Cunard S.S. Co. v. Kelley

• Decision Date: 15 October 1903
• Docket Number: 482.
• Citation: 126 F. 610
• Parties: CUNARD S.S. CO., Limited, v. KELLEY et al.
• Court: U.S. Court of Appeals — First Circuit

126 F. 610

CUNARD S.S. CO., Limited, v. KELLEY et al.

No. 482.

United States Court of Appeals, First Circuit.

October 15, 1903

George Putnam (Putnam & Putnam, on the brief), for plaintiff in error.

Sherman T. Whipple (Whipple, Sears & Ogden, on the brief), for defendants in error.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN District Judge.

The question before us is whether, upon the evidence, the jury reasonably could have found that 53 bales of goatskins, with the plaintiffs' marks and numbers upon them, were received on board the steamer Tarifa, of the Cunard Line, at Naples. The previous decision of this court relating to this case is reported in 115 F. 678, 53 C.C.A. 310.

The following facts are undisputed: One hundred and one bales or packages were taken aboard the steamer Tarifa, from a lighter at Naples. Fifty-three were consigned to the plaintiffs at Boston, 48 to Salvini at New York. At New York 48 uncovered bales, corresponding exactly in number, marks, and contents to Salvini's invoice and bills of lading, were delivered to Salvini. These bales were marked 'R. B.,' and were serially numbered. At Boston 53 covered bales were tendered to the plaintiffs. These bales were marked with ink or paint on the covers 'A. G. C.,' in a triangle, and were serially numbered. They contained sheepskins which had not been bought either by Salvini or Garsin, the plaintiffS agent.

It is also clear beyond a reasonable doubt that these 53 bales of sheepskins had been fraudulently substituted for 53 bales of goatskins which should have been in the lot of 101 bales delivered on board the Tarifa by the lighter. It is also clear that this substitution of goods had been made before the delivery of the 101 bales to the ship.

For the Cunard Company, it was contended that the 53 bales tendered the plaintiff at Boston were the same bales that came over the ship's side at Naples, and that they bore the same marks as when they came over the side. If this was the fact the verdict should have been for the defendant, the Cunard Company. By the verdict for the plaintiffs, the jury must have found as a fact that the bales tendered at Boston were not the same 53 bales that were received on the ship at Naples, but that 53 uncovered bales of goatskins, marked with the same marks and numbers as the fraudulent bales, were taken aboard the Tarifa from the lighter. This necessarily involved a finding that the fraudulent substitution of the goods was made on the ship after the 101 bales had been placed in the hold. If such a substitution was made, it involved the disposition of 53 bales of genuine goods so that they should not go to the plaintiffs, and the procurement of 53 sham bales to be delivered to the plaintiffs. The entire material for the substitution must be found in the 101 bales which were on the lighter, and were taken aboard the Tarifa at Naples.

The suggestion has been made that there is a possibility that the fraudulent goods were not contained in the lot of 101 bales but this suggestion is entirely imaginative, and is so opposed to all the evidence that it need not be seriously considered. The authors of the fraud are proven beyond a reasonable doubt to have been the Petriccione, and their transactions with the Punto Franco or warehouse are matters of record.

The entire number of bales deposited by the Petriccione at the Punto Franco has 116. One hundred and one went aboard the ship, and 15 were withdrawn, and not shipped. If, as the defendants in error claim, 53 of the 101 bales that went aboard the ship were uncovered bales of goatskins, it must follow necessarily that the sheepskins went aboard as 48 covered bales marked with Salvini's marks and numbers. It also must follow that in the hold of the ship the marks were taken off from 53 bales of goatskins, that the 53 bales were reduced in number to 48, and that these 48 bales were then marked with Salvini's marks. This, however, would have been but one-half of the process of substitution, for it would have been necessary also to increase 48 bales to 53, to remove the marks, and to substitute and add new marks. To do full justice to the explanation of the defendants in error we quote from their brief:

