The Alene. THE ALENE. If a general ship carries, in winter, oranges, which cannot be safely discharged in freezing weather, and agrees to deliver them in good order, she takes the risk of such discharge, unless she protects herself against it by some provision in the bill of lading. The negligence of a vessel, in allowing oranges to be frozen in discharging them, is not "the act of God," or the "effect of climate," within the meaning of provisions in a bill of lading exempting the vessel from liability for damage to cargo by those causes. In accepting a bill of lading of cargo the shipper accepts the terms of the contract it contains, and the consignee of the cargo cannot be heard to say that the shipper did not know the contents of the bill of lading, or received it after the shipment, or that the consignee did not know its contents, or that a clause in it limiting the liability of the vessel to "the invoice cost" of the cargo had been waived in other cases. Such a clause, when it is distinct, is operative. Where oranges are discharged by a vessel, after notice to her by the consignee not to discharge them, because of freezing weather, the consignee has no duty to take care of them, but they are in the custody and at the risk of the vessel. (Before BLATCHFORD, J., Eastern District of New York, August 31st, 1885.) THIS was a libel in rem, in Admiralty, filed in the District Court, to recover damages from a vessel for negligent injury to cargo. After a decree by that Court for the libellant, the claimant appealed to this Court. This Court found the following facts: 1. "The libellant, Gerhard Wessels, was and is a merchant, doing business in the city of New York. 2. The steamship Alene, mentioned in the libel herein, was and is owned by the Atlas Steamship Company, Limited, the claimant, a corporation organized and existing under the laws of the Kingdom of Great Britain and Ireland. She was, long prior to the filing of the libel herein, and continued to be down to that time, one of a regular line of steamers, some of which belonged to and others were chartered by the claimant, and all of which were managed by it, and which formed a regular line of common carriers for the carriage of passen The Alene. gers, mails and cargo, between the port of New York and divers ports in the West India Islands, one of which was the port of Kingston, in the Island of Jamaica. 3. The steamers of said line had regular days of sailing from the port of New York and the port of Kingston, aforesaid, which were advertised for about a month in advance, and which, with some few exceptions, were regularly kept, and were relied upon by persons dealing with said line, for the transportation of passengers and freight; and also by the Government of the United States and that of the Island of Jamaica for the transportation of the mails. 4. The said steamship Alene and the other steamships of said line were general ships, and carried cargoes of various descriptions and for divers persons, as common carriers there of. 5. The libellant had, for many years prior to the month of December, 1880, been engaged in commerce between the Island of Jamaica and the port of New York, and, in the course of such commerce, had had frequent dealings with the claimant, and had frequently entrusted the claimant with oranges, to be transported from the Island of Jamaica to the port of New York; and he was, during the month of December, 1880, and long prior thereto, well acquainted with the facts specified in the second, third and fourth findings, and with the custom of the said line and of the port of New York, specified in the eighth finding. 6. In the month of December, 1880, the said steamship, which was a vessel of 2,200 tons, gross tonnage, was loading in the port of Kingston, in the Island of Jamaica, and bound thence to the port of New York. The firm of John C. Fegan & Co., on the 22d day of December, 1880, at Kingston, delivered to the said steamship Alene 1,230 barrels of oranges, in apparent good order, to be delivered in like good order and condition to the libellant, subject to the terms and conditions stated in the bills of lading therefor, which were thereupon delivered by the claimant to the said shippers, and which are marked, respectively, libellant's exhibit 2 and libellant's exhibit The Alene. 3. On the same day, Richard Waite, at the same place, delivered to the said steamship 137 barrels of oranges, in apparent good order, to be delivered in like good order and condition to the libellant, subject to the terms and conditions. stated in the bill of lading therefor, which was thereupon delivered by the claimant to the said shipper, and which is marked libellant's exhibit 4. On the same day, W. Climie, at the same place, delivered to the said steamship 27 barrels of oranges, in apparent good order, to be delivered in like good order and condition to the libellant, subject to the terms and conditions stated in the bill of lading therefor, which was thereupon delivered by the claimant to the said shipper, and is marked libellant's exhibit 5. The 4 bills of lading and the stipulation in the apostles, dated "Jan. 30th, 1883," were put in evidence by the libellant. 