J'EDEBAL.
KINSMAN V.Cs:INA MUT. INS. CO. (lXBWIct Court, D; Mas8achmetts. IL\BIMI l'BBlJlUlIIOB-INBURABLIll INTEREST-TOTAL
December. 7, 1891.
Loss. it appeared that libelant had an insurable interest in a vessel by reason of advances exceeding the amount of the policy sued on, and that the vessel had sustained damage from perila of the sea, and' could not be made seaworthy except at an expense exceeding .her value when repairE'd. thus a total loss, within the meaning of the policy, h.eZcl, that libelant was entitled to recover against the insurance company the amount' of the polioy.
In Admiralty. Libel to recover on policy of marine insurance. E'/!-gene P. Carver, for libelant. John, D. Bryam, for respondent. NELBON,Distdct Judge. The libelant" as managing owner, had, at the date of ,the, ,policy of insurance, an insurable interestin the barque Elba White, by reason of his advances made on acco,unt of the vessel. TheprQtest"ofthe master and mate and the surveyor's certificates are c.ompetentevidence in the case, and, with the testimony of Darling, are sufficient to :prove that the injury suffered by the Eliza White from perils·Qf the. sea,' previous to her arrival at, Nassau, a port of distress, were so great that she could not be repaired so as to make her a seaworthy vessel, except at an expense exceeding her value when repaired, and this constituted a case of actual total loss, within the meaning of the policy of insurance. The testimony of the libelant is sufficient to prove that his advances .exceeded $1,000, the amount insured by the policy, and that the defendant had notice of the loss in September; 1883, and waived all further proof of the loss. Decree for the libelant for $1,000, and interest from December 1, 1883, and costs.
THE FROIlNlm. GULLICKSEN 11. CHICORA FERTILIZER
Co. fit ale
CDi8trIct Court. D. South Carolina. February 23, 1899.) II'UIG!lT-CABGO "INTAKEN"-AlIfOUNT-INTENT OF PARTIE&.
Where a charter-party provides for a certain rate of freight on "about 1,500 tons" of Iron ore "Intaken, "-the original word "delivered," in the charter-party, being stricken out, and the word "intaken" written in,-and the master, at the port 01 loading, being without opportunity of weighing, demanded 1.575 tons, which amount was promised him, and a bill of lading made out therefor, and assurance given the master that he had that amount, and the ship, after a safe voyage without incident, delivered only 1,500 tons, no question of short delivery being raised, but only the question whether freight should be paid on 11575 tons or on the amount delivered, h.eld\ that the parties had agreed at the port 01 loading as to the number of tons on whicn freight should be paid, viz., 1,575 tons.
In Admiralty.
Libel to recover balance of freight.
mE FROGNEB.
877
Bryan. &- Bryan, for libelant. J. N. Natha'[t8, for respondents.
District Judge. Respondents are the purchaser from H. G. Mayer & Co. of a cargo of pyrites, and the agent of Mayer & Co., who also is guarantor ofthe freight. Mayer & Co. entered into a charter-party with the owners of the steam-ship Frogner, under which she took, in at Pomaron, on the coast of Portugal, the cargo of sulphur are, or pyrites, sold to the Chicora Company. The charter-party provided for a cargo of alout 1,500 tons of pyrites, not exceeding what she can reasonably stow and CaJTY, to be discharged on Ashley river, Charleston, S. C., on being paid freight at the rate" per ton of 20 cwt. intllken 16 (sixteen) shillings." The original charter-party had the word" delivered" in print. It was stricken out, and the word" intaken" written in its stead. The freight is payable on unloading and right delivery of cargo. The master could sign bills onading, if required, at any rate of freight, but without prejudice to charter-party. The steam-ship loaded partly in port, and finished loading at sea. The ore was weighed only at the mines, some 40 miles away, was carried by rail, and dumped into the ship, a part from the quay and a part from lighters. The master demanded a cargo of 1,575 tons. This was promised to him. Before cargo was all delivered, a bill of lading for 1,575 tons was prepared by charterer, and presented to the master for his signature, and he signed it. Afterwards the agent of the charterer at Villareal stated to the master that be had shipped 1,575 tons. After a safe voyage