Devato v. Eight Hundred and Twenty-Three Barrels of Plumbago

• Decision Date: 31 May 1884
• Citation: 20 F. 510
• Parties: DEVATO v. EIGHT HUNDRED AND TWENTY-THREE BARRELS OF PLUMBAGO, etc.
• Court: U.S. District Court — Southern District of New York

20 F. 510

DEVATO v. EIGHT HUNDRED AND TWENTY-THREE BARRELS OF PLUMBAGO, etc.

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

May 31, 1884

Owen &amp Gray, for libelants.

Butler Stillman & Hubbard, for claimants.

BROWN J.

This libel was filed to recover the sum of $2,883.63, freight alleged to be due upon 823 barrels of plumbago, brought on board the bark Guiseppe Mazzini, from Colombo, in the island of Ceylon, and discharged at Pierrepont's stores Brooklyn, immediately adjacent to the Wall-street ferry. The plumbago was shipped under a bill of lading which describes the bark as 'bound for New York,' and that the goods were to be 'delivered at the aforesaid port of New York' on payment of freight, etc. There were numerous other consignees of different portions of the cargo, under various bills of lading, quite a number of the other shipments being also of plumbago. The vessel arrived in New York on the fifteenth of January, 1882. Prior thereto a majority of the consignees, upon the solicitation of the agents of the proprietor of Pierrepont's store, had signed requests that the bark should go to Pierrepont's stores, Brooklyn, to unload. The claimants of the plumbago in suit were not consulted. They wanted their cargo landed in New York, and on learning that the bark had gone to Brooklyn protested against her unloading there. The plumbago, however, was put upon the pier there, and subsequently taken thence by the claimants in lighters to New York. The claimants, Gantz, Jones & Co., contend in their answer that, under the bill of lading, the ship was bound to make delivery at the city of New York; that the delivery upon the dock at Brooklyn was wrongful; that while there a portion of the plumbago was injured through exposure to snow and rain; and that the claimants were subjected to the expense of $132.22, in the subsequent lighterage of the plumbago to New York, which they claim as an offset against any sum which may be due for freight.

Upon the trial the claim for injury to the goods while on the pier was waived, in order that a decision might be had upon the single question concerning the right of the vessel, under such a bill of lading, to make delivery of the cargo in Brooklyn, against the protest of one of the consignees, and without compensation for lighterage across the river.

For some 30 years past there has existed at this port a controversy, or something in the nature of a controversy, between ship-owners and importers as to the right of a vessel to make delivery of cargo consigned to 'the port of New York' on the adjacent shores of Brooklyn, Jersey City, or Hoboken. The evidence shows that it began some 30 or 35 years ago, about which time some of the steamship lines began to go to Jersey City. Complaint was immediately made by the merchants in regard to that practice, and some compensation was paid for the extra expense of ferriage. This liability was soon avoided by an alteration of the terms of the bills of lading so as to give liberty to discharge at Jersey City; and several lines now provide generally for an option to discharge at Jersey City, Hoboken, or New York. About the same time commodious warehouses began to be erected in Brooklyn, which now extend almost continuously from Fulton ferry to below Hamilton ferry, on the Brooklyn side. These warehouses, with the docks to which they are adjacent, furnish superior facilities for the ready handling and storage of cargo; and during the last 25 years they have been more and more used for storing goods not intended for immediate consumption. In certain lines of business, the East India trade particularly, a large majority of the cargoes of late years have come to be discharged at the Brooklyn stores; and this tendency has lately been still further increased by the erection of the Brooklyn bridge, as the vessels engaged in that trade are mostly unable to go above the bridge without housing their topmasts. During the last five years, as the evidence shows, almost all the vessels from Colombo and Ceylon have discharged at Brooklyn.

Some 15 or 20 witnesses upon each side have been examined in reference to the custom of delivery. The witnesses on the part of the respondents are, for the most part, merchants or persons identified in interest with importers. Some of them, however, are entirely impartial, and have been familiar with the controversy on this subject for 25 years or upwards, and one of them has been frequently called on to arbitrate upon differences and claims for damage arising through deliveries in Brooklyn. The respondents' witnesses all testify that the practice of delivering in Brooklyn, so far as it has been the practice to unload there under bills of lading of this description, has always been more or less protested against, and a constant subject of claim for compensation on the part of those merchants who desired their goods to be landed in New York. In a few instances the cost of lighterage has been paid; but, generally, the only compensation allowed, where any was given, was the ferry charges for trucks employed to cart the goods to New York.

