28 F. Cas. 1189 | S.D.N.Y. | 1876
This is a. libel filed to recover the sum' of $4,500, as the value of a case of silks carried by the steamship Ville de Paris from Havre to New York, under a bill of lading wherein the libellants. Adolph Rusch and others, were named as the consignees of the case. The libel is founded on the non-delivery of the ease under the bill of lading. It does not aver that the libellants were or are the owners of the goods. The only defence set up in the answer is, that the-ease was delivered to the libellants at New York. There is, in the answer, an allegation, that the libellants are not entitled to recover-anything from the vessel, but there is no-averment in it that the libellants were not the owners of the merchandise, nor any exception in¡ it- to the Ebel, for want of an averment in the libel that the libellants are or were such owners. On the trial, the claimants took the point that they had a right to rebut the prima facie title which the libellants showed as consignees under the bill of lading (Lawrence v. Minturn, 17 How. [58 U. S.] 100, 107), by showing that the libellants were not the owners of the merchandise in question, and therefore not entitled to bring the suit. I think, however, that, on the above state of the pleadings, the point must be regarded -as having been waived by the claimants. But, even if it were open to them, they gave no proof of non-ownership by the libellants, when the suit was brought. The only testimony they introduced bearing on the subject, was the-oath, made by one of the libellants, on the-entry of the goods at the custom-house ia New York, on the 24th of October, 1867, after-the vessel arrived there, that the goods then-belonged to a house in Switzerland. The libel was sworn to on the 27th of December. 1867, and filed on the same day, and no evidence was offered by the claimants to show that the libellants did not then own the goods.
The case in question was one numbered-170. The bill of lading covered two other-cases, numbered 169 and 171. The libellants-entered all three of the cases, and paid the-duties on them, and obtained from the custom-house a permit, authorizing the delivery to them of the cases numbered 169 and 171. and. requiring the case numbered 170 to be sent to the public store for appraisement. That permit was addressed to the inspector of the port, and was delivered to two customs inspectors who had charge of the discharging of the vessel, and transacted their business in a small movable house on the wharf at which the vessel was lying. The-
These facts do not constitute any delivery of the case on the wharf, or any delivery of it to the custom-house authorities, so as to exonerate the vessel from her liability under the bill of lading. There must be a decree for the libellants, with costs, and a reference to compute the damages.