FEDERAL REPORTER, vol. 40. for appropriate to oQr diverse system, and in consonance ,with the expension and nrogress of the country on the paths of civiliza. ,tion as they widen and extend. The demurrer will be overruled.
CHIESA tI. CoNOVER et
al. l
(Dt$trlctOouirt, S. D. Alabama. March 29, 1889.) "SmPPINo-BREAOHOll' CIIA:RTER,PARTy-PERSOlUL LIABILITY 011' MAsTEL
The master ill' oharge at time of8l\izure cannot be made liable in P6l"llottOm fol' breachQf the oharw,r made by his. predepe&Sor, even though he has, withoul; con. Bideration, .promised, to execl1te it.
In Admiralty. On exceptions to libel by defendant A. Conover. Pillans, Torrey k Hanaw, for exceptions· . G.L. &H. T.Smith,fodibelants. '. TOULMIN,J. As I ,understand it, the libel in this case is to recover .damag4:'s for fl.nalleged breach of a charter-party made by the master of th", hark Augustir;w:({obbe,for thereof. The libel alleges that the charter-party was not performed by the master under the, instructions of the owners. It apPears 'libel that the master who executed .the charter-party, is not a, party but that A. Conover, who is a party def4:'ndant. and it is sought to J;llake him liable jojntlywi'th the owners for the alleged damages. The oQ-ly conp-ection he seemS to have the charter-party, so far as of the libel ISPOW, is that he promised the libelant to perfor,m tl1echarter.party., he made liable for a breach of the made by theJprmor master, for he was not a party to it; and, ifit is l;lougl1t to :tI).ake; him, liable for a breach of his subsequent promi!le as for a breach of a.vel'bal it Beems to me it must tl>edone in a Belwrate 8uit., If A. Conover cannot be made liable for the bl'(jach of the made by the fbrmer master, and this suit is to recover damagea for such breach, then the libel makes no case against ,4. Conover, and the e:ltceptionsby him ihatthe libel shows no cause of against him is .well taken, and should be sustained. If the effort il} to make him liable for l;\ breach· of his verbal promise, then no recovery q!1n be had against him in this suit, because there is no consideration for such promise. But, as I have said, I understand from the allt!gations of the libel that its purpose is to recover damages for a breach of the original charter-party, to which contract A. Conover Wll,8 not a ,party, and caIlnotbe made lia\:)le on it. The exceptions to the libel · .. !;
Iltep:Qrted by Peter J.BamiltQn, Esq., of the Mobne bar.
" ecHULTZ V. THE PIETRO Go
SCHULTZ
v.
THE PIETRO
G.
{Circuit Court, S. D. New York.
November 7,1889.}
1.
SHIPPING-BILL 0]' LADING-SHORTAGE.
The clause, "I do not know the weight, .. inserted by the msster in a bill of lading given for "about 200 tons," casts on the consignee the burden of proving that he did not receive all that was delivered to the ship under the bill, though less than 200 toilS was received by him, and, failing to prove this, he cannot recover. Where two lots were delivered to a ship under difl'erent bills of lading, each containing the clause, and no evidence was given to show how much was originally delivered under each bill of lading to the the consiWlee of one lot cannot recover without showing that less was deliverea to him than was delivered to the ship under his bill of although he shows that the consignee of the other lot received the whole quantity mentioned in his bill of lading.
.. BAllE-DuTY 0]' CARRIER.
