CH. 21. Lex. Am. 2 Dall. 181.1 Dall 3, Ste venson v. this lien, though this be not expressed in the endorsement, but in a letter &c. 11. The goods of one belligerent cannot he altered in transitu, as it respects another belligerent. For in a state of war existing or imminent, it is held, the property shall be deemed to continue as it was at the time of shipment, till the actual delivery. But this rule is only between belligerents. ART. 3. American cases. A being indebted to B, shipped goods to pay him, and the master of the ship gave a bill of Pemberton. lading, and it was held, that goods immediately on being shipped, and bill of lading signed, become the property of the consignee, as these goods were shipped to pay a debt. 2 Dall. 180, Wood v. Am. Mer. 164. 2. But in the same court it was determined, that where Boach.-Lex. the evidence of the consignments, being for a bonâ fide creditor, was doubtful, and a part of the property was not shipped, they had not passed by the mere shipment of a part and signing the bills of lading; the original owner of the goods he finds is deemed to have a lien on them to the amount of his rights, hence has arisen the right of stopping in transitu, the goods transmitted, if not paid for, or if reasons exist to suppose the consignee is insolvent. 4 Mass. R. 115, Bridge v. Austin. 18 Johns. R. 157.-7 Mass. R. 297, Barrett r. Rogers. See s. 12. §3. Assumpsit against Austin in consideration the plaintiff made him his bailiff of one case of linens of the value of $500, and had agreed to allow him a commission of 5 per cent. on the sales, promised the plaintiff to transport it to Charleston, S. C. at the defendant's risk, against all danger but of the seas, and to dispose of the same to the plt's. best advantage, and to account &c. The goods arrived safe at Charleston, and were there deposited in a store, out of which they were stolen; the contract was expressed in a paper in the form of a bill of lading nearly. Held, the deft. was accountable to the plt. for the value at Boston, the place of shipment, deducting said commission on his contract, though not in fault, and five per cent. was the usual commission for selling only, and making returns. Leave to amend the declaration &c. The property passes by assigning a bill of lading bona fide, though made after the arrival of the goods in port, Chandler & al. v. Belden. 4. The deft. received at Liverpool, to transport to Boston, a quantity of velvets in cases, and gave a bill of lading in common form, expressing they were in good order, and to deliver them in like good order &c., the dangers of the seas excepted. Held, this bill signed at Liverpool was not conclusive evidence the goods were in good order when there shipped, though prima facie strong evidence of the fact. The goods were done up in cases, and the master never saw them except the outside of them. Nor is it usual for a master of a vessel to examine the goods when he gives such a bill, and often he is not skilled in goods he receipts for. CH. 21. Art. 3. 5. A usage for carriers to retain goods as a lien for a general balance of account between them and the consignees, Oppenheim v. cannot affect the right of the consignor to stop the goods in Russell. transitu. 3 Bos. & Pul. 42. § 6. Under some circumstances the mere affirmance of the Lex. Mer. master to a bill of lading, works a transfer of the property; Am. 163. but this is only where the purposes of justice demand such a construction. For this reason, shipments fairly made to pay bona fide debts, passes the goods on signing the bill of lading; for in this the lader's intention is clearly expressed, and the law implies, the creditor accepts the consignment, as every one is supposed readily to accept the payment of his honest. debt. Also the goods shipped in such cases are to be viewed as paid for, and the delivery of the goods to the master to be carried to the creditor to pay his just demand, is to be viewed as a delivery to the creditor himself. On these grounds it was decided in America, before the American revolution, that goods thus shipped to pay a debt, could be attached for the consignee or creditor's debt, on the principle the property of them was vested in him by the delivery to the master. The payment of such debt being a consideration equal to actual payment for the goods. 