« ПредыдущаяПродолжить »
2117. A marine carrier must not stow freight upon Stowago,
doviation, deek during the voyage, except where it is usual to etc. do so, nor make any improper deviation from or delay in the voyage, nor do any other unnecessary act which would avoid an insurance in the usual form upon the freight.
NOTE:--Code de Com., Art. 229; Red. on Car., etc., Sec. 337. It seems that carriers are responsible for damages occurring to goods by reason of being stowed on deck in tempestuous weather, unless such stowage be authorized by custom or the consent of the shipper. Barber vs. Brace, 3 Conn., p. 9; Smith vs. Wright, 1 Caines, p. 43. Ship owner undertakes and promises to carry in his ship the goods of the shipper to their destined port in safety, by the proper route, and in due season.-Pars. Merc. Law, p. 123, Note 4, in which it is said: “It is well settled that if the vessel deviates and the cargo is insured, the risk terminates and the underwriters are exonerated." It follows, as a necessary consequence, that the ship owner (the carrier), having put an end to the contract existing between the freighter and the underwriter, should stand in the place of the latter and assume his risks.
“If a common carrier attempts to perform his contract in a manner different from his undertaking, he becomes an insurer for the absolute delivery of the goods, and cannot avail himself of any exceptions made in his behalf in the contract." (So held in Dunseth vs. Wade, 2 Scam., pp. 285-289.) This applies where goods are carried on deck without the knowledge of the shipper.Id., note, p. 124.
2118. A carrier of property must deliver it to the Delivery
of freight. consignee, at the place to which it is addressed, in the manner usual at that place.
Note.-The general rule (says Parsons, in his Merc. Law, p. 152, treating of “delivery') applicable to carriers and other persons contracting to deliver goods, is that a personal delivery is necessary. This does not, however, apply to ships, where a delivery on the wharf, with notice to the consignee, is sufficient. The wharf must be suitable.- The Bark Majestic, U. S. Dist. Ct., N. Y., 10 Leg. Obs., p. 100. Must not be taken on board again; must not be laid around promiscuously, but piled or laid together, and separate from other consignments. In all cases, notice of his readiness to dis
charge cargo must be given by master to consignee. (This doctrine is laid down in the early case of Golden vs. Manning, 3 Wilson, p. 429; 2 Wm. Blk., p. 916.) Knowledge of the arrival of the vessel casually obtained by the consignee is insufficient.- The Ship Middlesex, 21 Law Reporter, p. 14, etc., id., and notes.
Place of delivery.
2119. If there is no usage to the contrary at the place of delivery, freight must be delivered as follows:
1. If carried upon a railway owned or managed by the carrier, it may be delivered at the station nearest to the place to which it is addressed;
2. If carried by sea from a foreign country, it may be delivered at the wharf where the ship moors, within a reasonable distance from the place of address; or, if there is no wharf, on board a lighter alongside the ship; or,
3. In other cases, it must be delivered to the consignee or his agent, personally, if either can, with reasonable diligence, be found.
NOTE.-Subd. 1.–Norway Plains Co. vs. Boston & Me. R. R. Co., 1 Gray, p. 263; see Smith vs. Nashua, etc., R. R. Co., 7 Fost. N. H., p. 86.
Subd. 2.-See Rowland vs. Miln, 2 Hilt., p. 150; Hyde vs. Trent, etc., Nav. Co., 5 T. R., p. 389; Dixon vs. Dunham, 14 Ill., p. 324; Crawford vs. Clark, 15 id., p. 361; Cope vs. Cordova, 1 Rawle, p. 203. The carrier is not bound to take the goods to the wharf actually nearest the consignee.- Chickering vs. Fowler, 4 Pick.,
Subd. 3.-See Haslam vs. Adams Express Co., 6 Bosw., p. 235; Ostrander vs. Brown, 15 Johns., p. 39; Hemphill vs. Chenie, 6 Watts & S., p. 62. See, also, note to preceding section, and the authorities and cases there cited.
2120. If, for any reason, a carrier does not deliver freight to the consignee or his agent personally, he must give notice to the consignee of its arrival, and keep the same in safety, upon his responsibility as a carrier, until the consignee has had a reasonable time to remove it.
