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Winsor & Farwell, for libelant.
W. H. Pritchard and John H. Elder, for claimant.

HANFORD, District Judge. The libel in this case charges that the pipe was so damaged when delivered as to be of no value whatever, and that the damage was caused by bad stowage, and nego ligence on the part of the master and crew, but fails to specify in what way the pipe was damaged, --whether by breakage, rust, or otherwise. The answer admits that the pipe was received by the ship in good order, but denies that it was dainaged when delirered; denies all the allegations of negligence; and avers that the cargo was properly stowed and dunnaged. The case was, according to the practice in this court, referred to a comniissioner to take and report the evidence.

The libelant produced as witnesses its president, secretary, and manager, and upon the testimony of these three rested. Said testimony as a whole is quite as vague and unsatisfactory as the libel. In substance it is that the pipe, when first examined after being discharged from the ship, was in bad condition. Mr. Thomas M. Greene, the secretary, estimates the total damage at $1,000. The others each say (referring to the entire consignment, as I assume) that it was damaged about 33 per cent. There is not a word in the testimony offered in behalf of the libelant in chief as to breakage or rust. No offer was made to give in detail any information as to the number of pieces that were found to be injured, nor as to the manner in which the dainage was caused. Only from questions to the respondent's witnesses, and testimony introduced after the evi dence for the defense had closed, does it appear that the libelant's grievance is on account of rust. No offer was made of evidence tending to prove that the vessel was unseaworthy, or that the cargo was not well stowed or not properly dunpaged, or that the master, mariners, or stevedores were guilty of any negligence; and the proctor for the libelant rested upon the meager testimony above summarized, without giving notice of an intention to offer further proof at a later stage of the case.

Thereupon the proctor for claimant filed with the commissioner a motion to dismiss for want of sufficient evidence to sustain the material allegations of the libel; but, without waiting to submit the motion to the court, the respondent proceeded before the commissioner with the taking of evidence on his side, after giving notico that the motion was not waived. The pipe was shipped under a contract containing a clause exempting the ship from liability for “leakage, breakage, or rust, except from improper stowage;" which contract is set forth in an exhibit attached to the libel. The voyage was not protracted beyond the time ordinarily required for sailing from New York to Puget sound. The vessel at the time of sailing was staunch and seaworthy, and made the passage without developing any defect or incapacity for transporting in safety the cargo which she carried. All necessary repairs occasioned by events of the voyage were promptly made. The pumps were worked regularly, and kept the water from accumulating in the ship. The evi


dence on the part of the respondent is positive to the effect that the cargo was well stowed and properly dunnaged, and that in every way known to ship masters and stevedores the cargo was protected and inade secure for the voyage.

In rebuttal the libelant introduced some expert evidence to the effect that, in the opinion of the witnesses, the character of the rust on the pipe indicated that it was caused by salt water. The proctors for the libelant appear to have a theory that the damage was caused by the blowing of bilge water through the air strip, but there is no evidence to support it; and there is in the case no testiinony as to the cause of the rust, except mere conjectures of the wit

These who give opinions that salt water caused it know nothing about the construction of the ship, or the manner in which the cargo was stowed, or the occurrences of the voyage, and of course have no basis for an opinion as to how or when salt water could have come in contact with the pipe. Without better evidence than this, I cannot find that the rust was caused by "improper stowage," unseaworthiness of the ship, or negligence or unfaithfulness on the part of the master or any person in the service of the ship; and without evidence to support such findings the libelant cannot recover. Rust is a cause of deterioration inherent in the goods. In issuing the bills of lading care was taken to protect the ship from liability for damage from this cause not due to some act or omission or defect for which the owner, master, agent, or some person in the service of the ship might be held to be blameworthy. Therefore the burden of proof rests upon the libelant to show such blameworthy act, omission, or defect. Clark v. Barnwell, 12 How. 272; McKinlay v. Morrish, 21 How. 343; Transportation Co. v. Downer, 11 Wall. 129.

The rules of practice in admiralty, while flexible and liberal, re. quire orderly procedure and fairness in the conduct of a cause. Additional evidence may be introduced at any stage of the case before a final decree is signed in the court of original jurisdiction, and even after an appeal, when a trial de novo is allowed in the appellate court, provided good cause be shown for not producing it at the proper time; but it cannot be received out of time, without a suiti. cient reason therefor appearing. Under this rule the claimant is entitled to have the case decided upon the evidence of the first three witnesses examined, unaided by the other evidence taken. It is my opinion, however, that the result must be the same whether all the evidence offered on both sides, or only that offered by the libelant in chief, be considered. Decree of dismissal.

