(D«8trLct OO'llJl't, 1.
D.New York. November 20, 18110.)
SHIPPING-CONTRAOT Oll' AFFREIGHTMEN!r-AMOUNT OJ' CARGO DELIVERED-LUMP SUM.
To take·the case out of the rule that freight is payable only on the packages delivered, the language of the carrier's contract must express such intent with reasonable certainty.
SAME-BILl, OJ!' LADING-STIPULATION AS TO FREIGHT.
A bill of lading provided for freight at the rate of 82/6 per ton, "to be paid on right delivery as customary as per memo. in the margin," the memorandum in the margin "Imperial gallons 6,052, at 210 galls. per ton, equals 28.819; @ 82/6 per ton, £46.16.7." Held, that the stipulation was not such· certain contract for payment of a lump sum as to entitle the carrier to recover the full amount of the freight, on a short delivery, occasioned by twice discharging at ports of distress through perils or the sea.
GENERAL·A.VERAGE-INOLUSIVE OJ!' FREIc;lJIT.
. 'An allowance in general average was mooe toa cargo-owner for 18,000 lbs. ot" oil . lost by" sea perils, the value being calculated on the oasis of the New York price,' . which would Include the freight to New York. Held, that ,the ship waaentitled to recov:er the freight on the 1l:l,OOO Ills.
Suit for balance 0'£ freight.
Shoudy & Putnam, (C. C. Burlingham, of counsel,) for libelant. Bangs, Stetson, Tracy & Mac Veagh,' for respondent.
The libelis filed toreqover a balance of $428.79, freight alleged to.be due upon several consignmentsof cocoanut oil from Cochin China, arid upon the bills of lading therefor indorsed to the respondent. ' A consilierable number of "the casks were lost by sea perils. The respondeIi't h!is paid the stipulated tate of freight upon the number of gallons- actually received by him. " The libelant contends that the freight' specified in the bills oflading constitutes a lump sum which the respondent was bound to pay in full, notwithstanding the fact that a portion of the packages was lost in transportation. There were four bills of lading, all of which provided for the payment of freight as follows: "Freight for the said goods at the rate of 32/6 per ton of 210 imperial gallons to be paid on right delivery, as customary as per memo. in the margin, at port of discharge." In the margin was the following: "Memo. of freight. * ,* * Imperial gallons 6,052, at 210 galls. per ton, equals 28.819; @ 32/6 per ton, £46.16.7." At the bottom was a stipulation: "Not accountable for leakage or breakage, except from improper stowage." On the trial, the evidence of one witness was given, to the effect that it was customary to collect full. freight, though a part of the packages were missing, if the freight was in the margin, as in this case. So' muchmnst.depend upon the circumstances of each. case, and upon the langUage of the bill of lading 'itself, and the testimony of this wit-' ness seemed to me so uncertain in severalrespect.<3, that I cannot find' established the existence of such a custom. The respondent,who had had equal experience in similar importations, testified that he had never
lReported by Edward G. Benediot, Esq., of the New York bar.
