can be disposed of on clearer rules. We have already shown that the right of the libelant relates back to the date of the charter, and that, on the record, we must assume that its equity is earlier than the equity of set-off of the owner of the cargo. Each party proceeded in good faith, and each in ignorance of the equitable rights of the other. In those respects their equities were balanced, but on this record the equity of the libelant was earlier. In addition to that, it is a specific equity, relying on the pledge of this particular fund, while the equity of the owner of the cargo is not specific, but only general, without anything to show that reliance was placed on this freight with the view of applying it to the diminution of the charterer's indebtedness. We need not determine what would have been the equities if the set-off claimed by the cargo owner had risen out of credits given on the expectation of offsetting them against this freight. Under the circumstances, the equity of the libelant must prevail against a general set-off, and the decree of the district court must be reversed to that extent.

This opinion has pointed out sufficient circumstances to make it plain that, from the equitable positions held by the admiralty with reference to costs and interest, neither party is entitled to either the one or the other.

The decree of the district court is reversed, and the case is remanded to that court, with directions to enter a decree in favor of the libelant for the amount of the freight according to the bill of lading, less the sum of $1,701.64; and neither party will recover any interest or costs in either court.

(115 Fed. 678.)

CUNARD S. S. CO., Limited, v. KELLEY et al.

(Circuit Court of Appeals, First Circuit. April 18, 1902.)

No. 419.

1. SHIPPING-BILLS OF LADING-RATIFICATION OF UNAUTHORIZED ISSUANCE. A steamship company, whose agent has without authority issued bills of lading for goods then in a public warehouse, does not ratify such act and make the bills its own by receiving on board one of its vessels goods purporting to be those described in the bills, where by reason of a fraudulent substitution in the warehouse, of which it was ignorant, the goods actually delivered to it are not the same.

2. SAME.

The unauthorized issuance by an agent of a steamship company of bills of lading to a purchaser for goods then in a public warehouse, subject to the orders of the seller, who is bound by the terms of the sale to deliver the same on board, does not bind the company, so as to make it responsible for the goods while in the warehouse and before their actual delivery into its custody; and even an acceptance of the goods on board ship is a ratification of the contract of carriage made by the bills of lading only from the time of such delivery.

3. SAME-AUTHENTICATION OF BILLS OF LADING.

Bills of lading do not prove themselves, and the burden rests upon a shipper relying thereon to prove their execution by a duly authorized agent of the carrier.

4. SAME-BILL OF LADING AS RECEIPT-CONCLUSIVENESS.

A bill of lading is both a receipt and a contract of carriage, and as a receipt it is open to explanation.1

5. SAME-CARRIAGE OF GOODS-ACTION FOR NONDELivery.

In an action by a shipper against a steamship company for nondelivery of goods, the burden rests upon the plaintiff to prove delivery of the goods to defendant for carriage; and bills of lading, signed for the master, and acknowledging the receipt of goods on the ship, even though shown to have been executed by a duly authorized agent of defendant, are insufficient for that purpose, where plaintiff's evidence further shows that when they were executed the goods had not been received on board ship, nor consigned to the care of a master, but were in a public warehouse, registered in the name of a third party, and that there was no vessel in port.

6. SAME.

Goods were purchased by an agent, to be exported to the purchaser; the sellers contracting to deliver the same on board ship at their expense, which was required to be done by means of lighters. The sellers deposited the goods in the name of their own agent in a public warehouse, from which they could be removed only on the order of the agent. While so stored bills of lading for the goods were executed by an agent of a steamship company to the purchaser's agent; no vessel of the company being then in port. On arrival of the ship on behalf of which the bills were executed, goods purporting to be those sold and covered by the bills of lading were delivered on board by the sellers, and accepted. In a subsequent action by the purchaser against the steamship company for nondelivery of the goods, the authority of defendant's agent to issue the bills of lading, under the circumstances shown, was in dispute. Defendant also introduced evidence tending to show that a fraudulent substitution had been made in the warehouse, and that the goods received on board were not in fact those covered by the bills of lading. Held, that it was error to instruct the jury as a matter of law that the execution of the bills of lading, taken in connection with the subsequent acceptance of the goods on board thereunder, operated to place them in the constructive possession of defendant from the date of the bills, making it responsible for their care and protection thereafter, but that the questions of the agent's authority to issue the bills, and whether there was an actual delivery of the goods to defendant, were under the evidence both questions for the jury, upon which plaintiff had the burden of proof.

