The Alpin

• Decision Date: 30 December 1884
• Citation: The Alpin, 23 F. 815 (E.D. N.Y. 1884)
• Parties: THE ALPIN. (Nine Cases. [1]
• Court: U.S. District Court — Eastern District of New York

23 F. 815

THE ALPIN. (Nine Cases. ^[1]

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

December 30, 1884

Scudder & Carter (Lewis Cass Ledyard) and Sidney Chubb, for libelants.

Wheeler & Souther, (Everett P. Wheeler,) for claimants.

BENEDICT J.

These actions, tried together, are brought upon bills of lading to recover damages for the failure to deliver, in like good order, at the port of New York, cargo, in the bills of lading mentioned, shipped on board the steam-ship Alpin.On January 15, 1883, the steamer above mentioned, bound for New York left the port of Inagua, having on board a cargo of assorted merchandise, consisting in large part of coffee and hides.On the morning of January 20, 1883, a few minutes after 1 o'clock, she stranded some four miles north of Green Run inlet, on the coast of Maryland, upon a bar running along about 300 yards from the beach.As soon as the vessel struck some cargo was thrown overboard, and an effort to work the vessel off the bar by running her engines full speed astern having failed, all on board left her and went on shore.The following night the steamer came in over the bar, and on Sunday morning was lying in an easy position, so high up on the beach that her officers walked to her, and her mails were landed from her into an ox-cart backed up to her side for that purpose.On Monday an agent of the owners arrived and took charge of the steamer and her cargo.The sea continuing smooth, under his direction all the cargo, except about 150 tons, was put over the side and carted up on the beach, and on the 24th the steamer was hauled off the beach by tugs and proceeded to New York.The loss and damage to the cargo amounted to $82,000.The value of the steamer was $48,000.

To recover for the loss and damage to the portion of the cargo owned by the above-named libelants these actions are brought upon their several bills of lading, similar in legal effect.They claim to recover upon two grounds: First, that the stranding of the steamer was caused by negligence on the part of those engaged in her navigation; second, that after the stranding, unnecessary loss and damage to their merchandise was caused by the neglect and wrongful conduct of the agent of the owners, under whose directions the cargo was taken out of the vessel, after she had been grounded on the beach.

By far the greater part of the testimony is directed to the action of this agent in respect to the cargo, and this testimony certainly presents some remarkable facts.But I find it unnecessary to consider that branch of the case to which the testimony referred to applies, for the reason that I am satisfied that it is my duty to hold the vessel liable for the loss and damage sustained by the cargo in question upon the ground that the stranding of the steamer was caused by the negligence of those at the time in control of her navigation.

The condition of the testimony upon this branch of the case is extraordinary.On the voyage in question, and at the time of the stranding, there were on board the steamer, officers and crew, 29 persons, besides two passengers.Of these, the chief engineer, who was below when the vessel stranded, is the only witness called by the claimants; and this, notwithstanding it appears that the captain and the chief officer of the steamer have been in New York, and in communication with the owners since the commencement of these actions.The only excuse offered for this important omission to call these officers to explain their navigation of the steamer is that the libels do not charge that the stranding was caused by negligence, and the claimants were therefore justified in assuming that the circumstances attending the stranding would not be the subject of inquiry, and so allowed the master and crew to depart without taking their testimony.But the claimants knew that the stranding of their vessel was to be their defense; and their course in relying for proof of the stranding upon the admissions in the libels and the testimony of witnesses who, while knowing of the stranding, could not know how it was caused, when the testimony of those who would be the natural witnesses to prove such a defense was at command, indicates the existence of a reason other than that of surprise for the non-production of these witnesses, and warrants a presumption that if the officers of the steamer had been called, they would have shown the stranding to have been the result of negligence in the navigation of the ship.

It is to be also noticed that some of the libels do not admit the stranding, and that the libels in which a stranding is admitted couple the admission with the statement that it arose 'from causes to your libelant at present unknown,' while the answers deny negligence.Moreover, after the libelants' testimony showing negligence was put in, no application was ever made for time to procure the testimony of the officers of the steamer.Little room is therefore left to contend that the failure to produce any of the crew of steamer is to be excused on the ground of surprise.

The inquiry in regard to the cause of the stranding opens,...