# Dupont v. Vance

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## Dissenting Opinion

    Campbell
United States Supreme Court
60 U.S. 162
Dupont v. Vance
THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in admiralty.
As many points were decided by this court which were not raised in the court below, it is proper to explain to the reader how this happened; and this will best be done by tracing the history of the case from its commencement.
In December, 1852, Dupont de Nemours & Co. shipped at their wharf, on the river Delaware, an invoice of gunpowder in kegs, &c., the value at the place of shipment being, by the invoice, $6,325. The articles were shipped on board the Ann Elizabeth, bound to New Orleans, and owned by the claimants in this cause. Two bills of lading were signed by the mate, and delivered to the shippers. The brig sailed on December 21, 1852.
After the arrival of the vessel at New Orleans, the shippers filed a libel in the District Court of the United States for the eastern district of Louisiana, alleging that the following packages were missing, viz:
972 kegs powder, at $4.50. $4,374.00
563 half do. 2.37 1/2. 1,337.13
99 quarter kegs, 1.33 3/4. 132.41
12 cases canister, 7.75. 93.00
1,646 packages.....5,936.54
The libellants therefore held the vessel to her general responsibility for the non-delivery of the articles, and filed the bills of lading as exhibits.
After the usual proceedings in admiralty, John Vance, master and part owner of the brig, intervening for his own interest, and for the interest of the other owners of the brig, filed his answer in June, 1853. In this answer, he gave a narrative of the voyage, and alleged that the articles in question were thrown overboard for the safety of the vessel, and 'that unless the same had been thrown over, your respondents believe, and so allege, that the vessel would have filled and gone down.'
This answer was sworn to by the proctor and agent of respondent, as being true to the best of his belief or knowledge.
Evidence was taken on both sides. For the libellants, it consisted of the testimony of two persons in Delaware to prove the shipment, and the testimony of two persons in New Orleans to prove the unseaworthiness of the vessel, from examinations made after her arrival.
For the claimants, the evidence consisted of the notarial protest of the capitain, mate, and three of the crew; and also the testimony of a stevedore, who unloaded the vessel, to show her sould condition.
Upon this evidence, the cause came on for trial, when the district judge decreed against the stipulators for $5,936.54, less $270.95 freight, equal to $5,665.59, with interest from 15th January, 1853, and costs.
Upon motion of the proctor for the claimants, a rehearing was granted, and fresh evidence was taken. On the part of the libellants, it consisted of the depositions of two persons living in New Orleans, to prove the value of the powder; and on the part of the claimants, the depositions of three persons living in New Orleans, who were not on board of the ship during the voyage. Two testified to the condition of the vessel, and the third to some proceedings respecting an average bond.
With this additional evidence, the case came up again, when the district judge decided that the notarial protest must be rejected as evidence, and that, upon its being thrown out, there was nothing at all to prove the fact of the jettison. He therefore adhered to his former decree. The claimants appealed to the Circuit Court.
In the Circuit Court, additional evidence was taken on the part of the claimants, viz: the depositions of five persons, two of whom were not on board, but testified as experts; and of the three who were on board, two were passengers, and the third was one of the crew. These three testified to the fact of the jettison, and the circumstances under which it was made, and gave a narrative of the voyage.
When the case came up for trial before the circuit judge, he decreed that the claimants had sustained their answer, and dismissed the libel, each party paying his own costs.
The libellants appealed to the court.
It was argued by Mr. Gerhard for the appellants, and Mr. Bayard for the claimants.
Mr. Gerhard contended—
1. That the vessel was not seaworthy at the commencement of the voyage, and that therefore the owners were responsible for the total loss of the articles thrown overboard.
2. That there was such a neglect of proper precaution during the voyage as to make the vessel responsible.
3. That if the vessel should be held to have been seaworthy, and the jettison should be deemed to have been justified by the violence of the seas, still it was the duty of the master, on his arrival at the port of destination, to have the general average adjusted for a general contribution. (3 Kent's Com., 244; 11 Johnson, 323; Abbott on Shipping, part IV, chap. X, sec. 14, 5th American Ed., p. 611, note 1; 3 Sumner, 308.)
The argument on this point was concluded thus:
Now, it is admitted by the respondents that the libellants should be paid for their goods which were jettisoned. They are entitled to be recompensed, either in whole by the captain and owners of the brig, or in part by the contribution of the ship, freight, and cargo, in general average. But how can the libellants proceed to collect their pro rata contribution in general average, when, by the acts of the captain, his gross fault and inexcusable negligence, they are entirely precluded from pursuing this course? Where is the bond to secure them? How many of the consignees are mere agents for merchants living along the whole Mississippi valley? How many are insolvent? What are their names? Why did not the claimants deposit in court the amount they acknowledge they owe by the statement of their own adjuster?
This neglect of the captain has made the owners liable. (See La Code 2, 972; 4 Boulay Paty, 592-'3.)
Mr. Bayard's points were the following:
First. The brig was seaworthy at the time she commenced her voyage, being sufficient in all respects for the voyage, well manned, and furnished with sails and all necessary furniture, and, being so, reasonably sufficient for the voyage, the necessity for the jettison of part of the cargo, to save the vessel and the residue of the cargo, cannot be met by the allegation, that, with a stouter vessel, or one better manned, the necessity for the jettison might not have occurred. (Conkling's Adm., pp. 164, 165; 1 Curtis, pp. 155, 156.)
Second. The testimony shows that the necessity for the jettison did not arise from the worm-holds which were discovered after the arrival of the vessel in port, as the pumps were abundantly able to overcome any danger which could possibly arise from such a source.
Third. The failure of the master to use proper exertions to have the average account adjusted, does not render the brig or owners liable for the loss by jettison, nor is any claim made in the libel for an alleged negligence of the master in this respect.
Fourth. The claim of the libellants for contribution against the other shippers and the owners, is not affected by the laches of the master, but the contribution may be recovered either by a suit in equity against all, or by several suits at law against each party who ought to contribute; nor is the right of the sufferer affected by the delivery of the cargo to the respective consignees without taking an average bond. (Abb. on Ship., pp. 207, 208.)
Fifth. The measure of damages, where the contract of affreightment is not performed, is properly the value of the goods at the port of shipment, with interest for the time when they ought to have been delivered. (Conk. Adm., p. 185, et seq.)
Mr. Justice CURTIS delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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