Scottish Court of Session Decisions

Crawford & Law, flour importers, Glasgow, pursuers, for themselves, and as assignees of certain other firms of flour importers, brought an action against the Allan Line Steamship Company, Limited, defenders, for payment of the sum of £184, 19s. 5d., being the loss sustained by them through short weight and caking on certain consignments of sacks and bags of flour forwarded on through bills of lading from Minneapolis, and conveyed from New York to Glasgow on one of the defenders' ships. The loss in respect of short weight amounted to £17, 6s. 11d., and pursuers' claim on this ground was ultimately abandoned in the Inner House.

The bills of lading, which were in similar terms, were subscribed by an agent on behalf of carriers severally but not jointly, and bore that the flour was to be carried via the Great Lakes in connection with other carriers on the routes. A specimen bill of lading was to the following effect — “Received at Minneapolis, … the following property in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, numbered, consigned and destined as indicated below—… Shipper's Weight… To be carried to the Port (A) of New York, N.Y., and thence by Allan State Line to the Port (B) Glasgow, Scotland (or so near thereto as steamer may safely get, with liberty to call at any port or ports in or out of the customary route), and to be there delivered in like good order and condition as above consigned, or to consignee's assigns.”

Annexed thereto were certain “conditions,” which provided, inter alia — “I. With respect to the service until delivery at the Port (A) first above-mentioned it is agreed that — 1. No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control; or by floods or by fire; or by quarantine; or by riots, strikes, or stoppage of labour; or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet, or decay…. 3. No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee.… 10. No carrier shall be liable for delay, nor in any other respect than as warehousemen, while the said property awaits further conveyance, and in case the whole or any part of the property specified herein be prevented by any cause from going from said port in the first steamer of the ocean line above stated, leaving after the arrival of such property at said port, the carrier hereunder then in possession is at liberty to forward said property by succeeding steamer of said line, or, if deemed necessary, by any other steamer. 11. This contract is executed and accomplished, and all liability hereunder terminates, on the delivery of the said property to the steamer, her master, agent or servants, or to the steamship company, or on the steamer pier at the said port, and the inland freight charges shall be a first lien, due and payable by the steamship company. II. With respect to the service after delivery at the Port (A) first above-mentioned,

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and until delivery at the Port (B) second above-mentioned it is agreed — 1. That the carrier shall have liberty to convey goods in craft and/or lighters to and from the steamer at the risk of the owners of the goods; … that the carrier shall not be liable for inland damage.… 2. That this shipment until delivery at the Port (B) second above-mentioned is subject to all the terms and provisions of, and all the exemptions from liability contained in, the Act of Congress of the United States, approved on the 13th day of February 1893, and entitled ‘An Act relating to the navigation of vessels, &c.’ 17. It is stipulated that in case the whole or any part of the articles specified herein be prevented by any cause from going in the first steamer leaving after the arrival of such articles at said port, the carrier is only bound to forward them by succeeding steamers employed in the steamship line, or if deemed necessary by said carrier it may forward them in other steamers. 18. That the property covered by this bill of lading is subject to all conditions expressed in the regular forms of bills of lading in use by the steamship company at time of shipment, and to all local rules and regulations at port of destination not expressly provided for by the clauses herein.”

The form of the Ocean bill of lading used by the defenders, referred to in article II, 18 above, provided, inter alia—“Received, in apparent good order and condition, by the Allan State Line, from the, to be transported by the good British steamship ‘Corinthian,’ now lying in the port of New York, and bound for Glasgow, with liberty to call at Halifax, N.S., St Johns, N.F., Moville, and Liverpool, being marked and numbered as per margin, shipper's weight (quality, contents, and value unknown), and to be delivered from ship's deck, where the shipowner's responsibility shall cease, in like order and condition at the port of Glasgow (or so near thereto as she may safely get) unto, or to his or their assigns, …. It is mutually agreed that … the carrier shall not be liable … for land damage …

“It is also mutually agreed that this shipment is subject to all the terms and provisions of, and all the exemptions from liability contained in, the Act of Congress of the United States, approved on the 13th day of February 1893.”

