Page:Federal Reporter, 1st Series, Volume 3.djvu/349

 842 FEDERAL REPORTBB. �excess in the cargo actually received. Thîs consideration appears to have been overlooked in the case of Abbe v. Eaton, 51 N. Y. 410, which, with Meyer v. Peck, are the two cases most nearly in point upon the question now presented. In Abbe V. Eaton the stipulation was as follows: "Ail damages caused by boat or carrier, or deficiency of cargo from quan- tity as herein speciiied, to be paid for by the carrier, and de- ducted from the freight, and any excess on the cargo to be paid for to the carrier by the assignee;" and it was held this ■was not an agreement that the bUl of lading should furnish the only evidence of the quantity. Some emphasis is placed on the word "damages," in the opinion in this case, and it is suggested that the stipulation should be read as though the carrier were to pay for such a deficiency only as might resuit from his own act and cause damage to the consignee. �Neither of these authorities are precisely in point. I am not disposed to dissent from Meyer v. Peck, but in Abbe v. Eaton, as it seems to me, the obvious meaning of the contract, as evinced by the language employed, bas been made to give ■way to an artificial construction which is not sound, accord- ing to technical rules of construction. The bill of lading pro- vided that a deficiency in the cargo, as specified in the bill, should be paid for by the carrier, and an excess should be paid for by the consignee. The parties had a right to make just such a contract. It was a contract well calculated to prevent the constant disputes and litigation arising with ref- erence to shortage between carrier and consignee. The car- rier has an ample opportunity to guard against mistakes, aiid so has the shipper; but the consignee is entirely in the dark as to whether the cargo agreed to be delivered has been actu- ally laden, or whether it has disappeared on the trip. It is just that the consignee should pay for what he actually receives, whether more or less in quantity than is expressed in the biU of lading, and it is just that the carrier should be held eoncluded by his admissions as to facts completely within his own knowledge, and of which the consignee is ignorant, I am unable to see what language could be chosen ����