20 F. Cas. 1285 | E.D.N.Y | 1866
Upon the facts in this case, the libellant insists that the delay in the delivery of the package, was caused by the neglect of the carrier; while the respondents insist that the delay arose in the first instance, from the neglect of the freighter, in not having marks put upon the box itself as well as upon the covering, in which case it would have been delivered instead of having been sent to public store; and that as soon as the case was known to be missing, it was traced and delivered without undue delay or neglect on the part of the vessel. The proofs introduced by the respective parties, lead me to the conclusion that the delay in the delivery of this case must be held to have arisen from the neglect of the carrier. The case, as the bill of lading shows, was plainly marked upon its covering when it was shipped, and it was also described by measurement. Oases of this kind, the dock agent of the vessel thinks, are usually marked upon the box as well as upon the covering, but the weight of evidence is that marking the covering is the more usual and a proper method of marking such merchandise. There is no evidence that the covering was insufficient for the ordinary wear and tear of such a voyage, and no evidence going to show how it came to be removed, as it was while in custody of the vessel. It does appear in evidence, that while the vessel was being discharged, a loose covering was seen by the delivery clerk on the dock, lying about the vessel, but no examination was made of it to ascertain what marks it bore; and it also appears that the case in question was the only case of merchandise found to be without marks. An examination of the loose covering would doubtless have insured a delivery of this ease with the rest of the cargo. Furthermore, the delivery clerk of the steamer says that the returns of the discharge of the vessel, made to him three or four days after her arrival, disclosed to him the fact that a ease of merchandise had been sent to the public store as without marks, and that when application was made on behalf of the libellant for the case in question, he was satisfied that it was the one returned as sent to the public store. This, on the clerk’s own statement, was within seven days after the arrival of the vessel, and yet he did not inform the libellant of the whereabouts of his case until some ten or twelve days after that. It seems to me that the interests of both merchants and ship owners require greater attention to missing cargo than is here shown. The evidence is that the case could have been found, examined and identified, and delivered within a day or two by prompt attention, and such attention the ship owner was bound to give. Upon this branch of the case my conclusion, therefore, is, that there was such neglect on the part of the carrier in regard to this shipment as to make the vessel responsible for any damages caused by the undue delay. This conclusion in no way conflicts with the doctrine laid down by the New York court of appeals, in the case relied upon by the respondents. Wibert v. New York & E. R. Co., 12 N. Y. 245. That was a case of failure to transport within the ordinary time of running a freight train, and the cause of the delay was that the amount of merchandise offering for transportation at the time, was beyond the capacity of the road to transport as fast as received, and the court held that the carrier having provided all the trains that could with safety be run upon the road, and having used all possible exertion to forward the merchandise, was not chargeable with neglect. Here the delay did not arise in the course of the transportation. That was duly accomplished. But after the merchandise had arrived at the place of delivery, and when there remained upon the carrier only the obligation to land and deliver, and when ordinary care on the part of the carrier would have insured the successful performance of his contract, the merchandise was sent to public store and allowed to remain there some twenty days before notice of its whereabouts was given to the consignee. No law laid down by the court of appeals in the case cited by the respondent would serve to excuse the carrier in a case like the present.
There remains the question whether it has been made to appear by the libellant that he has sustained any loss which can be recovered as damages caused by the undue delay. The respondent insists that the loss in value occasioned by the closing of the season, if proved, is remote and cannot be recovered as a damage caused by the failure of the carrier to deliver promptly, and to sustain this view the opinion of the supreme court of the state of New York in the case of Jones v. New York & E. R. Co., 29 Barb. 633, is cited, while in support of his demand the libellant cites the opinion of the supreme court of New York in the case of Kent v. Hudson River R. Co., 22 Barb. 288. I do not consider it necessary, however, in the present posture of this cause, to pass upon the question which was raised and decided in these two conflicting cases, and which was also passed upon by the learned Judge Betts, in the case of the Lexington, where, in a similar action, the district court of the United States gave a decree for the difference in the market price of some seed which had been stored by a carrier without notice-of arrival to the consignee, and so not received until a delay of some days had arisen from what the court, in that case, held to be a neglect of the carrier, for the evidence offered here presents a different question. The libellant in this case has not attempted to prove any variation of that market price proved in the cases above referred to, which would be dependent upon the quantity of the article in the market, the prospect of the crops, the price of gold, possibly even upon the changing phases of political and national questions, and various other contin
