a right to refuse to carry them on any other terms than those it demanded, except in so far as its public duty, if it was a common carrier, forbade such an attitude. 13 It sometimes happens that the goods constituting a shipment cannot all be delivered to the carrier at the same time. Under these circumstances it is common for a temporary receipt to be given for the various portions of goods, as delivered from time to time, and when all have been delivered to the carrier a bill of lading is issued.

§ 1085. Preparation of bills of lading by shippers.

The practice has become common with many large shippers by rail in this country of preparing their own bills of lading; spur tracks frequently run into the yards of factories, for instance, and empty cars are brought there and packed by the employees of the shipper, and when the cars are filled the railroad removes them and attaches them to its trains. None of the officers or agents of the railroad have any knowledge of the contents of such cars except from the statements of the shipper. Such bills of lading are frequently marked 'shippers' load and count," to indicate that the carrier is accepting the shipper's word, and will not guarantee its accuracy. These or similar words should always be thus used to avoid the possibility of the deception of innocent third persons. This is especially important in the case of order bills of lading, on the faith of the statements in which large sums of money are advanced. Even in the case of straight bills it is important that the words in question should appear, for though such bills of lading are not properly relied upon by purchasers, the practice is common for the consignees named in such bills to pay the consignor the price for the goods described therein or to make an advance upon them.

13 The M. K. Rawley, 2 Lowell, 447. In this case goods were delivered to a carrier but a dispute arose as to the form in which the bill of lading should be given. The Court held the property did not pass to the buyer to whom the the shipper was bound to send the goods, and that the carrier had no

right to take them on any other terms than those on which the shipper offered them. The carrier must accept these terms or reject the goods altogether. See also Missouri Pac. Ry. Co. v. Douglas, 2 Tex. Civ. App. 32 (Willson's Civ. Cases).

In doing so the consignee rightfully relies upon the assertion by the railroad, that it has received goods of a certain description for shipment, unless the carrier in some way indicates that it does not know whether the goods described in the bill of lading have been received by it or not. On the other hand, the carrier should not be allowed to impair the value of bills of lading in commerce, by throwing upon the shipper under all circumstances the burden of determining the contents of a shipment, and by marking all bills, as has sometimes been attempted by carriers, "shippers load and count." 14

§1086. Bills in sets.

From a very early period it became customary to issue maritime bills of lading in sets of three or more. The purpose of this was doubtless two-fold: First: In order that a copy might be sent to the consignee, a copy retained by the consignor, and a copy retained by the master of the vessel. Second: In order to guard against loss, since owing to the uncertain means of communication, the chance of a copy of the bill being lost was much greater than it is at the present day. A third reason may now be added that under the customs laws of some countries, an original bill of lading must be lodged in the custom house. The practice has continued to the present time, so far as foreign commerce is concerned, not only in England and the United States, but in the countries of continental Europe. Some of the commercial codes of continental Europe require, indeed, that a number of copies shall be signed and as many as six bills are not infrequently executed. If one of the several parts of a bill of lading had been regarded as an original and the others as copies, the practice would have been convenient and would have served in the main, at least, the purposes for which it was designed. It has become settled law, however, that the several parts of a bill of lading constitute but one bill,15 except the part retained by the master of the vessel. This part is, however,

14 See infra, § 1123.

15 Meyerstein v. Barber, L. R. 2 C. P. 38; Richmond, etc., R. Co. v. Shomo, 90 Ga. 496, 16 S. E. 220. This is also

the law in regard to bills of exchange drawn in sets, as foreign bills of exchange frequently are. See, infra, § 1207.

merely a memorandum or copy. Accordingly if the parts delivered to the consignee, or on his order, vary in their terms from that retained by the master, the parts delivered are the true and only evidence of the contract. 16 And if the copy retained by the master is subsequently and without authority from the shipper delivered to the consignee in order that the latter may present it and demand the goods, the delivery of the goods is unauthorized and the vessel will be liable to one who has bought one of the other parts or advanced money upon it.17

