Creery v. Holly, 14 Wend. 26

Creery v. Holly

14 Wend. 26 | N.Y. Sup. Ct. | 1835

By the Court,

Nelson, J.

The bill of lading is the written evidence of the contract between the owner of the goods and the master or owner of the vessel for the carriage and delivery of the goods at a certain freight, when sent by sea or other public waters. The master usually keeps a copy of it; whether he did so in this case does not appear. One of the bills is usually forwarded to the consignee, whether agent or vendee. The consignee, on receipt of the bill of lading, signed by the master of the vessel, upon the strength of it not unfrequently insures the goods, sells or pledges them for money; and the endorsement upon the back of the bill will transfer the title to the goods, or at least all that belongs to the en-. *29purser. In a word, every disposition it seems may be made of the property by means of the bill of lading, that might be made if the consignee had the actual possession of the goods; the delivery on board of the vessel and transmission of the bill of lading being a virtual delivery of the goods to the consignee.

It is obvious from the use of the bill of lading in the management and disposition of the property, and the confidence given to it, that it should be considered high evidence of the truth of what appears upon its face. It however should receive a reasonable interpretation, and like other written instruments, evidence aliunde may sometimes be necessary properly to understand its contents, and adjust the rights of the parties to it. The case of Barrett v. Rogers, 7 Mass. R. 297, is an instance where explanation was admitted. There the bills were in the usual form for the delivery of three cases of velvets, and acknowledged the receipt of them in good order. The suit was against the master, on the ground that they had been damaged in the carriage. The judge admitted evidence as to the condition of goods when delivered on board, and stated to the jury that the bill was not conclusive upon the defendant that they were then in good order. Sedgwick, J. in delivering the opinion of the court, said, that a bill of lading is an instrument of a nature to command great regard, and imposing a proportional obligation upon those who are bound for the execution of the responsibility which it assumes, there can be no doubt; but this responsibility must have reasonable limits, which must be determined by the nature of the subject matter. If the property to be transported, and which was declared to be 61 in good order” was in all parts open to inspection, and no fraud or imposition was practiced, it might be unreasonable to say that no evidence should be admitted to prove that it was not in good order. The same principle is stated by Mr. Abbott, on shipping, 249, and it undoubtedly implies that as a general rule parol evidence is not admissible to vary the contents of the instrument. If the bill of lading contains the contract between the parties, then it necessarily follows that parol evidence can only be admitted upon the rule of evidence applicable to written instruments. That it is so to be *30considered, is apparent from an inspection of it, and is conceded by approved authorities. This is also evinced by the alterations that have frequently been made in the clause containing the qualification of the masters and owners liability. Abbott on Ship. 218.

It is true in this case that nothing is said in the bill as to the manner of stowing away the goods, whether on or under the deck; but the case concedes that the legal import of the contract, as well as the understanding and usage of merchants, impose upon the master the duty of putting them under deck, unless otherwise stipulated; and if such is the judgment of the law upon the face of the instrument, parol evidence is as inadmissible to alter it as if the duty was stated in express terms. It was a part of the contract. 8 Johns. R. 189. It seems to me it would be extremely dangerous, and subject to the full force of every objection that excludes the admission of this species of evidence, to permit any stipulation, express or implied, in these instruments, when free from ambiguity, to be thus varied; and besides, from the high character given to these instruments in commercial business, would expose the insurer and purchaser to frauds, against which they could not well be protected, without wholly rejecting them. If the implied obligation of the master in this case, arising out of the conceded construction of this bill of lading, may be varied by parol testimony, I do not see how any other stipulation included in it could be sustained upon an offer to impeach it in the same way.

But it is said fraud was committed upon the master by the agent of the plaintiff, in procuring the mate to sign a different contract from the one agreed upon, and in pursuance of which the goods were shipped. The answer to this position is, that .the case was not put on that ground before the court and jury. Such a defence would draw in question the validity of the instrument altogether. The point presented in the bill of exceptions is not whether fraud in the execution of the instrument would not avoid it, but whether parol evidence was admissible to vary its terms, which are very different questions. Rejecting the parol evidence to vary the bill, and putting the rights of the consignee against the owners o *31the Martha upon the contract as there declared, it is conceded his remedy would be undoubted and every ground or pretence of defence to suit removed. That the contract cannot be altered in the manner set forth in the bill of exceptions, I have already endeavored to show. That it may be wholly avoided by fraud in the execution of the bill of lading, is not denied. If thus avoided, the parties to it would then be thrown back upon such an agreement as could be proved, resting wholly in parol.

Judgment reversed.