1 F. 627 | S.D.N.Y. | 1880
This is a libel to recover the value of a box of merchandise shipped at Hull, England, under bill of lading, and to be delivered in New York. The steamship arrived on Sunday, the fourth of June, 1877. There were eight boxes shipped and consigned to the libellant. They were discharged upon the steamship’s pier, in Hoboken, in the forenoon of Tuesday, the sixth of June, and remained on the pier when it was closed at night. During the night one box was stolen from the pier by river thieves, and it is for this box that the suit is brought. Several defences have been attempted.
1. It is claimed that the libellant has been guilty of fraud
In respect to the value of the negatives, which constitute the chief part in valúe, it appears that the libellant had sold out to one Cooper the models from which the negatives were taken, and had, by his agreement with Cooper, disentitled himself to make profitable use of at least some of the negatives in this country. The proper valuation of the negatives, considering the agreement with Cooper, may be very difficult to ascertain, but I am not satisfied that the valuation put upon them by the libellant is so extravagent and purposely so exaggerated as to make the present claim fraudulent.
The circumstances chiefly relied on by the claimants as sustaining this defence seem to me of very little weight, and, upon the whole testimony I think they have failed to establish the fraud set up in the answer.
2. Another defence is that by the bill of lading the limitation of liability is fixed at £100. It is enough to say tfyat this limitation is no answer if negligence be proved. Lockwood v. R. Co. 17 Wall. 357.
3. Unreasonable delay of the consignee, after notice by public advertisement of the time and place of discharge, according to the alleged custom of the port, is also relied upon as a defence. The point made is that after á reasonable time was afforded to the consignee to take away his goods upon their being unladen, the liability of the ship in rem ceased; that even if there was negligence afterwards, for which the shipowners might be responsible in a new relation of warehouse-men, the ship is not so liable. And it is insisted that the consignee should have come for his goods during the day, Tuesday, and that his delay beyond 5 o’clock on that day was unreasonable, and discharged the ship from all liability.
The fact that the libellant’s agent in New York knew of the arrival of the ship does not dispense with notice of the time she would discharge. These eight cases were, in the absence of an invoice, passed through the custom-house by the libellant’s agent on Monday, the fifth day of June, upon an application for an appraisement, in such a way that it was necessary for them to go to the appraiser’s store. Accordingly, they were not to be received by the consignee, from the ship, like goods for which a permit was obtained. They were to go to the public store, and to be taken there by the cart-men employed by the custom-house authorities. And the proof is that the claimants land on their pier goods which are to go to the public store; that while on the pier they pass the custom-house officer stationed there for the purpose, among other things, of passing such goods and of seeing that they do go to the public store; and when they are taken by the public store carman the ship takes the carman’s receipt for them on the ship’s cargo delivery book.
The proof is that the custom-house officials merely exercise such supervision over goods, discharged as is necessary to prevent their being taken away without a permit; or, if they be not permitted goods, by any other person than the public
Whether this delay was unusual in the routine of customhouse business, or if so who was chargeable with fault in this delay, is not shown. -Nor does it appear that the libellant could have done anything to prevent the delay in carting the goods to the public store. Nor if he had gone to the pier could he have taken the goods away. Under these circumstances, it is clear that he is not chargeable with any unreasonable neglect to receive the goods. The course of business on the part of the claimants as to goods destined for the public store was shown to be such that there was no delivery of them until their delivery to the public carman. See the St. Laurent, 7 Ben. 7; The Ville de Paris, 3 Ben. 276; Carnana v. Packet Co. 6 Ben. 517.
4. It is also insisted that the claimants used proper diligence in the watching of the goods during the night. The pier was about 700 feet long, and was covered by a close-shed, in which there were left five openings, two on one side,, and three on the other. The interior of the shed was well lighted with gas. These goods were lying nearly opposite-one of the openings, and about 200 feet from the gate at the inner end of the pier. The pier is open underneath, so that small boats can pass through from side to side.
Claimants employed one watchman, who, about half past 1 o’clock, heard a noise at the lower end of the pier. Before
Decree for libellant, with costs, and a reference to compute damages.