The following narrative is taken from the opinion infra of Lord Salvesen:—“This case raises certain interesting and important questions as to the liability of shipowners to assignees under a through bill of lading from Minneapolis to Glasgow. The facts have been ascertained, partly by evidence taken in the United States (I may say, in passing, at inordinate and unnecessary length), and partly by evidence taken in Glasgow; and, so far as I can judge, there is very little conflict between the witnesses. They may be summarised as follows:—

In December 1903 the defenders' s.s. ‘Corinthian’ loaded a cargo, the bulk of which consisted of 40,804 sacks and bags of flour. Of these, 4132 packages were found, on the vessel being discharged in Glasgow, to be caked. Caking results from water having obtained access, through the material of which the sack or bag is composed, to the flour, which, so far as it has been injured by the water, forms a hard crust when dry. Any caking, however slight, makes it necessary that the sound contents of the bag should be reconditioned by being separated from the caked portion, and this can be done at a cost of 9d. per sack of 140 lb. and 1s. 6d. per sack of 280 lb. The actual damage caused by caking, apart from the expense of reconditioning, is comparatively trifling, only a few pounds of flour being caked as the result of a bag being wholly immersed in water for a considerable number of hours. Various estimates are given of the weight of the flour under such circumstances, and I think that it may be assumed that it will not exceed 3 lb. or 4 lb. in the case of a bag containing 280 lb. of flour.

The flour in question was delivered to the Lehigh Valley Transportation Company in October 1903, at the town of Minneapolis. Under the bill of lading it was to be carried via ‘the Great Lakes in connection with other carriers on the route.’ It may be assumed, therefore, that it was carried by rail from Minneapolis to the Great Lakes, along which it was conveyed in some form of craft, until it was again put on railway trucks, in which it was eventually carried to New York, where it was put into warehouses. No evidence has been led by either side with regard to the carriage between Minneapolis and New York. It is, however, certain that it might receive damage in the course of this transit, for a small proportion of the bags was discovered to have been caked after they had reached the warehouses in New York; and the evidence excludes the idea that the injury could have been sustained within the warehouses.

While the flour was in the warehouses, permits were signed by the agent of the Allan Line, of which the permit dated 12th December 1903 is a sample. These permits were addressed to the clerk of the s.s. ‘Corinthian,’ and authorised him to receive from the Lehigh Valley Company, on or before the following Saturday, a specified number of sacks of flour to be loaded on board the ‘Corinthian.’ On these permits being presented the sacks of flour, therein described by numbers, were sorted at the warehouses, and checked by checkers in the employment of the inland carrier. They were then loaded on board barges, a tally being kept by each bargeman of what he received, and a receipt was given by him, of which No. 63 of process is a specimen. The barges were then brought alongside the steamer, and unloaded by stevedores employed by the ship. For this purpose the hatch of the barge was opened, and the bags carried by a gang of men and laid upon canvas slings attached to the tackle of the ship. Each sling was then hoisted over the rails of the steamer and lowered into the hold, where the bags were stowed by

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the men in the employment of the steamer. Loading went on simultaneously at four or five hatches of the steamer, and from as many barges, and at the rates of 700 or 800 bags per hour. A checker, employed by the ship, stood upon each barge and kept a tally of the number of packages in each sling, and at the same time noted any appearances of damage which they presented. It is not customary for the checker to make any other examination of the packages than one by the eye. Each checker handed his tally-sheet, which contained any notes as to the condition of the packages, to the receiving clerk of the ship, who granted receipts for each bargeload. Various forms of such receipts were used — one form containing no column descriptive of the condition of the bags, another containing a column in which the number of bags found to be torn and mended was inserted, and a third form containing separate columns for bags torn and mended, stained and caked.

It is common ground here that the caking was caused by fresh water, and could not have taken place in the hold of the s.s. ‘Corinthian.’ The pursuers, however, maintain that they have proved that the bags when delivered into the barges at New York were not caked except to an inconsiderable extent, and there is no suggestion that, if so, they were damaged on board the barges before their hatches were opened for the purpose of their being loaded on to the steamer. They rely upon the evidence of checkers and bargemen, all in the employment of the inland carrier, who described the system employed in the delivery of flour into barges for shipment on transatlantic steamers, and spoke to the tally-sheets produced in the present case, for none of them profess to speak from recollection of this particular cargo. It appears that the men actually employed in handling the bags have instructions when they discover a bag to be caked ‘to holler out “caked” to the checker, and that he makes a note of this on his tally-sheet’, besides observing for himself the condition of the bags as they pass under his eye. If this system were carried out carefully it would probably result in at all events a considerable proportion of the caked bags actually existing in the consignment being discovered, but its efficiency depends mainly on the men who handle the flour, and it must be kept in view that they, as the employees of the railroad carrier, have every motive to minimise any damage which may have been sustained in the course of the transport to New York, where bags are only slightly caked. I think the evidence is to the effect that such caking cannot be discovered by the kind of examination which is made in the course of the delivery from the warehouses into the barges. The best proof of this is the fact that, although on the arrival of the steamer special instructions were given to separate the bags which were caked from those which were damaged, at least 1000 bags which were actually caked escaped observation until they could be handled a second time on delivery to the carters who received them on behalf of the consignees, and whose duty it was not to take delivery of bags which were in any respect injured. It is also obvious that the inspection made at the discharge of the vessel is of a more careful kind than that which takes place in the New York warehouses in the course of delivery into barges; and if one-fourth of the damaged bags escaped detection, then it is more than likely that a much larger proportion may not have been noted by the employees of the inland carriers.

