Page:EB1911 - Volume 01.djvu/340

 Bills of Lading. The document signed by the master or agent for the shipowner, by which are acknowledged the shipment of a parcel of goods and the terms upon which it is to be carried, is called a Bill of Lading. Very many different forms of bills of lading are used. For the purpose of illustration the following form (from Mr Scrutton’s book on Charter-parties and Bills of Lading) has been selected as a sample:—

The bill of lading is an acknowledgment of the shipment of goods in a named vessel for carriage to a specified destination on terms set forth in the document. It is usually signed by the master of the vessel, but very commonly by the agents of the shipowner or sometimes of the charterers of the vessel. A vessel may be employed by its owners to earn freight in various ways: (1) It may be placed, as it is said, on the berth as a general ship, to receive cargo from any shippers who may desire to send goods to the port, or one of the ports, to which the vessel is bound. The mate or chief officer usually superintends the loading, and, as goods are shipped, a mate’s receipt is given as an acknowledgment of the shipment. The mate’s receipt is afterwards exchanged for the bill of lading. In the case of a shipment by a general ship the bill of lading is the evidence and memorandum of the contract between the shipowner and the shipper. (2) A shipper may, however, require the whole cargo space of the vessel to carry, for example, a full cargo of grain. In such a case the vessel will be chartered by the shipowner to the shipper. and the contract will be the charter-party. Even in such a case a bill or bills of lading will usually be given to enable the shipper to deal more conveniently with the goods by way of sale or otherwise. By the ancient custom of merchants recognized and incorporated in the law, the bill of lading is a document of title, representing the goods themselves, by the transfer of which symbolical delivery of the goods may be made. But when a cargo is shipped under a charter-party, although bills of lading may be given to the charterer, it is the charter-party, and not the bills of lading, which constitutes the record of the contract between the parties—of charter-parties we shall treat below. (3) There is a third class of case which is a combination of the two with which we have dealt above. A vessel is very commonly chartered by her owner to a charterer who has no intention to ship and does not ship any cargo on his own account, but places the vessel on the berth to receive cargo from shippers who ship under bills of lading. The charterer receives the bill of lading freight and pays the charter-party freight, his object being of course to obtain a total bill of lading freight in excess of the chartered freight, and so make a profit. The master, although he usually remains the servant of the shipowner during the term of the charter-party, acts nevertheless under the directions and on behalf of the charterer in signing bills of lading. The legal effect of this situation is that shippers who ship goods under bills of lading without knowledge of the 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, moreover, be noted that, as against the master or person who has himself signed the bill of lading, the statement therein of the goods shipped is absolutely conclusive. But as against the shipowner, unless he has himself signed the bill of lading, the statement 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 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