In Admiralty. Libel for shortage. 'On appeal from district court. 88 Fed. Rep. 148. Wing, Shoudy Putnam, for Schultz. UUo,Ruebsamen Hubbe, for the Pietro G. WALLACE, J. Two lots of scrap-iron were received by thE! bark at Antwerp for transportation to New York, and bills of lading, one for each lot, were given by the master,-one reciting the receipt by the ship ·of about 500 tons of iron; the other reciting the receipt of about 200 tons of 'iron; aach bill of lading having the qualifying clause written therein by the master, "I do not know the weight." The libelants, by indorsement of the bill for the 200 tons, became the owners of ,that lot of the iron, and bring this suit, that the ship "has not delivered the said iron to libelants, nor any part thereof, except 164 tons." They have given no evidence of the quantity of the iron actually received by the ship at Antwerp. The ship delivered 500 tons of the iron on board to the consignees under the other bill of lading, and subsequently delivered 164 tons to the libelants; and what was thus de.livered was the whole quantity received on board at Antwerp. There is no evidence in the case that less was delivered to the libelants than was received on board the ship as the lot mentioned in their bill of lading, or that any more was delivered by the ship to the other consignees than was received by the ship as the lot covered by their bill oflading. There is no evidence to show which of the two lots was first received on board ,the ship, or that the lot first discharged was not the lot last received on board, or that what was delivered to libelants was not the lot that belonged to them. The libelants do not claim in their libel that the iron which was delivered to them was not the lot which belonged to them, but aver that the quantity delivered was less than they were entitled to. The clause inserted in the bills of lading by the master, stating that he did not know the weight, qualified the effect of the recital as an admission of the number of tons of iron received on board the ship. It was equivalent to a statement by the master that he had not so verified the truth . of the recital of the quantity received on board as to be willing to abide v .40F.no.8-32
by it. Such a clause neutralizes the force ofthe recital as evidence, and shifts tpe burden of vrooffrom the ship to in a case like the present. and requires him to show that he did not receive all of his property was,actually received by the ship. Eato'f!, v. Neumark,37 Fed. Rep. 375 j Matthiessen v. Gusi, 29 Fed. Rep. 794. When a discrepancy ,before, an, /loQep,tance by 'the owner, and' acceptance is'reis fused on that ground, anei'the carrier put to an action for the freight, it would incumbent upon t,he latter to prove'affirmatively a tender of delivery of' all the cargo actullJly received for the ownerj but this is not suoh a case. It appears itl evidence that the' two lots of iron were not kept distinct onboard Consequently,if there were any evithe libelants did not receive all they were dence·in the case to entitled to,'the ship would"not be exonerated by proviDg thlJ.t, whafwas delivered to both consignees was all the iron actually received on board. ,But in the absence ofsu9h :evidimce,or of any eVidence to show that a larger quantity was delivert:d to the other consignees thaubelongedto them, the libelants cannot It wllSthe duty of the master to keep the two lots distinct. If he had d<;>ne this; the libelantswQuld have had no reason to suppose that they did not receive all the iron that :belonged to them, and this suit probably would nothave.been broughtj but the libelants. cannot recover upon any theory of a breach of duty in this respect on the master's part, because they do not show that they 'sustained any:loss in consequence oLbis conduct. The libel by the master in the suit broup;htby him for demurrage against the present libelants aIleges':deUvery to, them of alLthe irOn received for thelDjand :the statements of the libel oannot be regarded as an admission tbat200 tons wereactull11y received on board the ship. The:Jibel is dismissed, without costs of the district court, but :with oosts of this. court.
,
I
'.
,-
'.,
.
Cu¥MINIl
et
TH:l!l ,BARRAoomrA.
Court,
New Yor"k, Novembe1!
Pa6oP. In a suit for t-lle loss ,of the contents of certain casks kegs during traUl!POrt,a. tlon on a vessel, the defense was that the 10s8 arose from leakage, for whIch by the terms of the bill of lading the carrier.wase:tempt foom liability. It appeared. that on tbe arrival at the ,portO'of thecal'go wastra!lsferred tp lighters in the employ of the vessel for delivery to the owners. 'W'lieiideliveredby·the light: era all the cask, sw,ere in, bad Order,' some: hB",i,ilK,' thelll staves broken at, the bfiJ<,E " e, their contelltsjwhich were liquid,aIso and others their hoops started and gone. The hoops of the kegs were started and some of them golie, and the. staves were 'broken.. None of the lightermenwere'Called as Witnesses by the vessel, but witIlesses for the v;esseltesti1l.ed that whe,n the casks ,and kegs wel'!'l delivered ,to the lighters some of the casks were empty, apparently from leakage. Bela,'that inasmuch as ,the apj?earabae of thecBllks;snd,kegswnen deUvered to theownera WBlilIloS l!0nsisten,t WIth the theory of, th' their PQutentshy l:1reakage ll,6 With the theory of the,loss by leakage' the, \io.rlien of proof. was upon the vessel to show ,Olea:,rly·that t,he, loss arose, from t,b,e uausej' ,t11a,t., ,having failed,', 'to,"OO1,1,t4,e ' I: lightermen as witnesses, or give any showmg, that the cargo was delivered by the lighters in the condition ,In whibh it 'was when reoeivildby' them, the vessel '.. ,was :not mronerated by a satisfactory viDdieatibn,. , " ". ' ,,', , SIIIPPlNG-ClA.RIUA.GB Ol' GooDs-NEGLIGENOlll.....B uRDBN OJ'