7. In this case the plt. chartered and loaded a vessel at Lex. Mer. Am. 165, 166, the request, and on the account of certain merchants, declared Holt v. Powbankrupts. She arrived and their assignees went on board nall. her, and claimed the cargo as the bankrupt's, and opened some of the bales &c. The ship was then ordered into quarantine; while performing, a person for the plt., Holt, to whom he had endorsed one of the bills of lading, applied to the master for delivery of the cargo. He refused, being indemnified by the assignees, one of whom continued on board during the quarantine; at the expiration of it the cargo was landed and delivered to the assignees. The plt. brought trover against the master, and the court decided that the property was in transitu, and might be stopped during the quarantine. But it appears if the vessel be chartered or owned by the vendee or consignee, and entirely under his controul, then a delivery on board her is a delivery to him, and of course defeats the right to stop in transitu. For as the carriage is solely by him, and in no sense in the controul or possession of the seller or consignor, or of his master or servants, the vendee or consignee has the sole possession, and therefore the transitu is at an end. It is further true, that to put an end to the transitu and to the consignor's right to retain the goods in the bill of lading CH. 21. 10 Mass. R. 510, Wallis & &c. they must not only have come into the hands of the consignee or vendee in fact, or of his special agent, but his possession must be acquired with the consent of the original owner. Hence, if the vendee meet the goods on their way and take possession of them, they are still in transitu till they arrive at the place of their destination. So a bill of lading may like a bill of exchange, or other negotiable contract, be assigned over specially, and so as not to convey any interest from the original possessor beyond the letter and terms of the endorsement. As where the endorsement is to "deliver the contents to A. B. on my account," A. B. receives on his account, and is not enabled to put the property in circulation, however absolute the property of the bona fide assignee for a valuable consideration may be against all the world, even the assignor who has not been paid for his goods, yet if the assignee take it knowing the goods are not paid for, he takes the property subject to the same equities as it was when in the assignor's hands, and it is enough the fact appears in the endorsement in bills of parcels or in letters, or in any other way which conveys to the assignee a knowledge of the fact. 8. This was assumpsit-the plts. shipped in the ship al. 6. Cook. Osprey on a voyage from Salem to South America, the goods described in the bill of lading signed by the deft., in which it was agreed the net proceeds of the goods, after deducting five per cent. commissions and $14 for freight, should be paid to the shippers in nine days after the ship's arrival at her port of discharge in the United States. She safely arrived in South America, and the goods sold, and the net proceeds amounted, after deducting duties, charges, and freight out, to $900 41. On her return for New York she stranded near New London lighthouse, and cargo was damaged fifty per cent. She was got into port and repaired, so that she might have gone to her intended port of discharge, but did not. Held, the shippers were entitled to the net proceeds of the goods, without any deduction for the loss by stranding, though they had caused their interest to be insured the voyage round, for they had no risk in the goods homeward by their contract. They were to be repaid in full if the ship arrived here in the United States, without out limitation of time, or as to the port, and she did so arrive, and it was no condition she should arrive without damage. 12 Mass. R. 565, Forres ter v. Dodge. 9. Assumpsit for the value of certain goods, plt's. property, shipped at Calcutta in the Caravan owned by the deft., bill of lading signed by Augustine Heard, the master, for ninety-two bales of piece goods; plt. had received fifty-five of them only. Action was for the other thirty-seven. The bill of lading was in common form, excepting "the danger of the seas, the laws of the country, and other unavoidable accidents." The master received orders from the plt. to manage, as A and B had directed as to their goods in the same vessel. Held, the master's conformity to the directions of either A or B was sufficient to justify him. (Jan. 1813, the master went into Pernambuco, and there hearing of the war left about one third of his cargo to lighten his vessel and cause her to sail faster.) CH. 21. Art. 3. Potter v. Lan 10. Goods were shipped for the account and risk of the 1 Johns. R. consignee, he paying the freight, and so expressed in the bill 215, 228, of lading and invoice. A delivery of the goods to the carrier is sing.-2 Phil. a delivery to the consignee, and he alone can sue the carrier Evid. 46. if not delivered. The bill of lading in such case vests the property in the consignee. See next article, also 1 Johns. R. 1 to 19, Ludlow v. Bowne & al. v. Potter. 