502
FEDERAL RErORTER.
a few feet of sbore, althoughtbe uncontradicted proof is tbat the rules and customs of the barbor of New York and Jersey City forbid vessels from anchoring within 200 feet of shore. There was no stress of weather that justified him in mooring the sloop so near the dock that canal-boats, two or three abreast, could not have room to pass along the wharf without coming into contact with his cable, or in collision { with his vessel. The libel must be dismissed.
THE FERN HOLME.
(Di&trict Court, D. New Jersey. 1.
July 17, 1885.)
CARRIERS OF GOODS BY WATER-DAMAGE TO CARGo-IMPROPER STOWAGE.
On the evidence in this case, it cannot be said that the damage to the cargo was caused by improper stowage, and was not the result of the rough weather experienced on the voyage.
2.
SAME-DELlVERY-SHORTAGE-EVIDENCE-HILL OF LADING.
When the bill of lading acknowledges the receipt of 514 bags of canary-seed, .. weight, contents, and value" unknown, it will require more than naked proof that a weigher foun.! some of the bags a few pounds short in weight to !lold the vessel responsible for the shortage.
Lorenzo DUo, for respondent. J. On the eighteenth of December, 1883, W. H. Cole & Co. shipped on board the steamer Fern Holme, at the port of Liverpool, England, 514 bags of canary-seed for the port of New York. The merchandise reached its destination, and the libelants in this case, who were the consignees, received notice of its arrival on the seventh of January, 1884. The freight was duly paid and the delivery of the cargo demanded. It was landed from the steamer onto the dock at pier No. 43, Nortb river, when it was discovered that a number of the bags containing the seed were soiled by coming into contact with a Venetian red powder, which composed a part of the freight, in barrels, and which from some canse had escaped from the barrels during the voyage, causing the damage to the saeks. The libel alleges that the injury arose from careless and improper stowage, and demands damages, not only for that injury, but because the respondents refused; for the period of eight days after the freight was paid, to make delivery of the seed to the consignees, whereby a loss accrued to the consignees from a decline in the price, and also for a shortage of 386 pounds in the amount of seed subsequently delivered. The answer denies these allegations, and they are the only issues which are raised by the pleadings. It appears from the evidence that as soon as the consignees were NIXON,
s. B. Ransom, for libelant.
503
advised of the arrival of the seed they authorized their brokers, Kraus & Stettin, to sell the same on their account; that a written contract was entered into by them with McKesson & Robbins for the sale of the whole importation at two and three-fourths cents per pound, alleging the same "to be of good merchantable quality; to be approved of on the dock; sound bags only to be taken; stained or damaged, if any, to be rejected;" that draymen were sent to the dock to take the delivery of the seed; and that a controversy arose between the employes of the respective parties as to the nature of the receipt which should be demanded and given upon its delivery,-the respondents being understood to insist that they should be receipted for as in good order, and the libelants as wholly damaged. A long correspondence between the principals, causing a delay of more than a week, ensued before the parties could ascertain what the real trouble was. They then found out that both parties were willing that ,the receipts taken and given should describe the merchandise according to the actual condition of the packages. I should have no difficulty about the rules and principles on which the suit is to be decided, if I could find out what the facts were. I am bound to say that, after several years' experience in admiralty proceedings, I have never known a case where the testimony was more unsatisfactory on the material points. Before the libelants can recover damages for injuries caused by improper stowage, they must proved that it existed. It is sometimes to be inferred from the circumstances. But it ought not to be inferred in the present case that two or three barrels of Venetian red broke open, scattering the powder over other merchandise, from not being properly stowed, in view of the testimony of the captain that he had the most stormy . voyage which he had experienced for 15 years, and that the damage arose from the rough weather and the heavy laboring of the ship. The bill of lading exempted the vessel from all responsibility for losses arising from perils of the sea. The evidence also warrants the judgment that the delay in getting delivery of the cargo arose from a claim of the libelants' men that the seed should be receipted for as damaged, when they were not entitled to demand more than a receipt describing the actual condition of the packages. The bill of lading acknowledges the receipt of 514 bags of canary-seed, "weight, contents, and value unknown." The whole number of the bags was duly delivered. It will require something more than naked proof that a weigher found some of the bags a few pounds short in weight, to hold the steam-ship responsible for the shortage. The libelant has failed to establish his claim by the proofs, and the libel must be dismissed, with costs.
504: COKELEY
FEDERAL REPORTER.
and another v.
THE
SNAP.
(District (Jourt, D. New JlYI'sey. .iuly 29, 1885.)
.
TOWAGE-NEGLIGENCE-IcE-DAMAGEB.
On review of the evidence in this case, helil, that the contract was negligently performed, and that libelants are entitled to recover damage.. to the extent of the actual injury caused by such negligence.
Libel in rem.
NIXON, J. The libelants in this case are the owners of the canalboat Transport, and file their libel to recover damages for negligence in the performance of a towage contract. On the twenty-ninth of February, 1884, the steam-tug Snap took in tow, at the foot of Sixth street, in Hoboken, New Jersey, the canal-boat Transport,loaded with about 230 tons of bituminous coal, consigned to Spuyten Duyvil creek. She proceeded up the river with a fresh, south-westerly wind, and when she reached the mouth of the creek was unable to enter on account of the accumulations of ice on the eastern shore of the river, whither it had been driven by the westerly wind. The western or New Jersey shore of the river was comparatively free from ice, and the master of the tug towed the Transport to the western shore; but, not finding a satisfactory landing place at Fort Lee, proceeded onward to Shady Side. The canal-boat was deeply loaded, drawing about six feet and a half of water. The tide was half ebb, and there was only a sufficient depth of water to drop the boat at the river end of one of the piers at Shady Side. She was left there, against the remonstrance of the captain of the canal-boat, as the libelants allege, and with his passive assent, as the respondents insist, but with the promise from the captain of the tug that he would return the next morning 'and remove her to a more safe landing place. He did not return the next morning. The boat was suffered to remain there during all of the next day and night. On the afternoon of the succeeding day the wind changed to the east, driving the floating ice from the eastern to the western shore of the river. She was cut by the ice and caused to sink, thus inflicting the damage to the boat of which the libelants complain. The testimony is conflicting, but I think the libelants are entitled to a decree. The master of the tug undertook a certain service, towit, the towing of the boat to the landing in Spuyten Dllyvil creek. He was prevented by the ice from completing the trip, and hence was excusable for its non-performance. But his duty under the contract did not end there. He was still bound to take reasonable care of the boat and her cargo. He might have returned with her to Hoboken on the same afternoon, but he states that he was afraid to undertake
Hyland ct Zabriskie, for libelants. Wallis ct Edwards, for respondents.