29 F. 184 (S.D.N.Y. 1886), Arnold v. National S.S. Co.

Citation:29 F. 184
Party Name:ARNOLD and others v. NATIONAL S.S. CO. [1]
Case Date:November 24, 1886
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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Page 184

29 F. 184 (S.D.N.Y. 1886)

ARNOLD and others

v.

NATIONAL S.S. CO. 1

United States District Court, S.D. New York.

November 24, 1886

Page 185

Evarts, Southmayd & Choate, for libelants.

John Chetwood and R. O. Benedict, for respondent.

BROWN, J.

The libelants, composing the firm of Arnold, Constable & Co., filed this libel in personam to recover the sum of $15,000 for the loss of 36 cases of goods which had been consigned to them from England, and were brought in the steamer Egypt, landed upon the Inman Company's pier, No. 36, North river, and there destroyed by fire on the thirty-first of January, 1883. The main features of the case, including the terms of the bills of lading, bonds, permits, etc., are the same that existed in the cases of Acker v. The Egypt, in which the several libels were dismissed. 25 F. 320. That decision is followed here, so far as relates to the points then considered.

By the amended libel in this case it is further charged that, for many years prior to 1883, the libelants had been in the habit of shipping goods by the respondents' line, and had invariably received them at the dock owned by the respondents, and not otherwise; and that it had become an established custom and usage of the port, between the libelants and the respondents, that all the libelants' goods should be landed at the dock known as the 'National Dock,' which was at this time pier No. 39; that the libelants had no knowledge or notice of the landing, or intended landing, of these goods at any other dock; that the change to Pier 36 was made without necessity, and in violation of the said custom; and that it was by reason of such violation that the goods were destroyed.

Had the bills of lading provided, in express terms, that delivery should be made at Pier 39, no doubt unloading at Pier 36, without notice, would have been such a departure from the contract as to deprive the carrier of the benefit of its stipulation for the privilege of discharging 'without notice, and at the consignee's risk. ' The custom alleged in the amended libel, in order to have a similar legal effect, must be so clearly proved, and also so certain in its character, as to have the legal effect of one of the express terms of the contract. In my judgment, the proof is entirely insufficient in either respect. I do not find more than six shipments by this line to the libelants during the five years previous; namely, one in 1878, one in 1879, none in 1880 or 1881, three in 1882, one in 1883, although this line was running from four to eight steam-ships per month. No special contract or arrangement was proved between the defendants' line and the libelants, and nothing to distinguish their relations to the defendants from their relations to any other...

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