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prive the true owner of his title. "Taking possession of the property, shipping it, obtaining bills of lading from the carriers, indorsing away the bills of lading, or even selling the property and obtaining a full price for it, can have no effect upon the right of the owner. Even a bona fide purchaser obtains no right by a purchase from one who is not the owner, or not authorized to sell."" Therefore, if an owner of cotton authorizes another person to ship it, but gives the agent no authority to ship in his own name, the latter, by shipping in his own name, and taking a bill of lading accordingly, can not, by negotiating this, charge the cotton with the payment of advances made on the faith of such bill of lading."
III. How Far Binding upon the Carrier.
§ 245. A bill of lading represents the goods to be in the hands of the carrier. If, through inadvertence or otherwise, the bill of lading is signed before the goods have come to hand, but they are afterwards received and shipped, the bill of lading operates upon the goods by way of relation and estoppel; and one who accepts or discounts drafts on the security of such bill of lading, obtains a title to the goods as valid and effectual as he could obtain by an actual delivery to him of the goods themselves."
§ 246. A carrier is not bound by a bill of lading signed by an agent without an actual delivery of the goods to the carrier, alized by the owner to grant. Exceptions in favor of trade are allowed in the case of money and negotiable instruments. But as to other personal chattels, the mere possession, by whatever means it may have been acquired, if there be no other evidence of property, or authority to sell, from the true owner, will not enable the seller to give a good title."
2 Moore v. Robinson, 62 Ala. 537. 3 Rowley v. Bigelow, 12 Pick. (Mass.) 307, 312, 23 Am. Dec. 607.
'The Idaho, 93 U. S. 575, 583, per Strong, J. And so in Covill v. Hill, 4 Den. (N. Y.) 323, 327, it was said: "It is a principle of the common law which has but few exceptions, that a man can not be divested of his property without his consent. And although possession is one of the most usual evidences of title to personal chattels, yet, as a general rule, mere possession will not enable a man to transfer a better title than he has himself, or than he has been authorJONES PLEDGES-17
though the bill of lading be assigned to a person who in good faith discounts a draft attached to it. It has long been the prevailing rule that the master of a ship can not bind the owners by issuing bills of lading for goods not actually delivered on board the ship.' The same rule applies with greater force in the case of an agent of a railroad company. In other words, a bill of lading, whether issued by the master of a yessel or by the agent of any carrier, is not a commercial or negotiable paper in the hands of an innocent party, which precludes or estops the owner from denying that the freight was received as therein admitted. In a very recent case before the supreme court of the United States, involving the point under consideration, Mr. Justice Miller said: "A bill of lading is an instrument well known in commercial transactions, and its character and effect have been defined by judicial decisions. It is an instrument of a twofold character. It is at once a receipt and a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a contract to
1 Brown v. Powell Duffryn Steam Coal Co., L. R. 10 C. P. 562; Grant v. Norway, 10 C. B. 665; Coleman v. Riches, 16 C. B. 104; Hubbersty v. Ward, 8 Exch. 330; McLean v. Fleming, L. R. 2 H. L. 128, by statute; Mackay v. Commercial Bank, L. R. 5 P. C. 394; Jessel v. Bath, L. R. 2 Ex. 267; Schooner Freeman v. Buckingham, 18 How. 182; The May Flower, 3 Ware 300; The Loon, 7 Blatchf. 244; Pollard v. Vinton, 105 U. S. 7, 13 Rep. 545; Walter v. Brewer, 11 Mass. 99; Sears v. Wingate, 3 Allen (Mass.) 103; Dean v. King, 22 Ohio St. 118; Louisiana Nat. Bank v. Laveille, 52 Mo. 380; Robinson v. Memphis & Charleston R. Co., 9 Fed. Rep. 129, 138.
For the rule in Canada, see Erb v. Great Western R. Co., 42 U. C. Q. B. 90, 3 Tupper's App. 446; Oliver v. Great Western R. Co., 28 U. C. C. P.
143; McLean v. Buffalo & Lake Huron R. Co., 23 U. C. Q. B. 448, 24 U. C. Q. B. 271, but the latter case seems to be overruled by that first cited.
There are a few cases which seem to be opposed to the general rule supported by the weight of authority; Griswold v. Haven, 25 N. Y. 595, 82 Am. Dec. 380; Armour v. Michigan Cent. R., 65 N. Y. 111, 22 Am. Rep. 603; Wichita Sav. Bank v. Atchison, Topeka & Santa Fe R. Co., 20 Kan. 519.
Baltimore & Ohio R. Co. v. Wilkins, 44 Md. 11, 22 Am. Rep, 26; Robinson v. Memphis & Charleston R. Co., 9 Fed Rep. 129.
3 Adoue v. Seeligson, 54 Tex. 593, 604, per Moore, C. J.; Stone v. Wabash, St. Louis & Pacific R. Co., 9 Bradw. (Ill.) 48.
Pollard v. Vinton, 105 U. S. 7, 13 Rep. 545.
carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver."