known ,or heardof.suoha custom; and a contrary instance waS in dealings with the firm with which the libelant's witness was connectild. Even if the words "as customary" in the bill of lading be connected, therefore, with the rate of. payment per ton instead of with the word "delivery," (a doubtful construction,) I do not think the proofs sufficient to change the construction to be'reasonl:l.bly put upon the language of the bill of lading itself. No doubt, where a lump sum is specified as the freight to be paid on delivery, whether by charter-party or bill of lading, the conllignee accepting the goods must pay the stipulated sum without deduction for what may be lost without the fault of the ship. This rule is applied because it is inferred' from the langullge of the bill of lading or charter-party that the parties intended that the ship should receive the particular lump sum stipulated for her services, without incurring any risk of loss on freight through a loss of part of the goods without her fault. Shipping Co. v. Armitage, L. R. 9 Q. B. 99, 107. In the present case, had all the casks been delivered by the ship, and it had only been a, question oOoss through leakage, inasmuch as it was also stipulated that the ship was not to be liable for leakage, I think she would have been entitled to recover the whole freight. All the packages having been delivered, the vessel would be entitled to compute the freight upon the whole quantity, since the delivery would have been a "right delivery" by the ship, so far as she was concerned, of all ta.ken on board. The Drjiance, 6 Ben. 162j Carv. Carr. by 8ea, 578, 579. The present case seems to me substantially different. Through perils of the seas, the cargo shifted. A portion of the packages were broken. The ship made ports of distress where the cargo was discharged, and, during such discharge, other damage and breakage arose. Much oil escaped 'belonging to the libelant and to other shippers. What could be being lost, it was apportioned saved was gathered up, and, its among the different owners. Upon arrival in New York, about onesixth of the whole quantity, and of course a greater proportion of the original packages, was missing. Upon such facts I do not think the fair construction of these bills of lading demands the payment of freight as a lump sum. In all the cases where the payment of a lump sum as freight has been enforced, the intent of the parties to that effect has been clear upon the language of the bill of lading or charter-party. Shipping Co. v. Armitage, supraj Robinson v. K/lights, L. R. 8 C. P. 465; The Norway, 3 Moore, P. C. (N. 8.) 245; Querini Stamphalut, 19 Fed. Rep. 123. Here, not only does the bill of lading state that the payment is to be "at the rate of 32/6 per ton on right delivery," but the margin, to which reference is made, repeats the same rate, viz., "32/6 per ton." This is language of quite a different significance from that used in any of the cases where the construction has been that of a stipulated lump sum, and does not seem to me to import any suph intent. If the libelant's contention is correct, then either the or the shipper would be bound to pay the sum named, though nearly all the goods were lost or jettisoned through sea perils. Ordinarily, freight is collectible only upon packages delivered. To take the case ,of
rule, the language of the contract must express that intent with such a. reasonable certainty as does not appear upon these bills of lading. The evidence shows that in the general average adjustment, which included the expense of discharging the cargo at the ports of distress, and the loss of the respondent's oil occasioned by such discharge, an allowance was made to the respondent as a credit in general average for the oil so lost, on the basis of the New York price, which would include the price of freight to New York. This allowance was made upon 18,000 Ibs. of aU, upon which the freight, at the rate specified in the bills of · As the respondent has the benefit lading, would amount to $ of so much charge for freight, he should pay it to the ship, for which the libelant may take a decree, with interest from November 20, 1890.
NORTH-GERMAN LLOYD V. REULE.'
(Distrl.ct Court. S. D. New York.
November 24. 1890,)
IlILL OF LADING-AGENT AS CONSIGNEE-FREIGHT AOCORDING TO VALUB-CONCEAIr KENT OF VALUE.
A bill of lading recited that additional freight should be payable on the total value of certain precious stones should their real value be discovered to be greater than was declared in the bill of lading j and the consignee received the goods and paid the freight according to the value stated in the bill of lading, and entered them at the custom-bouse under the bill of lading, and under an invoice that stated their value at a much greater sum than that made in the bill of lading. Belet that the stipulation for additional freight upon the actual value was valid, and that the consignee was liable for the additional freight, tllough he was but an agent employed by the shipper to sell the goods on commission. .
In Admiralty. Action for freight. Shipman, Barlow, Larocque &- Choate, for libelant. Stine « Chlman, for resporJdent·
. BROWN, J. The libel was filed to recover an alleged balance of freight due on an importation of diamonds received by the respondent, and entered by him at the custom-house under the bill of lading. The bill of lading stated the value as 7,000 francs, and upon receipt of the goods by the respondent the freight on that valuation was paid. The bill of lading stated that an additional freight of 5 per cent. should be paid on the total value should the real value be discovered to be greater than was declared in the bill of lading. When the freight upon the valuation of 7,000 francs, as stated in the bill of lading, was paid to the libelants, and the goods delivered by them to the respondent, they had no knowledge that the real value of the diamonds in the package was any greater. The respondent, however, had knowledge of their greater value, and entered them at the custom-house upon the same bill of lading and upon an invoice that stated the value of the diamonds to be 27,616 francs.
by Edward G. Benedict, Esq.· of the New York bar.