Howard v. 9,889 Bags of Malt
| Decision Date | 15 February 1919 |
| Docket Number | 1567. |
| Citation | 255 F. 917 |
| Parties | HOWARD v. 9,889 BAGS OF MALT. |
| Court | U.S. District Court — District of Massachusetts |
Hill Barlow & Homans, of Boston, Mass., for libelant.
Pitt F Drew, of Boston, Mass., for petitioner France & Canada S.S Co., Limited.
George Everett Kimball, of Boston, Mass., for petitioner Hustis.
Pitt F Drew, of Boston, Mass., for claimant.
This is a suit in rem to enforce a lien of the libelant upon the cargo of the ship George S. Repplier for carrying 9,889 bags of malt from Hoboken, N.J., to Mystic Wharf, Boston, and for four days demurrage.
The contract of carriage is shown by the bill of lading, by correspondence, and by oral testimony of conferences of the libelant with one Elder, who appears to have been the agent for Renke, the undisclosed principal. It appears that the undertaking on the part of the libelant was to get the malt to Boston, to deliver it to Mystic Wharf, and to use all diligence to catch the steamship Moorish Prince, upon which the malt was to be carried from Boston to a foreign port.
From an examination of the proofs, it appears that the contract was made on July 12, 1917. On July 13, at 7 in the morning, the libelant produced the barge for loading in Hoboken, N.J. Late in the afternoon of July 15, the barge was being loaded by the shippers. The necessary bills of lading were not produced until July 16. The barge then sailed through Hell Gate on July 17, and proceeded the same day to Whitestone Head off Long Island Sound.
The testimony must be held to prove that up to July 17, the time which had elapsed was due to the loading of the barge by the shippers, over which the libelant had no control, and to the delay of the shippers in producing the necessary bills of lading. The voyage was made without further delay, except for the thick fog which prevailed.
The testimony tends to show that the delay in reaching Boston was from no fault of the libelant, but from conditions of weather, or, in other words, from perils of the sea.
The libelant engaged a towing company to take the barge; he also gave orders for prompt action. He appears to have used reasonable diligence in making the voyage. His contract was not to reach the Moorish Prince, in any event before she sailed, but to use all diligence to reach her.
He has met the burden of proving that he did use such diligence, and that he performed his contract.
At this point it must be observed that the claimant makes a demand that a certain set-off should be allowed because of breach of contract on the part of the libelant. It is not necessary to go into the question whether the testimony shows such breach. It is enough to say that, under the law, these damages cannot be recovered by set-off, but must be recovered by a separate action. A set-off is unknown to the admiralty law, except as a credit on the transaction which forms the subject of the libel. O'Brien v. Bags of Guano (D.C.) 48 F. 726, 730. The claim for damages is a personal right on the part of the owner against the carrier, and is not a claim upon the cargo itself. The Giulio (D.C.) 34 F. 909.
A sharp contention is made by the claimant that the lien of the libelant has been lost by the discharge of the cargo, and by abandonment of possession. The testimony makes it clear that on the arrival of the ship at Mystic Wharf, the steamship Moorish Prince had sailed. No consignee or other claimant appeared to accept delivery of the cargo. The only person to supervise the unloading was one Ackerly, the superintendent of the pier. The malt was stored on the pier, in the warehouse of the Boston & Maine Railroad, a public warehouseman, and not shown to be an agent of the consignee. The malt was...
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