S. 45 (5). Apart from the distinction between an ordinary charter and a demise, the "circumstances of the particular case" may show that the possession of the master of a chartered ship is the destination of the goods, and the end of the transit. Fowler v. McTaggart, cited in the Illustrations, infra (though a case of demise), may apparently be explained on this principle also, the voyage being a "roving one"; and Wood, V.-C. (though he does not mention the case by name), apparently alluded to it, and thus explained it, in Berndtson v. Strang (j). ILLUSTRATIONS. 1. A. agrees to sell to B. china clay to be shipped at F. B. verbally charters a ship to convey the clay from F. to G. The clay is loaded at F. The receipt of the clay by the master of the ship is as carrier, and not as B.'s agent, as a further transit was contemplated by A. and B., and there are no facts to show that the master was B.'s agent to take possession. Ex parte Rosevear China Clay Co. (1879), 11 Ch. D. 560. 2. B. charters a ship to go to P., and there receive from A., B.'s agent, a complete cargo of merchandise, the ship to return to L. and deliver the goods on freight being paid. A. ships the goods, B. then being insolvent, and afterwards stops them before their arrival at L. The receipt of the goods by the master of the ship is by him as carrier, as by the charter-party there was merely a contract of carriage between B. and the shipowner, although a complete cargo was to be loaded by B. Bohtlingk v. Inglis (1803), 3 East. 381 (k). 3. B. charters a ship for a space of three years, B. to victual the ship, pay the master and crew, and to have the entire disposition and complete control over the vessel. B. then buys goods of A. for a mercantile adventure, and A. ships the goods. The receipt of the master is by him as agent for B., as the ship was B.'s by virtue of the charter-party. Fowler v. McTaggart (or Kymer), cited in Bohtlingk v. Inglis, supra, at p. 396 (7). 4. B. orders goods of A., to be shipped to L., and sends his chartered ship for them. A. ships the goods, and takes the bill of lading to his own order, which he indorses to B. The receipt by the master is a receipt by a carrier only to L., as the circumstances of the case, viz., an ordinary charter of the ship by B., and the form of the bill of lading, show that the master was interposed between A. and B. as a carrier. Berndtson v. Strang (1887), 4 Eq. 481; 3 Ch. Ap. 588. 6.) Where the carrier or other bailee or custodier wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end. (j) (1867), 4 Eq. at p. 490. (k) Inglis v. Usherwood (1801), 1 East, 515 (at first sight containing contrary dicta), was explained in this case. (1) See Abbott on Shipping (10th ed.), p. 400. The facts are set out more fully in Inglis v. Usherwood, supra. See, also, Schotsmans v. Lancashire and Yorkshire Ry. Co. (1867), 2 Ch. Ap. 332, where the ship was the buyer's own. This sub-section accords with the decision in Bird v. Brown (m), where it was held that the transit was at an end when the goods had reached their destination, and when the consignee, having demanded the goods and tendered the amount of freight, would have taken possession of them but for the wrongful delivery of them to other parties. Wrongfully. Lord Blackburn suggests that "the refusal must be so tortious as to render the middleman liable in trover" (n). The converse case of the buyer wrongfully taking possession. without the carrier's consent is dealt with under s. 45 (2), ante, p. 245. (7.) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods. Part delivery of the goods.-As part delivery has the same effect upon the seller's right of stoppage when the goods are in course of transit as it has upon the seller's lien when the goods remain in the seller's possession, the reader is referred to s. 42 and notes thereon, ante, p. 223, where the subject of part delivery is discussed. An agreement to give up possession.-I. e., between the carrier making delivery and the buyer, or his agent, and to the effect that either (1) the part delivery shall be considered a delivery in the due course of the delivery of the whole, or that (2) the carrier shall be considered the buyer's agent, i. e., an acknowledgment by him under sub-s. 3, supra. Slubey v. Heyward (o), and Hammond v. Anderson (p), were two cases explained on this latter principle in Ex parte Cooper, infra. See notes to s. 42, ante, p. 224. ILLUSTRATIONS. 1. A. sells and consigns goods to B., and takes a bill of lading making the goods deliverable to B. on his paying freight. C., the master of the ship, delivers part of the goods to B., who pays part of the freight, but does not tender the rest. The facts do not show any agreement that part delivery should operate as a delivery of the (m) (1850), 4 Ex. 786. (n) Blackb. p. 375. (0) (1795), 2 H. Bl. 504. (p) (1804), 1 B. & P. N. R. 69. S. 45 (6). S. 45 (7). S. 45 (7). How stoppage in transitu is effected. S. 46 (1). whole, C. retaining his lien for freight, and B. not tendering it. Ex parte Cooper (1879), 11 Ch. D. 68 (q). 2. A. sells and ships eighty quarters of wheat to B., who accepts a bill for the price. B., being insolvent, assigns the wheat to C., an assignee for the general body of B.'s creditors. C., on the arrival of the wheat, takes samples, and sells seventy quarters, which are delivered to the buyers. The part delivery to C. is a constructive total delivery, as the facts show that C. was intended, being assignee for B.'s creditors generally, to take possession of all the wheat. Jones v. Jones (1841), 8 M. & W. 431. 46.-(1.) The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee or custodier in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer. (2.) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee or custodier in possession of the goods, he must redeliver the goods to, or according to the directions of the seller. The expenses of such re-delivery must be borne by the seller. May exercise his right. The word "may," used in this subsection, will doubtless be interpreted in its ordinary sense as a potential and enabling term only, as in the case of the similar words "it shall be lawful" (r). That is to say, the modes of stoppage in transit here mentioned are not intended to be exhaustive, but are given only as illustrations of the more usual method of exercising the general right of stoppage conferred by s. 44. It should be remarked also that the word "must" is used in the latter part of the sub-section, and also in sub-s. 2. (9) See also Bolton v. Lancashire and Yorkshire Ry. Co. (1866), L. R. 1 C. P. 431, per Willes, J.; Kemp v. Falk (1882), 7 Ap. Ca. at p. 586, per Lord Blackburn. (r) See Julius v. Lord Bishop of Oxford (1880), 5 Ap. Ca. 214. The law has not prescribed any particular mode of exercising the right of stoppage in transitu (s). The seller or his agent may, of course, take actual possession of the goods, but the means usually adopted is for the seller to give notice of his claim to the carrier, and to forbid delivery to the buyer, or require that the goods shall be held subject to his (the seller's) orders (t). But any act relied upon as a stoppage in transitu must be done with that intent, and by virtue of a right in respect of the goods. paramount to that of the buyer, though it may in fact be done with the buyer's consent (u). The act relied upon as a stoppage in transitu may be done by an unauthorized person, if the act be ratified by the seller before the end of the transit (x), but not afterwards, as in the latter case the ordinary principle of the law of agency would apply, viz., that a third person's vested right cannot be prejudiced by a ratification (y). But the posting of a letter of ratification, though not received till after the end of the transit, is effectual (≈). A notice given by the seller to hold the proceeds of the sale of the goods subject to his orders is not an effectual stoppage, because the seller expresses no intention of retaking possession of the goods (a). A demand of the bill of lading is an effectual exercise of the right of stoppage (b). It has not been decided whether the notice to stop can be sent to the consignee instead of to the shipowner or shipmaster (c); but, having regard to the permissive character of the words used in this sub-section, as above pointed out, there appears to be nothing therein inconsistent with a notice given to the consignee being held a good stoppage under s. 44, if the Courts decide that it otherwise falls within the meaning of the word "stop" in the latter section. Such notice may be given.-The clause introduced by the above words is taken almost verbatim from the judgment of Parke, B., in Whitehead v. Anderson (d). It was questioned, so (y) Story on Agency, s. 246. (z) Hutchings v. Nunes (1863), 1 (a) Phelps v. Comber, supra. (c) Phelps v. Comber, supra; see per (a) (1842), 9 M. & W. at P. 534. S. 46 (1). S. 46 (1). recently as 1880, by two very eminent judges (e), whether there is any duty imposed on the shipowner to communicate the seller's notice to the master of the ship, but this sub-section adopts the opinion expressed by Lord Blackburn in Kemp v. Falk (f), that it is the duty of the shipowner who receives a notice to stop goods to forward it with reasonable diligence to the master of the ship; but if, using reasonable diligence, delivery of the goods be made before the notice is received, he is not responsible. S. 46 (2). ILLUSTRATIONS. 1. A. sells goods to B., and consigns them by C., a carrier, directed to B. at L. B. being insolvent, A. gives notice to C. to deliver the goods to A.'s agent, and C. gives notice to his firm at L., which reaches the firm before the arrival of the goods. This notice to C. is a good stoppage in transit. Litt v. Cowley (1816), 7 Taunt. 169. 2. B. orders goods of A., who consigns them by a carrier to B. B., being in insolvent circumstances, writes to A. informing him of his situation, and declining the goods. A. then gives the carrier notice to stop. This stoppage is good. Mills v. Ball (1801), 2 B. & P. 457. 3. C., the agent of A., the seller of the goods, with the consent of B., the buyer, who is bankrupt, takes possession of the goods in order to sell them and apply the proceeds towards bills drawn upon B. for the price. This is not a stoppage, as it was not intended as such, and was not done adversely to B. Siffken v. Wray (1805), 6 East, 371. The carrier... must re-deliver the goods.-The right to stop includes the right to demand re-delivery (g), and a carrier who after a valid stoppage delivers to the consignee, is guilty of a conversion (h). The carrier, however, delivers at his peril, and in case of conflicting claims, ought to interplead (i). As a duty is here laid upon the carrier, the seller's right will be enforceable by action under s. 57, as in Pontifex v. Midland Railway Co. (h). The expenses of such re-delivery. This clause was inserted in the Act while it was passing through Parliament. The editors are aware of no previous case dealing with the subject. The sub-section casts the liability for expenses upon the seller, but does not say that the expenses shall be tendered to the (e) James and Bramwell, L.JJ., in Ex parte Falk (1880), 14 Ch. D. at pp. 450, 455. (f) (1882), 7 Ap. Ca. at p. 585; see also per Cur. in Whitehead v. Anderson (1842), 9 M. & W. 518; and per Mathew, J., in Bethell v. Clark (1887), 19 Q. B. D. at p. 560. 97. (g) The Tigress (1863), 32 L. J. Ad. (h) Pontifex v. Midland Ry. Co. (1877), 3 Q. B. D. 23. (i) The Tigress, supra, at p. 102; cf. Litt v. Cowley (1816), 7 Taunt. 169. |