with the seller, nor yet as an agent to hold them under the order of the buyer, but only as an agent to forward them from the seller to the buyer. As Baron Rolfe said in the case of Gibson v. Carruthers (a), the essence of the doctrine of stoppage in transitu is that "the goods should be in the custody "of some third person, intermediate between the seller who "has parted with and the buyer who has not yet acquired "actual possession." By section 45 (1) of the Sale of Goods Act, "Goods are "deemed to be in course of transit from the time when they "are delivered to a carrier by land or water, or other bailee "or custodier for the purpose of transmission to the buyer, "until the buyer, or his agent in that behalf, takes delivery of "them from such carrier or other bailee or custodier." There are many cases in which it is quite clear in which capacity the goods are held. No one could for a moment doubt that goods in the hands of a public carrier, either by land or by water, and actually on the journey, are in transitu; it is self-evident as a matter of fact, that the carrier under such circumstances holds them merely as an agent to forward. And it is equally clear that goods travelling on the same journey in the buyer's own cart or barge, which he had sent for them, are not in transitu; for the carter or bargeman is clearly the buyer's servant, and not an agent to forward from the seller. But there is sometimes a good deal of difficulty in drawing the boundary line between the carrier and the servant, as, for instance, in ascertaining the character of the captain, where the buyer does not send his own vessel to fetch the goods, but employs a ship belonging to a third party on that particular errand. In two important cases, Inglis v. Usherwood (b), in 1801, and Bohtlingk v. Inglis (c), in 1803, it was at first taken for granted, that a delivery of goods on board a vessel chartered by the buyer, was a See (a) Gibson v. Carruthers, in 1841; 11 L. J. Ex. 138; 8 M. & W. 328. also Schotsman v. Lancs, and Yorks. Ry. Co., in 1867, 36 L. J. Ch. 361; 2 Ch. App. 335. (b) Inglis v. Usherwood, 1 East, 515. (c) Boltlingk v. Inglis, 3 East, 381. delivery to the buyer himself, but afterwards the Court held and decided that it was but a delivery to an agent to forward, and that the goods on board the ship were in transitu. How this may be, seems to depend on the nature of the contract between the shipowner and the charterer, and by section 45 (5) of the Sale of Goods Act, "When goods are delivered to a ship chartered by the buyer it is a question depending on "the circumstances of the particular case, whether they are "in the possession of the master as a carrier or as agent "to the buyer." In the majority of cases, the shipowner does not part with the possession of the vessel to the charterer; he does no more than contract to employ the vessel and the services of the master and crew for a time, exclusively for the benefit of the charterer; so that the master remains the servant of the shipowner, and not of the charterer, and his possession is the possession of the shipowner, and not of the charterer in any case in which their rights come in question. But though this is the usual contract between the shipowner and the charterer, they may in law, and in practice sometimes do, agree that the charterer shall during the voyage have the possession of the vessel, and that the master shall during that time be the servant of the charterer. In other words, though a charter-party usually is a contract on the part of the shipowner to use the ship and the services of the master and crew in a particular manner, it may amount to a demise of the vessel, and of the services of the master and crew. The distinctions on which it depends, which is the construction of the charter-party, may be found in Abbott on Shipping («). When, therefore, goods are put into the possession of the master of a ship, they are in general in the possession of the shipowner, who, as it is evident, is an agent to forward the goods, and therefore goods on shipboard in general are in transitu; but where the master is not the servant of the shipowner, but the immediate servant of the charterer, the goods, by being put into possession of the master, are put in the (a) Abbott on Shipping, Part III., Chap. IX. 66 possession of the charterer, and, therefore, if the charterer be also the buyer, they are no longer in transitu. "So," says Lord Tenterden in Abbott on Shipping (a), "as I have "before observed, the master of a ship chartered wholly by "the consignee is now held to be a carrier, in whose hands "goods may be stopped (b). But where a ship had been "hired by the consignee for a term of years, and was fitted out, victualled, and manned by him, and goods were put " on board thereof to be sent by him on a mercantile adven"ture, for which he had bought them, it was held that the "consignor could not stop them: the consignee being in that "case the owner of the ship pro tempore, and the delivery of "goods on board thereof being equivalent to a delivery "into a warehouse belonging to him, and the transit being in effect a transit from, and not to him. Fowler v. MacTaggart (c)." 66 6 It is not of any importance in point of law whether the goods are actually on a journey or not, for if the goods are deposited with one who holds them merely as an agent to forward, and has the custody as such, they are as much in transitu as if they were actually moving; but in general there is more difficulty in ascertaining as a fact in what capacity goods are deposited, than in what capacity they are carried. The acts accompanying the transport of goods are less equivocal, less susceptible of two interpretations as to the character in which they are done, than are those accompanying a deposit of goods. The question, however, is still the same; has the person who has the custody of the goods got possession as an agent to forward from the seller to the buyer, or as an agent to hold for the buyer? In Bethell v. Clark (d) in 1888, Lord Esher, M. R. said: (a) Abbott on Shipping, Part III., Chap. IX., 14th ed., p. 834. (b) Bohtlingk v. Inglis, 3 East, 381; Berndtson v. Strang, 37 L. J. Ch. 665; 3 Ch. Ap. 590; but see also Cowdenbeath Coal Co. v. Clydesdale Bank, 22 Sess. Cas. (4th) 682. (c) Cited in 7 T. R. 442. (d) Bethell v. Clark, 57 L. J. Q. B. 302; 20 Q. B. D. 615 ; See also Jobson v Eppenheim, 21 T. L. R. 468. "There has been a difficulty in some cases where the question "was whether the original transit was at an end, and a fresh "transit had begun. The way in which that question had "been dealt with is this: Where the transit is a transit which "has been caused either by the terms of the contract or by "the directions of the purchaser to the vendor, the right of "stoppage in transitu exists; but, if the goods are not in the "hands of the carrier by reason either of the terms of the "contract or of the directions of the purchaser to the vendor, "but are in transitu afterwards in consequence of fresh "directions given by the purchaser for a new transit, then "such transit is no part of the original transit, and the right "to stop is gone. So also if the purchaser gives orders that "the goods shall be sent to a particular place, there to be "kept till he gives fresh orders as to their destination to a new carrier, the original transit is at an end when they have "reached that place, and any further transit is a fresh and "independent transit." In Leeds v. Wright (a), in 1803, where an agent of the bankrupt purchased the goods on account of the bankrupt for exportation, but had authority from the bankrupt to export them to any port he pleased, the Court of Common Pleas held that he was not an agent to forward, and that goods in his hands were not in transitu. And in Scott v. Pettit (b), in the same year, where the bankrupt had given general orders to a carrier to send all goods for him to the defendant's house to be packed, and the goods were accordingly sent to his house, the same Court decided that there being no fixed ulterior destination, the packer must be considered not as an agent to forward, but as one to hold the goods subject to the buyer's orders, like a warehouseman, and, consequently, that on their delivery to the defendant the transitus was ended. Shortly after the decision of these cases, the point arose in Dixon v. Baldwin (c), in 1804, in which case goods were ordered by the insolvents "to be forwarded to Metcalfe at (a) Leeds v. Wright, 3 B. & P. 320. "Hull, to be shipped for Hamburgh as usual," and it was proved that it was usual for Metcalfe to keep such goods till he received orders from the insolvents, and then to do with them whatever the insolvents ordered. The King's Bench decided that the goods in Metcalfe's hands were not in transitu. Lord Ellenborough reviewed most of the previous cases, and approved of the principle of Scott v. Pettit (a), which he said was, "that the transitus of goods is only not at an end on "their reaching the packer, where they remain with him for "the purpose of being forwarded on to some ulterior ap pointed place of destination; but here, as in those cases, "the goods had so far gotten to the end of their journey, "that they waited for new orders from the purchaser to put "them again in motion, and that without such orders they "would continue stationary." Grose, J., differed from the rest of the Court upon this point, and thought the transitus at an end; but all four Judges agreed upon another point, which decided the cause. It is worth while to observe, that the marginal note in East's Reports is not a correct abstract of what was really decided. The marginal note states the case to be, that goods "sent to Metcalfe to be forwarded to Hamburgh" were not in transitu; but Lord Ellenborough's judgment proceeds on the express ground that it was proved that the goods were sent to Metcalfe, not to be forwarded to Hamburgh, but to wait for orders from the buyer (b). In Smith v. Goss (c), in 1808, at Nisi Prius, Lord Ellenborough decided that where goods had been ordered "to be "sent addressed to the care of Goss, Bull's Wharf, London, "with directions to send them by the first vessel to Newcastle," they were in transitu in Goss's hands. And in Coates v. Railton (d), in 1827, where the course of business was for Railton, who was a packer, warehouseman, (a) Scott v. Pettit, 3 B. & P. 469. (b) Dodson v. Wentworth, 4 M. & G. 1080, in 1842; Wentworth v. Outhwaite, 10 M. & W. 436, in 1842; 12 L. J. Ex. 172. (c) Smith v. Goss, 1 Camp. 282. (d) Coates v. Railton, 6 B. & C. 422. |