THE GUY C. GOBS.
were unknown would have left the defendant free from· respomlibility for a variance of the actual contents from those described in the bill of lading." Bank of Bata1'ia v. New York, L. E. & W. R. Co., 106 N. Y. 195, 202, 12 N. E. Rep. 433. The ship, when a common carrier, is an insurer of the goods taken on board as against all perils not lawfully excepted; but not an insurer as regards goods not shipped.· She is bound to care and diligence in keeping tally and in receipting for a specific quantity of goods. The recitals in the bills of lading of the amount of goods shipped are entitled to weight. But none of these constitute, in the federal courts, any estoppel against proof of fraud or mistake. The remedy of the respondents is against the shippers. Decree for the libelants, with costs.
THE GUY C. GOSS. E. LOBE CO. v. THE GUY C. GOSS. (Distrlct Court, D. WasWngton, N. D. 1. December 19,1892.)
CORPORATIONS-AcTIONS-PROOF OF CORPORATE EXISTENCE:.
A libel in admiralty by a corporation will be dismissed where the legal existence of libelant is put in issue, and there is no proof of its organiza· tion.
CARRIAGE OF GOODS LIABILITY FOR DAMAGE PLEADING ANI>
Where goods were shipped under a bill of lading exempting the ship from liability "for leakage, breakage, or rust, except from improper stowage," the proof that the goods were delivered damaged by breakage, rust, chafing, sweating, and dampness is insufficient to sustain a libel charging damage to the goods by unseaworthiness of the ship, bad stowage, want of proper dunnage, negligence, and improper conduct of the master and crew.
In Admiralty. Suit in rem by the E. Lobe Company, (a corporation,) for damage to toys and furniture carried by the bark Guy C. Goss from New York to Seattle. Dismissed. Thompson, Edsen & Humphries, for libelant. W. H. Pritchard and John H. Elder, for claimant.
HANFORD, District Judge. The libelant sues lUI a corporation. Its legal existence and right to sue is put in issue by the answer, and there is no proof of its organization. For this cause, if no other, the libel must be dismissed. I have, however, read all the evidence, and find that to sustain the allegations in the libel of damage to libelant's goods by the unseaworthiness of the ship, bad stowage, want of proper dunnage, "negligence, carelessness, and improper conduct and want of attention of the mlUlter, his mariners, and servants," there is no proof Whatever, except testimony showing that certain goods, when delivered at Se· attle, were in a damaged condition, the damage being by breakage, rust, chafing, sweating, and dampness. The bills of lading contain a. clause exempting the ship from liability for "leakage, breakage, or
rust, except from impl'operstowage." To war'rant a decree blg cmmages, the libelant must prove affirmatively one or more of $e ,fliLults of the ship, :her master or crew, which the libel charges. Clark v. Barnwell. 12 How. 282; McKinlay v. Morrish, 21 How. 343; Co. v. ))owner, 11 Wall. 129. The evidence fails to, do ,S9. It does not go more than half way, towards making a com· plete cue. Therefore the court decrees that the suit be dismissed.
BYRNE v. JOHNSON et aL
(OIrcnft Court of Appeals, Fifth Circuit. Janua1'7 9, 1893.)
8.u.VAGlIl SERVICES-WHAT ARE-CoMPENSATION-MISCONDUC'l'.
master. sent to Key. West, and obtained the sc400ner Cora, a crew of 22 men. She worked tor five days, but her appliances and the methods of her crew were crude, and her diver failed to discover the largest leak. At the end of that time other saivors arrived, with a competent crew and efllcientapparatus, who soon stopped the leak, and got the E. oir, and towed her to a sheltered place, where her cargo was transferred to the steamer New York, sent out by her owners for that purpose. In the mean time the Cora, with a portion of the E.'s cargo, which she had on board, returned to Key West, against the protest of E.'s master; her reasons for so doing being fear of a hurricane, and a broken rudder, wb1ch the officers, of the E. offered to repair. At Key West the cargo was libeled for salvage. ,Held, that ,the Cora's services were of doubtful value, and, in view of the fact that she unnecessarily carried part of the cargo to a place where it would not sell to advantage; the service was one for wb1ch the compensation should be pro labore et opere., and not for salvage services. 50 Fed. Rep. 951, reversed.
The steamer E., of 2,500 tons, struck a concealed rock near the Bahama bank, and sprung a leak, wb1ch made it necessary to run her aground about 10 miles from Q.reat Isaac's lighthouse. In order to lighten sb1p the
. having been already cOmpensated for· their services, as respects the E. herself, through a decree of another district court, their services in respect to the cargo which was carried to Key West by them should be compensated at the rate of $25 for each of the crew, and $550 fol" the Cora, which was valued at $3,500. 50 Fed. Rep. 951, reversed.
Appeal from the District Court of the United States for the Southern District of Florida. In Admiralty. Lioel by B. W. Johnson and others against a portion of the cargo of the steamer Eldorado (Henry J. Byrne, claimant) to recover for salvage services. The district court held that the service rendered was a salvage service, and awarded 25 per cent. of the of the cargo saved as compensation. See 50 Fed. Rep. 951. The clamant appealed. Reversed. J. P. Blair, (G. Bowne Patterson, on the brief,) for appelIan-. Jefferson B. Browne, for appellees. Before PARDEE and McCORMICK" Circuit Judges, and BIIr 'LINGS, District Judge.