Kerruish v. Havemeyers & Elder Sugar Refining Co.; Churnside v. Same

Kerruish v. Havemeyers & Elder Sugar Refining Co. Churnside v. Same. (Circuit Court of Appeals, Second Circuit. November 14, 1891.) Shipping — Delivery op Cargo — Shortage. On the evidence, held, that all the sugar received by the steam-ships Ixia- and Hampshire had been delivered, the contents of the missing bags having been put into new bags by the ships’ men; and respondent’s claim to make a deduction from the freight because of such alleged shortage should not be allowed. 43 Fed. Rep. 511, affirmed. Appeal from the Circuit Court for the Southern District of New York. In Admiralty. Suit by the masters of the vessels Hampshire and Ixia against the Havemeyers & Elder Sugar Refining Company to recover a balance of freight. A- decree for libelants was affirmed by the circuit court, and respondent appeals. Affirmed. The evidence showed that the respondent took charge of the unloading, and its employes handled the bags roughly, destroying some of the bags, and obliterating their marks; that a great deal of sweepings remained after the discharge, which were placed in new bags by the ships’ coopers. The Hampshire delivered 211 more bags than the bills pf lading called for; the Ixia, 76. The shortage in weight was not 1 per cent, of the amount stated in the bills of lading, which could be. accounted for by the tendency of sugar to vary in weight from inherent causes. The district court held that all of the sugar received had been delivered, and hence that the alleged offset to libelants’ claims failed, and they were entitled to recover, (42 Fed. Rep. 511;) and, on appeal, a pro forma affirmance was rendered by the circuit court, whence respondent appealed to this court. Parsons, Shepard & Ogden, for appellant. Convers & Kirlin, for appellees. Before Wallace and Lacombe, Circuit. Judges. [MAJORITY — Per Curiam.] Per Curiam. There is no proof of a short delivery of cargo in these cases, except as to the sugar in the 11 cargo bags not delivered by the Ixia, and the 15 not delivered by the Hampshire. We are satisfied that the contents of these bags were delivered in the 76 new bags of the Ixia,. and the 211 of the .Hampshire,, containing sweepings, and that some of the cargo bags were destroyed by rough usage during the discharge, and others, partly destroyed, were put inside the new bags. The decree of the circuit court in each case is affirmed, with interest, and the costs of the appeal to be paid by the appellant, and the cause remanded to the circuit court for further proceedings in conformity with this opinion.