Companhia De Navegacao Lloyd Brasileiro v. David G. Evans Coffee Co.

SIBLEY, Circuit Judge

(concurring).

As to the last paragraph of the opinion I agree with the result reached but not with the ground of decision. Leduc v. Ward, 20 Q. B. Div. 475, was exactly like this case, in that the goods were delivered to the ship in ful-. Ailment of contracts for their sale by the shipper to the consignee, the shipper taking out bills of lading to the order of the consignee and attaching them to drafts on which he collected the purchase money. As against the consignee who paid the drafts on the faith of the bills of lading, it was held that the ship could not prove that the shipper knew of, and impliedly consented to, a deviation from the usual route which the language of the bills of lading imported. The ease is good authority for holding that innocent purchasers of order bills intended to be negotiated may rely on their terms. A carrier is often estopped to dispute the terms of such bills as against an innocent transferee when he might have done so as against the shipper himself. Thomas v. A. C. L. R. Co., 85 S. C. 537, 64 S. E. 220, 67 S. E. 908, 21 Ann. Cas. 223, 34 L. R. A. (N. S.) 1177 and Note; Louisville & N. R. R. Co. v. Pferdmenges, Preyer & Co., *798 Ga. App. 81, 68 S. E. 617; The Lady Franklin, 8 Wall. 325, 19 L. Ed. 455. All save one of the consignees here involved were purchasers without proven notice of the bills of lading through local banks who honored the attached drafts because of credit arrangements made by the consignee. They come within the ruling in Leduc v. Ward.

One consignee was also shipper through a Brazilian agent whose knowledge at the time of shipment would affect his principal. This agent has in writing admitted to the shipowner that he knew that the ship was bound for New Orleans by Vera Cruz. But the admission was made a year after the event and after the insurers of the cargo had settled with this consignee and had become subrogated to his rights against the shipowner. The ag’ent not appearing to have authority to adjust for the consignee, he could not bind bis principal by ex post facto admissions. La Abra Silver Mining Co. v. United States, 175 U. S. at pages 498, 499, 20 S. Ct. 168, 44 L. Ed. 223; American Insurance Union v. Lowry (C. C. A.) 62 F.(2d) 209. Much less could he bind the insurers whose agent he bad never been. Fo other proof of knowledge by this consignee of the ship’s voyage appears. There is therefore no occasion to decide what would be the effect of knowledge if a consignee who had such knowledge was before us. These bills define the voyage of the Pelotas only by the words: “Destined to sail for New Orleans.” I incline to think that it would be no violation of the parol evidence rule to prove the extrinsic facts that at the time the bills were issued she was already bound by her sailing orders, by her clearance and health papers, by advertising in the local newspapers, and by actual reception of freight and passengers for La Guaira and Vera Cruz to call at those ports on her way to New Orleans, and that the shipper knew it. If this were the truth, it would be absurd for the law to imply from the silence of the bills as to the route that the parties intended the usual direct passage; that they were making a contract which both knew wouid be at once broken. Thus silence as to the rate of freight is usually supplied by a legal implication for a reasonable charge which cannot be overridden by parol proof of an agreed'rate, Louisville, Evansville & St. Louis E. Co. v. Wilson, 119 Ind. 352, 21 N. E. 341, 4 L. E. A. 244, but legal implications as to freight may be overridden by proof of the fact that a particular charge was indeed pai'd, Wayland’s Adm’r v. Mosely, 5 Ala. 430, 39 Am. Dec. 335. It may be shown by parol that an insurer and insured both knew the house mentioned in the policy to be in course of construction in order to prevent application of the vacancy clause. Harris v. North American Insurance Co., 190 Mass. 361, 77 N. E. 493, 4 L. E. A. (N. S.) 1137. In the cases of The Delaware, 14 Wall. 579, 20 L. Ed. 779, and The Sarnia (C. C. A.) 278 F. 450, where a clean bill of lading was held to imply stowage underdeek, I apprehend the result might have been different if the specified vessel had been a barge without decks and so well-known to both parties. The case of Sproat v. Donnell, 26 Me. 187, 45 Am. Dec. 103, has been misunderstood in the opinion, for the court there denied that the bill of lading was breached by abovedeck stowage partly on the ground of usage, but adding: “More especially such Would be the case where as in this case the shipper repeatedly saw his cargo stowed on deck and intimated no objection on that account.” That knowledge by the shipper at the time of shipment that the vessel was bound on a voyage other than the usual one to the destination of the goods shipped would prevent a claim of deviation is recognized in Thatcher v. McCulloh, Fed. Cas. No. 13862; The Frederick Luckenbach (D. C.) 15 F.(2d) 241; Grace & Co. v. Toyo Kisen (C. C. A.) 12 F.(2d) 519, and General Hide & Skin Corporation v. United States (D. C.) 24 F.(2d) 736. I am not prepared to hold that shippers who wrote their own bills of lading as these did, if they had full knowledge at the time that the ship was bound to go by Vera Cruz, would not be estopped to claim deviation.