without incident the steam-ship reached this port, and delivered cargo. Its delivery weight was 1,500938-2240 tons. No question of short delivery is made. The only controversy is, shall freight be paid on 1,575 tons, or on the number of tons delivered? Is the freight to be paid upon the number of tons attributed to her at the port of lading, or are we bound to conclude that, as only 1,500 938-2240 tons have been delivered, and there is DO question of short delivery, this was. the amount "intaken," and not 1,575 tons? lfthe number of tons delivured is conclusive evidence of the number of tons intaken, the careful erasure from the charter-party of the printed word" delivered," and the insertion of the written word "intaken," was an idle ceremony. This would assume and give to respondents the full benefit of the assumption that the weight of the cargo is fixed by a definite, certain, inflexible, and unchangeable standard; that there can be no error or fluctuation, loss of quantity, or diminution in weight; an<l,that the:exHCt number of tons which went in at Pomaron would come out here. The evidence discloses the fact that the weight of the the output at the port of delivery seldom, if ever, agree. The contract of sale produced in case provides for 20 per 'cent. of smiUls,; that is, the fine powder by abrasion of the particles of are. This shows that lumps of pyrites disintegrate, and that the amount oCdisintegration lllay reach20 lJercertt. A part of the evidence was a bottle of sample are sent kept sealed. The bottom of this bottle is filled i
878
FEDERAL REPORTEB,.vol.
49.
with a fine powder,-debris of the ore. The adoption. of the rule suggested by respondent prevents the vesseUrom asserting this. The master demanded 1,575 tons. He was assured that he had this number, of loading and. at Villareal de San Antonio, a port of both at the call provided in .the charter-party. The bill of lading prepared by the agent of thecha.rterel' called for 1,575 tons. It is. manifest, therefore, that this is. the amount attributed to. cargo by both parties at the port number of tons of lading.. The .freight was to be .regulated by the port of lading. In effect, it fixed' the intaken, and to be fixed amountof freight which the one party agreed to pay, and which the other party expected to receive, as the compliance with and the result of his demand. ,The manner in which the ship was loaded from a train of cars, partly nt the quay and by lighters at l;lea, precluded the master from weighing it himself. The charterer was thepurchilser of this cargo, and expected .to sell it Rgain. The ship could reasonably trust that he would not overstate tbecargo he was getting from the mines. When he made his demand, the master calculated upon 1,575 tons, at 16 shillings per ton. By their assurances the agents of the charterer prevented his expectations. In my opinion; both parties him from 1,575 tons was the weight of the cargo intaken, agreed to and adopted that as the numbpr on which freil(ht should be estimated. See SpCfight v. Fbmworth, 5,Q. B. Div. 119. Let a decree be in accordance with this opinion·.
THE SANTA ANNA MARIA. FORACr. tI. SALINAS.
(Dl8trlct Oourt, D. Bout'll Oarol£ft.lJ. GBNBlUL
February 27, 1892.)
An Italian bark. through collision, sprung' a leak and thereafter jettisoneCl some of her spare furniture, as well alii part of the carlil'0. On an adjustment In ·general average a certain sum was !lharged against the cargo. and the owners thereof objected that the jettison was unnecessary. This suit was brought to recover the amount charged. against. the cargo In the adjustment. The evidence Indicated that thel'e was great exaggeration. both In the alleged condItion of the .bark a.fter the a.ccldent, and.ln the number and value 0( the lie/d. that libelant must malee· out his case bov a preponderance of credible evidence. and. In view of the Impression of exaggeration given by the evidence, such articles as were not olearly proved to have been jettisoned should be exclUded from the general aV8rA$e adjustment, the otilers being allowed.
EXAGGERATION-STRICT PROOP.
10 Admiralty. Suit to eufo.rce adjustment of general average. J. N. Nathan. for libpJant. . . . .J. P. K. Bryan and D. B. Gilliland, for respondent. SIMONTON,
wason
District ,Judge. .'i'he,Santa Anna Maria, an Italian bark, the port of Charleston. She had II,
