the defendants to be taken care of and re-delivered to the plaintiffs on request for reward to the defendants, and non-delivery of such goods. 1872 LEBEAU V. GENERAL GATION CO. Pleas, denying the promise, the breaches, and to the first count STEAM NAVIdenying the delivery of the goods to the defendants for the purpose and on the terms alleged. Issues. The plaintiffs had given particulars of demand, which specified their claim to be in respect of "two pieces of silk broadstuffs delivered to the defendants on board their steamer Cologne, on the 25th day of October, 1871, in a case marked L. C., and numbered 1146, and S. M. 674, for carriage to and warehousing in London." At the trial before the Deputy Recorder the facts appeared to be as follows:-The plaintiffs had delivered the goods in question, consisting of what are called "silk broadstuffs," inclosed in a case, to the defendants, who are carriers of goods between Boulogne and London, for carriage by the defendants from the former place to the latter on board the defendants' steamer Cologne. The bill of lading, as tendered to the captain for signature, described the goods contained in the package as "linen goods;" but before it was signed by the captain the printed words "Weight, value, and contents unknown" were impressed upon it with a stamp by the captain or the defendants' agent. Upon the arrival of the vessel at London it was found that the case had been tampered with, and two pieces of silk broadstuff abstracted. It appeared that the freight for silk goods would be higher than that for linen, and that the freight was paid as for linen goods. The jury found, in answer to questions left to them by the learned judge, that the goods in question were safely delivered to the defendants; that they were lost while in their care as carriers; and that the goods were not wilfully misdescribed as linen goods that they might be carried at a lower rate, but were inadvertently misdescribed. The verdict was entered for the plaintiffs for 187. 11s. 1d., the value of the goods, with leave to the defendants to move to enter a nonsuit or a verdict for themselves on the ground that there was no evidence of the contract alleged in the declaration, and that the plaintiffs were estopped from proving the delivery of the 1872 LEBEAU v. GENERAL STEAM NAVIGATION CO. goods mentioned in their particulars to the defendants by the bill of lading. A rule nisi had been obtained accordingly, against which Field, Q.C., and Waddy, shewed cause. The contract which is evidenced by the bill of lading, was to carry the package with the particular mark and number thereon. The inaccurate description of the contents does not destroy such contract: Bates v. Todd (1); McCance v. London and North Western Ry. Co. (2) It is at most merely a representation, and the jury having found that it was not made fraudulently, but by inadvertence, it cannot avoid the contract. There is nothing to show that the misstatement innocently made to the defendants at the time of the shipment at all put them off their guard or altered their position: see the judgment of Blackburn, J., in Knights v. Wiffen (3). Moreover, the effect of the representation is entirely done away with by the addition of the words "Weight, value, and contents unknown.” The captain refuses to receive the goods as being of any particular description, and the effect is that the contract is for carriage of the goods contained in the package without reference to the nature of the contents. The case of Jessel v. Bath (4) is an authority that such is the true construction of this bill of lading. Martin, B., there says: 66 The person, therefore, signing this bill of lading, by signing for the amount with this qualification, Weight, contents, and value unknown,' merely means to say that the weight is represented to him to be so much, but that he has himself no knowledge of the matter;" and the rest of the Court put the same construction on the document. If this be the true effect of the contract, no question of estoppel can arise. Talfourd Salter and Finlay supported the rule. It is submitted that there was no contract on the part of the defendants for the carriage of these silk broadstuffs. The bill of lading is the contract, and that contract is for the carriage of linen stuffs. The memorandum, "Weight, value, and contents unknown," makes no difference in this respect. The meaning of that is that the shipowner protects himself from being concluded by the bill of lading, if the goods are (1) 1 M. & Rob. 106. (2) 3 H. & C. 343; 34 L. J. (Ex.) 39. (3) Law Rep. 5 Q. B. 660, at p. 665. 1872 LEBEAU v. GENERAL GATION CO. not really such as described; but he does not thereby contract to carry any other goods than linen goods. He merely says "I undertake to carry the goods you describe, but you must prove that the contents of the case were what you describe, if you seek STEAM NAVIto make me responsible for such goods in the case of a loss. I am not to be bound to deliver up linen if the contents were brickbats." This construction is quite consistent with the decision in Jessel v. Bath. (1) [BRETT, J. But if he is not bound by the description, can the other side be in the absence of fraud ?] The document must receive a construction that will give effect to all parts of it, if possible. The expression "contents unknown is not necessarily inconsistent with the description of the goods as "linen goods." If interpreted as meaning that though the goods are linen goods, the nature and quality of such linen goods are unknown, all the expressions in the document will receive a meaning. Taking it that notwithstanding the memorandum there is a representation of the goods as