170 F. 937 | 2d Cir. | 1909
The amended libel unites a proceeding in rem against the steamship Gutenfels and a proceeding in personam against the Hansa Rine, her owner. The Hansa Rine answers as claimant and respondent. In these circumstances we do not deem it important to decide the somewhat perplexing, question whether an action in rem against the vessel alone can be maintained.
In view of the exceptional conditions existing at Calcutta and the fact that the shellac in Question was actually carried to New York by the Rindenfels, we think that there is some room for doubt whether the cargo was bound to the vessel, so as to create a lien. We have no doubt, however, that the Hansa Rine is liable in personam under its contract. It would seem, therefore, that it is a matter of no moment whether it pays the damages as claimant or respondent.
The bills of lading acknowledged the receipt of the libelants’ property in good condition on board the Gutenfels, to be transported from Calcutta to New York. There was a total failure of the Gutenfels to perform this obligation, in consequence of which the arrival of the cargo at New York was delayed nine days, with a .loss of $672.94 to the libelants. No valid excuse is offered for the breach of the contract. The shellac was in the deck sheds ready for shipment, and the only reason why it was not received on board was that there was no room. But the carrier is bound to know the cargo space of his ship, and, where lpss occurs, he, and not the shipper, who is wholly ignorant of the ship’s capacity, must bear the loss.
The contract of affreightment was clear and definite, and there was a total failure by the respondent to perform the agreement to carry the cargo on the Gutenfels.
The decree is affirmed, with interest and costs.