§ 247. This matter has become the subject of statutory enactments. Thus in England' it is provided that every bill of lading in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment, as against the master or other person signing the same, notwithstanding that such goods, or some part thereof, may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board; provided that the master or other person so signing may exonerate himself in respect of such misrepresentation, by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims.
In Maryland' it is provided by statute that all bills of lading shall be conclusive evidence in the hands of any bona fide holder for value of such instrument, who shall have become such without actual notice to the contrary, that all of the goods, chattels, and commodities in said instrument mentioned or described, had been actually received by, and were actually in possession and custody of, such person or corporation at the time of issuing the said instrument according to the tenor thereof, and for the purposes and to the effects therein stipulated or provided, notwithstanding that the fact may be otherwise, and that such agent or officer may have had no authority to issue any such instrument on behalf of his said principal, ex
118 and 19 Vict., c. 111, § 3. For a case under this act, see Volieri v. Boyland, L. R. 1 C. P. 382.
There is a similar statute in Ontario. R. S., c. 116, § 5, sub-section 3.
2 R. Code 1878, p. 298, §§ 13, 14; 1 Pub. Gen. Laws, p. 118, § 2.
cept for goods, chattels, or commodities actually received, and in possession at the time of such issue.'
§ 248. Neither the master of a vessel nor its shipping agent can bind it or its owner by signing a bill of lading for goods not received. Such a bill of lading is not only void in the hands of the person to whom it is issued, but also in the hands of a pledgee in good faith and for value. The question is one of agency. The supreme court of the United States upon this point say: "Even if the master had been appointed by the owner, a willful fraud committed by him on a third person by signing false bills of lading would not be within his agency. If the signer of a bill of lading was not the master of the vessel, no one would suppose the vessel bound; and the reason is because the bill is signed by one not in privity with the owners. But the same reason applies to a signature made by a master out of the course of his employment. The taker assumes the risk, not only of the genuineness of the signature, and of the fact that the signer was master of the vessel, but also of the apparent authority of the master to issue the bill of lading. We say the apparent authority, because any secret instructions by the owner, inconsistent with the authority
1 In Missouri (R. S. 1899, vol. ii, c. 79, §§ 5052-5055) it is provided by statute that no master, owner, or agent of any boat or vessel of any description, forwarder, or officer, or agent of any railroad, transfer, or transportation company, or other person, shall sign or give any bill of lading, receipt, or other voucher or document, for any merchandise or property, by which it shall appear that such merchandise or property has been shipped on board of any boat, vessel, railroad car, or other vehicle, unless the same shall have been actually shipped and put on board, and shall be at the time actually on board or delivered to such boat, vessel, car, or other vehicle, to
be carried and conveyed as expressed in such bill of lading, receipt, or other voucher or document. A violation of this provision is punishable by a fine in any sum not exceeding five thousand dollars, or imprisonment in the penitentiary not exceeding five years, or both. The person aggrieved by such violation may also recover in an action at law of the person guilty thereof all damages he has sustained.
There are statutes similar to this in several states, this being given only as a sample.
2 Pollard v. Vinton, 105 U. S. 7. 3 Schooner Freeman v. Buckingham, 18 How. 182
with which the master appears to be clothed, would not affect third persons. But the master of a vessel has no more apparent authority to sign bills of lading than he has to sign bills of sale of the ship. He has an apparent authority, if the ship be a general one, to sign bills of lading for cargo actually shipped; and he has also authority to sign a bill of sale of the ship when in case of disaster his power of sale arises. But the authority in each case arises out of and depends upon a particular state of facts. It is not an unlimited authority in one case more than in the other; and his act in either case does not bind the owner even in favor of an innocent purchaser, if the facts on which his power depended did not exist; and it is incumbent upon those who are about to change their condition upon the faith of his authority, to ascertain the existence of all the facts upon which his authority depends.'
§ 249. There is no distinction in this respect between a bill of lading given by a carrier on land and one given by a carrier on water. The exemption of the owner of a ship from liability for the fraud of the master in issuing a false bill of lading does not grow out of the peculiarities of the laws of the sea, and is not founded on the principle that the ship is bound to the freight and the freight to the ship.' The exemption of the carrier from liability in such case is founded upon the common law principle, that one is not bound by the acts of an agent when acting outside the scope of his authority. So far as the agency of a master of a ship is implied, it is more comprehensive than that of a station or freight agent of a railroad company; and if any argument is to be drawn from the difference of the agency in the two cases, it is that inasmuch as the master has no authority, actual or apparent, to issue bills of lading until the goods are delivered to the ship, much less has the freight agent of a railroad company, whose agency is less comprehensive, any authority to bind the railroad company by
1 Robinson v. Memphis & Charleston R. Co., 9 Fed. Rep. 129, 140, per Hammond, J.
2 Robinson v. Memphis & Charleston R. Co., 9 Fed. Rep. 129, 140, per Hammond, J.