44 F. 98 | S.D.N.Y. | 1890
The libel is filed to recover a balance of $428.79, freight alleged to be due upon several consignments of cocoanut oil from Cochin China, and upon the bills of lading therefor indorsed to the respondent. A considerable number of the casks were lost by sea perils. The respondent has paid the stipulated rate of freight upon the number of gallons actually received by him. The libelant contends that the freight specified in the bills of lading constitutes a lump sum which the respondent was bound to pay in full, notwithstanding the fact that a portion of the packages was lost in transportation. There were four bills of lading, all of which provided for the payment of freight as follows: “Freight for the said goods at the rate of 32/6 per ton of 210 imperial gallons to be paid on right delivery, as customary as per memo, in the margin, at port of discharge.” In the margin was the following: “Memo, of freight. * * * Imperial gallons 6,052, at 210 galls, per ton, equals 28.819; @ 32/6 per ton, £46.16.7.” At the bottom was a stipulation: “Not accountable for leakage or breakage, except from improper stowage.” On the trial, the evidence of one witness was given, to the effect that it was customary to collect full freight, though a part of the packages were missing, if the aggregate freight was stated in the margin, as in this case. So much must depend upon the circumstances of each case, and upon the language of the bill of lading itself, and the testimony of this witness seemed to me so uncertain in several respects, that I cannot find established the existence of such a custom. The respondent, who had had equal experience in similar importations, testified that he had never