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In French v. Gerber (1876),1 C. P. D. 737, 45 L.J.C.P. 880, (affirmed 2 C.P. D. 247, 46 L. J. C. P. 320, 36 L. T. 350, 25 W. R. 355), it was agreed by the charter-party "that the liability of the charterers (who were principals) should cease as soon as the cargo was on board, provided the same was worth the freight at the port of discharge, but the owners of the ship to have an absolute lien on the cargo for all freight, dead freight, and demurrage.” The breaches sued for occurred after the cargo was on board. BRETT, J., summed up the result of the cases as follows: “The rule seems to be that where the words of the absolving part of the clause plainly show that all liability is to cease on loading, it is so to cease both as to antecedent and future liabilities and without regard to any lien; but where the words of the absolving part are open to either interpretation, then, without regard to lien, liability as to future transactions is not to accrue, but liability as to antecedent breaches is to cease only so far as an equivalent lien is given. It follows that in the present case the defendants are absolved by the clause in respect of all the damages sued for, whether a lien be or be not given as to part of them.”
A case very similar to Lockhart v. Falk, supra, came to be decided in the Court of Appeal in Dunlop v. Balfour (1892), 1892, 1 Q. B. 507, 61 L. J. Q. B. 354, 66 L. T. 455, 40 W. R. 371. By the charter-party, it was stipulated that the ship should proceed to a loading berth at the port of loading, and there receive on board a full cargo, and being loaded should proceed to the port of discharge. "All liability of charterer to cease on completion of loading, provided the value of the cargo is sufficient to satisfy the lien which is hereby given for all freight, dead freight, demurrage, and average (if any), under the charter-party. . . To be loaded as customary and to be discharged as customary at the average rate of not less than 100 tons per working day from the time the ship is in berth and ready to be discharged, and notice thereof has been given by the master in writing. Demurrage to be at the rate of £20 per day." The action was brought by the shipowners against the charterers for undue detention at the port of loading. The Court of Appeal, approving of the decision in Lockhart v. Falk, held that the claim for undue detention at the port of loading was not “demurrage” within the meaning of the clause giving a lien, and — the principle being that the two clauses are to be read if possible as coextensive — that the clause of cesser of liability did not apply to such a claim.
The question as to what conditions of a charter-party are incorporated by reference in a bill of lading was considered in Serraino v. Campbell (C. A. 1890), 1891, 1 Q. B. 283, 60 L. J. Q. B. 303, 64 L. T. 615, 39 W. R. 356. The bill of lading, after enumerating the exceptions,
Giblin v. M'Mullen. — Rule.
stipulated for delivery “to order or to assigns, they paying freight, . and all other conditions as per charter.” The charter-party contained exceptions beyond those contained in the bill of lading, including an exception of stranding even when occasioned by the negligence of the master. The action was by an indorsee of the bill of lading who was a stranger to the charter-party, and the question was, whether he was affected by the exception. It was held that he was not. The Court construed the words • all other conditions as per charter,” as meaning “all those conditions of the charter-party which are to be performed by the consignees of the goods,” and did not incorporate a condition extending the exceptions to the liability of the shipowner beyond those contained in the bill of lading.
The principal case is cited in Porter on Bills of Lading, sect. 74.
The phrase "freight and charges” does not include demurrage. Huntiey v. Dows, 55 Barbour (New York), 310.
It has been held in the State courts that demurrage is not recoverable from the consignee unless the bill of lading stipulates for its payment. Gage v. Morse, 12 Allen (Mass.), 410; Miner v. N. & W. R. Co., 32 Connecticut, 91.
But otherwise in the Federal Courts. Sprague v. West, Abbott Admiralty, 548; Railroad Company v. Northam, 2 Benedict (U. S. Dist. Ct.), 1; Pietro G., 38 Federal Reporter, 148; The Hyperion's Cargo, 2 Lowell (U. S. Circ. Ct.), 93; Hawgood v. Tons of Coal, 21 Federal Reporter, 681.
The phrase in the bill of lading, “paying for said goods as per charter. party," does not impose demurrage on the consignee. Sticks of Timber, 8 Benedict (U. S. Dist. Ct.), 214; Gronn v. Woodruff, 19 Federal Reporter, 143.
GIBLIN v. M'MULLEN.
(P. C., APP. FROM VICTORIA, 1869.)
RULE. A PERSON receiving property by way of deposit for safe custody gratuitously, is not responsible for any higher degree of care than a reasonable and prudent man may be expected to take of property of the like description.
Giblin v. M'Mullen, 38 L. J. P. C. 25. — Notes.
Giblin v. M'Mullen.
38 L. J. P. C. 25; L. R., 2 P. C. 318 (s. C. 21 L. T. 214; 17 W. R. 445).
Bailment. — Banker. Gratuitous Deposit.
The liability of bankers in respect of articles received by way of gratuitous deposit, is fully discussed in the principal case under the title "Banker” and Notes, 3 R. C. 613 et seq. Cases relating to the liability of the depositee are not numerous.
In Clarke v. Earnshaw (1818), Gow. 30, 21 R. R. 790, it was ruled by DALLAS, C. J., at nisi prius that a chronometer maker receiving a chronometer to be repaired was bound to keep it secure against depredations from persons within the house. It was further observed, as a reason for inferring negligence, that the defendant had taken care of his own property by locking up and securing it. The plaintiff had a verdict. This was not a case of gratuitous deposit, but of bailment for hire of goods to have work done on them.
The case of Doorman v. Jenkins (1834), 2 Ad. & El. 256, referred to in the principal case (3 R. C. 622), was one in which the evidence of negligence was very meagre, but in the result the Court did not disturb a verdict for the plaintiff. The facts were that the defendant, a coffeehouse keeper, having custody of money without reward, lost it under circumstances which he had explained by the following statement: “That he had placed the money with a larger sum of his own, into his cash-box, which was kept in his tap-room; that the tap-room had a bar in it, and was open on a Sunday, but the rest of his house, which was inhabited, was not open on a Sunday; and that the cash-box, with his own and the plaintiff's money, had been stolen that day.” That the evidence was meagre was perhaps the necessary result of a system which excluded the parties from giving their own direct evidence upon the points at issue. Taunton, J., observed : “We might certainly have had more explicit evidence as to the exact state of the bar; in what place it was; and what class of strangers frequented the room. If there was no negligence, if the box was locked up and put in a safe place, and proper care taken of it, these were circumstances which the defendant had the best means of knowing, and knowing them he might have exonerated himself. In the absence, therefore, of evidence to that effect, I think that there was a prima facie case of gross negligence, which required an answer on the defendant's part. All the
decision comes to is that the jury were entitled to read between the lines of the defendant's explanation, and to infer that he acted with an unjustifiable degree of carelessness. As to the phrase "gross negligence," see the observations of WILLES, J., in Oppenheim v. White Lion Hotel Co. (1871), L. R., 6 C. P. at p. 521, 40 L. J. C. P. at p. 232; and Cashell v. Wright (1856), 6 Ell. & Bl. 891, 899.
The cases as to innkeepers will be further considered under that title.
As to the liability of railway companies for personal luggage deposited on their platiorms pending the departure of a train, see Great Western Railway Co. v. Bunch, No. 15 of “Carrier,' 5 R. C. 471; and Lovell v. London, Chatham and Dover Railway Co., and other cases referred to in notes, 5 R. C. 499 et seq.
The principal case is cited in Schouler in his recent work on Bailments, and the Rule states the doctrine uniformly recognized in this country. The present writer, in a very recent work on Bailments, states the law thus : “ As the bailee receives no compensation, the degree of care exacted from him is in proportion; he is liable only in case of fraud or gross neglect.” Citing
Turrentine v. W.8. IV. R. Co., 100 North Carolina, 375; 6 Am. St. Rep. 602. That was the case of a warehouse-man keeping goods gratuitously, and it was held that he was not bound, in case of imminent danger from fire to the warehouse where they were stored with other goods, to act on the suggestion of the owner as to the best means of saving them. “If an honest and reasonable effort is made, suggested at the time as the best line of action to be pursued, and this in good faith, and of this the peril to the defendant's property gives full assurance, it exonerates from liability for loss. The warehouse, built of brick and its roof slate-covered, seems to have been deemed wellnigh fire-proof; and even now, in reviewing the past, it is not clear that the plaintiff should have been permitted to take away his goods and thereby endanger, if not ensure the destruction of the other goods, and if it were otherwise, and that the servants of the company erred in their action, it could hardly be imputed as negligence in them to so act upon an honest, though it may turn out to be a mistaken, judgment.” The same was held where a boarder requested the boarding-house keeper to deposit his money in his safe, and the safe was feloniously broken and the money stolen. Jennings v. Reynolds, 4 Kansas, 110. And so where a regular boarder at a hotel deposited money in the landlord's safe and it was stolen by the night clerk without negligence on the landlord's part. Taylor v. Downey, Michigan Supreme Court; 62 N. W. Rep. 716. And so where one received for gratuitous delivery a sealed letter containing money. Beardslee v. Richardson, 11 Wendell (New York), 25; 25 Am. Dec. 596 (with notes); followed in Haynie v. Waring, 29 Alabama, 265; Skelley v. Kahn, 17 Illinois, 171; Lampley v. Scott, 24 Mississippi, 533; Eddy v. Livingston, 35 Missouri, 493. And where a railroad company retained freight on their cars for the owner's accommodation and without any ad.
ditional compensation. Knowles v. Atlantic, fc. R. Co., 38 Maine, 55; 61 Am. Dec. 234. And where one found a bank note and deposited it for gratuitous safe-keeping with defendant, from whose safe it was stolen. Tancil v. Seaton, 28 Grattan, 601 ; 26 Am. Rep. 380. To the same effect : Edson v. Weston, 7 Cowen, 278; Sodowsky's Ex'cr v. McFarland, 3 Dana, 205; Rozelle 5. Rhodes, 116 Pennsylvania State, 129; 2 Am. St. Rep. 591 ; Hibernia Bli'y Ass'n v. McGrath, 154 Pennsylvania State, 296; 35 Am. St. Rep. 828; Coal Co. v. Richter, 31 West Virginia, 858; Burk v. Dempster, 34 Nebraska, 426 ; Spooner v. Mattoon, 40 Vermont, 300 ; 94 Am. Dec. 395; Minor v. Chic., &c. Ry. Co., 19 Wisconsin, 40; 88 Am. Dec. 670; Dunn v. Branner, 13 Louisiana Annual, 452; Jourdan v. Reed, 1 Clarke (Iowa), 135; Bronnenburg v. Charman, 80 Indiana, 475; Davis v. Gay, 141 Mass. 531.
It has sometimes been laid down that a bailee for safe-keeping without reward is bound only to such care of the deposit as he takes of his own property of a similar kind. Thus in one case it is said : “ The degree of care which is necessary to avoid the imputation of bad faith is estimated by the carefulness which the depositary uses toward his own property of a similar kind. This is now the received law as to this kind of bailment, notwithstanding it is denied by Lord Coke in 1 Inst. 896. It is recognized in Coggs v. Bernard, 2 Ld. Raym. 909. And the same law as to gratuitous bailment is mentioned by Sir William Jones, and is sanctioned in Foster v. Essex Bank.” Lloyd v. West Branch Bank, 15 Pennsylvania State, 172; 53 Am. Dec. 581. But it is believed that this statement is too broad. Something would depend on the character of the bailee and of the property. His customary gross negligence toward his own property would not justify it toward the deposit, as for example, if he was accustomed to keep his money in a stocking instead of a safe or a bank. And much would depend on the nature of the property. He must observe a reasonable degree of care, and in other cases, with reference to the nature of the goods and the particular circumstances of the bailment, the degree of care exacted is in proportion to the value of the property to be kept. Conner v. Winton, 8 Indiana, 315; 65 Am. Dec. 761. But it seems that if the bailor knows the general character and habits of the bailee, and the place where and the manner in which the goods are to be kept, he is conclusively presumed to assent that his goods shall be so treated, and cannot maintain an action for loss or injury. Knowles v. Atlantic, 8c. R. Co., 38 Maine, 55; 61 Am. Dec. 234.
Spooner v. Mattoon, supra, is an interesting case. A. and B. were soldiers in camp, occupying tents something like fifty yards apart. A. had $775, and fearing it would not be safe with himself, had left it with B., his friend, with. out expectation of reward on B.'s part, for safe-keeping for two nights, and called for it on the following mornings. This was repeated on the third night, but A. did not call for the money on that morning. B. wanted to rid himself of the charge, and on the third morning, before going on duty, he started for A.'s tent, intending to return the pocket-book containing the money. Having no pocket large enough to hold it, and not wishing to expose it to view, he put it between his shirt and his waistcoat, intending to keep it secure by the pressure of his arm. On the way his attention was