Symons v. 10,466 Barrels of Cement

195 F. 1017, 1912 U.S. Dist. LEXIS 1706

• Court: District Court, W.D. Washington
• Decided: April 27, 1912
• Docket: No. 3,608
• Status: Published

Opinion

HANFORD, District Judge

(after stating the facts as above). Thereal point of difference between the parties. respecting the amount of freight earned and the true balance due to the libelant is in the discrepancy between the weight of the cement specified in the bills of lading and the estimated weight of the cement discharged upon which duty was paid. The court construes the charter party and the bills of lading together as constituting the contract by which the rights-, of the parties are to be adjudicated. In the written arguments submitted I find a useless contention as to whether the amount of freight in American money should be computed at the rate of exchange fixed by the charter party, viz., $4.80 per pound sterling, or the rate specified in the bills of lading, which is $4.85 per pound sterling. This is not important, for the reason that according to the libelant’s testimony the total weight of the entire cargo was 3,857 tons, the total amount claimed to have been earned is $18,513.94, and payments on account which he credited amount in the aggregate to $18,008.74, the difference being $505.20, which is the balance sued for. This is only 34 cents in excess of the true amount computed at the rate of $4.80 per pound sterling. “De minimis non curat lex.”

■ [ 1 ] The bills of lading were prepared by the charterer’s agent and presented to the captain for signature, and, when signed, constituted a valid agreement as to the estimated weight of the cement, binding upon the parties, unless impeached by proof of a difference in the actual weight, which could only be ascertained by weighing the entire consignment or by a subsequent agreement adopting a different estimate. It is true that the bills of lading show the estimated weight of the cement received by the ship and the freight was to be paid only upon the weight of cement delivered at the port of destination, but the pleadings admit that all of the cement received by the ship at Antwerp was discharged at Seattle and Tacoma, and no claim has been made for short delivery. The respondent relies upon customhouse certificates showing the estimated weight of the cement upon which duty was paid, but there is no competent evidence to establish as a fact that the estimate made by the customs officers was more nearly accurate than the estimate which the parties agreed to by the signing and acceptance of the bills of lading. Therefore the court finds the weight of the cargo to have been 3,857 tons, and that the balance due to the libelant on account of freight earned is $504.86.

The respondent contends that the evidence does not disclose' the cause of the damaged condition of part of the cargo, and that the burden of proof rests upon the libelant to overcome the presumption ¿rising from proof that the barrels were in good condition when received by the ship by proving that the damage was caused by a fault for which the charterer is responsible. The court finds, however, that the evidence does prove that the cargo was well stowed, and that the breakages and leakage were the natural consequences of shrinkage of the barrel staves after the cargo had been stowed. Whatever loss was caused thereby and the expenses of reconditioning the barrels to make them fit for handling is to be born by the charterer and not by the ship.

[2] A ship is responsible for the preservation of the cargo from the time of receiving it until it is discharged and her captain has authority to incur any expense necessary to the fulfillment of that, obligation, and the ship’s lien upon the cargo includes such necessary expenses if rightfully chargeable against it. In- this case it was the right and duty of the libelant to recooper the barrels on board the vessel, and to charge the expense against the cargo, because that was necessary to minimize the loss by leakage, and it would be unjust to allow demurrage during the period of his delay in performance of that duty.

[3] There was delay caused by an excessive accumulation of matter upon the wharf and lack of space to receive cargo when the ship was ready to deliver it, and by displacing the' vessel in her berth to make room for another vessel, and for that delay the libelant is entitled to demurrage. I consider that demurrage at the rate specified in' the charter party for five days time is- justly chargeable, for which the ship is entitled to a lien, and it will be decreed accordingly. - ■ The evidence proves that there was an actual expense amounting to $25 for recoopering which the libelant paid, and most of the work óf recoopering was done by the crew of the ship. I consider that the claim of $100 for reimbursement and compensation is reasonable, and that item is allowed.