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“Q. You say the captain of that ship did Corporation concerning the signature of bills not write you any letter, stating that you of lading. should sign bills of lading for him. Is that The assistant traffic manager of the Fulcorrect? A. He did not write me a letter to ton Steamship Corporation testified as folthat effect.

lows: "Q. And he did not verbally request you “Q. What took place on that day (May to sign any bills of lading for him? A. He 5th) with reference to the bills of lading for said it would be all right for me.

the cargo? A. I gave Capt. Jaeger all the “Q. Well, did he ask you to sign them? bills of lading, and Capt. Jaeger turned them A. No; he said it would be all right if I over to the captain (master of the ship) for signed them.

signature. "Q. You showed him some that had al

"Q. Were you there when Capt. Jaeger ready been signed ? A. Yes; and I told him

gave the bills of lading to the captain that that I might sign more.

he was to sign? A. I saw him turning them “Q. When was that? A. That was on the over to him; yes. first or second time he came in, and he said,

“Q. Did the captain sign them? A. Yes; 'It is all right. He waved his hand. He

the captain signed them. said, 'It is all right;' to go ahead and do what

"Q. Did you say anything to the captain we were doing, and what we had planned to

about signing some bills of lading before he do. In other words, he submitted a verbal

arrived ? A. I told him that we had had to approval on the whole thing, without any in

in some cases before he got in, being he was dication of disapproval.

late getting in to New York. “Q. Did he ask you to attend to the sig

"Q. What did he say to that? A. He natures of the bills of lading in his absence

said that was perfectly all right that we did A. No; the question of his absence was not

that. brought up definitely.

“Q. Before the ship was completely load“Q. You don't recollect how many you ed, did you show the captain the bills of ladsigned after that? A. No; but very few. I ing signed? A. He sat down with me, and I will say that.

went over the bills of lading that we had, “Q. Why didn't you sign them all? A.

and showed him all the bills of lading that I preferred to have the captain sign them.

we had signed and that he had signed. "Q. You said he said it would be all right for you to do it? A. Yes; and for that rea

“Q. Did he ask you anything at that time son we signed a few; three or four more.”

as to whether the goods were on the ship or And afterwards, on redirect examination, not? A. He asked me if they were on the he testified as follows:

ship, and I said they were either on the ship Q. Do you remember when your compa- or on the dock, loading into the steamer. ny obtained a letter from the master of the

“Q. Was there any discussion at all about ship authorizing the signing by your compa- any bills of lading that had been signed by ny of certain bills of lading (handing wit- you? A. No; there was none. I showed him ness paper)? A. Yes; this letter was ob- everything that I had signed, and he said tained from the master.

everything was all right. He didn't make “Q. Was that at the request of a particu

any objection to any of it. lar shipper A. Yes, sir."

“Q. Did he or not make any objection to The letter was received in evidence and is taking any of the cargo on the vessel for found in the margin. This letter was the which you showed him bills of lading? A. only one the witness could remember the At no time. master had given to the Fulton Steamship

“Q. Did he make any objection at any 1 "This is to certify that I, Cretin Perny,

time to your signing any of the bills of ladmaster of the vessel Čapitaine Faure, author: ing that you signed? A. No; everything was ized the Fulton Steamship Corporation, by J. perfectly all right that I signed. H. Everson, to sign for and in my behalf, as “Q. Did you issue any dock receipts, unagent of the owners and charterers of the

less the goods had been received ? A. No, steamship Capitaine Faure, bill of lading No. 22, covering shipment of 1,120 bags of Ammo- sir; not unless we had the goods on the pier. Phos shipped by American Cyanamid Company “Q. The bills of lading that were signed from New York to Kobe, Japan, to be delivered bore dates with reference to the receipt of the unto order of Omi Bank, notify Ando Gomei goods? A. Those are the dates that I had Kaisha, dated April 27, 1923. "P. Cretin Perny,

the bills of lading, or that they were dated, "Master, as Agent for Owners and Charterers.” after we had received the freight on the pier.

10 F.(20) 950 “Q. You did sign several bills of lading bank credits generally ran for a certain peafter the Capitaine Faure was in port ? A. riod? A. Yes. On several occasions we had to, on account "Q. And that bills of lading are supposed of the fact that the shippers wanted to get to be presented against them within that certheir bills of lading in to the bank before the tain period ? A. Yes. bank closed.

