Applying the well-established rules of law, of which I have spoken, to the proof, my conclusion is that the libelant is not entitled to recover, and that the libel should be dismissed; and it is so ordered.
THE DIXIE. 1
et al. v. A
CARGO OF PINE PU"ES.
(District Court, S. D. New York. June 2, 1891.)
CHART,ER-PARTy-BILL OF LADING, "MORE OR LESS"-COXSTRUC\ ;<J]\(,-DRAFTS,
The barge D. was chartered to load a cargo of piles to a specified draught. The shipper only kept tallY of the loading, and presentedto the owner a bill of lading for 400 piles, "more or less," which he signed, addin!!, "as pel" charter-party." The sfiipper mailed the bill of lading to the con'signee, and on the same day drew a sight dratt',fol' $350, writing him that he had shipped 400 piles, and the draft was paid. The vessel loaded to the agreed draught, but with only 310 piles. HeLd, that the words "more or less" in the bill of lading, and the reference to the charter-party, absolved tbe ship, from liability for tbe 90 piles short. For cargo deliverable in the water along-side, security for the payment of freight may be demanded, or vro rntQ, payment as the delivery progresses; and, on an agreement for "quick dispatch" in unloading, held, demurrage allowable for delay in giving security. '
DELIVERY OF FREIGHT-SECCRITY-DEMURHAGE.
Libel for $1,000 freight, as per charter. Cross-libel for breach of charter and bill of lading. On February 13, 1891, nir. Isham, on behalf of the owners of the barge Dixie, chartered her to W. L. Doughtrey to carry a full cargo of pine piles from Suffolk, Va., to Jersey City, N. J. The charter provided that-'"The cargo should be loaned and discharged free to shipper for the lump sum of $1,000, vessel to load 10 feet of water aft, and 81' feet forward, if the piles would load her down to this depth. The cargo to be received and delivered along-side, within reach of the vesse.]'s tackle. Eight working hours to load in. Demurrage $25 per day. QUick dispatch in discharging." Mr. Doughtrey had been supplying piles to Messr". Vanderbilt &
Hopkins of this city, and had contracted to sell them, among others, 400 piles of a larger size, and 200 of a smaller size, with the right to draw drafts, to be annexed to tbe shipping railroad receipts, to the amount of $3.50 per pile 80 shipped. The Dixie was chartered for the purpose of transporting as many of these piles as she could carry. In the negotiations previous to charter the owners had refused to load any defini,te number. The loading of the cargo being nearly completed, on the 28th of February Mr. Isham, at Doughtrey's request, signed a bill of; lading dated on that day for "300 pine piles,l;l1ore or less,l.lnder deck, and 100
'Reported by Edward G. Benedict, Esq., of the New York bar.
piles, more or less, on deck,-total, 400 piles, more or less, "-deli,\'era})]e at Jersey City to Vanderbilt & Bopkins, they" paying freight for the said piles at the rate of $1 for piles delivered, as per charter-purty." On the same day Daughtrey drew upon Vanderbilt & Hopkins at sight for $350 " for ad [vance] on 100 piles." He had previously dmwn upon them two drafts, one for $507.50, and another for $.511, on the J 6th and 24th of February, respectively, with railroad receipts to him at Suffolk attached. The bill of Jading of February 28th was not attached to the draft of that date, but was forwarded to Vanderbilt & Hopkins; and the draft was paid, as they claim. upon the faith that 400 piles had been shipped upon the barge. On delivery the cargo was found to consist of but 310 piles, and the consignees in their answer and in their cross-libel claim to recoup against the lump sum of $1,000, freight, their damages for the non-delivery of the missing 90 piles. They subsequently obtained from Daughtrey the 90 piles, but they claim as damages the expenses of transporting them from Suffolk, as well as the necessary expenses of a man sent to obtain them, and also certain consequential damages arising from the delay in supplying these piles to a Mr. Gillies, to whom they had sold them, and who, in order to fulfill his own contract, was obliged, as he says, to purchase the missing 90 piles at a higher price, in consequence of which he had claimed damages against Vanderbilt & Hopkins. Four days' demurrage was claimed for the barge for detention at Kew York before beginning to unload. Wing, Shoudy &- Ptttnam, for the Dixie. HaNnes &- Adams, for cargo of pine piles.