The loading of the ‘Corinthian’ commenced on the 19th December, and was without incident, except so far as regards Sunday the 20th. On that day, according to the log-book of the vessel, it was raining heavily at six in the morning; at seven the loading for the day commenced; at eight it is noted that there was a fresh breeze and rain; at noon, fresh breeze and continuous rain. There is a later entry in the afternoon — fresh breeze and rain throughout, and at five work for the day was stopped. By six the weather was clearing, and no more rain is noted to have occurred later in the evening. Mr Ismey, who is in charge of the local office of the United States weather bureau, situated not more than two miles from the place where the s.s. ‘Corinthian’ was loaded, states that rain commenced at 11.45 p.m. on the 19th December and ceased falling at 6·20 p.m. on the 20th. During that time something less than one inch of rain fell — a considerable precipitation according to our notions, but which is looked upon in New York as a moderate rainfall. It was said that reading the logbook and the evidence of the meteorological expert together it might be inferred that this rainfall took place almost entirely between 6 a.m. on the morning of the 20th and 6·30 in the evening of the same day; but I do not think that this can safely be inferred. The last entry on the 19th in the log-book is at midnight; and while there is one entry which presumably was made between midnight and 6 on the following morning, to the effect that there was at one time a moderate breeze and light drizzling rain, it does not follow that a large part of the rainfall may not have taken place during the night. Various persons engaged in the loading speak of the rain not having been at all heavy, and say that after working the whole day they were not obliged to change their clothes. Evidence from recollection of events which took place so many years back must be accepted with some reservation; but I think the general statement that when rain is coming down heavily it is customary to stop loading altogether seems to indicate that the heaviest showers were between 6 and 7 before loading commenced, and after 4·30 or 5, when it was stopped for the day. The inference that I draw from the evidence taken as a whole is that while the rain during the actual loading time was more or less continuous, it was not

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so heavy as to suggest the propriety of stopping operations.

The case originally made by the pursuers upon record was that the caking of the 4000 bags was due to the negligence of the defenders in carrying on the operation of loading their ship during rain, without taking any precautions to protect the flour from wet; and, in particular, it was averred that they had not erected suitable coverings over the hoisting apparatus, the deck, and the holds. This case, the Lord Ordinary holds, has been entirely disproved, and I agree with him. The defenders have demonstrated that they took all the precautions which are usual in loading flour from barges into an ocean liner. In particular, they had bell tents erected over each of the hatches and covered ways, beneath which the sacks of flour travelled in their passage from the barges to the holds of the ship. They also used sawdust to suck up any wet that might fall on the tarpaulins on to which the bags were lowered, and from time to time they changed the canvas slings when they became so wet as to be likely to injure the bags. It is true that these precautions did not provide absolute protection to the flour, because there is necessarily a slit or opening in the bell tent so as to enable the tackle to be worked, and some rain would fall upon the bags through this opening during the short period that elapsed, estimated at not more than one or two minutes, from the time they were put in the slings until they were deposited in the ship's hold. It is impossible to say that some wetting resulting in caking might not result from this exposure; but I confess to being extremely sceptical that it could be of a serious nature, or affect so large a proportion of the bags which were loaded on the Sunday. Considerably more damage in my opinion would result to the bags while in the barges, for their hatches (which were large) were uncovered during the whole period. On this part of the case I need only add that there is no evidence that it is customary to interrupt either the loading or the discharging of a steamer at New York or Glasgow because of rain unless the rainfall is of an unusually heavy description; and there is no suggestion of any other precaution to protect the flour from rain which the pursuers might have taken and did not take.”

