Sect. 32. DELIVERY TO 32.-(1.) Where, in pursuance of a contract of sale,(") the seller is authorised or required to send the goods to the buyer, delivery) of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is primâ facie deemed to be a delivery of the goods to the buyer. (2.) Unless otherwise authorised by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages. (9) (3.) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods. shall be deemed to be at his risk during such sea transit. NOTES. (a) "Contract of sale." Defined Sects. 1 and 62 (1). (b) "Seller," "buyer," "goods." Defined Sect. 62 (1). (c) "Authorised or required." The rule of Sect. 29 as to delivery is here superseded by express or implied contract. "Authorised" seems to refer to a voluntary act of the seller, sanctioned by express or tacit acquiescence on the part of the buyer; "required" is the appropriate word where delivery to the buyer is an express term of the contract, or is so implied as to form part of the seller's obligation. 66 (d) "Delivery." Defined Sect. 62 (1). In the case of un- Sect. 32. ascertained or future goods, delivery to a carrier is also an appropriation" of the goods to the buyer so as to pass the property to him [Sect. 18, Rule 5 (2)]. The sub-section makes no distinction between goods delivered to a carrier for transmission from one part of England to another, and goods delivered to a carrier for transmission to or from a foreign country. The suggestion of Grove, J., in Pointin v. Porrier (1885) that the English rule does not apply to consignments from abroad, is totally unsupported by authority, and is opposed to the opinion of Manisty, J., in the same case.2 (e) " "Prima facie." The general rule yields to evidence of contrary intention, as where the seller reserves the jus disponendi by taking the bill of lading to the order of himself or his agent [Sect. 19 (2)], or where he altogether prevents delivery by making the carrier his own, and not the buyer's agent. Even where the carrier receives the goods on behalf of the buyer, he is not entitled without special authority to accept them in the sense of Sect. 35. On the other hand, though the carrier may be the seller's agent, the buyer, in the absence of contrary agreement, takes the risk of deterioration necessarily incident to the transit. (Sect. 33). (f) "Contract with the carrier." The rule of this sub-section 1 Q.B.D. 49 J.P. 199. 2 The Divisional Court was composed of the two judges referred to. Grove, J., reasoned thus: "Here the parties know the law and the custom, but to apply that law to cases in foreign countries would, to my mind, be not only very dangerous, but might be used with very unjust and unfair results, and I am of opinion that it is incumbent upon parties in foreign countries to deliver to "[the buyer or his agent]. It was not necessary to decide the point, but Manisty, J., said: " Whether in the case of an order being given to a foreigner for certain goods to be sent to agents abroad, or direct to the person giving the order in England, delivery to a foreign railway company at the place where the consignor resides is a good delivery to the consignee or agent, is a question of great importance, and I should feel very sorry to throw doubt upon what is settled law so far as this country is concerned. If I order goods from a person abroad, and these goods are sent to me by the ordinary mode of carriage, the question of delivery is governed, in my opinion, by the same principles as govern delivery to a carrier in this country" (49 J.P. at p. 199). In Brown v. Hodgson (1809), 2 Camp. 36, the Attorney-General of the day attempted to establish the converse proposition, and distinguished between goods sent from one part of England to another, and goods sent from England to a foreign country. He argued that in the former case delivery to the carrier was delivery to the consignee, but in the latter, the risk was still the consignor's till the goods reached their destination. The bill of lading, however, bore that the goods were shipped "by order and on account of" the consignee, and Lord Ellenborough could "recognise no property but that recognised by the bill of lading." In Scotland, the law of the sub-section, whether applied to imports or exports, has never been in doubt. See e.g. Prince v. Pallat (1680), Mor. 4932, and Coм. infra, p. 159. Sect. 32. Sub-sect. (1). is based on the cases noted below. The seller is custodier of the buyer's goods, and is thus an agent for him, and bound to protect his principal (Sect. 20, 2nd proviso). .45. (g) "Transit." For rules as to duration of transit, see Sect. (h) "Decline delivery," "hold seller responsible." The former of these alternative remedies is based on the property and risk being continued with the seller; the latter infers damages against the seller for neglect of duty as the buyer's agent. Where declinature of delivery is justified, the buyer's remedy is for breach of contract under Sect. 51 (1), while the remedy for the seller's neglect to make a reasonable contract with the carrier, seems to fall under Sect. 57, rather than under Sect. 53. If the carrier is to be proceeded against, it is necessary, where delivery is declined, that the seller should pursue the action, but where the buyer accepts, and trusts to the seller's responsibility for damages, the action against the carrier should probably be at the instance of the buyer, as owner of the goods from the time when the transit commenced.3 (i) "Sent by a route involving sea transit.' The bill originally read "sent by sea." It was altered in Select Committee of the Commons, to meet the case of combined land and sea carriage. (i) "Notice to the buyer." The duty here imposed on the seller was suggested by the law of Scotland, but the provision of the sub-section seems to go rather further than the Scottish rule (see Cом. infra, p. 164). "There appears to be no English decision in point." 