52 F. 159 | S.D.N.Y. | 1892
The libel was.filed to recover the value of 1,348 bushels of oats, which, it is alleged, were not delivered out of a quantity of 8,989 bushels, alleged to have been loaded upon the canal boat Daniel Burns on December 8, 1891. The libel states that the quantity missing “was sold and delivered by the master without orders from the libelant,” and that the canal boat was “under charter to the libelant for transportation of the oats from Hoboken, N. J., to such point or points in the harbor of New York as might thereafter be ordered.”
The proof is scarcely satisfactory as to the actual quantity loaded upon the canal boat. What was put upon the boat was put in from cars, which had been weighed and measured upon different days previous to the loading. The weigher could give no testimony as to the amount on either of the cars. The weight he testified to was obtained, as he said, by the addition of the weights on the several cars together. He testified positively to this aggregate; but he could give no items; he did not remember them without his memoranda; and his memoranda though called for, were not produced. There was no proof as respects the custody of the cars, or of the grain, between the time when they were measured and the time when they were unloaded upon the boat; and hence no proof that all of it went upon the boat. There was no proof of any abstraction of grain from the boat, nor of any improper delivery without orders of the libelant. 7,641 bushels were admitted to have been delivered in three different deliveries; but there was no proof of the actual measurement of the quantity delivered, or that the amount taken by the libelant’s vendee did not exceed that quantity. I should hardly be satisfied to render any decree for the libelant upon such evidence, if in other respects the libel could be sustained.
. But upon the proof as to the hiring of the boat, I do not think the facts show that either the Burns or her owner was liable for a mere deficiency of grain found on unloading. There was no charter of the
It is plain that the boat was not a common carrier. She had none of the duties of a carrier to perform. „ It is equally plain that the owner, in letting her out in the way above stated, did not take on himself any of the duties of carrier, or of a warehouseman. The contract amounted simply to a bailment of the boat by the owner to the libelant for its use in receiving the grain, with the privilege to the company, either to use the boat simply for storage, or to move her about the harbor as the company pleased, from place to place, for the sale and delivery of such grain as the libelant might choose to put on board, the claimant simply supplying a man to take care of the boat, without any duties as regards the cargo or navigation.
In all the cases cited by the libelant, the boat receiving the cargo has received it under some contract to transport it, and has had the rights, and has owed to the libelant the duties, of a carrier. The E. M. Mc-Chensey, 8 Ben, 150; Coal & Iron Co. v. Huntley, 2 C. P. Div. 464; Leary v. U. S., 14 Wall. 607; Richardson v. Winsor, 3 Cliff. 395. In the present case no such duties rested upon the claimant or upon the canal boat. The only duty of the claimant to the libelant was to furnish a proper man to look after the care of the boat itself, and there is no evidence that the man failed in this duty. The claimant was neither carrier nor warehouseman. He never took on himself the duties of either, and never assumed or contracted to assume any responsibility as respects the cargo.
The libel is dismissed, with costs.