E. Lobe Co. v. The Guy C. Goss

53 F. 839, 1892 U.S. Dist. LEXIS 128

Opinion

HANFORD, District Judge.

The libelant sues as a corporation. Its legal existence and right to sue is pat in issue by the answer, and there is no proof of its organization. For this cause, if no other, the libel must be dismissed.

I have, however, read all the evidence, and find that to sustain the allegations in the libel of damage to libelant’s goods by the unsea,worthiness of the ship, bad stowage, want of proper dunnage, “negligence, carelessness, and improper conduct and want of attention of the master, his mariners, and servants,” there is no proof whatever, except testimony showing that certain goods, when delivered at Seattle, were in a damaged condition, the damage being by breakage, rust, chafing, sweating, and dampness. The hills of lading contain a clause exempting the ship from liability for “leakage, breakage, or rust, except from improper stowage.” To warrant a decree awarding damages, the libelant must prove affirmatively one or more of the faults of the ship, her master or crew, which the libel charges. Clark v. Barnwell, 12 How. 282; McKinlay v. Morrish, 21 How. 343; Transportation Co. v. Downer, 11 Wall. 129. The evidence fails to do so. It does not go more than half way towards making a complete case. Therefore the court decrees that the suit be dismissed.