the front device, running through the tongue, will prevent the tilting of the point of the plow when raising it out of the ground. OWrm's PatentNo. 2, No. 132,772, patented November 5,1872. In this patent the plow, when elevated, may be locked to insure proper depth of furrow; but when a small falling and locking lever, which is pivoted to a pawl asa balance, is thrown back, and the plow is lifted so.that the pawl is withdrawn from the ratchet, it will drop to the ground. The lever used will lock the plough so as to prevent it from going deeper, but the point of the plow cannot be raised by the lever. ,WorreU Patent, No. 134,121, dated December 17, 1872. There is n() locking lever described in this patent as in Starling's, and no device like his for raising the point of the plow, orlocking the plow in the ground. HarrilJon Patent, No. 143,147, dated September 23, 1873. This invention has a device attached to the hub of the right wheel, by means of which the plow is raised out of the ground by the power of the team, but no hand or foot lever arrangement for raising the plow out of the ground. Neither of these patents have the combination of the plaintiff, for the purposes described in his patent, and do not anticipate the invention. The conclusion is that the plaintiff is entitled ,to a royalty on 1,310 plows, at $2.50 each, making the amount of $3,275, for which sum judgment is ordered.
WmCHERS SUGAR REFINING
(Dinrict (Jourt. 8. D. New York. January 25, 1887.)
OAR:RIBBS-OF GOODS BY VESSEL-BILL OF LADING-PBESUHPTIONS-EXCEPTIONS-"WEIGHT UNKNOWN"-SHORT DELIVERY.
The stamping of the bill of lading by the master, with the words "weight unknown," repels the prima facie presumption as to the weight shipped, which otherwise arises from the statement of the weight in the margin of the bill of lading; and, in case. of alleged short delivery in weight, other proof of the weight shipped must be made. , Where sea damage may arise from different causes, either with or without negligence in the ship, the nature and extent of the damage maY' be material in determining to which cause it should be assigned. Held, in this case, not sufficient damage proved to establish presumptive negligence in the ship.
S. SAME-SEA DAMAGE-EVIDENCE-EXTENT OF Loss-NEGLIGENCE.
SAME-DAMAGE TO CARGo-DUNNAGE-SWEATING.
The bill of lading for 4,800 bags of sugar, loaded at Havana, to be delivered at New York, stated in the margin the aggregate net weight; In the body of the bill of lading it was stated, Weight and contents unknown;" and across the falle of the bill of lading. there was a1so stamped, "I do not know the weight or contents, and am not liable for sea damage." Upon a libel filed against the ship, short delivery in weight, and injury through want ofdunnage, it appearmg that the ship had met with very heavy weather, being. for a time nearly upon her beam-ends, when the pumps would not suck; and some lOBS thereby necessarily arising through drainage in the bilges, without the ship's fault; and only 1 bag being empty. and onl,Y 80 bags being apparently"slack;" and the stains upon some 1,600 bags bemg shown by proof,
F. O. MATTHIESSEN &. WIECKERS SUGAR REFINING CO. V. GUSI.
and the circumstances, to have arisen mostly from sweating. a sea peril; and no evidence of the weight shipped being given. other than the bill of lading; and the whole number of bags shipped being delivered: held, that there was no sufficient proof, either of the amount of lOBS in weight, or of the number damaged by sea water, as distinguished from sweating, to establish either an;r actual loss through want of customary and sufficient dunnage, or any neglIgence of the ship, as the cause of loss.
In Admiralty. SidruYJI Chubb, for libelants. Ja8. K. HiU, Wing k Shoudy, for respondents.
BROWN,J. This libel was filed to recover for loss and damage to 4,800 bags of Bugarbrought from Havana to New York, in December, 1885. Upon the evidence, it appears that about 1,614 bags exhibited external marks of stain or damage, 30 bags were "slack," and 1 empty. The slack and empty bags, as the proof shows, were not a greater loss than is usual in voyages at that season, and in tempestuous weather. Two severe gales were encountered on this voyage, and for a considerable time the vessel was nearly upon her beam-ends, so that her pumps would not draw. The slack and empty bags came from the bilges. Under the circumstances, this small lOBS in slack and empty bags shows no evidence of negligence on the part of the ship, since some loss by drainage, under such circumstances, was unavoidable, without any presumptive fault of the ship. Such a loss presumptively falls within the excepted perils of the seas. There is no sufficient evidence to show any material loss of weight beyond the slack and empty bags. Allowing the very considerable excess of tare claj,med by the libelants over that estimated at the custom-house, the actualloBB in weight, as compared with the net weight stated in the bill of lading, is but 2,213 pounds, a very small difference; certainly not a proof of negligence, under the circumstances of this voyage. The libelant claims an alleged natural increase in the weight of sugar. But there was no proof on this subject. Some cargoes lose in transit; others gain. Nor is it, in my judgment, competent to charge the ship with a loss of weight upon a mere comparison of the weight stated in the margin of the bill of with the estimated proper gain on the voyage. The bill of lading, besides the printed statement, "Weight and contents unknown," had also stamped across its face a special clause, "1 do not know the weight, or contents, and am not liable for sea damage." The whole number of bags received was actually delivered. The master testified that he haq no knowledge of the weight, except that stated and given to him on making out the bill of lading. I know of no case where, under such circumstances, the bill of lading was treated as sufficient evishipped, although there is such an intimation in the dence of the case of The Sloga, 10 Ben. 318. But proof was there made of the actual weight put aboard. In the subsequent case of The Ismacle, 14 Fed. Rep. 491, under a similar bill of lading, proof of the weight on shipment was held necessary, and this was affirmed on appeal j and even the additional proof taken was held insufficient by Mr. Justice BI,ATCIIFOIl.n. 22 Fed.
phalia, 19 Fed. Rep. 123.