“Q. That is to say, the buyer of the goods "Q. Do you remember whether you said in Japan will establish a credit with a bank anything about that to the master? A. Yes; here? A. Yes. I showed the master what we had done, and "Q. By means of which the seller of the that was perfectly all right. I told him we goods here will be paid for the goods if he couldn't wait till he came in.

turns in to the bank here before the expira"Q. You did sign all the bills of lading tion of the credit the proper documents, the in the same way! A. Yes.

invoice and the insurance policy and the bills “Q. You signed them all as agents for the of lading? A. Yes. master? A. As agents for the master. "Q. That is a correct statement of the sit

uation? A. Yes. Q. Before the captain signed the bills "Q. And when you secured for these variof lading as he came into your office from ous shippers ‘on board' bills of lading, you day to day, what about the dock sheets? Did did it in order to enable them to comply with you ever show them to him? A. I always their credit arrangements ? A. That is showed him the dock sheet before I gave him right.” the bills of lading, showing that the marks On redirect he testified: and the numbers on the bills of lading “Q. With reference to these 'on board' agreed.”

bills of lading, were all of those signed by the It appears that the Steamship Corpora- master? A. All ‘on board' bills of lading tion had issued certain bills of lading stamp- were signed by the master. ed, “On Board, Fulton Steamship Corpora- “Q. Do you recall whether any of these tion, Agents for Master," and which were bills of lading had been issued before, and afterwards signed by the master. The assist- that the shippers brought them back to be ant traffic manager testified that he had him- stamped 'on board ?' After they were on the self affixed the "On Board, Fulton Steamship ship? A. There may have been several that Corporation, Agents for the Master," and were taken back by the shippers, when the

, that on most of those so stamped he had him- bank would not accept them unless they were self stamped them, and that some of them on board' bills of lading, to meet the rewere so stamped in April. The ship did not quirements of the credit. arrive in New York until May 4th. He was "Q. That is chiefly done when a shipper asked why he had so stamped them and re- gets a bill of lading 'received for shipment; plied, “Because the shippers required it.” to come back and ask him to stamp it ‘on He testified as follows:

board,' when it is actually on the ship? A. “Q. Did they tell you they wanted 'on Yes. board' bills of lading by a certain date in any “Q. So far as you know, is there any

A. In some instances they required way of your telling whether the shipper's it; yes, sir.

credits required ‘received for shipment' bills “Q. By a certain date? A. On a certain of lading as of a certain month, or whether date; yes, sir.

it required an 'on board' bill of lading as of “Q. Did they tell you why they required a certain month?

? A. The banks had the it? A. To meet the credit in the bank. credits, and I never saw them.

“Q. Do you mean that, unless they got a "Q. Even though a 'received for shipbill of lading showing that the goods were ment' bill of lading is issued for a certain on board as of a certain date, they could not month, have you had experience of a shipcomply with the requirements of the bank per coming back afterwards and requiring an credits ? A. Well, I don't know whether the indorsement that the cargo was on board ? bank credits required 'on board' bills of lad- A. Yes; I have had that on several occasions. ing, but they requested them.

When the banks would not accept the papers “Q. They told you that that was the pur- as they were, they had to get them fixed up pose for which they wanted them ? A. To to meet the requirements of the credit. present them to the bank; yes.

"Q. You know, as a matter of fact, don't "Q. Was there any bill of lading markyou, from your business experience, that ed ‘on board' without the cargo being actual

case ?

ly on board ? A. No, sir; nothing was swer any question that might tend to instamped 'on board' unless the cargo was on criminate or degrade you; any question that board.

might tend to convict you of a crime you may "By the Court: Q. Who made the in- refuse to answer on that ground. dorsements? You? 4. The captain signs “The Witness: I don't want to answer his name and makes all indorsements on 'on that; I didn't know anything about it. board' bills of lading.

“The Court: On the ground that it might “Q. But did he put the stamp'on board' tend to incriminate and degrade you ! on? A. No; we did that in our office.

