Lapas attēli
PDF
ePub

carrier, if he know the fact, will be not only justified in refusing to give up the goods or to pay attention to the notice, but it would be his duty to do so. He obeys the order or demand at his peril in any case. For, while a rightful stoppage protects the carrier against the claims of the consignee,39 yet if it should turn out that the purchaser of the goods was solvent, the notice or demand would be entirely without authority. If, therefore, the carrier refuse to give up the goods to the consignee, who is solvent, upon his demand, the latter might maintain an action of trover against him at once. If, on the other hand, the carrier fail to withhold the goods upon a notice to do so, or to surrender their possession to the vendor upon his demand, or if, after such notice or demand, he should deliver them to the buyer, and it should turn out that the latter was insolvent, the carrier will be liable to the vendor, at least to the extent of the buyer's indebtedness for the goods. 40 It has therefore been said that, "as the carrier obeys the stoppage in transitu at his peril, if the consignee be in fact solvent, it would seem no unreasonable rule to require that, at the time the consignee was refused the goods, he should have evidenced his insolvency by some overt act. But in the case of The Tigress 42 this suggestion is rejected, the judge saying that the proof of the conditions on which the vendor's rights depend would always be difficult, often impossible, at the time of their exercise; "for instance, whether the vendee is insolvent may not transpire till afterwards, when the bill of exchange for the goods becomes due; for it is, as I conceive, clear law that the right to stop does not require the vendee to have been found insolvent. 1943

7741

Sec. 774. Same subject-Effect of agreed valuation in bill of lading when delivery made by carrier after notice.-Al

39. The Vidette, 34 Fed. Rep. 396; The E. H. Pray, 27 Fed. Rep. 474.

40. Allen v. Railroad Me. 327; Bloomingdale

Co., 79 v. Rail

road Co., 6 Lea, 616; Poole v. Railway Co., 58 Tex. 134.

41. Blackburn on Sales, 266. 42. 32 L. J. Adm. 97.

43. Benjamin on Sales, § 838. And see authorities cited in last section.

though an agreed valuation may be given in the bill of lading in consideration of which a reduced freight rate is allowed, if the shipper gives notice to the carrier to stop the goods in transitu, and the carrier agrees to do so, he holds the goods as the shipper's, and the law creates a new relation to which the bill of lading has no reference. On a negligent delivery by the carrier, therefore, after notice from the shipper, the agreed valuation in the bill of lading will not control, but the shipper may show the real value of the goods in an action for damages against the carrier.44

Sec. 775. (§ 422.) Course to be pursued by carrier for his own protection. The law of stoppage in transitu, therefore, becomes of great importance to the common carrier; and when a notice is given or a demand is made upon him for the goods by a vendor who claims the right to avail himself of it in the particular case, it places him in very nearly the same situation as when a demand is made for the goods by one who claims adversely to the bailor or his consignee. If it be doubtful whether the right exists to stop the goods, the carrier may, as in that case, instead of refusing to comply with the notice or the demand, require that he shall be allowed a reasonable time to investigate the condition of the buyer; and if, after inquiry, he shall be unable to satisfy himself, and does not choose to assume the responsibility of a delivery to either seller or buyer, or to act upon the demand of the vendor that the goods shall be withheld from the consignee, he may, for his own security, resort to legal proceedings to have the question determined, as in the case of adverse claimants of the property.45

44. Rosenthal v. Weir, 170 N. Y. 148, 63 N. E. Rep. 65, 57 L. R. A.

527, affirming 66 N. Y. Supp. 841, 54 App. Div. 275.

