PAQUETTE V. A OARGO OF LUMBER.
CARGO OF LUMBER.
(District Oourt, S. D. New Yoi'l.. February 28, 1885.)
DXMURRAGE-VIS MA,JOR-OBSTHUCTION BY FIRE DEPARTMENT-CUST01I.
A canal-boat, laden with lumber, was sent to discharge at the wharf of S. & Co., who had bought the lumber of the shipper's agent. When she had been discharging there about two hours a fire broke out in S. & Co. 's lumber yard, adj(Jining, and two fire department boats, coming np along-side the canal-boat. laid hose across her, so as to prevent the further discharge of the cargo. This continued some four or five days, after which the resldne of the cargo was dischargcd. The owncr of the canal-boat libelcd the lumber for demurrage. No bill of lading was put in evidence, but it was proved that, by the cnstum in the lumber trade, four or five lay days upon such cargoes were ,,!lowed, and that it was the duty of the captain of the boat to put the lumber all the wlmrf, the obligation of the receiver under the custom being only to furnish a proper berth and room on the dock to receive the lumber; so that it might Ge discharged within that period. Such berth, facilities, and room were furnished by S. & Co. lIeld, that the hurden was upon the liGelant to prove that some fault of S. & Co. caused the delay; that wben it became necessary for Ih!! fire department to use thc position where the canal-boat lay, it was tbe duty of S. & Co. to provide means to discharge elsewhere, and they woul(1 have been liable had it appeared that the subsequent delay was cansed by·their inabiLty 10 do so. But the evidence showed that the firemen would not allow the boat to be moved, and that the libelant was unable to move her; lteld, tbat the obstruction caused by the tire department was In the nature of a superior force, for which S. & Co. were not responsible; and that the loss must remain Where it fell.
In Admiralty. Hyland J; ZabrIskie, for libelant. Goodrich, Deady r1: Platt, tor respondents. BROWN, J. The libel in this case was filed to recover damages in the nature of demurrage for seven days' detention of the canal-boat Mary A. Bigel!Jw, in the delivery of the lumber libeled, to G. L. Schuyler & Co., Forty-second street; East river. '£he lumber was brought from Canada, consigned to the shipper's agent here, and by him sold to Schuyler & Co. The boat arrived September 17, 1883, reported to the agent, and on that day was directed to Schuyler & Co. 's dock, where she arrived on the morning of the 18th. It was proved that, by the custom in the lumber trade, four or five lay days upon such cargoes were allowed, and that it was the duty of the captain of the boat to put the lumber upon the wharf ; the obligation of the receiver, according to the custom, being only to furnish a proper berth and room on the dock to receive the lumber so that it might be discharged within four days after reporting arrival. A proper berth" facilities, and room for unloading were furnished by Schuyler & Co. on the 20th; and at 7 A. M. on the morning of that day the boat, having been hattled to her berth; commenced to discharge. Two days were sufficient time to discharge. the lumber after commencing, and only that time was finally employed in the actual work of discharge. But about two hours after commencing the discharge a fire
broke out in the yard of Schuyler & Co., and two fire-boats belonging to the fire department came up td the wharf, made fast along the outside of the libelant's boat, and ran several lines of hose across his boat, so as to prevent any further discharge of the lumber. This continued some four or five days, after which the fire-boats moved away, and the residue of the lumber was discharged. The liability for demurrage, or damages in the nature of demurrage, must rest either upon express contract, or neglect of some duty imposed by law or custom. Where, by the terms of the bill of lading, the consignee has bound himSelf to discharge the vessel within a certain time, he must bear all risks of interruption. In this case there was no bill of lading put in evidence; consequently, the only ground of liability is some neglect of duty by Schuyler & Co. Under the custom allowing them four or five lay days, they were only bound to furnish reasonable facilities for the captain to discharge, by providing him with a suitable berth and space in which to discharge the lumber within that time. When it became necessary for the fire department to make use of the position where the canal· boat was, I think it was the duty of Schuyler & Co., under this custom, to pro· vide means to discharge elsewhere, as much as though the wharf at that place had tumbled down, or become unsafe through the elements; such as ice or storm, (Bowen v. Decker, 18 FED. REP. 751;) and any delay in furnishing such facilities would be at their risk, bec...use covered by the four or five lay days allowed by the custom. Had it clearly appeared that that deby was solely in consequence of their inability to furnish any other berth, I should hold them liable for the interruption through the fire. But the evidence does not establish this. On the contrary, it indicates that the firemen would not allow the libelant's boat to be moved, because it would interrupt their work. The foreman testified that he endeavored to get the ,fire.boats to let the canal.boat out, so as to go to another place; but the firemen said it could not be done, and refused to allow the boat to be moved. The libelant had employed Schuyler & Co. to discharge the boat. He made no request of the :liremen to be permitted to remove elsewhere. The burden of proof is upon the libelant to show that some fault of the respondents caused the delay. Fish v. One Hundred and Fifty Tons, etc., 20 FED. 201. Whether Schuyler & Co. had any other available berth or not (which does not clearly appear on the evidence) is immaterial, if the libelant was in fact unable to move his boat so as to avail himself of it; and such is the weight of evidence. Schuyler & Co. are not responsible merely for the obstruction caused by the interference of the fire department. When that interruption arose, it was equally the duty of Schuyler & Co. to provide another berth, and the duty of the libelant to go to it at once. TIte risk of ability to provide another berth was on Schuyler & 00. The risk of being able to get away from the obstrnction caused by the :lire department, and to go to another berth, was upon the libelant. As the boat could not
get away on account of this obstruction, and as this obstruction did not arise through any fault of Schuyler & Co., the boat was not kept there by their fault; and hence the delay was not through their fault any more than if the libelant's boat had been sunk at the birth assigned, and he had been unable, in consequence, to put the h,lmber upon the wharf within the time provided by custom. The obstruction was in the nature of a superior force; and if the libelant could not extricate his boat, the loss must remain where it fell,-as much so as if the delay had arisen from the boat's sinking at her berth. Fish v. One Hundred and Fifty Tons, etc., supra" and cases there cited; Ford v. Ootesworth, L. R. 4 Q. B. 127,133; Ounningham v. Dunn, 3 C. P. Div. 443; P08tlethwa,ite v. Freeland, L. R. 5 App. Cas. 599, 621. Any delay arising from other causes is fully covered by the amount tendered and deposited in court. The libelant will be entitled to the amount deposited. The costs must be taxed to either party according to the date of the payment of the money into court.
