Page images
PDF
EPUB

transitus may be previously determined. Thus, taking samples from the whole stock, and directing the carrier to keep the goods in his warehouse until he receives further directions, constitutes the carrier the consignee's warehouseman; and his possession is as much the possession of the consignee as if the latter had taken the whole bulk into his own warehouse.1

1 Foster v. Frampton, ub. sup.

CHAPTER IX.

OF THE RIGHTS OF CARRIERS RIGHTS OF POSSESSION, OF LIEN, AND OF ACTION FOR FREIGHT.

§ 348. By virtue of the delivery of goods to a carrier for transportation, there is vested in him a special property, which, in the first place, authorizes him to maintain an action against any person who disturbs his possession of, or does any injury to, the goods; and the reasons are, that he has an interest in the transportation, and is responsible for injuries to the goods by loss or otherwise, during their transit. It is an old doctrine, that every bailee has a temporary qualified property in the things of which possession is delivered to him by the bailor, and has, therefore, a possessory action, or an appeal in his own name, against any stranger who may damage or purloin them.2 Mr. J. Story deduces from the numerous authorities he has cited, in his work on Bailments, as the true doctrine, "that every bailee ought have a general right of action against mere wrongdoers to the property, while in his possession, whether he has a special property therein or not, because he is answer

1 Bac. Abr. Contract, C.; Goodwin v. Richardson, Roll. Abr. 5; 1 Ld. Raym. R. 278; Wilbraham v. Snow, 1 Ventr. R. 52; 2 Saund. R. 476, and 2 Ib. 47, n. cited in Story on Bailm. § 585. "If a common carrier has goods delivered to him to carry to a place, and a stranger takes them out of his possession, and converts them to his own use, an action of trover and conversion lies by the carrier against him; for he has a special property in the goods, and is to give satisfaction to the owner for them." Per Brampt., C. J., in Goodwin v. Richardson, ub. sup.

2 Year Book, 21 Hen. VII., 14 b, 15 a, cited in Jones on Bailm. 80; and see 2 Bla. Comm. 452, and Story on Bailm. § 93, et seq., and Ante, § 4.

able over to the bailor; for, (as it has well been said,1) a man ought not to be charged with an injury to another, without being able to resort to the original cause of that injury, and in amends thereof to do himself right." For the reason that the owner or the master of a vessel is liable for goods he has to transport, which are wrongfully detained by revenue officers, he has a remedy over against the officers for such illegal detention." 8

§ 349. The carrier's property in the goods is not absolute, for the very obvious reason, that his contract is for restitution. As a general rule, therefore, he has no right to sell or dispose of the goods intrusted to him for transportation. Accordingly, if the master of a vessel make a new bill of lading of the goods on board, in his own name as owner, and the goods are sold to one who was ignorant of the fraud, the real owner may sue the purchaser for their value and recover.5

§ 350. Where certain carriers by water of a quantity of salt, in Indiana, purchased a boat on their way to ascend the river towards the place of destination, and deposited with the seller a part of the load as security for the price of the boat, informing him they were carriers; it was held, that such disposal of the property was unauthorized, and that the right to the possession of it continued in the original

1 Bac. Abr. Bailment, D.

2 Story on Bailm. § 93 ƒ; and see Waterman v. Robinson, 5 Mass. R. 303.

3 Action against the owner of a vessel, for non-delivery of ten pipes of wine. The ship was detained at Jamaica, for a supposed violation of the revenue laws, but on appeal, the sentence of condemnation was reversed, and it was said by Lord Ellenborough, “You have an action against the officers. The shipper can only look to the owner or master of the ship." Gosling v. Higgins, 1 Campb. R. 451.

4 See Story on Bailm. § 93; Swift v. Moseley, Vermt. R. 349. 5 Salters v. Everett, 20 Wend. (N. Y.) R. 275.

owner, and that a bonâ fide purchaser of goods out of marketovert, could not hold against the true owner.1

§ 351. In the above case the purchaser from the carriers was told that they were carriers, and he was thereby put on his guard. But it was contended in a case in Pennsylvania, that a wagoner had such a special property in the goods which were sent by him to be delivered to a certain person, as authorized him (the carrier) to dispose of them; and the ground taken was, that the party who places confidence in another, should be the loser by his breach of faith, and not an innocent purchaser. But the Court held, that although the carrier is vested by law with a special property, by virtue of which he may maintain an action against a wrongdoer, yet that special property does not impair the general property of the true owner, or give to the carrier an authority to sell. In Pennsylvania there are no markets overt, by a sale, in which the property can be altered; so that a sale by a carrier of goods intrusted to him, in the street at Pittsburg, gave no additional validity to the transaction.2

§ 352. So, a carrier by sea, although he has, by the law merchant, a lien on goods carried by him for the payment of freight, yet he has no right, of his own mere motion, to cause a sale for the payment of freight; and a carrier by sea and a carrier by land stand in the same relation to the owner of the goods.1

§353. If the carrier is instructed to sell the goods he undertakes to carry, at a certain price, or to store them, without any stipulation as to payment of freight, he may

1 Kitchell v. Vanador, 1 Blackf. (Ind.) R. 356.

2 Lecky v. M'Dermott, 8 S. & Rawle, (Penn.) R. 500. The decision in this case confirmed in Rapp v. Palmer, 3 Watts, (Penn.) R. 178. 3 Hunt v. Haskell, 11 Shep. (Me.) R. 339.

4 Saltus v. Everett, 20 Wend. (N. Y.) R. 267.

demand the freight from the warehouseman on delivery; but, it will be a conversion, if, without such demand, he stores the cotton as his own; and if he refuses to deliver the goods for any other cause than the non-payment of freight, he cannot avail himself of the want of a tender of the freight.1

§ 354. It is clearly, however, an exception to the general rule, that the master of a ship in foreign parts may hypothecate or even sell the cargo, as well as the ship, when absolutely necessary to enable him to continue his voyage. In such case of necessity, it has always been held, says Lord Tenterden, that the master, if he cannot otherwise obtain the money, may sell a part of his cargo to enable him to convey the residue to the destined port; 2 and the same doctrine has been fully recognized by the Courts of this country.3 In case of wreck or stranding, if the master have no means of transshipment, he has a right to sell, but the great necessity of it must clearly exist. The acknowledged rule is, that the mere shipment of merchandise does not confer on the master of the vessel authority to dispose of the goods, and in case of necessity, the burden of proof showing the necessity lies upon the purchaser.5

§ 355. The usage of trade may also operate to take the

1 Blair v. Jeffries, Dud. (S. C.) R. 59.

2 Abbott on Shipp. 164; where, in consequence of damage to a ship during the voyage it becomes impossible to prosecute the adventure, the master has authority to sell her for the benefit of all parties interested: and a person employed by him to superintend the sale may lawfully pay over the proceeds to him, or to his order. Ireland v. Thompson, 4 Man. Grang. & Scott, R. 149.

3 Ibid. note, p. 165, referring to American cases.

4 See ante, note 4 to 187, p. 188; United States Ins. Co. v. Scott, 1 Johns. (N. Y.) R. 106.

5 Saltus v. Everett, 20 Wend. (N. Y.) R. 267; Myers v. Baymore, 10 Barr, (Penn.) R. 114.

« PreviousContinue »