'lBE NORA..
4:29
THE NORA,(District (lourt, E. D. PennsylfJania. December 8,1882.)
1.
SHH'PTNG-BILL OF LADiNG-ExCEPTION IN-NEGLIGENCIl;-SHORTAGE.
Where, by the negligence of the captain, an excessive delivery was made to one consignee and a shortage to another, in a libel by the latter against the vessel, tIle ship cannot avoid liability by a provision in the bill of lading that weight, contents, and material were unknown.
2.
HAME-CHARTER·PARTY.
Whl're the charterer agreed to load with scrap-iron, and did load partly with scrap-st,·el, and the bill of lading provided that the shipment was subject to the ('harter.party, and weight, contents, and material were unknown, the vessel is lill ble to a consignee of a hill of lading for a shortage in the delivery scrapsteel occas:oned by the negligence of the captain.
a.
SAME-EvIDENCE OF NEGLIGENCE.
,
That other consignments of scrap-steel were fully delivered, and that the'captain declined the assistance of an expert for distinguishing iron frOM steel, and aft.erwards made an excessive delivery containing, steel to a entitled to iron, are evidence in this case of negligence in making a shortage to a: consignee entitled to steel.
In Admiralty. Libel and anSWElr, ," Libel filed by Stewart & Co., indorsees of a"bill of against the bark Nora, to recover the value of a shortage pf 26 tons of scrap. On April 6, 18$0, Sanders Bros. shipped on tha bark Nora, afAtltwerp, to be carried to Philadelp4ia, a quantity of iug about 200,000 kilos, or 197 -tons, and indorse\i the billQf to libelants. The Nora also carried two other Eiteel.scrap, of io and 24 tons, respectively, and of scrap-iron, of 20 and 267 tons, respectiv\31y. 1:b,e Waterford in distress. where disc4arged the gl'eater part Qf, h.e,r cargo, and reloaded after repairs. After ar:rival in part of .libelant'!! was sent on geIljlr"l orde" to warehouse, and after inspectiO,nthere, appeared to be a shorta,gEl of 40 tons of scrap-steel. X.he two other consignments of were fully delivered, but to ,one, of the consignees entitled to, !l¢l)a.piron, there were deliyered about' 83 ton!! of sCl$p-stool, all an excess of 26 tons, " , The J,ipelants claim,ed:that ,upqnjthe reloadipgatWll,teriordsteel and iron had,been carelellsly,:p1iled, and that upon vesl\e.1at Philadelphlia the captaiu had :4eclined the a,s!!ista.nceof an ex" >l'iReportcdbyAlblll:t B: Guilbert, Esq.; ufthe PhilD.delphia'bar. " ;;
pert, offered by one of the consignees, for the purpose of distinguishing the metal while discharging., in reloading the vessel, and The respondent denied any charterer had agreed to load with scrap-iron, and claimed that trim the same, and upon discovering that the bill of lading, providing that' the shipment was snbject to the charter-party, called for scrap-steel,the captain declined to sign until the words "weight and material unknown; weight, contents, and value nnknown," were added; and also claimed that the libelants had failed to prove the amount of their alleged shipment, or to establish their ownership in the excess delivered to another consignee, which, in appearance, resembled iron, and had been EO considered, by the government inspector, the master, and the representative of the consignee, who received it. The respond,'8nt also oontended that the libelants were merely the 'agents for Collins & Co., the actual owners of the bill of lading and scrap, and 'therefore, no recovery could be had in the case as bJ:ought. Alfred Driver and J. Warren Coulston, for libelants. Ourtis Tilton and Henry Flanders, for BUTLER, 'D. J. Under the terms of the bill of lading, the libelants,who are indorsees, must show that' the steel claimed was shipped, and that the non-delivery resulted from negligence. The quantity,aelivered was nearly 157 tons. That the quantity shipped was about 197 tons, is reasonably clear. This is the quantity named in the bill of lading; and although the respondent witheld his assent from this statement, the declaration thus made by the shipper, at the time of loading, 'is a part of the res gesta, and while it may, and. 'douliUesB wotild;be insufficient to establish a prima facie case, it is nevertheless ev'idence, to be cODsidered with other facts tending to, prove the actual quantity. The ship contained two other ments ofsteel, one of about 20 tons, and the other about 24, and twoconsignID.'8nts of acrap-iron t one of 20' tons, and the other about 267:....-the bills of lading for which were in all respects similar' to that' Held by the libelants. The aggregate amount of the 'several con'signments, (coDstit'uting the entire cargo,) as exhibited by the bills of lading, was therefore, of steel about 231 tons, and of iron about 287t<lns. The aseertained'weight of the cargo delivered by the ship, 'cotrespondspretty cloeelywith this quantity. While the tieli'very to;the libelants wassh6rt from BOto '40 tons,thedelivery to anctherconsiiP1ee & 00.) .was excessive to nearly
·TIll!: NORA.
