Atlantic Fish Co. v. Dollar Steamship Line

PRESTON, J.

This is an action to recover damages for detriment to a shipment of dried fish. The complaint pleads a contract between the parties whereby defendant agreed to carry said shipment under refrigeration from Boston to San Francisco and its failure through negligence so to do, as a result of which plaintiff sustained damages in the sum of $1,738.51. The answer denies these averments and sets up as a defense a contract to carry said goods under ventilation only. Made an exhibit thereto is a bill of lading to this effect, -with the requirements of which faithful compliance is pleaded. Verdict and judgment were for plaintiff in the amount claimed, but upon motion of defendant a new trial was granted, predicated upon alleged insufficiency of the evidence. Defendant offered no testimony. The facts are these:

In July, 1924, plaintiff, through correspondence, purchased from Gorton-Pew Fisheries Company, Ltd., of Gloucester, Massachusetts, three hundred eases of codfish, upon the express understanding that the goods would be shipped under refrigeration to Boston, there to be transshipped under like refrigeration to the purchaser at San Francisco on board the steamship “President Hayes,” one of defendant’s vessels which touched at Boston and New York and was scheduled to sail about August 12, 1924. " On August 4th and 8th space was reserved on said vessel by the shipper for plaintiff, which reservation read as follows: “Please arrange to store under refrigeration at a temperature of 35-40 de

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grees, sending forward on collect basis, sending bills of lading to us at Gloucester. . . . Will you kindly make notation on the bill of lading showing at what temperature these goods are stored.” On August 8th the goods were shipped to Boston and on or about August 12th they were received by defendant on board the “President Hayes” and bill of lading was issued and delivered to the shipper in accordance with instructions and providing for shipment under refrigeration.

Following the issuance and delivery of said bill of lading and after the goods were on board and bound for San Francisco, via New York, to wit, on August 13, 1924, the shipper wired plaintiff at San Francisco as follows: “Dollar Line advised refrigerator compartment on Hayes disabled. Unable to handle shipment under refrigeration. Goods now on board bound for New York. Can store where it will receive ventilation. Shall we authorize or have shipment held at New York for next steamer? Answer quick.” In reply to this message plaintiff wired on August 14th: “Authorize Hayes shipment to come through under ventilation.”