February 9, 1907.]
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CHINA OVERLAND TRADE REPORT.
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re-exported goods.” If the words of this the term “ re-export " has a very definite mean- | implying that the shipowner will never be exception are properly understood, the reasoning; and so also, the customs being non-existent. responsible for goods abstracted or damaged for its introduction is apparent; whether the bas "re-shipment. " onus of proof be on the ship or the shipper, the
It is of course impossible during the voyage; he cannot get rid of his to give an exhaustive list of all the cases which liability if any thing has happened on board -practical difficulties in the way of proving where would come within the definition which I have damage was actually caused, whatever that attempted to give; I can only say broadly that it he is liable. But he says I decline to admit because he has contraefed to carry and deliver damage may be, when the goods have been in any circumstances which are analogous to the that the something I am carrying is what you different ships, not necessarily belonging to the illustrations I have given would come within it. | say it is; if it is as you say, and you usek to same Company, is obviously so great that the On the other hand it is easy to say what falls make me shipowner receiving re-shipped or re-exported oatside of it. Where actual delivery has been you
responsible for damage or loss, goods declines to accept any responsibility taken then the continuity of the voyage has been
must prove it. In other words the whatever. It is not to be wondered at that the broken,
onus of providing what the something and there would clause should be inserted in the bill of lading contract entered into with the new ship on
be fresh carried was in fact, lies on the shipper.
Onus of of a Company such as the British India," which the goods are placed.
proof
often ■ dificult whose business often compels them to deal
The shipowner term to settle the meaning of exactly; but an may, if the circumstances seem with re-shipped cargo.
to him to to the relation of admissions or non-admissiożs But then I have to justify it, insist on making the re-shipment | in bill of ladings to the onus of proving the decide what is the meaning of the terms used exception part of the contract, and the shipper contrary, there can be no doubt from the judg- in the exception, and whether the goods in may accept or reject it as he pleases. But this | ment of James, L J.. in the Peter der Grosse (8 question in this action come within those new contract differs essentially from the one | Asp. M.L C. at p. 197) that the law is as I have terms. I think the meaning of terms used in referred to in one of the illustrations just such a document as a bill of lading can be given, because there the fact that the goods the Law Lords in Molean v. Fleming (L.E. 2 stated it. now come to the diots of some of arrived at only by understanding the object with are re-shipped cargo is known to both parties, Sr. app. 128) which, it is said, throw some doubt which they are used, the diroumstances to and the new contract is entered into on that upon the principle. which they are intended to apply. These words footing. Much stress in dealing with this must be used either in their ordinary sense, or point was laid on the fact that although the no authority to sign bill of lading for a greater Lord Chelmsford said that the master "baa in a sense restricted by the conditions of the voyage qua shipboard was business with regard to which they are used. yet that qua consignment it
not continuous, | quantity of goods than is actually put on board, Now it is not necessary to invent an extreme
was for the yet, as it is not to be presumed that he has goods were ordered to be sent case, such as was suggested in argument,
from exceeded his duty, his signature to the bill of Batavia to Hongkong, and were in fact so sent. ladings is sufficient evidence of the truth of of cases of wine received, opened, and Only the voyage was broken, and an intermediate their contents to throw upon the shipowner afterwards repacked and "re-shipped to delivery taken at Singapore. So far as the the one of falsifying them, and proving that another place, to show that the word is not facts are concerned it is clear that the go da be received a les quantity of goods to carry intended to be used in its ordinary sense; he- were taken from the Yan Rebeck to the than is thus acknowledged by his agent. But cause there is &
case familiar under some godowns of Ban Ann Hoh beyond this it is not it being admitted that it lay upon the ship- Customs Laws which is sufficient for the necessary to go. It might possibly be that the owners to rebut the prima facie evidence aria- purpose. Goods are sent on approval, taken right of s'oppage in transit was not destroyed by ing from the bill of ladings, he appears to me delivery of, the cases are opened, the contents this taking delivery. But although that doctrine to have satisfactorily done so." are found not to be up to sample; and for this, bears to a certain extent some analogy to the is reported to have said the same thing. Were Lord Colonmy or for some other reason, they are re-packed, the construction I have put upon this exception, i it not for the reporter's nota that not only were cases fastened down again, and re-shipped. How the two things rest on an entirely different the words would it be possible for the shippers to claim basis; and I Bm
weight, quality, and contenta the exception in such a cose? In some places is not a
of opinion that this ooknown" in the bill of lading, but also that саке in which indeed drawback o
the shipowners the master bad protested from inadequacy of customs duties is allowed
can rely on the exception when goods are re-shipped in the original pack-dition of the bill of lading was also relied on by. For so far as the report of the judgments go, Another con- freight, these diots would give no trouble. ages within a certain period from the date of the defendant company, but as in the cironm. these words were the importation.
