55 F.2d 568 | 5th Cir. | 1932
Baltic Cotton Company brought a libel under 46 USCA § 742, against the United States as owner and operator of the steam
It is undisputed that the bill of lading affirmatively represented the cotton as received in good order and condition although its recent wetting was known, being thus issued on the promise of Rayford to indemnify the ship, and that appellant paid the attached draft for the purchase price of the cotton on the faith of the representation. Appellee’s liability for the resulting loss is established. Higgins v. Angelo-Algerian S. S. Co. (C. C. A.) 248 P. 386; Oliver Straw Goods Corporation v. Osaka (C. C. A.) 27 F.(2d) 129; see also Austin, Nichols & Co. v. Isla De Panay, 267 U. S. 260, 45 S. Ct. 269, 69 L. Ed. 603. It is asserted that the commissioner’s report of the amount of damage could not he set aside by the judge because supported by some of the conflicting evidence, and reliance is put upon Davis v. Schwartz, 155 U. S. 631, 15 S. Ct. 237, 39 L. Ed. 289. A Commissioner in Admiralty resembles a Master in. Chancery. Admiralty Rule 43 (28 USCA § 723); Marquest v. Grant (C. C. A.) 83 F. 519. But the reference in Davis v. Schwartz as in Kimberly v. Arms, 129 U. S. 512, 9 S. Ct. 355, 32 L. Ed. 764, wMeh it follows, was of the entire case and by consent of the parties. The rule there announced is not applicable to a partial reference without consent to make an accounting or to fix damages. The distinction is plainly pointed out in Kimberly v. Arms. Nor is this case like Medsker v. Bonebrake, 108 U. S. 67, 2 S. Ct. 351, 27 L. Ed. 654, where the master heard and saw the witnesses testify, and thus had a better opportunity than the judge to estimate their credibility. The reverse is true here. The power given this commissioner was to report his recommendations to the court. The court was not bound to follow them. The Spica (C. C. A.) 289 P. 436. The case comes to ns to review the conclusion of a judge who did see and hear the witnesses who testified orally, and on whose testimony he largely placed his judgment.
The important facts are these: Three one-hundred bale lots of cotton aggregating 152,000' pounds of uniform grade and price were sold by Weil Brothers, of Montgomery, to Baltic Cotton Company, and were shipped by river steamer to Mobile, Ala. There the port inspector, Sadler, found the bales wet on the ends and one lot very wet. Rayford, the local agent of Weil Brothers, eut the bagging open on the wet ends and undertook for several days to dry them by sun and air, afterwards sewing the bagging up again. Bill of lading was given on January 28, 1925. On arrival at Copenhagen March 12, 1925, the cotton was weighed out and put in the warehouse of Baltic Cotton Company without exceptions, but on March 16th damage underneath the bagging was found and claim made by Baltic Cotton Company against its marine insurers. Baltic Cotton Company without notice to the ship or shippers applied to the local Sea and Commerce Court for a survey of the damage and surveyors were appointed. The survey was made on March 19th and 20th, and damage reported of 27 per cent, to one lot, 9.7 per cent, to another, and 6.8 per cent, to the third lot. Chemical analysis showed the damage not to be due to sea water, but to wetness before shipment. Baltic Cotton Company on March 21st cabled Weil Brothers these facts, and suggested reassessment of the damage by Lloyd’s agents. Weil Brothers, not knowing of Rayford’s oral promise to the ship, replied that the cotton was inspected by maritime inspectors before loading and the steamer had issued clear bill of lading and insurers were responsible. Baltic Cotton Company within fourteen days after March 21st
The Baltic Cotton Company upon whom the burden rests to prove their loss have offered nothing except the testimony of the two Danish surveyors. Every damaged bale was picked and reconditioned in their warehouse by three of their employes, working fourteen days. Both the pickings and the remaining sound cotton could have been weighed. The sound cott.on had to be weighed when resold. Its weight, subtracted from that of the original bales, would have given the weight of the pickings. The loss in value of the pickings plus the cost of picking would accurately measure the loss, and nothing else would. Knowing at the time that a dispute was pending with Weil Brothers, Baltic Cotton Company by answers to interrogatories say that the pickings, although the most reliable evidence both of their quantity and their quality, were thrown away, and that no account was kept or attempted to be kept of the identity or weight of the sound cotton from which the weight of the damaged cotton could be ascertained. Both of the Danish surveyors testify that the marks on the bales remained unaltered by them, and one of them testified that cotton is handled in Denmark as it is throughout the world, and that it is customary when original cotton is sold for the seller to make out an invoice showing the weight and marks of the bales. Appellant’s own accountant testified that as a rule the Baltic Cotton Company made a record of the weight, mark, date of receipt, and shipper of each bale as received, and made a similar record of each bale when sold.. The appellee through interrogatories sought to compel the furnishing by appellant of such records for this cotton, and the names of the customers who bought it. The first answers were held by the court to be evasive and insufficient, whereupon the appellant claimed that the identity of the bales was wholly lost after reconditioning, and they could not trace them on their records so as to give their weight or to say who bought them. If in reconditioning some of the badly damaged bales were combined together, the identity of the reconditioned bales could nevertheless easily have been and regularly would be preserved, especially in the face of a dispute about them. We must consider this failure in connection with the destruction of the pickings as amounting under the circumstances to a willful suppression of the most reliable evidence in the ease, from which adverse inferences as to the correctness of. the survey may and ought to be drawn. As to the sample which was kept, the evidence is directly conflicting. The appellant’s officer, answering an interrogatory, swears: “We kept a large sample of the pickings for Mr. Weil’s inspection. It represented the true average of the pickings. It.was a reddish cake,of cotton reduced to tinder by the rotting process through which the cotton had passed and was of'no commercial value whatsoever. There was no white cotton contained in same.” Weil swears: “In the sample they showed me there was only a skin of tinted cotton not an inch thick. The balance of it was perfectly sound white cotton. I pulled the staples in it, and more than half of that sample was perfectly good cotton and the other half damaged cotton. I pulled the staple in it to show them how sound it was.” He valued it at 15 to 18 cents per pound. The sale price of the sound cotton was 25.90 cents. The two surveyors testified more than three years after their survey in identical and somewhat remarkable expressions to extensive damage. The testimony both of Weil’s agent and the inspector at the port of Mobile is that the cotton was freshly wet and was not substantially damaged when loaded J anuary 28th. If not dried out, as Rayford claims it was, it is unlikely that by March 12th, forty-three days, the cotton would be wholly rotted, nor is it likely that cotton rotted by absorbed moisture would be separated from the sound cotton by a line so distinct that the bale would contain only completely sound and completely rotten cot-
Judgment affirmed.