61 F. 633 | S.D.N.Y. | 1894
1. I concur in the' commissioner’s finding that tbe actual loss of only ¿ of 1 per cent, in the recovery and cleaning of the sweepings of the beans, is no more than what may be regarded as a necessary loss, incidental to the spilling of the beans through the ship’s fault; and that this very small difference in weight becomes, therefore, a sufficient confirmation and proof of the correctness of the weight stated in the bill of lading, in connection with the other proof.
2. The facts do not show any conversion by the ship of the libel-ants’"beans; the sweepings remained the property of the consignees; the libelants were bound to receive their proportion of them, as a part of their consignment, and to enter them as their own property. Damages was all they could recover; not the full value of the beans, as upon a conversion, or a lawful abandonment. The Baltimore, 8 Wall. 377; The Thomas P. Way, 28 Fed. 526; Warren v. Stoddart, 105 U. S. 224; Dolph v. Machinery Co., 28 Fed. 558; Pettie v. Tow-Boat Co., 1 C. C. A. 314, 49 Fed. 467; Railroad Co. v. Washburn, 50 Fed. 336. I do not perceive sufficient evidence of any fault in the defendants in their tender to the libelants. The loss arising from the /libelants’ refusal to accept their proportion of the sweepings must, therefore, be borne by them, and not by the defendants.
3. The consignees were entitled to a reasonable time for reconditioning their beans, and to recover damages for all necessary and proper charges and expenses connected therewith; and after the lapse of such reasonable time, had there been no opportunity to sell at the market rates prevailing at the time when the goods ought to have been delivered in good order, the consignees would be entitled to recover the difference as a further item of loss; but as the commissioner finds that in June, about two months after
4. The libelants are entitled to interest on the damages, which may he readjusted on the above principles.
