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.