The Colon

6 F. Cas. 150, 10 Ben. 366

• Court: District Court, S.D. New York
• Decided: March 15, 1879
• Status: Published

Opinion

CHOATE, District Judge.

In this case the

salvage service rendered by libellants to the steamship Colon involved damage by detention to a part of the cargo of the Aetna, the salving vessel, consisting of bananas, and the co-libellants, the owners of the fruit, having been held to be entitled to recover in this suit the loss sustained by them on account of its detention from the 24th to the 2Gth of August, this part of the amount due the libellants was at tlie trial, by consent, reserved to be determined by a reference to a commissioner, instead of being determined by the court on the trial. The commissioner has reported the amount of loss, basing his conclusion on the facts found by him, that if the fruit had arrived on the 24th, it would have then been in a sound and merchantable condition, and that its market value on that day would have been $1.98 per bunch. To this report the claimants have excepted, on the ground that upon the evidence the fruit was not sound on the 24th of August, and that the estimate of market value was excessive. I think the report of the commissioner is fully sustained by the evidence. As to the condition of the fruit, it was shown to have been green and freshly cut on the 17th, when shipped. The evidence is that such fruit stands a voyage of seven days, and so far as it was actually observed before the 24th, it was in good condition. It is not a just conclusion from the testimony of those who saw it on its arrival and who gave their opinion as to its prior condition, that it had become unsound or unmerchantable on the 24th. As to the value fixed by the commissioner, the testimony of several experts in the trade gave prices ranging from two dollars to two dollars and a half per bunch for the 24th. This evidence was clearly competent, there being no sales in the market fixing the price on that day. The commissioner very properly took into consideration the actual prices realized for fruit of the same quality, which arrived on the 31st of August and which netted for the entire consignment $1.-83. The other consignments, which claimants insist should also be considered, were too remote in time or unlike in quality, and afforded no proper standard of comparison. The testimony justified the conclusion that the market for the Aetna’s bananas on the 24th and a few days next thereafter, would have been better than the market was for the fruit that arrived on the 31st, and that on the 24th the market was bare. This circumstance was not of that extraordinary character that it should be considered as beyond the purview of the parties, or a circumstance affecting the damages which could not have been foreseen as likely to happen in this particular trade in perishable fruit, supplied, as it was, at intervals to the market of New York through pretty regular shipments by steamer and irregular arrivals by sailing vessels. The Aetna and the Colon being both in this trade the parties are clearly to be hold to be familiar with the peculiarities of the market. The damages were therefore properly placed somewhat in excess of the prices realized from the next succeeding consignment, and the price of $1.98 adopted by the commissioner did no injustice to the claimants, the excepting party. Exceptions overruhd, with co.-ts to the co-libel_ants, from entry of order of reference.