(Circuit Court of Appeals, Third Circuit. January 10, 1893.)

No. 12.

Matter expunged from a printed form used in drawing up a charter party may be considered in determining the intention of the parties. 50 Fed. Rep. 116, atfirmed.


In making a contract for the transportation of a full cargo of sugar, the parties used a printed form containing this provision: "The freight to be paid on the unloading and right delivery of a cargo of sugar at and after the rate of nine shillings sterling per ton of twenty hundredweight delivered.” The printed word “delivered" was struck out, and the words "on intake weight” were interlined in writing. Held, that the charterer was bound to pay freight on the whole cargo taken aboard, although part of it was damaged without the ship's fault by an excepted peril, and sold on the voyage. Dallas, J., dissenting. 50 Fed. Rep. 116, affirmed.

Appeal from the United States Circuit Court for the Eastern District of Pennsylvania.

Lilel in rem by James W. Harrison, master of the steainship Wetherby, against 1,000 bags of sugar, (Claus Spreckels, claimant,) to recover freight. In the district court a decree was rendered for libelant. 44 Fed. Rep. 686. On appeal by the claimant this decreo was affirmed in the circuit court. 50 Fed. Rep. 116. From the latter decree, claimant appeals. Affirmed.

Morton P. Henry, for appellant. Curtis Tilton, for appellee. Before DALLAS, Circuit Judge, and WALES and GREEN, District Judges

WALES, District Judge. This is an appeal from the United States circuit court for the eastern district of Pennsylvania, affirming the decree of the United States district court for the same district, for the full amount of the libelant's claim, which was for freight on a cargo of sugar shipped at Hamburg, and to be discharged at the port of Philadelphia, to the order of Claus Spreckels, the appellant. The case was heard in each court on libel and answer. The finding of facts by the circuit court is as follows:

"(1) This action was brought to recover the freight on 14,515 bags of sugar, part of the cargo of the steamship Wetherby, shipped at Hamburg for Philadelphia, which was sold by the master at Hanıburg.

"(2) The whole cargo, consisting of approximately 25,000 bags, belonged to Mr. Claus Spreckels, the claimant, and was shipped under a charter party, executed on his behalf, for a full cargo from Hamburg to Philadelphia, of which only 10,489 bags were landed and delivered at Philadelphia.

"(3) In making the contract the parties used the ordinary form of a freighting charter party for the full capacity of the vessel, the printed clause for the payment of freight reading thus: The freight to be paid on the unloading and right delivery of the cargo at and after the rate of nine shillings sterling per ton of twenty hundred weight delivered.' The printed word 'delivered was struck out by running the pen through it, and the words 'on intake weight' were interlined in writing so that the completed clause reads: "The freight to be paid on unloading and right delivery of the cargo, at and after the rate of nine shillings per ton of twenty hundred weight on intake weight.'

"(4) The Wetherby returned to Hamburg in consequence of damage sustained by a collision with the steamer Sultan in the river Elbe, without fault on the part of the Wetherby. The Sultan admitted full liability in proceedings taken in England to limit the liability of the owners of that vessel.

"In consequence of injury to the cargo, caused by the collision, the master sold 14,515 bags of sugar at Hamburg, under the recommendation of a survey, regularly made, as unfit for transportation, to protect the interest of the cargo owner. On arrival at Philadelphia the vessel delivered to Mr. Spreckels 10,849 bags of sugar, the remaining part of the cargo unsold, who paid

freight thereon at charter party rates, $2,227.25. He declined to pay the freight on the cargo sold and not delivered, amounting to $3,229."

If the interlineation of the words "intake weight” had been the only alteration made in the printed form of the charter party, no difference of opinion as to the construction of the contract would exist between the parties to it, and the present litigation would have been avoided. But the striking out of the word "delivered” opens up the question of whether freight was to be payable on the whole intake weight of the cargo which was shipped at Hamburg, or only on the intake weight of that portion of the cargo which was discharged at Philadelphia. In Strickland v. Maxwell, 2 Cromp. & M. 549, the printed form of an instrument executed by the parties had been altered in such manner, by an erasure, as to change a lease from year to year to a term of one year only, and it was held by the court that the words struck out might be looked at by the court to ascertain the real intention of the parties in so erasing them; and that other stipulations, inapplicable to a term of one year, should be considered as also struck out, or as surplusage.

