The'prevailingreason: for the' Hildson.;s courSe seems, however; to have been the captain's preferenoe for the westerly fork of the channel around Diamond reef, instead of' the easterly one. But it was proved on the trial that the easterly one was equally safe, and was theri unobstructed: .flO that no weight can be given to that consideration. The Packer ll'Ot being sued, I have not considered whether or not she was in fault for not doing all she could to avoid the collision. The libelant is' entitled to judgment against the Hudson. with costs, and to an arderof refereLlce to Qscertainthe '
THE IsUAELE.-
Court, E. D. New York. December 18,.1882.) 1. BILL 01l' LADING-OUtGO NOT'DELIVERKD-BURDEN 01l' PROOll'. A cargo of sulphur, on being weighed as delivered, proved to be tons short of the amount stated.in the bill of lading, which also contained amemorandum "weight and quality unknown;" three officers of the vessel testified
that all the sulphur, taken in was delivered, except what escaped through the pumps.. Held, that·tl'ie burden was upon the consignee to prove that the durerarose from abstractioD of the.missing quantity OD .the v<>yage. 2. 1rIAllTER'sGRA'l'l1ITY. On the above state the ml¥lter wlj.l!Atfld, to recover a gratuity provided by contract to be paid to him by the consiiDee on proper dellver,y of the cargo. ' .
In Admiralty. Ullo cf for the ve$sel and the master·. Sidney Chubb, for the consignee.' BENEDIOT, 0.. 3;·. These two cases.were tried together. One action of 28 tons of sulphur, alleged to have been shipped is for on board the Italian bark Ismaele in the port of Girgenti, to be thence transpartedtoNew York. The se.cond-named action is to recover a gratuity of .£10, provided by contract to be paid .to the master on proper delivery of the Jargoof .the .same vessel on the same voyage, being the. Ball)6 cargo of splphur referred to in the .action for non.. delivery., On the partofthe.m,erehant, the charge is that 28 tons of sulphur were abstracted from theo&rgo during'the 'Voyage ill
-Rllportedby R. D.&Wyllyl Benedict.
m
-14:99 i. ' ·.
FEDERAL
question. On the part of the bark, the averment is that all .the sulphur shipped was delivered, exoept a small portion that oame out through'the pumps when the ship was pumped at sea. during the voyage in question. The bill of lading signed by the master describes the cargo as consisting of 558 11-20 tons of sulphur, but it contains a memorandum "weight and quality unknown," and does not, therefore, afford evidence of the quantity shipped. The sulphur was laden in bulk, and whole cargo of the 'essel. The voyage was from Girgenti to direct, and there is no evidence thf!,t the vessel stopped &t any intermediate place during the voyage, or that any of the cargo was lost during the except the small portion that escaped through the pumps. On arrival in New York the sulphur was weighed as delivered, and found to weigh 530 tons, being 28 tons less weight than stated in t11e Lill of lading. The ship-master, his mate and his boatswll,in, te,stify that all the sulphur taken in at Girgenti was delivered in New York, except what eacaped through the pumps.: . The testimdnyof these persons ia sufficient to cast upon the merchant the burden of proving that the difference "eight in the bilJ of lading, and the'weight ascertained at the. delivery, arises .from an abstrll.ction of the missing quantity from theearg() during the voyage. Accordingly, the merchant has atteDipted to pro \'"e weight of sulphur shipped. But the testimony taken' under 11 commission to. Girgenti for this purpose is fatally defective. This testimony, while it shows that the sulphutshipped w6tltffomthe warehoUse to government scales to be weighed, and 'thenceio" the seashore, and then to the bark, contains no legal proof of -the actual weight of the sulphur so shipped. The persons who did the weighing, and whose names are disclosed, were Ilot examined. 'rhis omission, under the circumstances, is one that cannot be overlooked, and it leaves the testimony' respecting the weight of,the ElUlandinauffioient to ove'rthrowthe testimony lin of the bark, that all the sulphur shipped was delivered in New'york. '" The merthant has also sought to prove an abstraction of cargo by evidencMespectiong couditi6n of the cargo under thElthi-eehatches ofthevessel at the time when the hate'hes were opened in-New York, and from, this evidence drawathe conclusion that sulphur was 'Shoveiedout, of eaeh of 'the'- thl:'ee, the 'Voyitge-.'. But I ,am;ul1able -to ,draw: sU!,D:''acoonoluilionfrom the testimony tnat has been presented. The officers of tqe vessel of
CALISTA' IUw'1!lS.
the catgourider the hatches by saying that they were compelled to retrim the cargo at sea after heavy weather, and in so doing left the sulphur under the hatches in the condition it was in on arrival; and their testimony is sufficient to overcome the not very probable suggestion that the three hatches of the bark were opened during the voyage, and sulphur shoveled out of each hatch to the amount, in all, of 28 tons, and the same placed on board some other vessel supposed to have come along-side the bark for that purpose. Certainly it would be improper to infer that such a transaction had taken place from the mere appearance of the cargo at the time the hatches were opened in New York, in the face of positive testimony that tio Buch thing was done. But little support to the merchant's case is obtained the testimony that, when the hatches were ,opened, the mate falaely stated that sulphur had been thrown overboard during the voyage. converse&. The mate could speak very little English, aiidthose ,with' him' could not understand Italian, .and Iltmndt'certitintliii.t' he alluding to' 'was understood. '!t is. quite likely that he had been castout by the pumps. ' '" ., , My conclusion, therefore; is that the non-delivery of Bulphur charged by the merchant has not been proved. The result is that the libelof the merchant must be dismissed, with costs, and the libel fortha gratuity mustbe,sllstained. , ' , { n ,': . ' " '". " , . ..
To
CALISTA: HA
(Disflricf Oourt, Eo, ;D. N8'UI York.
Decemoer 4, lil82.t
,! ':
N"Jr.aLIGENCE IN HOlllTING ,BARREJ..-,PERBONAL b:JURy-L,u.BILl'fY. ',,"
W!lere an United States weigher, whol!e duty vessel's cargo whiie it was heing discharged, was required to be about t46 mai,n hatch on the main deck of the vessel, and the mate undert6ok'to h6iStil. baltel from pier on ,the oppoa,ite ,side' tpe -vessel from that on ,thq 'Cflrgo tAe fa.Il e'fIlpl0y'ed .to rajse tb.!! , ftom the hold, WhICh was so arranged tilat. the harrel was swung' acroSs ,the Ide,ek in spite of 'the efforts of'twomen'st,ationed ('n the: rail to aBBistjn getting ,_ to ;w4Qe so who, ,standing on the deck with his, back the. him over thecombin'gs of tae hatch into the'low.e'r' hold, no \varninghav'ing been given him in ;to enahle' him to 'move, he!(J" it'hat' the) libelant's injuries arose' frOID. a nllglect on; the pari of the owner of the ship /q ·
,'*li.epQrt(,d by'R.'D.'" Wyllys Benedict'