to fespond for any judgment recovered by the libelant. After 80 long a delay, fOf the purpose of securing allllttainable evidence as between the defendants, the libelant's right to a decree, as it now appe:us from the testimony, should not be longer postponed; and a decree may therefore be entered in his behalf as againRt the Alert, which is no dou bt responsible to him, and an order of reference taken to compute his damages. The decree will be made without prejudice to the rights of the co-defendants as between themselves, or to any further decree that may be taken upon additional testimony as to the liability of the steam-ship company to bear the whole, or a part, of the same damages, or to indemnify the steamer in respect thereto. Instead of dismissing the steamshipc::ompany, the case, as between the two delendants, should, I think, be continued as between them, rather than send them to a new action; 110t merely in order to preserve the testimony already taken, but that the company may also be bound by the adjudicntion in regard to the amount of damages, in case the company should ultimately be held ans.werable thereforj it being not improbable that controvprsy may arise as to the rule of damages as well as to the amount. An interlocutor.)' decree may be entered in accordance herewith.
HARRISON t7. ONE THOUSAND BAGS OF SUGAR.
(Dtstrlct Oourt, E. D. Pennsylvania. December 19, 1890.)
A charter-party provided for the "freighting of a complete cargo of sugar, say 2,500 T. weight, "the'vessel to proceed to Philadelphia from "The freight to be paid on unloading and right delivery of cargo, at the rate of nine shillings sterling per twenty cwt. on intake weight." The act of God and peril of the sea excepted.. In drawing the charter the words "intake weight" were substituted for tlie printed word "delivered, n at the end of the sentence. Held, that the freight ·was payable at charter rates on cargo not delivered, by reason ota peril ()f the sea, as well as on that part. deliver\ld.
,Libel for freight by J. Harrison, master of the stpamer Weatherby. charterThe charter-party was in the ordinary form of a party for the full capacity of the vessel, under which cargo could be racflived from other freighters, as in a general ship. The clause' for payment of freight, as it stood in the printed form, read:-"The freight to be paid on unloading and right deli\'ery of cargo at thO) rate of nine shillings sterling per twenty cwt. delivered." The word "delivered" was out, and "intake weight" substituted. , Curtis 'lilum, for libelant. , A: delivery of all cargo, except what was lost by excepted peril; is a right delivery of tsltipping Co..v. Armitage, L. R. 9 Q. B. 99; The NarWall,,·g, Moort>, C. (N. S.) 245; RobiWion v. Knights, L. R. S'O. P. 465; CIl:rv.,oCarriageby'Sea,l 549; The (Juerini Stamphalia, 19 Rep. 126.
lReporteli by Mark Wilks Collet,Esq., of the Philadelphia bar.
ONE THOUSAND·· BAGS OF SUGAR.
pn,cargo' sold as perisbablewith shipper's ll:'nowledge and Shipping, §436. . Morl,onIP.Hm'r'Jli for respondent No freight is colIl'lltible on cargo lost by peril of sea. 1 Pa,rs.. Mar. Law, 217; Abb. Shipp. 430; Frith v. Barker. 2 Johns. 327; Bpai,l/ht v. Famworth. SQ. B. Div. 115; It is where a lump SUll1 is paid for the bi1'e of a vessel that such surn can be recovered where cargo is partly lost. Robv.Knights. Shipping 00. v· .t1rmita,ge.supra;' No freight is payable on cargo sold, and not delivered. .t1rmfoyd v. Insurance 00.,.3. Bin. 437; Hurtin v. Insurance 00,.. 1 Wash.C. C.630. .
