lien and to deliver the goods without payment of the freight, his right to resort to the shipper for compensation still remains." § 369. It has been held that where a bill of lading contains the clause "he (the consignee) paying the freight" or that the goods be delivered "on presenting this receipt and payment of the freight," that this is introduced for the benefit of the carrier and does not exempt the consignor from liability. In Collins v. Union Trans. Co.,3 a bill of lading contained the clause "we promise to deliver to A. and B., upon presenting this receipt and payment of freight, etc." The consignors paid A. and B. the amount of the freight and they failed before paying the carrier, who then sued the consignors. It was held that the carrier was entitled to recover the amount of freight from the consignors and that the proviso for payment was not for the latter, but for the carrier's benefit. In Barker v. Havens, the owner of goods shipped them to Liverpool, the bill of lading saying," to be delivered to C. B. & Co., they paying freight for the same, etc." The master delivered the goods at Liverpool without receiving the freight from the consignee, who afterwards refused to pay it. An action was held maintainable against the consignor therefor, the clause in the bill being simply for the benefit of the carrier. In Thomas v. Snyder,5 a shipper consigned coal to D. or his assigns, "he or they paying the freight for the said coal," directing in the bill of lading, at the request of Thomas, the owner of the vessel in which the coal was shipped, "freight payable to P. D. Thomas." Then the coal was delivered to the assigns of D., who were at the time willing and able to pay the freight. Neither Thomas nor his agent, nor any one for him, was present to receive it and by the subsequent failure of the assignees it was lost. In an action by Thomas against the shipper of the cargo, to recover the freight, it was held that it was not error in the court. to instruct the jury that if they found these facts, their verdict should be for the defendant, the court saying, by Mr. Justice WOODWARD, "that a party who insists on such a stipulation in

1 Worster v. Tarr, 8 Allen (Mass.), 270.

2 Layng v. Stewart, 1 Watts & Sargeant (Pa.), 222.

3 10 Watts (Pa.), 384.

17 Johnson (N. Y.), 234. 53 Wright (Pa.), 317.

a bill of lading should be at hand or should appoint some one to receive the freight at the proper time and place for its payment is not, we think, an unreasonable rule of law."

Where the shipper is impliedly bound from the face of the bill to pay the freight of goods, it is allowable to show that the owner of the boat received them under an agreement with a third person to pay the freight, when the latter has paid it.1

§ 370. Where a bill of lading says "we promise to deliver to A. and B., upon presenting this receipt and payment of freight," etc., this proviso for prepayment is not for the consignor, but for the carrier's benefit and if the consignees fail to pay the consignor must do so. The usual clause in a bill of lading making the payment of freight by the consignee a condition of the delivery of the goods, is inserted for the benefit of the carrier.3

§ 371. In the English case of Green v. Sichel, the carrier refused to give a bill of lading or other document giving evidence of the goods being on board his ship unless the freight were previously paid. Though this was not one of the points decided, yet the carrier's action seems to have been acquiesced in as legal and proper.

§ 372. As a general rule where the amount of the freight is specified in the bill of lading, no greater amount can be demanded for the transportation of the goods. In the case of the "406 Hogsheads of Molasses," a libel in rem was filed against certain hogsheads of molasses, to recover freight under a charter party. The vessel was chartered by Gordon for a specified sum. P. shipped certain molasses, which he had sold to Gordon. The bill of lading therefor was signed by the master, providing for delivery to the order of P., at a specified rate of freight and contained at its foot the words, "Without prejudice to charter party." Afterwards R. advanced, on the security of the bill of lading, money to take up the drafts drawn on Gordon for the price of the molasses

1 Wayland v. Mosely, 5 Ala. 430.

2 Collins v. Union Transp. Co., 10 Watts (Pa.), 384.

3 Canfield v. Northern R. R. Co., 18 Barb. (N. Y.), 586.

47 C. B. (N. S.) 747; 6 Jur. (N. S.) 827; 29 L. J. (C. P.) 213; 8 W. R. (C. P.) 663.

54 Blatch. 319.

and took an assignment of the bill of lading. It was held that the molasses was liable only for the freight specified in the bill of lading.

Dray tickets were by mistake signed for a shipper's goods at 30 cents per hundred by a steamboat clerk and on his refusal to sign bills of lading at the same rate, the shipper demanded to have the goods put on shore. The carrier refused and went on and transported them to destination. This action of the carrier was held to be an assent or agreement by it to transport at the rate of 30 cents per hundred and it was not entitled to recover more than that amount.1

§ 373. Where freight is by the bill of lading payable at a certain rate per ton, "nett weight delivered," the carrier has no right to demand freight upon the amount named in the bill of lading, larger than the quantity actually delivered.2

§ 374. It is not necessary that the freight to be paid be expressed in the bill. A promise on the part of the shipper to pay reasonable freight is implied in law. In Holford v. Adams an express company carried a package containing $40,000 of bonds. On arriving at the place of destination it refused to deliver the bonds except on payment of $400, one per cent. of the value of the package. It was held that under the terms of the contract, whereby the carrier was not to be liable for loss or damage, except so far as due to fraud or gross negligence, there was no reason for enhancing the charge in proportion to the value of the articles transported and this charge was prima facie uureasonable. It could not be justified by proof of a usage, not general, but of this carrier only.