NOTE.-Price vs. Powell, 3 N. Y., p. 322; Bourne
vs. Gatliffe, 3 M. & G., p. 643; 7 id., p. 850; 11 Cl. &
2121. If a consignee does not accept and remove or Clini
How freight within a reasonable time after the carrier has may
terminate fulfilled his obligation to deliver, or duly offered to his
liability, fulfill the same, the carrier may exonerate himself from further liability by placing the freight in a suitable warehouse, on storage, and giving notice thereof to the consignee.
NOTE.-A carrier is not forced to keep goods which the consignee refuses or neglects to take. But he must do some act clearly indicating the termination of his relation as carrier. If he keeps the goods on his vehicle, he cannot claim to do so as a warehouseman.
Goold vs. Chapin, 20 N. Y., p. 259. Nctice must be given.-See Rowland vs. Miln, 2 Hilt., p. 170; see Story on Bailm., Secs. 539-514; also, Red. on Car., etc., Sec. 110, et seq., particularly Sec. 121. On the subject of delivery to consignee, or his non-acceptance, and placing in warehouse, see, also, Sec. 122, id., et seq. If goods are tendered in proper time, place, and manner, to the owner or consignee, and refused, the carrier is released as such, and is thereafter only responsible as a bailee.-Richardson vs. Goddard, 23 Ilow. U.S., p. 28; Angell on Car., Sec. 291, and care there cited.
When consignee cannot be found.
2122. If a consignee of freight cannot with reasonable diligence be found, the carrier may place it in a suitable warehouse for his account, but must give notice thereof to the consignor.
NOTE.-- Fisk vs. Newton, 1 Denio, p. 45; approved Rowland vs. Miln, 2 Hilt., p. 150; see Goold vs. Chapin, 20 N. Y., p. 259. See Part II, Chap. 13, Sec. 153, et seq., Red. on Car., etc., as to notice; also, Story on Bailm., Secs. 539-544. The case first supra, Fisk vs. Newton, is fully set out in Angell on Car., Sec. 291, sustaining the text, not only of this, but of the two preceding sections.
BILL OF LADING.
SECTION 2126. Bill of lading, what.
2127. Bill of lading negotiable.
Bill of lading, wbat.
2126. A bill of lading is an instrument in writing, signed by a carrier or his agent, describing the freight so as to identify it, stating the name of the consignor, the terms of the contract for carriage, and agreeing or directing that the freight be delivered to the order or assigns of a specified person at a specified place.
NOTE.-Parsons in his 1 Vol. Mart. Law, p. 134, says: “The bill of lading is a very ancient document, in general use among all commercial nations, and is much the same in its form and provisions in various countries (see Pothier on Maritime Contracts; Cushing's Trans., p. 11, Sec. 16; Benwes Lex. Mercantoria, p. 146), and long and repeated adjudications have left but few open questions as to its effect.” Bill of lading was an original and is now probably more properly a sea document, but receipts similar in their nature and effect are now used by railroad companies and other carriers.-Bryans vs. Nix, 4 M. & W., p. 775. It is called a commercial instrument in New York when given for the transportation of goods on a canal.Dows vs. Greene, 16 Barb., p. 72; see, also, Grove vs. Brien, 8 How., p. 429. Red. on Car., etc., Sec. 247: “It is common for a bill of lading or a receipt for goods, executed by the station agent, to describe them as in good condition." Here the terms italicised are used with reference to carriers other than by water. “Bill" and "receipt" are synonymous, and “station agent” refers particularly to railroad carriers.-Holbrook vs. Vose, 6 Bosw., pp. 76, 109.
2127. All the title to the freight which the first Bill of
lading holder of a bill of lading had when he received it, negotiable. passes to every subsequent indorsee thereof in good faith and for value, in the ordinary course of business, with like effect and in like manner as in the case of a bill of exchange.
NOTE.-This provision is conformable to the general intention of merchants, and it is not certain that it is not the law of New York.-See Dows vs. Greene, 24 N. Y., p. 638; Dows vs. Rush, 28 Barb., p. 185; but compare Dows vs. Perrin, 16 N.Y., p. 332. A provision somewhat similar has been enacted in England (18 & 19 Vict., Chap. 111). It is said in Pars. Merc. Law, p. 138, that the negotiability is “quasi," etc. This section settles the question of the negotiability of a bill of lading, which was not only doubted in Lineker vs. Ayeshford, 1 Cal., p. 75, but there positively held not to be negotiable, and that if the holder of a bill of lading can recover at all, it must be on the ground that he has some interest in it, and not on the contract itself, independent of the