268
FEDERAL REPORTER.
19; Ro71ing-Mill Co. v. Rhodes, 121 U. S. 260, 7 Sup. Ct. Rep. 882. The proctors for libelant contend that, as there was no canceling clause in the said contracts, (and on this point there is some evidence to show that the ship's agents refused to put in a canceling clause,) the contract was enforceable against the defendants at whatever date the ship might arrive. On this point it is only necessary to say that the presence or absence of a canceling clause in the contracts sued on can cut no figure; because the contracts were based upon untrue representations as to the sailing and arrival of the ship, which representations amounted to warranties on the part of the ship and her agents. It seems clear that libelant cannot recover, and judgment to that effect will be entered; costs of this and the district court to be paid by libelant.
SEAMAN
et ale
'D. ADLER
(Oireuit (lourt, E. D. Loui8iana. January 9,1889.)
SJUPPINg...::.FllEIGHT-LIABILITY i, I,
The co,nsignee of merchandise, who.is also owner, is liable for the freight thereon, though without fault of the ship's crew it has, by exposure to severe weather befo're shipment, become worthless at the time of delivery.
OF ,CONSIGNEE.
,In Admiralty. Libel for freight. On appeal from district court. . Libel by S. R.Seaman and others, owners of the ship Louisiana, against A. Adler and others for freight money. Judgment for libelants, and respondents appeal. Fergus Kernan, for appellants. £. ' W.· HUntington, for appellees. "'PARDEE, J. In January, 1887, Adler & Co. ordered through merQllandise brpkers in New York 200 barrels of Irish potatoes, to be shipped to them at New Orleans.' The potatoes, were bought from Oscar Frommel & Bro., who delivered the same to the steam-ship Louisiana, consigned, to A. Adler & Co., at New Orleans. At the time of delivery to the ship the weather was very cold, and it is a fair inference, from the evidence of the case, that during the loading and hauling necessary, the were frostrbitten. On her. voyage to this port the steam-ship L,ouisia,Qa wasOelayed by an accident to her machinery some 10 'fh¢ potll.tpes arrived here in a rotten and worthless condition. Adler & <;0·. sent dpwn for a dray-load, and had carted to their store about 50 barrels, whIch they examined, and discovered the rotten condition of the potatoes;,whereiipon they refused to accept any more. The agent of thelAulsiana demanded the freight of Adler &00., which was refused, an9 Adler & Co. and the steam-ship's agent, a the shippers, Frommel & Bro., inquiring1Vhat diapo'sitiori should be made of the potatoes, and asking for aQ.thority to " '-,' ",-" ,II . -, ' . , ,
SEAMAN V.
269
pay the freight for their account. To this telegram no answer was received, and thereupon Adler & Co. gave orders to Morphy, auctioneer, to sell the potatoes at public auction for account of whom it might concern. At the auction sale they did not bring the price of the barrels in which they were packed, and not enough to pay freight. Adler & Co. still refusing to pay freight, the owners of the steam-ship bring a libel in personam for the freight money. The' questions presented for decision are-First. Whether the vessel earned' her freight money. Second. If she has earned her freight money, are Adler & Co. liable therefor? There doesn't seem to be'.any trouble under the evidence in finding that the vessel earned freight money. The potatoes, it is true,were received in apparent good order; but they were properly stowed, and received no injury while on board, except it may be from delay. The delay was caused by an accident to the ;machinery, which is one of the excepted perils mentioned intbe bill of lading. It is pretty ,plear from the evidence that the damage to the pQ-o tatoes was caused by cold weather at the time of delivery in New York. On the second point, a great deal of argument bas been had, tending to show that a consignee is not liable for fre.ight .mopey unless. he receives the goods, and the law on this point may be taken to be that way. See Abb. Shipp. margo p. 421; and ·MaeI. Shipp. 500. The. case shows, however, that Aqler.& Co., although nominally in the bill . of ladtng, consignees, really. were the owners of the .goods; It is clear that when they ordered potatoes in New York, to besbipped to them at .New Or. leans, that the contract of sale was complete upon. the delivery of tIle goods to the carrier. See Abb. Shipp. 