Hard v. The Enchantress

• Decision Date: 04 December 1893
• Citation: 58 F. 910
• Parties: THE ENCHANTRESS. v. THE ENCHANTRESS. HARD et al.
• Court: U.S. District Court — Southern District of New York

58 F. 910

THE ENCHANTRESS.

HARD et al. v. THE ENCHANTRESS.

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

December 4, 1893

Cary &amp Whitridge and Mr. Butler, for libelants.

Convers & Kirlin, for claimants.

BROWN District Judge.

The libelants claim to recover the value of 35 bags of coffee alleged to be a part of a consignment of 5,947 bags shipped on board the Enchantress at Victoria, Brazil, in September 1892, and arriving at this port in the following November. Other coffee was on board the steamer, a part of which went to Europe upon through bills of lading. Upon the discharge of the Enchantress in this port, the tally showed a delivery of the whole number of bags called for by the bills of lading and one more. The libelants, however, refused to accept 35 of the bags tendered them, on the ground that they did not correspond with the marks stated in the bill of lading, or that some of the marks were obliterated. They further claimed that their coffee at Victoria was put into bags of a peculiar character, used by them alone, and that there were 35 of that kind of bags short.

The proof as to the kind of bags, or the marks on the bags shipped at Victoria, is incomplete. It is not established by any competent testimony that all of the libelants' bags shipped at Victoria were of the libelants' peculiar make. Upon the discharge of the cargo, 57 bags were unclaimed or refused by the consignees, on a part of which the marks were obliterated. The claimants' testimony is to the effect that a number of those were of the peculiar Victoria bags; while the libelants' witnesses testify to the contrary. The bill of lading excepted any liability of the ship for 'obliteration or inaccuracy of marks,' etc.; and there are some discrepancies between the recitals of the receipts of shipment, and the bills of lading. There is no proof of the accuracy of the marks, or that the bags shipped were of the precise marks stated in the bill of lading, as the stipulation on that subject does not cover the marks. Exception as to 'inaccuracy of marks,' has the same effect as a similar exception in regard to weight; and the ship would, therefore, be discharged on proof of the delivery of all that was shipped. The Pietro G., 40 F. 497. As the evidence leaves little doubt that the Enchantress delivered all that was put on board, the proofs seem insufficient to sustain strictly the libelants' case.

Aside from this, however, there are other grounds why the libel should be dismissed. On the 14th of December, the libelants having sent to the steamship company a bill for the value of the 35 bags, Mr. Ivins, on behalf of the company, on the same day, called upon the libelants, and made a sale to them of the 57 bags from the Enchantress, and 7 others, making 64 in all. The libelants, on the following day (the 15th) resold the 64 bags, which were delivered to the vendee. On the 16th Mr. Ivins, who, as he testifies, expected to receive cash for the sale, sent to the libelants for payment, which was declined by the libelants; and the report brought back to Mr. Ivins by his employe was, that the libelants would apply the proceeds of sale to their claim for the 35 bags short on the Enchantress, and the balance of the proceeds to prior claims of a similar kind held by them against the company. Mr. Ivins acquiesced in this, because, as he said, he could not...