titrength. Its insufficiency, though latent, was legally the risk of the vessel. Work v. Leathers, 97 U. S. 379; Wilson v. Griswold, 9 Blatchf. 267; Hubert v. Recknagel, 13 Fed. Rep. 912; The Lillie Hamilton, 18 Fed. Rep. 327. In the case of The Titania, 19 Fed. Rep. 101, there was no long lapse of time during which the original fastenings might naturally have become weak. The fastening and the careful inspection were recent. Here the contrary is the fact. To be ascribed to a peril of the seas, the burden of proof is upon the vessel to show that the plate and cap were probably carried away by extraordinary contingencies not reasonably to be anticipated. The evidence does not, in my judgment, disclose any such extraordinary condition of things at the early hour of 4: 30 to 5 A. M. of the 10th, considering the time of the year and tbe depth of loading under which the vessel set sail. It does not appear that she lost a spar or a bit of canvass, although there was doubtless a long continuation of heavy weather. The improbability that any of the supposed causes should have carried away the plate, if it had been properly secured at the time of sailing, without doing any other damage to the bulwarks or stanchions adjacent, I deem so gl'eat that I feel constrained to ascribe the cause, in the absence of proof of any thorough trial or inspection of the plate before the schooner sailed, to the gradual weakening of the fastenings during the 11 years since the vessel was built. Fully appreciating the uncertainty and embarrassment that attend the case, I must allow judgment for the libelant, and direct an order for reference to compute the damages.
THE DENMARK.1 FRITZSCHE v. THE DENMARK and others.
(District Oourt, 8. D. New York.
April 5, 1886.)
CARRIER OF GOODS BY VESSEL-BILL OF LADING-VALUABLE CARGO-VALUE CONCEALED- Loss-LIABILITY.
A quantity of highly valuable musk was shipped on the steamship D., under 8 bill of ladmg which read: "Not accountable for * * * highly valuable goods, or beyond the amount of one hundred pounds sterling for anyone package, unless bills of lading are signed therefor, and the value there III expressed, and freight paid accordingly." The value of the musk was not disclosed by the shipper, nor was extra freight paid. It was usual to pay a much larger freight on musIc The musk was shIpped with another case of smaH value, and like it in external appearance. On the the box was rifled, and the musk partly lost. There was no evidence of llltentional wrong, or want of ordinary care on the part of the ship. Held, that the shipment was presumptively in bad faith,and that the stipulation of the bill of lading protected the carrier, and that the libel should be dismissed.
JRellOJICd by Edward G. Benedict, Esq.,'ofthe New York bar.
142 In Admiralty.
Sanmel V. Speyer and F. A. Wilcox, for libelant. John Chetwood, for claimants.
BROWN, J. In September, 1880, Fabre & Co., of London, as agents for the libelants, shipped a chest of tea, and two other cases, marked, respectively, F. B. 3, F. B. 2, and F. B. 4. F. B. 2 and F. B. 4 were boxes of similar size and form; F. B. 2, containing acid of benzoin of the value of £15 16s. 8d., and B'. B. 4 some glass bottles, and three small tins of Tonquin musk, of the value of £202 3s. The musk was in pods, and very valuable, worth £2 lOs. per ounce. The bill of lading contained, among numerous other provisions, the following:
"Not accountable for weight, contents, value, length, measure, or quantities or condition of contents; nor for money, documents, gold, silver, bullion, specie, precious metals, jewelry, precious stones, or other highly valuable goods, or beyond the amount of one hundred pounds sterling for anyone package, unless biJIs of lading are signed therefor, and the value therein @pressed, and freight paid accordingly."
