for ,their wages, then s\leh lien l under the rule recognized and enforced bythesuprelne court jn the cases abovecjted, is superior and parathat of the Upited States. Upon the facts disclosed upon the record inthis cause itntuat be held that the:seamenhave a lien uponthe proceeds .of the vessel fot the wages due thelli, and that such liens are entitled to priority over the claim ,0fthegovernm$1t.
EATON 11. NEUMARK
(Circuit Oourt, S. lJ. New York. October 8, 1888.)
SJnpPJ;NG--CARRIAGE all' GooDs-DELIVERy-DuTY, Oll'
Bills of lading for a consignment of iron rails, of wliich 88 tons were to }Ie delivered' to respondents, and 180 tons to a third person, contained the clatlse. "vessels .1,lpt Iiumberof pieces or weight." It appeared that the entire consignment weighed 20 tons I11SS than the billsrecite4; that respondents rllceived 28tODS less than their bill 'called for, and the .othcr consignee 8'tons more;· that the rails were discharged direct from the wbip :cars. of a railroad company authorized bY tl;111 consignees t6 "ccept dallv,ery; tb"t agents. in was delivllred, accepted it as what they were entItled'to, and shIpped It away by the cars. Helit. that though the IDastermay have bee.nindi1ferent in making the separate 4elivqry, yet. respondents' agents having to d.o his work,tqe burden was on respondents to shoW that the quantIty accepted by the agents wBs'lessthan should have been-delivered' to them, through some fault of the ship.:, ' :
In'j\,.d: Dliralty. On appeal from district court. 33 Fed. Rep. 891. , Libelhy Charles F. Eaton to recover freight on;8 oonsignment of iron l'lfoils. The Julius Neu,mark and others, pleaded as an offset shortage in qUllntity delivered. There ,Wall a decree in the district court in fl:\vor of the libelant, and respondents Ilppeal. , :4, Edgar Ar07tand Goo. E. SibleYI forappeUants. JameBK. Hill and Wing & Slwudy, forappellee.
WALLACE, J.. As the master gave separate bills of lading for the two consignments of old iron which he undertook to transport, it be'came his duty to make delivery to each of the two consignees of their respeotiveparts of the cargo, and to ,keep the· two consignments separate or distinguishable, so far ,as necessary in this behalf. The circumstance whole cargo was received from one shipper did not affect his 1'esponsibility,in this regard. The clause which was written in the bills of lading, "vessel not accountable for the number: of pieces or weight," did»ot,a.bsolve him from making delivery of all the iron he received, qualified the ·effect of the recital in the bill of lading of the number the the iron received,as an admission. It .was valent to a sta;tement by the master that he had not so verified thetmth of the admission as to be willing to adopt it as correct. AecOl'dil'lgto their bill of lading, the appellants, ·who were the consignees
of one of the shipments of iron,wereentitled to receive 881 tons. The consignees of the other shipment,Waulbaum & Co., according to their billoflading, were entitled to receive 180! tons. Thus the aggregate of both shipments, according to the recitals in the biJ1s of lading, was 269t tons. When the iron was discharged it was weighed by a.n officer of CUBtoms, and both lots togetherwerefourid to weigh 20 tons less than the weight called for by the two bills oflading. I agree with the district judge, that the evidence shows that the ship disc.harged inthe cars ofthe railway company all the iron actually received at Danzig, and that the amount actually received was 20 tons in weightless than the bills oflading called for. But the appellants received instead of 881 tons, while Waulbaum & Co. received 8 tons more than their bill of lading called for. The question in the case is not whether the master delivered all the iron received by the ship, but whether he delivered to the appellants that part of it which belonged to them under their biIloflading. When the ship arrived at Philadelphia the consignees of both shipments directed the iron to be delivered at the wharf of the Rea.ding Railway Company, where it had to be put on Mard the cars of that company. As was discharged an employe of the railway company designated which cars were the ones for each of the consignees. Besides selecting the railway company to receive the iron frOin them, and requesting the officer of customs to see that they got what belonged to them, and giving necessary information to the latter of the quantity which their pill of lading called for, the appellants gave no to the niatter. After the cars were loaded they were weighed, and dispatched to the respective consignees, under the supervision of the customs officer and the employe of the railway company. The master's duty ended when he delivered into the cars designated for the respective consignees the iron belonging to each. If any mistake was made by the employe of the railway company, or the customs officer, or either of them, in designating the cars Or dispatching them to the proper consignees, the master was not responsible for it, and the appellants cannot complain. What was delivered to the railway company pursuant to the directions given the master by the employe of the railway company or. the customs officer was delivered to the appellants, because they. had made these persons their agents for the purpose. As their agents assisted in selecting what was delivered, accepted it as what they were entitled to by their bill of lading, and caused it to be sent away by the cars, it is incumbent upon the appellants to show sat.isfac.torily that what was thus accepted was less than should have been delivered, and that their failure to receive all they should have received is attributable to some default on the part of the ship. The evidence fails shqw this, and is as consistent with the theory that the ship delivered to the designated cars all the iron that belonged to the appellants,and that one of the cars in which the iron was sent away was misdirected, as with any other theory of the facts. Although eight. tons more of iron were sent to Waulbaum & Co. than their bill of lading called for, there is nothing in the evidence to fix the master with the. responsibility for the mistake. The master seelUS to ha.ve assumed that
MELLOY tI. LEHIGH & W. COAL CO.
he owed no duty to the consignees of the two shipments to make separate delivery, but that, having stipulated in the bills ()flading not to be accountable for weight or number, all he was required to do was to put out all the old tramway rails he had on board, andlet each consignee select his own; and 1 cannot doubt that his indifference in this regard imposed additional responsibility upon the agents for the appellants, and to some extent embarrassed them in discharging their duties. Nevertheless, if they saw fit to undertake to do what it was primarily the master's duty to do,. no legal responsibility for any subsequent loss can be imputed to the master. As stated before, the only question is whether the iron be-longing to the appellants was delivered into their cars. They must show that some part of it was not thus delivered; and this they have not done. The decree of the district court would be more satisfactory if costs had not been allowed to the libelant. In aU other respects it is affirmed. Neither party is awarded costs in this court.
(DiBtriet. Court, 8. D. New York.
December 26, 1888.)
DEMURRAGE-LIABILITY OF FREIGHTER-ACCEPTANCE OF COAL ORDER.
2.SAME....,.P1uvITY OF CONTRACT.
That the respondents' delivery of the order to the master, with the in· tent that it should be acted on, and his action accordingly, imported an im· plied contract with him to load according to the terms of the accepted order.
(e) That the exemption from liability for or failure to load. did not cover any delay or failure by the respondent's WIllful neglect or fault.
4. SAME-CUSTOM OF PORT:
(d) That the custom·of the shipping point authorized delay by the freighter until all the kinds of coal required could be loaded together.
In Admiralty. Libel for damages in the nature of demurrage·. T. O. Campbell, for libelant. . Biddle &: Ward, for respondents.
BROWN, J. The libelant sues to re('over damages in the of de.murrage for the alleged detention of the H. C. Raw and Maggie Hager at Port Johnson, by not loading them in turn. On the 20th of June, 1888, Kurtz, Crook & Co., having purchased coal of the respondents, deliverable at Port Johnson, drew an upon their