Ordinarily parol evidence is not admissible in the absence of fraud or mistake to vary a bill of lading ; Inman & Co. v. R. Co.. 159 Fed. 960 ; De Sola v. I'omares, 119 Fed. 373 ; Tallassee Falls Mfg. Co. v. R. R., 117 Ala. 520, 23 South. 139, 67 Am. St. Rep. 179 ; Chouteaux v. Leech & Co., 18 Pa. 224, 57 Am. Dec. 602 ; Keller v. R. Co., 10 Pa. Super. Ct. 240; Gibbons v. Robinson, 63 Mich. 146, 29 N. W. 533 ; but it has been held competent to contradict a statement that the goods were received in apparent good order ; Foley v. R. Co.. 96 N. Y. Supp. 182 ; and, of course, in case of error or fraud ; Sonia Cotton-Oil Co. v. The Red River, 106 La. 42, 30 South. 303, 87 Am. St. Rep. 293 ; and it is said to make la prima facie case only and to be open to ex planation ; Planters' Fertilizer Mfg. Co. v. Elder, 101 Fed. 1001, 42 C. C. A. 130 ; or to correct an omission or ambiguity; Louis ville & N. R. Co. v. Duncan, 137 Ala. 446, 34 South. 988; either as to the route ; Louis ville & N. R. Co. v. Duncan, 137 Ala. 446, 34 South. 988; or the time of arrival ; Sloop v.
R. Co., 117 Mo. App. 204, 84 S. W. 111.
Where the conditions are on the face and in the body of the bill of lading, and the consignor receives it and ships the goods without complaint, he is presumed to have assented to these conditions, and they be come, if not inimical to law, a valid con tract. The shipper's signature is not essen tial ; Inman & Co. v. R. Co., 159 Fed. 960 ; Smith v. Express Co., 108 Mich. 572, 66 N. W. 479 ; Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Com. v. R. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053.
An exception in a bill of lading, limits the liability, not the duty; it is the duty of the owner by himself and his servants to do all he can to avoid the excepted perils ; Bowen, L. J., in [1891] 1 Q. B. 619 (C. A.).
An exception of losses caused by (inter alia) "pirates, robbers, or thieves of what ever kind, whether on board or not, by land or sea," did not apply to thefts committed by persons in the service of the ship ; [1891] 1 Q. B. 619 (C. A.).
Epreeptions in a bill Of lading are to be construed most strongly against the ship owner. As between the shipowner and the shipper, the bill of lading only can be con sidered as the contract; The Caledonia, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed. 614.
Under the Harter Act (q. v.) there is pro vided in section 2 a prohibition of the in sertion "in any bill of lading or shipping document" of any covenant or agreement re lieving the owner from the exercise of due diligence in equipping, etc., vessels. The Southwark, 191 U. S. 1, 24 Sup. Ct. 1, 48 L. Ed. 65. Under this act a stipulation limit ing the liability of a vessel owner to $100 was held invalid, not only under the Harter Act but under the decisions upon the sub ject generally ; Calderon v. S. S. Co., 170 U.
S. 272, 18 Sup. Ct. 588, 42 L. Ed. 1033. As to the construction of the Harter Act gener ally, see SHIP.
Though it is not necessary that the ship per should sign the bill of lading, yet if its terms restrict the carrier's common-law lia bility, his assent thereto must be shown.
This assent need not be express, it is suffi ciently indicated by an acceptance of the bill of la ding containing the restrictions; Port. B. of L. 157 ; Lawrence v. R. Co., 36 Conn. 63 ; Wertheimer v. R. Co., 1 Fed. 232; Mc Millan v. R. Co., 16 Mich. 79, 93 Am. Dec. 208 ; Boorman v. Exp. Co., 21 Wis. 152; Rob inson v. Transp. Co., 45 Ia. 476. Where the bill contains a limitation of the carrier's common law liability and is accepted by the shipper, there is a limitation of the liability which binds all the parties, although the shipper could not read, and did not know of the limitation in the bill ;. Jones v. R. Co., 89 Ala. 376, 8 South. 61; Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131; Nines v. R. Co., 107 Mo. 475, 18 S. W. 26; Dimmitt v. R. Co., 103 Mo. 433, 15 S. W. 761. See Louisville & N. R. Co. v. Meyer, 78 Ala. 597.
A bill of lading is usually made in three or more original parts, one of which is sent to the consignee with the goods, one or more others are sent to him by different convey ances, one is retained by the merchant or shipper, and one should be retained by the master. Abbott, Shipp. 217; 2 Dan. Neg. Inst. 1735. Where one is marked "origi nal" and the other "duplicate," the latter is in effect an original; Missouri Pac. R. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 Am. St. Rep. 861.
It is regarded as so much merchandise of the kind covered by it ; Shaw v. R. Co., 101 U. S. 557, 25 L. Ed. 892. It is not negotia ble, but rather a symbol or representative of the goods themselves ; id; Raleigh & Gas ton R. Co. v. Lowe, 101 Ga. 320, 28 S. E. 867; Brown v. Babcock, 3 Mass. 29 ; Stollenwerck v. Thacher, 115 Mass. 224. At common law it is quasi negotiable ; 1 T. R. 63 ; Lickbar row T. Mason, 1 Sm. L. C. 1148; National Bank of Bristol v. R. Co., 99 Md. 661, 59 Atl. 134, 105 Am. St. Rep. 321; and in many of the states is made so by statute. A stat ute making bills of lading negotiable by en dorsement does not impart to them all the characteristics of bills and notes ; Shaw v. R. Co., 101 U. S. 557, 25 L. Ed. 892. The mere sending of a bill of lading without en dorsement or actual delivery of the goods to the consignee does not, of itself, pass title; Delta Bag Co. v. Kearns, 112 Ill. App. 269; it is prima facie evidence, but not conclu sive ; Harrison v. Hixson, 4 Blackf. (Ind.) 226; but delivery without endorsement as security for advances, or for a valuable con sideration, transfers title ; Lewis v. Bank, 166 Ill. 311, 46 N. E. 743 ; Jeffersonville R. Co. v. Irvin, 46 Ind. 180 ; American Zinc Lead & Smelting Co. v. Lead Works, 102 Mo. App. 158, 76 S. W. 668; National Ne wark Banking Co. v. R. Co., 70 N. J. L. 774, 58 Atl. 311, 66 L. R. A. 595, 103 Am. St. Rep. 825 ; Neill v. Produce Co., 41 W. Va. 37, 23 S. E. 702. There may also be construc tive delivery ; White Live Stock Commission Co. v. R. Co., 87 Mo. App. 330; Storey v. Hershey, 19 Pa. Super. Ct. 485 ; or by way of estoppel against the carrier and also against the shipper and endorser ; Rowley v. Bigelow, 12 Pick. (Mass.) 307, 23 Am. Dec. 607.