The Kate

12 F. 881 | E.D. Pa. | 1882

Butler, D. J.

The contract respecting delivery is special, and very specific. Libellant is required to “take the wool from the ship immediately she is ready to discharge, any custom of the port to the contrary notwithstanding, otherwise it will be landed or put into craft by the master * * * at the merchant’s risk and expense. The ship’s resposibility to cease immediately the goods are discharged from her deck.”

On the ship’s arrival it was the master’s duty to give reasonable notice of the time and place of discharge. Whether he performed this duty is the only question involved. If he gave notice on Saturday morning, as respondent alleges, it was reasonable and sufficient. The duty of proving he did is on the respondent; and if the fact is left in doubt a decree should go against him. I think, however, it is not loft in doubt. A young man was sent with notice at the time named. No copy was retained nor is the young man produced. It is said he is beyond convenient roach. The answer admits, (impliedly at least,) the receipt of notice on Saturday forenoon. The suggestion that it did not contain a statement of the time and place of delivery is not sustained. The libel, as originally drawn averred the absence of such notice. The libellant, however, was unwilling to affirm this, and the word “sufficient” was inserted by the clerk before qualifying him. This seems like an admission that the notice was specific and particular. Such no doubt was the fact. It is quite plain that the libellant’s only objection to it was its insufficiency, as he supposed, in point of time. Depending upon the general custom respecting permits from the customs department, he believed more time would be consumed, after the vessel’s arrival, in preparing to deliver the wool than was actually necessary, and that he would thus be afforded more time in preparing to receive it than the notice contemplated. This is made plain by his own testimony. After admitting the receipt of notice on Saturday forenoon, the examination proceeds:

“Question. Will you tell me why you did not “ go aí; once on Saturday, on receiving the notice of which you have spoken, and take charge of it?”

“Answer. Because it is out of custom. Our customary way is when wool comes in that it is put under sheds, and stays there until we have paid our duties, and gone through all the performances; and wo don’t know but what it is under proper protection until it is handed to us, and we have done with this cargo as with all the rest.”

Here is the secret of all the trouble. He had no right to rely upon this custom. Having contracted to take the wool from the ship as soon as she could prepare for delivery, he was bound to do so, regardless of all customs. As before remarked, the notice on Saturday forenoon, of a purpose to deliver on Monday morning, was sufficient. If be thought otherwise he should, at least, have objected. He, however, gave the subject no attention other than to send the paper to his broker. It was his duty to be present on Monday morning and receive his wool. In his absence the respondent was justified in placing it on the wharf, as he did. He was not required to store it, or place it under cover. Had the libellant been present, in accordance with his duty, it would not be suggested that the place of deposit was improper. Could he by disregard of duty impose on respondent the labor or expense of 'placing it elsewhere ? Certainly not. If loss ensued it was from his own fault. The respondent did not undertake to store the wool, or in anywise protect it after leaving the ship. On the contrary, as we have seen, the libellant contracted to take it when ready for discharge and relieve the respondent from such duty.

The question, however, as before suggested, is one of notice simply, and this having been decided against the libellant, his complaint must be dismissed with costs.