*ready for discharge at the time of the ship's arrival, he must have a reasonable time for removing them after they are so ; if in such a case, using reasonable dispatch, he cannot clear them within the stipulated period from the [† 318] ship's being ready to discharge her cargo generally,

he will not be liable for demurrage till the expiration of such a reasonable time; but when it is expired, he will be liable, though the stipulated period, if computed from the time when the discharge of his own goods could have commenced, is not at an end."

In a subsequent case, Lord Tenterden said, "I am certainly of opinion, that if a consignee cannot get his goods, because some other person's goods prevent him, he is not liable for the delay of the vessel " (q).

As, however, the decisions thus questioned, are still referred to in the works of writers of great experience (r) for the rule of mercantile practice, it has been thought advisable to submit *them to the attention of the reader.

(9) Dobson v. Droop, 1 Mo. & M. 441. (r) See Macculloch's Dictionary of Commerce, tit. Demurrage. See also a "Treatise on the Office and Practice of

a Notary of England, and on the Law Merchant," by Richard Brooke, Solicitor and Notary. Saunders and Benning, (1839) p. 162.

OF THE CONTRACT FOR CONVEYANCE OF MERCHANDISE IN A GENERAL SHIP; AND HEREIN,

(Ss.)1. The usual mode of entering into this contract.

2. Of Bills of Lading, their form, signature and effect.
3. To whom the master and owners are responsible on Bills of
Lading, Cases of Conditional Consignment, the con-
dition being unperformed, considered.

4. Cases of Conditional Consignment, the condition having been performed.

5. Of the effect of Bills of Lading transmitted as security for Advances, or to indemnify against Acceptances.

6. Of actions by Consignees, being only Agents of the Owners of Goods.

7. Remarks on Cases cited.

8. Description of Goods in Bills of Lading.

1. THE contract for the conveyance of merchandise in a general ship, is that, by which the master and owners of a ship, destined on a particular voyage, engage separately with various merchants unconnected with each other, to convey their respective goods to the place of the ship's destination. It has been already shown (a) that this contract, although usually made personally with the master, and not with the owners, is considered in law to be made with them also, and that both he and they are separately bound to the performance of it.

When a ship is intended to be thus employed, it is usual in London, and other places, to give notice of the intention, by printed papers and cards, mentioning the name and destination of the ship; her burthen and sometimes her force; and some

times expressing also that the ship is to sail with [† 320] convoy, or with the first convoy for the voyage, or other matters relating thereto. At a trial at nisi prius, in the 40 Geo. 3, it was said by the jury, that among merchants this expression was understood to be an assurance or warranty

(a) Ante, part 2, ch. 2.

to the merchant, who laded goods in pursuance of the advertisement, and to become a part of the contract with him, although not afterwards contained in the bill of lading (b).

This dictum, where convoy is not mentioned in the bill of lading, must be considered as very doubtful. In an action afterwards brought by a person who had shipped goods on board a general ship, for Grenada, against the owner, for having sailed without convoy, in consequence of which he had lost the benefit of an insurance which he had effected, the ship having been captured on the voyage; it appeared at the trial that the ship had been put up or advertised, "to sail with convoy;" but that the bill of lading made no mention of convoy; that it was in fact intended that the ship should sail with convoy, but that she was blown out of the Downs in a gale of wind, and the master then intended to go into Falmouth to wait for a convoy; but being prevented from doing so by the appearance of a French privateer, by which he was chased, he made sail for Grenada and was afterwards taken.

At the trial the defendant obtained a verdict; the Court was afterwards moved to grant a new trial, and the case was argued at some length. A new trial was granted, in order that the Court might receive further information; and the attention of the counsel was directed to the following points: Whether the concise expression, "to sail with convoy," meant any thing more than that the ship was intended to sail with convoy; or could be construed as a warranty that the ship should sail with convoy, in the strict sense of the word warranty; what was the effect of the bill of lading, which made no mention of convoy; what was the effect of the endeavors used by the master to sail with convoy, and of the circumstances by which he had been prevented from doing so. The cause was not taken down to a second trial (c).

In a subsequent case, before Lord Chief Justice Gibbs, at nisi prius, where the bill of lading expressed that the ship was bound for London with convoy, that very [† 321] learned judge held that the bill of lading amounted to

an undertaking that the ship should sail with convoy (d). And in a similar case that occurred before Lord Ellenborough, at nisi prius, the point was not contested. The defendant,

(b) The case here referred to was probably the case of Rinquist v. Ditchell, 3 Esp. 64. It is stated in the report that the bills of lading contained a warranty to sail with convoy, but that appears from the observations of Gibbs, Ch. J., in

Sanderson v. Busher, after cited, to be an

error.

