CAlIPART

'D. S''l'EAHSHIP PRIOn.

819

CAMPART and others v.

'fHE BTEAMSHIP

PRIon.

(District Court, E. D. New York. June 2,1880.)
BILL OF' LADING-DELIVERY 011' CARGO - " QUANTITY AND QUALITY UNKNOWN "-BUHDEN 011' Pnooll'.-Where wheat was shipped to France

by several parties under bills of lading, specifying that the quantity and quality of the wheat was unknown, and suit was brought for nondelivery of the whole amount, held, that the burden of proof was on the libellants to show the quantity of wheat" delivered in Havre, and their case must fail for lack of evidence-the claimants of the ship showing that all the wheat shipped was delivered, and the bills of" lading surrendered by the consignees.

In Admiralty. W. H. Goodrich, for libellants. Coudert Bros., for claimants. BENEDICT, D. J. This is a consolidated action, wherein several shippers of wheat seek to recover damages for an alleged failure on the part of the above-named vessel to perform certain bills of lading, duly issued by the master of said vessel, for a quantity of wheat to be transported in said vessel from New York to Havre. There are four sets of these bills of lading, issued to three different shippers. One set aoknowledges the receipt of 7,939 50-60 bushels of wheat in bulk. Another set acknowledges the receipt of 15,000 bushels of wheat. Another set acknOWledges the receipt of 16,227 40-60 bushels of wheat, and another set acknowledges the receipt of 4,100 bushels of wheat. All these bills of lading are similar in form, and all contain the following provisions in print: "Weight, measure, contents, quality, brands and value unknown; not accountable for bursting of bags; not accountable for weight, measures, decay, breakage, or damage by rats;" and also the provision in writing, "quantity and quality unknown." In regard to the first set the breach alleged is the failure to deliver 3944-60 bushels of the wheat shipped; in regard to the second and third sets the breach alleged is the failure to deliver 462 4-60 bushels of the wheat shipped; in regard

820

REPORTER.

to the fourth set the breach alleged is the failure to delint 214 42-60 bushels of the wheat shipped. The answer denies all knowledge as to the quantity of wheat shipped; avers that it was expressly understood that the quantity shipped was unknown; denies any breach of the contract, and avers a delivery of all the wheat shipped under the bills of lading referred to. Under these pleadings the burden of proof is upon the libellants, and in order to recover they must show a deficiency in the wheat delivered, and the amount thereof. This has not been done. No witness has been called who undertakes to state or pretends to know the quantity of wheat delivered in Havre; and the case, so far as the libellants are concerned, is bare of evidence upon that point. But the master of the vessel is sworn by the claimants, and testifies, without qualification or dispute, that all the grain shipped was duly delivered in Havre; and in this he is confirmed by the circumstances that the bills of lading are produced by the claimants at the trial, a.nd musttcerefore be presumed to have been surrendered by the consigneeQ of the grain upon the delivery of the grain. r have not overlooked the testimony from which it was argued that upon the arrival of the steamship at Bristol, England, whither Jhe proceeded from Havre, that the master there sold wheat from the ves!:iel to the value of some nine pounds. The master's explanation of this circumstance is that he hac the ..teamer cleaned at Bristol, and what he sold was "sweepings" .f the value of five pounds, which he paid over to the owners. But if the facts in regard to this transaction be as contended by the libellants, (and I confess that the weight of the evidence appears to me to be with the master,) still it would do no more than create a suspicion. There would still be a total failure of evidence upon which it would be possible to find that any specific quantity of grain under any of the bills of lading in suit had not been delivered. The resuli is tha.t the libel mUBt be dismissed, and with costs.

MIDDLESEX QUARRY

00. V.

SCHOONER ALBERT MASON. 891

THE MIDDLESEX QUARRY COMPANY and others V:THE SCHOONER ALBERT MASON.
{District Court, 8. D. New York. May 25,1880.,
LIGHT-BURDEN OF PnooF.-In a case of the libellant must show, by a preponderance of the evidenCtl. taut a necessary light was set and burning.

R. H. Huntley, for libellants.

S. H. Valentine, for claimants.

CHOATE, D. J. This is So libel to recover damages sustained by the schooner Robert Smith, and her cargo, by a collision with the schooner Albert Mason, in the haroor of New Haven, on the evening of the eighth day of November, 1877. The Robert Smith was bound on So voyage from Portland, Connecticut, to New York, with a cargo of about 90 tons of brown stone. Between 6 and 7 o'clock she put into New Haven for So harbor, the wind being S. S. E. to S. E., and blowing hard. She came to anchor about two miles inside the light, on the west side of the channel, as the libel states, in about eight feet of water, at low tide. When she came in it was the last of the ebb. Between 8 and 10 o'clock the Albert Mason also came in for a harbor. She intended also to come to anchor on the west side of the channel, and in fact proceeded directly towards where the Robert Smith was lying at anchor, and to within a very short distance from her, when she undertook to round to for the purpose of anchoring, and just then her stern grounded. Before this she had taken in her jib and mainsail, under which she entered the harbor.. Up to the time of 80 rounding to those on board of her had not seen the Robert Smith. To work off the bottom she hoisted the peak of her mainsail, intending to work off more to the eastward. While doing this her master and others of her crew discovered something to leeward, and very near to them, which was in fact the Robert Smith, but which, as they say, they took for a wreck or a sunken canal·boat. They approached it So little