instances in which English law is founded on Scottish Sect. 32. precedent. The earliest case is that of Hoog v. Kennedy and Hoog v. Maclean' (1754), where a Glasgow firm ordered goods from Kennedy. Rotterdam to be sent first ship for Leith, Greenock, or Bo'ness. The goods were duly shipped on 12th August, but no advice or bill of lading was sent by post to the buyers. The sellers forwarded on 3rd September an account-current, in which they took credit for goods sent by Burton (the master) for Leith, but neither goods nor ship were specified. The ship sailed on 25th August and on 4th September was lost. The report bears that "it was laid down as a general rule, that it is the indispensable duty of factors and others who deal by commission, to give regular notice of the shipping of the goods by course of post, and also to transmit a copy of the bill of lading." Lord Kames, who reports the judgment, asks: "Will the factor's neglect of duty subject him to every damage that might possibly have been prevented by a regular advice, or only the damage which is the necessary consequence of neglecting to give advice? In this case the buyers did not insure, as they might have done, on receipt of the advice which they actually got though late, therefore it might justly be presumed that they would not have insured though they had got the most early advice. Nevertheless the seller was held liable in damages." "

Green.

In Cooper v. Green and Chatto 3 (1791) the goods were Cooper v. shipped on 19th December in a vessel which did not sail till the 24th. The bill of lading and invoice were forwarded on the 25th, being the earliest post after the vessel had sailed. It was held that the seller had conformed to the usual practice, and was not in mora.

4

Arrol and Co.

In Hesseltines v. Arrol and Co. (1802), London dealers Hesseltines v. on receipt of an order from Edinburgh sent tea to the wharf in London of a shipping company having a number of packets trading between London and Leith. They were told that it would go by the Kelso packet, and the invoice.

Sect. 32.

Arnot v.
Stewart.

Fleet v.
Morrison.

was so made out, but on making further enquiry in the evening they were then informed that it would go by the Union packet. The invoice was altered by deleting Kelso and inserting Union, and was then forwarded by post to Edinburgh. The tea was actually shipped by the Kelso packet, and the vessel having been stranded the greater part was lost and the remainder damaged. It was held that the sellers were not responsible. One of the grounds of judgment was that the buyers might have insured "on ship or ships," and it was considered of importance that they never made any attempt to insure. This judgment was followed in Elton, Hammond, and Co. v. Porteous and Dewar1 (1808), but both cases were doubted and distinguished in Arnot v. Stewart 2 (1813), affirmed in the House of Lords (1817). In the last-mentioned case a seller in London shipped goods for Scotland on board a vessel which sailed on 24th February. He forwarded an invoice on 27th February bearing that date, and stating that the goods had been shipped, but without mentioning that the vessel had sailed. The ship having been lost it was held that the risk remained with the seller, although it did not appear that the buyer intended to insure.*

3

V.

The rule was rigidly applied in Fleet Brothers Morrison 5 (1854), where the delay of a single day in giving notice of shipment was held to leave the risk of the goods with the seller. It was argued that intimation of the intention to ship the goods should have been given in sufficient time to give the buyer an opportunity of insuring from the commencement of the voyage, but the Court did not go this length. Lord Justice-Clerk Hope said: "I am disposed to hold that a letter written and posted on the day the vessel sailed would, in the circumstances, have been timeous inti

Short voyages. mation." "6 In reference to the argument that in short coasting voyages it is not usual to insure, Lord Wood

1 13th December 1808, F.C.

2 25th November 1813, F.C.

35 Dow App. Cas. 274; 6 Pat. App. Cas. 289.

4 See also Andrew v. Ross, Park, and Others (6th December 1810), F.C.; and Johnston and Sharp v. Baillie (2nd June 1815), F.C.

5 16 D. 1122.

6 16 D. at p. 1123.

said: "When goods are forwarded by sea by a short coasting Sect. 32. voyage, it is peculiarly the positive duty of the seller to give instant notice of the shipment, so that the purchaser may have every possible opportunity of effecting a valid insurance on them if he is so disposed."1

The case of Hastie v. Campbell 2 (1857) serves further Hastie v. to define the seller's duty, and is interesting because of the Campbell. disturbing element of the electric telegraph which, while it Notice by is available to give earlier notice of despatch, may also telegraph. prevent insurance by giving earlier intimation of shipwreck. The goods were consigned to Glasgow, and were presented for shipment in a steamer in the Thames about three o'clock on a Saturday afternoon. The barge containing them had, however, to wait its turn, and it was half-past six o'clock before they were taken on board. At this hour the agents' counting-house was closed, the usual trade hours being from 10 A.M. till 6 P.M. The afternoon post for Glasgow closed at six, but a letter could have been posted at the General Post Office-distant 21 miles from the wharf-up till 7.30 P.M. The next post for Glasgow was before business hours on Monday morning, and therefore notice of the shipment was not despatched till Monday afternoon, arriving on Tuesday morning about the same time as a telegraphic message announcing the loss of the steamer. Out of twenty-four similar shipments on previous occasions, the consignees had only insured one, and that had been done through the agency of the shippers. On these facts two out of three judges held there had been no negligence. The fact that the shippers were agents and not sellers was held to be of no importance, as the duties of each were in this matter identical. In reference to a suggestion that the agents ought to have made use of the telegraph, it was held that, in the absence of special instructions, no such duty was incumbent on them. But in their opinions, the judges recognised the fact that the use of the telegraph,

1 16 D. at p. 1124.

