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THE LADY FRANKLIN.

December 1, 1868

THE LADY FRANKLIN.


APPEAL from the Circuit Court for the Northern District of Illinois, in which court King & Co. had libelled the propeller Lady Franklin, for non-delivery of certain flour. The libel alleged, that the libellants, in the month of November, 1863, by their agent, Edward Sanderson, delivered at Milwaukee, to the steamer Lady Franklin, 340 barrels of flour, to be transported to Port Sarnia, on the St. Clair River, for which shipment they received a bill of lading, but that 290 barrels of the flour were never delivered. As a consequence, they claim a maritime lien on the vessel for the value of the flour. The answer denied that the flour in controversy was ever delivered to the master, or shipped on board of the steamer. The case was this: There was, in 1863, a line of steamers engaged in the lake service from Milwaukee to Port Sarnia, and running in connection with the Grand Trunk Railway. The Lady Franklin was one of them. But each boat had separate owners, and there was no joint undertaking that any one of the boats should be responsible for the breach of a contract or misconduct of another. This line of steamers had a particular warehouse in Milwaukee, at which they stopped, and which was used to receive and store freight for them; one Courtenay was the agent of this warehouse, and he also acted as agent for the boats in engaging and shipping freight. The cargo of flour in dispute, which was owned by the libellants, and of which they were the real shippers, was received by Courtenay for them, through Sanderson, their agent, with an agreement to ship it for them on one of this line of steamers; and, in point of fact, 50 barrels were shipped on the Antelope, one of the line, and received by the libellants. The remaining 290 barrels, for which the lien is claimed on the Franklin, were also shipped on the 7th of November by the Water Witch, another boat in the same line, and consigned to the libellants, but were not received by them, the boat having foundered at sea. Notwithstanding these shipments, a clerk in the warehouse, under Courtenay, in the absence of Courtenay, in ignorance that the flour had been previously shipped on the Antelope and Water Witch, but supposing it still in the warehouse for shipment, by mistake gave to Sanderson, the agent of the libellants, a bill of lading. Attaching the bill to a draft upon the libellants, for the value of the flour, Sanderson soon afterwards drew on them for this value, and they paid the draft. The flour never arriving, they libelled the Lady Franklin,

The opinion of the court was delivered by: Mr. Justice Davis delivered the opinion of the court.

Mr. Robert Rae, for the appellants: of the district, attaching this bill of lading to their libel.

The District Court dismissed the libel, and the Circuit Court having affirmed the decree, the case was now here for review.

Mr. Robert Raw, for the appellants:

1. The signing of the bills of lading by the authorized agent of the vessel, after delivery of the property into his possession and control, binds the vessel, and has the same force and effect as if signed by the master.*fn1

2. The owner of the vessel is estopped as against a consignee of the bill of lading, when either has taken it for a valuable consideration upon the faith of the acknowledgments which it contains, to deny the truth of the statements to which he has given credit, by the signature of his agent, so far as these statements relate to matters which are, or ought to be, within his knowledge.*fn2

In this case, the consignee advanced on the faith of the bill of lading.

3. Parol testimony cannot be received in courts of admiralty, any more than in courts of law, to contradict the terms of a bill of lading.*fn3 Nor can courts of admiralty exercise chancery powers to reform maritime contracts.*fn4
4. When a written contract is attacked on the grounds of containing some material mistake, the evidence of mistake must be very strong. Lord Hardwicke says,*fn5 that in such a case, he would require 'the strongest proof possible,' which words Lord Eldon observes, 'leave a weighty caution to future judges.'
And in Shelburne v. Inchiquin,*fn6 Lord Thurlow demanded 'strong irrefragable evidence.'

Mr. Goodwin, contra:

1. A maritime contract of affreightment, which shall bind the vessel to the merchandise, for the due performance of the contract, commences only with the delivery of the goods on board, or on a lighter or barge, belonging to and controlled by the boat, or into the custody of some officer of the boat, to be carried on board. No such delivery of the flour is shown in this case. It never was received on board the Lady Franklin, or into the custody of any officer or agent of the boat, to be carried on board. Courtenay was the warehouseman, and received the flour in store as such. He held it as such warehouseman, not as agent for any, or either, or all of the different boats running in that line, but like any forwarding merchant, pro hac vice, the agent of the shipper to forward the merchandise by some of the boats of that line. In fact, he had forwarded this flour by the Antelope and Water Witch.

2. It is now well settled, both in English and American law, that so far as the fact of the receipt of the goods, or the quantity received, is concerned, the bill of lading is in the nature of a receipt, not conclusive between the shipowner and shipper, but open to explanation and evidence of the real facts.*fn7 A false bill of lading, whether by mistake or fraud, is beyond the power of the master or other agent ...

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