Tygert Co. v. The Charles P. Sinnickson

24 F. 304, 1885 U.S. Dist. LEXIS 87

Opinion

Butler, J.

The cargo, kainit, was taken on board in good order, and put off damaged, by water. Bor this damage the respondent must pay. It is not shown to have occurred from.,“peril of the sea.” I am convinced, also, that the quantity delivered was not the whole quantity taken on board. The weighing on delivery was not so careful as on loading, and the lirecise extent of shortage may be difficult, if not impossible, of ascertainment. The disadvantage of this must fall on the libelant, whose agents are responsible for want of care. But that some allowance should be made on this account seems clear. How the shortage occurred, whether in pumping out the water, witlnwhich the kainit became mixed, or otherwise, need not be considered. The burden of accounting for it is on the respondent, and he has failed to give us any information. The commissioner appointed to assess damages may hear further testimony respecting the amount lost; and will be careful to avoid charging the respondents excessively, confining his allowance to the loss clearly shown.