« EelmineJätka »
in the manner described, as constituting but a single offense, for which only a single penalty of $100 can be recovered. Taft v. Lithographing Co., 38 Fed. Rep. 28, and 39 Fed. Rep. 781.
You are the sole judges of the weight of the testimony and of the credibility of all of the witnesses who have testified in your presence, and if the evidence in the case satisfies you that any of the witnesses have knowingly testified falsely as to any material fact in controversy, you are at liberty to reject the entire testimony of any such witness or witnesses; and, inasmuch as you have to determine the purpose which actuated the defendant's agents in branding certain rope reels with the words “Patented, September 28, 1880," it will be your duty, in determining that issue, to consider all the facts and circumstances in evidence, and to draw such inferences as you deem justifiable and proper. The case is left with you, you having heard all the testimony, to be dealt with as you see fit in view of the evidence and in view of the law as I have explained and declared it.
MYERS et al. v. THE QUEENSMORE.
A contract for the shipment of cattle ·guarantied the payment of freight by the shippers, whether or not the cattle were “lost in any manner whatsoever," and also provided that the freight should be payable on the arrival of the ship at Liverpool. Held, that the latter provision did not relieve the shippers from liability on their absolute guaranty, though the cattle were lost through fire and subsequent wreck of the vessel, which
failed to reach its port of destination. 2. SAME-BILL OF LADING.
Such liability was not affected by any question as to whether the bill of lading providing, “Freight payable, ship lost or not lost," was or was not in harmony with the shipping contract.
Appeal from the District Court of the United States for the District of Maryland.
In Admiralty. Libel to recover freight. Decree for 'libelants. 51 Fed. Rep. 250. Respondents appeal. Affirmed.
Thomas W. Hall, for appellants.
Before GOFF, Circuit Judge, and HUGHES and SIMONTON, District Judges.
HUGHES, District Judge. This suit relates to a shipment of 517 cattle from Baltimore for Liverpool, in October, 1889, on the British steamship Queensmore. The shipment was made under the provisions of a general contract entered into July 12, 1889, between Myers & Houseman, cattle shippers of Baltimore, and the
agents of the Johnston Line of ocean steamers, of which the Queensmore was one. Among the provisions of this general contract is the following clause:
"The freight is payable upon said cattle at the rate of eighty shillings British sterling per head on the number shipped at Baltimore, whether delivered alive or not delivered at all, and is payable in Liverpool on the arrival of the steam
According to the custom of merchants the general contract was signed only by the shippers, Myers & Houseman, and the bills of lading delivered under it only by Patterson, Ramsay & Co., agents of the ship. The contract of July contemplates the delivery of such bills of lading. There were two parcels of cattle, and two bills of lading identical in terms. Another provision of the general contract of July was that the ship should be “free from all responsibility for mortality or accident of any kind to the cattle, or any of them; and if any of them die, or are thrown overboard or are washed overboard, or are lost in any manner whatsoever, the freight is nevertheless to be paid, and is hereby guarantied to be paid, by the shippers,"nothing being said in this clause limiting the liability of the shippers to payment only upon the arrival of the ship in Liverpool. A clause in the bill of lading signed by agents of the ship is similar to the foregoing, except that it relates to the loss of the ship. It provides that "freight is payable, ship lost or not, upon the number of animals embarked, without regard to and irrespective of the number landed; and the shippers hereby guaranty payment of such freight if not paid by consignees."
The steamer sailed from Baltimore on the 27th of October, 1889, with a large quantity of compressed cotton and other general merchandise on board, and with nearly a thousand cattle on the decks, the 517 shipped by Myers & Houseman being included. A few days after the ship got out to sea, fire was discovered in the cotton. It is not charged that this accident or any subsequent misfortune that befell the ship was due to negligence of those in charge of her. Every effort was made to extinguish the fire, to protect and preserve the cattle, and save the ship, but in vain. The cattle were suffocated or necessarily thrown overboard, only eight or ten in the bow being saved. Five days after the fire had been in progress, and after the ship, in consequence of the burning of her machinery, had become unmanageable, the ship herself was lost, and became a total wreck, from having struck a rock on the southwest coast of Ireland. The libelants claim the freight as due on the cattle, under the terms of the general contract and on the bill of lading, making them due, "ship lost or not lost.”
Action for the freight was brought in the district court of the United States for Maryland, sitting in admiralty, by which a decree was rendered in favor of the libelants for $10,172.43, the amount claimed. This appeal is from that decree. No other question was raised in the court below, or is presented here, but the simple one whether the clause which has been quoted from the general contract of July, 1889, providing that the freight should be “payable in Liverpool on the arrival" of the ship there, releases the ship