman, 1 Sprague 343; Morrison v. Davis, 20 Penn. St. 117.

held to be no excuse: Siordet v. Hall, 4 Bing. 607. But under the usual exception of perils of the seas, the shipowner is not responsible for an injury resulting from his vessel having run foul of another through misfortune; Buller v. Fisher, 3 Esp. 67; Jones v. Pitcher, 3 Stew. & P. 176; or the fault of such other vessel: Smith v. Scott, 4 Taunt. 126. See Vennall v. Garner, 1 Cromp. & M. 21; Rigby v. Hewitt, 5 Exch. 240.

If sufficient care, in view of all the risks, whether excepted or not, was not used, this is negligence for which the carrier will be answerable: Muddle v. Stride, 9 Car. & P. 380. The carrier has no right to load the goods on deck, unless authorized by the custom of the particular trade (of which, when established, the owner will be taken to be conusant), or by the agreement of the parties; and for any breach of his duty in this regard he is, of course, liable: Barber v. Brace, 3 Conn. 9; Waring v. Morse, 7 Ala. 343. And where goods are carried on deck by such authority, the rights and responsibilities of the carrier are the same as if they had been stowed in the hold; Gould v. Oliver, 4 Bing. N. C. 134; s. c., 5 Scott 445; Smith v. Wright, 1 Caines 43; Baxter v. Leland, 1 Abbott Adm. 348; except that the shipper must bear the risk of all perils arising from the mode of stowage which he has himself authorized; Lawrence v. Minturn, 17 How. U. S. 100; Dodge v. Bartol, 5 Greenl. 286. Where the goods were seized as contraband under the laws of a foreign country, other than that in which the goods had been shipped or to which the vessel belonged, and were condemned by legal process in the foreign courts, but it did not appear that there had been any wrongful act or neglect on the part of the owner of the goods, or any knowledge on his part that they were contraband in such foreign country, it was held that the loss proceeded from an inevitable necessity, for which the carrier must be held liable, in the absence of any stipulation to the contrary: Spence v. Chadwick, 10 Q. B. 517. See also Howland v. Greenway, 22 How. U. S. 491; Schieffelin v. Harvey, 6 Johns. 170. In Lloyd v. Guibert, Law Rep. 1 Q. B. 115, it was held that unless otherwise provided in the contracts, the law of the country to which the ship belongs must govern in all such agreements. In this case the bill of lading excepted only the act of God and the dangers of the seas. Moisture or dampness is a peril of the seas for which the carrier will not be liable, there being no defect in the ship or