TtlBNBULL
V.
CITIZENS' BANK OF LOUISIANA..
'14.5
sider $500 to be a liberal salvage compensation to be paid by the schooner and the cargo, in proportion to their respective values. As no tender of any sum was made, the libelant must J:ecover his costs·.
TURNBULL
and others v. CITIZENS' BANK OF
LOUISIANA..
lOireui' (Jourt, B. D. Louiliana. February, 1888. L USAGE-CHARTER-PARTY.
Evidence of usage is admIssible to explain what is ambIguous In a charterparty, but is inadmissible to vary or contradict what is plain. S. CHARTER-PARTY-DELIVERY OF CARGO.
Where the contract declares that the consi.e;nees are to take the cargo II from along-side," that means that it is .to be taken from where the ordinary appliances of the ship would leave it in discharging,-" at the end of the ship's tackle," on a Wharf, if the ship was discharging at a wharf; on a lighter, if the ship could not reach a wharf and was discharging in the stream. 8. SAME-IMPOSSIBLE CONDITION.
Where the liability of the vessel is limited by a condition impossible of exe· cution, such condition becomes nugatory, the same as not written, and the general liability of carriers for the non-delivery of freight See l'u1'nbuU v. Blocks of Marble, 9 FED. REP. 320.
Admiralty Appeal. E. W. Huntington and Horace L. lJuJour, for libelants. M. M. Cohen and A. Pitot, for defendants. J. Libel in personam for balance of freight and for charges. Cross-libel for short delivery. Bill of lading on the Fifeshire, from Glasgow to New Orleans, for 117 tons of pig iron in the usual form, with the following added: "The said master hereby acknowledging haVing received the full weight of -iron herein specified, the same having been weighed along-side at shIpment, and holding himself and the said vessel bound to deliver the same weight of iron, provided it be weighed along-side at discharging. No iron to be retained by the vessel. The pig iron to be taken from along-side and discharged at the rate of 250 tons per running day, (Sundays excepted,) or demurrage to be paid at the rate of 25 pounds sterling per day,"
At this port (New Orleans) the iron could Dot be unloaded arid piled on the wharf on account of wharf regulations prohibiting H, aU that the ship was obliged to have it trucked across the wharf to terra -Reported by Joseph P. Hornor, Esq., of the New OrlclUlS bar.
v.16,no.1-1O
146
FEDERAL REPORTER.
firma, where it was weighed by the customs officers, and found to be some 13 tons short. The cost of the trucking was $11.70. During the unloading and up to the weighing, both the government and the consignees had watchmen employed to watch the iron. The testimony of the chief officer of the Fifeshire is to the effect that he superintended the loading and unloading of the cargo; that all the ] 17 lot taken aboard was put out; that the vessel had two other large lots of iron aboard in different holds, and that the 117 lot was separated from the other iron with wood and mats; that he was very particular about keeping the lots separate, because it was a small lot. The first question to be decided is as to the liability of the consignees for the charge of trucking the iron across the wooden wharf. The contract specifies that the iron was to be taken from along-side. Unless this has a meani.ng outside of the plain signification of the words used, the expense of moving the iron over the wha;rf' to land would fall on the consignees. They seek to avoid liability by showing that they could not take the iron until it was weighed, and that it "could not be' weighed along-side the ship when it had been discharged." This, of course, goes for nothing as against the contract of the parties as to where the ship's carriage should cease. The consignees also urge a custom of the port, as sworn to in these terms: ' ,. , "The term' taken from along-side,' in its general acceptation witb Illerchants. here, does not mean that the merchant is to take it from within a foot or two of the ship, but that the ship is to deliver all the earth-work, as is CllStornaI'y at this port."
The same witnesses say further: "The term 'along-side' has ordinarily been construed here to mean delivery at this port; and as the custom-house authorities require that the cargo Shall be delivered on terra firma, and as the wharfmaster always insists that the wharf property cannot be jeopardized by the delivery of anyl1l3avy weights on the woou-work, the deli very on the earth-work has almost' a1ways been customary."
Conceding such a cnstom as is described in the testimony of these witnesses to have been proved, it is snfficient to say that (a) it is not reasonable, for the customs auUlOrities might designate a particular
· v.
