The Tan Bark Case , 23 F. Cas. 680 ( 1866 )

WILKINS, District Judge.

I think it established by a preponderance of testimony that the master delivered the bark to Jewell -& Sons without demanding freight or notifying them .of his lien. It is true that $38 was paid by them to Capt Becker, while the cargo was being unloaded, but it was charged not to the master but to the shipper, Mr. Paul, and was allowed by him on his settlement with Jewell & Sons. The fact that the shipper was then in Detroit, and was present at the unloading of the vessel, taken in connection with the master’s departure for Cleveland, and his failure to return until two days after the vessel had finished discharging, would naturally lead them to suppose he had waived his lien, and relied ■upon the personal responsibility of the shipper.

Prima facie, the delivery of the cargo to the consignee releases the lien for freight; it may be preserved, however, by a special ■agreement, by notice that the delivery is made subject to the lien, or by a local usage to that effect, but the mere intention of the ■master to retain his lien, not communicated to the consignee, is insufficient. Ang. Carr. §§ 370-374; Bigelow v. Heaton, 4 Denio, 496; Bags of Linseed, 1 Black [66 U. S.] 108. As -Jewell -& Sons bought and paid for the bark before notice of the master’s lien, it would be manifestly unjust to permit him now to enforce it.

Independently of this, however, the claimant is entitled to recoup the damage suffered by the cargo. The evidence fails to satisfy me that it was not in good condition when shipped on board, notwithstanding the testimony of the master and mate that they told the shipper it was damaged and refused to receipt for it in good order. As matter of fact the mate did certify that it had been “shipped in good order and condition,” and although a bill of lading may be contradicted in its recitals of number, quantity and 'quality, and is but slight evidence of the condition of goods packed in boxes or otherwise not open to inspection, it is very strong evidence of the outward condition of the cargo at the time of shipment.

In one case at least (Benjamin v. Sinclair, 1 Bailey, 174), it has been held conclusive evidence, though I cannot see that the doctrine of estoppel has any application to the case. It would be a premium, however, upon gross negligence to permit it to be controlled, except by clear evidence. In this case not only does the consignor testify that the bark was in good order when shipped, but it is admitted that the top layers of the deck load, which would naturally have come from the bottom of the pile as it lay upon the bank, and consequently most'exposed to moisture, were in perfectly good condition when delivered.

Although a loss by freezing is an excepted peril, the earner must be free from negligence. It was a contingency which, in this case, must have been foreseen, and should have been provided against. There is no evidence, however, that any precautions were taken to preserve the cargo from the effects of frost Immediately upon the harbor being closed, the master left for home, leaving the vessel in charge of two men, with instructions to strip her and lay her up for the winter. He put no shipkeeper on board, but, as he says, paid a man $5 “to keep an eye on her” during the winter. There is no evidence of what was done after his departure. No precautions, however, appear to have been taken to ventilate the hold, or to prevent dampness from collecting and injuring the bark. Where a cargo gathers moisture, as sometimes occurs in passing from a warm to a cold climate, it has been held the carrier is not responsible; but where the gathering of dampness and mold ■is the usual effect of laying a vessel up for several months, I think the master is bound to use some precautions by ventilating his hold, or otherwise to obviate injury. At least he should have exercised the ordinary prudence of roofing over his deck load, and preventing the ice from gathering upon the deck.

Where the negligence of the carrier exposes the goods to injury by an excepted peril, the authorities are uniform that he must respond in damages. He is bound to take not merely the usual precautions against frost, but all such as he could foresee were necessary to be taken under all the circumstances of the case. Bdw. Bailm. 456-478; Ang. Carr. '§§ 160-164; Abb. Shipp, p. 485; Semler v. Commissioners, 1 Hilt. 244; Bowman v. Teall, 23 Wend. 306; Clark v. Barnwell, 12 How. [53 U. S.] 272; New Jersey Nav. Co. v. Merchants’ Bank, 6 How. [47 U. S.] 385.

NOTE. Upon the question of release of lien, see also the following eases: The Eddy, 5 Wall. [72 U. S.] 481; The Bird of Paradise, Id. 545; Tamvaco v. Simpson, L. R. 1 C. P. 363; Paynter v. James, L. R. 2 C. P. 348; Kirchner v. Yenus, 12 Moore, P. C. 361.

As the damage to the cargo in this case exceeds the freight, the libellant is not entitled to recover. Libel dismissed.