Volume 12 — Federal Reporter, Second Series

<p>It appeared upon the trial that the damage arose from a leak in a lead scupper pipe, leading from the waterways on the main deck down through the ’tween-decks, where the hides were stored, to an opening in the ship’s side. This pipe was solidly boxed, and it was impossible to detect the defect, except by taking off the covering. When this was removed at the conclusion of the voyage, a longitudinal crack some twelve inches long was found, the cause of which was and remains unknown.</p> <p>It appeared that it was customary to take off such coverings only once every four years, and that as the pipe was of lead a hammer test would not reveal the crack. The Gorgas had been a German ship, laid up in the Canal Zone when the-war broke out. In 3917 the United States seized her, overhauled her at the Isthmus, and put her in condition for service, but the casings about the pipe were not taken off, 'nor did it appear how long the pipe had been in place. At Colon, before sailing, the chief officer made an examination of the holds, including the ’tween-decks, and found them in apparently good condition. The pipe had not been observed to leak until the voyage in question. No severe weather was encountered on the voyage from Colon to New York.</p> <p>The bill of lading contained the following language: “All claims for damage to goods must be made and the nature and extent thereof fully disclosed in the presence of the agent of the company having the same then in custody before they are removed from the station or wharf. Unless written demand for damage shall be made upon the carrier liable therefor, or upon the carrier which actually delivered the goods within 10 days after delivery, all claims for damage shall be taken to have been waived, and no suit shall thereafter be maintainable to recover the Same.” The libelant received the hides on April 5, 1920, and gave no notice of, and made no demand for, damages until June 15, when it sent the respondent a letter, followed by an itemized bill on July 20. Respondent took no action until September 22, when it wrote that it was waiting for special reports, and would notify the libel-ant when these were received. It put off any final action until December 2, when it wrote that the result of its investigation was to fix as the cause of the damage the broken scupper pipe and other pipes found leaking for which it disclaimed responsibility on the ground that this was a peril of the sea. This position it reasserted on July 7, 1921. The libel was filed on April 27, 1922.</p> <p>The libelant alleged that the injury was not due to a peril of the sea; that the ship was unseaworthy, and that due diligence had not been exercised to make it seaworthy; that the limitation in the bill of lading was invalid, in view of the unseaworthiness of the ship; that it was unreasonable in itself; and that it had been waived by the respondent’s recognition of the claim by rejecting it upon another ground.</p>

The referee’s certificate was as follows'. To the Honorable Judges of the District Court of the United States for the Southern District of New York: I, John L. Lyttle, referee in bankruptcy in charge of this case, do hereby certify that in the course of the proceedings herein the following question arose pertinent to the proceeding: Certain priority or wage creditors, represented by Meyer London, attorney, filed proofs of claim in my office, and are now seeking to obtain…

The bill was to restrain the Secretary of the Treasury, the Commissioner of Internal Revenue, and the Federal Prohibition Administrator of New York from revoking, or otherwise interfering with the plaintiff in the use of, a permit to manufacture denatured alcohol.

<p>The plaintiff in error, as plaintiff in the court below, presented a cause of action arising out of two alleged contracts, the first of which was made in June, 1906, in the state of Washington, whereby, in consideration of the sale to him by the defendant of 40,000 shares -of the stock of the Custer Mining Company, the plaintiff. agreed to assist the defendant and his two brothers in purchasing the shares of the capital stock and in securing proxies of the voting power of the Tamarack & Chesapeake Mining Company, whose mining property adjoined that of the Custer Mining Company, and in further payment for which stock -the plaintiff was to pay defendant 14 cents per share or $5,600; it being further agreed that the defendant would hold said 40.000 shares as security for said $5,600, and apply thereon the dividends on said shares as they accrued and were collected, and upon the payment of said sum to deliver said 40.000 shares of stock to the plaintiff. The plaintiff alleged performance of said contract on his part and breach thereof by the defendant.</p> <p>As to the second contract, it was alleged that in June, 1912, in Idaho, the defendant sold to the plaintiff 25,796 shares of the capital stock of the Custer Mining Company on the condition that the plaintiff would assist the defendant and his brothers in the consolidation of said corporation with the Tamarack & Chesapeake Company, and that the plaintiff would hold a like number of the shares of the capital stock of the latter company, of which he was then the.record owner, until such consolidation was effected, and that plaintiff would further pay to the defendant, as further consideration for the purchase of said stock in the Custer Mining Company, the sum of 14 cents per share, or $3,611.44, at a time of payment agreed upon, the defendant to hold said 25,796 shares of the Custer Mining Stock as security for said sum, applying the dividends thereon’ as they accrued and were collected, and on full payment of $3,-611.44 to deliver said shares of the Custer Mining Company to the plaintiff. The plaintiff alleged performance of the contract on his part and the receipt by defendant of $3,611.-44 in dividends accruing on said stock and the plaintiff’s right to the delivery of said stock or its reasonable value, that said consolidation was carried into effect, and a new corporation took over all the mining properties of both said companies. The plaintiff claimed damages in the sum of $927,665.57.</p>