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the Michigan decision by the assertion that the question of the invalidity of the reissue, as such, was not presented to the court. It is true that nothing was said by the court on the subject in the oral opinion delivered, but to argue from this that the defense was not urged is to proceed without sufficient foundation. If presumption is to be indulged in it would seem to lead to a contrary conclusion.
As before stated the defense was pleaded in the answer in the Michigan case. The struggle there was genuine and bitter. The defendants' case was conducted by an able patent lawyer thoroughly conversant with the doctrine of the supreme court regarding reissues. To assert that the attention of the court was not called to the point that the claims relied upon did not appear at all in the original patent, is, in the circumstances, to assert an almost unthinkable proposition. The other defenses were before the court in the Michigan case and were there overruled.
There are some new features in the proof, but as now presented there is too much doubt about the new evidence both on the facts and the law to justify the court in refusing relief to the complainant. The equities are strongly with the complainant. The injury done to the defendants by granting the writ will be as nothing compared to the injury done the complainant by withholding it Mo
THE HATTIE PALMER.
HAWKINS v. DAVIS.
(Circuit Court of Appeals, Second Circuit. May 28, 1895.)
SHIPPING-NONDELIVERY OF FREIGHT-CONVERSION.
A steamer making daily trips between New York and New Rochelle took some barrels of freight for delivery at City Island. On touching there, no person was in readiness to receive the same or pay the charges, and the steamer retained the goods on board, sending word to the consignee, whose place was about 200 yards from the landing, to have some one ready to receive the goods on the following day. This notice was received, but no one appearing on the steamer's return the next day, the goods were still retained on board. The next day the consignee arrested her on the libel for conversion. The wharf was not a safe place to leave the goods, and the vessel was all ready to deliver them on payment of the freight. Held, that there was no conversion, and the libel was properly dismissed with costs. 63 Fed. 1015, affirmed.
Appeal from the District Court of the United States for the Southern District of New York.
This was a libel by John P. Hawkins against the steamboat Hattie Palmer (Charles W. Davis, claimant) to recover damages for the alleged conversion of three barrels of kerosene, one barrel of gaso line, and two cases of copper paint. The Hattie Palmer was a small passenger and freight steamboat plying between New York and New Rochelle, and the articles in question were shipped on her for delivery at City Island. On touching there, no one was on hand to receive the goods or pay the freight, and the goods were retained on board; the master sending word to the consignee, whose place of business was but a short distance from the wharf, to have some one ready to receive the articles on the next day. On that day there was still no one to receive the goods, and they remained on board for still another day. The next day the consignee filed this libel, and caused the arrest of the steamboat, alleging a conversion of the goods. The district court dismissed the libel (63 Fed. 1015), and the libelant appeals.
George A. Black, for appellant.
PER CURIAM. The facts of this case are essentially as stated in the opinion of the district judge. In his haste to punish the appellee, the libelant brought his suit before there had been any conversion of the goods by the carrier. Robinson v. Austin, 2 Gray, 564; Clark v. Masters, 1 Bosw. 177, 185; One Thousand Two Hundred and Sixty-Five Vitrified Pipes, 14 Blatchf. 274, Fed. Cas. No. 10,536; Everett v. Coffin, 6 Wend. 603; Ang. Carr. $ 400. Under the averments of the libel, it may be that at the time when the suit was actually commenced, although not when the libel was verified, there was a cause of action for trivial damages, in favor of the libelant, for breach of contract by the carrier to deliver the goods within a reasonable time; but no damages were proved, and the cause was tried in the court below, as it has been argued in this court, upon the theory of a conversion. Had nominal damages been awarded, costs should have been, as they were, imposed upon the libelant. Courts of admiralty, like courts of equity, should visit costs upon suitors who resort to their jurisdiction merely to gratify a taste for vexatious litigation. Chapman v. Publishing Co., 128 Mass. 478; Allen v. Demarest, 41 N. J. Eq. 162, 2 Atl. 655; Moore v. Lyttle, 4 Johns. Ch. 183; Ben. Adm. (3d Ed.) § 550. The decree of the district court should be affirmed, with costs, and it is so ordered.