The practice of having outstanding several original documents representing the same shipment must be considered mischievous and generally has been abandoned in the United States in coastwise shipments, and in transportation by rail. The advantages aimed at by issuing bills by sets can be substantially secured without the evils which necessarily attend the existence of several original documents. All that is necessary is to make clear that one document only is the original and that other similar documents have merely the force of copies. Such copies can be sent to the consignee or retained by the carrier for the purpose of information, and if the original document is lost or destroyed the copy will furnish evidence of its terms, so that the contract in the bill of lading may be enforced. This is substantially the usage of railroads in the United States. By means of carbon paper several copies of each bill of lading issued are taken. The copies indicate from their heading that they are not originals. In the issue of the uniform bills of lading provided for by the order of the Interstate Commerce Commission of June 27, 1908, three documents are, by the use of carbon paper simultaneously made out when each bill of lading is issued. The original bill of lading is so marked at the top. The two copies made at the same time are identical with the orgiinal excepting the heading. One of the copies is designated in the heading "a shipping order," and is to be retained by the railroad agent; the other copy is designated as "a memorandum," and is

16 The Thames, 14 Wallace, 98, 20 L. Ed. 804; Ontario Bank v. Hanlon, 23 Hun, 283.

17 The Mary Bradford, 18 Fed. 189; The Saugerties, 44 Fed. 625, 629.

delivered to the shipper. It is specifically stated upon this memorandum that it is not the original bill of lading nor a copy or duplicate, and is intended solely for filing or record. Duplicate or triplicate bills of lading, so called, have sometimes been issued on request of the shipper by vessels engaged in domestic trade and also by railroads. Such duplicates have given rise to some confusion. It has been sometimes supposed that the duplicates were originals like the parts of a bill issued in sets. This view, however, seems unsound. The fundamental distinction lies in the provisions contained in each part of a bill of lading in a set that when one part is accomplished the others are void. This provision puts each part on an equality. Statutes have been passed in a number of States making it illegal for carriers to issue duplicate bills of lading without marking them as such.

§ 1087. Desirability of uniformity in bills of lading.

For several reasons it is highly desirable that the bills of lading in use should so far as is possible be uniform as to their terms and conditions. A bill of lading is ordinarily a somewhat elaborate instrument, containing a number of carefully drawn conditions. It cannot be expected that shippers will read these conditions and consider their meaning every time a shipment is made. If, however, one form of bill of lading is habitually used, careful shippers may without difficulty familiarize themselves with the terms embodied therein. Furthermore, if a standard form is habitually used, the meaning of its terms will become clearly settled by custom and by judicial decision, whereas unfamiliar terms and conditions are naturally the subject of dispute, uncertainty and litigation. The issue of bills of lading in different forms also may be made a means of discrimination between shippers, since a shipper whom it is desired to favor can be given a bill of lading on unusually favorable terms. These reasons for uniformity affect chiefly shippers and consignees, or indorsees who advance money on the faith of bills of lading. To some extent these reasons also have force with the carriers which issue bills of lading, but another circumstance of importance to the carrier alone has been influential in leading

the railroads of the country to take an active part in the movements designed to secure the use of uniform bills of lading.

Vast amounts of freight are carried over connecting lines on through bills of lading issued by the initial carrier, acting not simply for itself, but as agent for its connecting carriers. On the large terminal roads of the northeast, the same freight trains frequently carry goods originally shipped over many different initial roads. If each of these initial roads issue a through bill of lading in a different form, the terminal railroad becomes subject to such a great variety of contracts as necessarily to confuse the management of its business.

§ 1088. Threefold importance of bills of lading.

A bill of lading is always a receipt and important as such; that is, it furnishes the shipper with evidence of the delivery of the goods to the carrier. Like other receipts it is only prima facie evidence of the acknowledgments contained in it unless the parties by its express terms make it conclusive, as they may do; 18 though such an agreement would certainly not exclude proof of fraud. It is also a contract, or evidence of a contract. In the case of transportation by sea a vessel is frequently chartered by the shipper and the charter party provides in detail the agreement in regard to the carriage of the goods. When the goods are actually shipped, a bill of lading is customarily signed which may contain a reference to the charter party or a repetition of its terms. It has been said that such a bill is merely evidence of the contract between the parties, while the charter party is the contract itself.19 It has been even said of a bill of lading by a judge of the highest authority, that "to my mind there is no contract in it. It is a receipt for the goods stating the terms on which they were delivered to and received by the shipper and therefore excellent evidence of those terms, but it is not a con

13 Crossfield v. Kyle Shipping Co., [1916] 2 K. B. 885, 890.

19 Rodocanachi v. Milburn, 17 Q. B. D. 316, 18 Q. B. D. 67; Capper v. Wallace, 5 Q. B. D. 163, 166; Wags

taff v. Anderson, 5 C. P. D. 171, 177; The San Roman, L. R. 3 Ad. Ec. 583; Gledstanes v. Allen, 12 C. B. 202.