283 F. 106 | 2d Cir. | 1922
(after stating the facts as above). At trial effort was made to prove that what Schoultz did generally and what he particularly did in the matter of collecting the freight money was in accordance with custom. Such custom was neither pleaded, nor was any usage proved; therefore it drops out of the case, and we express no opinion as to whether the usage would be lawful, had it been proven.
A bill of lading is both a receipt and a contract. Vanderbilt v. Ocean Co., 215 Fed. 886, 132 C. C. A. 226. It is a receipt for the goods shipped on board a ship, signed by the person who contracts to carry them or his agent, and stating the terms on which the goods were delivered to and received by the ship. Scrutton, Charter Parties, pp. 7, 139. While a shipper has an absolute right to demand a bill of lading, both under the Harter Act (Comp. St. §§ 8029-8035) and by virtue of long-established usage (Watt v. A Cargo of Lumber, 161 Fed. 104, 88 C. C. A. 268), he must get it from a properly authorized pe'rson, and who that person is will depend upon the facts shown in each particular instance.
The charter party at bar does not contain the proviso common in time charters that the master must sign bills of lading as demanded without prejudice to the charter party. Therefore, since Benham & Boyesen, as local agents for owners, have asserted no rights in the
Caravel Company was not the charterer, nor did it have authority, even from the charterer, to attempt that which was actually done. In our opinion, the facts of this case dispose of it entirely. The piece of paper upon which respondent unfortunately parted with its money was a fraud, not even issued or created within the apparent authority of any one concerned in its creation.
The decree below is affirmed, with interest and costs.
