108 F. 287 | 2d Cir. | 1901
The merchandise consisted of flour, kerosene, bacon, and lard, of the invoiced price of £6,499.1.8, which had been ordered by Belmarco & Co., merchants of Santos, who were also agents of the Prince Line — of which the Asiatic Prince was one —at that port. The plaintiff and Belmarco & Co. had had many business transactions prior to the one in question, and as a result of them the latter firm was, as libelant claims, indebted to him to a considerable amount. Bills of lading for this merchandise were issued to the libelant, reciting that the goods were to be delivered at Santos “unto order, or his or their assigns.” A letter of credit on London bankers to the credit of Belmarco &■ Co. was at the time available, and against that libelant drew for £1,483.9.8, credited and applied that amount to this shipment, and drew a draft on Belmarco & Co. for the balance, £4,965.11.7, with interest and banker’s commission; in all, £4,986.6.2. Libelant attached indorsed copies of the bills of lading to this draft, and forwarded them to a Brazilian bank at Santos, with instructions to deliver to Belmarco & Co. upon payment of the attached draft. These documents went forward in the mail that was carried by the same steamer, together with a letter advising Bel-marco of the application of the London credit and of the draft for balance of price of shipment. The steamer reached Santos on February 5th. On February 6th, in the afternoon, the bank at Santos presented the draft to Belmarco. The manager of the bank, libelant’s witness, testified that under the Brazilian Commercial Code and the commercial usage in Santos payment of a sight draft may be delayed for 24 hours if the holder finds it convenient, and that in this case the bank did not expect Belmarco to write any acceptance on the draft, nor to pay it before the expiration of the customary 24 hours. Belmarco, who, as will be seen hereafter, had meantime made remittances on account of this merchandise, at first refused payment, but subsequently, on the same day, reconsidered, and on the next morning, before the bank opened, deposited with one'of the officers of the bank a check sufficient to cover the amount. It seems, however, that a few days after the sailing of the Asiatic Prince libelant changed his mind about applying the London credit to this shipment, and drew a second draft for the full amount of the invoice price, with interest and banker’s commission, £6,494.8.4, which he sent to the bank at Santos to be substituted for the first draft. Although the cable was being constantly used by both parties, libelant, for some reason known only to himself, failed to advise Belmarco & Co. before they received his"letter stating.application of the draft of £1,483.9.8 to this shipment that he had reconsidered such application, and had chosen to apply it to the old indebtedness. This second draft arrived while discussion was going on between the manager of the bank and the representative of Belmarco & Co. as to the rate of exchange, the question being how much the bank should refund with the bills of lading, the amount of the check being in excess of what either 'party contended was the proper rate of exchange. The bank thereupon refused to deliver over the bills of lading except on payment of the second draft. Belmarco thereupon commenced judicial proceedings, and under order of the local district court deposited on February 7th with
“Tlie proof Is Rere overwhelmingly in favor of tlie respondent tliat by the law anti usage of Santos tlie delivery of all dutiable goods like these must be made by the ship to the customs authorities, as was done in this ease, and cannot be made otherwise, and that the allowance of entry and responsibility for a delivery of the goods on payment of duties to the proper person thereafter devolves wholly upon tlie customs authorities.”
Such a system, in which the customs authorities assume the ship’s responsibilities as to making true delivery, is contrary to the system prevailing in other ports. .Nevertheless it is not incredible that a government may undertake such functions. Whether or not it is the law and usage in Bantos is, a question of fact, the burden of proving which is on the party asserting its existence. The law of a foreign country and its commercial usages are proved here by calling its lawyers and merchants and interrogating them. That has been done in this case, with a result which certainly warrants the conclusion that the proof is overwhelmingly the one way. It is true that as to the law of Brazil the only witness called by claimant was a young lawyer, but his statements are direct, positive, and reiterated to the .effect that the customs authorities require delivery to them, and themselves make delivery to whomever has the right to receive,» and there is no reason apparent why his statements should not be accepted, especially when the great weight of mercantile testimony is to the same effect. There was abundant opportunity to take tlie testimony of some other lawyer :u the district court if the statements of claimant’s witness were inaccurate, and to make application here to take further proofs; but libelant has contented himself with printing copious excerpts from the statute law of Brazil, which he insists do not sustain the witness’ statements. As an example of the argument employed, the witness testified, “The custom-house inspector alone decides any right to entry and delivery,” and referred to article 477 of
The decision may be sustained, however, on another ground, more satisfactory, perhaps, because untechnical. We concur with the district judge, in the conclusion that by reason of Belnmrco’s payments on account of this shipment, and the tender and judicial deposit which he made, his firm was rightfully entitled to delivery, and the ship not liable for damages because of such delivery. As has been stated above, libelant drew for £1,483.9.8 against a London credit of Belmarco & Co., and in his letter of January 4th wrote to that firm:
“We nave used of the letter of credit No. 9 of Mess. Kobertson & Co. by our draft £1,483.9.8 at 90 days’ sight, order of London & Hanseatic Bank, Limited, and credited it to you under usual reserve, ancL applied it to the present shipment. We recommend to you our draft, with documents attached, No. 10,356, £4,986.6.2 [balance invoice price of this shipment], at sight, order Brazilian Bank, to your prompt protection.”
The draft for £1,483.9.8 was paid in London, and forwarded by the bankers to Belmarco, who paid its amount to the persons advancing the credit to February 1st. On February 6th he received the letter notifying him of Herbst’s application of the proceeds to this shipment, and was presented with draft for the balance, for which, as he testifies, he tendered a sufficient check. Here we have an express application by the creditor, of which application the debtor is informed, and in which he acquiesces, before he receives any notification that the creditor desires to alter the application. Such an application, cannot thereafter be changed without the consent of both parties. On January 6th Belmarco sent to libelant drafts on London bank aggregating £2,000, which libelant subsequently received and collected. The next day — January 7th — Belmarco telegraphed libelant (the telegram was duly received): “On account of your shipment per S. S. Asiatic Prince, remittance sent by mail London, &c., Bank yesterday morning £2,000.” In the letter to the London, etc., Bank he writes, “Put the above total to the credit of Herbst Bros., of Hew York, against their shipment of 2,000 kegs lard and 600 barrels bacon on the S. S. Asiatic Prince.” Here we have an express application made by the debtor, of which application he promptly notifies the creditor.