BVTLER, J. The libel is for freight under a charter,the material proyisions of which are asfollows:. , .. Thesbip .. .shall proceed to a wharf at Hamburg and there load in the c\l&t-Q,mary manner: from freighters' agents, a complete carg-o of sugar, ...... II< proceed f()rth with to Philadl;llphi.a, and deliver thesarnt- alongside store.... ..... . The freight to be. paid on unloading anti right'delivery of carg,o, at the tate of ,nine twenty cwt. onintltke weight.......... The Bet or God, the penis df,thesea* ... except.ed.,d The freight to be paid in cBshat Ilott Ofdischargtl at'current rates of exchaqge r * ... on· the right delivery as aforesaid. ,The captain to sign sOOn as cargo is sl1ipped, as' /Jt·any rate of freight required charterers ; any cUffer6,ncebetween I,lill.\lof lading and chartere& in be10re if in
The vessel: met Iwith peril, andparfofihe cargo being seriously; damaged ,thereby, it was sold on the '\I,()yage .for charterer's benefit, ,and, the balance delivered at Philadelphia. The ship claims freight. on, the entire cargo taken in, while the charterer declines to pay ,more.than was delivered. . I.: ii The questiqn raised presents serious difficulty. The general rules applicable to the subject are well defined. In the absence of contrary stipulation, freight is earned only on cargo delivered. Where, however, the vessel contracts foJ' a "lumped sum," she is; ordinarily I entitled to the full amount, thoQgha part of the ,cargo be lost, without her 'fault. Where freight is pay;a,ble according to measurement or weight, and there is·difference inthisrespeet between the ports of lading and delivery, the latter governs.Whereparties,:to avoid this result, stipulate for payment according to "intake?' measurement or weight, the stipulation, 'ordinarily, operates to this extent, only, leaving the obligation to deliver unaffected. Where thecharteI'er voluntarily accepts cargo on the voyage; the right to freightls not disturbed.' The case before me does not fall distinctly within either class referred to. The contract is peculiar in certain features, and the questIon turns upon its construction. A printed form waseinployed, and but for the erasure of the word "delivered" and interlineation of the wordf! "intake weight," in the second sentence above quoted; no question 1VGuld arise.; The payment of freight would be limited, in plain terms, to the cargo delivered. It would read',' "the freight to be paid :ouunloading and right delivery of the cargo"at t11erate of nine shillings'ster" ling per ton of 20 cwt.,deliveredj" and if no other ohange, had been made than to add ,the words :weight," there would still: be no
question. The word "delivered," immediately following, would limit the freight to the part of cargo delivered; but this word being erased, it is, I think, clear that the parties must be held to have stipulated for payment on the entire "intake weight," unless the question is controlled by other language of the charter. In the absence of such other language the erasure mURt be regarded as a virtual declaration that the right to freight is not confined to the amount of cargo delivered, and the interlineation as a declaration that it is to embrace the quantity taken in. If the word erased had not been originally inserted there might have been room for an inference that the ordinary rule governing the subject, in the absence of contrary stipulation, was intended to apply, and sequently that the charterer wasta pay only on the quantity delivered; but the erasure precluded such an inference. We cannot treat the clusion of this word as an inadvertence; and if we do not, I repeat, the conclusion above stated (in the absence of the other language governing the subject) is irresistible. There is other language, however, to which the chatterer appeals; does it govern this subject? In the second sentence quoted (and in which the erasure and interlineation appear) are the words "to be paid on unloading, and right delivery of the cargoj" and in the succeeding sentence this language is repeated in a slightly different connection. If the question of interpretation presented by this language was new, it be difficult to answer. It was, howe\'er, directly involved in Robinson v. Knights, L. R. 8 C. P. 468, and again in Shipping 00. v. Armitage, L. R. 9 Q. B. 99, and after very full consideration the language was construed to require a delivery in good condition of such part of the cargo only as was not lost from excepted peril. Nothing can profitably be added to what is there said by the several judges who delivered opinions. Every suggestion of counsel is considered and answered, and the conclusion reached is as applicable here as it was there. It may possibly be thought that the construction adopted in these cases required the exercise of some ingenuity, and that the reasoning seems,strained; nevertheless the rule of construction is thus settled too firmly to be disregarded. That the freight contracted forin these cases was a "lumped sum" is immaterial as respects the question here under consideration. The language-identical with that now involved-was invoked to control and limit the right to freight as against the import of other terms of the charter, precisely as it is here. Here, however,. the construction is freer from doubt. 'l'he erasure of language, which (as printed) was plainly intended to limit freight to the quantity of ClJ,rgo. delivered, and the allowance of that now invoked to stand, seems t<>demonstrate the justice of the construction stated. Spaight v. Farnworth, 5Q. B. Div. 115, cited by the respondent, seems not to be in point. As I understand it, the question was not involved. The contract expressly provided for freight only on such part of the cargo as might be delivered. The language was, "Freight to be paid on deals and sawed lumber, on the intake measure of quantity delivered." Other features of the case before me, which were discussed, need not be considered. F"rthe reasons stated I must rega.rd the contract as binding the charterer to payment on tlae cargo shipped.
THE CITY OF PABA..
THE CITY OF PARA. l
THE CITY OF PABA.
(Dtstrict Court, S. D. New
January 16. 189L)
A steam-ship, running past Old Providence island, in mild weather, had the land in sight for 40 minutes. A haze rendered distances deceptive, and the master supposed himself some 7 miles olf shore. No soundings were taken and no caloulations made to verify the supposed distance. In faot, the vessel was within a mile and a half of the shore, and afterwards struck upon a coral reef located on the charts with which the vessel was provided. Held, that her navigation was negligent.
SAME-LIMITATION 01' LIAllILITy.,...PROXIMATE CAUSE.
