" THE CALEDONIA.
681
st!ltute might very well employ one person to deposit two copies in Washington, and another to mail two copies in New York, thus securing two independent witnesses to the fact of such compliance. It must be assumed, then, that both steps were taken in this case. the defendant's motion now is that"Complainants be directed to so amend their bill of complaint that it shall clearly and distinctly appeal' whether complainants allege that the title mailed of the alleged copyright work was delivered to a postmaster, to to the librarian of congress, or whether complainants allege that title waS delivered at the office of the librarian of congress, and that nil reference to the net which is not so alleged as the basis .of complainllntB' copyright be stricken from the said bill of complaint; and that the cOllrt order and direct iJllike manner concerning the allegations regarding the ctelivery to a postmaster Cor mailing, 01', as the case. may he, the delivery at the office of tf1&librarian of cong'ress,of the two copies," etc.
'Inasmuch as it now clearly and distinctly appears on the face of th0 compIainttha.t'bothlicts were done, and that neither was not done, the particulatrelief prayed for must be denied. The motion, however, may treated as' 'practically one to require the complainants to elect which a'vermenUhey will undertake to prove on the trial,. and to com pel-them to abando'6 This should not be required They have done what the stat).lte allows them to do, and aver that, they have done SQ. To deprive them at this stage of the right to make proof thereof on the trial would be unfair. If they should now elect to prove the mailing, their witness fact might die before the trial, andthey might thus fail to Elstablish their case, although still able, if their pleading permitted it, to lllakeptoof9fthe deposit. And the converse is equally true. The tionbe;tlfeen thisclj.se and Falk v.Howell, 37 Rep. 202, citedqp the I\rgument, is that in the latter case thecolliplaintin sqbstance averrilcl that one act was done and one was not done, and at the same time. failed to 'indicate which was the one that was done, and on: the doing ohvhi(jh ,alql1e thecOlriplainant relied. Itwas therefore ailibiguous, tendered no issue·. The bill now before the court is unambiguous, and distinctly issues. The motion is denied. Five da)'s after order granted deftmdant to plead, answer, or demur·
.THE CALEDONIA.,
(Oircuit Oourt. :p. Massachusetts. October 1, 1890.) 1. SHIPPING-BILL OF LA.DING.
Where a bill of lading is given by the ship-owner and accepted by the shippsI' without objection, a prior agreement for the carriage is not a final and definite statement of aU the terms of the agreement between the parties, and the bill QUading is the real contract by which the mutual obligations of the parties is to be'governed. Unless.otqeryvise expressly stipulated, there is an absolute warranty on .tbe part. of the ship-owner that the ship is or shall be seaworthy at the time of.beginning her voyag-e, and such warranty is not dEleted by an exception of damages from
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S,UIE-W ARJU.NTT OF SEA.WOR'1'HINESll,
vol. 43. "lrolate;to'lUatters happening attar itl1e,
·.and the bill of lading in tliemidilt of 'a long enumEll'iet'ibli ol'\rarlous causes of damage, au the rest of which of the vdyage..' ,
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6arrlage \vtih kn6wledge to be Bold'at iirst,posaible is ill. delaY: in their ar· rival owing to the unseaworthiness of the vessel, he is liable.tothe suipperforthll fall in the market value of the cattle. . .I " 1: , i i-: ' . , 1, ::."; <" i I
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·., $ender$,9,n ;BrotheJ;'8,1. :Bowhng Grllen, )tewYo*, agents, of the as the p¥tyoftlie first:part·.and MI'. M. Q-oldllltiithi' of, New Y:otk, describtdas the'shipper' of the bnll part:·,; The; agents ;ofi ,.teatner: agree to let to Ilaidsllipl":ir' suitable epace, as undernoted,·' lor the ·kal,lfilpottation'of Ii vecattle,that is:, to' say"on AAiHtt bundrel1aJild to tbJ,'ee ,ty from for, ,abol1t. E\Jeveptl;l.ofJ nnlj. .The, agents agree to fit the stalls in, tHe style at the pot,t'of Boat,on, to'thfl satisfaction of, ips.peqtors 'bf Boston insurance companies', and'the shipper, who will assume':iHrespoDsibility for same. and. 'fol'! ,var1i0urrapplianCl'80f ven!tilation" aftershifi,IP'ent of the cattle; and the steamer Caledonia undertakes to supply sufficiflnt good condensed water for the use of the animals during the voyage. AlJ water casks, buckets. hose, and similar'appliallCt>s "must be put on board by shipper of the cattle. A reasonable supply of fodder for the animals will be carried by the steam-ship Caledonia, free of freight; Jmt freight, if demanded, shall be payable on any unusual eieess'otl at port of destination. Hay and straw tQ,be in qom,pressed bales. Caledonia will also furnish free steerage! pa:ssliite fo1!\ittlihdants (iJot"'akceedhig 'obe man to every thirty cattle) over and return, prOViding them witll the necess&ry agree to notify the said shipper. at least ot tWelve of sljipper deliver the cattle to steam-shlp within twenty-foul' hours after expiry: ot due notice, as aforementioned. steamer is to bt\ve.liberty to sail.' and freight i8 to be :(Ii the: ,'The steamer Cal!':qonia agrees ;tp' tq
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'I'RE CALEtlONIA.