7. SAME-ACCOMMODATION BILL OF LADING-EFFECT AS RECEIPT.

The giving of a bill of lading as a matter of accommodation, before the actual delivery of the goods, does not impose upon the carrier an obligation to make an effort to get possession of the goods wherever they may be, when the owner has contracted to deliver them on board the carrier's vessel; but as proof of the actual taking of possession by the carrier the bill stands as a mere receipt, subject to rebuttal or explanation, by showing that it was not the intention of the parties to make any change in the actual or legal custody of the goods until loaded. 8. SAME-EXEMPTIONS IN BILL OF LADING-CONSTRUCTION AND VALIDITY.

A general clause in a bill of lading, exempting a shipowner from liability for loss of goods while on the quay, or loss by thieves, is not to be construed as applying to cases where such loss arises through the carrier's negligence or failure in proper custody or care, so as to render it invalid, under section 1 of the Harter act (27 Stat. 445), providing that "any and all words and clauses of such import inserted in bills of lading or shipping receipts shall be null and void," nor is it rendered void, under such provision, by a subsequent clause extending all exemption provisions to cases of negligence, the two clauses being separable; but the carrier is entitled to the benefit of the exemption, unless it is found that its negligence or fault contributed to the loss.

1 See Carriers, vol. 9, Cent. Dig. § 148.

9. EVIDENCE-COMPETENCY-SIMILAR FACTS IN CONNECTION WITH SAME TRANS

ACTION.

In an action against a steamship company for nondelivery of goods, it appeared that plaintiffs' agent purchased a quantity of goods from a firm in a foreign port, the sellers contracting to deliver the same on board ship at their expense; that the sellers stored the goods in a public warehouse, where they remained subject to their order only, until removed by them for delivery on board the vessel; that on delivery of the packages to plaintiffs they were found not to contain the goods purchased and described in the bills of lading. Defendant offered evidence to show that other packages, constituting a part of the same purchase and stored in the warehouse at the same time, which had been shipped by a vessel of another carrier, were found on delivery to plaintiffs to have been similarly tampered with, and their contents changed. Held, that such proof was strong and legitimate evidence to support defendant's contention that the substitution had been made by the sellers, who had the same motive and opportunity in both cases, and that the pendency of a similar action against the other carrier, involving the goods shipped by its line, constituted no ground for its exclusion.

In Error to the Circuit Court of the United States for the District of Massachusetts.

George Putnam (James L. Putnam, on the brief), for plaintiff in

error.

Sherman L. Whipple (Whipple, Sears & Ogden, on the brief), for defendants in error.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN, District Judge. This writ of error is to review the rulings of the circuit court, in an action at law for failure to deliver at Boston 53 bales of goatskins alleged to have been delivered to the Cunard Steamship Company, at Naples, Italy, for transportation to Boston, Mass. The chief defense of the steamship company was that the goods were not delivered to it for carriage.

The rulings of the circuit court relating to the question of delivery present the principal questions before us.

It is agreed that:

"The Cunard Company had no dock at Naples, and goods shipped by its steamships had to be put on board in lighters. The Punto Franco is a wharf and warehouse owned by a limited company called the 'Societa Meridionale dei Magazzine Generale,' a 'Societa Anonima' or limited company, in which goods intended for shipment are deposited by the owners or shippers until they should be put on board.

"It was a frequent practice of steamship agents in Naples to give bills of lading to shippers of goods deposited in the Punto Franco to await the arrival of steamships."

Garsin, the agent of the plaintiffs, brought from Petriccione Bros. in Naples two lots of goatskins, the first of 38 bales, and the second of 15 bales. By agreement, the Petriccione were to make delivery of the bales on board steamer, and the price paid was free on board. Both lots of goods were entered at the Punto Franco in the name of Ricciardi, the Petriccione's shipping agent. The Petriccione were to bear the expense of lightering the goods from the Punto Franco to the steamer. Goods entered in the Punto Franco are registered

in the name of the depositor or his shipping agent, are given a number on the books, and can be taken from the Punto Franco only by the direction of the person in whose name they stand. While the goods were thus on deposit in the Punto Franco, and standing in Ricciardi's name, two bills of lading were issued to Garsin. The bill for the lot of 38 bales contained the following statement:

"Shipped in good order and condition by A. Garsin & Co., in and upon the good steamship called the Aleppo, whereof is master for the present voyage, * * and now lying in this port and bound for the port of Liverpool, for Boston, Mass."

