215 F. 886 | 2d Cir. | 1914
The question we have to determine in this suit is the amount of freight to be paid upon a certain shipment oí lumber. The libelant shipped at Savannah, Ga., on board the steamer City of Atlanta, belonging to respondent, a certain amount of lumber to be transported to New York. His claim is that the amount so shipped was 26,304 feet; the amount of dressed lumber being 17,369 feet, and the number of feet of rough lumber being 8,935 feet. The freight agreed to be paid was as follows: On lumber 45 feet in length, $6.25 per thousand, ard an additional $2.50 for all lumber over 45 feet; $25 was to be added for- a minimum charge of lighterage and 30 cents a
Three separate measurements of the lumber appear to have been made; one by the shippers, as shown by the invoice, with a total of 28,234 feet; one by the lumber inspector of the respondent with a total of 28,236 feet; and one by the lumber inspector of the libelant with the total of 28,336 feet. The three measurements closely correspond ; there being a difference of but 102 feet between the largest and smallest measurement. The foregoing figures are based-on rough dimensions, and the dispute as to the amount of freight due arises out of the claim of the libelant that he is entitled under an alleged custom of the trade to deduct from these measurements 10 per centum of the board measure of all lumber that had been dressed at Savannah. If that deduction is to be allowed, then the amount upon which freight is to be charged as appears from the specifications of the shipment is 26,304 feet. The bill of lading stated the amount shipped as “said t6 contain 26,304 feet.”
“Under the clause ‘weignt unknown,’ the statement of ‘300 tons,’ In the hill of lading, was not own minia facie evidence as to the weight against the ship, when it appeared that all received was delivered.”
In the bill of lading in the case at bar the words “weight unknown” and “weight subject to correction,” in addition to the words “said to contain 26,304 superficial feet more or less,” will prevent the application of the rule that the recital as to quantity prima facie binds the ship. We do not think that such a bill of lading affords evidence of the quantity of lumber shipped. It leaves the question open.
Libelant testified that respondent had always allowed him on previous shipments the 10 per cent, deduction, and he had shipped at different times 800,000 feet. There is not in the record any testimony which contradicts him in that particular. He testified also that the custom of the trade “all over” was to allow 10 per. cent, for wastage in dressing lumber. The witness Parke, whose business it was to inspect lumber, after stating that a deduction of 10 per cent, was allowed on dressed lumber, and that it was a customary deduction was asked: “Was that the custom at the time you speak of with respect to lumber carried by other steamship companies?” To which he replied: “Yes, sir; deductions were made on dressed lumber by every one to my knowledge.” Again he was asked: “An average of 10 per cent. ?” To which he answered: “Yes; on dressed.” The witness McDonough, who had had extensive experience in the shipment of lumber, testified that the figures stated in the bill "of lading, gave “the net amount of feet shipped after deducting the usual allowance for dressing"
The respondent’s own witness Cunningham admitted that a deduction was made on dressed lumber. He was asked: “In charging freight have you ever heard of a custom of deducting 10 per cent, for dressed lumber?” To which he said: “I have always found that it is deducted according to the actual size; different sizes.”
The evidence shows that the amount of the shipment of lumber was as stated in the bill of lading, and that libelant paid the full freight and charges according to the bill of lading. He was therefore entitled to full delivery of the shipment as per the bill of lading. For the failure to make such delivery respondent is liable to pay the market value of such lumber at the time its delivery was withheld.
The respondent contends that, if it was in error in not making full delivery of all the lumber to the respondent, the latter was at fault in the course he adopted. The respondent withheld 3,545 feet of the lumber. To make good the deficiency the libelant went into the open market and bought that number of feet, paying for the same $141.80. This he did because the party to whom the libelant had sold the entire shipment demanded full delivery of the same. The respondent, relying upon the principle that whenever a breach of contract occurs it is the duty of the one injured by the breach to mitigate his damages as far as he is reasonably able to do so, insists that libelant should not have gone into the market and purchased the lumber he needed to make good the deficiency, but that he should have paid under protest the amount of
We think, therefore, that the court below wa,s correct in allowing the libelant to recover in this suit, which has the effect of one for conversion, the amount he was obliged to pay in the open market to replace the lumber wrongfully withheld.
Decree affirmed.