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 bihs 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
the existence at the time of performance of a certain state of
things, the non-existence of which would render performance
impossible. For instance, if the port named in the bill of
lading became permanently closed and inaccessible to shipping
in consequence of an earthquake, it would probably be held that
the continued existence of the place named as a port was an
implied condition of the contract, and that the shipowner was
excused. Where, however, the performance of the contract
remains lawful, and is not excused by the express terms of
the contract, or by some implied condition, the shipowner
is liable for any loss or damage suffered by the shipper by
reason of his goods not being delivered at the named place,
even though such delivery has become impossible. There is
another reason why the precise description of the place of
delivery often becomes important. It is only on the arrival of
the ship at the place described as the place of delivery that
the obligation of the consignee of the goods to take delivery
commences. Delay involves considerable loss and expense to the
shipowner. The shipper or consignee is not responsible
for any delay which occurs before the ship has arrived
at the place of delivery described in the bill of lading.
(6) The goods may be deliverable by the terms of the bill
of lading to a named consignee, and to him only, but more
usually they are made deliverable to the ``order or assigns''
of the named consignee or of the shipper. If the goods are
made deliverable to order or assigns the bill of lading is a
negotiable instrument, or, in other words, the right to the
goods, and the rights and liabilities under the contract
contained in the bill of lading, may be transferred by indorsement
and delivery of the document. When an indorsement has once
been made by the shipper or consignee writing his name and
nothing more on the back of the bill of lading, the rights
in and under it may be transferred from hand to hand by mere
delivery. A bill of lading so indorsed is said to be indorsed
``in blank.'' But the shipper or consignee may restrict the
negotiability of the bill of lading by indorsing it not ``in
blank,'' but with a direction requiring delivery to be made
to a particular person or indorsee, or to his order. This
is called an indorsement ``in full.'' When an indorsement
has been made ``in full'' to a named indorsee or order, such
indorsee must again indorse ``in blank'' or ``in full'' to
effect a new transfer of the rights in the bill of lading.
(7) The amount or rate of freight payable is stated in the
bill of lading, either expressly, or, not uncommonly when
the freight under the bill of lading is the same as under the
charter-party, by reference to the charter-party. A common
form of such reference is ``freight and other conditions, as
per charter-party.'' It may here be mentioned that this form
of words does not incorporate in the contract under the bill
of lading all the terms and conditions of the charter-party,
but only those which apply to the person who is to take
delivery, and relate to matters ejusdem generis, or similar
to the payment of freight, such as demurrage and the like.
The conditions of the charter-party thus incorporated do not
include, for instance, the exceptions in the charter-party
so as to add them to the exceptions in the bill of
lading. Freight, unless it is otherwise provided by the
contract, is payable only on delivery of the goods at their
destination. If the voyage is interrupted and its completion
becomes impossible, the shipowner cannot claim payment
of freight even pro rata itineris. He loses his freight
altogether. This is so even when the completion of the
voyage is prevented by causes for which the shipowner is not
responsible, such as the act of God or the king's enemies, or
perils which are within the express exceptions in the bill of
lading. When the voyage is interrupted by accident, and indeed
in any case, the goods may, by agreement between the shipowner
and the consignee, be delivered at some place short of their
destination upon payment of a freight pro rata; that is to
say, proportional to the length of voyage accomplished, and
such an agreement may be implied in certain circumstances from
the conduct of the consignee in taking delivery before they
arrive at their destination. In all such cases it will be
a question of fact whether the goods were in fact delivered
upon the terms, express or implied, that freight pro rata
should be paid. As a rule such an agreement would not be
implied where the shipowner is unable or unwilling to forward
the goods to their destination, and the owner of the goods,
therefore, has no option but to take delivery where offered.
When the ship is disabled and cannot proceed, or she is
prevented by some obstacle from proceeding to the place of
delivery named in the bill of lading, and the shipowner is
unwilling or unable to forward the goods by another ship,
even though he may be excused for his failure to carry the
goods to their destination, he is not entitled to be paid
any part of the freight; and the consignee is entitled to
have the goods delivered to him either at the place where
the vessel has taken refuge in her disabled condition, or, if
the obstacle arises without disablement of the vessel, at the
place which is nearest and most reasonably convenient at the
time and in the circumstances when the further prosecution of
the voyage has to be abandoned. On the other hand, after the
goods have been shipped, so long as the shipowner is ready
and willing to carry the goods to their destination, or, if
the ship is disabled, to forward them to their destination by