On the part of the libelants, while such claims are admitted to have been made to some extent by persons who wanted their goods in New York, it is contended that such complaints are now much less frequent than formerly; that they never amounted to much, and always came from only a very small proportion of the consignees; that no payments for lighterage were known; and that the occasional sums paid for ferriage were paid from policy, in the competitions of trade, or, in a few instances, to avoid litigation, and were so small in amount as not to be worth contending for; while quite a number of the witnesses had never heard of any such objections, or any claims for compensation at all. Many witnesses for the libelants testify to the practice of late years of landing nearly all the cargoes from Ceylon at Brooklyn, as above stated; and also to the general practice of delivering cargoes at any dock in New York or Brooklyn selected by a majority of the consignees.

The first ground of defense is that a delivery at Brooklyn is not a fulfillment of the contract contained in this bill of lading, because the bill of lading describes the vessel as 'bound for New York,' and makes the goods deliverable 'at the aforesaid port of New York. ' If this contention is sound, no freight was earned. The Boston, 1 Low. 464. This contention, however, cannot prevail, for the Brooklyn wharves are clearly within the legal limits of the 'port of New York,' and hence within the possible limits of the port, as commercially understood.

1. The legal limits of the port of New York must be held to be such as are fixed or recognized by the statutes of the state or the United States. No statute of the United States defines these limits with strictness. By section 2535, the state, for the purposes of the collection of the revenue, is divided into 10 collection districts, the second of which is the 'district of the city of New York,' comprising 'all the waters and shores of the state of New York, and of the counties of Hudson and Bergen, in the state of New Jersey, not included in other districts' in which New York is made 'the port of entry;' and 10 other towns and cities between Newburgh and Troy, inclusive, as well as Cold Spring and Port Jefferson, on Long island, are made 'ports of delivery;' while Jersey City is made 'a port of entry and delivery, with an assistant collector to act under the collector at New York. ' By section 2536 the revenue officers are required to 'reside at the port of New York,' excepting one assistant collector, 'who shall reside at Jersey City. ' Section 2770 requires every vessel arriving from a foreign port to make entry of ship and cargo at one of the designated ports of entry, and prohibits the unloading of cargo elsewhere than at one of the designated ports of entry or delivery. The second collection district, therefore, of which New York is the port of entry, extends from Sandy Hook to Troy, on the Hudson, and embraces the west end of Long island, including Brooklyn. New York, as 'a port of entry,' is clearly not co-extensive with the whole collection district, since this district embraces not only Jersey City, which is made a distinct port of entry and delivery, but also 12 other designated 'ports of delivery.' The unloading of goods from a foreign port at any other place than a designated port of entry or delivery is illegal, (section 2770; U.S. v. Hayward, 2 Gall. 510, 511,) and as Brooklyn is not a designated port of delivery, unless it were included in the port of New York as a port of entry, the unloading of any foreign goods at Brooklyn would be illegal. The long practice, however, of landing foreign goods there under the authority of the collector should be deemed conclusive evidence that Brooklyn, by common understanding, is included within the port of New York as a port of entry. In ordinary commercial usage, also, Brooklyn, is not recognized, I think, in foreign commerce as a distinct port, but only as an adjunct of the port of New York. As I have said, foreign goods cannot be legally landed there at all except as a part of this port; and in foreign bills of lading, when Brooklyn is referred to, it is more usually, I think, by the names of its docks only, as a part of the port of New York, and without the mention of Brooklyn eo nomine. In Carsanego v. Wheeler, 16 F. 248, the ship was to proceed from Plymouth, England, to New York, 'only Atlantic dock,' i.e., to Brooklyn, as a recognized part of the port of New York, though Brooklyn was not named; and in Irzo v. Perkins, 10 F. 779, under a bill of lading making the goods deliverable at the port of New York, the vessel, by consent of all the...