7. The said steamship having taken on board said merchandise, proceeded therewith to the port of New York, and arrived at her dock in New York, pier 51, North River, at about one o'clock in the afternoon of Wednesday, the 29th of December, 1880. She gave no notice of the time and place of discharge of said merchandise to the libellant. 8. The custom of said line of steamships, and of the port of New York, at the time of the arrival of said steamship, was, and, for years prior thereto, had been, that merchants and others doing business in said city learned by telegraph that the steamers by which they ordinarily received, or by which they expected, cargo, had arrived off Sandy Hook, and thereupon said consignees inquired at the office of the lines to which said steamers belonged for the manifest of the goods. on board of said steamers respectively, and ascertained in this way what cargo they had on board consigned to them. Thereupon it was customary for the consignees of oranges from the West India Islands to send to the wharf at which said steamer usually landed, and receive their fruit as fast as it was dis charged from the steamer. 9. The libellant ascertained early in the morning of the 29th of December, 1880, that said steamer had arrived at VOL. XXIII.—22 The Alene. Quarantine and was on her way to her usual pier in said city of New York. Thereupon the libellant inspected the manifest of said steamship Alene, and requested the claimant to make out a bill for the freight of the oranges on board of said steamship which were consigned to the libellant, and it, and the delivery order for the cargo described in it, were delivered to the libellant, who accepted the same and gave to the claimant a check for the amount of said freight. The libellant also, on the morning of said day, applied to the collector of the port of New York, and received a permit from him for the landing and delivery of said oranges mentioned and described in said bills of lading, and the claimant also on said day applied for and obtained from said collector the license, claimant's exhibit B, and Henry E. Wessels, a son of the libellant, and in his employ, took the said delivery order and permit, and went to the dock where the said steamship was lying. 10. The weather was very cold at the time and growing colder. It was snowing, and the wind was blowing strong from the north across the pier. The range of the Fahrenheit thermometer from and including December 29th, 1880, to and including January 3d, 1881, was as follows: December 29th, maximum 15°, minimum 9°; December 30th, maximum 4°, minimum 5° below zero; December 31st, maximum 13°, minimum 6° below zero; January 1st, maximum 21°, minimum 4°; January 2d, maximum 26°, minimum 13°; January 3d, maximum 35°, minimum 15°. 11. The steamship Alene lay on the upper or north side of pier 51, North River. This pier is at the foot of Christopher Street, on the upper or north side of Christopher Street ferry slip. The pier is upwards of 400 feet long, built upon wooden spiles, and covered. The lower or south side of the pier formed the upper or north side of the Christopher Street ferry rack and was boarded up. The north side of the pier, where the Alene lay, had some twelve openings, each opening being about 18 feet wide and 20 feet high, with two doors for each opening. The river end of the pier had a large open The Alene. ing and door, and the street end of the pier had a large opening, with nothing but an open gate made of iron bars to protect it, and having an open space above it of about 18 to 20 feet, not closed at all, but always open and exposed to the weather. 12. Jamaica oranges will chill at a temperature of 32° Fahrenheit, and will freeze at 25° Fahrenheit. 13. There were on board of the said steamship at that time 3,872 barrels of oranges, consigned to 16 different consignees, which were stored on the upper or fruit deck of the said steamer. The remainder of her cargo was stored on the orlop and lower decks. 14. The other consignees of said fruit, on the 29th of December, 1880, immediately upon learning of the approach of said steamer, ascertained from the claimant the amount and description of the fruit consigned to them respectively, and requested that the same should be delivered to them. The said steamer, immediately upon arriving at the pier, opened her hatches and proceeded to discharge the barrels of oranges which were on her fruit deck, and 800 barrels thereof were placed upon the said pier before sunset on the 29th of December, 1880. 15. It was impossible to discharge the oranges of the other consignees without discharging the oranges of the libellant, and the latter were unladen and put on the pier, part of them on the 29th and part of them on the 30th of December, 1880, and all against the objection and protest of the libellant. The oranges were frozen almost as soon as they were landed. 16. The temperature and the weather were almost exactly the same when the libellant demanded and procured said permit and delivery order, and delivered to the claimant the check for the freight, as they were during the afternoon of that day. 17. There has always been a custom and usage in the port of New York not to discharge oranges and green fruit from steamships or vessels when the weather is cold enough to in |