Elder Dempster & Co. v. Talge Mahogany Co.

• Decision Date: 17 February 1919
• Docket Number: 3320.
• Citation: 256 F. 65
• Parties: ELDER DEMPSTER & CO., Limited, v. TALGE MAHOGANY CO.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F. 65

ELDER DEMPSTER & CO., Limited, v. TALGE MAHOGANY CO.

No. 3320.

United States Court of Appeals, Fifth Circuit.

February 17, 1919

Henry P. Dart, Jr., of New Orleans, La. (Henry P. Dart, Benjamin W Kernan, and Benjamin W. Dart, all of New Orleans, La., on the brief), for appellant.

Edwin T. Merrick and Wm. J. Guste, both of New Orleans, La. (Merrick, Gensler & Schwarz, of New Orleans, La., on the brief), for appellee.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

This was a libel in personam to recover the amounts of alleged expense to the libelant of recovering 30 mahogany logs, and of the alleged value of 21 other such logs which were lost it being alleged that both the logs recovered and those lost went adrift, between September 23, 1910, and October 15 1910, after they were delivered alongside the ship chartered by the libelant to carry a cargo of logs from Axim, on the west coast of Africa, to New Orleans. The libel charged that the logs went adrift because of faults chargeable against the ship; the faults alleged being that the ship was anchored too far from shore, that the captain required more logs to be brought out each day while the loading was in progress than could be taken aboard during the day of their delivery alongside the ship, and that there was a lack of proper watch during the nights when the logs went adrift. The libel was filed April 22, 1916. The charter party, which was made a part of the libel, contained a provision requiring the cargo to be 'delivered alongside of the vessel, where she can load, * * * always safely afloat within reach of her tackles. ' The delay in filing the libel was duly set up as laches, such as to bar the action.

Before the filing of the libel the libelant had asserted no claim based on the logs going adrift further than was disclosed by the following occurrences: On February 17, 1911, a firm of lawyers in New Orleans addressed to the respondent (the appellant here) a letter stating that they had received for collection a claim of the libelant for the loss of 21 logs shipped by the respondent's steamer, costing the sum of $500, and the recovery of 30 logs allowed to go astray, the recovery of which cost the libelant $245. In the reply of the respondent's agents to that communication, dated February 18, 1911, they said, after stating the contents of the communication replied to:

'We have never been presented with the claim by the Talge Mahogany Company. We do not know anything about any such claim, as the Talge Mahogany Company have never presented us with one. If you wish to take proceedings for the recovery of this money, you are at liberty to do so. If you think this action is necessary, please communicate with our attorneys, Messrs. Dart & Kernan.

'We certainly will not pay any claim until we have some evidence that we are obligated to pay, or have caused other people to suffer damages that are claimed.'

In a letter of the libelant, dated February 23, 1911, and addressed to the respondent at New Orleans, it stated merely the inclosure of an invoice of which the following is a copy:

'The Talge Mahogany Company.

'Indianapolis, Ind., Jany. 31, 1911.

'Sold to Elder Dempster & Co., Ltd., New Orleans, La.:

Recovering 10 mahogany logs . . . $50.00

Recovering 20 mahogany logs . . . 195.00

Lost-- 21 mahogany logs at $25.64 . . . 538.44

$783.44

'All the above logs went adrift from alongside the S. S. Andoni while loading at Axim, Sept. 23-Octr. 15, 1910.' On June 8, 1911, respondent's agents at New Orleans, after having communicated with their principal in Liverpool, wrote a letter to the libelant, containing the following quotation from a letter of the principal:

'We are duly in receipt of your letter of the 1st inst., inclosing claim for $783.44, which the Talge Company have rendered to you for loss of certain logs whilst the Andoni was loading at Axim in Sept./Oct. last. However, we cannot admit this claim, because our steamer cannot be held for loss or cost in recovering logs, unless she herself had actually signed for them, and this we do not suppose is the case.'

That quotation was followed by the...