See OkLr'k v. Barnwell, 12 How. 272, 283; The Querini Stam-
The English authorities seem to sustain the same view. Jessel v. Bath, L. R. 2 Exch. 267; Lebeau v. Genf/l'<il Steam Nav.Oo., L. R. 8 C. P. 88, 96; The petf/I' der Grosse, L. R. 1 Prob. & Div. 414; Scrutton, 52. When the vessel takes no part in ascertaining the weight shipped, and by the bill of lading states "weight and contents known," there seems to me no reasonable intendment, from the mere statement of the weight as given by the shipper, that the master means to accept that stlttement as binding on him, or as any evidence of the weight shipped in case of an ascertained shortage on delivery; or to assume the burden of proving the actual weight shipped in a distant port. So intolerable a burden upon the ship seems to me to afford the strongest presumption of a contrary intent. In the present case the circumstances are stronger. The special stam ping of the words, tc I do not know the weight," upon the face of the bill of lading, clearly repels any presumption that the ship was to be held in any degree to the precise weight stated in the margin of the bill of lading. The burden, in case of alleged short delivery, rests, therefore, upon the libelant to prove the weight shipped by other evidence than the bill of lading. Nor is there sufficient proof of any actual damage to the sugar beyond that incident to the proved sweating,which is a sea peril; though the bags were shown to be stained. None of the libelants, and no person in their employ. who presumptively would have known of the damage tG the. sugar and the nature and extent of it, were called as witnesses. The very imperfect and casual inspection made by the witnesses for the underwriters is not, to my mind, satisfactory proof that the cargo was damaged otherwise than to a very limited degree through the proved sweating. The respondents' evidence proves that there was sweating apparently sufficient to account for the stains upon most of the bags. The witnesses on both sides say that the stained bags came out from amid others not stained, which, is an evidence of sweating, and not of damage from want of dunnage. The evidence as to dunnage is very conflicting; but much of the difference in the opinions of the experts wonld seem to be explained by the peculiar model of the vessel. The sharp angle of her bottom, it is shown, affected materially the requisites in the details of dunnage, and the depth necessary along the bilges, according to the usual custom in such cases. The case is one in which, owing to the different causes from which damage may arise, proof of the nature and extent of the damage is essential, in order to determine whether there was presumptively, or in fact, any negligence in the ship. I do not think the libelant has dently established such negligence, (Six Hundred and Thirty Quartf/l' Casks of Sherry Wine, 14 Blatchf. 517,) and the libel should therefore be dismissed, with costs.
'lHE N. B. STARBUCK.
THE N. B.
(Disf!rict OO'Url, 8. D. N6lD York.
January 81, 1887.)
CoLLISION-WHARVES AND BLIPS-WEAK BOATS-WANT OJ' NOTICE.
It is negligence and a fault for old and weak boats, without giving notice of their weakness, to expose themselves along the wharves and slips to the hazards of ordinary contacts and blows from other vessels; and upon injury from a blow, unjustifiable as respects a good boat, they should in such cases recover but half their damages.
In Admiralty. Goodrich, Dea.dy Goodrich, for libelants. (hrpenter Mosher, for claimants. BROWN, J. On the fourteenth of September, 1884, the steam-tug Starbuck, with the Wallace, a large vessel, lashed upon her port side, went up the East river with the flood-tide, for the purpose of landing the Wallace along the side of the Noble-street pier, Brooklyn. On account of the size ofthe Wallace, it was necessary to land her first against the outer end of the pier. While the tug, some distance out in the river, was rounding to against the tide for that purpose, the libelant's schooner, Nellie Bloomfield, bound for the same dock, ran in and occupied the end of the pier. A few minutes before, the schooner Collins had occu,pied the same place, and, in order to make room for the WaUace, had dropped astern into the slip above, with her bowsprit heading down, across the ,Noble-street pier. 'rhe libelant's schooner was requested to remove in order to permit the Wallace to come along-side; and, for that purpose, the Collins was moved further ba,ck in the slip, along-side a bath-house, which was moored in the slip some 30 feet from the end of the pier, and the libelant's schooner dropped back into the previous po,sition of the Collins. heading down river, and along the westerly side of the bath-house. This brought her starboard side nearly in line with the end of the pier. The tug therenpon came up with the Wallace alongside the pier, and, in doing so, the Wallace struck more or less heavily against the side of the libelant's schooner, in consequence of which some of the timbers and planks were found to be broken, or crushed, for which this libel was filed. There is considerable dispute in regard to some of the details of this case. It is not necessary to speak of them at length. The weight of proof, considering the opportunities of the witnesses for observing the nature of their respective duties, and the impression naturally made upon their minds, is, I think, decidedly to the effect that the Collins lay along the northerly side of the bath-house, with her bowsprit pointing in a direction nearly across the river, so that the libelant's schooner could' notrnove further out of the way without the aid of a tug, or unless the Bloomfield were first moved further away I cannot find it a fault,