BREGARO V. THE CENTURION.
AMERICAN SUGAR REFINING CO. V. SAME.
(Circuit Court of Appeals, Second Circuit. May 28, 1895.) 1. SHIPPING-DAMAGE TO CARGO-STOWAGE OF MOLASSES.
The between decks, when perfectly tight and strong, is not an improper
place for the stowage of liquids, such as molasses. 2. SAME.
A steamship bound from West India ports to New York had sugar stowed in her hold, with hogsheads of molasses in the between decks above it. The between decks were of steel, and perfectly tight and strong, and the cargo was stowed by an experienced stevedore under the supervision of the supercargo. On the voyage severe squalls were encountered, heaving the ship temporarily at an angle of 45 deg., washing the deck cargo adrift, and giving her a list to starboard of over three feet. Some of the casks of molasses were broken, and their contents ran down the scupper pipes into the bilges of the hold beneath, and the bilges and sluiceways became choked with molasses, so that it flowed over the bottom of the hold, and caused the sugar in the hogsheads to be dissolved. Held, upon the evidence, that the cargo was properly stowed; that the peril encountered by the ship was sufficient to create damage to a properly stowed cargo; and that the ship and her owners were exempt from liability under an exception in the bill of lading of damage arising from perils of the sea. 57 Fed. 412, reversed.
Appeal from the District Court of the United States for the Southern District of New York.
These were libels by Jose Bregaro and by the American Sugar Refining Company against the steamship Centurion, John Blumer & Co. claimants, to recover for damage to cargo. On petition of the claimants, the New York & Porto Rico Steamship Company, to which the ship was under charter at the time of the damage, was cited in to answer therefor. The district court found that the loss was caused by negligent stowage, and entered a decree against both the ship and the charterers, to be collected in the first instance from the latter, as they were bound by the charter to indemnify the owners. 57 Fed. 412. The charterers and owners appeal.
J. Parker Kirlin, for the Centurion, appellant.
Geo. A. Black, for the New York & Porto Rico Steamship Company, appellant.
Wm. W. MacFarland, for appellees.
SHIPMAN, Circuit Judge. Jose Bregaro shipped on board the steamship Centurion, at Ponce, Porto Rico, 250 casks of molasses, and his agent shipped on the same steamer, at Arroyo, 465 hogsheads of sugar, for transportation to New York. The bills of lading excepted the ship and its owners from liability for damage arising from perils of the sea. When the cargo was discharged in New York, on March 3, 1893, 88 casks of molasses were broken and empty, and others were partially empty from leakage. The sugar in the lower tiers of the hogsheads was partially dissolved by its mixture with the molasses which accumulated at the bottom of the hold. Bregaro brought a libel in rem against the Centurion for the damage to the molasses, alleging that it was caused by the negligent and improper manner in which the merchandise was stowed. Bregaro and the American Sugar Refining Company also libeled the steamship to recover damages for the injury to the sugar, alleging improper stowage, and that, through the defective condition of the scuppers, bilges, and sluiceways of the ship, and the neglect of the officers to properly pump the vessel, the drainage from the sugar and the molasses collected in the lower hold, and washed out the sugar from the hogsheads. John Blumer & Co., the owners of the Centurion, answered the libels, alleging that the injuries happened through perils of the seas, and denied that there was any defect in the stowage, but, if there was, they alleged that it was the fault of the New York & Porto Rico Steamship Company, the time charterer, which had the management and control of the stowage. The owners also filed petitions praying that the charterer might be cited in to answer the allegations of the petitions, which repeated, in substance, the averments of the answer in regard to the negligence, if any, of the charterer. The steamship company was cited in and appeared and answered the petitions. In regard to the injury to the molasses, it averred that the stowage was under the supervision of the officers of the vessel, was approved by them, was well done, and that the damage happened through perils of the seas. In regard to the injury to the sugar, its answer contained the same averments in regard to stowage, and also averred that the damage was caused by the defects of the steamship's equipment and management, whereby the drainage from the sugar and the molasses accumulated and dissolved the sugar.
