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
THE JAMES BERWIND.
the ship, or the marks and numbers of what was sold;. and eventbese' marks and numbers, if they had been called for and produced by the respondents, would have proved nothing, except upon further proof by the libelants of the marks and numbers of the boxes shipped, and there was no evidence of these. Doubtless great practical difficulty will often nrise in the adjustment of claims for robbed or missing boxes, when ttuit is shipped abroad, and bills of lading are given for it, without any :;c,finite agreement as to the marks and numbers of boxes shipped, or lilly binding recognition of the particular marks and numbers in the bill of lading. The desirableness of mutual accommodation at the port of delivery in such cases, by means of satisfactory security given and ao-' cepted to answer for differences and apparent losses, is manifestly extreme; but the law cannot impose arbitrary terms for the adjustment of difficulties that the parties by a ioose and rapid method of business, for for their own convenience, at the port of shipment, may ultimately bring upon themselves at the port of discharge. In such cases, if the parties cannot agree UpOJl mutual accommodation, the result can only be mutual injury. , As regards the net proceeds ohale, if not agreed upon, a further reference may be taken, It should have been included in the order. In other the report is conflrmed.
THE JAMES BERWIND.i THE CITY OF NEW .YolUt. THE YOUNG AMERICA.
THE CITY OF NEWYORX AND Two STEAM-TuGS. DALY, Adm'x,
PENNSYLVANiA R. CO.
(District Oourt, S. D. New York. January 2,1891.)
AND Tow-TOWAGE SIGNALS-DuTY TO ANTICIPATE Tow,DUTY 011' TUGS TO SIGNAL II'ROM Tow. . I
As the steamer ()f New York. was coming dQwn the East riyer, preparatory to rounding the Battery, about 7: 80 o'clock A. M., she ran suddenly IOto a dense fog. A fleet of canal-boats in tow of two tugs. on a hawser of 400 or 500 feet, was at the time moving slowly from the bay towards pier 1, North river, and was stretching nearly one-third of the distance across the mouth of the river. Tne tugs, two. or three points on'the steamer's starboard bow. were blowing signals indicating a tow. No signalswere given by the tow. Thesteamer sankone of the canal-boats, and its owner was drowned. Held, the fact of the frequent presence of such .tows in that v.icinity, coupled with the sudden nature of the fog, made the inattention of the steamer to towinjS' signals .only three or four points on ller starboard bow, and her failure to antIcipate a tow behind them, and to stop before it came in sight, a fault 'contributory to the collision. " ' by G. Benedict, Esq.., of. the New York bar.