“The Witness: Yes. “Q. How did you know whether it was on "Mr. Hupper: I do not wish to pursue board or not? A. We checked it up with the that. It may well be that he did not know pier before we did it. We called them on the first thing about it." the phone. •

[6] The general rule, under the decisions in “Q. Is it not also the custom to put on the federal courts, is that the master of a ship the date when the notation 'on board' is put has no power to bind the owners of the ship on? Here is your bill of lading, dated April by a false bill of lading. Schooner Freeman 30. If the goods are not put on board until v. Buckingham, 18 How. 182, 15 L. Ed. 341; May 5th, isn't it the custom to put right on Bulkley v. Cotton Co., 24 How. 386, 16 L. 'on board,' May 5, 19229 A. I didn't put Ed. 599; Pollard v. Vinton, 105 U. S. 7, 26 any date on 'on board' because the captain L. Ed. 998; Missouri, etc., Co. v. McFadden, had knowledge of it, and he agreed that it 154 U. S. 155, 14 S. Ct. 990, 38 L. Ed. 944. was all right.

But it has been held in a number of the state "Q. Isn't it the custom, whenever you courts that common carriers are estopped make the notation ‘on board,' to note also the from denying their liability upon a false bill date of their going on board ? A. I put the of lading given by the master or agent. Ar'on board' stamp for all cases, and I never mour v. Michigan Central Railroad Co., 65 put the dates alongside of the 'on board' N. Y. 111, 22 Am. Rep. 603; Bank of Batastamp."

via v. New York, Lake Erie & Western R. [5] As we understand this testimony, it ap- Co., 106 N. Y. 195, 12 N. E. 433, 60 Am. pears that bills of lading which showed "re- Rep. 440; Brooke v. R. Co., 108 Pa. 529, 1 ceived for shipment,” and which were dated A. 206, 56 Am. Rep. 235; Wichita Savings prior to the arrival of the ship, were in some Bank v. Atchison, etc., Co., 20 Kan. 519; cases brought back and stamped "on board,” Sioux City, etc., Co. v. First National Bank, but were never so stamped until the goods 10 Neb. 556, 7 N. W. 311, 35 Am. Rep. 488. were actually on board; but the date when so

As to these bills which stated that the stamped "on board” was not indicated, and goods were on board in April, notwithstandthe only date which appeared was the date ing the fact that the ship did not arrive in on which the bill of lading was originally New York until May, the District Judge held issued.

that they did not bind the ship. He said: These bills were unlawfully issued. The As to the bills of lading containing the witness was asked if he knew he was doing indorsement 'on board,' even if signed by the wrong in issuing such a bill of lading: master, if in any case the goods were not

“Q. Will you answer the question? Did actually on board at the date of the bill of you or did you not know that you were do- lading, the same were signed in violation of ing wrong in procuring the signature of an law, and the master was without authority antedated bill of lading, representing that to bind the ship by such illegal action, exthe goods were on board before they were ac- cept in so far as she might be liable to the tually on board ? A. No; I have done that penalty provided for the violation of that in other cases; I did not know, because I law. have done it in other cases.

The Act of August 29, 1916, otherwise "Q. Do you know that there is a section known as the Pomerene Act (Comp. St. $$ in the United States law known as section 41 8604aaa-8604w), makes it unlawful to issue of the Pomerene Act concerning bills of lad- or procure the issue of a bill of lading which ing, which is the 39th Federal Statutes, page contains a false statement as to the receipt 544, which makes it a misdemeanor punish- of the goods. This provision of the statute able by fine or imprisonment, or both, for may be found in the margin. making a false statement in a bill of lading

2 "Sec. 41. That any person who, knowingly with regard to the receipt of the goods?

or with intent to defraud, falsely makes, alters, “The Court: You are not bound to an- forges, counterfeits, prints or photographs any

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10 F.(20) 950 The English Bills of Lading Act, 1855, have been placed on board, when they have 18 and 19 Vict. c. 111, contains an interest- not, and they are later loaded on the ship ing provision on this subject. It may be with the full knowledge and assent of the found in the margin.3 Under that statute it master, and are then actually transported to has been held that the owners not signing are China or Japan, or to whatever may be the not bound by it. Jessel v. Bath (1867) L. R. place of their destination, we do not doubt 2 Exch. 267. And it may be assumed that the ship’s lien on the goods. We no more for a like reason the ship would not be bound. doubt the correlative lien of the shipper on [7,8] We are not now concerned to inquire the ship. whether any one had intent to defraud by The District Judge, in arriving at a difissuing any of the bills of lading which were ferent conclusion, supports it by a decision antedated. It is most probable that they made in the Southern District of New York had no such intent. The vessel had been in 1902 in The Isola Di Procida, 124 F. 942. long delayed in arriving at New York, and That was a suit in rem to recover damages the parties found themselves very much em