4 COMMENTARY. Sub-sect. (1). - The rule of this established in Scotland as early as the sub-section was case of Prince v. 1 Clarke v. Hutchins (1811), 14 East 475; Cothay v. Tute (1811), 3 Camp. 129; Buckman v. Levi (1813), 3 Camp. 414; Pointin v. Porrier (1885), 49 J.P. 199. The seller “has an implied authority, and it is his duty, to do whatever is necessary to secure the responsibility of the carriers for the safe delivery of the goods, and to put them in such a course of conveyance as that in case of a loss the defendant might have his indemnity against the carriers." -Per Lord Ellenborough in Clarke v. Hutchins, 14 East at p. 476. See also Indian Contract Act 1872, Sect. 91. 2 "If the goods tendered are rejected, and properly rejected, by the buyer, there can be no doubt that the position remains the same as if the vendor had done nothing under the contract. There is no specific appropriation, and no transfer of property, and the vendor, if delivery under the contract is due, is liable to an action for non-delivery."-Campbell on Sale of Goods, 2nd ed., p. 514. Where rejection is not justified, the seller's remedy is under Sect. 50 (1). 3 See Dawes v. Peck (1799), 8 T.R. 330; Dunlop v. Lambert (1839), 6 Cl. and Fin. 600, and other cases noted by Benjamin (Sale, p. 164). 4 Chalmers on Sale of Goods Act, p. 66. Pallat. Pallat in 1680. The circumstances were these. Udny, Sect. 32. a Scotchman, ordered three tuns of wine from Pallat, a Prince v. merchant in Bordeaux, to be sent in Gillespie's ship. Pallat shipped the goods, but hearing, after the vessel had sailed, that Udny was "about to break," he wrote to his correspondent, Wilson, to receive the wines from the "skipper" (shipmaster), and not to deliver them to Udny. The letter arrived before the wines, but in the meantime Udny had assigned them to Prince for onerous causes, and Prince arrested them in the skipper's hands and obtained decree of forthcoming. In a suspension Pallat urged among other pleas (1) that "the wines never became Udny's, not being delivered to him"; (2) that "there was here no sale but a mandate, for it is notour that Pallat is a factor, and furnishes goods ex mandata." It was answered for Prince, that "here there was a proper sale perfected by delivery to the skipper for behoof of Udny; neither did Pallat order the skipper to consign the wines to Wilson, his correspondent; neither did Pallat send the wines as factor, but sold them as merchant." The Lords found "that, the wines being delivered to the skipper upon Udny's order, the property was stated in Udny, and that there is no hypothec in ware for the price, by the law of Scotland." 3 "2 Reference is elsewhere made to a misconception as to the true nature of stoppage in transitu, which existed in Scotland between 1790 and 1849. This error lingered after the latter date in another form. It was supposed that, if there was stoppage in transitu in the case of a vessel chartered by the buyer, the reason must be that there was no delivery to the buyer.* 1 Mor. 4932. 2 Mor. 4932. See also Dicksons and Co. v. Ponton (1824), 3 Mur. 439 per Lord Chief Com. Adam at p. 440; Dick v. Thom (1829), 8 Sh. 232; Jones and Co. v. Ross (1830), 8 Sh. 495; Bell on Sale, p. 86. In some cases the rule is complicated with questions of stoppage in transitu, as in Morton and Co. v. Abercromby (1858), 20 D. 362. 3 COM., Sect. 44 post, p. 205. Thus Ross in his Leading Cases published in 1855 (Com. Law, vol. ii. p. 801) states the then existing law thus: "The shipping of goods on board a vessel freighted by the purchaser of goods, is not equivalent to delivery, and does not prevent stoppage in transitu." In this statement he goes beyond the case on which he founds, for, although judgment was given in 1801, when the general error was unchecked, the report itself bears that "a great Effect upon delivery of error as to stoppage in transitu. Sect. 32. Sub-sect. (2). Contract with carrier. Sub-sect. (3). But stoppage in transitu, as now understood, necessarily involves previous delivery to the buyer through the carrier as the buyer's agent. If there had been no delivery, the buyer's remedy would have been lien, not stoppage in transitu.1 The effect upon delivery of embarking the goods in a ship chartered by the buyer is entirely one of circumstances [Sect. 45 (5)]. Sub-sect. (2).Scottish text-writers of the present century invariably state the rule as it is set forth in this sub-section, but the authorities are entirely English. The law is thus stated by Bell. "The seller may expressly or tacitly undertake to give the goods into the hands of a third party; to a wharfinger, or agent, or carrier, or shipmaster. He will, in that case, be bound to perform such an act of delivery as shall fix the goods effectually on the proper person, so as to confer on the buyer the benefit of his purchase, or enable him to insist for his goods against a proper party. When the seller has done this, he is discharged of his duty; till it is done, he can have no action for the price, and the risk is still his." Among English authorities cited by Scottish text-writers are Clarke v. Hutchins (1811) and Buckman v. Levi1 (1813), in both of which the seller's duty as the buyer's agent is clearly set forth by Lord Ellenborough.5 3 2 Sub-sect. (3). If, in regard to the preceding subImported from section, the authorities are borrowed from England, this sub-section, on the other hand, affords one of the few law of Scotland. majority of the Court were of opinion that the delivery was constructive only, and did not prevent stoppage in transitu "—Robertson and Aitken v. More and Co., Mor. App. Sale, No. 3. "It is a contradiction in terms to say a man has a lien upon his own goods, or a right to stop his own goods in transitu. If the goods be his he has a right to the possession of them whether they be in transitu or not."Per Buller, J., in Lickbarrow v. Mason (1793), 6 East 21 at p. 24. 2 Bell on Sale, p. 84. See also Bell's Com. i. 274; Bell's Prin., Sect. 118; M. P. Brown, p. 370. Where the buyer instructed coal to be sent from Glasgow to Inveraray by "gabbart," the seller's obligation was discharged by shipping them on board a gabbart employed as an ordinary trader between the two ports. In order to establish negligence in employing an unseaworthy vessel it was held necessary to prove culpa lata on the part of the sellerSword v. Milloy (17th February 1813), F.C. 3 14 East 475. 43 Camp. 414. 5 These cases are narrated at some length by M. P. Brown-Sale, pp 370-373. See note (f) supra. |