FEDERAL REPORTER.
JANNEY
and others
'D.
THE TUDOR COMPANY.
Wist'net Oourt, D. MtU,achusetts. - - , 1880.) 1. NEGI,IGENCE-SHRINKAGE OF CUTCR-STOWAGE'AND HorSTING.-2,502 bags of cutch were received on board a vessel at Calcutta, during the months of January and February, for shipment to Boston, and bills of lading were delivered for the same, containing lhe ullual exception of the perils of the sea, and the memorandum, .. weights and contents unknown." The cutch, when received, had become somewhat soft. ened by a voyage, from Singapore, of 1,500 miles, and was therefore rebagged at Calcutta. It was stowed in the customary manner on the bottom of the ship's hold, but piled in tiers somewhat higher than usual. The ship sailed from Calcutta in March, and reached Boston in July. Every precaution was taken during the voyage to diminish the heat of the hold by ventilation, and, upon reaching Boston, the bags were hoisted out of the hold and delivered on the wharf, in the usual manner, by means of slings. Held, under the circumstances of the case, that a shrinkage of about 5 per cent. of the weight of the eutch was owing to the inherent nature and quality of the article itself, and not to any negligence of the owners of the ship.
John O. Dodge it Sons, proctors for libellants. Dana it Harding, for respondents. NELSON, D. J. This is a libel in personam, against the owners of the ship Iceberg, to recover for loss and damage of 2,502 bags of cutch, on a voyage from Calcutta to Boston. It appeared at the hearing that the cutch was received on board the Iceberg at Calcutta, in the months of January and February, 1878, in good order and condition, and bills of lading were delivered for the same, containing the usual exception of the perils of the sea, and the memorandum, "weights and contents unknown." The ship sailed from Calcutta early in March, and arrived in Boston in the following July. In the course of the voyage, in consequence of the heat of the lower hold, where it was stowed, the cutch had softened, had leaked out of the bags, and run together, and had become mingled with. the fragments of the bags and the dunnage, and had suffered a shrinkage of about 5 per cent. of its weight as received at Calcutta. In addition to the loss of weight, the libellants
JANNEY V. THE TUDOR COMPANY.
815
were obliged to incur expense in rebagging' the cutch. The libellants, in their libel, admit "that it is true that cargoes of cutch are liable to suffer, and usually do suffer, by their own nature, a certain loss of weight and shrinkage during the voyage from Calcutta to Boston, made at the time of year that this voyage was made," but they aver that "an extreme allowance for such loss of weight upon the voyage, supposing the cutch to have been properly received, stowed, transported, and delivered by said vessel, would have been 3 per cent. of the quantity received." They claim that the excess of the shrinkage in this case, above 3 per cent., was caused in part by bad stowage, and in part by unusual and improper tneans used in hoisting out the cutch from the hold and landmg it on the wharf. Assuming that a shrinkage of 5 per cent. in weight is an excessive and extraordinary shrinkage in a cargo of cutc,h, on a voyage in the hot months, from Calcutta to Boston, which is by no means ''Clear upon the evidence, I am unable to come to the conclusion that the shrinkage in this case was owing to defective stowage. It was stowed in the customary manner, on the bottom of the ship's hold. There was some evidence that the bags were piled in tiers, somewhat higher than is usual. But it was not shown that any practice existed in this respect which amounted to a custom, and I cannot find upon the evidence that this circumstance contributed, in any appreciable degree, to the shrinkage. It appears that, owing to the inherent character and qual. ity of the article itself, cutch always suffers a greater or less loss from evaporation on a voyage from Calcutta, depending upon the condition it is in when received, and the tempera. ture of the weather during the voyage, and that it is Jiable to soften and run'through the meshes of the bags, when ex posed to a temperature which is inevitable in the hold of a J vessel on a voyage of several months in hot weather. When this cutch was received on board the Iceberg, at Calcutta, it had become somewhat softened from a voyage of 1,500 miles, from Singapore, and was rebagged at Calcutta in consequence. w
816
FEnEBAL REPORTER.
The voyage from Calcutta to B9ston was during the hot months in both hemispheres. Every precaution was taken on the passage to diminish the heat of the hold by ventilation. The cutch was hoisted out of the hold and delivered on the wharf in the usual by means of slings, and I can see no 2legligence on the part of the respondents in that respect. Upon the whole case, I am of the opinion that the shrinkage caused by the evaporation and melting of the cutch was owing to the inherent nature and quality of the article itself, and not to any negligence of the respondents. The authorities are numerous and conclusive that the ship owner is not responsible for loss to goods arising under such circumstances, whether in his relation as common carrier, or upon bills of lading in the form given in this case. Nelson v. Woodruff, 1 Black, 156; Brig Goleaberg, 1 Black, 170; Clark v. Barnwell, 12 How. 272; Lamb v. Parkman, 1 Sprague, 343; The Invincible, 1 Low. 225; Libby v. Gage,' 14 Allen, 261. Libel dismissed, with costs.
DUSTEEa HUT. BUILDING i'UND J ETO' J
v. &
BOSSEIUX.
81 '1
TRUSTEES OF THE MUTUAL BUILDING FUND BANK
DOLLAR SAVINGS
v. BOSSEIUX and others, Directors, etc. August 17, 1880.)
(District Court, E. D. Virginia. 1. SUIT BY AssIGNEE
m BANKRUPTOY - TIME m WHICH IT MAY BB BROUGHT.-lt is :lot necessary that a cause of action should originally accrue or arise within two years before suit is brought by an assignee in bankruptcy. In 1'8 Eldridge Go. 2 Hughes, 256. may be br'ought by the assIgnee at any time within two years after his appointment to office, provided the cause ot action existed at the time of the filing of the petition In bankruptcy.
2.
3.
SAME-LIMITATIONS OF THE AssIGNEE'S POWER OF SUIT-REV.
St. if 5('46, 5047, 5103.-Section 5046 of the Revised Statutes provides: "All the property conveyed by the bankrupt in fraud of his credit0t:S; all rights in equity, choses in actions, patent rights, and copyrights j all debts due him, or any person for his use, and all liens and securitiell therefor; and all rights of action which he had against any person arising from contract, or for the unluwful taking or detention or injury to the propertyof the bankrupt; and all his rights of redeeming such property or estate, together with the like right, title, power, and authority to sell, manage, dispose of, sue for, and recover or defend the same as the bankrupt might have had if no assignment had been made, shall, in virtue of the adjudication in bankruptcy, and the appointment of his assignee, hqt subject to the exceptions contained in the preceding section, be at once vested in such assignee." Section 5047 prOVides that such assignee shall have the like remedy 'to recover all the estate, debts, and effects in his own name as the debtor might have had if he had remained solvent. And section 5103 provides that trustees in bankruptcy shall have all the rights and powers of assignees in bankruptcy. Held, that the assignee's power of suit is so far limited under section 5046 that (1) the thing sought to be recovered must be such as, when recovered, shall be assets of the estate; and (2) that the action brought must not be an action of tort for damages, such as at comlUon law is strictly personal, and dies with the person.
4. SUlT BY TRUSTEES IN BANKRUPTOy-BANK DmECTORS-NEGLIGENOE -REV. ST. §
5046.-Held, further, that a suit by the trustees ill batikruptcy of a. hankrupt bank,against the directors of the corporation, to recover the losses by the gross negligence of such directors, falls within'the broad terms of said section 5046.
5.
SAME-SAME-EQUITABLE RELlEF.-Held,
further. that such suit' may
be brought in equity.
v.3,no.14:"'-59
