THE MASCOTTE.

119

tended cargo cnn be conveyeato the port. Hv..lhon' v. Ede:. mpra, affirmed in L. R. 3 Q.B.41Z;·Eleven Ooal, 12 Fed. Rep. 185. As I am of opinion that the issue must be found for the defend· ant, there will· be an order entered dismissing the Ii bel at libelants' cost.

THE

et

L'

MASCOTTE."

Cu. v. THE

MASCOTTE, (two cases.)

(Dt6W'Wt qourt, So D. New Yor1G.

;' . 'UIider the ordiuary biUof ;lading, the burden ,being on the oarrlerto abow·tllat .. ;, to cargo ariaes from an e]tl)eptedperil,tl;le carrier is liable when he baa re. ceived cargo in good condition, and delivered it damaged, and is. unable to explain how the damage occurred.. ' , o " . '. ' '.' · Toa,cargoes to the "port of New York" are, by custom, dlscb,arged on the New York side ottbe Eaatriver; Ithaa also been customary, when there lit diftlculty. in prllCiuringa, berth in New York, for the ship ,to give notice tbereaf. to the conaignees o( the tea, that they may have,0Ilportun,ity of tb,e a berth in New York. The ship Mascotte, with tea,aIid other cargo. arnved III the port of New York and W&ll eotered,attbe cuatomTbOull6 at 10 O'clockMonday, and COuld have tHlpn after. Ath&J.(paat 1 ou Wednesday, no berthhaving been found' for b"r in New York by b:er agents, abe \Vaa sent to Brooklyn; two , ConSlgn86sof paMilJ:of tbe cargo of same tea ,assentingthereto.Sbortl,t "fterwal"ds bel' of a berth in New York. No notice of herinabilitY to find a hert.hin New York was given to the priIicipal consignees of the tea. Held., tbat the ship 8h041<\ bear the extra expense to tbe consignees of teaoaused. by transporting the cargo from Brooklyn to New York. The Port Ade).aide, 88 Fed. Rep. 158. · " ' , " ''" '
, DAHAGE.,

.. BAH'B-PLACB 011'

In Admiralty. Snit to recover for damage to cargo and extratapense caused by ship's docking in Brooklyn. Owen, Gray &: Sturges, for libelants. Convers &:Kirlin, for claimants.
BROWN, J. 1. As respects the claim for damage to tea caused by oil, the bill of lading, 8S well the master's testimony, shows that the' chests wete received on board in good condition. Some of the chests 'on delivery were,beyond doubt,oil-stained and defaced. All that the claimants can do to exonerate the ship has doubUess been done; but, after all, the evidence shows nothing more than that they cannot explain' how the stains and defacing occurred. It negatives certain causes that might, under some circumstances; have produced the damage; but this is not, I think; suffiCient to release the ship from her legal obligation. The ship bas possession and control of the goods from the time they are delivere'dinto her custody.: If the goods are received in good condition, as this·bill of lading shows they were,sne warrants their delivery in like
I

ReporWd by 'Edward

Esq., of the New York'bat·.

120

FEDERA:L REPORTER,

vol. 48.

