Page 35 - Insurance Times May 2024

reached them is from the sweat of the holds, but the libelant To allow the ship to escape liability under such circumstances
lays little stress upon this. That the holds did sweat is true would be intolerable. Nothing could more clearly show the
enough, and some of the water may have fallen on the corrupt purpose of the parties than the indemnity
cargo but it is hard to see why, if this was the cause, the agreement itself. There are two reasons, however, which
Muscat dates should all have come off uninjured, while the prevent any recovery in this case upon that theory.
Bussorah dates which came aboard discoloured and after 1. The first is that the libel must be amended to set up a
exposure to foul weather should be injured. Certainty is new cause of action, which it is perhaps too late now
perhaps not possible, but the likelihood is very strong that to do.
the damage did not happen from sweat.
2. The second is that this is an admiralty court only and
would have no jurisdiction over such a case if the libels
Therefore find that the damage occurred through the were amended, because the bill of lading was issued at
wetting of the dates either by rain or by sea water before Bussorah, if that be the wrongful act, and negotiated
they came aboard and while upon the lighters. As the bill of in New York, if the wrongful act be its negotiation. One
lading contained an exception against liability for damage of these acts was a tort, but a tort on land, over which
from rain or spray or for risks of lighterage, it follows that admiralty has no jurisdiction. It is not necessary to
there is no liability under the contract of carriage.”
consider whether in any event admiralty would have
jurisdiction over a deceit committed on the high sea.
“To meet this difficulty, the libelant relies upon the ‘doctrine
of estoppel’ and insists that the words of tire bill of lading, On appeal, Judge Hand's decision was reversed by the Circuit
“in apparent good condition,” are not qualified by tire clause Court of Appeals. In the same case hearing in 1918, Judge
giving effect to the mate’s receipts. I shall accept their Ward, in his opinion for the Circuit Court of Appeals, followed
position for the purposes of tire case and consider it as the doctrine of estoppel laid down in the British cases above
though the bill of lading created a complete estoppel. What discussed, holding that in effect the shipowner had
is the ship estopped to assert? Certainly no more than that committed a fraud by issuing a false bill of lading, and,
the goods were in apparent good condition.
consequently, could not even avail itself of the notice of claim
clause, therein contained.
I cannot see that this should be extended so as to forbid their
showing that they were actually damaged by rain or spray
and that such damage was-excepted from tire bill of lading. Judge Ward said at page 388:
To give such a bill of lading is in my judgment a tort, for which “It is to be noted that in all the foregoing cases the
the libelant has a remedy; but I am now considering simply statement, though untrue, was the result of negligence, or
tire ship’s liability in contract, to be worked out through an misunderstanding, or mistake; whereas, there can be no
estoppel. It is no doubt unfortunate that, owing to our other explanation of the carrier's conduct in this case than
complicated jurisdiction, I cannot give a remedy upon that that it was willing to assist the shipper in misleading
tort; but I cannot, and the distinction is therefore vital. If the subsequent holders of the bill of lading, provided he agreed
libelant proceeds by estoppel, the limit of the estoppel' is that to hold it harmless for so doing. Although a bill of lading is
tire ship shall be held to the words used. Obviously, if the cases only a quasi-negotiable instrument, we are not impressed
had not been stained or discoloured; if the goods had in fact by the argument that, because the carrier could have set
been in apparent good condition, the ship could have proved up this defence against a shipper, it can set it up against
that they were wetted by the rain or by spray while in lighters the subsequent holder of the bill of lading, who was intended
and that the ship was excused under the exceptions of the to be misled, because he is the assignee of the shipper."
bill of lading. How can the estoppel put the ship in a worse
position than if the statements had been in fact true?” In any Thus, the libel was dismissed, without costs.
case there could be no recovery for so many of the cases as
were removed before notice. *I am thankful to Dr.S.Mukherjee, an Expert and
International Investigator for Maritime Fraud for his advice
“While therefore the libelant fails upon this proceeding, I
have no doubt that to utter such a bill of lading is a tort, Dr.Soumi Mukherjee completed her Graduation in Mass
since it is an utterly unjustifiable “fraud*. The excuse that a Media and Masters in Mass Media from University of
bill of lading is not negotiable has no merit whatever, nor Mumbai, later completed her Ph.d. She is interested in
have any of the authorities cited any bearing on a case where Investigative Journalism related with History, Geography,
a false statement is deliberately inserted to be acted upon Zoology etc. She is currently serving in Media Officer
by innocent third persons. with International Police Organization.

32 May 2024 The Insurance Times