On 23rd December 1909 the Lord Ordinary ( Mackenzie), after a proof, pronounced the following interlocutor — “Finds that under the bills of lading founded on, the defenders were bound to deliver to the pursuers at Glasgow the cargo shipped on board the ‘Corinthian’ at New York in like good order and condition as received by them: Finds that in terms of said bills of lading the said cargo was received by the defenders in apparent good order at New York, except as notified by them to the inland carriers: Finds that the defenders notified at New York to the inland carriers that only 110 sacks or bags of the flour shipped were received by them ‘caked’: Finds that the defenders ascertained and notified to the consignees at Glasgow that 4132 of said sacks or bags were ‘caked’: Finds that the defenders have failed to prove that the damage by ‘caking’ to 4022 of said sacks or bags (being the difference between 110 and 4132) did not arise whilst the goods were on board the ‘Corinthian’ or in their custody: Therefore finds that the defenders are liable in damages to the pursuers in respect of 4022 bags ‘caked’: … Grants leave to reclaim.”

Opinion. — “The case made against the defenders is that under the bills of lading founded on they were bound to deliver at Glasgow the consignment of flour shipped on board the ‘Corinthian’ at New York in December 1903 in like good order and condition as received by them. The flour was consigned from Minneapolis to Glasgow under through bills of lading.… At New York the receipts granted by the defenders to the inland carriers, the Lehigh Valley Railway Company, bore that out of the consignment of 41,110 sacks and bags only 110 were damaged by caking. On delivery at Glasgow the defenders ascertained that 4132 sacks or bags were caked. Caking is a well-recognised form of damage to flour. A layer next the covering becomes like a biscuit. The covering seems to be firm and is hard to the touch. The caking in question was caused by fresh water. At New York the short weight on the consignment as noted was 490 lbs. At Glasgow it was 5834 lbs.

The damages claimed for the difference between 110 and 4132 caked bags is £167, 12s. 6d., and for the short weight £17, 6s. 11d. The important matter is that of the caked bags, for it appears from the evidence of Mr Price, the head of Herbert Bradley & Company, millers' agents, New Jersey, that the object of this action, which has been in Court for a number of years, is to stop the loading of flour at New York in wet weather.

The case made on the record, which was adjusted so far back as 5th July 1904, is not one founded simply on the bills of lading but is one of fault. Conds. 24 and 25 set out in detail the nature of the fault alleged, that the defenders failed to take proper precautions to protect the flour from wet during loading. This case, I think, the pursuers have failed to prove. The evidence shows that from the railway cars to the covered barges, and from the barges to the ship, the usual methods were adopted, and no one suggests any other or extra precautions that could have been taken. The bulk of evidence was taken at New York on commission, and it is to be regretted it was taken in so prolix a fashion. Delivery was made to the defenders when the sacks or bags were placed in their slings, and they were hoisted on board with the usual protection of a bell tent and awnings. Therefore if the onus was on the pursuers to prove fault I should be prepared to hold that they had failed.

At the close of the hearing on evidence, however, the pursuers added a new plea-inlaw to cover the main point argued on

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their behalf, which is in these terms — ‘The defenders being bound under and in terms of the said bills of lading to deliver the said flour at Glasgow to the pursuers and their cedents in good order and condition and of the full specified weight, subject to the exceptions notified by the defenders at New York, and having failed to do so as condescended on, are liable to the pursuers and their cedents in the loss and damage sustained by them.’ This is a plea apart from any question of negligence, and depends upon the terms and effect of the bills of lading. The through bills of lading say that the flour was received at Minneapolis ‘in apparent good order, except as noted (contents and condition of contents of packages unknown) … shippers' weight,’ to be delivered in like good order and condition. The point taken by the defenders in the amendments they have made to meet the pursuers' new plea is that the words ‘except as noted’ apply only to Minneapolis and not to New York.

The effect, however, of the ocean bill of lading is to charge the defenders with the receipt of the flour ‘in apparent good order and condition,’ except in so far as they notified the inland carrier that the contrary was the case, i.e., to the extent of 110 caked bags. The argument for the pursuers on this head is that the statement in the bills of lading that the flour was shipped ‘in apparent good order’ is an admission by the defenders that so far as they had an opportunity of judging the flour was so shipped. It is proved that caking can be ascertained by external examination. The pursuers then contend that the words ‘shippers’ weight (quality, contents, and value unknown)’ are not sufficient to destroy the effects of the words ‘in apparent good order,’ as an admission that such sacks or bags were in good order externally when shipped; and that therefore the onus is upon the defenders to prove that the damage did not arise whilst the goods were on board the ship or in their custody. This is the law as stated by James, L. J., in The Peter der Grosse (1875), 1 P.D. 414, and applies in my opinion to the present case.

