I am satisfied that neither ordinary care, caution, nor nautical skill could have prevented the occurrences which resulted in the damages of which libellant complains. When a collision takes place by any inevitable accident, or by any vis major, the loss is to be borne by the party on whom it falls. See Desty, Adm. § 384, and authorities cited in note 11. This conclusion reached, renders it unnecessary to go further into the case; but, having carefully examined the whole evidence, I may say that I have been forced to the conclusion that the damages actually suffered by libellant, growing out of the collision with his woodboat and the Allen, have been enlarged and magnified, and, if he had otherwise a case, he could not recover over some $40, with costs doubtful. The custom of selling wood by short measurement is not lawful, reasonable, or moral, and, if proved, cannot be invoked to prove more cords of wood on a flat-boat than the boat will hold, so as to enhance damages in a case of collision. Let a decree be entered dismissing the libel, with costs.
& Co. v.
EIGHTy-SEVEN BLOCKS OF MARBLE.
(Dist'l'ict OOU'I't, E. D. Louisiana.
1. BILL OF LADING-UNLOADING CARGO.
March 24, 1881.)
The ship-owners can recover from the consignees the expense incurred by them in unloading the vessel, where the bill of lading provides that the cargo should be delivered from tho ship's deck, when the ship's responsibility should cease.
In Admiralty. E. W. Huntington, for libellants. T. O. W. Ellis and Emmet D. Craig, for claimants. BILLINGS, D. J. The amonnt claimed by the libellants in this cause is made up of three items, viz.: freight, $1,476.97; demurrage, at $150 per day, $450; and expenses for labor, $445.50. It is admitted by the claimants that the amount claimed for freight is due, and that sum has been tendered and deposited in the registry of the conrt. As to the second item, demurrage, it does not appear by preponderance of evidence that the delay in unloading was caused by the fault of the consignees. The claim for this item is therefore rejected. As to the third item-$445.50 expenses in unloading the marble. This expense was incurred in transporting the marble from the ship over the wharf to the firm land or shora. It is not
87 BLOCKS OF MARBLE.
questioned that the expense was incurred, and for this purpose. The only question is, upon whom must it fall? This is determined by an examination of the terms of the bill of lading, which contains two clauses which have been insisted upon in the argument as having a bearing upon this issue. It is provided that the marble is "to be delivered from the ship's deck, when the ship's responsibility shall cease;" and a further proviso that the "landing is to be designated by consignees, provided the steamer can approach safely and will lay afloat." This last clause has no reference to the manner of delivery of the cargo, as to where it is to be received by the consignees. It merely gives the consignees the right to select the place of landing, and leaves the vital claim of the contract as to delivery unrestricted and unaffected. Words cannot have a clearer or more unambiguous meaning than this clause: "To be delivered from the ship's deck, when the ship's responsibility shall cease." There can be no evidence as to custom in such a case.. The delivery, and, consequently, the receipt of the' goods, was to be from the ship's deck; whatever the appliances were, to be constructed or used, or expenses incurred, to effect the move· ment of the marble after it left the ship's deck, were intended to be at the cost of the consignees; and, as if to place the stipulation be. yond all possible misconstruction, it is added,-i. e., when the cargo leaves the deck,-the ship's responsibility shall cease;· for it can hardly be.contended that the ship's expenses should continue after its responsibility had, by the terms of the contract, ceased. This clause was inserted, most likely, on account of the great weight of the parcels or pieces of marble, to place upon the conpreparations for carl:'ying the marble beyond signees the duty of the wharves-which are structures insufficient to sustain such we!ght -as well as all cost of making the transfer. This item is therefore allowed, and the judgment will be for the libellants for the amount of the first and last items claimed, with costs. v.9,no.5-21
.1. PENALTIES AND
(District Court, S'-D. New YQrk.
OF FEBRUARY 8, 1881. The word" seizure," used in the act of February 8, 1881, embraces seizures 'by tliemarsh:al Under legal process for the enforcement of a penalty pursuant tOllcction 3088 of the,Revised Statutes, as,well as seiZUres by revenue officera of
In Admiralty. ' S. L. Woodford,D. S. Att'y, and W. C. Wallace, Asst., for libellant. I, - 'Goodrich, Deady If Platt, for clainiants. BROWN, D. J. On the fourteenth day of July, 1881, as the steamship Saratoga, from Havana to New -York, was coming up the bay and passing quarantine, some boxe'§)of cigats, intended to be smnggled, witho"tt the knowledge or' privity of the master or owner of the vessel, were dropped from the side of the vessel by some persons un· known. The cigars being of the value of over $400, and having been thus "unladen without a permit," the master of the vessel, by section 9873 of the Revised Statutes, became liable to a penalty of $400; and, by section 2874; the vessel, her tackle, apparel, etc., became liable to be forfeited to the- United States. The cigaril were thereafter seized and forfeited to the government. On July 20, 1881, the master was 'sued fot the penalty of $400, and on July 21st the libel in this suit was filed to enforce the same penalty against the vessel, and she was seized by the marshal under process issued out of this court pursuant to section 3088 of the Revised Statutes. The owners of the vessel appeared' and filed efceptions to the libel, setting forth :that the vessel was employed as a common carrier, and claiming that under the provisions of the act of February 8, 1881, the vessel is no longer subject to seizure for penalties in such cases, and asking that the libel be dismissed, as it does not appear that either the master or owners were "a consenting party or privy to the illegal acts." The government, though admitting these facts, claimed that the act of 1881 applies exclusively to cases of forfeiture, and of seizures for the purposes of forfeiture, and not to seizures under process to enforce penalties under section 3088. The exceptions to the libel in this case are based upon the proviso ions of the act of congress passed February 8, 1881, which, with its title, is as follows: