275 F. 340 | 2d Cir. | 1921
The rule is well settled, both in this country and in England, that the master of a ship, when he issues a bill of lading for goods, must make delivery of all the goods admitted by the bill of lading to have been received. When he signs a bill acknowledging the receipt of a specific quantity of goods, the shipowner is bound to deliver the full amount specified, unless he can show that the whole or some part of it was
. [3, 4] It being conceded that there is a difference in the "number of bags delivered from that which the bill of lading was issued for, the question presented is: Does the evidence warrant the conclusion below that such, burden has been sustained by the shipowner? The proof offered on behalf of the vessel shows that only 15,427 bags were put on board. The first officer took a tally of the bags as they were received on the schooner. Contemporaneous detailed entries were made in the log, and duplicate original receipts were signed by the first officer, and his personal memorandum was made. Both'the log and this memorandum were received in evidence. It appears that the hatches were not opened until the vessel began to discharge at Mobile. The testimony of the custom officers and the appellee’s officers was that the hatches were séaled with the custom seals, and were kept sealed, except during the time of actual discharge. The discharge was made by the stevedores of the appellant. The cargo was for it. .The testimony is that all the cargo on the vessel was removed.
The custom officers did not keep a tally of the out-turn of the cargo because it was not dutiable, but a representative of the railway company and a representative of the stevedores kept a tally. Both agreed that 15,723 bags were discharged. While this is in excess of what appears to be the first officer’s tally of the number of bags taken aboard, it is explained by the fact that some of the bags broke during, the discharge, and there was loose nitrate in the hold, which was gathered up by the stevedores and rebagged. There is nothing in the log which would indicate that any false entries were made. The bags of nitrate were placed in lighters, and towed to the schooner alongside, in an open roadstead where the Amazon was anchored, 1 % or 2 miles off shore. The practice was for the tug to take from one to ten lighters in tow and bring them out to the waiting vessels, leaving two or three lighters for each vessel. The lighters were left tied alongside the ocean vessels, and discharged from the lighter with the vessel’s tackle, and the tug then returned to pick up empty lighters and take them back to the beach. The appellant relied upon the tally books produced by it, showing the tally taken when the bags were loaded on the lighters on shore.
The work of lightering the bags to the Amazon was performed by a lighterage company employed by the appellant. Receipts in triplicate showing the number of bags loaded on the lighter when she left shore were given to each lighterman, and then, as each lighter was dis
•‘Tire cliarmre'r’e liability to cease on completion of cargo. Owners to ha to si full Hen on the cargo for all freight, dead freight, and demuiTage under this charter party.”
In this way it is sought to escape liability because of the cesser clause in the charter party; but this defense is not pleaded in the answer, and was not relied upon below7, and, because it was noi pleaded, we will not consider it have.
Decree affirmed.