I think the defenders have failed to discharge this onus. It is proved that one of the six days upon which the cargo was loaded—Sunday, 20th December 1903—was a rainy, blowy day; the slings in which the bags and sacks were put had to be changed owing to their getting wet; a tarpaulin had to be spread over the ‘stool’ below the square of the hatch upon which the sacks or bags rested when lowered into the hold; sawdust was sprinkled over the tarpaulin to absorb the moisture; there is evidence from at least one of the defenders' witnesses that if a tarpaulin and sawdust were required it was unwise to go on loading; this sawdust was seen adhering to the caked bags when they were discharged at Glasgow, a feature which according to the evidence of Mr Horne, an excellent witness, made the bags suspect at once; added to this is the fact that packages collected from various quarters bore traces of all having suffered the same kind of damage, indicating that they had all been damaged by one cause and at one time.

This body of evidence, though it may not be sufficient to establish affirmatively fault on the part of the defenders in not ceasing to load in the rain, makes it in my view impossible for them to discharge the onus which the terms of the bills of lading impose upon them. In reaching this conclusion I do not leave out of sight the evidence of the ship's crew that they did not get wet on the 20th. The ship's log and Mr Emery's evidence, however, show how bad the weather was. Nor do I proceed upon the view suggested that the lighters were on the weather side of the ship, so that the rain was driving into the opening in the bell tent, which I do not think satisfactorily made out.

The defenders maintain that they are not liable for the sacks or bags which as the result of their examination at New York they notified were damaged, though the damage was not specified to be from caking. They found strongly on the passage in Cond. 24, where the pursuers aver that the defenders ‘notified to the inland carriers the number of damaged sacks and bags and the short weight on delivery to them, distinguishing the number “caked,” “torn and mended,” “stained,” “wet,” and “weighed.”’ It is proved that these figures were 26 caked, 2825 torn and mended, 1044 stained, and 84 wet—total 3979. There is no evidence in this case to show whether claims were made against the inland carriers in respect of these sacks and bags, and if so what was paid. The contention of the defenders is that they notified as damaged substantially the same number of sacks as those the pursuers now claim for as caked; that a stained bag might be caked as well, so might one be that was torn and mended; and that it was not for them to classify the damage. I think the weight of the evidence is against the defenders on this point. It shows that there is a duty on the checker to ascertain and note damage by caking as distinguished from staining, and other kinds of damage. It is important to do so. Caking is damage to the contents of the bag indicated by external appearance; staining is damage to the sack or bag only. Underwriters pay for caked, but not for stained sacks and bags. Therefore in so far as the sacks and bags were not noted as caked at New York, it must be held against the defenders that they were not caked when delivered to them, in which case they are liable under the bills of lading for the additional sacks which were found to be caked on delivery at Glasgow.…

This is sufficient for the disposal of the case. It is right, however, that I should refer to what is now the pursuers' third plea-inlaw, in so far as it bears on the matter of caking. It is in these terms—‘ Esto that any of the loss and damage condescended on was sustained prior to delivery to defenders; they having failed to notify same to the inland carriers, are bound to make good such loss and damage to the pursuers for

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themselves, and as assignees foresaid.’ This is an alternative view to that already dealt with, and proceeds on the footing that the damage was done not at sea but on land. Now the through bill of lading contains these provisions, 1.3—‘No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee.’ … ‘Claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than 30 days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event.’ It also provides that the steamer is not liable for any loss or damage that may have occurred before delivery at New York—‘while agreeing to promptly present to inland carriers for account of owners of goods any claims for shortage or loss or damage that may have occurred before delivery of goods at the port.’

As indicated in my opinion of 16th June 1906, I think this imposed the duty upon the defenders of making such inspection of the consignment as might be reasonable in the circumstances. If the pursuers prove fault against the defenders in the discharge of that duty, that may form the ground of liability against them.