linen goods, it is contended that if such a representation be untrue, though without fraud, it will avoid the contract for carriage of the goods, or at any rate release the carrier from his liability as a common carrier: 2 Kent's Commentaries 802, s. 604. The question in such cases is not what is the intention of the party making the representation, but what is the effect on the carrier's position. If the effect of the untrue representation is to deceive the carrier as to the value, and to induce him not to bestow on the goods the care and diligence which their value requires, the contract itself becomes a nullity: Story on Bailments, 539, ss. 567-569; Angel on Carriers, 235, ss. 262, 264; Smith's Mercantile Law, 8th ed. p. 279; Batson v. Donovan (2); Titchburne v. White (3); Tyly v. Morrice (4); Kenrig v. Eggleston (5); Belfast and Ballymena Ry. Co. v. Keys. (6) [DENMAN, J. These authorities seem to refer to cases where the carrier has made inquiries, and the answer is untrue. Here there was no specific inquiring by the carrier.] 1872 LEBEAU v. GENERAL The effect is the same. There is a voluntary statement, the effect of which is to put him off inquiring. [GROVE, J. The cases seem to have drawn some distinction STEAM NAVI- between voluntary statements and cases where the carrier has inquired, though I confess I do not see any.] GATION CO. Moral fraud is not necessary to discharge the carrier. The defendants have never undertaken to act as insurers of any goods but those described by the consignors. The case is like that of McCance v. London and North Western Ry. Co. (1), where a fact was treated by the parties as the basis of the contract, and it was held that one party could not afterwards dispute the truth of it. The defendants are, therefore, mere involuntary bailees of the goods, and there is no question here of any negligence on the part of the defendants beyond the mere fact of non-delivery. If they are not liable as common carriers, they are entitled to succeed on these facts. 66 [BRETT, J. You would make this like a case of marine insurance, where a concealment of a material fact, though without fraud, is fatal. The law, as to the meaning of such expressions as Weight, value, and contents unknown," is laid down in Parsons on Shipping, 197, and the case of Clark v. Barnwell (2) is cited, where the bill of lading contained the clause, that the boxes containing the goods were shipped in good order "contents unknown," and the Court said "it is obvious, therefore, that the acknowledgment of the master as to the condition of the goods when received on board extended only to the external condition of the cases, excluding any implication as to the quantity or quality of the article, condition of it at the time received on board, or whether properly packed or not in the boxes."] Secondly. The plaintiffs are estopped from proving delivery of silk goods to the defendants under this bill of lading. The goods were, in consequence of the statement that they were linen, carried at a less rate of freight; and the defendants, therefore, have acted upon the plaintiffs' representation, and altered their position for the worse, and the plaintiffs cannot now be permitted to deny the truth of the representation. The plaintiffs cannot prove their case without shewing the statement to have been untrue. (1) 3 H. & C. 343; 34 L. J. (Ex.) 39. (2) 12 How. 272. 1872 LEBEAU v. [BOVILL, C.J. This question of estoppel comes back really to the same question as that involved in the first point; for if there were a contract to carry the goods, whatever they were, the nature of the goods delivered becomes immaterial; if there were no STEAM NAVIcontract at all, then it is equally immaterial.] They also cited Polhill v. Walter (1); Knights v. Wiffen (2); Cahill v. London and North-Western Ry. Co. (3); Foster v. Colby (4); Hollister v. Nowlen (5); Phillips v. Earle. (6) BOVILL, C.J. In this case the jury have negatived the existence of any fraud or wilful misrepresentation. No question is raised by the form of this rule as to the proper amount of the damages, but the application is simply to enter a nonsuit or verdict for the defendants. The contract upon which the plaintiffs in substance declared was that contained in the bill of lading. It appears to me that the effect of that document was, that though the plaintiffs represented that the package in question contained linen goods, the defendants by their agent refused to contract upon the footing that the contents of the case were to be taken absolutely to be of the description that the shippers stated. By the printed memorandum, in my opinion, they repudiated all knowledge of the contents of the case, and all intention of contracting with regard thereto, and contracted to carry the package, whatever its contents might be. That was the view taken in the case of Jessel v. Bath (7), and that seems to me the correct view of such a contract. It therefore lies on the defendants to get rid of their liability under the contract, and this they seek to do by reason of the statement made by the plaintiffs as to the nature of the goods. But this statement must be taken as having been made innocently and without fraudulent intention. I do not see how such a statement could avoid the contract. If there had been any fraud or wilful mis-statement with a view to avoiding the payment of a higher rate of freight, the case might have fallen within some of the (1) 3 B. & Ad. 114. (2) Law Rep. 5 Q. B. 660. (3) 10 C. B. (N. S.) 154; 13 C. B. (N.S.) 818; 30 L. J. (C. P.) 289; 31 L. J. C. P. 271. 81. (4) 3 H. & N. 705; 28 L. J. (Ex.) (5) 19 Wend. 234. (6) 8 Pick. (Mass.) 182. (7) Law Rep. 2 Ex. 267. GENERAL GATION CO. |