431
a.n equal amount; .andihisexcesscOllsisted 'of 8teeZ,: while Samuels & Co. were entitled only to iron. It thus appears that after the other consignees ha.dreceived 'all they were entitled to, there remained of the: cargo. what corresponded in kind, and pretty olosely in quantity; with the balance ,due the libelants, according ,their bill' o{ ladin.g and claim. That the steel delivery to Roebling's Sons on the consignmentto Samuels & Co., as iron, ill excess of the quo,ntitycalled for in their bill of lading, was. the libelant's steel, I have no doubt. ' Was this mistaken delivery the result of negligence? If it was; the libel must be sustained; otherwise it must be dismissed. The circumstances under whicl the cargo was loaded, and the terms of, the bill of lading, relieved the ship from the usual strictness afthe obligation respecting ascertainment and delivery ofeonsigntnents.. The mixing of steel with iron, as was done, was not provided by the charter, and necessarily tended to subject the ship to labor and care in making delivery. I have no doubt, however, tbM officers of the ship had knowledge' at the time of what wasbelng and no objeotion appeal'S to have been made until' thecaptaiJj was asked to sign the bills of lading. Although he then complained, and refused to sign until the language wa,s qualified, he undertook, with full knowledge of the' facts, to carry the cargo, and thus responsible for the exercise of such care as the circumstances required, . in ascertaining 'and delivering the several: ·c6nsignments. No fault shown in loading will relieve him from frdId the fact that' the loading may be p'resumed to ·have baen superintended bya representative of· the ship, ilin implied agreement to ex": ercise proper care respecting delivery, arose from the nne )rtaking t'd carry, after being informed of the .circumstances." It;l .view .of the fact that the cargo was handled. in . at W the confusion ofthemetale consequently increltsed, the...llespondent should be heli to a. high degree of care. ,Migh.t the,niistake made have·b'een avoided by tbeexerciseof snchcare?' The testimony shows that the consignmehts"of'lO .lirtd" 24" respectively, of steel, were ascertained and delivered witbout difficulty; and the same is true of the 20 tons of iron, and the partial delivery of ,steel to the libelants. No trouble was encountered thus far in distinguishing the two kinds of metal. It is not shown that the steel delivered to Roebling's Sons, as iron, differed from the other, delivered to the libelants. The description of the former by the witnesses does not establish such difference. It seems quite clear that if the captain had not declined the aid of Mr. Alexander, who went
to
fOr
432
FEDERAL REPORTER.