The ship-owners, not privy to the faults which brought about the stranding, were held entitled to a hmitation of their liability; and the taking of thewesterly route, by the owners' direction, in consequence of some apprehension about the shaft, held not approximate cause of the stranding.
The damages recoverable against a vessel which has been negligently stranded, and hence damaged her cargo, include the loss of perishable cargo rendered·worth. less by delay, the partial damage to such cargo as has been brought into port, the costs and charges attending the salvage of the cargo, and damage by reason of differences in market prices from the delay in arrival; and the ship and bills of lad. ing being American, held governed by our law, and exceptions of negligence invalid.
In Admiralty. On petition f6r limitation of liability. Hoadley, Lauterbach « Johnson and O. Donohue, for petitioner. Carter « Ledyard, S. Chubb, Goo. A. Black, and A. R. McMahon, for insurance com panies.
BROWN, J. At 10:24 P. M. of May 17,1888, the steamer C'ityof Para, while on a voyage from Aspinwall to this port, struck on a reef about 11 miles off the soutb-westerly point of Old Providence island. After several weeks she was got off, and towed to tbis port, where sbe was repaired. A part of her cargo was not damaged; other parts, consisting of perishable fruit, were either damaged, or rendered worthless, by tbe detention, and thrown overboard. Large expenses were incurred in getting the vessel off and bringing her, with what cargo remained, into port. These expenses bave been paid mostly by the insurers of the different interests in ship and cargo. Large claims against the ship and her owners having thus arisen, upon the contention that the stranding was by negligence, or want of proper caution and care in navigation, tbe Pacific Mail Steam-Sbip Company, as owners of tbe steamer, filed a petition to limit tbeir liability, in case tbe stranding should be held negligent, at tbe same time denying this charge, and denying that the company was liable upon tbe alleged claims. An appraisement of the vessel was ordered. This was made by taking her value as she was when she arrived in this port, less her proportion of tbe salvage expenses in get· ting hex off and bringing her here. A bond was filed for the value as thus
by Edward G. Benedict. Esq., of the New York bar.
appraised, and the case has been brought to trial upon the issue of negligence raised by the answers of the various insurers and owners of the cargo. At the'time of the stranding the weather was mild. There was a little haze or mist that tended to make estimates of the distance of the island somewhat deceptive. This was not sufficient, however, to prevent the island being seen about 40 minutes hefore the stranding; and the position oLthe ship had been accurately ascertained a few hours before, by observations taken the previous noon, and at 5 o'clock following. ,The western end of the island, when first seen, bore about one-half a point on the port bow. The master continued his previou.s course for '15 minutes, running straight for the land. He then changed his heading H points to port, bring the land one point on his starboard bow, and, afte,rtunning 10 minutes more, again changed three-fourths of a 'point more to port. Fourteen minutes afterwards the ship struck. The master supposed the course taken would carry him 7 mih:s west of the land, inli!tead of Ii miles, as the event proved. ;,The re,ef was one of the numerous coral reefs of that region, all of which were located upon the chart with which the ship was. provided. Th,emasterintended to run to the westward of the reefs located upon the' chart.' The accident was due wholly to niiscalculation as to the distance he was running from land. No soundings were taken, nor any in order to verify the supposed calcnlations made, when near position ,of the ship. Upon this view of the facts, I cannot exempt the 'ship ffom liability. There was plenty of sea room to the westward. The position of the vessel at the previous noon and at 5 P. M. had been ascertained by observation. No real explanation is offered for running upon the reef, except the mere possibility of an unusual easterly current setting towards land, of which no specific proof is furnished. Admitting that it was desirable to make the western point of the island, no 'sufficierit'reason is suggested for not immediately turning to port when the south-western point of land was distinctly made a half point on the port bow, or for not sheering sufficiently, and by an ample' margin, to avoid the well-known reefs of that region. Alter this, when the land appeared to broaden off rapidly, and later, when it came nearly abeam, it was not difficult to determine, by observations and calculations that could have been made within a few minutes, the speed of the vessel being kn0wn, that the land was much nearer than the captain supposed it to be. If, as alleged, the lead could not there be used to advantage,a verification of the position of the shi pby such calculations, when approach,ing land in-the vicinity of dangerous coral reefs, seems to me a manifest duty. !tis impossible to accept running upon a m'ere surmise of the .distance of the land in the vicinity of such reels, and neglecting either to beara,way when the land was made, or to verify by a simple and easy observation and calculation its supposed distance, as a reasonable compliance with the obligations of prudent and careful seamanship. Bazin v. Steam,.Ship 00., 3 Wall., Jr., 229; Richelieu &: O. Nav. 00. v. Boston Marine Ins. 00., 136U. S. 408, 10 Sup. Ct. Rep. 934; The Montana, 17