(Circuit Court, 8. D. New York. March 24, 1885 J
ADMIRALTY PRACTICE-ApPEAL-OFFER OF TESTIMONY WITHHELD BI!:LOW.
AD appellant will not be allowed to produce testimony upon appeal which he has deliberately withheld in the court below.
Motion to Suppress Depositions. E. D. McOarthy, for libelant. Thos. L. Ogden, for appellee. Butler, Stillman et Hubbard, for the Saunders. WALLACE, J. The appellee moves to suppress the depositions of witnesses taken in this court, by the appellant because, although the witnesses were present at the instance of the appellant at the hearing in the district court, they were not examined. It is insisted that a party should not be allowed to produce upon appeal testimony which he has deliberately withheld in the court below. Although appellate comts in admiralty treat an appeal as a new trial, and exercise great liberality in permitting new proofs and new pleadings in furtherance of justice, they are not constrained by any arbitrary rules which require them to receive testimony which ought to have been produced but was not produced in the court of original jmisdiction. In the case of The Maybell, 10 Wall. 419, 13 Wall. 738, the supreme court refused to allow a commission to examine witnesses because no excuse was shown in the moving papers why the wit-
nesses VI-tlre hot examined in the courts below. See, also, The Boston, 1 Bumn 331'; Coffin v. Jenkins, 3 Story, 120; Taylor v. Harwood, 1 Taney, 438. In Farrell v. Campbell, 7 Blatchf. 158, NELSON, J., held that where the appellant declined to appear upon the hearing in the district (IOutt, upon the refusal of that court to postpone the hearing, he could not be permitted to contest the merits of the decree on appeal. If parties arEl permitted to withhold evidence in the district court, take the chances of success without it, and then avail themselves of it by appeal in case of failure, the practice would tend to intolerable abuses. It would be unjust to the adverse party, because he might prefer to abandon his case if the testimony had been presented, rather than incurfurther expense and labor in litigating. It would be trifling with the court of original jurisdiction by invoking its decision upon an hypothetical case while withdrawing the real case from consideration. It would impose unnecessarily upon a court of appellate jurisdiction the duty which appropriately belongs to a court of original jurisdiction. authorities referred to justify the granting of the motion.
FllAZEU LL:BRICATOR CO. V. FRAZER.
and others, Partners, etc. 1
(Circuit Cou'rt, D. Minnesota.
JURISDICTION OF CIRcorr
An Illinois corporation brought suit in the United States cireuit eourt for the district of Minnesota against S. F. & Co., a firm composed of citizens of the state of Illinois, and their agents, Z. & H., who were citizens of the state of Minnesota, to restrain them from infringing its trade-mark in the state of Minnesota. Held, on motion to dismiss for want of jurisdiction on the ground that the substantial controversy was between citizens of Illinois, Z. & H. having by answer disclaimed the alleged agenc,r and denied any interest iu the suit, tllut the circuit court had jurisdiction.
Motion to Dismiss. The bill of complaint is filed by a corporation, citizen of Illinois, against defendauts to enjoin them from using a trade-mark belonging to the complainant, or an imitation of it calculated and intended to deceive the public, and advertising that they kept on hand and were the sale agents for the sale of such axle-grease indicated in trademark. The trade-mark used by complainant is "Frazer's Axle Grease," printed on a label, with devices and pictures of wagons with horses and drivers, and other representations of a peculiar character. The bill charges that the defendants Frazer & Co. manufacture a sim· ilaraxle-grease, and attached a label marked "Superior Axle Grease, manufactured by Frazer & Co.," with devices so nearly alike that used by complainant as to deceive the public; and that it is used for the purpose of fraudulently deceiving and misleading persons who buy and use axle-grease. There is also an allegation that defendants Yanz & Howes are the agents of Frazer & Co., in St. Paul, Minnesota, for the sale of axle-grease manufactured by them, and so advertise themselves, and are selling the said axle-grease labeled with the devices substantially similar to the trade-mark exclusively owned by complainant. An injunction is prayed for, etc. The defendants composing the firm of Frazer & Co. are citizens of Illinois. Yanz & Howes are citizens of Minnesota, and reside in the city of St. Service of subpcena is made on Yanz & Howes, and this firm alone appear and file an answer, denying that they are agents of Frazer & Co., and allege that they purchased the axle-grease received and for sale by them in the open market in the course of trade, and that they have no interest in the other matters charged in the complaint. Replication is filed. The title oHhecomplainant to the trade-mark and the manufacture of "Frazer's Axle Grease," as set forth in the bill, is derived from certain assignments of letters patent, and contracts between the comFrazer, one of the defendants. A plainant, its grantor!3, and motion is made to dismiss bill for want of jurisdiction. The princi1
Repor\ed QyRobertson Howard, Esq., of the St. Paul bar.