Brittan v. Barnaby,
Annotate this Case
62 U.S. 527 (1858)
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U.S. Supreme Court
Brittan v. Barnaby, 62 U.S. 21 How. 527 527 (1858)
Brittan v. Barnaby
62 U.S. (21 How.) 527
The freight upon a shipment of goods is payable, according to general rules, when the merchandise is in readiness to be delivered to the person having a right to receive it, and when the consignee has had the opportunity to examine
the goods, to see if the obligations of the bill of lading have been fulfilled by the shipowner.
Where the consignee of a ship gave notice to the consignee of the goods, requiring payment of the freight of the goods as they should be landed from the ship on the wharf, and the consignee of the goods offered to pay the freight of such of the merchandise as had been landed, the latter did all that he was bound to do under the notice, although not bound to do so by the commercial law, and the refusal of the consignee of the ship to receive such pro rata freight was unjustifiable.
When the shipmaster has a larger shipment under one bill of lading than can be landed in the business hours of one day, he must take care not to land it in such quantities as to be unable to ascertain the pro rata freight. Unless he takes this care, the goods landed will be under his care and responsibility without additional expense to the consignee of them until they shall be ready for delivery.
Where the entire freight was demanded when only a part of the goods was ready to be delivered, and the entire freight was refused when the goods were all landed except upon the condition that the consignee of the goods would pay cartage and storage, this was contrary to the general law upon the subject.
This general law and the nature of freight examined and explained.
Neither party can require from the other that the merchandise shipped under one bill of lading shall be put up into parcels for delivery or for the payment of freight. If the shipment is large, or cannot be landed in a day, the master has a right to ask for security or arrangement for the pro rata freight. But he cannot demand the payment of the freight of the entire shipment before the consignee has an opportunity to examine the goods.
The ship is not bound to land an entire shipment in a day, and when landed on different days, if the shipper disregards the notice that such will be the case, and shall not be present to receive the goods, and has made no arrangement for the freight, then they may be stored in the shipowner's name, to preserve his lien upon them for freight, for safekeeping, at the consignee's expense and risk.
A stamp upon the back of the bill of lading stating, amongst other things, "that the entire freight was payable prior to delivery, if required," which was put there by the ship's owner, but which there was no evidence was recognized by the shipper as part of his contract, cannot vary the obligations of the contract so as to authorize a demand for freight before the goods were ready for delivery.
The general rule is that the delivery of the goods at the place of destination, according to the bill of lading, is necessary to entitle the ship to freight. The conveyance and delivery is a condition precedent, and must be fulfilled.
This general rule may be varied by stipulations, but they must be in writing, and be signed by the parties, before they can control the operation of the law merchant.
It is not enough to establish that this was the mode of doing business by the shipowner, nor that a practice prevailed in conformity with it at the port to which the goods were carried and delivered to a consignee.
Such a stamp is not equivalent to a memorandum upon a policy of insurance, which is always on the face or the margin of the policy. The rules with respect to policies of insurance explained.
The practice at San Francisco cannot be received as a custom, and therefore obligatory. Moreover, the practice is not established by evidence.
This was a libel filed by Brittan under the circumstances stated in the opinion of the Court. The district court dismissed the libel, and the circuit court affirmed the decree.