35 F. 310 | S.D.N.Y. | 1888
The above libel was filed to recover the freight for transporting 114 tons of tankage in November, 1887, from New Haven to the
The burden of proof is upon the respondents to establish a positive day for the delivery of the tankage. The circumstance that after the original bargain the respondents agreed to deliver to the schooner by the 9th, by their written contract with the latter, is doubtless entitled to some weight; but it is not at all conclusive. The time would have been sufficient had the weather been good, and Mr, Schmaltz doubtless supposed that the 9th was time enough. Had the agreement with the libel-ant been for a positive delivery on a day certain, it would have been more natural to have put the contract in writing. Several passages in the testimony as to the subsequent conversations are most compatible with the libelant’s statement that his agreement was only to transport the tankage as soon as possible, without contracting positively for a fixed day of delivery. The tankage was not taken on board at New Haven until two days after the 9th. I do not find any statement that the libel-ant at that time was charged with breach of contract in not being loaded
Aside from the bill of lading, however, I am not satisfied that the libelant made a positive contract to deliver on the 9th, or to do more than facilitate the delivery all in his power. During the 13 days that elapsed between the making of the contract and the actual delivery, the weather, for at least six days, was so bad as to make navigation on the sound in such boats improper and dangerous. Other tugs and tows were obliged to tie up for better weather. Several days were lost in getting away from New-York. Had it been proved that any tow available to the libelant left New York for New Haven on Saturday evening, it would have been the libelant’s duty to forward the boat by that tow. But his boat would have arrived at New Haven only one day earlier, and would not, probably, on her return have arrived in New York more than one day sooner. But there is no proof that any tow left upon that Saturday, and the evidence shows that the boat was forwarded to New Haven on the first fit day afterwards. In the absence of a specific contract to furnish a special tug, it was certainly not the duty of the libel-ant to incur that expense. The evidence shows that the cost of it would have exceeded the whole freight agreed to be paid. The libelant’s denial of the alleged agreement to send such a tug is strengthened by its extreme improbability. As I cannot find a positive contract to deliver on the 9th November, and as the bill of lading fixes no particular day, and as the evidence does not establish any lack of reasonable diligence on the libel-ant’s part in the transportation of the tankage, considering the rough weather, he is entitled to a decree for the full amount of the freight, with costs.