vol. 51. ':; Thb':oPifiii%Sh''belG'W', fl11'80+ farqi.s:'itncpnoerns,tMs
'as well!

follows.

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'om'm\n'l<! 'aM

W..

boatd.'lh

testilnony. 'sllows that·: the'c!iest8,wete"recel ved on ; ;the

caused

b . ·. ..' . ". 88. ,.\lee.D.. :d. . e. . .h' . ".t,be. e.Vid. . ?lore th. a.n ,Qat. ., .. Cl:J.. Q,qo ..}. 'th.e 8.ta.. inl'l and. defa,cing.o. . .· . . Hne.,g., ative, tmrtain causes tha't; might, undei" somecircul'nstahCgJ;'have 'produced but I to releaile Milp from her ! The'18hip has, andcontrQI .ot .the' goods' from' the ttmertlhey are deliveredi.inlloher cUlltUlY.·" [f t he,ga<X!s reQei vel'Lin good conditliohi as ,this bill, of 1ading tl)"y we,Jle" s1l1:1 warraJM' tqeiJ;dl;li y,err p. '.IAk . . Opd.,il., ion. '.. unles11 da.m,. g.edt,.h gh tb.e a.. ct o(Gqd. p ',:r-iverpool & th.e ...·......"' .. . . . .. . ... .. illS, cause. G. W. stea:m Oa. v. pheni:b Tna. Oo.,129'U., ,8...,97, 437, 98tip.Ct·. Rl'p. 469. The tiu'ta4q.of showh'ig tlfat'the damage arose from such an' cause Is tl'pontlle·sblp. 'Nel8o"'>v;,W<JOdrujf;lBlack. 156. As evi.. denoeldoes nob show this.,butmerllly'leaVilS,thedamage I1ne¥plalne4, I must shipllable. (or .tbls &' 1{irlilfl.,' (J. 'Pd:i-ker Kirli'A,' 'Of cotinllel,) for appellants.. EdtlXlil'dL. LOwen" 'forappellees· . afii!tl::u\ooMBE,: it,'1'c11it Judges, and·SaIPllAN, Di&trictJtidge; " , "
i.

';'

'j

the learned1district judge who decided this cause in the court below, that the libelants have a sufficient case for the recovery of their damages, by reason of nondelivery of their cargo in good order and condition. The burden of proof is on the steamship to overcome the effect of the acknowledgment in the bill of lading of the reception of oil board" in good order and condition," and the evidence introduced on her behalf is not sufficient. to overcome etlect.loi· this The .decree is affirmw.' ·

the

No. 'l8.

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:"te. a,

The oustbmtottbe port of New' York requfringcargoes of tea to 'be dfschBt'lirlid in: tlle ...tll.e ...Nll.W. 1fO ..t;kSide.of.the. Jl:l1o".I1,r,iver· d.Oe& Qot.apPly to a. gener. ShiP.. . . . QOIl,BIs,ts o!,.Wll,·' anp where, a ship ,endeavor.ad for hllarly thtelldays. Withott'b success. to obt3l11a ',bertli ih such dtstrict, and. afterw,Ji'ls elsewhere, which WM;adceptable to the (lonslgneesof the relt. of the cargo, she was not liable. for the inoreased coatcBWied b,¥ diaclllqgiD.i

Oll' J:10R'l'.

.

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tea t.here. 48,Fed; H.'ep. 119,

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tIlE.
j

HASCOTTJC.

60'f

;!Appeal from the Distriot CQu,rt ofthel:TDited States 'fortl;re Southern :District Of New York. . . In Adiniral\y. Libel by Carter and others' against the steamship Mascotte' for breach of c6ntract'by bill of lading. .The cause was 'tried below together with another libel by the same parties for damage to Decree for libelants. 48 Fed. The claimants of the vessel appeal. Reversed. . Gmvers Parker Kirlin,of counsel,) for appellants· . Edward L. Owen; for " BeforeW.A.LLA.CE and LACOHBE,Circuit Judges, and SIIIPHAN, Districi JUdge, . ': '

«

WALIa'dE, Circuit, Judge. This is a libel for breach ofcontract by bill oflading,' whereby the steamship undertdok to transport certlUll teas from and delivel'thenutthe port'of New York.. Thespecifie breach·charged is that, "bythel1suaJ and well-known custom of the tea trade iio:the city York, teas:arriving from the port in said bill oflad· ing mentioned are to be, and always are, delivered in a certain and custom" ll.ry withinthe tea district,on the New York side oithe East ri\rer, .'Whereas the stearil:ship' discharged the teas' at another place within and thereby put the :libelants to additional expense in transto the proper place. The teas were shipped as part of a general China cargo,of which about 400 tons was tea, about 2,000 tons was rice, 1,100 tons was sulphur, and the rest was a miscellaneous of Chinese steamship arrived in the port of New York ,:May' 17, 18tH,' and. was entered atthe customhouse on the 18th; From her arrival, and up to May 20th, at noon, her agents at New York endeavored to' obtain a berth within the tea district, in order toaedommodate the!ea;,consignees; but wereunablt' to do Docks are allotted to discharge in the portof,New York by a public officer,a dock'master.' When the dock master ,for. the tea district was applied to by informed them "emphatically that there was no berth for tbesteamer" but there might be room towards the latter part of the week." On tne morning of the 20th (Wednesday) the agents,found that, although there was a possibility of getting a berth somewhat earlier, it was improbable that one could be obtained before the next Monday. Thereupon they engaged a berth at Beard's wharf, and the vessel proceeded there on the same day, and began discharging on the next. The consignees of the rice and sulphur had requested the agents to discharge her there, it being a customary place for the discharge of rice and sulphur. After the berth had been engaged, but the same day, and before the steamer proceeded there, the consignees of the teas notified her agents that they would procure a berth within the tea district on the following day,and protested against the proposed discharge at Beard's wharf. n seems that there had been some change in the situation by reason of which the dock master found himself able to accommodate the consignees of the teas.

