612
FEDERAL REPORTER.
customary for the vessels of their line to stow macaroni and green fruit in the same compartment. They state, however, and it is now a wellknown fact, that green fruit is specially a "heating cargo;" and, in case of any unexpected prolonga,tion of the voyage, or of bad weather, interfering with constant ventilation, there is great danger of such heating and decay of the green fruit as to injure any other cargo stowed with it, and susceptible, like macaroni, to its influence. Several of the libelant's witnesses show that stowing macaroni in the same compartment with green fruit is regarded as dangerous, and that, upon other lines running from the Mediterranean, such goods are not stowed in the same compartment. In my judgment, whatever the former practice may have been, when the carriage of green fruit was new, the liability of fruit to cause damage from heating, sweating, or decay, through. the contingencies of the voyage., had become so well known at the time of the shipment of this cargo, in 1885, that the stowing of macaroni in the same compartment with green fruit was not an exercise of that reasonable care fo-r the safety of the macaroni which was obligatory upon the vessel; that the practice of stowing them in the same compartment was not then so general as to constitute a usage to which the libelant's assent is to be presumed, so as to furnish a defense to the ship; and that the ship is consequently liable for improper stowage in not separating the two kinds of cargo in such a manner as the existing state of knowledge made obligatory. (]lark v. Barnwell,12 How. 272; Mainwaring v. The Carrie Delap, 1 Fed. Rep. 874; The T. A. Goddard, 12 Fed. Rep. 174, 177; The Titania, 19 Fed. Rep. 101. Decree for the libelant, with costs.
In re
THE BOSKENNA BAy.l
:.Dislriot Court, B. D. New York. June 22, 1887.)
1.
DAMAGE TO CARGO-FRl;rIT-EVIDENCE-FoREIGN VALUE.
In ascertaining the amount of damage sustained by a of fruit, the best method, in the absence of direct evidence, is by a comparison of the price brought by the damaged fruit at a fair sale, with the market value of sound fruit of the same brands, sold at the same time: or if that is not obtainable, then by a comparison of the price brought by the damaged goods with the _prICes brought within a week before or after by other brands of the same Invoice value at the place of export as the damaged fruit: or, next, proof of the value abroad would be competent, with additions for differences in market. The average values of all the fruit arriving about the time of the arrival of the damaged fruit, from the same port as the latter, is only a reasonable test as a last resort.
2.
SAME-AvERAGE VALUE.
In Admiralty. On report of commissioner under order to compute damages. For decision on the merits see 22 Fed. Rep. 662. 1
Reported by Edward G. Benedict, Esq., of the New York bar.
IN RE THE BOSKENNA BAY.
613
Franklin Bartlett, for libelant. E. B. Convers, for claip.1ants. BROWN, J. The report on damages was remitted for the purpose of tnabling the parties to show the market value, in a sound condition, of fruit of the same marks and brands as the libelant's fruit damaged by frost; or, second, in the absence of such proof, the average value of Palermo fruit shipped at about the same time. Upon a further hearing before the commissioner, out of 56 different lots or brands, forming the libelant's goods, nine lots having the same marks and brands are proved to have been sold in this market in a sound condition at about the same time. To this extent the object of recommitting the matter has been obtained. Of the nine lots thus capable of direct comparison, eight lots are oranges, which show an average difference between the sound and the damaged fruit of a little less than ten cents a box. Only one lot of lemons was found represented in the sale of sound fruit by the same marks and brands as the libelant's; which, by comparison, show a loss of 75 cents a box. Trere were, however, 26 different lots of lemons in the libelant's goods, and 30 different lots of oranges; so that of all the 56 different lots there is only one-sixth of the number of which the difference in value in a sound and damaged condition is evidenced by anything approaching direct proof. As respects the remaining 47 lots of the libelant's goods, no proof has been introduced of their value in a sound condition, either here or at Palermo; nor any proof of the value in either place of other goods ofthe same brand; nor has the average value of "Palermo fruit shipped at about the same time" been shown, except by the testimony of Mr. 8ecomb, which shows the prices brought for all oranges and lemons upon seven steamers arriving during the week prior to ann the week after the Boskenna Bay; and that the difference in the average price received for all the sound oranges and the average of Wolfe's oranges was 13 cents a -box, and on the lemons 31 cents a box. The finding of the commissioner, as I understand it, is based partly upon the general estimates of witnesses of what injury frost would do a cargo, partly upon a comparison of 37 other lots of oranges and lemons upon the Boskenna Bay, that had marks and brands wholly different from any of the libelant's goods, with fruit of similar brands and marks sold between March 1st and May 1st, and partly upon the fact that this Boskenna Bay cargo was called a "banner cargo." I think the result arrived at in these modes is too conjectural and uncertain to be approved. The Colon, 10 Ben. 366; The Rossend Castle, 30 Fed. Rep. 462. The burden of proof is upon the libelant to show his damage, and by the best means that are fairly within his power. The case does not show, as it seems to me, the use of those means that must be deemed available to ascertain most fairly the damage to these particular goods. The sales for a month or six weeks after the sale of the Boskenna Bay cargo were so late in the season that the general range of prices was evidently higher, and that period of comparison should be disregarded. The lots