45. Ante, § 752.

VIII. THE CARRIER'S RIGHT TO A RECEIPT ON DELIVERY.

Sec. 776. ( 423.) Carrier may demand receipt on delivery.As nothing can be more reasonable than that when the carrier delivers the goods he should have the right to demand of the party receiving them some written evidence that he has done. so, he may require a receipt in writing of the party, and it will be a good defense to an action for the goods that the consignee or other person claiming their delivery refused to give such receipt when required to do so.46 And where the owner desires to remove the goods in separate parcels and at different times, the carrier may, as a condition of the delivery of a part of them, demand a receipt for the whole. After the owner has had an opportunity to inspect the goods and ascertain their condition, he is bound to take immediate custody of them and remove them with reasonable diligence, unless it is otherwise agreed between him and the carrier; and he cannot require the carrier to make more than one delivery or to take more than one receipt.47

Sec. 777. (§ 423a.) But cannot require surrender of bill of lading. So, though the carrier may properly require the production of the bill of lading by the consignee as evidence of his right to demand delivery of the goods, 48 it is said that the car

46. Skinner v. Railroad Co., 12 there was no opportunity for abIowa, 191.

A "clear" receipt by a consignee is a mere piece of evidence, and does not necessarily preclude him from afterwards proving that the goods were in fact damaged when received from the carrier. Mears r. Railroad Co., 75 Conn. 171, 52 Atl. Rep. 610, 56 L. R. A. 884, 96 Am. St. Rep. 192.

47. Ayres v. Railroad Co., 5 Dutcher 393.

When it is shown that no cargo was used on a steamer and that

straction or loss during the voy-
age, the carrier is prima facie en-
titled to a receipt for the delivery
of the entire cargo, notwithstand-
ing a slight discrepancy in the
recount at the point of delivery.
McLaren v. Standard Oil Co., 124
Fed. 958; The Ethel, 59 Fed. 473.
'See also, The Minnie E. Kelton,
109 Fed. 164, 48 C. C. A. 271.

48. Bass v. Glover, 63 Ga. 746; Sellers v. Railway Co., 123 Ga. 386, 51 S. E. Rep. 398, citing Hutch. on Carr.

rier cannot insist upon the surrender of the bill of lading as a condition of delivery.49 But even the production of the bill of lading may be waived by the carrier if he bases his refusal to deliver solely on some other ground than its non-production.50

49. Dwyer v. Railway Co., 69 "spent" bill of lading cannot reTex. 707.

Under a New York statute it is practically made the duty of the carrier to require the surrender or cancellation of the bill of lading, or to write "Not negotiable" across its face on delivery to the consignee. Mairs v. Railroad Co., 175 N. Y. 409, 67 N. E. Rep. 901, affirming 76 N. Y. Supp. 838, 73 App. Div. 265.

The assignment of a "spent". bill of lading by the consignee does not operate to pass title to the goods, and the assignee of a

cover from the carrier for a conversion of the goods in delivering them to the consignee without the surrender of the bill of lading, even though the bill of lading requires the carrier to take up such bill on the delivery of the goods. National Commercial Bank v. Transportation Co., 69 N. Y. Supp. 396, 59 App. Div. 270; affirmed, 172 N. Y. 596, 64 N. E. Rep. 1123. 50. Clegg v. Railroad Co., 135 N. C. 148, 47 S. E. Rep. 667, 65 L. R. A. 717.

CHAPTER X.

OF THE RIGHTS OF THE CARRIER.

§ 778. In general.

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

§ 792. Same subject-What degree of necessity must be shown Necessity for communication with own

er.

793. Same subject-Sale must be made where market and competition exist. 794. Same subject-Cannot give away the goods. 795. His right to know the character of the goods and the contents of the packages.

796. Same subject-Shipper must make known dangerous character of goods.

797. His liability for damages occasioned by dangerous goods.

798. The liability of the shipper for injury caused by dangerous goods.

II. THE CARRIER'S RIGHT ΤΟ COM

PENSATION.

799. The compensation of the

carrier.

800. Carrier usually entitled to freight only on the goods delivered.

801. Carrier entitled to full freight if prevented by owner from completing journey.

802. Entitled to freight though

the goods have become worthless, if they are de livered.

857

« iepriekšējāTurpināt »