
    CHARLES N. SHEPARD, Plaintiff and Appellant, v. GUSTAV HEINEKEN et al., Defendants and Respondents.
    
      [Decided December 3, 1870.]
    Where a bill of lading requires the carriers to deliver the property to a consignee therein named, or to his assigns, no action can be maintained by the shipper without a surrender of the bill of lading, or the consent of the consignee.
    Such a bill of lading is like any negotiable instrument, and good in the hands of any person to whom it may be delivered for value.
    Before Monell, McCunn, and Freedman, JJ.
    This case was tried before Judge Jones and a jury.
    The action was to recover the value of twenty firkins of butter shipped by the plaintiff with the defendants, to be transported to the city of New Orleans, by the New York and Virginia Steamship Company.
    On receipt of the butter the following bill of lading was given.
    The following is a copy of Exhibit No. 1:
    Shipped by C. N. Shepard, in good order and well conditioned, on board the United States mail steamship called the “ Yazoo,” whereof George W. Couch is master, now lying in the port of New York and bound for New Orleans (with liberty to touch at Key West and Havana, to tow and assist vessels in distress, and to sail with or without pilots), to say: D Ten F’lrins Butter, 1213,
    being marked and numbered as in the margin, and are to be delivered in the like good order and condition at the aforesaid port of New Orleans, the dangers of the seas, the restraints of governments, collisions, or fire at sea or in port, accidents from machinery, boilers, or steam, or any other accident or danger of the seas, rivers, and steam navigation of whatever nature or kind soever excepted, unto S. D. Moody & Co., or to his or their assigns, he or they paying freight for the said shipment, in the United States legal currency, at the rate of one and one-half cents per lb., with 5 per cent, primage and average accustomed. It is expressly understood that the articles named in this bill of lading shall be at the risk of the owner, shipper, or consignee thereof, as soon as delivered from the tackles of the steamer at her port of destination (the collector of the port being hereby authorized to grant a general order for discharge immediately after the entry of the ship), and they shall be received by the consignee thereof, package by package, as so delivered, and if not taken away the same day by him, they may (at the option of the steamer’s agents) be sent to store or permitted to lie where landed, at the expense and risk of the aforesaid owner, shipper, or consignee. Weights, contents, and value unknown, and not accountable for leakage, rust, or breakage, if properly stowed. Neither the ship nor owners will be responsible for gold, silver, precious stones, or metals, jewelry, nor treasure of any kind, unless bills of lading are signed therefor, and the value therein expressed.
    No bill of lading signed for less than $5 freight, to be paid immediately on the landing of the goods, without credit or discount. In the event of New Orleans being in the possession of the enemy, or of the vessel being prohibited by the orders of the commanders of the United States forces from entering the port, the master is at liberty to proceed to a near open port, or return to New York, and end the voyage.
    In witness whereof the master, purser, or agent of the said vessel hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void.
    Dated in New York this 14th day of February, 1865.
    T. D. Cook, Jr.
    Freight . . . $18 19
    Primage ... 91
    Stamp, 2c.
    $19 10
    
      Exhibit No. 2 is like Exhibit No. 1, except in the .following particulars:
    W. W. Ten F’kins Butter. 1211 To be delivered to
    Messrs. Weed, Witters & Co.
    Freight . . . $18 16 Primage ... 90
    $19 06
    On the trial it appeared that the voyage was. abandoned before leaving this port, on account of the unseaworthiness pf the ship pf the company. The defendants gave notice to the plaintiff of such abandonment, and requested him to send for the butter. Subsequently the plaintiff made a demand for the butter, without tendering or offering to return the bills of lading, or to indemnify the defendants against such bills. The defendants declined to deliver the butter, except upon the return of their bills of lading or of an indemnity against them.
    There was conflicting evidence as to whether the defendants were the agents only or the owners of the New Y ork and Virginia Steamship Company.
    A verdict was directed for the defendants, the court refusing to submit to the jury any question of fact.
    The plaintiff excepted and appealed from the judgment.
    
      Mr. S. W. Judson for appellant.
    
      The defendants having held themselves out to the plaintiff, and dealt with the plaintiff in their own names, as principals, from the beginning of the transaction until about twenty days after the commencement of this suit, without ever disclosing or hinting at any agency, and without the knowledge of the plaintiff that they were, or pretended to be, agents, are liable im, their individual capacity as principals to the plaintiff.
    
    The defendants undertook the duty of carrying twenty firkins of butter from New York to New Orleans, and no other person or party .did expressly undertake that duty; and it is immaterial whether or not any other person or party, when discovered, would be hable or not.
    Even if the defendants were agents, and were known to be such, yet if they undertook the duty, or assumed any obligation, or were a contracting party, or had any interest in, or were to derive any benefit from, the transaction, they would be liable (Considerant v. Brisbane, 22 N. Y. R., 389; Nelson v. Nixon, 13 Abb. Pr. R., 104).
    The bills of lading not being signed by the master of the ship, nor by any one on board, nor at the ship, but being signed in the office of the defendants, in their presence, under their supervision, and delivered by them to the plaintiff in exchange for the receipt for the butter, were adopted by the defendants as their act; and in judgment of law the defendants made and delivered the said bills, as their bills, to the plaintiff, to all intents and purposes.
    A bill of lading as between the original parties thereto, is not to be strictly construed, but is open for explanation and construction.
    The duty of the defendants in this case did not rest entirely on contract, or the bills of- lading, but on a higher duty of common carriers (29 N. Y. R., 115, Merritt v. Earle).
    A carrier is obliged to know the possibilities of transportation before making a contract, or provide another vessel or conveyance (2 Hilton, 19, Place v. Union Express Co.).
    
      Mr. Morris S. Miller for respondents.
    The bills of lading showed the goods shipped to the “ consignees or their assigns,” which “ conveyed notice to the master that he could not safely deliver the goods to any person except the holder thereof” (Abbott on Shipping, 7th ed., p. 435).
    And in cases where the shipper demands the goods, "it is the master’s duty to retain, and he cannot safely deliver unless they are claimed by the holder of the bills indorsed by the shipper to whose order he had engaged to deliver ” (Abbott on Shipping, p. 435).
    Nor is he liable in trover on a demand of them, unless the bills of lading are surrendered or fully indemnified against, nor are the shipowners liable on such a state of facts (Keyser v. Harbeck, 3 Duer, p. 373, 9 C. B., 297).
    Because a bill of lading is a negotiable instrument, and in the hands of a Iona, fide holder for value transfers the title (Downs v. Greene, 24 N. Y., 638, 28 Barb., 157).
   By the Court:

Monell, J.

Without expressing an opinion upon the other questions raised in this case, I think the judgment can be sustained on the ground that no conversion of the property by the defendants, or other liability, had been shown.

The bills of lading required the property to be delivered to consignees therein named, or to their assigns, and without a surrender of the bills or the consent of the consignees the defendants were not bound to deliver; and they had a right to require such surrender or consent, or, what they did require, an indemnity, against the bills. The cases in support of this position are Downs v. Greene (24 N. Y. R., 638); Keyser v. Harbeck (3 Duer, 373); Abbott on Shipping (7th ed., 435).

There was no dispute at the trial that the bills of lading were not surrendered; nor was it disputed that the plaintiff refused to furnish any indemnity against them. There was therefore no question for the jury. The plaintiff had failed to lay the foundation for a recovery upon either cause of action, and a verdict was properly directed for the defendants.

The judgment should be affirmed.  