122 F. 617 | 4th Cir. | 1903
This case comes up on appeal from the District Court of the United States for the Eastern District of North Carolina, in admiralty.
The three-masted schooner Nellie Floyd, up for a voyage from New York to Wilmington, N. C., on the 9th of March, 1902, received on board 8,000 bags of cement and 1,000 barrels of cement, consigned to the Goal, Cement & Supply Company. The bill of lading stated the receipt of the cement in apparent good order and well conditioned; noting 100 barrels stained and damaged, to be delivered in like order and condition, dangers of the sea, fire, and collision excepted, to the consignees at Wilmington. The voyage was accomplished, and the cargo taken out of the schooner. Upon delivery it was ascertained that 62 barrels and 1,861 bags of cement, not including those noted in the bill of lading, had been damaged by water and rendered perfectly useless. Thereupon the Coal, Cement & Supply Company filed its libel against the schooner for the value of the damaged cement, for the sum of $936.65. On the other hand, H. Neilson, the master of the schooner, filed his libel against the Goal, Cement & Supply Company for the balance due on freight contracted for under the bill of lading, for $99.55, and for seven days’ demurrage caused by the failure to pay the stipulated freight, at $40 per day, $280—in all, $349.55.
At the hearing the appellee moved to dismiss the appeal upon two grounds: First, because the testimony taken at the hearing below was not reduced to writing, and so does not and cannot appear in the record. It is alleged, and not denied, that his honor below took notes of the testimony as it was delivered, but that' these notes were not full, and, indeed, were not intended to be a part of the record. It is a bad practice to take testimony at the hearing of a cause in admiralty, without taking proper precaution that it be taken accurately and in full. If there be no official stenographer in attendance on the court, counsel should take measures looking to a full stenographic report of the ■ testimony under the sanction of the court. This is often done, and the practice meets our approval. When such a cause comes here, we pass on the facts as well as the law, and this court cannot do this in the absence of or with an imperfect report of the evidence. The second ground for dismissing the appeal is that the testimony taken pending the appeal, being practically a re-examination of the witnesses, should not be heard.
• The motion to dismiss having been argued and submitted, before a decree thereon, with the consent of counsel, the case was restored to the docket for the argument upon the merits, upon an agreed statement in writing of the facts, bearing the approval of the district judge.
It appears that the schooner Nellie Floyd, upon her voyage from New York, encountered severe weather, with high winds and waves; the latter occasionally sweeping her deck. When she reached Wilmington, she was duly surveyed, and upon the survey it was found that her hatches had been carefully and properly secured, and that no water had entered the hatches. There was little or no water in her hold. It was also in evidence that all the cargo below decks was uninjured by water, and that only the cargo between decks was damaged. It also appears from the testimony that some of the seams of the deck
The decree of the court below is affirmed.