The causes went to trial under the issues as thus made, and were heard upon depositions.
The Centurion was a steel ship, built in May, 1886, 270 feet long, with a depth of hold 26 feet and 1 inch, having two steel decks, the upper deck and the between decks, which were perfectly tight, except the closely covered feeder holes. Whether these holes were caulked at the time in question need not be determined, as it is manifest that they had nothing to do with any injury to this cargo. She was chartered by the steamship company under a charter of demise, the captain was under its orders and directions, and, as between ship owners and charterer, no claim was to be made against the owners for loss of cargo.
A supercargo could be appointed by the charterer who was to see that the voyages were prosecuted with the utmost dispatch. When she started upon this particular voyage, she was clean, in good condition throughout, and was entirely seaworthy. She took a general cargo in New York in January, 1893, for ten Porto Rico ports, and discharged and took in cargo at each port, when required. She reached San Juan on January 31st, and there
after visited nine other ports, of which Ponce was the third, where she took in the molasses on or about February 9th, and discharged all her cargo.
She received the sugar at Arroyo on February 13th, returned to San Juan on February 18th, and sailed for New York on February 19th. The molasses was stowed in No. 2 "between decks,” the sugar was stowed beneath in No. 2 hold, and the stowage was made by an experienced stevedore under the supercargo's supervision and control, and in the places of his selection. In the afternoon of February 22d there was a strong gale, with heavy squalls, and at half past 5 o'clock a heavy sea struck the ship, heaving her temporarily at an angle of 45 deg., washing the deck cargo adrift, and giving the ship a list to starboard of three and one half feet, which she retained during the voyage. The next morning it was discovered that the molasses was adrift in the between decks.
The supercargo and the crew went down, found that part of the casks in both tiers were broken, that some of them were empty, and that they were generally out of position. They were shored up and secured as well as practicable. The bad weather continued, and on February 24th the sea swept the deck cargo overboard, broke some rails, and did some other damage. She anchored at Staten Island in the evening of February 26th. On arrival at New York the cargo was unloaded, and the extent of the damage was ascertained. The leaking molasses had run down the scupper pipes into the bilges in hold No. 2 beneath; the bilges and the sluiceways in the bulkheads which separate the bilges became filled and choked with the accumulation of molasses; it flowed over upon the bottom of the hold; mixed with the leakage from the sugar hogsheads; caused more sugar to be dissolved; and soon the limbers were full of a thick mixture of sugar and molasses, which could not flow away. The sluiceways were left open, but were clogged with wet and soft sugar and molasses. It appears that the hogsheads in which Muscorado sugar is packed are intentionally not tight, but have four or five holes, through which the hogsheads may be "purged”; that the staves are loose; and that the drainings settle in the bottom of the hogsheads. Molasses casks are not full when they are put on board, but five or six inches are left for fermentation, and each cask has two small holes, one on each side of the bung, to permit an escape of the fermenting molasses, which flows out through the holes, and makes the casks very slippery and easily movable.
The issue of fact which was before the district court was whether the shifting of the molasses casks which created, first, the damage to the molasses, and, next, the damage to the sugar, as the result of the drainage of the molasses, was caused by the perils of the sea, the defects of the ship, or by negligent and improper stowage. Numerous criticisms were made by the charterer upon the alleged defects of the ship as to sluiceways, bilges, pumps, and the negligence of the crew in pumping, but we are satisfied that these criticisms were groundless, and may be eliminated from the case. The district judge was of opinion that the shifting of the cargo arose "from the