Morris, J.
Appeal from a judgment entered upon verdict in an action brought to recover damages for breach of contract of carriage of 155 barrels of fish oil from Seattle to New York. The appellant was located at Ketchikan, Alaska, and between October 21, 1911, and November 15, 1911, several cablegrams and letters passed between the parties relative to the terms and conditions of the shipment between Seattle and New York, in which the amount of the shipment, the size, weight, and measurement of the barrels in which it was to be contained, and the rate to be charged, were arranged. These matters being determined, the oil was shipped on the steamer Bertha at Ketchikan and arrived at Seattle on November 15. On arrival at Seattle, some of the barrels were found to be leaking. These were recoopered and the oil was then loaded on the steamer Virginian, which sailed on November 30. On December 2, respondent mailed a bill of lading to appellant at .Ketchikan, which was received on December 11. The shipment was in [51]*51a bad condition on its arrival at New York, and this action was brought seeking to charge respondent with the loss. Respondent sought to show in defense, (1) that the loss was due to improper and insufficient containers, and (2) that it was exempt from liability by reason of the exceptions contained in the bill of lading. • To these defenses, appellant replied, and the cause went to trial, resulting in a verdict for respondent.
A great many errors are charged against the lower court. We will, however, in view of the conclusions we have reached, consider only a few of them. The record discloses the following as a part of, and occurring during the reading, of the instructions:
“ ‘If you find from the evidence that plaintiff was guilty of negligence in shipping the oil in containers such as the evidence shows were used, this does not prevent plaintiff’s recovery in this case if you also find from the evidence that defendant’s way of stowing and carrying the barrels on end, provided you find that to be the case, contributed in a material degree to the loss.’ I will read that over: ‘If you find from the evidence that plaintiff -fras guilty of negligence in shipping the oil in containers such as the evidence shows were used, this does prevent plaintiff’s recovery in this case if you also find from the evidence that defendant’s way of stowing and carrying the barrels on end, provided you find that to be the case, contributed in a material degree to the loss.’ Mr. Arctander: I suppose Your Honor means there, if you change it in that way, that it should be that— The Court: (interrupting) That if you are guilty of negligence and they are guilty of negligence and you both contributed to it and by that means the oil was lost, you cannot recover. Mr. Arctander: But Your Honor means to read instead of ‘if’ the word ‘unless’ — ‘in this case unless you also find from the evidence that defendant’s way of’ — don’t you? The Court: Where? Mr. Arctander: In the fourth line; ‘in this case unless you also find from the evidence’ — you say that it does prevent plaintiff’s recovery unless — The Court: (interrupting) ‘If you find from the evidence that plaintiff was guilty of negligence in shipping the oil in containers such as the evidence shows were used, this does prevent plain[52]*52tiff’s recovery in this case if you also find from the evidence that defendant’s way of stowing and carrying the barrels on end, provided you find that to be the case, contributed in a material degree to the loss.’ Mr. Arctander: Well, that should be ‘unless’ instead of ‘if’ then; otherwise there is no sense in it. The Court: How is that? Where is the ‘if’ do you think? Mr. Arctander: In the fourth line, Your Honor — ‘it does prevent his recovery unless the defendant by stowing them on end materially contributed to the loss.’ That is the way it should read, shouldn’t it? The Court: No, I guess that reads all right. Mjr. Arctander: All right. The Court: (continuing) ‘this does prevent plaintiff’s recovery in this case if you also find from the evidence that defendant’s way of stowing and carrying the barrels on end, provided you find that to be the case, contributed in a material degree to the loss.’ That is what I wanted to say. If you are both guilty of negligence in the manner of handling this cargo, you cannot recover. ‘If you find from the evidence that the oil was- delivered to defendant in Seattle in good order and condition, that on its arrival in New York City there was a loss of 2,694 gallons of oil, then and in that case the presumption arises that the loss was caused by the negligence of the defendant.’ I denied that instruction, and give you an exception. Mr. Rupp: In other words, that the jury may understand' it, you say that is not the law. The Court: Well, I refuse that instruction. Mr. Rupp: Yes, but you read it to them and they might get it— The Court: (interrupting) I withdraw that from the jury. I will read it so that you can see what I have withdrawn: ‘If you find from the evidence that the oil was delivered to defendant in Seattle in good order and condition, that on its arrival in New York City there was a loss of 2,694 gallons of oil, then and in that case the presumption arises that the loss was caused by the negligence of the defendant.’ Now, I have withdrawn that instruction from the jury. Mr. Rupp: They understand that that is1 not given by you as the law? The Court: It is marked ‘denied,’ not given by me as the law. ‘If you find from the evidence that the 155 barrels of oil were delivered to defendant in Seattle in good order and condition, and that on arrival in New York one barrel was missing entirely, one was broken to pieces, a great number of barrels entirely or partially empty, while a considerable num[53]*53ber of them was in the exact condition as1 to weight as when received in Seattle, provided that in your judgment such facts are established by the evidence, then and in that case such facts, if they be facts, raise the presumption that the loss of the oil was caused by the negligence of the defendant.’ I don’t think so; I will deny that also. Mr. Rupp: In other words, if I may interrupt you, you want to instruct the jury that that is not the law? The Court: I do not instruct them that that is the law. You can argue that when you come to argue the case. Mr. Rupp: Well, I wanted to make it plain to the jury that you did not tell them that was the law. The Court: Yes, I do not tell the jury that is the law. I am not permitted to comment on these matters. Mr. Rupp: I recognize that. -The Court: I can’t stop to explain why.”
