This is one of the most ancient documents now in use, and is very similar in its form and provisions among all commercial nations. It is a written receipt for the goods, signed by the master as the agent of the owner, and expresses the ordinary obligations of the owner. A receipt is sometimes given for the goods, and subsequently a bill of lading; in which case the previous receipt should be given up, or the master or owner may be doubly liable.
The bill of lading may be signed by any officer of the ship having authority. Commercial usage would seem to require that it should be given by a master or officer. But a custom seems to be growing up in some of our commercial cities, for a clerk of the owners to sign and deliver a bill of lading in the counting-room; and it would probably be equally effectual. (e)
The master has, by the law-merchant, no authority to sign a bill of lading until the goods are received, and such a bill would * not bind his owners. (f) But if the goods were afterwards received, the bill of lading might then have that effect.
(b) Jordan v. Warren Ins. Co. I Story, 353; M'Gaw v. Ocean Ins. Co. 33 Pick. 405; Lord v. Neptune Ins. Co. 10 Gray, 109; Ogden v. Gen. Ins. Co. 2 Duer, 204; Hugg v. Augusta Ins. Co. 7 How. 595.
(c) Nelson v. Stephenson, 5 Duer, 538; Nelson v. Woodruff, 1 Black, 156.
(d) Frith v. Barker, 2 Johns. 327.
(e) See Putnam v. Tillotson, 13 Met. 517.
(f) Rowley v. Bigelow, 12 Pick. 307; Lickbarrow v. Mason, 2 T. R. 75; Grant v. Norway, 10 C B. 665, 2 Eng. L. & Eq. 337; Hubbersty v. Ward, 8 Exch. 330, 18
Eng. L. & Eq. 551; Coleman v. Riches, 16 C. B. 104, 29 Eng. L. & Eq. 823. Nor, in such case, is the vessel liable in rem. Sch. Freeman v. Buckingham, 18 How. 182. But if there is a contract to carry certain goods, and they are lost after coming into possession of the master, but before they are on board, and the master signs bills of lading for them after the loss, although the carrier may repudiate the bills of lading, yet he cannot set them up as merging the prior contract. The Bark Edwin, Sprague, 477.
The bill of lading is often called a negotiable instrument; (g) it is not entirely so. It promises to deliver the goods to the shipper or his assigns, and not to his order. But a bill of lading indorsed by the shipper and delivered to the indorsee, will found an action by the indorsee against the ship-owner for the goods; and will be presumptive though not absolute evidence, that the goods were transferred to the indorsee. In most, but not all of our States, the indorsee must bring an action on the bill not in his own name, but in that of the shipper. (h) It is, however, possible for a bill of lading to be transferred by mere delivery, and transfer to the holder whatever property in the goods the bill of lading represents, if this were the intention of the parties. (hh)
Neither between the ship-owner and indorsee, nor between the ship-owner and the shipper himself, is the bill of lading conclusive. (i) But if the ship-owner resists an action, on the ground that the goods were not in fact such, or of such quality, as they were said to be in the bill, this he must prove.
The ship-owner would not be liable to the shipper for a loss of or an injury to the goods caused by an intrinsic defect or decay, but he should not be permitted to defend against an indorsee of the bill who bought the goods trusting to the bill, on the ground of any defect, if the ship-owner knew the defect, or by proper means might have known it, when the bill was * signed (j), and says nothing thereof in the bill; unless the nature of the goods makes their liability to decay obvious. (k)
The party who ships the goods is the consignor. He to whom they are to be delivered by the terms of the bill is the consignee. If the goods are deliverable to the shipper himself or his assigns, he is both consignor and consignee. So he would be, if no person were named in the bill of lading as the party to whom the goods were to be delivered; but this seldom occurs.
(a) Evans v. Marlett, 1 Ld. Raym. 271; Lickbarrow v. Mason, 2 T. R. 63; Jenkyns v. Usborne, 7 Man. & G. 698.
(h) Thompson v. Dominy, 14 M. & W. 402; Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210; Dows v. Cobb, 12 Barb. 310. But in admiralty an assignee of a bill of lading may sue in his own name. The Water Witch, 1 Black, 494. (hh) Marine Bank v. Wright, 46 Barb. 45.
(i) Bates v. Todd, 1 Moody & R. 106; Berkeley v. Watling, 7 A. & E. 29; Wolfe v. Myers, 3 Sandf. 7; Ward v. Whitney, 3 Sandf. 399, 4 Seld. 442; Dickerson v. Selyee, 12 Barb. 99 ; O'Brien v. Gilchrist, 34 Maine, 554; Knox v. The Ninetta, Crabbe, 534; Benjamin v. Sinclair, 1 Bailey, 174; Backus v. Sch. Marengo, 6 McLean, C. C. 487 ; Wayland v. Mosely, 5 Ala. 430; May v. Babcock, 4 Ohio, 334;
Sutton v. Kettell, Spragne, 309; The Henry, 1 Blatchf. & H. Adm. 485; Bissel v. Price, 16 Ill. 408; Butler v. The Arrow, 1 Newb. Adm. 59; Warden v. Green, 6 Watts, 424; Portland Bank v. Stubbs, 6 Mass. 422; Sears v. Wingate, 3 Allen, 108; Manchester v. Milne, Abbott, Adm. 115; Goodrich v. Norris, id. 196; Cobb p. Blanchard, 11 Allen, 409; Meyer v. Peck, 28 N. Y. 590; Tarbox v. Eastern Steamboat Co. 50 Me. 339.
(j) Clark v.Barnwell, 12 How. 272; Ship Howard v. Wiseman, 18 How. 231; McKinlay v. Morrish, 21 How. 343; Lamb v. Parkman, Sprague, 343; Zerega v. Poppe, Abbott Adm. 397; Baxter v. Leland, id. 348; Bissel v. Price, 16 Ill. 408. So if no bill of lading is given. Hudson v. Baxendale, 2 H. 4 N. 575.
(k) See cases supra, p. * 290, n. (i).
The consignee of the goods may transfer his interest in them to any purchaser without an indorsement or delivery of the bill; (l) but if the goods have not been delivered to the consignee and the bill of lading thereby discharged, the proper and usual way of transferring the goods is by indorsement and delivery of the bill. (m)
Bills of lading are usually signed in the regular course of shipping in sets of three. Of these, the master retains one; the other two are delivered to the consignor, and of these he retains one, and sends the other to the consignee, either with the goods or by a separate conveyance. There is no rule of law about this, and more or fewer bills may be signed and delivered, or disposed of, as the parties choose.1