[bill of lading - privity of contract]

Archer v. Jeffery
Supreme Court
Field J., 9 December 1823
Source: Sydney Gazette, 11 December 1823

This day the following Judgement of the Court … was delivered by Mr. Justice Field:
This is an action brought by the Consignee, in the bill of lading, against the Master of the ship Berwick, upon the bill of lading of twenty four head of horned cattle and sixty two Marino sheep, whereof and of the increase only one bull calf and thirty-six sheep and lambs were delivered at the Derwent, and also, for the uncommissioned provender, for which there is no bill of lading. The bill of lading could not be received in evidence for want of a stamp; but if this were a mere action for non-delivery of goods, and the Court saw plainly that they were the consignee's property, they would suffer him to recover the goods without the bill of lading. But these cattle and sheep, and their provender special goods, and in their nature mutable and commonable [?]; and were the subject of a special agreement between Messrs. King and Archer (the plaintiff's father) in England and the defendant, a verbal agreement (according to the evidence before me) the proper stalls and slings, and (as the defendant alleges) there was a written agreement between Messrs. King and Archer, and Messrs. Whinston [?] and Hewitt, the shippers, as to the shipments and carriage, that as the defendant cannot prove (in his turn) for want of its being stamped. We are therefore of opinion, this action should be brought by Messrs. King and Archer, who made this verbal agreement with the defendant, and paid the freight or rather hire of accommodation, and that it cannot be maintained by the plaintiff, who was not privy to the [?]. It is absurd for the plaintiff to sue as consignee in the bill of lading, or as assignee of the property by other evidence, for the non-delivery of "twenty three bullocks (as they are called by mistake) sixty two Marino sheep and one cow, in the like good order, and well conditioned" when the greater part of them were to calve and land on the voyage, and when seven lambs and one calf were actually landed; and when it was of the essence of this special agreement, between Messrs. King and Archer and the defendant, that they should find stockmen and provender, and he water; and the bills of lading in this case must therefore be taken not as the transferable agreement between the parties, but (as they are when there is a charter party) as the mere evidence of the shipping, and receipt for the original cattle and sheep. How can the plaintiff aver (as he does) that part of the said stock in the bill of lading, to [?] 30 sheep, were delivered; when some of the sheep delivered were increased on the voyage, about which the bill of lading says nothing? The terms of the bill of lading would have been complied if the defendant had kept back all the [?]. Messrs King and Archer must sue the defendant upon their agreement with him, when it will be seen what accommodation the defendant was to give, what deals and slings the shippers found, &c. It is in evidence that Messrs. King and Archer were dissatisfied with the accommodation at Plymouth, and talk of protesting; but it is also proved the plaintiffs herds, that they were afraid of having the sheep removed to a better berth, lest there should be more freight to be paid to the defendant; the plaintiff must wait till the protest and full evidence of the agreement come out.
Besides the counts on the bill of lading, there are counts upon the special agreement, in which it is averred, that the defendant undertook to provide the stock with water and accommodations. To whom did he undertake these? To the plaintiff? Not to Messrs King and Archer, and how therefore, can the plaintiff sue for this breach of agreement?
There are also counts for the provender, respecting which there is no bill of lading for the plaintiff to be consignee of, and an averment that the defendant undertook to apply it to the support and maintenance of the cattle. The undertaking was likewise to Messrs. King and Archer, and not to the plaintiff. We are very sorry the parties should be brought to such expense, when the evidence at present before the Court, as to negligence and want of water, it is all one way but it will be most material to see more clearly, than by the evidence of one witness, who was to find and put up the stalls and slings, for want of which the heifers all died.
In this action, the plaintiff must be nonsuited: but full justice may be done in an action at the suit of Messrs. King and Archer.