2 19 D. 557.

3 "There is no difference between the duty incumbent on an agent, and the duty incumbent on any other shipper of goods."-Per Lord President M'Neill, 19 D. at p. 561.

Sect. 32.

Result of Scottish authorities.

Effect of Act.

Sect. 33.
RISK WHERE
GOODS ARE

DELIVERED AT
DISTANT

PLACE.

which was then in its infancy, might become essential. 'It is a mode of communication," said Lord President M'Neill, "which in matters of business, parties will probably be forced to resort to in order to avoid loss, and, once in general use, it may become a matter of duty to employ it."1

From the foregoing review of the Scottish authorities, it will be seen that the seller's duty was fulfilled if he posted on the day of the shipment, a notice to the buyer containing the necessary particulars for insurance. The receipt of the notice in ordinary course might not be in time to permit of insurance, at least for the whole period of transit, yet the seller was absolved. The present sub-section seems to impose a heavier duty on the seller. He "must give such notice to the buyer as will enable him to insure the goods during their sea transit." This may mean notice before shipment, of intention to ship on a certain day, but, more probably, it will be held to infer a resort to telegraphic communication.

33. Where the seller (a) of goods (a) agrees to deliver them at his own risk at a place other than that where they are when sold, the buyer (a) must, nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit.(e)

NOTES.

(d)

(a) "Seller," "buyer" "goods," "delivery." Defined Sect. 62 (1). (b) "Risk." The section refers to "specific" goods, in regard to which the property and the risk usually pass when the contract is made (Sect. 18, Rule 1 and Sect 20).

1 19 D. at p. 563. Lord Curriehill to the same effect says: "The inability of the consignees to effect insurance arose from the disturbing element of a natural agency which has lately been made available for the transmission of intelligence, but which, although it may probably be destined ere long to produce a great revolution in rules for transacting mercantile business, has not yet been recognised to this effect."-19 D. at p. 565. As to responsibility for errors in the transmission of telegrams, see Verdin Brothers v. Robertson (1871), 10 Macp. 35; J. and A. Brown v. Law [1894], 72 L.T. N.S. 185; Affd. H. L. [1895], 11 Times Law Rep. 395.

(c) "Place other than." The usual place of delivery is the Sect. 33. seller's place of business or residence, or the place where the goods are when sold [Sect. 29 (1)]. Here, the seller has agreed to deliver them elsewhere.

(d) "Unless otherwise agreed." As to express agreement, etc., see Sect. 55.

(e) "Transit." For its duration, see Sect. 45.

COMMENTARY.

of Scotland.

The rule here stated forms one of the subsidiary changes Change in law introduced by the Act into the law of Scotland. The former law is thus stated by Bell: "Where the bargain is to deliver the commodity at a particular place, the risk is with the seller till delivery at that place, so that if it perish on the voyage it is lost to the seller, and he cannot claim for the price." The Scottish rule did not admit of the exception set forth in this section.

risk.

In England, and now also in Scotland, the general risk Exception to of transit depends upon the passing of the property, which general law of may or may not be coincident with delivery. If the rule of this section is a legal effect of the want of delivery, it is clearly exceptional in cases where the property has passed, but it may perhaps be taken as a qualification of warranty, rather than of risk.2 A dealer who sells goods by description warrants them to be of merchantable quality [Sect. 14 (2)], and as this warranty can only be applied when the goods are actually received by the buyer, it follows that the seller is responsible for any extraordinary or unusual deterioration in the course of the transit. But, in accordance with the section, if the deterioration is necessarily incident to the course of transit, the seller is not liable,

1 Bell's Com. i. 474. See Spence v. Ormiston (1687), Mor. 3153; Milne and Co. v. Miller (1st February 1809), F.C.; Henckell Du Buisson and Co. v. Swan and Co. (1889), 17 Ret. 252.

2 In Beer v. Walker (1877), 46 L.J. C.P. 677, the property and general risk must be held to have passed to the buyer at the commencement of the transit, yet loss through deterioration in transit fell upon the seller. The goods were rabbits,-sound when delivered to a railway company in London, but unmerchantable when they reached the buyer, a retail dealer in Brighton. If the circumstances fail to be governed by this section the judgment seems to be overruled; but the case may be explained as an instance of a condition of merchantable quality on arrival [Sect. 14 (2)].