23 F. 463 -

TB:E MANGA-LOBL

4:68

1. The damage, if any, from this cause cannot be distinguished from damage from causes for which the canier is responsible. 2. The construction of the hatch seems to have been faulty. Very considerable additions to its strength were ordered by the surveyor, and in fact made, before she was permitted to sail from this port. 3. I do not believe that any appreciable amount of water could have been admitted to the cargo through the hatch, inasmuch as the tarpaulins with which it was covered were intact and were in fact retained in use when she sailed from this port. One undisputed fact seems to have some significance: no one on board appears to have had the least suspicion that the ship had strained so as to open her seams and admit water to her cargo until after her discharge had been commenced. The usual washing of the deuks was continued even after her arrival, and until it was discovered that the water leaked freely into her hold. The theory that she had "strained" appears to have been then for the first time adopted. It does not appear that any examination of her planks and rivets was made, which on that theory would be natural, if not indispensable. All that was done of any consequence was to repair and strengthen her hatch and recalk her decks. I think the libelant is entitled to recover.
   

THE MANGALORE.

rD.'lItrice Ooure, D. Oalifornia.

June 12,1883.)

SHIPPING-INJURY TO CARGO-MEASURE 011' DAMAGES-REBATE AT Cm'l'OMHOUSE.

Where II cargo has been injured bylhe neglig('nce of. the vessel, the measure of the damages is the between the market value of the damaged goods at the time and place of delivery and what their value would have !leen if uninjured, less any rebate allowed at the custom-hoWie.

In Admiralty. William Barber, for libelants. Milton Andros and Charles Page, for claimants. HOFFMAN, J. The only question raised by the exceptions which, as it appears to me, admits of doubt, is whether the damage to the shipment was confined to 164 bales, or extended to the consignment. Mr. Gallego wishes it to be understood that the damage estimated by him at one and three-quarters to two cents per bag pervaded the entire lot of 300 bales, containing 1,000 bags each. But his testimony is quite obscure, and his memory by no means distinct. His examination of the shipment was made in conjunction with the customs officers, who took, as their duty required, notes of the results of their inspections in order to detel"mine the rebate of duty to be al-

464

FEDERAL REPORTER.

lowed on the damaged appraisement. There does not appear to have
been at the time any difference of opinion between them and Mr. Gallego as to the results of the survey. There was allowed at the custom-house a rebate of $1,016 on the duties otherwise leviable on 164 bales. The remainder were charged the full duty as on sounel, dutiable value. No objection or protest appears to have been made by the shippers, and the duties were adjusted and paid on this basis. The prices subsequently obtained (though not until the next season, and after certain expenditures made by the shipper for repncking, repairing, etc., were incurred) tend to strengthen the impression that the damage was subsequently confined to the 164 brtles. Accepting, then, Mr. Gallego's estimate of damage per bag to 164 bales, or 164,000 bags, as one and three-quartel's, we have total damage of $2,870. The payment of this sum would have placed the owner in the same condition as if his goods had arrived sound; but by reason of their damaged condition he was able to obtain them by the payment of duties less by $1,016 than he would otherwise have paid. Deducting this sum from $2,870, we have $1,854, which, with interest, is the damage sustained. The commissioner has reached substantially the same conclusion by computing the difference between tIle sound market value of the goods (eight and seven-eighths cents per bag) and the market value of the 164 injured bales, (seven and four-tenths cents per bag.) This amounts to $1,049, and to this he has very reasonably added $200 as an allowance for bales damaged to so small an extent as under custom-house rules is not considered. This allowance would amount to nearly 2 per cent. on the sound, duty-paid market value of the remaining 136 bales constituting the balance of the shipment. I think the sum of $1,854, with interest from August 8, 1881, allowed by the commissioner, is as just and reasonable an estimate of the damages as can be arrived at.

OLYPHANT OLYPHANT
V.

V.

ST. LOUIS ORE

&

STEEL 00.

465

ST. LOUIS ORE & STEEL CO. and others. 1
March 26,1885.)

(Oircuit Court, E. D. Missouri.

1.

PARTIES-FoRECLOSURE SUIT-MORTGAGE ON PROPImTY NOT EMBRACED IN MORTGAGE TO (JOMPLAINANT.

B., a corporation, mortgaged its property to X. Subsequently it consolidated with the owner of some mining property, and the consolidation was called C. C. gave a mortgage upon all its property to Y., and afterwards gave a mortgnge to Z. upon all its property except that covered by tile mortgage to X. UPOIl default Z. instituted foreciosure proceedings against E., and made X. and Y. parties. Upon X. 's demurring, held, that he is a proper party.

2.

MOHTGAGES - SEPARATE FORECLOSUHE PHOCEEIlINGS BY P.unIES HOLDING MORTGAGES ON DIFFEHENT PIECES OF PUOPEHTY.

Semble, that though X. is a proper party to said suit, he is entitled to leave to institute separate foreclosure proceedings and have the property covered by his mortgage sold by itself, in the absence of equitable reason" estopping him from insisting- on such right; and the fact that some of the principal bondholders under the first mortgage have mining property which is in interest antagonistic to the mining property belonging to the consolidated company, does not cou. stitute any equitable reason for denying them that privilege.

In Equity. Foreclosure suit. Demurrer to bill. E. T. Allen, for complainant. Noble et Orr'ick, for demurrants. BREWER, J., (orally.) In the case of Olyphant against Ore et Steel Co., where a demurrer has been filed oy the trustees of the first mortgage, a mortgage given by the old Vulcan Company upon its plant in south St. Louis, the facts are that in 1875 the Vulcan Company, owning the plant here in south St. Louis, executed a million dollar mortgage to Edgar and Lackland, trustees. That mortgage covered its property, and it had but this property. The bonds secured by that mortgage become due on the fifteenth of next month. The interest due last fall is unpaid. Some years after that mortgage had been given, the mortgagor consolidated with the owner of some mining properties, thus forming the "Ore & Steel Company." That consolidated corporation bound itself to pay the mortgage on this south St. Louis plant. After the consolidation, a was given to the Farmers' Loan & Trust Company, a New York corporation, on the entire properties. Subsequent thereto a mortgage was given to Messrs. Olyphant and Hitchcock on the properties, excluding the property in south St. Louis, upon which the old Vulcan mortgage was given. So it stood in this condition: The Farmers' Loan & Trust Company had a mort· gage on all the properties, a mortgage subsequent to the Lackland mortgage on the property in south St. Louis, and prior to that to Olyphant and Hitchcock on all except the south St. Louis properties. Now, while the mortgagees in this first mortgage are not necessary parties, yet it would seem to us that they were proper parties; that the Farmers' Loan & Trust Company mortgage is a connecting link that
lReported by Benj. F. Rex, Esq., of the St. Louis bar.

v.23F,no.l0-30