24 F. 502 | D.N.J. | 1885
On the eighteenth of December, 1883, W. H. Cole & Co. shipped on board the steamer Fern Holme, at the port of Liverpool, England, 514 bags of canary-seed for the port of New York. The merchandise reached its destination, and the libelants in this case, who were the consignees, received notice of its arrival on the seventh of January, 1884. The freight was duly paid and the delivery of the cargo demanded. It was landed from the steamer onto the dock at pier No. 43, North river, when it was discovered that a number of the bags containing the seed were soiled by coming into contact with a Venetian red powder, which composed a part of the freight, in barrels, and which from some cause had escaped from the barrels during the voyage, causing the damage to the sacks. The libel alleges that the injury arose from careless and improper stowage, and demands damages, not only for that injury, but because the respondents refused, for the period of eight days after the freight was paid, to make delivery of the seed to the consignees, whereby a loss accrued to the consignees from a decline in the price, and also for a shortage of 386 pounds in the amount of seed subsequently delivered. The answer denies these allegations, and they are the only issues which are raised by the pleadings.
It appears from the evidence that as. soon as the consignees were
I should have no difficulty about the rules and principles on. which the suit is to be decided, if I could find out what the facts were. I am bound to say that, after several years’ experience in admiralty proceedings, I have never known a case where the testimony was more unsatisfactory on the material points. Before the libelants can recover damages for injuries caused by improper stowage, they must proved that it existed. It is sometimes to be inferred from the circumstances. But it ought not to be inferred in the present case that two or three barrels of Venetian red broke open, scattering the powder over other merchandise, from not being properly stowed, in view of the testimony of the captain that he had the most stormy voyage which he had experienced for 15 years, and that the damage arose from the rough weather and the heavy laboring of the ship. The bill of lading exempted the vessel from all responsibility for losses arising from perils of the sea. The evidence also warrants the judgment that the delay in getting delivery of the cargo arose from a claim of the libelants’ men that the seed should be receipted for as damaged, when they were not entitled to demand more than a receipt describing the actual condition of the paokagos. The bill of lading 'acknowledges the receipt of 514 bags of canary-seed, “weight, contents, and value unknown.” The whole number of the bags was duly delivered. It will require something more than naked proof that a weigher found some of the bags a few pounds short in weight, to hold the steam-ship responsible for the shortage.
The libelant has failed to establish his claim by the proofs, and the libel must be dismissed, with costs.