The Nadia

18 F. 729

• Court: United States Circuit Court
• Decided: November 15, 1883
• Status: Published

Opinion

Pardee, J.

Prom these facts it is easy to see that the Nadia was not lightered with proper dispatch, but, on the contrary, was so negligently, carelessly, and slothfully lightered as to justly entitle her owners to demurrage. Proper dispatch would have commenced the lighterage on the eleventh of March and concluded it on the nineteenth of March, allowing for one Sunday and one bad-weather day to intervene. It is therefore necessary to inquire, (1) what was the contract between the parties as to dispatch in lightering the Nadia ? and (2) was the contract complied with by libelant ?

On these questions the burden of proof is on the libelant; for, before he can recover for his lighterage services, he must excuse himself for the want of that dispatch and diligence which he was ordinarily bound to exercise. As to what was the contract we have only the testimony of libelant on the one side, and Mr. Lingham, one of the respondents, on the other. Capt. Fisher’s evidence on the subject must be disregarded, for he is contradicted by the libelant, and by Yaughan and Lingham, as to the parties who made the contract, and by Lingham as to liis presence when the contract was made, and by libelant and Lingham as to the details of the contract. He evidently was not present, and only knows what the contract was from what Heidenheimer told him. Yaughan, one of the respondents, admits that he only knows the details of the contract from what his partner, Lingham, told him. The libelant substantially swears to the contract as alleged in the amended libel. Lingham testifies on the subject as follows:

“ It was agreed that the vessel should be lightered with due dispatch. At the time the contract was made, Mr. Heidenheimer, before concluding it, reminded me that ho had to lighter the steamer Alvah under a contract made by his agents at Liverpool with Messrs. Yaughan Bros. So Co. of that city, with which latter contract Messrs. II. A. Yaughan & Co. had nothing to do, except as agents of Vaughan Bros. & Co., to see that it was carried out. I informed Mr. Heidenheimer then of the time the Alvah had sailed, and when she was due here, which would allow him nine running days in which to lighter the Nadia before the Alvah arrived, and that he would have ampio time to finish lightering the Nadia, (which was then at the port of Galveston, and was ready to be lightered on the morning of March 11, 1881,) provided lie would furnish his lighter daily. He then assented to my views as expressed, and agreed to undertake and complete the lighterage of the Nadia. It was understood that when tlie Alvah arrived Mr. Heidenheimer was to proceed to lighter that ship, which would require two lighters per day only,-but it was also agreed that he should proceed with due dispatch and lighter the Nadia before the Alvah arrived, provided he had the time. I told him he would have, and tills he did have.”

This statement of the contract between the parties must be taken as the true one, because the burden of excusing want ot' diligence and dispatch is on the libelant, and because this statement is more consistent with business ability and fair dealing on the part of the consignees’ agents than the extraordinary contract claimed by the libelant, which in effect subordinated the interests of the Nadia and the consignors of her cargo to the general interests of the libelant’s lighterage business, and to the advantage of other ships to arrive. Besides, the libelant’s sworn statements in the progress of the case have not been so consistent as to favorably affect the consideration of his evidence when in direct opposition to that of an equally good witness in character and knowledge of the matters in question. In the sworn libel it is stated that the contract price for lighterage was $1.96 per ton. On the trial in the district court, libelant, in testifying, was uncertain as to the rate agreed, upon, and admitted that it was $1.65 per ton. In his deposition since taken he is positive and certain that the rate agreed upon was $1.65 per ton, with a drawback of 10 cents per ton.

In the amended libel it is stated that when the contract for the Nadia was made, libelant was then engaged in lightering the Alvah, and that the Cumberland, under contract also with him, soon after arrived, while the fact is now conceded to be that it was the Cumberland that was here, and the Alvah did not arrive until after sufficient time had passed to have finished with the Nadia, had proper dispatch been used. There are other discrepancies in the sworn statements of libelant, and the matter is here referred to, not to reflect upon his integrity as a witness, but to point out that his memory is not so reliable but that he may be mistaken about the details of a contract entered into more than two years prior to the time of giving his evidence. That according to this contract there was not proper dispatch in lightering t'he Nadia is apparent from the facts heretofore set forth. This lack of dispatch resulted in damages to consignees, as they were compelled to pay therefor $760 demurrage and $181 for .cablegrams. These damages respondents have a clear and just right to offset against the demand of libelant for lighterage, and it' seems they more than absorb the whole of it.: The lighterage at $1.65 per ton would amount to $717.75, some $42 less than respondents were mulcted in demurrage alone.

The respondents have claimed in their answer damages in recon-vention over against libelant, but as they filed no cross-libel, and no proper proceedings have been had on such a demand, I do not see my way clear to make such allowance, although the proof may show a balance due them on the whole case.

Some evidence in the case has beep, taken in relation to a claimed custom in the port of Galveston for lighters to take out cotton and bring in iron or other goods, but as such alleged custom, if it exists, cannot affect the issues in this case, I have not found it necessary to consider such evidence.

I notice also, in the proceedings in this case, that the amended libel, although propounding important matters in the* case, has never been answered; that the evidence adduced on the trial in the district court was not reduced to writing; and that on the trial in the court below a jury of 12 good and lawful men was impaneled and sworn to try the case, and that said jury returned a general verdict for the libelant for the sum of $717.75, upon which verdict the judgment-below seems to have been entirely based.

As the case is presented in this court a decree should be entered for respondents dismissing the libel and amended libel with costs in both courts; and 'it is so ordered.