This, it seems to us, was so confusing and misleading to the jury that it may safely be assumed that the average juror would, at the conclusion of the court’s charge, have at best a very vague conception and understanding of the law that was to govern him in his determination. The trial judge first says, if the evidence discloses that appellant was negligent in shipping the oil in the containers used, “this does not prevent” recovery, if it also found that respondent improperly' stowed and carried the barrels and thus contributed to the loss.
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Morris, J.
Appeal from a judgment entered upon verdict in an action brought to recover damages for breach of contract of carriage of 155 barrels of fish oil from Seattle to New York. The appellant was located at Ketchikan, Alaska, and between October 21, 1911, and November 15, 1911, several cablegrams and letters passed between the parties relative to the terms and conditions of the shipment between Seattle and New York, in which the amount of the shipment, the size, weight, and measurement of the barrels in which it was to be contained, and the rate to be charged, were arranged. These matters being determined, the oil was shipped on the steamer Bertha at Ketchikan and arrived at Seattle on November 15. On arrival at Seattle, some of the barrels were found to be leaking. These were recoopered and the oil was then loaded on the steamer Virginian, which sailed on November 30. On December 2, respondent mailed a bill of lading to appellant at .Ketchikan, which was received on December 11. The shipment was in [51]*51a bad condition on its arrival at New York, and this action was brought seeking to charge respondent with the loss. Respondent sought to show in defense, (1) that the loss was due to improper and insufficient containers, and (2) that it was exempt from liability by reason of the exceptions contained in the bill of lading. • To these defenses, appellant replied, and the cause went to trial, resulting in a verdict for respondent.
A great many errors are charged against the lower court. We will, however, in view of the conclusions we have reached, consider only a few of them. The record discloses the following as a part of, and occurring during the reading, of the instructions:
“ ‘If you find from the evidence that plaintiff was guilty of negligence in shipping the oil in containers such as the evidence shows were used, this does not prevent plaintiff’s recovery in this case if you also find from the evidence that defendant’s way of stowing and carrying the barrels on end, provided you find that to be the case, contributed in a material degree to the loss.’ I will read that over: ‘If you find from the evidence that plaintiff -fras guilty of negligence in shipping the oil in containers such as the evidence shows were used, this does prevent plaintiff’s recovery in this case if you also find from the evidence that defendant’s way of stowing and carrying the barrels on end, provided you find that to be the case, contributed in a material degree to the loss.’ Mr. Arctander: I suppose Your Honor means there, if you change it in that way, that it should be that— The Court: (interrupting) That if you are guilty of negligence and they are guilty of negligence and you both contributed to it and by that means the oil was lost, you cannot recover. Mr. Arctander: But Your Honor means to read instead of ‘if’ the word ‘unless’ — ‘in this case unless you also find from the evidence that defendant’s way of’ — don’t you? The Court: Where? Mr. Arctander: In the fourth line; ‘in this case unless you also find from the evidence’ — you say that it does prevent plaintiff’s recovery unless — The Court: (interrupting) ‘If you find from the evidence that plaintiff was guilty of negligence in shipping the oil in containers such as the evidence shows were used, this does prevent plain[52]*52tiff’s recovery in this case if you also find from the evidence that defendant’s way of stowing and carrying the barrels on end, provided you find that to be the case, contributed in a material degree to the loss.’ Mr. Arctander: Well, that should be ‘unless’ instead of ‘if’ then; otherwise there is no sense in it. The Court: How is that? Where is the ‘if’ do you think? Mr. Arctander: In the fourth line, Your Honor — ‘it does prevent his recovery unless the defendant by stowing them on end materially contributed to the loss.’ That is the way it should read, shouldn’t it? The Court: No, I guess that reads all right. Mjr. Arctander: All right. The Court: (continuing) ‘this does prevent plaintiff’s recovery in this case if you also find from the evidence that defendant’s way of stowing and carrying the barrels on end, provided you find that to be the case, contributed in a material degree to the loss.’ That is what I wanted to say. If you are both guilty of negligence in the manner of handling this cargo, you cannot recover. ‘If you find from the evidence that the oil was- delivered to defendant in Seattle in good order and condition, that on its arrival in New York City there was a loss of 2,694 gallons of oil, then and in that case the presumption arises that the loss was caused by the negligence of the defendant.’ I denied that instruction, and give you an exception. Mr. Rupp: In other words, that the jury may understand' it, you say that is not the law. The Court: Well, I refuse that instruction. Mr. Rupp: Yes, but you read it to them and they might get it— The Court: (interrupting) I withdraw that from the jury. I will read it so that you can see what I have withdrawn: ‘If you find from the evidence that the oil was delivered to defendant in Seattle in good order and condition, that on its arrival in New York City there was a loss of 2,694 gallons of oil, then and in that case the presumption arises that the loss was caused by the negligence of the defendant.’ Now, I have withdrawn that instruction from the jury. Mr. Rupp: They understand that that is1 not given by you as the law? The Court: It is marked ‘denied,’ not given by me as the law. ‘If you find from the evidence that the 155 barrels of oil were delivered to defendant in Seattle in good order and condition, and that on arrival in New York one barrel was missing entirely, one was broken to pieces, a great number of barrels entirely or partially empty, while a considerable num[53]*53ber of them was in the exact condition as1 to weight as when received in Seattle, provided that in your judgment such facts are established by the evidence, then and in that case such facts, if they be facts, raise the presumption that the loss of the oil was caused by the negligence of the defendant.’ I don’t think so; I will deny that also. Mr. Rupp: In other words, if I may interrupt you, you want to instruct the jury that that is not the law? The Court: I do not instruct them that that is the law. You can argue that when you come to argue the case. Mr. Rupp: Well, I wanted to make it plain to the jury that you did not tell them that was the law. The Court: Yes, I do not tell the jury that is the law. I am not permitted to comment on these matters. Mr. Rupp: I recognize that. -The Court: I can’t stop to explain why.”
This, it seems to us, was so confusing and misleading to the jury that it may safely be assumed that the average juror would, at the conclusion of the court’s charge, have at best a very vague conception and understanding of the law that was to govern him in his determination. The trial judge first says, if the evidence discloses that appellant was negligent in shipping the oil in the containers used, “this does not prevent” recovery, if it also found that respondent improperly' stowed and carried the barrels and thus contributed to the loss. This instruction is then re-read, leaving out the word “not,” thus giving a contrary meaning to the instruction from that first read and leaving it confusing and unintelligible, unless the jury could comprehend that the court was endeavoring to charge them upon the law of contributory negligence, which rule, as this was an action upon a contract and not upon tort, had no place in the case except in so far as it is the law that, in cases of this kind, the shipper cannot recover where the loss is occasioned by reason of shipping goods in improper containers or packages or of inherent qualities or defects in the goods themselves; not because of any theory of contributory negligence, but because these exceptions abrogate the common law liability of the carrier.
The court then proceeds to read instructions, and enters into a colloquy with counsel as to whether such instruction [54]*54as read is a correct statement of the law. The first of these instructions is then withdrawn, the court evidently concluding that it is not the law. The second, however, is not withdrawn, the court contenting himself with saying that he does not tell the jury it is> the law, neither does he tell them it is not the law. It is bad practice — sufficient, it seems to us, to endanger any verdict — for the trial judge to read instructions to the jury and not determine until after they are read whether they should be given or not; and when this course is followed throughout the charge, it must be difficult for the jury to say what must be accepted and what must be rejected; especially in view of what was said to the jury in other instructions, in which they were told that, in the absence of exempting stipulations, the respondent would be liable for the loss unless the loss was due solely to the negligence of the shipper.
Again, an instruction is given that, in order to defeat recovery, it must appear that the oil was shipped in improper containers, and that this alone was the cause of the loss, which must be shown by a preponderance of the evidence. In another instance, the jury is told that, if the containers were unsuitable or insufficient by reason of the route or changes of climate, the appellant could not recover. Under this instruction, the mere fact is sufficient to defeat recovery. Under another, this would not defeat recovery unless it was the sole cause of the loss. Under a third instruction, it would defeat recovery if it contributed to, or was one of the facts occasioning the loss. It seems to us that nothing more need be said to establish the confusing and contradictory features of these instructions. The issues in this case were simple, and a few well chosen instructions could have submitted to the jury all that they were called upon to decide. The appellant was entitled to recover, having established its loss, unless the respondent was excused from liability by reason of the fact that the oil was not shipped in proper containers, which [55]*55caused the loss; or it had, by reason of the bill of lading, exempted itself from the cause of the damage.