Now the situation upon the evidence appears to be this — The owners were anxious to get their vessel dispatched as soon as possible. The barge captains were reluctant to deliver to the ship except upon clean receipts. The loading of what was a very large cargo was pressed on, with the result that the examination which would have disclosed caking was not properly made. I do not think the system of examination can be successfully challenged. It seems to have been the usual one. I do, however, think that the thoroughness of it may.

Captain Christie of the Allan Line, who has had considerable experience, though some years before 1903, condemns the way the inspection is carried out in practice. He says, ‘I don't think the inspection which was made by the steamer's checker was sufficient to enable the steamer to know how many bags that were loaded were caked.’ He admits that the checker could have had a reasonable opportunity of seeing what the bags were like if the loading had been delayed two or three days. My view is, that if shipowners undertake such an obligation as was imposed by the through bill of lading here, they cannot be excused from taking reasonable steps to carry it out by pleading that the sailing of the ship will thereby be delayed. The result of the inefficient inspection was, if the damage was inland damage, that the steamer's checker only found out at New York that 110 bags were caked, when there were 4132, the difference being 4022, or nearly 10 per cent. of the cargo. This is evidence to show that the defenders did not take all reasonable steps on behalf of the consignees, which renders them liable under the obligation imposed on them by the through bill of lading. The American cases cited of the Savannah, Florida, and Western Railway v. Harris, 23 American State Reports 551; Morganton Manufacturing Company v. Ohio River and Charlestown Railway Company, 61 American State Reports 679, impose a greater responsibility on the last carrier. In the view I take it is not necessary to express an opinion as to how far the law there laid down is applicable to the present case.

I am of opinion that the defenders are liable on the ground stated in the pursuers' second plea-in-law, the plea added on amendment. If, however, the view is taken that they have proved the damage did not arise whilst the flour was on board ship, then in my opinion they are liable under the pursuers' third plea-in-law.

Findings will be pronounced giving effect to the ground of liability stated in the pursuers' second plea-in-law.”

The defenders reclaimed, and argued — The Lord Ordinary had decided the case, not on the grounds originally averred on record, viz., fault, but on the question of onus under the bill of lading. The case now made was one of breach of the contract of carriage as contained in the bill of lading, and the effect of the Lord Ordinary's judgment was that on the terms of the bill of lading the onus was on the defenders to show that the damage to the flour was received elsewhere than under their custody. The shipowner, however, was not an insurer under the bill of lading, and he was only liable for fault or for a presumption of fault arising from a certain state of facts — Wilson, Sons, & Company v. “Xantho,” 1887, 12 A.C. 503, per Lord Herschell at p. 510. The contract of carriage in a bill of lading was to carry only with reasonable care— Laurie v. Douglas, 1846, 15 M. & W. 746. The bill of lading was the sole measure of the shipowner's liability, and the present bill of lading had special exceptions, one of which was damage on the inland carriage. The defenders were within the above-cited case if they showed that under the excepted clause the loss which arose might have arisen inland — “ The Duero,” 1869, L.R., 2 A. & E. 393; Hamilton, Fraser, & Company v. Pandorf & Company, 1887, 12 A.C. 518. The effect of these cases was that an agreement to ship goods under a contract of carriage came in place of the law of common carriers— Hill v. Scott, [1895] 2 QB 371 and 713. To superimpose a contract of insurance on the bill of lading would lead to the anomalous result that the more lax the inland carriers' servants were the greater chance would they have of placing the burden on the unfortunate shipowner. The circumstances in which under a bill of lading the onus would be on the shipowner to exouse himself were stated by Lord President Inglis in Craig & Rose v. Delargy, July 15, 1879, 6 R. 1269, at p. 1276, 16 S.L.R. 750. There was no presumption from the mere signature of the bill of lading that the shipowner was responsible —