326. Auth()rities might tiplied to any extent upon this point. The real.case is that Adler & Co. shipped the potatoes by the Louisiana, which vessel complied, iuall respects, with its contract as a carrier. "!tInilY happen. however, that goods existing in species, when brought to the place of dpstination, ,are the freight; and then so deteriorated in condition as not to be arises the question 'whether the merchant is bound to pay the freight, or is at libertytoabltndon the goods to the ship-owner for his claim.. In considering it, the causes from which the deterioration in the merchandise may proceed, must bedistingu·ished. Hit proceeds from thefault of the master or marillers, the merchant is entitled toa compensation, and may recover it against the owners or master." Macl. Sl)ipp. 469. "On the other hand, if the deterioration proceeds from an intrinsic principle of decay naturally.inherent in the commodity itself, w4.ether active in every situation, or only, in the, confinement and closeness of hold of the ship, the merchn,nt must bear the 1088, and pay the freight. The master and owners are in no fault; nor does their contract, thought;aken as the cont1;8£t of common carriers, contail!- any insurance or gUl,lranty against such an event." 14.470. JUdgment J;Ilust go for the libelants. j
FEDERAL
'REPORTER.
no
·
O'NEIL (Di8t'l'id LANDING
'D.
THE -I. 'M. NORTH.
8. D. NtIUJ York. December,S1,1888.j '
The tug N., in landin¥, a tow of nine canal-hoats at the dock at Port Ewen. North river, through mIscalculation and the kinking of the tow upon a slack canal-boat upon the corner of a gap in the dock. , hawser, ran the , bringing the 'boat to a dead stand, causing her damage. Though the boat , was old, and not very strong about the bows, the blow being much more vio, :lent ,tban, the brdlnary contacts 'of navigation, held. that she was not unseaworthy, nor weak 8S to require notice of weakness to the tug; that not,ice, if given. could uot nave affected her handling; and 'that she was therefore entitled to full damages. " ' , I'.'
In Admiralty. Libel fol' damages. Libel 'by ,Kate 'O'Neil against the tug North for negligence in running a canal-boat against the cornel' of the dock at Port Ewen, on the North river, when landing e: tow of ' Hyland Zabriskie, for , 'Robert D. Ben'edict, for,claimants.: " BROWN,J. ' I am satisfied' that,the libelant's witnesses are mistaken in estimateofthespeedofthe,tow when near the dock at Port Ewen. Considering $11 the the most probable cause of the collision Of the libelant's boat with the corner of the gap in the dock is miscalculation on. the part of the capta.in'Of the tug in approllOhing too near the lilie of 'thedock,having refereilceto the fHct that there were four boats in thesecolldtieroPthe;tow, while there were only three boats in the front tier, and:that the second tier; with the libelant's boat on the port side, more than 'the captaIn of the tug had taken account of. The libelant's testimony 'seems to Confirm that of the, respondents, that the hawser was slack, arid thattherefdresome kinking of the tow, more or less,was unavoidable. Nothing is shown, however, iIi the circumstances, of an unusual or unexpectedcharactl'r. The liability of the tow to sheer and' kink either way was' fully known. 'The tug was boutid, therefore, to make all necessary allowance for this liability in approaching the dock ani!: slack hawserj and, Rsthe was 110t in fault, the responsibility'forthe' bl6w rests on the tug. ' , ' The canal-boilt was 14 years old. The evidence; shows clearly that the wood-work about her bow was not very strong. 'Theclaimants lind some of their testify, that she was not fit for the ordinary contactsofnRvigatioI1j others ortheir witnesses hesitate on that point. I am not entirely satisfied in that respectjan'd:, looking at the other circumstances,'! give the!libehmtthe benefi:t of the doubtj for the blow mlist have' been 'a very trying'one, from its place n'ear the sten') of the square-headed boat. Striking the corner of the gap in that way, she could not turn to the right or left, but was necessarily brought to a dead stop. The lines of the other boats were broken; and with nearly 200 tons of coal on board, and other boats pushing up from behind, even