11. When a master may leave goods and not be liable on 2 Johns. Ca. his bill of lading. As where he signed such bill to deliver 371, Mayell goods to A. B. at Norfolk from New York. A. B. was a transient person, and not resident at Norfolk, and when the master arrived there he inquired for A. B., and not finding him, delivered the goods to a merchant there for A. B. The master acted bonâ fide, and according to the usage. Held, he was not liable on the bill of lading to the consignor. So where goods were shipped at N. York, and consigned 1 Johns. Ca. to the master to be sold at Bourdeaux, the master could not find a purchaser, and left the goods there and returned to N. York; he acted bona fide. Held, he was not liable to the owner. § 12. A bill of lading is not conclusive evidence of property; and though it express the property to be A's, it may be proved to be the property of another. 174, Lawler v. Keaquick. 6 Cianch, 338, Mary land Ins. Co. v. Ruden. 14 Mass. R. 40, 43, Schol field v. Bell. 13. Of stopping in transitu. Replevin for 2 hhds. of hard ware; plea, property in Wm. Hill, and denied it was in the plt. and issue. Scholfield & Co. in England, shipped these goods to Hill, in Portsmouth, in N. H. contrary to his orders 46. to them, and sent him a bill of lading; he refused to receive them; were attached by the deft. a deputy sheriff, for Wilby, as for Hill's debt; the agent of Scholfield & Co. caused them to be replevied. Judgment for the plt. Attached on the ground the property vested in Hill, when he received the bill of lading; and then it was too late, as said, for the consignor to stop them in transitu: held otherwise, for here no delivery ever took place, which could create a change of property. 2 Phil. Ev. 14. The mere endorsement of a bill of lading, without a 15 Mass. R. delivery of it, does not transfer the property it contains; what 528, Buffinga sale of a vessel. This was replevin of the brig Sophronia, ton & al. v. and her cargo, claimed by the plts. as being purchased by 2 Phil. Evid. VOL. I. 59 Curtis. Cited 46. CH. 21. them of Jos. T. Wood, against the defts., deputy sheriffs, who Art. 4. attached them as his property. Judgment for the plts. for the brig, and costs for the defendants for the cargo and return &c., with damages 6 per cent. on double the value of it, as valued in the replevin bond. 1st. as to the vessel because the bill of sale was made and delivered by Wood, to the collector, a third person, to the plts'. use, and by their previous assent, July 16, 1816; and the defts. attached 18th, though the plts. took possession the 19th: but this possession was in reasonable time. 2d. The endorsement of the bill of lading conveyed no property to the plts in the cargo, though endorsed by Wood before the attachment, because he made no delivery of it to any body till after it. Secus it seems, had it been left with the collector to the plts'. use, as the bill of sale of the vessel was; or had it been enclosed in a letter to the plts. 3 Wheat. R. and put into the post-office before the attachment. If a bill of lading consign goods to a neutral, not accompanied by an invoice or letter of advice, the bill is sufficient evidence for the admission of farther proof. 48. 3 East 585, Walley v. ry. ART. 4. Further English cases. 1. Consignor charters a ship for the consignee, and ships Montgome goods on his risk, &c.; property is immediately his, &c. Trover for a cargo of timber; and it appeared the consignor chartered the ship on account of the consignee, enclosed an invoice expressing the timber was on his account and risk; also a bill of lading in common form expressing the delivery to be made to order, &c. he paying freight according to charter-party. Consignor, also, drew bills on the consignee, at 3 months, for the value of the cargo. Held, the invoice and bill of lading sent to the consignee, and the delivery of the timber to the captain, vested the property in the consignee, subject only to be devested by the consignor's right to stop the goods in transitu. in case of the insolvency of the consignee. The bill of lading sent, was endorsed in blank, and was sent by the master; and as the timber in the voyage was at the risk of the consignee, his accepting the bills and paying freight at the end of it, could not be a condition precedent to the property's vesting in him, but otherwise, if not so at his risk. 2. Trover for eighteen mats of flax, shipped in a general Coxe & al. v. ship, from Rotterdam to London. The consignors, Brown & Harden & al. Co. at Rotterdam, shipped the goods on account and at the 371-3 Bos. risk of the consignees, Oddy & Co. in England, in pursuance of orders, and took bills of lading from the captain to deliver to the consignor's own order; and sent one of such bills, not endorsed, with the invoice to the consignees, enclosed in a letter informing them they had drawn on them for the amount. The consignors also sent, by way of precaution, another bill 4 East 211, -See 6 East & P. 119. |