'The Cunard Company therefore admits that on thirty-eight bales the marks merely were removed and that the Salvini marks were substituted in their place. Suppose, therefore, that thirty-eight bales which ultimately went to Garsin were put on board addressed to Salvini, while thirty-eight of the bales, which, when they were received on board, had Salvini's marks on them, ultimately went to Garsin, how could this have been accomplished? The bales which were received by the plaintiffs were marked with ink on the bales. Suppose that those markings had been concealed by markings stitched over Garsin's marks, having Salvini's marks on them. All that it would have been necessary to do would have been to tear off the piece of cloth with Salvini's marks on it, and you have a bale left with Garsin's marks on it. This operation could have been done as the bales were stowed, and it could have been done in a few minutes. As to Garsin's bales, which were marked on the cloth attached to the bales, it would have been very simple to have had lying beneath the cloth with Garsin's marks another cloth with Salvini's marks, and to have removed the upper cloth; or Garsin's marks might have been removed entirely, and new pieces put in their places. This all could have been done in a few minutes.

'Regarding the remaining fifteen bales of Garsin and Salvini's other ten, it might well have been that five extra large bundles might have been put on board, each containing two bundles, and the covers ripped off, leaving ten bundles with Garsin's marks on them beneath, a work of but few minutes, while ten of Garsin's bales might have been tied together in pairs and accepted by Salvini in New York. There would then remain five bundles of Salvini's skins and five bales of Garsin's upon which the marks would have to be changed in the same manner as with the thirty-eight.'

Even should we concede to the jury the right to so free a use of the imagination, it is yet requisite that the occurrences imagined should be consistent with facts which are undisputed. The theory of a fraudulent substitution on the ship entirely fails to account for the fact that of the goods bought by Garsin, the plaintiffs' agent, 15 heavy bales had disappeared altogether, and were not found on the ship, or in the lot of 48 bales delivered to Salvini in New York. It also fails to account for the presence in the lot delivered to Salvini of 10 bales more of a certain description of goatskins than had been bought by Garsin.

The theory of a substitution on board the ship breaks down entirely when an attempt is made to reconcile it with the proven facts in the case. The absence of 15 of the plaintiffs' bales shows conclusively that the original lot of 53 bales of goatskins belonging to the plaintiffs was broken up before the delivery of the 101 bales to the lighter, and shows that the authors of the scheme of fraud did not plan to put the plaintiffs' goods aboard the ship in their original condition. The scheme was to defraud the plaintiffs. As it was intended that Salvini should have delivered to him the goods he had bought, the perpetrators of the fraud could have had no reason to ship Salvini's goods under the plaintiffs' marks, except in furtherance of the scheme to cheat the plaintiffs out of their goods by substituting sheepskins.

It is unquestionable fact that this substitution of the goods was made before the 101 bales were placed on the lighter. What reasonable motive could have existed for marking bales destined for Salvini with the plaintiffs' marks, and the bales destined for the plaintiffs with Salvini's marks, if it were intended after the goods were put in the hold of the ship immediately to shift these marks? The authors of the fraud had already encountered such risk of discovery as might arise from the substitution of goods, since in the lot of 101 bales, all of which should have been goatskins, there was unquestionably a large number of covered bales of sheepskins. Considerable argument has been devoted to the difference in appearance between the uncovered bales of goatskins and the covered bales of sheepskins, but this affords no reasonable explanation why the fraudulent bales destined to be sent ultimately to the plaintiffs should not have been marked when put aboard the ship in the manner that they were marked at the time of the tender of the goods at Boston.

Two views were presented for the judgment of reasonable men First. That 53 covered bales taken from the hold of the ship at Boston, marked with ink on the wrappers, serially numbered, and corresponding in marks and numbers to the bills of lading and invoices, were in the same condition as when put aboard the Tarifa. The Cunard Company's case rests principally upon the bales themselves; the evidence that they were taken from lighters, that they were swung from the lighters into the hold, and upon the gross improbability that the various acts necessary to the substitution were performed in the hold of the ship, as well as upon the absence of any reasonable motive for making such a substitution on the ship. Second. The plaintiffs' contention that on the ship these bales had been fraudulently substituted for 53 uncovered bales of goatskins. To this view was opposed the evidence that the authors of the fraudulent trick were the Petriccione, to whom was intrusted the duty of putting the goods aboard the ship, and who had full opportunity to make a substitution of the goods and marks at Naples; the extreme improbability that a...