And this brings us to another question necessary to be discussed. It is claimed that the court erred in admitting the bill of lading in evidence, it being appellant’s contention that the bill of lading was no part of the contract nor any evidence thereof. This claim is based1 upon the fact that the bill of lading was not issued until after the oil was loaded upon the Virginian and the voyage begun. We think, however, because of what will hereafter be referred to, this fact is not alone determinative of the question, and that issue has presented a question of fact which must determine the effect to be given the bill of lading. The appellant, in one of its letters, requested: “Please have bill of lading made out, sending us one original and two first copies.” In another it said: “We are as yet without bills of lading from you which we requested you to send us.” The president and manager of appellant testified that he received the bill of lading, and that he requested the same because, the oil having been sold “cash against document,” it was necessary to attach a bill of lading to the draft in order to obtain the purchase price of the oil; that he did not read the stipulations on the back of the bill of lading, but that he had been in the habit of shipping goods under bills of lading, and in a general way was familiar with the stipulations made use of by shipping companies in the effort to exempt or lessen their liability.
This evidence, it seems to us, presents some questions of fact as well as law, and that the court could not, under the circumstances, determine the effect to be given this bill of lading. The court charged the jury that, in giving effect to the bill of lading, they were to be governed by four considerations, three of which are immaterial to this feature of our discussion. The fourth was that, in order to defeat appellant’s recovery, the jury must be satisfied that the bill of lading was received by appellant at the time of the delivery of the oil to the respondent, and not after the control [56]*56had passed from appellant to respondent, nor' after the transportation had begun, “unless the bill of lading was to be sent to plaintiff.” This last clause we think made this instruction bad. It is clear that the oil was shipped' and on board the Virginian before the bill of lading was sent to appellant. From this it can be argued that both parties understood and agreed that the terms of the shipment were as determined by the correspondence between the parties, and that when appellant requested a bill of lading it had a right to assume that no stipulations other than those agreed upon should be incorporated in it, and that no attempt would be made by respondent to change the terms of the contract from those mentioned in the correspondence; and that, with this understanding and for the purpose indicated by the testimony of its president, it requested the bill of lading. If this should be found to be the fact, then it was error to charge the jury that, if the bill of lading was to be sent to the appellant, it was bound by its terms, as this would make the mere mailing of the bill of lading sufficient to bind appellant to all its stipulations. We do not think this is the law.
On the other hand, conceding that the terms of shipment had been agreed upon, it was nevertheless competent for the parties to modify those terms by additional ones or by a substitution of the contract as contained in the bill of lading. It was, therefore, under this phase of the case, a question of fact for the jury to determine whether, under all the circumstances as testified to by the president of appellant, his request for a bill of lading, his general knowledge of the stipulations contained therein, it was his understanding that the contract, in so far as it had been determined by the cablegrams and letters, was to be merged in and the oil carried subject to conditions and exceptions named in the bill of lading. We think something more than the sending of the bill of lading or its receipt was' necessary to subject appellant to its terms, and that it must be found that there was an actual assent to the conditions in the bill of lading, and that in addition to [57]*57its receipt, the bill of lading was received and accepted by the appellant as a contract under which the oil was to be shipped. Scrutton, Charter Parties and Bills of Lading, pp. 9, 40; Carver, Carriage by Sea, §§ 56, 57, 58; 4 Cyc. 407; 4 Am. & Eng. Ency. Law (2d ed.), 517.
The case of The Arctic Bird, 109 Eed. 167, is very similar to that before us, and in it will be found a clear exposition of the law as we have attempted to declare it. This rule is also recognized in The Caledonia, 43 Fed. 681. The error of this instruction is clear by reference to our own holding in Allen Sr Gilbert-Ramaher Co. v. Canadian Pac. R. Co., 42 Wash. 64, 84 Pac. 620, where, in discussing the effect of a bill of lading handed the shipper after the shipment of the goods, it was said, citing 6 Am. & Eng. Ency. Law (2d ed.), 642:
“It is therefore of no effect where it is brought to the knowledge of the shipper after the goods have been shipped and it is too late for him to recede.”
We therefore conclude that the judgment ought not to stand, and it is reversed 'and a new trial ordered.
Crow, C. J., Parker, Fullerton, and Mount, JJ., concur.