., TlIlI1 ALICE.
the rear part of tow increased the natural swing with the tide to the eastward. I do not find any evidence to show that the collision was caused by the place of the libellant's boat in the tow, or that it would have been avoided had it been placed elsewhere·.·The difference between the weight of his boat and others, and whether in the first or second tier, or the fifth, is not shown by any evidence to be material in causing the collision; and, as the hawser was from 100 to 120 fathoms long, any difference in the swing of the tow from this cause must have been very slight, if any; nor does it appear that the tow was made up in any unusual manner. As the libellant is himself apparently without fault, I regret that through some misapprehension of the facts all the parties concerned were not joined in this suit, so that the libellant's rights could have been finally adjudicated in one action, and the loss imposed where, upon hearing all the parties, it should seem to belon". But upon the proofs, as they appear in this action;! can find no legal fault in the Marshall, and have no alternative but to dismiss the libel, with oosts.
July 14, 1882.)
(District COU'I't, 8. D. Flo'I'ida.
That a party had but one blll of lading and did not deem it prudent to incur the risk of tke sea voyage from Antwerp, when it might be needed in more important suit, not deemed suflicient to admit in evidence a paper certified by United States consular certificate to be a true copy. 2.
A consular certificate is not evidence.
D. J. This is a suit for damages and possessIOn or cargo. The libellant presents by his proctor a paper by the United States consul at Antwerp to be a correct copy of an original bill of lading in the possession of Weber, the libellant, and asks that it be accepted as evidence in lieu of the origitial, upon the grounds that "libellants have but one copy of the original bill' of lading,and they deem it best not to expose that to the risk of long sea voyages before they can judge where their principal claim must be enforced." This refers to the fact of a fraudulent shipment and false bills of lading
which have appeared in other suits against the same. property, and
which have presumably given the libellants (they being consignees of a portion of the cargo and having made large advances thereon) an action against the shipper; and as the amount which can be recovered from this suit is but trifling when compared with that involved, the reason for withholding the original appears plausible; but when more closely examined I am not of the opinion that it offers such an excuse as would justify such a wide departure from the general rule of requiring primary evidence as permitting the introduction of the paper presented would require. It is much better that private interests ll,nd individual cases suffer delay, rather than that the rules of practice and evidence establiahed by the accumulated wisdom of generations in successive decisions should be broken easily down or ignored; and if the libellants have the originals, the production of them can be but a question of time, notwithstanding other interests. The general rule which requires the best evidence, namely, the introduction of the original documents embodying con· tracts, has, it is true, certain exceptions; but in every case such exception is based upon the inability of the party to procure the original; and this has been so repeatedly affirmed, and so conclusively established, that it can but be recognized as binding. The certificate attached to the copy states, and the libellants acknowledge, that the original is in their possession, and this takes the case from the rule of exceptions. I have heen referred to no c;ase, nor have Theen able to find one, where the inconvenience of parties or prospect of an original being required in another suit has been considered sufficient reason for the acceptance of a copy in evidence. International commerce is of too great importance to have the possibility of success of fraud made any greater by breaking down any of the well-established protections for such documents as bills of lading or of exchange; and although there are no suspicious circumstances connected with this case, nor have I personally any .doubt of the integrity and validity of the libellant's cause, I do not consider that they have brought themselves within the rule which would authorize the acceptance of secondary evidence. Green!. Ev. § 84, and note; Renner v. Bank of Columbia, 9 Wheat. 581; Sebree v. Dorr, Id. 558; Hart v. Yunt, 1 Watts, 253; U. S. v. Reyburn, 6 Pet. 352; Cornet v. Williams, 20 Wall. 226; U. S. v. Laub, 12 Pet. 1; Stephen, Ev. arts. 66,67. There is another point which would rule out the copy as authenticated were the one considered insufficient. It has been conclusively decided in the courts of the United that a consular certificate
'Xu D. J. FOLEY.
cannot be accepted as evidence except where it has been made such by statute, (Levy v. Burley, 2 Sumn. 855; Ohurch v. Hubbart, 2 Cranch. 187; U. S. v. Mitchell 2 Wash. C. C. 188;) and although the acts of August 18, 1856, and of January 8, 1869, have added some force to consular certificates, and given consuls new powers in taking depositions, the law has not been changed in the points in question. . The application to admit the testimony must be denied, but time will be granted to procure the original of the bill of lading, or make a more satisfactory accounting for ,its absence.
THE D. J.
(District Oourt, E. D. Pennsll!flanla. .Iune 13,1882"
AnHIKALTY-SBRVICE 01' TuGS IN BREAKING
A tender is evidence that something is due, an acknowledgment of the fact; and where the evidence 8S to the service is in irreconcilable conflict the court will exercise its discretion as to its value.
Libel by the owners of the tugs Argonauta and Markee against the steamer D. J. Foley, to recover compensation for services' rendered. It appeared that the steamer, while on a voyage from Philadelphia to Honduras, found, after le,aving the Delaware breakwater, that her stem had been cut by the ice. She put back to the breakwater, and was there frozen in and unable to proceed. Her captfl,in telEigrap):J.ed to the owners that he could reach New York with less difficulty than he could reach Philadelphia, and he was thereupon ordered to New York. Subsequently he telegraphed that he could probably reach Philadelphia, but to this he received no reply. The tugs Argonauta and Markee, which, subsequently to the arrival of the steamer, arrived at the breakwater, broke a channel for the steamer and assisted in turning her, whereupon she proceeded to New York. The testimony as to the circumstances under which the assistance was rendered was conflicting, the libellants asserting that it was rendered u,nder the belief, induced by the captain of the steamer, that their services were required to tow the steamer to Philadelphia, and respondents alleging that they never made any contract for towage, and that the breaking of the ice by the tugs was not done for the benefit of the steamer, but was the necessaryconse·
.Reported by Frank P. Prichard, Esq" of the Philadelphia bar.