270 F. 1005 | D. Maryland | 1921
The respondent had for many years been engaged in the barge and lighterage business, using for that purpose boats owned, or, as in the case of the Nettie Moore, chartered, by him. The craft in question was, so far as the cargo was concerned, an open boat, for throughout most' of its length its only deck was a walkway about 2 feet wide on each side. Respondent undertook to load the cargo. He supplied no dunnage for it. In order to protect the burlaps, he hired six much-used tarpaulins for 50 cents a day apiece, as the boat was without hatch covers.
When the Nettie Moore reached Baltimore it was found that manv of the bales of burlaps had been damaged by water. Libelant proceeded in rem against the barge. Up to that time he had had no opportunity to ascertain the extent of the injury done. To be on the safe side, he claimed $25,000. One Ellwood, who was both master and owner of the Nettie Moore, appeared as claimant. He objected to stipulating for the amoünt the libelant was seeking to recover, because the barge was worth at the most but an insignificant fraction of such sum. It was thereupon agreed that the barge and her freight of $1,450, paid in advance, were of the aggregate value of $2,000. Subsequently respondent filed a pleading in the ease, which he described as an answer and cross-libel. He denied that the burlaps had been damaged on the barge, but, if they had been, he claimed for himself the benefit'of the limited liability statutes. He asserted that the libelant, by demanding a grossly excessive stipulation, had unnecessarily detained the boat, in consequence of which he had not only been deprived of its use for a number of days, but had suffered special damage, as he lost thereby a profitable charter, and he asked for a decree against libelant for the amount of these losses. Subsequently the libelant filed an amended libel, in which, after reciting that respondent had appeared, claimed the benefit of the limited liability acts, and sought recovery upon his cross-libel, asked that he might be made a party respondent, and to that end that summons be served upon his proctor of record.
Two weeks later respondent filed an order in the clerk’s office, dismissing his cross-libel without prejudice. As his answer, claim under the limited liability act, and cross-libel formed an integral part of the same papers, this order was in effect to amend the composite pleading by striking out so much of it as constituted a cross-libel. To
This barge, rather a roomy one, capable of carrying upwards of 300 tons, was bought in 1918 for $2,000, and that, too, at the very peak of the war prices for anything which would float. It-was two years older at the time it undertook to carry burlaps of the value of $70,000, and was worth according to the agreement of the parties not more than $550. To undertake to carry such a cargo in such a craft was a reckless taking of chances with another’s property. It remains to determine what damáge was done.
Libelant claims upwards of $14,000, and offers evidence to show that he suffered to this extent. In the nature of things there must be a great deal of uncertainty as to all such calculations. Libelant is entitled to recover the difference between what the goods were worth in the condition in which they were when put upon the barge and their value in the state in which they were delivered by it. Ordinarily that may be measured by the difference in market prices between them in their sound and in their damaged condition. Even when so simplified, there remains in this case many doubtful factors. I shall not attempt to enumerate, -much less to discuss, them. It will be sufficient to say that libelant has proved that he has been damaged to the extent of $9,000. Perhaps he lost more, but the evidence he has been able to offer does not satisfy me that he has.
A decree against the stipulators for $2,000, and for the balance of $7,000, with costs, against the respondent, may be sumitted for signature.