MENTZ V.THE SAMMY. MARTIN et
(CCrcutt COUrt, E. D. Louisiana.
ON ApPIUL. .
October 25, 1890.)
In" casas involving questionS· of faot only, depending on conflioting evidence and the orediblllty of witnesses, the oircuit oourt in admiralty wlll not disturb the decrees of the district court, where there is no preponderance of evidence, and no additional evidence oflel'ed 011. appeal. FOllowlni Duncan v. Th,e Nic1wlw, ante,
In Admiralty. R. DeGraYt for libelant. Frank for claimants.
PARDEE, J. To this C8.'le" tried and submitted at the last term of court, I have given a careful and laborious examination. The questions presented are questions of fact. The proper decision of· them· depends upon the credibilitJ' to be given the witnesses. The examination given the case raises some little doubt as to whether the case made by the libelant is not overturned by the claimants' evidence, But this doubt is not.of such magnitude, nor so well 'supported by the evidence, that the court can say that the findiJ)g of the district court based upon the same evidence" with opportunities to hear and observe witnesses,:is incorrect. For the reasons given in the case of The Nicholls, ante, 302, Gust decided,) the decree of the disfrictcourtwill·be affirmed. The following decree will be entered in the cause: This cause came: on to be heard on the transcript of appeal, and was argued by Mr. DeGray for the libelants and Butler 'for the claimants. Whereupon, and for the aforesaid reasons, it is ordered, adjudged, and decreed that 'the libelant,Mrs. Amelia Mentz, wife of E. D. Mentz, do have and recover from Martin & Dreibholz, claimants, and owners oLthe steam-boat Sammy, and from Newell Tilton, surety on tl16ir release bond,.in solido, the sumo! 8400 damages, and all costs of the circuit and district courts.
THE SAUGERTIES. THE SAUGERTIES.·
THE SAUGERTIES, (two cases.) SMITH et aJ..
November 25, lsoo.)
(DfBtrtet Court, 8. D. New York.
CARRIERS-JOINT ADVENTURE-PROTESTED DRAFT-FORFEITURE.
Upon the shipment of a cargo of ice upon a joint adventure, under a contract providing for the acceptance by the consignee of a sight draft for a guarantied sum, to be attached to the bill of lading, under which contract the consignee chartered the vessel on which the carg-o was accordingly shipped, and made advances for trans. portation pursuant to the contract, time not being made essential, held, that the shipper was not entitled to treat the contract and the charterer's rights as forfeited by the mere non-acceptance of the draft, or to deal with the cargo as his own. Upon such a joint adventure and shipment, the bill of lading made the cargo de· liverable to the order of the shippers. Held, that the bill of lading was controlled by the contract subject to which the ice was shipped; and that the master's copy, obtained at the port of delivery by the shipper to attach to the draft was insutlicient. though indorsed to the libelants, to require the vessel to deliver the cargo to them, while the other bill of lading was outstanding, without indemnity to the ship against the claims of the charterer for whom the ship held possession, subject to the contract; and that a suit for the ice thereupon was prematurely brought. On delivery of a cargo of ice, a considerable portion proved to be "struck." There was a valve in the pipe in the hold used for the discharge of condensed steam. Beneath the valve a large hole was found on discharge running throug-h the cargo, and considerable steam was at times observed in the hold. Held, upon conflicting evidence, that the damage was largely due to the negligent use or condition, of the valve by which the ice had become" steam-struck, .. through steam escaping into the hold: and the amount of such damage was allowed in the second libel, and offset against the amount due under the third libel as freight for the use of the vesseL
SAME-BILL OF LADING-llisTER'S COPY-INDORSEMENT-PREMATURE SUIT.
SHIPPING-NEGLIGENCE-STEAM IN HOLD-DAMAGE-FREIGHT.
In Admiralty. First suit to recover damages for non-delivery of cargo of ice. Second suit to recover for damage to the ice during transportation. Third suit a cross-suit to recover freight for transportation of the ice, and use of the vessel during delivery. Goodrich, Deady Goodrich, for Smith et al. Wing, Shoudy P'utnam, for the Saugerties and owner.
"BROWN, J. The above three libels have grown out of a shipment of a cargo of ice on board the barge Saugerties, by the Treats Fall Ice Company, of Rangor, Me., to the firm of C; L. Riker, of New York, in August, 1890. On the shipment, a bill of lading for the ice was taken by the company, making the ice deliverable to the company's own order. After the arrival of the baugerties at New York, the captain's copy of the bill of lading was obtained by the company for the purpose of drawing on Riker on account of the cargo, and, the draft not being paid, the company delivered the captain's bill of lading, indorsed by them, to the libelants, to whom they also executed a bill of sale. The first libel was filed September 23d, to recover damages for non-delivery of the ice to the
Reported by Edward G. Benedict, Esq., of the New York bar.