cumstances. The necessity for putting up wind-sails at the pier must be shown, and that it would have prevented the sickness and death; and that the damage was the direct and proximate result of the omission. This has not been done. The continuance of the mortality through Wednesday, although the wind-sails were put up before reaching Sandy Hook, and kept up, and the bad condition of the surviving between-decks cattle, lead irresistibly to the conclusion that thing was the keeping the oattle at all in the between-decks the of that ship in that weather, and not the omission to put up windsails at the pier or to keep the cattle on the pier till the hour of sailing. Certain it is that, with the ship as she was from Sandy Hook on, with wind-sails up and all the appliances she had in use and the hatches open, in view of the causes operating and of the reilults, no possible discrimination can be made between the damage resulting from the operation of those causes before reaching Sandy Hook and the damage resulting from those causes after reaching Sandy Hook. The evidence is aU of it very vague and general. There was not, on the part of anyone, any intelligent observation of particular animals as there might have been, so as to show that they sickened or died from the effects of the heat at the pier. All the deaths and all the sickness and all the damage cannot on the evidence be legally attributed to the subjection of the cattle to the heat in the between-decks before reaching Sandy Hook. must be dismissed, with costs to the olaimant in both The courts.
See 5 FED. REP. 875.
THB KATB.(DiBtricHJourt, E. D. Penn81/lfJania.
CaRtAGB OJ' GOODS RY W ATEa-DUTY OJ' CONSIGNEE TO Rmt:oVlll GOODS J'ROJrf WllARJr-WllAT IS REASONABLE NOTICE.
A bill of lading stipulated that the consignee should take the goods from the ship immediately she was ready to discharge. The ship arrived at the dock on Saturday, and on the same day, between 11 and 12 o'clock in the forenoon, notice was sent to the consignee that she would discharge on Monday. The cargo was discharged on Monday, and part of it placed on the pier uncovered although there was a shed on the pier at the end furthest from the vessel:
.Reported by Frank P. PrIchard, Esq., orthe Philadelphia bar.
she is ready to discharge, any custom of the port to the contrary notwithstanding, otherwise it will be landed or put into craft by the master '. · · at the merchant's risk and expense. The ship's resposibility to cease immediately the goods are discharged from her deck." On the ship's arrival it was the master's duty to give reasonable notice of the time and place of discharge. Whether he performed this duty is the only question involved. If he gave notice ouSaturday morning, as respondent alleges, it was reasonable and sufficient. The duty of proving he did is on the respondent; and if the fact is left doubt a decree should go against him. I think, however, it is not leftmdoubt., A young man was sent with notice at the time named. N6 eopy '\tas retained nor ,is the young man produced. It is said he is beyond convenient reach. The answer admits, (impliedly at the receipt of notice on Saturday forenoon. The suggestion that itdid'.Jibt contain a statement of the time and place of delivery is not sustained. The libel, as originally drwwn a'verred the absence of such notice. The libellant, however, was unwilling to affirm this, and the word "sufficient" was inserted by the clerk before qualifying him. This seems like an admission that the notice was specific and particular. Such no It 'is quite plain that tb'e libellant's only.objectio:p.to it wasjts insufliqie:p.c.y, as he supposed, in point of, time. Depending upon the general custom respecting permits #on,lihe.cllstODlS he more. time would be aftel'.theveasel's Ilrrrival, in preparing to deliver the wool than was actually necessary, land that' he would thus be afforded more ,time in preparing to receive it than the This is, 'made 'plain by his own testimony. After admitting the receipt of notice on Saturday forenoon"the examination proceeds:
Will you me why you did not" go at once on Slj.turday, on receiVing the notice of which you have spoken, and take charge of it?" Because it is out of custom. Our customary way is when wool comes in that it is put under sheds, and stays there until we have paid our dullies, and gone through all the performances; and we don't know but what it is under proper protection until it is handed to us, and we have done with·tbis cargo as with all the rest."
Bereisthe secret of all the trouble. He had no right to rely upon this custom. Having contracted' to take the w.ool from the ship as soon as she could prepare for delivery, he was bound to do so, regardless of all customs. As before remarked, the notice on Saturday forenoon l of a purpose to deliver on Monday morning, was' Buffieient.
If he thought otherwise he should, at least, have objected. He, however, gave the subject no attention other than to send the paper to his broker. It was his duty to be present on Monday morning and receive his wool. In his .absence the respondent was justified in placing it on the wharf, as he did. He was not required to store it, or place it under cover. Had the libellant been present, in accordance with his duty, it would not be suggested that the place of deposit was improper. Could he by disregard of duty impose on respondent the labor or expense of placing it elsewhere? Certainly not. If loss ensued it was from his own fault. The respondent did not undertake to store tbe wool, or in anywise protect it after leaving the ship. On the contrary, as we have seen, the lipellant contracted to take, it when ready for discharge and relieve the respondent from suchdllty. The question, however, as before suggested, is one of notice simply, and this having been decided against the libellant, his complaint must be dismissed with costs·.
CmuSTIAN f1. VAN, .TASSEL.
(Di8tricf Oourt,8. D. N6'ID York.
June 22, 1882.)
The owner of a slip where canal-boats are in the habit of coming' in to discharge their cargoes at theowner's elevator, is bound to keep it free from injurious obstructions at the head of the slip, or to warn vessels thereof.
2. SAME-EFFECT o F N o T I C l l l . ,
Where the libellant was notified that the water' at the' head of the l!lip ,was shoal, and in order to bring his after hatch beneath the elevator brought the bows of his boat up near to the bulk-head at about high tide, and.when . the tide fell, a few feet of her bow grounded upon some stones in the. bank, of which stones the libellant was not notified, and the bows being high 'out of tbewater the boat was strained bytbe weigbtofcargo in the center, 8sthetide fell, causing leakage and damage to the cargo, and no diligence being proved in observing when she first grounded,. or any; attempt toJmul her odf· immediately thereafter, and it nota.ppearipg:that w)}en eff(Jrt/j were madew.'hau) her off they would have been s,uccessful put for the stones, a,lgping bank and the boat's grounding thereon at the libellant's risk, after I\otios, were the primary cause of the damage, aggravated by the' stones, which 'increased the difficulty of for which tpe de(endant wasresponsible; IWd'Qoth causes concurring, and riot being,distinguishlible, the libellant should recover but half his damages. " " , · " -.'
« Iiubbard, fOJ; respondent.