608

FEDERAL REPORTER,

vol. 51.

The sbip.per of goods byagenerat Ilbip has. no right to expect that his convenience is to be regarded by the carrier as pata,m,ountto that of others who may send,their goods on the same voyagetp ;the .same portj and before he can complain of the loCtt8of a delivery, when it is a place within the port reasonably convenient for all the consignees, he must show the existence of some usage requiring a delivery el,.$ewhere. When such usage is shown, the law implies that all interested-sbippers, conconsented to be boutJd hY it. But in the signees, and absence of such usage, when there are several consignees, the carrier's satisfied by a delivery at It 'place suitable and J,'aaBonably convenient for all. Hutch. Carr. § 359; Teilman v. Plock, 21 Fed. Rep. 351; The E. H. Fittler, 1 Low, 114; V08e v. AUen, 3 Blatchf. 289. In the p'resentoase, while the evidence is ample that place of9e1ivery in the port of New York for tea cargoes in bulk is within the tea district, it does not establish any usage which applies to the facts. It is 3;comparatively rl:1centoccurreUQethat teas have come into the port {)f NeW.York as a minor part of a mixed cargo, and.we do not agree 'With:the,district judge that· the usage.. which requires that cargees of tea for the port of New, York are to be delivered within a certain, district on the::New York side of the East river compels a delivery at that point ofaxninor portion of the cargo, against the known wishes of the consignees of the larger portion. The practice shown in some instances, by which masters or agents of vessels have invoked the assistance of tea consigneesin finding a. berth for theirvessels,does not rise.to,the dignity of a usage. We think the steamship performed her whole duty to the libelants. She was under no obligation to discharge in the tea district, but, in the attempt to accommodate the tea. consignees, she made all reasonable efforts· to procure a. berth there, in order to do so. After this she engaged a berth elsewhere, which was not only acceptabl",totheother consignees of the cargo; but was the one preferred by them; and the libelants had no just reason for complaint because she went there. The decree is reversed and the cause remitted, with into the district court to dismiss the libel, with costs of the districtcomt and this court to be pftid by the libelants.'

WARDENS, ETC., ST. LUXE'S CHURCH 11·. SOWLES.

WARDENSjETC., ST. LUKE'S CHURCH

(Owcuit OOUrt, D. Vermont.

FEDERAL CoURTs-J"URIBDIOTION.

V.

SOWLES et al.

22,1892.)

A suit in a federal court an.executcr, to recover a legacy wberein a receiver of a national bank which held assets of the estate is party defendant, will be dismissed, on demurrer. as to the executor for want of jUrisdiction, when all the parties are citizens of the same state.

InEquity. H. Charles Royce, for plaintiffs. Edward A. Sowlea, pro Be. WHEELER, District Judge. The defendant Edwnrd A. Sowles was executor of the will of Susan Bellows, and trustee under the will of$5,000 for St. Luke's Church, without bonds. He rendered an account as executor, March 30, 1881, to the probate court having jurisdiction, in which he represented that he had paid all debts and expenses, and had in his hands more than sufficient assets to pay all specific and general legacies. Thereupon the several legacies were decreed to be paid by him, and among them this one to himself, "in trust for St. Luke's Church, in St. Albans, $5,000," and the residue of the estate was decreed to the residuary legatee. Some of the assets of the estate came from the executor to the First National Bank of St. Albans, of which the defendant Witters is receiver. This bill is brought, alleging that this legacy has not been paid, nor provided for, to reach these assets in satisfaction of it. The bill is demurred to by the defendant Sowles, and the demurrer has been heard. The parties to this suit are all citizens ofVermontj therefore this court has jurisdiction of only so much of it as arises under the laws of th& United States. 25 St. at Large, p. 434, § 1. The receiver of the national bank holds what assets he has by virtue of those laws, and the suit, so far as it is against him, arises upon them. Sowles v. Witters, 46 Fed. Rep. 497; Sowles v. Bank, ld. 513. But the suit, so far as it is brought against the defendant Sowles, proceeds upon his liability as executor and trustee, and arises wholly upon the laws of the state. Bellows v. Sowles, 57 Vt. 411; Weeks v. Sowles, 58 Vt. 696, 6 At!. Rep. 603; F088 v. Sowles, 62 Vt. 221, 19 Atl. Rep. 984. The laws of the United States afford the plaintiffs no right, and him no defense, and nothing between these parties can arise upon them. The demurrer of defendant Sowles is sustained, and let the bill be dismissed as to him, without costs, for want of jurisdiction. v.51F.no.l0-39