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Royal Hungarian Sea Navigation Company v. Bruce & Wilson, not reported. The Lord Ordinary had applied to the present case a totally wrong class of law, viz., that of the “ Peter der Grosse,” 1876, 3 Asp. 195, 1 P.D. 414. That was a case of a bill of lading signed by the master of the ship that the goods were in good order and condition, whereas here the words were “apparent good order and condition.” There was here no evidence as to the state of the flour at New York, and in any event all that the shipowner required to do was to show that caking would not be prima facie apparent to the mate at loading, and this on the evidence he had done. The damage was not obviously external, so that the shipper could not connect it with the shipowner. The obligation of the defenders was to carry the goods from New York to Glasgow in good order, and they were only liable for fault, the people primarily responsible being the railway company — Scrutton on Charter Parties and Bills of Lading, 6th ed., p. 135–137, and article 52 and footnote—Macnamara's Law of Carriers by Land, 2nd ed., sec. 197. In the same year as the case of the “ Peter der Grosse,” was decided the case of “ The Ida,” 32 L.T. 541, which put the onus the other way. Defenders here were in the same position as successive railway carriers, who were not responsible for loss arising off their own lines— Kent v. Midland Railway Company, 1874, L.R., 10 Q.B. 1; Scrutton, cit. sup., p. 190. In any event, if there was any onus on the defenders they had discharged it by showing that neither during the voyage nor at the loading at New York could caking have been caused, all the usual precautions having been taken. There was no obligation on the shipowner as to loading except to do so in a reasonable manner. As a matter of law it was not for the shipowner to stop taking cargo, but under the bill of lading it was the duty of the carrier not to tender the goods if he thought they ought to be carried in some other way. The defenders' liability only began when the goods were on the ships' slings, and he was only liable to deliver the goods in the same condition as he had received them. There was no evidence, however, as to the condition of the contents of the bags at any stage until the last, and the detection of caking by ocular inspection was difficult. Defenders had notified to the best of their ability the damage observed.

Argued for the pursuers and respondents—Defenders were liable under the bill of lading. This imposed on the shipowner only his common-law responsibility to deliver the goods in the like condition that they were received. Pursuers held the acknowledgment of the agent of the inland and ocean carriers that the goods were delivered at Minneapolis in apparent good order and condition, and defenders had undertaken to deliver in the like good order and condition at Glasgow, and their agents' receipt barred them from saying that they were not in good order later. Certain defences were no doubt open to them, and under the bill of lading they were not to be liable for inland damage, but the onus was on them to show that the damage occurred before the goods arrived at New York— Smith & Company v. Bedouin Steam Navigation Company, Limited, November 26, 1895, 23 R. (H.L.) 1, 33 S.L.R. 96. It was the duty of the shipowner to determine whether it was too wet to load. In this particular case, under a through bill of lading, the shipper could not be said to tender the goods at all, because the inland carrier was bound to hand them on. The defenders had given an acknowledgment at New York that the flour had been received in wet weather in good order, and this imposed the onus on them of showing that the damage which had arisen was not due to them—The Harter Act 1893, sec. 4, vide Carver on Carriage by Sea, 5th ed., sec. 103a, and Scrutton on Charter-Parties and Bills of Lading, pp. 402 and 403. The section in question—sec. 4 of the Harter Act—imposed on the shipowner responsibility for the apparent order and condition of the merchandise, and the bill of lading was subject to it. “Apparent good order and condition” was really equivalent to “good order and condition.” Caking was apparent in the ordinary course of handling the cargo and did not require detailed examination. Unless he proved, therefore, that the damage arose on land the shipowner was liable — the “ Peter der Grosse,” cit. sup., per James, L.J. The pursuers did not found on fault, but on the law of carriers. The liability of a shipowner was the same as a common carrier—Carver on Carriage by Sea, secs. 2 and 22. The effect of this might be to make him really an insurer of the goods. The same principle was laid down in Scots law—Bell's Com. i, 495—and rested on the edict nautce caupones. The pursuers had delivered the goods to the defenders' agent at Minneapolis, and they were really shipped there. In the present case there was a contract with defenders to carry these goods, and this left it entirely within the defenders' discretion as to when they were to be taken—Article ii, 17, of bill of lading. The shipowner was therefore under an absolute responsibility as an insurer, and his liability had nothing to do with negligence — Carver, sec. 1–20. There was here no modification of this liability by contract, otherwise the defenders must show that the pursuers consented to the loading going on in rain, and they had not done so. There was no evidence that the consignee pressed the ship to take the goods, and there was no authority to the effect that the shipowner was freed from liability because the goods were tendered. The onus was on the last carrier to show that the damage took place before he received the goods— Savannah Florida and Western Railway v. Harris, 23 Amer. State Reports, 551; Morganton Manufacturing Company v. Ohio River and Charleston Railway Company, 61 Amer. State Reports, 679. But, further, even if the defenders proved that the

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damage had taken place before they received the goods, they were still liable on the through bill of lading under Article ii, 11, for failing to notify this damage at New York. By so failing they had prevented the consignees from timeously presenting their claim for damages to the inland carriers.

At advising—