stances of the case it was abandoned, it is only opinions above quoted would have been no more nat referred to, and the necessary briefly to refer to it. The clause runs thus:-"In all cases and under all circumstances, bill of ladings not containing them. The sotion than a statement of the law as to the effect of the liability of the Company sball absolutely cease when the goods are free of the ship's
a charterparty in respect of dead tackle, and thereupon the goods shall be at the of lading was obviously material. But assuming freipht", and the question of the effect of the bill risk for all purposes and in every respect of the these opinions to be the law oven with these shipper or consignee. ' I think this must refer words in the bill of lading. I think I am to the case where delivery is taken by the justified in construing them strictly, and consignee. It could hardly exempt the ship as having reference only to quantity, or weight; owner in cases where, although the cargo has and it may be that the possibility of the heen landed. his character of carrier has not master being able to verify the shipper's been changed to that of warehouseman.
statement in this respect may lie at the root of the motter. Baron Martin in Jesselv, Bath laid stress on the fact that the master could not by any possibility weigh the goods special detail to the consting trade in the as they were shipped; but he referred in Mediteranean, where “ goods n ust be shipped on board hastily." If it it is obviously that were necessary to this case to pursue this enquiry further, I believe principle would be found underlying the ouses very distinct in which there has been a short delivery of cargo. It is not difficult to understand that s not very subtle distinction might be drawn between weight" and "quantity," would recognize what aoʻually takes place when which goods are shipped on board a versel." It would be impossible to suppose that a master should sign for 1,000 bales of cotton, and when a smaller number is delivered, that the shipowner should
It seems to me clear that when an exception is introduced which depends on a pre-existent fact, the parties can never be ad idem unless they are agreed as to the existence of the fact, and enter into the contract subject to it. But the extreme case suggested at the trial is useful as showing to what lengths the exception might be pushed if I were to accept the defendants' contention on their point. I should have to reject an interpretation of these terms which is I believe consistent with the dustom of shipping. which is reasonable, which meets entirely the special risks which the shipowners, as I believe, desire to avoid; which moreover cannot be mis- understood, and which therefore supposes the parties to be ad idem when the contact for car- riage is enter d into. Re-exporting in the bill of lading bas, I think, a definite meaning; it refers to goods which have been entered af, but have rot passed the customs, hare not paid duty, but remain on the customa promises, either wharf or warehouse till they are re-exported.
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I now pass to the important clause of the bill of lading : "weight, contents and value, when shipped unknown." There is no doubt that Kelly, C.B., based his judgment in Jesell v. Bath (L.R. 2 Ex. 267) ou the Bills of Lading Act (18 and 19 Vist. C. 111) because the action was brought by a bona fide assignee for talus of the hill of Inding, and the question was whether be came within the protection afforded by 8. 3 of the Act. But in the judgment of Transhipment has also a definite meaning: Martin R. and Bramwell B, a construction was it refers to goods put from one ship on to an- placed upon the words now under consideration other in the course of a voyage, generally at an and I think that the principla on which the ex- intermediate port. This term is however not ception has been explained and supported is now used in this document, but “reshipment;" and well understood in the sense explained by the it was contended that it must have a wider nraed Barons, though there seems still to meaning than "re-exporting," for otherwise it be Kome doubt. BN to the would be practically identical with it.
scope of the words used, “The person signing the bill of think, however, that it ix used to cover lading, by signing for the amount with this ORBO- wbere, as in Hongkong, there is qualification,~*weight, contents and value technically speaking no re-exp rt, as there are unknown,' merely means to say that the weight no customs premises. But the same idea is in represented to him to be so much, but that he intended; delivery of the goods is not taken, has himself no knowledge of the matter." The hat they are put on or into Godown ('ompany's principle was followed in Libeau v. General wbarfs, lighters, or warehouses, pending their Steam Navigation Co. (L.R.S.C.P. 88). It being lo ded on to anothe, vessel. A through applies to the contents and to their value, si bill of lading is of course the commonest case in
well as to their weight; and in all three cases which there is re-export or re-shipment in this
the fact that the shipper has inserted in the limited sense. But I do not think that such | margin a statement which is always treated as a bill of Inding is essential to bring the case being no more than his views on these matters within the exception; nor even that makes no diference. It could not be other- there need be a continuous voyage; for wise; for it is a mere question of atract. there is a well known course of business The shipowner declines to enter into the where goods are consigned to a firm at one contract except on the understanding which port, and by them consigned to another firm | these words of exception are intended to conveg at another port; and this without taking any. that he does not agres knowing nothing abral thing more than technical delivery. Where there it, that the weight, value or contents of the are import duties it is obvious that such goods cases shipped are what the shipper says they will not be passed through the customs exceptare; and the shipper ships on that understand- ¿y special arrangement. In such circumstances ing.
This is not - an absolute exception,
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shelter himself behind “quantity unknown" (if this is ever used) and so shift the onus on to the shipper to prove that that is as far as assumption goes in Wolean T. 1,000 bales were in fact shipped. And really Fleming. There were 210 tonsshort of the cargo stipulated for: how could the stipulation
weight unknown really a question of "quantity" not "weight"
shift the onus? there was
conflict with Jessel 7. Bath, and certainly it căn- and I ken nothing in the decision at all in not affect the proposition in so far as quality or coulents are concerned, which it is manifest. that the master cannot verify. So far there- fore I am of opinion that the onus lies on the plaiatia to show that the cases did in fast point of inw to be considered. The cared War contain birds' nests. But there is yet another not landed in good order and condition. The master had signed the bill of lading to tha effect that they wore so taken on board. If
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