The St. Johns N. F.

272 F. 673 | 2d Cir. | 1921

HOUGH, Circuit Judge

(after stating the facts as above). [1] Ribelant did not ship the rosin. Its title thereto and right to sue depended upon the indorsement or transfer to it of the bill of lading. The title as alleged is excellent and very usual; yet it is to be remembered that a bill of lading is not a negotiable instrument, or a piece of commercial paper, and-the doctrines favoring an innocent holder for value do not wholly apply. Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998.

[2] The bill of lading thus transferred is “clean”; that is, it contains no reference to the fact that the rosin was laden on deck, and it was issued by the ship’s agents on behalf of the master and owners. Consequently it imports under-deck shipment. The Delaware, 14 Wall. 579, 20 L. Ed. 779. Yet in Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58, the facts being that goods were carried on deck in pursuance of the written contract of ship and shipper,, while the bill of lading for the same was “clean,” the consignee (named in the bill of lading), who sued for loss of deck cargo, was held to he bound by the agreement of the shipper, made before issuance of the bill of lading.

It is to be remembered that we have nothing before us but a point of pleading, viz. whether, viewing the allegations of the answer most favorably for the claimant, any defense is suggested. Eibelant’s position is that, assuming an antecedent freight contract, in this instance it was no more than that shipment on deck would be at “ship’s option,” and that the ship by issuing a clean bill exercised that option, and is accordingly conclusively estopped from going back of the bill itself.

[3] But this interesting question is not reached until the libelant es-tablislies its title and right to sue; i. e., it must prove its ownership in the rosin, an ownership different and distinct irom that oí the General Commercial Company, and so establish not only that it is unaffected by any bargains or agreements made by the shipper antecedent to the bill of lading, but its very right to bring suit: under that. bill. We hold that on peremptory exception, over claimant’s denial, it cannot be assumed or inferred that libelant is as near an “innocent holder for value” as the transferee of a bill of lading can ever become, and we hold further that such title must be affirmatively proved. Under these pleadings it is a part of libelant’s case.

[4] As to whether the issuance of this bill constituted an exercise of option we express no opinion, further than the following: If the shipper had brought this suit, and had executed the freight contract providing for deck shipment at ship’s option, and knew that the rosin was actually put on deck, the mere fact that by oversight or inadvertence a. clean bill was issued would not be conclusive against the ship. On the other hand, the case would be exactly like Lawrence v. Min-turn, supra. It was error to strike out the answer on peremptory exceptions; testimony is necessary.

[5] As this appeal is a new trial, we are not obliged to send the case back in order that evidence may be given. It is directed that no mandate issue until the further order of the court, and that the parties take testimony in this court, for which purpose 40 clays from the date of filing this opinion are allowed to libelant, and 40 days to claimant, calculated from the date when libelant rests, or from the expiration of the first period of 40 days as the case may be.

When the testimony has been taken, it is directed that the case stand for argument at the opening of the term of October, 1921, Applications, if any, for extension of time for taking testimony, may be made on reasonable notice, to any judge of this court.