What, then, was the intention of the parties to the present suit in canceling the word “delivered?” It will not meet the difficulty by saying that the contract bears the same meaning after as it did before the erasure, or to conjecture that the parties meant nothing at all by the cancellation. The general rules governing the payment of freight are that, in the absence of special agreement to the contrary, freight is payable only on such portion of the cargo which is actually discharged, and that, if the weight or measurements at the loading port and the port of delivery differ, the lowest weight is to be taken in calculating the freight. The contention of the appellant is that, under the operation of these rules, he is not liable for freight on the sugar not delivered, on the ground that the alteration of the printed for'ın had no other purpose than to stipulate for the payment of freight on the intake weight of such part of the cargo as should arrive at the port of Philadelphia. His counsel misapprehends the opinion of the court below when he says that it decides “that, whenever the shipper undertakes to pay freight on the intake weight, he thereby stipulates to pay freight whether the cargo arrives in safety or not, provided that it is not lost by the default of the shipowner." On the contrary, the learned judge who delivered that opinion was careful to say that he could "come to no other conclusion than that the printed clause as originally framed was intended to limit the payment of the freight to so much of the cargo as might be delivered. This, indeed, was the plain effect of the word 'delivered in the connection in which it stood. Why, then, was it stricken out, unless the parties intended that the freight should be paid on the intake weight of the whole cargo? The suggestion that the purpose of the alteration was simply to meet any discrepancy (if such there should be) between the shipping and delivery weights, and to secure to the ship-owner freight calculated on the intake weight at Hamburg, seems to rest upon a conjecture which is unsupported by any fact. Clearly that purpose did not require the erasure of the word 'delivered.') We are not to suppose that the parties acted in.

advertently, or without design, in making the erasure; and it has been ingeniously suggested by appellant's counsel that, if the word "delivered” had been allowed to remain after writing “intake weight,” it would have made the passage an obscure one, and raised à doubt whether the word “delivered” did not control the words "intake weight,” when the meaning was that the freight should be estimated on the intake weight of the parcel delivered, without regard to loss of weight during the voyage. But it has already been made manifest that whatever obscurity of meaning there may be has been caused by the erasure, and that, if there had been no erasure, there would be no obscurity. The case of Spaight v. Farnworth, 5 Q. B. Div. 115, furnishes an apt illustration on this point. There the charter party contained the stipulation: "Freight payable on deals and sawn lumber, on the intake measure of the quantity delivered." The various pieces had been measured by the shipper at the port of shipment, and their dimensions entered in a specification; the measurement figures being before shipment, chalked on each piece respectively. During the voyage to the port of delivery a number of the pieces were lost, and the figures on some of the remaining pieces had been obliterated. It was admitted that freight was payable only on that portion of the cargo actually discharged, and the contention was over the mode of getting at the measurement of the pieces from which the figures had disappeared. In that case the retention of the word "delivered" in the stipulation for freight prevented the very dispute which has arisen here.

Again, it is insisted on behalf of the appellant that the words, "freight to be paid on unloading and right delivery of the cargo, limit the payment of freight to the portion of the cargo delivered. It is well settled, however, that where there is an agreement for the payment of a lump sum for freight, and the whole cargo has been delivered, excepting that part of it which has been lost by an excepted peril of the sea, without default on the part of the master or crew, the condition of “right delivery” is complied with. In Robinson v. Knights, L. R. 8 C. P. 465, a charter party provided that the ship should load a full and complete cargo of lath wood, and deliver the same on being paid freight as follows,-a lump sum of £315. There was the usual exception of sea risks, and it was stipulated that the freight should be paid in cash, half on arrival, and the remainder "on unloading and right delivery of the cargo.” The ship meeting with rough weather, the deck load was washed overboard, and lost, without any default of the master or crew. The freighter, on delivery of the cargo, claimed to deduct from the lump sum an amount proportionate to the freight on the deck load which had been lost; but the court held that where there is an agreement for a lump freight, the shipowner is entitled to be paid the whole of it, although a portion of the cargo be lost without default on his part. In Shipping Co. v. Armitage, L. R. 9 Q. B. 99, on a similar state of facts, and involving the interpretation of the words “right delivery,” in connection with an agreement for the payment of a lump sun for freight, the court, after an elaborate discussion, reached the same conclusion which had been arrived at in Robinson v. Knights. In each

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