Page:Federal Reporter, 1st Series, Volume 7.djvu/506

 48^ FEDBBAIi BSPOBTEB. �fiimilar bills of lading, in Bets of four, were given and ac- cepted. The libellant's agent testified that of these four he had always sent ope to the libellant at Chicago, one to the agent of the underwriters of the cattle, one to the consignees at Liverpool, and had given the other to the foreman of the drovers on board. �The case does not, as it seems to me, corne within the prin- ciple of any of the cases cited, in which it bas been held that, as between ship-owner and charterer, the charter-party should override the bill of lading in case of conflict between them. If, then, the bill of lading is to be treated as the evi- dence of th€! final contract between the parties in those par- ticulars in which it is not found to contradict the previous contract, we are to cousider ^vhether its effect is to release the ship-owner from contribution for the cattle if thrown overboard to save the ship ; and, if that is its meaning, is it 8uch a limitation of the carrier's liability as the court should aphold ? It is true that the defence made by the answer rests mauily npon the allegations that the cattle were cast over- board, not because they endanger^d the ship, but because they were either already dead or so nearly so as to be beyond hope of recovery. But this issue presents a question of fact naturally diffi,cult to determine from the evidence. Unques- tionably numbers of the cattle are shown to have been dead, or dyingj when thrown over. Ail were greatly exhausted from want of food and drink, from the violence of the blows they received from the broken timberg of the pens and from each other, and from being thrown about by the pitching and roll- ing of the vessel, and from being drenched with sait water. Whether any, and if so, how many, it would have been pos- sible, when the storm abated, to have resuscitated and deliv- ered in Liverpool in merchantable condition, it would be diffioult to determine. The five drovers employed by libellant, who were. on board in charge of the cattle, contradict the officera of the steam-ship, and now undertake to say that a majority of the cattle, or; at all events the 20 or 30 which were near the forecastle hood, could have been saved, but it is evident they are speaking now with much more confidence ��� �