614
selected by each side for comparison and shown in their schedules are evidently picked lots, since the schedule presented by each party embraces none of those shown by the other. A comparison ofthe libelant's fruit with other fruit of quite different marks and brands on board the Boskenna Bay, and with other sales of fruit similar to the latter class, assumes that damage to the whole fruit on the Boskenna Bay was the same as the damage to the libelant's fruit. The proof is not sufficient to warrant th,isl;lssumptiQn. There is only very general and indefinite evidence that all the cargo of the Boskenna Bay was injured by frost, while there are other strong indications that there was nothing like a uniform injury to all. Some was probably injured much, other portions a little, and some none at all. Again, there were some 500 different lots of fruit on the Boskenna Bay, and only about 37 of these (other than the libelant's marks) are selected for a comparison with. the sales of sound fruit of similar marks. This is only about one-fourteen.th of the whole cargo of the Boskenna Bay, whereas the nine lots of t.he libelant's fruit, which are com pared with other sales of the same brands, form about one-sixth part of all the libelant's goods. The latter are, apparently, therefore, a better guide, because a larger proportion and a part of the very goods injured. As these goods were moreover for the same consignee,they were probably more nearly together, and hence somewhat similarly affected, while the other parts of the cargo were probably more unequally affected. statement that this I cannot give much consideration to the cargo was a "banner" cargo, since no equivalent in money value of the banner quality is stated. The prices realized upon the sale do not afford much support to this general testimony, nor has the libelant shown that the purchasers at the sale understood, as a rule, that they were buying damaged goods. In the absance of direct proof of the value of fruit of the same brand as the libelant's in this market, in a sound condition on the day of delivery, the most satisfactory mode of ascertaining the presumed amount of injury to the libelant's goods from frost would have been to compare the price that the goods actually brought in their damaged condition with the prices brought, within a week before Or after, by other brands of the same invoice value as the libelant's goods. TM Colon, supra. If this was not obtainable, then proof of the value abroad would have been competent, with additions for differences in market. So a comparison of the invoice values of all the different lots of the libelant's goods among themselves, when compared with the prices brought on the sales of nine similar brands offruit in a sound condition, would have furnished, it would seem,pretty trustworthy evidence of the sound value of the 46 lots. The differences in the invoice prices might fairly be taken to correspond.with the differences in value here; if not exactly, yet approxinmtely, in the absence of all direct evidence of value. None of this proofwasintroduced. The average values of all the Palermo fruit at that time is only reasonable as a last resort, when all other means of proof were exhausted. The R08send Castle,supraj The Scotland, 105 U. S. 35,36.
THE NATCHEZ.
"15
But I must regard even this as more trustworthy than the extremely loose, vague, and widely discrepant estimates of persons who knew nothing of the actual injury to the fruit, and who gave estimates of what injury might happen to fruit exposed for 12 hours to a certain temperature. In the absence of any better testimony, I take, therefore, the average values of Palermo fruit during the week before and after the arrival of the Boskenna Bay, and compute tha damage to the 46 lots by a comparison of those average values, as the sound price, with the prices realized on the sale of the 46 lots in their damaged condition. The damage upon the nine lots will be taken at the difference between the amount at which they sold and the average sales of the similar nine lots in evidence. The parties will probably be able to make up the amount due upon the above basis without further reference.
THE NATCHEZ.'
WALI,ACE
and another .". THE
NATCHEZ.
(Oircuit Oourt, E. D. Loui8iano.. March 8, 188'7.) STOPPAGE IN TRANSITU-DELIVERY.
By a substantial delivery of goods by a common carrier to the consignee thereof, lose any right they may have had to stop the con&igned goods in tramztu. t
Admiralty Appeal. See 27 Fed. Rep. 309. E. H. Farrar and E. B. Krutt8chnitt, for libelants. O. B. Sanswm, for claimants. PARDEE, J. At the time of the attempt of libelants to exercise the in transitu, the transitus had long been ended, so far as right of the Natchez was concerned, by the delivery at Kemp's Landing, one of the places named in the libel as the place of consignment; or, if that was not such a delivery as would relieve the Natchez from liability as a common carrier, then the transitu,s was ended when the Natchez reshipped the goods under direction of J. P. Kennedy, agent of the consignee, for another destination. There is evidence to show that Kemp's Landing and Kemp's Levee were different places, about three miles apart. The libel says the goods were consigned to Kemp's Levee or Landing, and the unsigned dmy receipt, attached to the libel, specifies Kemp's Levee as the mark on the goods. There is no doubt that the goods were delivered by the Natchez at Kemp's Landing for the consignee, and that they remained there several days before they were reshipped on the I
by Joseph P. Hornor; Esq., of the New Orleans bar. the delivery that will defeat the consignor's right of stoppage in tra7l8itu, see Lanj\'Staff v. Stix, (Miss.) 1 South. Rep. 97, and note. S Respecting
1 Reported