This bill of lading was signed, "For the master, p. Nicola Ferolla, Ettore Rondino." The bill for 15 bales acknowledged receipt of the goods upon the Tarifa, and bore a like signature.

It was agreed that Ferolla was the agent of the Cunard Company, "with authority to sign for the master bills of lading for the transportation of merchandise delivered on board the steamships of that company at Naples," and "Rondino was Ferolla's clerk, with power to exercise his authority."

At the time of signing and delivery of the bills of lading, no vessel was in port.

The stipulated facts did not show that Rondino was authorized to receive goods on behalf of the company at the Punto Franco, or to give bills of lading for goods deposited there.

The circuit court instructed the jury that the bills of lading were the bills of lading of the Cunard Company, irrespective of any direct evidence in the case as to the authority of Rondino, saying:

"The Cunard Company received the freight called for by them, and assumed to deliver the goods they described, and therefore it accepted the papers as its bills of lading."

In these instructions we find substantial error.

The Cunard Company contended that, after the delivery of the bills of lading to Garsin by Rondino, and while the goods were in the Punto Franco, and before they had come into the possession of any authorized agent of the company, a fraudulent substitution of goods was made; that bales of sheepskins were substituted for the goatskins described in the bills of lading; and that, though the Cunard Company did receive aboard the steamship Tarifa 53 bales, which, by their marks, purported to be the goods described in the bills of lading, they were not in fact the same goods.

There certainly was evidence to support this contention, and to entitle the Cunard Company to a finding by the jury thereon.

If, in receiving goods aboard the Tarifa, the company's agent was deceived or misled by fraudulent marks, and took aboard, carried, and delivered other goods than those described by the bills of lading, such acts cannot amount to an acceptance or ratification of bills of lading previously unauthorized.

If the act which is relied upon to establish a ratification was itself induced by deceit or mistake, it cannot amount to ratification.

Unless the fact of substitution of goods was known to the company,. it did not ratify. Bennecke v. Insurance Co., 105 U. S. 359, 360, 26 L. Ed. 990; Cook v. Tullis, 18 Wall. 332, 21 L. Ed. 933.

The case was sent to the jury upon the theory that the question of actual authority was immaterial. Let us consider the case upon this view.

Unless authorized, Rondino's acts were not an acceptance of the goods at the Punto Franco. While in the Punto Franco, and in the possession of the Punto Franco for the owners, or for Ricciardi, or perhaps for Rondino, the goods were at the risk of one or more of these persons. The Cunard Company, on this view, was under no obligation to care for the goods; and for all that occurred during the period when the goods were at the Punto Franco the Cunard Company was without liability, either for negligence or for breach of con

tract.

During this time a substitution of goods was made. This was a fraud practiced upon the persons then in possession. If the Cunard Company subsequently received the substituted goods as and for the goods originally deposited, in ignorance of the fact that through the misfortune or fault of the shipper or his agent they had been changed, are we to say that this innocent mistake makes it responsible, on the ground that it voluntarily assumed responsibility for a loss which occurred entirely through the fault of others? Its acceptance of goods aboard ship was at best a ratification of the written contract of carriage, but cannot be held to amount to a ratification of a previous receipt of goods. The contract of carriage, if ratified, is still conditional upon the actual delivery of the goods.

In The Idaho, 93 U. S. 582, 23 L. Ed. 978, it was said:

"A delivery of goods to a ship corresponding in substance with a bill of lading given previously, if intended and received to meet the bill of lading, makes the bill operative from the time of such delivery."

The receipt of goods not corresponding in substance to the bill of lading could not make the bill of lading good from the date it was delivered.

There would be absolutely no consideration to support a promise by the Cunard Company to pay for goods which it did not in fact receive, and which were lost at a time when the company was not responsible for their custody.

The burden was on the plaintiffs to prove delivery of the goods to the Cunard Company.

We are of the opinion that neither party is entitled to require that this court, upon the evidence before it, should decide whether the goatskins in question were actually received upon the Tarifa. This was a question of fact for the jury. This question was taken from the jury and therefore the defendants in error must support the verdict by showing that the goods were delivered to, and accepted by, the Cunard Company at the Punto Franco.

The circumstantial evidence as to Rondino's actual authority to receive goods at the Punto Franco, and to give bills of lading for goods there deposited, was, at least, insufficient to justify a direction that the bills were the bills of the Cunard Company.

The bills of lading did not prove themselves, and the burden rested upon the plaintiffs to prove execution by a duly authorized agent.

We are of the opinion that there was evidence from the plaintiffs