Case No. 7,732.

#### KERR et al. v. The NORMAN.

[1 Newb. 525.] 1

District Court, E. D. Louisiana.

Dec., 1855.2

Carriers of Goods — Liability for Injury' — Condition when Shipped — Effect of Reshipment.

1. Where it was shown by the bill of lading and the testimony of the shippers that a cargo of coffee was in good order when it left the port of Boston, and it was proven to be in a damaged state when it reached the consignees in New Orleans, the necessary conclusión must be that the damage was caused while it was on board the ship.

2. The coffee having been rggbipped in its damaged state to the owners iifot. Louis and subjected to an examination there, the report of the witnesses who made that examination may be relied on in ascertaining the extent of the damage in the quality of the coffee, when it arrived at its ultimate destination; and it may also serve as a fair criterion in fixing the amount of damage it had sustained when it was received at this port.

[Libel by Robert Kerr and others against the ship Norman.]

L. Hunton, for libelants

Wolfe & Singleton, for respondent

1

 [Reported by John S. Newberry, Esq.]

2

 [Affirmed by circuit court; ease not reported.]

McCALEB. District Judge.

On tbe 5th of January, 1S34. Clarke. Jones & Co. of Boston, shipped from that port on board tbe ship Norman, for and on account of tbe libelants, 200 bags of coffee, and consigned tbe same to Kennett. Dix *&*Co. of this city, by whom they were forwarded to the libelants in St. Louis. The bill of lading is in evidence and shows that tbe coffee was shipped at Boston in good order and condition; and this is fully corroborated by tbe testimony of those who bad charge of tbe shipment and who were examined under a commission. Tbe evidence given by Clarke, seems to me so clear and satisfactory, as to tbe good condition of tbe coffee at tbe time of shipment, that I cannot doubt that tbe terms of tbe bill of lading present a true statement, of not only tbe external appearance of tbe sacks, but also of the actual condition of the coffee when it left tbe bands of tbe shippers. Tbe parties from whom the coffee was purchased by Clarke, Jones & Co. for tbe libelants, also show, that it was in perfect order when they delivered it. The conclusion is, therefore, irresistible that tbe damage sustained by tbe coffee, was caused after it left the bands of'the shippers and while it was under tbe care and control of those who received it on board of tbe Norman, and brought it to this port.

In arriving at a satisfactory conclusion as to the amount of damage, tbe court has no guide except tbe testimony of the witnesses in this city and those who were examined under a commission in St. Louis. Tbe testimony of tbe latter may be relied on in ascertaining the extent of tbe damage in tbe quality of tbe coffee when it arrived at its ultimate destination, and it must also serve as a fair criterion in determining the damage sustained when tbe coffee was received in this port. The causes of tbe damage were clearly, in my judgment, tbe result of tbe fault of those who bad charge of tbe ship; and there is nothing in tbe evidence wbicb creates tbe slightest presumption that any additional injury was sustained by tbe coffee during tbe few days necessarily required to transport it on board of a steamboat from this port to St. Louis. Tbe original causes of tbe injury, may have, during those few days, increased tbe damage to some extent, but this would be too small to be taken into consideration, when tbe fault of the carrier between Boston and New Orleans has been so clearly established. The depositions of Baile, Finnill and Christopher, surveyors and appraisers in St. Louis, assess the damages thus: 116 bags damaged 25 per cent, that is $550, and 45 bags at 50 per cent., that is $420. Making tbe aggregate of damage in quality, amount to $970.

Tbe evidence of damage in quantity is not by any means so satisfactory. The witness Haines testifies that at tbe time tbe coffee was received at the store of Kennett, Dix & Co., ten or twelve bags bad burst, and they had lost one-fiftli of the quantity. Wm. R. Clarke tbe shipper at Boston, says there was 26,844 lbs. in ene 200 bags; wbicb would give, say 184 lbs. to each bag. Let us suppose, taking tbe smaller number mentioned by Haines, that there were ten bags bursted and that each of these bags contained originally 134 lbs., 1.340.

> On these there was a loss in quantity of 1-3. 268

> The coffee was worth in Boston 13 cents . 13

> $ 34 84

> Add this $34.84 to the loss in quality . 970 00

> $1,004 84

For this sum, which I consider the amount of damage fairly deducible from the evidence, *406I shall order judgment to be entered in favor of libelants, with costs.

This ease was taken by appeal to the circuit court of the United States, and the decree of the district court affirmed by Justice Campbell. [Case unreported.]