25 F. 562 | U.S. Circuit Court for the District of Eastern New York | 1885
Each of the four bills of lading contains a provision that the claimant is not liable for injury to the goods occasioned by “the act of God,' * * * effect of climate, or heat of holds.” Also the following clause: “The company will not become liable for any value exceeding one hundred dollars ($100) upon each of the above-named packages, unless the value is declared at the time
The district court decreed for the libelant. It held that December 29th was so cold a day as to render it impossible to land oranges without freezing them. The district judge said in his decision:
“Tho weather continued cold, indeed, below zero, until the following Monday. The steamer commenced to land orangés on tho day of her arrival, and on that day and the following Thursday and Triday landed tho whole consignment. The necessary consequence was that the libelant’s oranges were frozen, and their value for the most part destroyed. Objection was made by the libelant to the landing of the oranges, because of the unsuitable weather.”
He also hold that the oranges were not injured by the “act of God,” or the “effect of climate;” that the vessel was not “ready to discharge,” when she could not make a proper discharge; that there was no necessity for landing tho libelant’s oranges when they were landed; that no duty required the destruction of the libelant’s oranges for tho purpose of landing the cargo of other persons; and that there was time before the vessel sailed for her to have landed the oranges in suitable weather, and to have taken in her outward cargo. There was a decree that tho libelant recover his damages, with a reference to ascertain them. On this reference there was no proof as to the invoice value, but evidence only as to the sound market value of the oranges in New York at the time. Tho commissioner reported the damages to bo the valuó of 1,230 barrels of oranges at $5 per barrel, and 163 barrels at $4.50 per barrel, less the charges for transportation by the claimant, being $6,883.50, less $1,099.49, amounting to $5,784.01, with interest from December 29,1880. The claimant excepted to the report (1) because the damages had been fixed at the market value in Now York, instead of an amount not exceeding the invoice cost; (2) because they had not been found at an amount not exceeding the invoice cost; (3) because there had not been credited against the damages such proportion thereof as the libelant might have prevented by efforts to preserve the oranges instead of abandoning them. The district judge made the following decision on the exceptions :
*568 “The ship haying landed the fruit without a permit, and also'at a time when it was frozen as soon as landed, and this against the express objection of the consignee, the consignee had the right to decline to pay the freight and abandon the fruit, and hold the ship liable for its sound value, the same not only having been frozen, but also become forfeited to the government by reason of having been landed without a permit. The commissioner has reported the damages to be the sound value of the fruit, and in my opinion the report is correct. The exceptions are therefore overruled.”
A decree was ordered for the libelant for $7,018.31 damages, and interest, and $Ü15.65 costs. The claimant appealed. In this court an amended answer has been put in, and further proofs have been „ taken on both sides.
The claimant contends that the injury to the oranges was inevitable from the moment the hatches were uncovered and the ship broke bulk; that the claimant was justified in discharging the libelant’s oranges, because he had obtained the delivery order and the permit, and given a check for the freight; and that this virtual order -to discharge was not revoked till after the discharge had been commenced, and the cold air had got into the hold of the ship. The answer to this view is, that the preparations which the libelant made were only preparations to be ready to take his oranges when they could be safely discharged. They did not amount to a request to discharge the oranges in such weather. If a general ship carries, in winter, oranges, which cannot be safely discharged in freezing weather, and agrees to deliver them in good order, she takes the risk of such discharge, unless she protects herself against it by some provision in the bill of lading. Here there was no such provision. The freezing was not the “act of God” nor the “effect of climate,” within the meaning of the bills of lading. The negligence of man exposed the oranges to be frozen. “Effect of climate,” in the sentence “effect of climate, or heat of holds,” means the effect of climate in the passage of the vessel, from a tropical climate northward, or vice versa., during the voyage, in its action on cargo in the vessel, and not such exposure in landing as occurred in this case.
As to the amount of damages, the libel sets forth the shipments, and avers that thereupon “the agent of the vessel executed the bills of lading, to which the libelant begs leave to refer as part of this, his libel herein.” The stipulation under which the bills of lading were put in evidence by the libelant, and which was itself put in evidence by the libelant, states that the four bills of lading were “duly issued and delivered” by the claimant, upon the shipments being made upon the vessel at Kingston, “as alleged in the article of the libel herein.” In accepting each bill of lading the shipper accepted the terms of the contract it contained, and the libelant cannot now be heard to say that the shipper did not know its contents, or received it after the shipment, or that he, the libelant, did not know its contents, or that the clause as to invoice value has been waived in other cases. The provision that the claimant shall not be liable in any ease for an amount exceeding the invoice cost of the oranges is distinct..
The libelant is entitled to recover the invoice cost, with interest, according to the findings, and his costs in the district court. The claimant is allowed its costs in this court.
iáuü Tlio Egypt:, ante, 320.