for the issuance of a false bill of lading, and barrassed by the delay. It was the intention, the District Judge dismissed the libel, with of all the parties to put the goods on board costs. The bill of lading was dated at Giras soon as the ship arrived, and they were ac

genti, Sicily, on September 30, 1901, and it tually loaded on board when the ship reached acknowledged the receipt upon the steamship New York. Nevertheless the bills of lading of 800 tons of brimstone. No brimstone had which were issued in April, and stated that been received on the ship on that date—the the goods were then on board, were false. vessel being at that time at Marseilles. She But we do not think that the Pomerene Act, did not arrive at Girgenti until October 12th which was enacted to prevent fraud, should when she took the 800 tons of brimstone on be given a construction which would itself board. The ship arrived in New York on work fraud between shipper and shipowner. November 19, 1901. Between the time when If a bill is antedated, and states that goods the brimstone would have arrived in New

York, if it had been shipped in September, bill of lading purporting to represent goods re

and the time it actually arrived, there was a ceived for shipment among the several states fall in the price of brimstone, and the libelor with foreign nations, or with like intent ut. ters or publishes as true and genuine any such

ant sued to recover the damage caused by falsely altered, forged, counterfeited, falsely such fall in price. The court thought the printed or photographed bill of lading, knowing bill of lading did not bind the ship "so far as it to be falsely altered, forged, counterfeited, the incorrect date is concerned.” The court falsely printed or photographed, or aids in mak- in that case cited a number of decisions found ing, altering, forging, counterfeiting, printing or photographing, or uttering or publishing the in the margin. Those cases assert the genersame, or issues or aids in issuing or procuring al rule that the master of a vessel has no the issue of, or negotiates or transfers for value. power to bind the owners of the ship by a a bill which contains a false statement as to the false bill of lading. Those cases lay down receipt of the goods, or as to any other matter, or who, with intent to defraud, violates, or

what is undoubted law—that if a master fails to comply with, or aids in any violation of, signs a bill of lading which is false, and the or failure to comply with any provision of this goods, at no time have been received on Act, shall be guilty of a misdemeanor, and, upon conviction, shall be punished for each of board, the ship is not bound. The bill of ladfense by imprisonment not exceeding five years, ing is void in such cases, even in the hands of or by a fine not exceeding $5,000, or both." a bona fide holder for value. In no one of the Comp. St. 8 8604u.

cases cited were the goods delivered to the 3 "Every bill of lading in the hands of a con- carrier. They do not support, even with the signee or indorsee for valuable consideration, authority of dicta, the proposition for which representing goods to have been shipped on board a vessel, shall be conclusive evidence of they were cited. And in Robinson v. Memsuch shipment as against the master or other phis, etc., R. Co. (C. C.) 16 F. 57, 60, the person signing the same, notwithstanding that court said: such goods, or some part thereof, may not have been so shipped, unless such holder of the 4 "Schooner Freeman V. Buckingham, 18 bill of lading shall have had actual notice, at How. 182, 15 L. Ed. 341; Bulkley v. Cotton the time of receiving the same, that the goods Co., 24 How. 386, 16 L. Ed. 599; Pollard v. had not been in fact laden on board; Provided Vinton, 105 U. S. 7, 26 L. Ed. 998; The Loon, that the master or other person so signing may 7 Blatchf. 244, Fed. Cas. No. 8499; Robinson exonerate himself in respect of such misrepre- v. Memphis, etc.. Co. (C. C.) 9 F. 129; Id. sentation by showing that it was caused with- (C. C.) 16 F. 57; American Sugar Refining out any default on his part, and wholly by the Co. v. Maddock, 93 F. 980. 36 C. C. A. 42; fraud of the shipper or of the holder, or some Missouri, etc., Co. v. McFadden, 154 U. S. 155, person under whom the holder claims."