(c) Snell v. Marryatt, in K. B. 48 Geo. 3.

(d) Saunderson v. Busher, 4 Campb. 54, in note.

however, succeeded on the ground that his not sailing with the convoy arose from the fault of the shipper (e).

But if a general ship be advertised for a particular voyage, if that be altered, the owner is bound to give specific notice of the alteration to all persons who afterwards ship goods on board the vessel; and he is otherwise answerable for the loss which they sustain, by supposing that the destination of the vessel remains unaltered (ƒ).

2. When goods are sent on board the ship, the master or person on board acting for him, usually gives a receipt for them, and the master afterwards signs and delivers to the merchant, sometimes two, and sometimes three, parts of a bill of lading, of which the merchant commonly sends one or two to his agent, factor, or other person, to whom the goods are to be delivered at the place of destination, that is, one on board the ship with the goods, another by the post or other conveyance; and one he retains for his own security: The master should also take care to have another part for his own use. The master must make out his bill of lading, according to the direction of the shipper of the goods, or the holder of the receipt given on the shipment, for the shipper has a right to name the consignee to be mentioned in the bill of lading, even although it may not be expressed in the receipt that the goods are shipped for his account, this being tacitly understood; and if the master signs a bill of lading for delivery to another person, and delivers accordingly, he may be answerable to the shipper for the value of the goods (g). (1)

I. W.

OLD FORM OF A BILL OF LADING.

SHIPPED, by the grace of God, in good order, by No. 1. a 20. SA. B. merchant, in and upon the good ship called the John and Jane, whereof C. D. is master,

54.

(e) Magalhaens v. Busher, 4 Campb.

(f) Per Gibbs, Ch. J., in Peel v. Price,

4 Campb. 243.

(g) Craven and Another v. Ryder, 6 Taunt. 433, and 2 Marsh. 127.

(1)A, the master of a steamboat, received goods on board at Cincinnati, to be transported to Peoria, under a bill of lading containing this clause, " with privilege of re-shipping on any good boat." It was held, that notwithstanding this clause, he received freight on delivery for the whole distance, whether he re-shipped the goods or not, and consequently his obligations were coextensive with his reward; that without reserving this privilege the master would have been responsible, after re-shipping the goods, even for unavoidable accidents. Dunseth v. Wade, 2 Scammon, 299.

Where the privilege of re-shipping is reserved, it is incumbent on the master of the boat, in order to discharge himself from his obligations, in case of loss, to show by legal evidence, not only that the goods were re-shipped on a good boat, but that the goods were lost by the unavoidable accidents of the river. Ib.

now riding at anchor in the river of Thames,
and bound for Barcelona in Spain, twen-

ty bales, containing one hundred † pieces [† 322]
of broadcloth, marked and numbered as
per margin and are to be delivered in the like
good order and condition at Barcelona aforesaid
(the dangers of the seas excepted), unto E. F.
merchant there, or to his assigns, he or they pay-
ing for the said goods per piece freight, with
primage and average accustomed. IN WITNESS
whereof, the master or purser of the said ship hath
affirmed to three bills of lading of this tenor and
date, one of which bills being accomplished, the
other two to stand void. And so God send the
good ship to her designed port in safety.

DATED at London, the

day of

The terms of this exception were altered some years ago, in consequence of an alarm taken by the ship-owners, at the decision of a cause, that will be mentioned in a subsequent chapter (h); and of late the exception is usually made in the following words :-("The act of God, the King's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, excepted.") But in the case of ships homeward bound from the West India islands, which send their boats to fetch the cargo from the shore, there is introduced a saving out of this exception "of risk of boats, so far as ships are liable thereto." And in that case the whole clause is as follows:-"The act of God, the King's enemies, fire, and all and every other dan gers and accidents of the seas, rivers, and navigation of whatever nature and kind soever, save risk of boats, so far as ships are liable thereto, excepted;" but these additional words are probably redundant; they do not make the owner liable for a loss in boats, to which he would not be liable in the ship, where boats are customarily used (i). Other clauses may be introduced, either to take away the responsibility of the master and owners in cases for which they would otherwise be responsible, or to give to them or to the shippers an advantage to which they would not otherwise be entitled. Instances of this kind, providing for a payment in the nature of demurrage, have been already noticed (j).

(h) Smith v. Shepherd, post, chap. 5 of this part, sect. 1.

(i) See the case of Johnson v. Benson, 4 B. Moore, 90, and chap. 5 of this part.

(j) See Harman v. Clarke and Others; Same v. Mant and Others, 4 Camph. p. 159 and 161; Leer v. Yates, 3 Taunt. 387; and see before, p. 270; Jesson v.