Fed. Rep. 377. Upon this ground, therefore, I must hold the vessel and her owners liable for the damages caused by the stranding. It doe, not appear, however, tha1 the owners were in any way privy to the Jaqlt!! ,that brought about the stranding. Neither the condition western route, was its proximate or of the shaft, nor the adoption of efficient cause. The owners are therefore entitled to a limitation of their liability according 10 the provisions of Rev. St. §§ 4283-4287. The ship and bills of lading, being both American, are governed. by our law; and the exceptions of negligence on the part of the master, crew, etc., furnished no defense, The other clause in the bills of lading, as respects proofs of damages, becomes immaterial. If available as regards any particular claim, the question can be presented to the commissioner by any pf the contesting creditors, and the necessary facts will then more fully appear. The damages provable against the fund will include the loss of the perishable cargo, made worthless by the delay, andthrowllovel:tbollrd, as well as the partial dam,age to what was brought into port; and also all the costs and <:harges attending the salvage of the cargo,-that is to say, its propel' proportion of the aggregate cost and charges up to the time of its arrival' here, as well as any further damage, ifany, by reason of any difference in market price from the delay inarrival. The Gi-ulia, 34 Fed. Rep. 909; Tlte Belgenland, 36 Fed. Rep. 504; The CaledOnia, 43 Fed. Rep. 681. The charge :of the salvllge costs and expenses chargeable against the ship have been paid, as I understand, by the, ,owners of the ship, or br her insurers; and, having been once deducted jn ascertaining the appraised value of the ship, cannot be again preRented as a claim against the fund in court for-distribution. The sums properly chargeableagaillst the cargo, as for general average inr.urred in these salvage, expenses', are damages caused to the cargo by the stranding. They ,have no preJerence, so far as any facts before me would show, over l;lI1Y other claims against the ship or the fund in, court, for any other kind ,of, injury to the cllrgo brought into port, or for the loss of that which was thrown overboard. So far as appears at present, these claims, all stand upon an equal footing as. resPects the distribution of the fund. If. th,ere are any circumstances that affect the equality of the claims, they can be presented totbecommissioner before whom the proofs ill behalf of each creditor,or damage claimant, will now proceed. A decree may be prepared in accordance herewith.
SOCDTA ANONmA AGRUMARIA DE NAVIGAZIONE DI PALMERO ANGIER et aZ.
(DiBW1ct Court, S. D. NfM York.
December 27, 1890.)
BlOPPING-DELIVERY OF FRUIT CARGO-SHORTAGE-ASSESSMENT OF DAMAGES-AVERAGE VALUE.
Upon a shortage in the delivery of a cargo of fruit, consisting of boxes of many grades, of different values, the libelant is entitled to the value of the particular grade to which his fruit belonged, if the grade of the missing fruit is identified. In this case, its grade not being established by any marks or numbers, through the failure of the bills of lading to specify the marks and numbers by any binding 'agreement, the custom of merchants was adopted of giving the average value per box of the whole cargo.
In Admiralty. Libel for damages for non-delivery of part of a cargo of oranges and lemons. Assessment of damages. For former report, see 32 Fed. Rep. 230. Ullo, Ruebsamen <to Hubbe, for libelants. Butler, StiUman <to Hubbard, for respondents. BROWN, J. I cannot find, upon the record and the testimony, that the commissioner's report on damages is erroneous. The amount to be charged for customary commissions should, I think, be determined with reference to what had been previously fixed by a combination of the most important importing lines as being the most probable intention of the parties. As respects the shortage, I have no doubt, from the testimony, as well as from the rule of law, that, although where some boxes of fruit are missing through the steamer's fault she must respond for their value according to the grade and market value of the particular line to which the boxes belong, in case they are identified as belonging t6 any particular grade, yet, in order to have the benefit of this classification, such identification must be clearly established. When it is not established, through the great practical difficulty of procuring legal evidence, the average value per box of the whole cargo is the rule customarily adopted among the merchants, and may he followed by, the law. In the present case there was no such identification in regard to the 54 missing boxes. Although Mr. Bonanno in same parts of his testimony seemed to indi-eate a certain number of boxes as belonging to certain grades, I regard his subsequent testimony and his cross-examination as showing that he had no positive knowledge on the subject. He finally declared expressly that neither he nor any other person could tell without papers that he did not have. The record does not show any suppression of evidence on the respondents' part. To constitute suppression there must be either the destruction of evidence, or the non-production of it after call on reasonable notice. In the present case there is no evidence of either. The record and the minutes of the proceedings do not show any call for the particulars of the sale of the boxes made by