BROWN, J. 1. The evidence shows that the barge took all a full cargo at SutTolk, both below deck and on deck,-more, in fact, than was altogether prudent at that season of the year,-and she delivered all that she received. Her charter obligation was therefore completely performed, and the lump sum of $1,000 freight was fully earned. 2. Upon the bill oflading I cannot find either that the vessel became responsible to Vanderbilt & Hopkins for 400 piles, or for any more than she had on board, nor that any legal damages are shown to have resulted, even if she had been liable for that full number. Not only does the bill of lading Use the words "mQre or less" in connection with the num bers specified undei- deck and on deck, but the whole bill of lading was fur· ther conditioned by the words, "as per charter-party," inserted in writing as an express qualification of the whole. Keither the owner nor the master of the barge kept any tally of the num ber of piles loaded. They had no interest'in the number. The charter was for a lump sum, and they had agreed only to take a full cargo. The tally waskept by Mr. Doughtrey. The bill of lading was signed for his convenience in the 'manner he chose to make it out, but with sueh qualifications as limited its provisions to the performance of the charter-party. I am satisfied, '\.ipon the evidence, that this was in accordance with the practice in that business at that place. Even if there were no such custom, or if the consignees had no knowledge of it, the qualification of "more or less" in
the liill of lading was alone sufficient to apprise them that they could not count upon the precise number of 400 piles; while the express reference to the charter-party was sufficient to put them on their guard, and would have shown that no definite number was contracted to be shipped, but only a fuHload, whatever the number might be. They, therefore, as much as Mr. Doughtrey, took the risk of the result of the loading. provisions together were equivalent to the language often found in other bills of lading, "weight or number unknown," or "not accountable for weight or number," under which the vessel is only answerable for the delivery of what she has received on board. The Querini Stnmphalin, 19 Fed. Rep. 123, and cases there cited;' McKay v. Ennis, 37 Fed. Rep. 229-232; The Pietro G., 39 Fed. Rep. 366, 40 Fed. Rep. 497. As respects any damage suffered by the consignee, the evidence shows that the draft of February 28th was on its face drawn as an" ad [vance] on 100 piles" only. The previous drafts were accompanied by railroad receipts, a part of which did not specify the number of piles. Mr. Daughtrey's letter of February 28th, apprising Vanderbilt & Hopkins of the last draft, and stating that he "drew for 100 piles;" that he annexed "the Dixie's bill of lading for 400 piles," which was plainly an incorrect statement; and that "other piles would be coming in all next week," and urging them not to fail to accept the draft, -would seem to have been the more probable ground of acceptance of the last draft than any reliance on the bill of lading, which did not purport to give the full number of 400 piles. The piles being subsequently received, there was no loss of them. The cost of bringing them to New York would con';titute no claim of damage against the barge, because she never was nnder any obligation to bring more than she did bring, and, in any event, Vanderbilt & Hopkins would be obliged to pay the freight on delivery, besides the $3.50 per pile. No damage arises from the delay in arrival, because the contract between Vanderbilt & Hopkins and Daughtrey did not bind the latter to delivery of the piles contracted for within any definite period; much less had the Dixie any such contract as to make her liable for any such special damage. The claim of Mr. Gillies is altogether remote. 3. Under the peculiar circumstances of a delivery of a cargo of piles into the water along-side. the vessel was entitled to security jor freight before delivery, or else to payments on account while the discharge was proceeding. The delay fOf which demurrage is claimed arose mostly throngh the negotiations on this subject. These negotiations by the letter of the connselfirst employed presented to the consignee an option, which was only terminated on the day before the discharge bega'n. I allow, therefore, one day's demurrage, and no more, as there was 110 delay in the discharge afterwards. Decree for the libelants Isham for $1,. 025, with interest and costs, and for the dismissal of the cross-lihel, with
No. 19. 1
EASTON &; AM130Y CO. 11. THE SCOW (District Court, S. D. New York.
SALVAGE-DERELICT SCOW-EAST RIVER-DAMAGE TO THIRD BOAT.
About 2 o'clock in the morning of March 25, 1891, those on libelant's tug-boat Mercedes perceived a capsized mud-scow adrift in the East river. With g'l'eat diffiCUlty, owing to the unwieldy nature of the scow, the tug pushed and guided the scow to the end of pier 10, breaking a hawser in the attempt. The tug then went for aid, and while she was gone the scow broke adrift from the pier, and damaged a schooner. lt was afterwards picked up by three tugs belonging to the same owner as the Mercedes, and taken to Jersey City. The value of the scow was $3,200 to $4,000.. Held, that the owner of the tugs should recover $600 as salvage, from which should be deducted the amount paid by claimant for the damage to the schooner.
In Admiralty. Suit to recover salvage. R. D. Benedict, for claimant. Goodrich, Deady &; Goodrich, for libelant. BROWN,. J.. About 2 o'clock on the morning of 25, 1891, as the libelant's boat Mercedes was proceeding down the East river, the capsized mud-scow No. 19 was observed in the East river, drifting towards the drilling machine at Diamond Reef. 'rhe pilot of the tug undertook to rescue but found, much difficulty in getting a, suitable hold upon it, as the scow was large, heavy, and unwieldy. After pushing it from Diamond Reef, he at length got a hawser attached to it, but in attempting to tow the scow to Jersey City the hawser broke, and, the flood-tide setting in, and finding himself unable to secure another line to the scow,he succeeded in pushing and guiding it to the outer end of pier 1O,Eastriver,'where it was tempol'arily made fast to spiles at about 5 A. M., with the intent to take it afterwards to some other more proper place of mooring. The tug then left to change her crew at 6 A. M., and to give notice to the tug-owners of the need of other tugs. The tug Atalanta accordingly was sent a, few hours afterwards to move the scow, but, her pilot finding it too cumbersome, at about 9 A. M. went for additional help, and the tugs Sayre and Kalbfleish, belonging to the same owners, were procured. Before they ,arrived at pier 10, however, thescow, between 11 and 12 o'clock, A. M., had parted her upper line, either through the action of the ebb-tide or from the effects oOhe swells of passing steamers, which are.notshown, however, to have more than usual there.i' So that in swinging around with the ebb-tide to the southward, the sloW Vail, moored near her, in sum of $267 .93 t 'which the owners of the scow shortly after paid. The sCQW floated down near Governor's island, where she was picked up by the three tugs above namedi but, as they found it difficult to cross the North river tide, they took her to pier 3, North river, which was reached at about 7 P. M. of
by Edward G. Benedict, Esq., of the New York bar.