Hills Bros. v. The Britannia

87 F. 495, 1898 U.S. Dist. LEXIS 34

• Court: District Court, E.D. New York
• Decided: May 17, 1898
• Status: Published

Opinion

THOMAS, District Judge.

The claimant’s agent at Barcelona, Spain, contracted to carry certain almonds from Barcelona to New York, via Marseilles, France. The hill of lading, dated October 28, 1895, provides that the carriage should be performed by the ship Britannia, or, at the option of the earner, by another ship. At this time the Britannia was not at Barcelona, and, although her captain’s name is recited in the bill of lading, yet the name signed to such bill, in behalf of the carrier, is not proved to be his name, nor does an inspection of it cause such fact to appear. The goods were not carried by the Britannia, which sailed November 9, 1895, from Marseilles to New York, but by the Patria, which sailed from Marseilles 19 days later; and for this delay the libelants claim damages in an action in rem against the Britannia.

It may be inquired at the outstart whether the Britannia undertook, actually or constructively, the carriage of the goods. If not, an action in rem against her will not lie.

The Britannia was not at Barcelona at the date the bill of lading was.executed. The bill of lading did not contemplate that the goods should be shipped on board the Britannia at Barcelona. There is no evidence that the Britannia was ever at Barcelona thereafter; that she ever was at Marseilles while the goods were there; nor that her captain signed the bill of lading. The ingenious argument of' the advocate for the libelant does not meet these deficiencies.

The court is asked to assume that the somewhat obscure signature to the bill of lading was 'that of the captain of the Britannia. While the court may not decipher the signature, it bears no satisfactory resemblance to the name of the captain of the Britannia; and as he was not at Barcelona at the time, and as it does not appear that he was thereafter at that port, there is not the slightest reason for holding that hé signed the bill of lading, as there is no extrinsic evidence of such alleged fact.

It is urged that the claimant is estopped by the bill, of lading as against a bona fide holder. If the captain of the Britannia, having the real or apparent power to sign the bill of lading, did so, and thereby represented that he had received the goods, although thé same, were not in fact delivered to him, the question might arise whether the carrier.could be estopped to deny the fact as against a bona fide purchaser of the bill, who had been damaged thereby. But such doctrine may not be invoked in this case, because a proposed purchaser of the present bill of lading would find nothing in it to induce him to believe that the captain of the Britannia had received the goods, or undertaken the carriage thereof, except that the bill recited Ms name, and stated that the Britannia was to carry the goods. But, had such a purchaser used requisite care, he would have received notice from the same bill that the captain of the Britannia apparently did not sign the bill, and, moreover, that the bill contemplated that the goods might be carried by some other ship, if the carrier preferred. There would be no evidence present to such proposed purchaser that the Britannia was bound by any act of its captain, denoting that , he had, actually or constructively, received the goods, or. had committed his ship to the carriage. Therefore no one could purchase the bill; relying either upon such fact or representation of such fact. Hence all the elements of an estoppel are absent, and the purchaser ■ stands in precisely the same relation to the bill as the original holder thereof. In such a state of facts the action .in rem against the Britannia must fail, and, in view of that fact, it is unnecessary to inquire whether the carrier is exempt from liability under the sixth article of the bill of lading. It results from the foregoing views that a decree should be entered dismissing the libel, with costs tb the claimant.