Kemsley, Millbourn & Co. v. United States

How it can be supposed that the written addendum to the copy of the Morristown’s manifest was competent proof of transshipment we do not see. It is urged that it is in the same hand as the signature of the ship’s agents at Sydney. We should say not, but we cannot be called on to act as experts in handwriting. Our ruling in The Spica, 289 E. 437, is not to be taken as throwing all rules of evidence to the winds. Nobody knows under what circumstances the addendum was written, who wrote it, what connection he had with the transshipment, whether he had first hand knowledge, or, if not, whether his information was reliable. Again, no excuse is suggested for failing to produce the testimony of someone who did know. It is not to be supposed that evidence of every sort is competent in the admiralty. While the rules are not so strict as elsewhere, we do not expose litigants to proof whose verity is not vouched for by some reasonable assurance. Assuming that the ship’s agents supposed the goods to have been transshipped in fact, the libel-ant had no means of ascertaining the ’sources of their belief, of cheeking its reliability by cross-examination, of testing it by an inquiry into how the ship’s business was done, and how its records were kept. Even if these defects in the proof are not absolute, the respondent had over two and a half years to procure better evidence, and does not suggest that it yas not available. The hazard of such proof is an insurmountable objection to its receipt.

The interrogatories are equally incompetent. Assuming, but in no sense deciding, that they are the equivalent of discovery in equity, they were the most patent hearsay, and as such would not have been competent even in equity. Clark v. Van Riemsdyk, 9 Cranch, 153, 3 L. Ed. 688; Dutilh v. Cour-sault, Fed. Cas. No. 4,206; Hanchett v. Blair, 100 F. 817 (C. C. A. 9).

We shall assume without deciding that the limitation clause in the bill of lading was valid. If so, it was a partial defense and must be pleaded; the amendment at the trial exposed the respondent to affirmative matter in reply, and under the circumstances it was not entitled to further delay. We accept the respondent’s position that the testimony of Young as to the Morristown’s movement was incompetent as hearsay. Nevertheless, delay, as well as departure from the usual course, may be a deviation. Oliver v. Maryland Insurance Co., 7 Cranch, 487, 3 L. Ed. 414; Columbian Ins. Co. v. Catlett, 12 Wheat. 383, 388, 6 L. Ed. 664. The delay in the case at bar, nearly six times the length of the usual voyage, being unexplained, was prima facie a deviation.

However, the invoice value of the nails was not the measure of damages.

Decree modified to award full damages in accordance with the rule properly appertaining, and, as modified, affirmed.