to the ship to assist in distinguishing Samuels & Oo.'s iron, the mistake would have been avoided. The sending of this expert to superintend the separation of the metals was additional notice of the necessity for care. The captain, however, asserted entire confidence in his own ability to distinguish the iron from the steel, as also did the mate. And yet he delivered 33 tons of. steel on Samuelfl & Oo.'s consignment of iron, 26 tons of which excess of the entire amount of metal called for by this consignment. This factthe delivery of such an excess without inquiry or hesitation-:is pregnant with evidence of negligence. The circumstance. that he was giving to this party such a quantity of metal more than he was entitled to, while the libelants' delivery was short in an equal or greater amoUlat, should certainly have created apprehension of mistake. Investigation then would have disclosed the fact. that he was deliveri.ng theJibelants' steel to Rqebling.'s Sons, as plainly as it did when subsequ6:lltly made. If it were granted that the respondent might, under the charter and bills of lading, have treated the entire cargo as iron, and delivered it as such, his position would not be improved. It would still be plaIn that he should have stopped when Samuels & Co.'s consignment was fully delivered, and placed what remained to the libelant's defi. ciency. The fact that the libelants were not present at the delivery does not tend to exeuse the respondent. As indorsees of the bill of lading the libelants have title, and may sue in their own names, as they have done. The Thames, 14 Wall.. 107, 108. t3ee Pollard v. Vinton, S. C. U. S. 11 FED. REP. 351, and note; Lindsay v. CWJimano, 10 FED. REP. 302; The Bristol, 6 ]'ED. REP. 638; Merrick V. Wheat, 3 FED, REP. 340; Compart v. The Prior, 2 FED. REP. 819; Willis v. The .AWJtin, rd. 412; Richards v. Hansen, 1 FED. REP. 54; O'Rourke v. Tons of Coal, Id. 619; Hall v. Penn. R. Co. Id. 226; MWJer v. Am. Ex-. Co. rd. 382; Unnevehr V.l'M Hindoo, Id. 627.
LA-THAM
v. 'V.
J3A-RNBoY.
4:33
L\THAM
and another
BARNEY and others. December Term, 1882.)
(Girt;uit Gourt, D. Minnesota.
RELEASE TO AmnNISTRATOR, RATIFYING SALE OF LANDS-FAILURE TO RESCINl>, OON'rRACT VOID-LACHES, ETC.
Decedent, in his life-time, was possessed of a certain interest in lands which he heid with others. His acting administrator, who ow.ns a part interest in the same lands, obtains the assent ot two of decedent's heirs to the sale of decedent's interest in the said land, and forthwith conveys the same to himself 'ani his associates. Thereafter all decedent's heirs, including the complainants, sign a release discharging him from all liability "on account of the assets and property: of the deceased in his possession or under hiscontrol." In the suit brought by two of these heirs against the acting administrator and his associ· ates, purchasers of the land aforesaid, asking for an accounting of proceeds of sales made by them, and for a conveyance to complainants of the undivided interest in. the lands still unsold, held, that the release from the heirs of decedent t.o the administrator, considered in the light of a sale of their interest in the lands by such acting administrator to himself and associates, or as an agreement ratifying such a sale previously made by him, was wholly invalid, and that' this being so, and it not appearing that the complainants accepted any benefit from the sale· after the facts were known, they are not estopped to assert the invalidity of the sale by reason of laches, failure to rescind, and the like.
PROTECTION TO BONA FIDE PORCHASERS.
The protection extended to a bona fide helongs only to the purcllaser of the legal title without notice of an outstanding equity.
In Equity. On the thirty-first day of October, 1867, a written contract was entered into between Danford N. Barney, Jesse Hoyt, Angus Smith, William G. Fargo, Benjamin P. Cheney, Charles F. Latham, Ashbel H. Barney, Samuel M. Hoyt, and Alfred M. Hoyt, parties of the first part, and the Winona & St. Peter Railroad Company, party of the sec. and part. By this agreement it was recited that the parties of the first part had loaned and advanced to the party of the second part large sums of money, and had made, constructed, and equipped for it 105 miles of its railroad in the state of Minnesota, whereby the said party of the second part had become indebted to the parties of the first part in a large sum of money. Tlae contr!!oct also provides for .certain payments upon said indebtedness, and for a. conveyance of a portion of the land grant owned by the railroad company in settlement of the residue. This latter portion of the contract is as follows: "Now, for the resiUue of the said indebtedness of the said party of the second part to the said parties of the first part, the said party of the second part hath agreed to sell and convey to the said parties of the first part as many
v.14,no.8-28