THIS was an appeal from the Circuit Court of the United States for the southern district of New York.
It was a libel filed in the District Court, sitting in admiralty, against the barque Griffin and her owners, by Greenway and Dickson, on a contract of affreightment. The circumstances are stated in the opinion of the court.
The District Court passed the following decree:
This cause having been heard on the exceptions to the commissioner's report, and argued by the advocate for the respective parties––
On reading the report of George F. Betts, Esq., United States commissioner, to whom the above matters were referred, by which there is reported due the libellant, on the bill of lading referred to in the libel, the sum of sixty-nine hundred and eleven dollars and fifty-two cents, on motion of Messrs. Weeks & De Forrest, proctors for the libellants, it is ordered that the report be in all things confirmed, and that the libellants recover in this action against the barque Griffin, her tackle, &c., the amount reported due, with interest thereon from the date of the report, together with their costs to be taxed, and that the said barque, her tackle, &c., be condemned therefor. And on like motion it is further ordered, that out of the proceeds of the stipulations of the claimants for cost and value, when paid into the registry of this court, the clerk of this court pay to the libellants or their proctor the amount reported due, together with their taxed costs. And on like motion of Messrs. Weeks & De Forrest, proctors for the libellants, it is further ordered, that unless an appeal be taken to this decree, with the time limited and prescribed by the rules and practice of this court, that on payment into the registry of the court of the amount of the stipulations for costs and value, that the clerk distribute the proceeds in satisfaction of this decree.
This decree was affirmed by the Circuit Court, and the owners of the barque appealed to this court.
It was argued by Mr. Halstead for the appellants, and by Mr. Gifford for the appellees, upon which side there was also a brief filed by Mr. De Forrest.
The bill of lading stated that the boxes were to be delivered at the ship's tackles to Greenway & Co., at Rio de Janeiro, or their assigns. Abranches was in Rio, a partner in a commercial house there, who purchased the goods. Being examined as a witness, he said that he knows that the said one hundred and thirty-two boxes did form part of the 'Griffin's' cargo, as he, witness, saw them when discharged from the vessel into the custom-house; that said boxes contained furniture, and were addressed to his house, and each package bearing the mark of the firm, M. O. Abranches & Co., and the countermark G. & Co., and were also numbered.
The counsel for the appellants insisted that the testimony shows that the omission of the boxes in the open manifest was observed by Greenway & Co., in time to supply the omission, and avoid all difficulty; and (so far as it may have any bearing upon a view of the whole case) that the same is true in reference to Abranches & Co. The consignees failed to notify the master of the omission. It could then have been supplied by the master, and all difficulty avoided. The supplying it then would be the same in effect as if it had been supplied by the master before delivering the manifests to the custom-house officers. On this open manifest the master could then have supplied the omission. It was on this only that he could have ever before supplied it. The other was sealed. The omission by the consignees, after discovering the error in time to have it corrected, to notify the master of it, was a gross failure of duty as consignees, and is proof of intended fraud.
The boxes were sold by order of the custom-house.
We are nowhere told when and how the omission first came to the knowledge of the custom-house, nor when the goods were seized, nor when they were sold.
They were purchased by Abranches & Co. We are nowhere told how they were sold, whether all in a lump at one bidding, or how; and are nowhere told the amount of Abranches's bid on which they were struck off to him.
The end was, that the consignees refused to pay the master any freight at all collected by them, on any of the cargo; and besides that, have brought this libel to the whole value of the one hundred and thirty-two boxes.
What could more strongly give the character of fraud to the omission of the consignees to notify the master of the omission at the time when it could have been supplied by him?
One other fact in this connection. The consignment to Greenway & Co. was changed.
As to the value of the goods at Rio, the only evidence is, the answer of Magalhaen, the shipping clerk, and the answer of Abranches.
There was a regular invoice of the goods sent to Greenway & Co.; that invoice contained a list of the goods and invoice price.
We submit that this testimony of the value was insufficient. It was, in the nature of things, impossible for us to give any proof whatever of the value. The chairs and furniture were enclosed in boxes; how many boxes contained chairs, and what kind of chairs; and how many contained tables, and what kind; and how many other furniture, and what kind, it was impossible for us to show. The boxes contained 2,613 cubic feet, freight fifteen cents per foot. A space eighteen feet square by eight feet high would contain 2,592 cubic feet, within twenty-one feet of the cubic feet in these boxes. How could chairs and furniture, that could be in these boxes, be worth $5,000 or $6,000? There is no evidence that the chairs and furniture contained in the boxes were worth that. Abranches says the boxes were seized, &c. But in his answer to the fifteenth interrogatory he says the contents of the boxes were purchased, &c.; and in his answer to the sixteenth interrogatory he says the value of the contents of cases (boxes) was, &c. And Magalhaen, in his said answer to interrogatory sixteen, 'value of the contents of the boxes.' The invoice, spoken of by this witness, in his said answer, and by Edward T. Davison, in his deposition, and by Abranches, was not put in evidence.
As to damages. This libel is in a cause of contract; and the libel prays damages for the non-delivery of the goods, near end of libel. The actual damage to the libellants is the measure of damages to be awarded.
If they had bought the boxes at the sale, and then delivered them to Abranches, the only damage they would have sustained would be the amount they bid them off at, and that amount reduced by the amount of freight on the boxes, for they paid no frieght on them.
But they were struck off to Abranches. This fact proves that there was an understanding between them. It is not supposable that Greenway & Co. would permit Abranches to get the boxes at what they might be struck off for at such a kind of sale, and hold them without paying Greenway & Co. the cost of the goods, (if they were bought in New York with the money of Greenway & Co.,) less the amount paid by Abranches at the sale by the custom-house. So that, in either of those cases, the damage to Greenway & Co. would be the amount given to get the goods from the custom-house by buying them at such a sale. Hence, the care taken not to let it appear what the boxes were bought for at the sale.
If the chairs and furniture were bought in New York with the money of the Abranches, the effect would be that Greenway & Co. would lose nothing but commissions.
If the libellants have presented their case in such a way that they cannot recover on the only proper ground on which a recovery can be had, and if they have not given to the court the means of ascertaining what should be recovered on that proper ground, they cannot recover anything.
By the 155th article it is provided, that when it is found that the vessel brought more goods than is specified or contained in the manifest, and not declared by the captain, such goods will be seized and divided among the seizors, &c. How did it happen that the boxes were not opened by the seizors, to see what was to be divided among them; and that the boxes and contents were sold, without opening the boxes, and sold all to one man, and, as we have a right to say from the testimony, sold at one bidding? It is proof of the fraud, before stated, at the beginning, and of ...