Hodgkins v. Welsh , 59 F. 473 ( 1894 )

BUTLER. District Judge.

The only question involved is one of fact. The respondents seek to have the value of three bags of sugar, (a part of the cargo,) $41.40, deducted from the freight, on the ground that the delivery was short to this extent. The bill of lading acknowledges the receipt of 6,443 bags, and the respondent’s output tally shows only 6,440 bags. If there was nothing more the claim would be allowed. While the ship is liable only for the cargo received the bill of lading has the force of a written receipt, and hinds her until disproved. To discredit it and the respondent’s output tally the libelant invites our attention to a dispute which existed respecting the intake count, and to a discrepancy in the several output counts, and to the manner in which the respondents’ output count was made. That there is danger of mistake in counting where so many items or packages are involved, even under the most favorable circumstances, is apparent. Under the circumstances attending the respondent’s count the danger is greatly increased. Loading the scales while they were being unloaded, and estimating each load at six bags, might well lead to mistake. Extraordinary care would be required to avoid some commingling of the loads. If the case rested here it would not be free from doubt. The libelant has gone further, however, and produced evidence that he delivered the entire cargo taken in. If the evidence is sufficient to establish the fact it settles the controversy. I think it is sufficient. The master’s testimony covers the entire ground — shows that the hatches were sealed up after the sugar was taken in, and were not opened until the port wardens unsealed them after the vessel was docked and the respondents' called to receive their sugar — that no port was touched from the time she sailed until her arrival here, and that there was therefore no opportunity for the loss or abstraction of any part of the cargo. I regard this testimony as more reliable than either of the counts made, and therefore accept it as conclusive.

The libel is therefore sustained.