ol1slM1t1 kllles when incurred.' The cattle are1lo be delivered lind received from' steam--ship's decks immediately on arrival at the port of destination. Tllll Ship.:' per agrees, to ship all the cattle the steam-ship, can' carry,'as above mflntioned,' paying fr,eighton same at the rate of shillings 'British sterling .per' bUllock for allcattlfl shipped., Tbe shipper'sgrees to prepay freight on the aboYI'-mentioned shipments- in current funds, at first-class bankers. selling00 the number of cattle shipped at Boston, vessel lost ratt:' for sight or not lost, and irrespective of the number landed at the port of destination; and the shipper assumes all risk of mortality 01' accident,however caused, throughout the voyage.' The shipper ag-rees to deliver the cattle on the date and hOllf; ordered by the of the steamer. or pay demurrage of the stea!Dship for'allor any detention incurred by his failure to do so. In case of nonarrival of vessel In time to sail from Boston on or beforell:lth June, shipper has option of cancellation. Any dispute arising on this contract to be settled by arbitrathm in the usual way io Boston. HENDERsON BROTHERS." OF LADING.
"Shipped alive, by M.Goldsmith,and at risk, in and upon the steam-ship called the · Caledonia,: now lying in the port of Boston, and bounel for London, t,wo hundred. and seventy-four bead live ,cattll', to be delivered from the sbip's deck at tbeafol'esa.id port of London; the act of God, the QUeeri'$:-enemies, pirates, restraint' of princes and rltlers, perils of the seas, and·land tl'ansit, of 'whatever nature or kind, restrictions at 10sII 01' damage from delays, collision, straining, explosion" ,beat, fire, steam-hoilers and ,machinl'ry, or defects therein, transescape" accidents" mortality, disease, ordeteriora. tion invatue,. nt'gligence, default, or error in judgment of pill/ts, master, mariners, engineers, stevedores, or any otlll'r person in the employ of the steam-ship cYrl of' the owners Or their altents, excepted ;wHh liuerty to sail' with or, without pilots, to tow and assist vessels in all situations, to call at any port or ports to l"eceive fuei, load. or discharge cargo, or for any other pur. pose, the event oqhe putting back to Boston 01' into 80y othl'r ()r. bei og prevented from, any cause 'rum proceeding in the ordinary course' of Mrvoyagf', to transship by any other unto order,or to bis or tbeit'assigns. 'Freight for the said stock to be paid withollt any allow<lnce of' -credit or discount, at the rate of £2·5-0 sterling for each animal shil'p..d :oil"deck, and £2-5-0 sterling for ellch animal shipped under deck, or not, ,vessl'lJostornot lost, cattle jettisoned in all orin part; . or av.erag!: acl:\lstomed. In the eVl.'ot of the loss of the· vessel,. of her at the said port, or of the cqnsi;£nee neglecting to pay thllfreight upori the arrival ufthe vessel, or neglpctiilgto pay the charges and t"xpetlses hilrein mentibn't:'d; shipper. in consideration of the waiVing of the payl11t!nt of the freight in advance, hereby binds and obligates himself to pay the,fl1eight aboveell;prl'8sed, ftod sllch <:harges and expenses, rlplln mlllJd. stipulated andagrlled 11)" tlleship!ler, as a condition of the sbil,mentdih"tbe will take chw-geofthe stllckdudllg'the vo)"age, tile vessel· furnillhingro\:ll.ter only; that, be. has, examined the condition of the steamer, ' the the stalls. ana the means of ventllat.ion. and approved of the. ,s"l11e, tbat no claim ishllil be made for any loss or damage resulting therefrom; that any mortality, sickness, or deterioration in the conllnion of the stock shall be prl'sullJl'd to arise from the condition of t11e animals when shipped, or from natural CallSElSi : OiJnsig'nees to entt:'r thl' property at thecustwe n after the ship, is rel?ol ted tlwre, and ;to lmmethately, /Ipon bt:'lllg landed, the agentllof the ship the expense ll.nd risk olthe ,shipper, or consignee of cargo.. POl'teragellf the delivi>ry,of the cargo to Le d()lle by agenus,oftl'48'1wip.attbe and frisk oUhe Lighterage;toD-'
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