BANK OF LOUISIANA.
147
. tl. particular warehouse, for the government weighing; ,.a.nnot vary the terms of an unambiguous contract; (c) to '8. custom to come in where the parties have specified rgo "is to be taken from along-side," would be render nell clause. Under the general law, in the absence of a mtract, the carrier could have been required to,do no more 'lignees olaim in this case. See 1'he Tybee, 1 Wood, 361; Morgan, ld. 409; and cases cited in Desty, Shipp. § 244. rned ,proctors for consignees rely upon the case of The Dela1T1l.11. 603, where it is said: "Evidence of usage is admis""cantile contracts to prove that the words in which the .d expressed in the particular trade to which the contract et.re;used in a particular sense, and different from the sense ordinarily import;" but they should have read the next tence: "Such evidence may be introduced to explain what is ambigUOUS, but it is never admissible to vary or contradiot what is plain." The contract in this case was that. the consignees should take the iron "from along-side." That undoubtedly and plainly means that they were to take it from where the ordinary appliances of the ship would leave it in discharging,-"at the end of the ship's tackle," on the wharf, if the ship was discharging at a wha.rf; on a lighter, if the ship could not reach a wharf and was discharging in the stream. The next question is about the responsibility for short delivery. The bill of lading supra leaves no dOllbt as to the quantity of iron ceived. The government weigher'scertificatEiS leave no doubt as to the quantity of iron received by the consignees. 'There is no reason to, suppose ship delivered more tha.n the consignees received. No matter whare Jihe technical delivery took place, the actual delivery was on' the earth-work. The ship undertook to put the iron· did so, and has brought her bill for the expense. To assume thatfrom the "end of the ship·s tackle" to the earth-work some of the Uron was lost, is a gratuitous assumption. wholly unsupported by the evlrclence. It is equally idle to suppose that while the iron was watched be forA' weighing it was carried off. It seems to me much more pl'obable that, in spite of the efforts of the chief officer to keep the three lots of 'iron aboard the Fifeshire separate, the said lots did get mixed, and that 14 tons of the 117 lot were :{lever delivered. T4e stipulation in the bill of lading, "holding himselfahd the said vessel bound to deliver the same weight of iron, provided it be weighed along-side at discharging," might have controlled the sbip:s liability had it beeh
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148
possible to have weighed the iron along-side. It We... so weigh the iron, and therefore that clause became ntl same as not written,-and the general liability of carriers delivery of freight attached. Under the evidence there can be no doubt of the short the 117 tons of iron. Whether it was not all put aboard, . was lost on the voyage, whether it was all discharged, whet l lost after discharging and before delivery on the earth-work,l the ship has some other valid excuse, it is incumbent oni owners to show. Non-delivery of the goods shipped by.! carrier makes a prima facie case of liability against the ( liability is not avoided by the evidence in this case. The libelants should recover the balance due for freight, ". and the charges for trucking the iron, $11.70, but from should be deducted the agreed value of the iron not delive $269.80, and this leaves a judgment for libelants of $11.70 cents on the whole case. The libelants should pay the costs of this court, and the respondents those of the district court. So ordered
THE STOWAGE.
EXCELLENT.·
((]ireuit Oourt, E. D. Louisiana. April, 188:q Where the great bulk of the cargo of a vessel consisted of iron rails, steel, and tin in boxes, and that is stowed in the bottom of the vcssel, the iron rails being stowed first and in block, fore and aft, and locked together, such storage was bad, and increased the labor and strain of the vessel in heavy weather, and the vessel is liable for damages resulting therefrom to oLher cargo.
Admiralty Appeal. Joseph P. Hprnor and Francis W. Baker, for libelants. E. W. Huntington and Hora.ce L. Dufour, for claimants. . PARDEE, J. The evidence in this case shows that libelants'gt}pds were damaged to the extent claimed in the libel while in tqe. sion of the respondent as carrier. The· evidence is equally certain that the damage resulted from the shifting of part of the cargo and water. The shifting of the cargo and tpe water was caused by the excessive straining and laboring of the ship, though it would seem that the shifting of the boxes of tin plate was directly attributable to bad -Rel.ort.ed hy .Joseph P. Hornor Esq., of the New bar.