14 S. Ct. 990, 38 L, Ed. 944."

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"Because the carrier is not bound by a the issue of a bill of lading therefor and its bill of lading issued by an agent, unless the delivery to the ship, which will prevail over goods are on hand and delivered for ship- the master's bill, but, in the absence of any ment, it does not follow that the principal is such intervening right, a bill of lading does not bound by the bill of lading if the goods cover goods subsequently delivered and rebe in fact subsequently delivered to be trans- ceived to fill it, and will represent the ownported according to the terms of the contract. ership of the goods. The cotton delivered There is no element of illegality or any such on the 8th of April on the pier for the Colvice in the contract that it is void or incapa- son, and received by the mates of the brig, ble of confirmation by acts of the parties became, therefore, at the instant of its detaken for that purpose; and the old bill of livery, the property of Porter & Co., who lading is as good as a new one issued on de- were then the indorsees of the bills of lading. livery of the goods if the parties choose to Its subsequent removal by Forbes to the Lamake it so."

dona, either with or without the consent of In The Idaho, 93 U. S. 575, 23 L. Ed. 978, the brig's officers, could not divert that owndecided in 1876, a bill of lading was signed ership. before the goods were delivered to the ship. “There is nothing in the statutes of LouiLater they were delivered to the ship and siana which requires a different conclusion. placed on board. The bill of lading was sign- Those statutes prohibit the issue of bills of ed by the lawful master of the ship. The lading before the receipt of the goods, but goods were shipped from New Orleans to they do not forbid curing an illegal bill by Liverpool, England. A statute of Louisiana supplying goods, the receipt of which has prohibited the issue of bills of lading before been previously acknowledged. The statutes the receipt of the goods. A banking house are designed to prevent fraud. They are not in New Orleans in due course of business ad- to be construed in aid of fraud, as they would vanced a large sum of money upon this bill. be if held to make a delivery of goods to fill In an opinion written by Mr. Justice Strong, a fraudulent bill of lading inoperative for the for a unanimous court, it was said at pages purpose." 582, 583:

In the case at bar we must hold that the "It is not only the utterance of common court below was in error in holding that the honesty, but the declaration of judicial tribu- antedated bills of lading did not, under the nals, that a delivery of goods to a ship cor- circumstances herein disclosed, bind the ship. responding in substance with a bill of lading [9] The owners of a trading ship rarely navgiven previously, if intended and received igate the ship themselves, but almost always to meet the bill of lading, makes the bill op- intrust it to a master, and when they do so erative from the time of such delivery. At they are bound to the performance of every that instant it becomes evidence of the owner- lawful contract made by him relative to the ship of the goods. Thus, in Rowley v. Bige- usual employment of the ship. Maclachlan's low, 12 Pick. (Mass.] 307 [23 Am. Dec. 607], Law of Merchant Shipping (5th Ed.) 141. it is said, a bill of lading operates by way of The master is the person to sign the bills of estoppel against the master, and also against lading. He is the agent of the owners of the the shipper and indorser. 'The bill acknowl- ship for that purpose; and contracts of afedges the goods to be on board before the bill freightment entered into with the master in of lading is signed. But if, through inad- good faith and within the scope of his apvertence or otherwise, the bill of lading is parent authority, as master, bind the vessel signed before the goods are on board, upon to the merchandise for the performance of the faith and assurance that they are at hand, such contracts, wholly irrespective of the as if they are received on the wharf ready to ownership of the vessel, and whether the be shipped, or in the shipper's own ware- master be the agent of the general or special house, and afterwards they are

Schooner Freeman v. Buckingham, placed on board, as and for the goods em- 18 How. 182, 189, 15 L. Ed. 341. He is the braced in the bill of lading, as against the agent of the ship, and ordinarily binds it by shipper and master the bill will operate on the contracts he makes. In The Roanoke, those goods by way of relation and estoppel.' 189 U. S. 185, 195, 23 S. Ct. 491, 493 (47 L.

"Such is also the doctrine asserted in Hal- Ed. 770), Mr. Justice Brown, writing for liday v. Hamilton, 11 Wall. 565 [20 L. Ed. the court, said: 214), and it is in harmony with the general "The master is the agent of the vessel and rules that regulate the transfer of personal its owner in more than the ordinary sense. property. We do not say that a title to per- During the voyage he is in fact the alter ego sonal property may not be created between of his principal. He is entrusted with an un

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owner.

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