§ 375. A bill of lading provides that the carrier is to carry and deliver in good order and if the goods conveyed are damaged, the consignee may withhold the amount out of the price to be paid as freight." Against a claim for freight the consignee may set up a counter claim for damages for non-delivery of the residue of the quantities specified in the bill of lading and not

159.

Wood v. Str. Fleetwood, 27 Mo.

2 Duer (N. Y.), 471. Boggs v. Martin, 13 B. Mon. 2 Coulthurst v. Sweet, 1 L. R. C. P. (Ky.) 239; Libby v. Gage, 14 Allen (Mass.), 261; The Tangier, 32 Fed.

649.

Gray v. Mo. River Packet Co., 64 Rep. 230. Mo. 47.

279

[CHAP. XXVII. actually received.' In England, a consignee of goods, or an indorsee of a bill of lading, has no right to have the value of missing goods deducted from the freight payable, in respect of the goods delivered and no custom of merchants inconsistent with this rule, or law of a foreign country making an allowance in such a case by way of set-off, will be recognized.'

§ 376. Where goods are shipped at an agreed price of freight and part are delivered, at defendant's request, at a point short of destination, but without any waiver by the carrier of his claim for full freight, the defendant is liable for the full freight, as much as if the goods had been carried to the original point of destination.3

§ 377. Where goods are shipped as of an inferior class, but are really of a superior class, the carrier is entitled to recover the usual rate for the superior class. Thus where sewing-machines were shipped as "hardware," it was held that when the true character of the goods was discovered, the railroad agent had the right to bill them truly and charge the freight at the higher rate authorized by the company's regulations."

§ 378. Under an ordinary bill of lading, freight is only demandable by the owner, master, or consignee of the ship when they are ready to deliver the goods in the like good order as they were when they were received on board the ship and freight can only be demanded when the goods are discharged from the vessel and the consignee has had a reasonable opportunity to examine into their condition."

Neither the carrier nor the consignee can require that goods

1 Byrne v. Weeks, 4 Abb. Dec. (N. Y.) 657; Hinsdell v. Weed, 5 Denio (N. Y.), 172.

2 Mayer v. Dresser, 10 Can. L. J. (O. S.) 308; Mayer v. Dresser, 16 C. B. (N. S.) 646; Allen v. Chisholm, 33 Upper Canada, Q. B. 237; The Norway, 8 Moore P. C. C. (N. S.)

245.

3 Ellis v. Willard, 9 N. Y. 529. Ricev. Indianapolis, etc., R. R. Co., 3 Mo. Appeal Rep. 27.

5 Sumner v. Southern R. R. Ass., 7 Baxter (Tenn.), 345.

6 Brittan v. Barnaby, 21 Howard, 527; The Velona, 3 Ware, 139; Humphreys v. Reed, 6 Wharton (Pa.), 435; Thomas v. Snyder, 3 Wright (Pa.), 317; Rowland v. Miln, 2 Hilt (N. Y.), 150; Gauche v. Storer, 14 La. Ann. Rep. 411.

7 Vitrified Pipes, 14 Blatch. 274; Black v. Rose, 2 Moore P. C. (N. S.) 277; Certain Logs of Mahogany, 2 Sumner, 589.

shipped under one bill of lading shall be divided and delivered in parcels on separate payment of freight for each parcel.1

The owners of a vessel can recover on an implied assumpsit against the consignee named in the bill of lading on his receiving the property shipped.. If a part of the property be lost in the course of the voyage and the consignee accept the residue, he becomes liable to pay freight pro rata, but may recoup the damage for property not delivered in an action against him for freight. If, however, the directions of the consignors to the consignee, as contained in or annexed to the bill of lading, be to pay freight only on delivery of all the property shipped, the delivery of the whole will be a condition precedent to the recovery of freight against the consignee, though he receive and accept a part.2

§ 379. If a bill of lading stipulates that the freight is earned whether the goods arrive or not, the shippers are liable for the freight; and the master is entitled to full freight on all the goods laden and borne on the bill of lading, though they may be by natural causes and without his fault, diminished in quantity when delivered."

Although freight is not payable in respect of a man's own goods conveyed in his own ship, it becomes so if he makes third persons, who have advanced him money, the consignees of the goods and the goods are by the bill of lading deliverable to the order of such persons.

§ 380. In the following cases certain peculiar provisions in bills of lading in reference to freight are considered. In Krall v. Burnett, "freight payable in London" means that it is payable there and not elsewhere and has no reference to the time of payment. Evidence is not admissible to explain the phrase so as to make it by custom mean "freight payable in advance in London." In Jones v. Hoyt,' a bill of lading of lumber

1 Vitrified Pipes, 14 Blatch. 274; Brittan v. Barnaby, 21 Howard, 527. 2 Hinsdell v. Weed, 5 Denio (N. Y.), 172; The Nathaniel Hooper, 3 Sumner, 512; Perkins v. Hill, 1 Sprague, 123.

3 Murray v. Head, 3 Legal News (Canada), 47.

4 Steelman v. Taylor, 3 Ware, 52. 5 Weguelin v. Cellier, L. R. 6 H. L. 286.

25 W. R. 305. 7 23 Conn. 157.