23 F.2d 786 | 5th Cir. | 1928
This is an appeal in admiralty from a decree dismissing a libel which sought to recover damages for delay in delivery of a shipment of coffee from Victoria, Brazil, to New Orleans.
On May 31, 1920, Gerhardt & Co. delivered to the United States Shipping Board Emergency Fleet Corporation, appellee, at Victoria, 2,000 bags of coffee for transportation to New Orleans; and on the same date appellee issued its bills of lading calling for delivery in New Orleans to a bank which transferred them to appellant, the purchaser. The bills of lading provided for transportation by appellee’s steamer Tuladi “or other steamer or steamers,” whether belonging to it or not. The bills of lading were issued, as was the custom at Victoria, while the coffee was on lighters under appellee’s control, but whether before or after the Tuladi arrived in port is not clear from the evidence.
Until about the 1st of July of 1920 appellee had only three steamers that brought coffee to the United States from South American ports. Victoria was one of these, and, being the farthest north, was the last loading port. The Tuladi took only 400 of the 2,000 bags here involved; and appellee redelivered the remaining 1,600 bags to Gerhardt & Co., taking their warehouse receipt therefor. As no other vessel of its line was expected for some time, it engaged space for the bags of coffee left over in the Lloyd Brasiliero steamer Campos, which was the next vessel expected. The Campos arrived at Victoria on the 14th of June, but while entering port struck a rock and was forced to abandon its voyage. On July 5, the steamer Uberaba arxived with space enough to take the balance of appellant’s coffee, but actually took only 1,023 bags, which still left unshipped 577 of the bags included in the bills of lading held by appellant. The Uberaba sailed on July 16. Two other ships arrived at Victoria after the departure of the Tuladi and before the arrival of the Uberaba; but they may be left out of consideration, as appellant failed to meet the burden that was upon it to show that either of them had any available cargo space. After the Uberaba sailed, the Glenaffric arrived and could have carried the balance of appellant’s coffee, but took only 149 bags. • Finally- the balance of 428 bags were shipped on the Easterner. The Tuladi arrived in New Orleans on June 23, the Uberaba on August 20, the Glenaffrie on August 28, and .the Easterner on September 27. In the meantime the market value of coffee at New Orleans had greatly declined, and was less, on the date of each successive arrival just above stated, than it had theretofore been since the issuance of the bills of lading. Gerhardt & Co., without appellee’s knowledge, substituted other coffee for appellant’s coffee on the Uberaba and on the Glenaffrie.
Appellant contends that the Tuladi’s failure to take the entire shipment of 2,000
The decree is reversed, and the cause remanded, for further proceedings'.not inconsistent'with this opinion. ■■■■ ....
On Petition for Reconsideration and Correction of Decree.
The petition of the' appellee in the above numbered and entitled cause for a reconsideration and correction of the decree therein is denied.