Planters' Fertilizer Mfg. Co. v. Elder

• Citation: 101 F. 1001
• Decision Date: 01 May 1900
• Docket Number: 862.
• Parties: PLANTERS' FERTILIZER MFG. CO., Limited, v. ELDER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

101 F. 1001

PLANTERS' FERTILIZER MFG. CO., Limited, v. ELDER et al.

No. 862.

United States Court of Appeals, Fifth Circuit.

May 1, 1900

The libelants claim $2,936.50 for freight due for the carriage of two two cargoes of superphosphate by their steamships Merrimac and Montezuma from Liverpool to New Orleans, the rate of freight being eight shillings per ton. The libel alleges that bills of lading for the two cargoes were issued and delivered to the shippers, copies of the same being annexed to and made part of the libel. The bill of lading marked 'Exhibit A' is stated to be 'in bulk,' 750 tons, 19 cwt., and 1 qr., and the bill is indorsed 'Weight and quantity unknown.' The freight is stated to be eight shillings per ton. In the bill of lading marked 'Exhibit B,' that issued per steamship Merrimac, the cargo was declared to be 'in bulk,' 750 tons, 6 cwt and 2 qrs. This, however, was to be reduced by 145 tons 'short shipped,' to be forwarded by the steamship Montezuma, the other steamer, and was included in bill of lading 'A,' that issued per steamship Montezuma; and this bill of lading is indorsed 'Weight unknown,' and the freight is stated at eight shillings per ton. In the freight bill, being Exhibit C2, attached to the libel, the quantity of phosphate upon which the payment of freight was demanded is declared the same as that set out in the two bills of lading. The respondent's answer admitted the shipments by the two steamships named and set up that, according to the bills of lading in the possession of respondent, the cargoes were 750 tons, 6 cwt., and 2 qrs. by the Merrimac, of which 145 tons were not shipped by that steamer, but were retained to be forwarded subsequently by the Montezuma; that, after deducting this amount from the originally intended cargo of the Merrimac, there was still, besides, short, lacking, and deficient 39 329/2240 tons of the quantity received by libelants for transportation; that the value of this short quantity of superphosphate was $483.46; that the cargo actually brought and delivered by the Montezuma was 41 708/2240 tons less than that actually received for carriage; that of this shortage part was of the quality known as 12 per cent., and the remainder was 14 per cent., there being 40 708/2240 tons of the former, and 1 ton of the latter,-- the former being of the value of $408.39, and the latter $12.39; that the total value of the shortage in both cargoes was $940.20. The answer further says that, prior to the arrival of either vessel at New Orleans, respondent paid the bills of exchange drawn for the price of said phosphate by its vendors, which bills of exchange were presented with the bills of lading issued by libelants, setting out the receipt by them for carriage of the entire quantity of phosphate,-- that is, 750 tons, 6 cwt., and 2 qrs. by the Merrimac, and 650 tons, 19 cwt., and 1 qr. by the Montezuma,-- while, as a matter of fact, there was delivered to respondent only this quantity, less 80 1037/2240 tons, which was of the value of $904.20, and that the amount due libelants was only the freight on the phosphate they actually delivered, less the value of the amount of phosphate the received for delivery, but failed to deliver; that this amounted to $1,977.46, which respondent admitted to be due and deposited in the registry of the court; that it was entitled to deduct from the $2,936.50, freight upon the whole cargo, as shown by the bills of lading, the sum of $959.04, the value of the phosphate which was not delivered; and the respondent, by way of cross libel, claimed the right to deduct this difference, as proposed by the answer. By a supplemental answer, respondent claimed that libelants' claim should be further reduced by the sum of $52.53, the freight on the portion of the cargo which it claimed was not delivered, and reduced its tender to $1,874.93, which amount was paid into the registry, and withdrawn by the libelants without prejudice to either party.

There is little conflict in the evidence, and it establishes that the shippers of the superphosphate delivered the goods to the ships on their own weights and measurements, and that the same was received and stowed without any inspection or weighing on the part of the ships; that the shippers made out and presented for signature bills of lading, reciting the amount in bulk, with alleged weights; that as presented the bills of lading were indorsed in the one case, 'Weight and quantity...