Rosenfeld Hillas and Company Pty Ltd v Ship Fort Laramie [1923] HCA 7

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ceeds to state the terms on which they have been received, and as to this part it is a contract (see sec. 71 of the Goods Act 1915 (Vict.) And in any action for non-delivery it was always open to the ship. owner to prove, if he could, that in fact the goods were not shippe notwithstanding the statement in the bill of lading that they were This prima facie but rebuttable evidentiary character of the receip statements in the bill of lading continues to the present day except where expressly altered by statute. Grant v. Norway (1) is not to be questioned where it is the master who signs the bill of lading. To see how far that extends to the case of a managing owner, the groundwork of the decision must be looked at. The legal founda- tion for the statement being rebuttable where the master signs is in the nature of general agency so far as it rests on implication (see Grant v. Norway (2)). Every general agent to conduct a given business, is, in the absence of greater express power, bound to con duct it for his principals in the usual manner (Wiltshire v. Sims (3) )_ This doctrine is specifically applied to a managing owner in The Huntsman (4). This is not meant to determine that the powers of a managing owner as such do not extend beyond those of a mastel as such; but in relation to the execution and legal effect of a bill of lading there is no reason why the implied authority of a managii owner to bind the owners by an inaccurate statement as to the receipt of goods shipped should be greater than that of the master. Consequently, unless a bill of lading holder can prove an actua authority from the owners greater than the apparent authority implied from the position in which he finds the managing ownet for instance, an actual authority to issue a conclusive receipt - he cannot assert an authority larger than that of conducting the busi- ness in the usual manner. And, as the usual manner is to give a receipt for goods shipped only after they are in fact shipped it follows that, unless goods have been in fact shipped, any receipt for them has been given beyond the scope of the mana;

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otherwise estopped. are not bound unless sufficient actual authority is proved. The final test of the liability of the co-owners is not whether the goods have been put on board : that is only an instance of whether the final test is or is not satisfied. The final test is whether the bill of lading has been given within the scope of the managing owner's implied authority, that is, in the usual course of business. The position is very clearly stated in Cox v. Bruce (1) by Lord Esher M.R., where he refers to and explains the principle of Grant v. Norway (2). A general agent may qualify the receipt in such a way as to deprive it of the character of a clean bill of lading and to prevent it from being even prima facie evidence against the shipowner. In one respect that has happened here, as will presently be shown. Apart from that for the moment, it should be observed that, though the non-conclusive character at common law of the receipt in a bill of lading given within the scope of general authority has been preserved, leaving open to the shipowner an avenue of escape if he can show that in fact the goods were not shipped, the exigencies of mercantile business and the necessity of protecting innocent indorsees for value acting on the faith of a clean bill of lading have led to the establishment of a very strict rule of evidence to which the shipowner must conform. He has the responsibility of morally convincing the tribunal of the fact that notwithstanding his unqualified written statement an error has been made and that the goods were not shipped. A Court in such a case refuses to act on a mere balance of probabilities; the evidence of exoneration must be clear and distinct and convincing ; it must exclude beyond reasonable doubt the possibility of the goods having been shipped. The common law compels the indorsee of a bill of lading to take the risk of a possible error, but places on the person who by himself or his agent is, to some extent at least, responsible for the error, the heavy burden of demonstrating it. Thus the strict law and the practical demands of mercantile justice are adjusted.

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of each case as it arises. The guiding principles have been clearly and authoritatively laid down by the House of Lords in Smith & Co. v. Bedowin Steam Navigation Co. (1), and recently reaffirmed by that tribunal in Hain v. Herdman (19th May 1922). The statutory provision relied on - which in this instance is the Victorian Good Act 1915, sec. 72, made applicable by sec. 79 of the Judiciary Ac as a rule of evidence - does not on the present facts affect the owners other than Scammell himself (Thorman v. Burt, Boulton & Co. (2) ). It is unnecessary, in view of the final attitude of the respondent, to say how far that enactment would attach liability in this to Scammell. Now, the bills of lading here are "clean" bills of lading, with one exception. They are clean bills of lading as to the number of the pieces of timbers shipped of the designated character but they are not clean bills of lading as to the foot measurements of those pieces. The shipowners are protected as to measurements b the words "said to contain" so many feet. (See that phrase referred to in Parsons' Maritime Law, vol. 1., p. 143.) A distinct unqua statement as to quantity was therefore not made ; and consequently even calling in aid as against all the owners the provisions of th statute - the Goods Act 1915 (Vict.), sec. 72 - it would not avail as to the measurements : a gap thus arises which it requires affirmativ evidence to fill before the appellant can succeed. This is so becaus in face of the qualification the bills of lading are not even prim facie evidence of the measurements (Jessel v. Bath (3), Hoga h Shipping Co. v. Blyth, Greene, Jourdain & Co. (4) and Craig Line Steamship Co. v. North British Storage and Transit Co. (5) ). Leaving aside for the moment the question of foot measurements, it is important, when the Court is considering whether it ought to be convinced of the non-shipment of the goods, to observe that th attitude of the respondent has been to insist that the goods claime for were duly shipped, and until the trial the real contention of th shipowners was that the goods had probably been jettisoned in co1 sequence of perils of the sea, which under the terms of the bill 0 (1) (1896) A.C., 70. (4) (1917) 2 K.B., 534.

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lading would have exonerated the respondent. Their particulars of defence were really inconsistent as to this. On the commission to San Francisco, the owners adduced a chain of evidence, some of it questionable in point of admissibility as against the appel- lant, had objection been taken to it, seeking to establish that, from the Lumber Co.'s despatch from San Francisco, the timber in question was duly dealt with, finally finding itself either on the deck or in the hold of the Fort Laramie. True, much of the evidence was based on the customary trust reposed on original tallies, but still it indicated the full belief at the time of testifying, just a year afterwards, on the part of all persons concerned that the timber had been actually shipped. The appellant might well on that commis- sion rest satisfied with the unquestioning assurance by the owners' witnesses that the goods were shipped on board the Fort Laramie and abstain from seeking more definite direct evidence if even that were procurable. Part of the owners' evidence - namely, the Adams certificate and synopsis relating to timber put on board - estab- lished by actual figures the number of pieces and their foot measure- ments that were brought down in the Mayfair and the Charles Nelson and believed by all persons engaged in the transportation to have been transhipped to the Fort Laramie. Comparison of these figures with the manifest indicates no reason to doubt the accuracy of the bills of lading when it is remembered that the manifest in- cludes timber, white pine or yellow pine and some consignment timber for which no bills of lading or certificates are put in evidence. On the other hand, the synopsis sheet part of exhibit No. 11 strongly supports one bill of lading, and the certificates and tallies in exhibit No. 9 support the other bill of lading, as well in measurements as in number of pieces. Notwithstanding these potent figures, all adduced by the respondent itself, Mr. Pigott made a valiant effort to show that

Rosenfeld Hillas and Company Pty Ltd v Ship Fort Laramie [1923] HCA 7 - HCA 1923 case summary — Zoe

At a glance

Court

Decision date

Before

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Judgment (94 paragraphs)