Burns v. Burns

S.D. New York

Burns v. Burns

125 F. 432, 1903 U.S. Dist. LEXIS 95

CourtDistrict Court, S.D. New York

DecidedOctober 15, 1903

StatusPublished

Cited by1 cases

This text of 125 F. 432 (Burns v. Burns) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burns v. Burns, 125 F. 432, 1903 U.S. Dist. LEXIS 95 (S.D.N.Y. 1903).

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Opinion

ADAMS, District Judge.

This is an action which was brought to recover certain unpaid freight and 21 days’ demurrage on a cargo of' 307 tons of coal delivered by the libellant on his boat Annie Burns at the foot of 38th Street, North River, in December, 1902. It is not disputed that the freight, amounting to $99.54, is due. The libellant also claims 40c. per ton on the coal, in conformity with a bill of lading, which is produced. The respondent admits that there is freight and demurrage due to the extent of $223.32 and that amount has been paid into court.

The controversy arises between the libellant’s claim of demurrage at the rate of 6c. per ton, which is mentioned in the bill of lading, and the rate of $6 per day for the boat, which the respondent says was agreed upon as the rate which was to be paid.

I do not regard the bill of lading as evidence of the contract with respect to demurrage, under the circumstances developed by the testimony. It appears that this form of bill of lading is the one-used for eastern shipments and that it was delivered to the libellant by mistake and without intention of changing the agreement of $6 per day, which I find was made when the rate of freight was agreed upon.

The libelant is entitled to recover the money in court with costs up to the time of the tender, including a docket fee, less the respondent’s costs, since the tender. Decree accordingly.

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ADAMS, District Judge.

This is an action which was brought to recover certain unpaid freight and 21 days’ demurrage on a cargo of' 307 tons of coal delivered by the libellant on his boat Annie Burns at the foot of 38th Street, North River, in December, 1902. It is not disputed that the freight, amounting to $99.54, is due. The libellant also claims 40c. per ton on the coal, in conformity with a bill of lading, which is produced. The respondent admits that there is freight and demurrage due to the extent of $223.32 and that amount has been paid into court.

The controversy arises between the libellant’s claim of demurrage at the rate of 6c. per ton, which is mentioned in the bill of lading, and the rate of $6 per day for the boat, which the respondent says was agreed upon as the rate which was to be paid.

I do not regard the bill of lading as evidence of the contract with respect to demurrage, under the circumstances developed by the testimony. It appears that this form of bill of lading is the one-used for eastern shipments and that it was delivered to the libellant by mistake and without intention of changing the agreement of $6 per day, which I find was made when the rate of freight was agreed upon.

The libelant is entitled to recover the money in court with costs up to the time of the tender, including a docket fee, less the respondent’s costs, since the tender. Decree accordingly.

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125 F. 432, 1903 U.S. Dist. LEXIS 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-burns-nysd-1903.

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