No value was mentioned in the bill of lading, or stated to the carriers on loading, or any extra freight paid for the highly valuable case of musk. On goods of such character, if known, the customary rate was 1 per cent. freight,-very much higher than was charged in this case. Valuable articles, whose value was stated and freight paid accordingly, were usually stored in the store-room of the ship, and a special receipt given for them. Goods of all sizes, not valuable, and simply requiring dry stowage, were put into hold No.2 orlop,-the smallest hold of the ship. The goods in question, not being shipped as valuable, were stowed in No.2 orlop. On the voyage to New York the box containing the musk was rifled, and its contents scattered, apparently by some person ignorant of its value. A portion of one of the cases was lost. One was subsequently recovered partly filled, and the other nearly or quite empty. This suit is brought for their value. The other two cases were delivered uninjured. The libelant's agents must be assumed to have been acquainted with the fact that extra freight was by custom always payable on musk, as "'ell as with the usages of this line of steamers, and with the bills of lading, and their stipulations, including the stipulation above quoted. These stipulations had been long in use; and it was the plain duty of the shipper to make known the extreme value of the musk package, and to pay freight accordingly, both from the custom and from the express stipulations. I cannot regard the shipment of these valuable articles as ordinary merchandise, along with other cases of small comparative value and of similar external appearance, without making known the great value of one of the cases, as other than presumptively a fraudulent concealment and imposition upon the carrier. The right of a carrier to protect himself against claims for extraordinary damage by stipulating for notice of articles
specially valuahle, in order that special care may be given to them, and to require the payment of a proportionate compensation, is now too well settled to be questioned. Muser v. American E.rp. Co., 1 Fed. Rep. 382; The Hadji, 18 Fed. Rep. 459; Hart v. Pennsylvania R. Co., 112 U. S. 331; S. C. 5 Sup. Ct. Rep. 151; Magnin v. Dinsmore, 70 N. Y. 410. No express inquiry by the carrier was necessary. The duty of disclosure was incumbent on the shipper. Good faith required it. Warner v. Western Transp. Co., 5 Rob. 490; Tate v. Hyslop, 15 Q. B. Div. 368. By whom the box was broken open is wholly unknown. There is no evidence by whom it was done,whether by a passenger or by one of the seamen. r.I:here is no evidence of any intentional wrong, or of want of ordinary care, on the part of the ship. The stipulation of the bill of lading must, therefore, be held a protection to the carrier, and the libel must be dismissed, but, under the oircumstances, without oosts.
WRIGHT and others
THE IRTHINGTON, etc.
(District Oourt, 8. D. New York. .March 30, 1886.)
SHIPPING- AnvANCES-ATTEMPT TO CoLL RCT THROUGH CHARTERERS-ESTOPPEL.
W. & Co., agents of the charterers, made advances for the benefit of the steamer I. and owners, which the owners were bound to pay, and afterwards endeavored to have them collected by their principals, the charterers of the vessel; which arrangement the latter at first agreed to, and accepted a draft which included the advances, but soon afterwards repudiated the arrangement. The owners adopted libelant's claim into their accounts as a credit to the charterers: but it did not appear that the latter ratified such act of the owners, or that any payment was made by the owners to the charterers on t,he faith of it which was not owed the charterers irrespective of libelants' claim; and the libelants' claim was never paid by the owners. Held that, as the situation of the owners had not been in any way changed to their prejudice through the libelant's original request to the charterers to collect the claim, there WitS nothing amounting to a legal estoppel against the libelants. and, their claim being a valid one, they were entitled to recover agains't the vessel.
In Admiralty. Wilcox, Adams It Macklin, for libelants. E. B. Convers, for claimants. BROWN, J. The advances made by Wright & Co. were sllch as did not belong to their principals, the charterers, to pay, but were for the benefit of the ship and her owners. The evidence on the part of the claimants, fairly considered, does not show more than that Wright & Co. endeavored to have their principals, the charterers, collect the advances from the owners for the libelants' account. The libelants' evidence shows clearly that the advances were not made a charge against Schultz as debtor, but only placed in his account for the pur·
by Edward G. Benedict, Esq., of the New York bar.