Williams v. Shallcross

17 F. Cas. 1026, 7 W.N.C. 147, 1877 U.S. Dist. LEXIS 203

Opinion

THE COURT

(BUTLER, District Judge],

after referring to the former case, said, in substance:

We are now called upon to determine whether the respondent is liable for freight on this part of the cargo. He says it was not delivered, was lost on the voyage; that this rotten mass of slush was not in any sense potatoes. If this is true he is not liable. But the libellant denies that it is true. He contends that no part of the cargo was •lost in the sense here involved, urging that the change in form and character of the part under consideration, and the consequent deterioration in value, is unimportant; that although the potatoes assumed a different shape, they, nevertheless, continued to be potatoes.

The legal principles involved are familiar and simple, but the novelty of the facts renders their, application difficult. There is, however, a' preliminary question to dispose of before this point is properly reached. As before stated, the freight was to be paid, at the rate named in the charter party, viz. twenty cents per Winchester bushel, on the "output.” This involved a measurement at the port of delivery. The proofs show a measurement of only 0,937 bushels, on which the freight has been paid. The remainder (here involved) was shovelled into the river, without ascertainment of the quantity, neither party treating it as if liable to freight. ’ It was susceptible of measurement —could have been weighed — without difficulty. .How are we to ascertain the quantity? The able counsel for the libellant saw this difficulty, and very candidly acknowledged its seriousness on his attention being called to it. He endeavors to surmount it by taking the number of bushels stated in the bill of lading, and deducting therefrom the 0,937 which were measured here. The difference, he argued, represents the quantity that was not measured. To this there are two objections: First, that the bill of lading itself is indefinite. It states the quantity shipped to be 8,390 bushels, “more or less”; and, second, that the freight- is to be paid, as we have seen, on the “output,” giving to the shipper all advantages from shrinkage and diminution from every cause. If we knew the exact quantity shipped, we could not know or even approximate with certainty the quantity brought here, treating the decayed mass thrown away as potatoes. For, both in bulk and weight, there was serious decrease. Necessarily this must have been so.

The case of Gibson v. Sturge, 10 Exch. 622, is readily distinguished from this. There a quantity of wheat was shipped, to be paid for per bushel, without an exact ascertainment of quantity, but naming a given number of bushels as an approximate amount. Before reaching the port of delivery, it had so swollen from contact with water as to render ascertainment of the exact quantity shipped impossible. From the necessities of the case, the court was compelled to take the j approximate amount named, and charge the ! shipper accordingly. Aside from other dif- ¡ ferences between that ease and the one be- : fore us, it is quite sufficient that the neeessi- ! ty which called for and alone could justify what was there done does not exist. The extent of this cargo, as before observed, could readily have been ascertained.

No ascertained amount of “output” being, shown beyond that already paid for, we inay postpone a consideration of the "important question first stated until its decision. becomes necessary. The libel must be dismissed.

Decree accordingly, with costs. Oral opinion.