BERGEN V. TUG JOSEPH STIOKNEY.
and, with several other boats, brought to a place in the East riYer called the Sea Fence, where it was usual to stop with tows preparatory to distribuEng the boats according to their several destinations. The libel charges that while the Ida, was lying moored by the sea fence, the tug, in taking up other boats for distribution, and having on her port side two boats, ran against the Ida; that the outside boat on the port hand of the tug struck the Ida on her port quarter about six or eight feet from the stetn with great force, causing the injuries alleged to have been sustained. To maintain his case· the libellant himself and his son, about 12 years old, testified. The libellant swore that the boats came together with so great force as to split a thick and heavy fender j that no apparent damage was done to the Bide of his boat, and that he did not know at the time that any damage was done, but the tug with the boats in tow continued to press and crowd the Ida forward so that she was pushed forward six or eight feet and her bowline parted. He says that he did not discover the damage done till his little boy opened one of the hatches and told him that the water was running in. He was then going below for his pipe, and he went and looked and saw that she was sinking; that he then called out to the captain of the tug that he was sinking. . On the part of the tug the pilot was examined. He admits that in .getting other boats along-side the tug for the purpose of taking them away he lay close to the Ida, but he denies having hit her, or crowded her against the pier. Another witness called on the part of the tug stood on the pier and saw the whole performance. He saw no collision, nor any crowding of the Ida forward. The boy testified to his father's putting in the fender between the Ida and the other boat. He also testified to the other boat striking the Ida, but says noth. ing of the nature or force of the blow, or of its splitting the fender, or of the crowding of the boat forward, or parting the bowline. The supposed injury to the boat was the squeezing of her sides together so as to burst off two planks on the stern, and otherwise to strain her so as to make her leak v.1,no.8-40
badly and sink in 10 or 15 minutes. It is a fact that she sunk soon after the libellant discovered that the water was running in. It was shown that she was 12 or 13 years old and very weak-so much so that the libellant yielded to the advice given him by the pilot of the tug not to have her towed to her destination at the foot of Fifty-third street, East river, on the inside of two other loaded boats, lest she should not bear the pressure, although the day was fair and the water smooth. The libellant had at first insisted on -being taken away with these other boats, and had been put along-side the tug, and inside of two boats, where it was proper to put her, because she was the last boat to be delivered; but upon the remonstrance of the pilot that she could not stand the voyage, she had, with the consent of the libellant, been put back again along-side the pier shortly before the alleged collision. The burden of proof is upon the libellant to show by a fair preponderance of the evidence that the collision happened and that it was the canse of the injury. I do not think the evidence is sufficient. He is himself the only witness to the collision, except his young son, who really corroborates his story very slightly as to there being a collision, and by his not confirming his father's account upon several other points he really weakens the force of the libellant's whole testimony. It is also hardly credible that, if there was so oerious a blow and pressure as he testifies to, and particularly if it burst out the stern, he should not have noticed the effect of it at once. The proved condition of the boat was such that her springing a sudden leak and sinking from the effect of ordinary usage and without apparent cause would have been nothing surprising, and the slight jarring caused by moving her about and putting her back to the pier is quite as likely to have caused the leak as any effect which resulted from what is proved to have been done by the tug and tow alter she was put back along-side the pier. While the libellant is made by the law a. competent witness, he is an interested party, and as his story is not corroborated, and is in itself scarcely credible, and is contradicted by two
witnesses, I should not be justified in receiving it as Bufficient proof of fact charged. The fact of collision is not made out, nor is it shown that the sinliillg wag caused by anything done by the tug after the Ida was put back along-side of the pier. Libel dismissed, with costs.
UNNEVEHR v. THE STEAMSHIP HINDOO, etc.
Court, S. D. New York. February 12,1880.)
COMMON CARRIER-BILL OF LADING-LIMITATION OF LIABILITy-NEGLIGENCE-LOCKWOOD V. R. CO. 17 WALl·. 357.-Where a common carrier has been guilty of negligence, he cannot avail himself of a provision in a bill of lading limiting his liability to £100.· SAME-CONSIGNEE-NoTICE OF TIME AND PLACE VESSEL WOULD DISCHARGB CARGo.-Tlie mere fact that the ngentknew of the arrival of the ship does not dispense with the necessity of actual notice of the time and place the vessel would dlRcharge her cargo. SAME-NEGLIGENCE-GoODS ON PIER AWAITING TRANSFER TO PuBLIO W AREHOUSE.-A ship is liable t'n rem where goods are stolen through negligence, while still ip. the custody of the owners of the ship, after being discharged on a pier, and waiting to be conveyed to the public warehouse by the public carman.
In Admiralty. E. Root, for libellant. W. R. Beebe, for claimants. CHOATE, J. This is a libel to recover the value of a box of merchandise shipped at Hull, England, under bill of lading, and to be delivered in New York. The steamship arrived on Sunday, the fourth of June, 1877. There were eight boxes shipped and consigned to the libellant. They were discharged upon the steamship's pier, in Hoboken, in the forenoon of Tuesday, the sixth of June, and remained on the pier when it was closed at night. During the night one box was stolen from the pier by river thieves, and it is for this box that the Emit is brought. Several defences have been attempted. 1. It is claimed that the libellant has been guilty of fraud
""See ante, 382.
in respect to the contents and value of the box in making a
claim in this suit which he knew to be far beyond its real value. He claims that the case was worth $8,000, the contents being chiefly valuable photographic negatives, books and pictures, with household goods, bedding, etc. A great deal of evidence has been taken bearing upon this issue. The libellant has sworn to the contents of the box, and he is corroborated to a considerable extent by other testimony. In respect to the value of the negatives, which constitute the chief part in value, it appears that the libellant had sold out to one Cooper the models from which the negatives were taken, and had, by his agreement with Cooper, disentitled himself to make profitable use of at least some of the negatives in this country. The proper valuation of the negatives, considedng the agreement with Cooper, may be very difficult to ascertain, but I am not satisfied that the valuation put upon them by the libellant is so extravagent and purposely so exaggerated as to make the present claim fraudulent. The circumstances chiefly relied on by the claimant! as sustaining this defence seem to me of very little weight, and, upon the whole testimony I think they have failed to establish the fraud set up in the answer. 2. Another defence is that by the bill of lading the limitation of liability is fixed at £100. It is enough to say that this limitation is no answer if negligence be proved. Lockwoori v. R. Co. 17 Wall. 357. 3. Dnreasonable delay of the consignee, after notice by public advertisement of the time and place of discharge, according to the alleged custom of the port, is a.lso relied upon as a. defence. The point made is that after a reasonable time was afforded to the consignee to take away his goods upon their being unladen, the liability of the ship in-rem ceased; that even if there was negligence afterwards, for which the shipowners might be responsible in 8. new relation of warehousemen, the ship is not so liable. And it is insisted that the consignee should have come for his goods during the day, Tuesday, and that his delay beyond 5 o'clock on that day was unreasonable, and discharged the ship from all liability.