condition, unless damaged through, the :act of God, public enemies, the the seas, or through some other excepted cause. The Montana, LiVerpOol G. W. Steam Co. v. Phenixln8. 00.,129 U. S. 397,437,9 Sup. Ct. Rep. 469. The burden of showing that the damage arose from such an excepted cause is upon the ship. NeUJon v. Woodruff, 1 Black, 156. As the Mascotte's evidence does not show this, but merely leaves the damage unexplained, I must therefore hold the ship liable for this item. 2. As respects the extra ferriage caused by the delivery of the tea in in New York, I think the Brooklyn, instead of within the tea libelants are also entitled to recover. The evidence in present case, like that in the case of ThePort Adelaide, 38 Fed. Rep. 153, leaves no doubt of the long-establi!:lhed custom that cargoes of tea shipped by the bill of lading for "the porto'r New York" are to be delivered within the tea district on the New York side of the East river, and n9t in Brooklyn. The.Masootte, in the preilenf£ase, had sulphur and dce for part 'of her owners ofthose parts ofthe 'cargo and ofa little tea consEmten to'the discharge of the steamer in Brooklyn. I do'not perceive, however, how that circumsta,nce can· impair the right oft4e other con· tea forming an iD1portan:t part, if not the major part, of the whole cargo, to have a delivery of their goods made in accordance with t;hetUeil.tii,J;lg oithe billqf given for them, as thafmeaning is fixed by the lqng-Prevailing u88ge,. or how the obligation of the ship is changed period th,at mixed cargoes in respeCl'i}lereto. It i$ only within a containing tea have been ,brought from.Chinaj and not more than half a dozenve$sels are mentioned as having gone to Brooklyn with. such after several days, it had been found impossible to obcargoes, tain a berth on the New York side. Even in these few cases, the most that was claimed on behalf of the vessel was that she should be allowed to gotqBrook3ynafter the lapse of three or four days from the time of her entry at the cllstom-house. Until the lapse of 48 hours thereafter, delivery could not'he commenced. In the present case the 1 on the vessel was entered at 10 o'clock on Monday. At Wednesday following a berth was engaged in Brooklyn, her agents in the mean' time n<;>thaving .found a berth in New York. Within an hour if not on the day before, (about which there is some or two dispute in the evidence,) they were notified of a berth ready for the ship. iI). New York, which was declined. The evidence shows that since the case of The Port Adelaide the number of docks for the discharge of tea on the New York side wi.thin the tea district has been somewhat diminished of cer4tin docks Jor railroad uses. In the change by the that circumstances enforce, ,it may be that, notwithstanding a prior custom, a vesser. is not bound to wait unreasonably in order to discharge within the customary liInit, where these liinits,themselves have been abridged. Wbell difficulty has been experienced heretofore in finding a berth within. the tea district, the evidence shows that the practice has been to give notice thereof to the consignees of tea, that they may have an opportunity to.assist in ,finding such a berth befQre the ship goes to.

THE LUCY P. MILLER.

121

Brooklyn. Had this practice been followed in this instance. the evidence leaves no doubt that the vessel would have been berthed in New York before she reached her berth in Brooklyn. Such a practice is a reaBQnable mode of enabling consignees to save themselves from the extra expense of a discharge elsewhere. and outside of the customary limits; and where such a berth in fact might, upon inquiry of the consignees, have been found within a reasonable time, had notice been given to the consignees of the inability of the ship to find a berth, and of the proposal to go to Brooklyn, it is the ship, and not the consignees of tea, who ought to pay the extra expense of going there, whatevermay be the venience to the· ship, or to the consignees of other goods that the. ship may have chosen to take on board. Decrees for the libelants in both cases, with costs.

THE HALL

LuCY

P.MrLLER,1

v. THE LuCY P. MILLER.

(District Court, S. D. New Yor1c. October 21, 1891.)
SALVAGE-STANDING BY VESS:EL 4GROUND.

A steamer ran aground· in the East river. near Hell Gate, early in the evening, during a dense fog. Her master signaled for help,and libelant's tug went toherassilltance, and lay by her all night, most of the time pumping to keep down the water in her hold: No other tugs appeared during the night, thongh distress signals were occasionally sounded. It was important for the steamer to have aid at hand during the night, in case of emergency, and to keep down the water in her hold. Iii the morning,when the fog lifted, other tugs camel and all together took the steamer off the rooks to a place of safety... The value. 01 the steamer and her cargo was about $38,000. .Held, that the service of the tug was a Salvage service, and she was allowed (the other claims being settled) an award of '750;

In Admiralty. Suit to recover salvage. Peter S; Carter, for lloelant. Goodrich, Deady &- Goodrich, for respondent. BROWN-,J. Early in the evening of April 15, 1891, the steamer Lucy P. Miller, in going east through Hell Gate', against theebbLtide, just .after she had passed Hallett's point. was caught by a sudden and dense fog, and ran aground close to Hog's Back, heading nearly parallel therewith to the eastward. It subsequently appeared that she had run in between two rocks, which crushed in her bottom, and made holes forward on each side about six or eight feet from her keel, through which she made water rapidly. Her master sounded signals for help, and the' libelant's tug, H. W. Temple, which was lying llt anchor'fat Astoria response to ,the signals, went to the Miller's assistance, reaching .her about 8 o'clock 1>. M. The tug was ,.fitted' up ",ith the usual wIeck, .. (.. 'J" · .

"RePorted by Edward G. Benedict. Esq., of the New York bar;.