the existence at the time of performance of a certain state of things, the non-existence of which would render performance impossible. For instance, if the port named in the bill of lading became permanently closed and inaccessible to shipping in consequence of an earthquake, it would probably be held that the continued existence of the place named as a port was an implied condition of the contract, and that the shipowner was excused. Where, however, the performance of the contract remains lawful, and is not excused by the express terms of the contract, or by some implied condition, the shipowner is liable for any loss or damage suffered by the shipper by reason of his goods not being delivered at the named place, even though such delivery has become impossible. There is
another reason why the precise description of the place of delivery often becomes important. It is only on the arrival of the ship at the place described as the place of delivery that the obligation of the consignee of the goods to take delivery commences. Delay involves considerable loss and expense to the
shipowner. The shipper or consignee is not responsible for any delay which occurs before the ship has arrived
at the place of delivery described in the bill of lading.
(6) The goods may be deliverable by the terms of the bill of lading to a named consignee, and to him only, but more usually they are made deliverable to the “order or assigns” of the named consignee or of the shipper. If the goods are made deliverable to order or assigns the bill of lading is a negotiable instrument, or, in other words, the right to the goods, and the rights and liabilities under the contract contained in the bill of lading, may be transferred by indorsement and delivery of the document. When an indorsement has once been made by the shipper or consignee writing his name and nothing more on the back of the bill of lading, the rights in and under it may be transferred from hand to hand by mere delivery. A bill of lading so indorsed is said to be indorsed “in blank.” But the shipper or consignee may restrict the negotiability of the bill of lading by indorsing it not “in blank,” but with a direction requiring delivery to be made to a particular person or indorsee, or to his order. This is called an indorsement "in full." When an indorsement has been made “in full” to a named indorsee or order, such indorsee must again indorse “in blank” or “in full” to effect a new transfer of the rights in the bill of lading.
(7) The amount or rate of freight payable is stated in the bill of lading, either expressly, or, not uncommonly when the freight under the bill of lading is the same as under the charter-party, by reference to the charter-party. A common form of such reference is “freight and other conditions, as per charter-party.” It may here be mentioned that this form of words does not incorporate in the contract under the bill of lading all the terms and conditions of the charter-party, but only those which apply to the person who is to take delivery, and relate to matters ejusdem generis, or similar to the payment of freight, such as demurrage and the like. The conditions of the charter-party thus incorporated do not include, for instance, the exceptions in the charter-party so as to add them to the exceptions in the bill of lading. Freight, unless it is otherwise provided by the contract, is payable only on delivery of the goods at their destination. If the voyage is interrupted and its completion becomes impossible, the shipowner cannot claim payment of freight even pro rata itineris. He loses his freight altogether. This is so even when the completion of the voyage is prevented by causes for which the shipowner is not responsible, such as the act of God or the king’s enemies, or perils which are within the express exceptions in the bill of lading. When the voyage is interrupted by accident, and indeed in any case, the goods may, by agreement between the shipowner and the consignee, be delivered at some place short of their destination upon payment of a freight pro rata; that is to say, proportional to the length of voyage accomplished, and such an agreement may be implied in certain circumstances from the conduct of the consignee in taking delivery before they arrive at their destination. In all such cases it will be a question of fact whether the goods were in fact delivered upon the terms, express or implied, that freight pro rata should be paid. As a rule such an agreement would not be implied where the shipowner is unable or unwilling to forward the goods to their destination, and the owner of the goods, therefore, has no option but to take delivery where offered.
When the ship is disabled and cannot proceed, or she is prevented by some obstacle from proceeding to the place of delivery named in the bill of lading, and the shipowner is unwilling or unable to forward the goods by another ship, even though he may be excused for his failure to carry the goods to their destination, he is not entitled to be paid any part of the freight; and the consignee is entitled to have the goods delivered to him either at the place where the vessel has taken refuge in her disabled condition, or, if the obstacle arises without disablement of the vessel, at the place which is nearest and most reasonably convenient at the time and in the circumstances when the further prosecution of the voyage has to be abandoned. On the other hand, after the goods have been shipped, so long as the shipowner is ready and willing to carry the goods to their destination, or, if the ship is disabled, to forward them to their destination by some other ship without unreasonable delay, the owner of the goods cannot require the goods to be delivered to him at any place short of their destination without payment of the full freight. Sometimes the freight, either wholly or in part, is made payable in advance. If freight payable in advance has become due, even though the ship is lost before it is paid, it must, in the absence of some special provision to the contrary, still be paid, and freight already paid in advance does not become repayable because the goods do not reach their destination. If, however, goods upon which freight has been paid in advance are lost, and the shipowner is liable for their loss, the amount of freight paid in advance must be taken into account in assessing the damage recoverable from the shipowner.
(8) There is no part of the bill of lading which is of greater practical importance or which demands more careful consideration by shipowner and shipper alike than that which sets forth the excepted perils: those perils, or in other words causes of loss, for which the shipowner is to be exempt from liability. By the common law, as we have seen, the exemption of the carrier, apart from express contract, extended only to loss by the act of God or the king’s enemies. The expression “act of God” requires a word of explanation. It will be sufficient to say that it is not synonymous with force majeure; but it includes every loss by force majeure in which human agency, by act or negligence, has had no part. The list of excepted perils varies much in different forms of bills of lading. In the older forms it usually included perils of the seas, robbers and pirates, restraint of princes and rulers, fire and barratry (that is, wilful wrongdoing) of the master and crew. The list, however, has grown in modern times, and is still growing; the tendency being to exempt the shipowner from liability for all loss which does not arise from his own personal default, or from the negligence of his managers or agents in failing to provide a vessel seaworthy and fit for the voyage at its commencement. It is important to point out in this connexion that there are two duties which the shipowner is always presumed to undertake, and which are assumed to be unaffected and unqualified by the exceptions, unless a contrary intention is very clearly expressed by the terms of the contract. In the first place, he undertakes absolutely that the ship in which the goods are shipped is fit at the commencement of the voyage for the service to be performed. If during the voyage loss arises even from dangers of the seas or other excepted peril which would not have occurred if the vessel had been seaworthy and fit for the voyage at its commencement, the shipowner is not protected by the exceptions, and is liable for the loss. In the second place, there is an implied undertaking by the shipowner that all reasonable care will be taken by himself, his servants and agents, safely to carry and deliver at their destination the goods received by him for carriage. Should loss or damage occur during the voyage, though the direct cause of such loss or damage be perils of the seas or other excepted peril, still the shipowner cannot claim exemption under the exceptions, if the shipper can prove that the loss or damage
