125 F. 332 | N.D. Cal. | 1903
There are two causes of action set forth in the libel. In the statement of the first it is alleged that the merchandise was delivered to the defendant on board the steamer J. S. Kimball for carriage from San Francisco to the steamer’s anchorage at Nome, in Alaska; that upon arrival of the J. S. Kimball at Nome the libelant and defendant entered into a further agreement by which the defendant undertook, for the agreed compensation of $5.50 per ton, to lighter such merchandise from the steamer to the beach; that by reason of the carelessness of the defendant “in and about the discharge of the said merchandise from the said steamer, and the attempted carriage thereof from the said ship to the beach,” part of the merchandise was lost, and the remainder delivered to the. libelant in a wet and damaged condition. It appears from the evidence that the merchandise referred to was shipped by libelant upon the steamer J. S. Kimball for carriage from San Francisco to Nome, Alaska, under a bill of lading which contained the following, among other provisions:
“Shipped in apparent good order and condition by Ames Mercantile Go., on board the Kimball Steamship Company’s steamer J. S. Kimball, * * * lying in the port of San Francisco and bound for Nome, * * * [the goods mentioned in the libel], to be carried at the option of said company upon the said steamer or upon any other of said company’s steamers * * * unto the port of Nome; * * * explosions at sea or in port, or from any cause whatever, or any other accidents, literage, disasters, or dangers of the sea * * * excepted; * * * and there, in like apparent good order and condition, to be delivered at the vessel’s tackles, unto Ames Mercantile Go. * * * It is expressly understood that the above mentioned merchandise shall, at the option of said Company, be received by the consignees thereof, at the vessel’s tackle, immediately after the arrival of the steamer at the port of destination, or the same may be landed and stored or stored in hulks, or put in lighters, or launches, to he selected by the master of the steamer, at the expense and risk of the owner, shipper or consignee. * * * All lighterage from steamer to steamer and/or between Steamer and Shore, of goods named in this bill of lading, will be at the risk of owner, shipper, or consignee, and also at their expense at port of delivery. * * * "And the said company is hereby expressly granted the right and option of delivering the merchandise represented by this Bill of Lading to consignee from alongside, or of landing and storing said merchandise either in lighters, hulks, on wharf or in warehouse, immediately upon the arrival of said steamer at the port of discharge of said merchandise without notice to and at the expense of consignee, and in the event of its so landing and storing said merchandise, said company is thereupon hereby released from all further liability for loss or damage thereafter, whether arising from fire or from any other cause.”
“It is expressly understood that the above mentioned merchandise shall, at the option of said Company, be received by the consignee thereof, at the vessel’s tackle, immediately after the arrival of the steamer at the port of destination, or the same may be landed and stored, or stored in hulks, or put in lighters, or launches, to be selected by the master of the steamer, at the expense and risk of the owner, shipper, or consignee. * * * All lighter-age from steamer to steamer and/or between steamer and shore, or goods named in this bill of lading, will be at the risk of owner, shipper or consignee, and also at their expense at port of delivery.”
I do not think this language should be construed as authorizing the Kimball Steamship Company to lighter the goods at the expense and risk of the consignee upon the arrival of its steamer at her anchorage at Nome, if the consignee was then able and willing to receive the same at the steamer’s tackle when ready for delivery. The obligation assumed by the Kimball Steamship Company under the bill of lading was to carry the goods to the anchorage at the port of Nome, and the libelant agreed to accept them at the end of the steamer’s tackle; and, for the purpose of preventing delay or inconvenience to the steamer, if the libelant should fail to accept the goods at the steamer’s
“When goods are delivered to a carrier, they are usually no longer under the eye of the owner. He seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier’s servants; and they, knowing that they would not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer. From this liability as an insurer the carrier is only to be relieved by two things, both so well known to all the country, when they happen, that no person would be so rash as to attempt to prove that they had happened when they had not, namely, the act of God and the king’s enemies.”
The defendant sought upon the trial to show a local usage at the port of Nome exempting persons engaged in lightering merchandise from liability for loss or damage to such merchandise occasioned solely by perils of the sea, but the evidence offered was not sufficient to establish such a usage. No witness testified to any instance in which such a usage had been recognized and acted upon by the parties interested, when goods had been lost or damaged by perils of the sea while being lightered to the beach at Nome. Two witnesses stated generally that there was such a usage; but one seems to have based his statement upon the fact that he had previously entered into an agreement with the North Coast Lighterage Company to do lighter-age for him, in which it was agreed that the lighterage company was not to be liable for damage or loss of goods while in transit from the ship to the shore ; and the other, upon conversation he had had
“The existence of a usage, whatever may be the nature of the subject to which it relates, is in all cases a fact; a complex fact, it is true, resulting from a variety and a succession of individual acts, but still a fact, to be proved like all other facts, by the testimony of witnesses speaking from their personal knowledge. It is not created by hypothetical opinions, but by actual practice, and can only be established by a series of acts of similar character and import, performed at different times, by different persons. It is to these acts that the testimony, properly restrained and directed, should be strictly confined, and it is upon their number, uniformity, and notoriety that the weight and value of the evidence depend. Hence, where a witness swears generally that a particular usage exists, yet is unable to state from his own knowledge any instance of its actual observance, his testimony should at once be rejected; and it is only by a strict adherence to this rule that the important distinction between the evidence of opinions and belief and that of fact is possible to be maintained.”
See, also, Mills v. Hallock, 2 Edw. Ch. 652; The John. H. Cannon (D. C.) 51 Fed. 46; Hall v. Benson, 7 C. & P. 711, 32 E. C. L. 835; Hamilton v. Nickerson, 13 Allen, 351.
It is also alleged in the answer, as a defense to the first cause of action set out in the libel, that an account was stated between the libelant and respondent, “and that the said claim of said libelant for damage and shortage in said libel set forth was then and there by mutual consent between the parties fully settled, and the said respondent fully discharged from any further claim by reason thereof.” This defense is not sustained by the evidence.
In relation to the second cause of action set out in the libel, it seems to have been conceded upon the hearing that the defendant is liable for whatever damages the libelant may have sustained by reason of the matters therein charged. It follows from what has been said that the libelant is entitled to recover damages sustained by him by reason of the matters alleged in the libel, and the case will be referred, with directions to ascertain and report to the court the amount of such damages.