The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-10-03
Layy. Intelligence

UNITED STATES CtRCuIt COURT, Oct. Present,
Jun tees Nelson and Charles Mission,
vs. Tobias Lord This action to u
of money In the defendants hands, under the follow
ing circums nces:-TLe plaintiff shipped at the port
of New York TO Havre under charter party entered
into by his and the defen agents of the
owner OF the bark Dana, on the 18th Of December,
1886 n cargo of flour wheat corn &c the freight to
he on the arrival aud discharge of the cargo
at The port Of delivery The bills of sding bear date
the 10th and 23d Of January, 1S47. The plaintiff
sides in France, and the cargo was purchased and
shipped by the house of Morret Robert, his agents
for that purpose in this city. The ship sailed the
9th January, and after being out a few days,
overtaken by violent storm which crippled her. aud
caused her TO spring leak 10 that notwithstanding
potion Of her cargo was thrown overheard for the
purpose Of tightening her, the damage to the vessel
serious that the captain was obliged to
put back, and arrived on the 10th of February.
IL necessary to discharge the remaining cargo for
the purpose of repairing the ship, and Of it,
ltbe cargo) 1t was found damaged by the salt
that IL would not bear portaton, would
the .bipme mt have been safe for the vessel in
the then condition OF the cargo. The shippers NJ. 4
refus ed to interfere having authority from the
plaintiff butte purchase and ship the goods; and the
master under the circumstances. deemed 1t best for
the interest Of all parties concerned to sell the cargo
public auction. IL was sold accordingly the net
rIocs IDS amounting to S157s9 IL The purchasers at
considerable labor aud expense dried portions Of the
wheat that it was afterwards sold for full price the
greater part however damaged 1t sold at inferior
prices. The freight upon the cargo, according to the
charter party, amounted to 1884 so. The ship
repaired and sailed with cargo the 10th
March on voyage to Belfast ireland, the freight of
which that which would have been carried
to Have. The defendant agent OF the ship ner
ceived the proceeds of the sales of the damaged
amounting to s15TsS IL to recover which the action is
brought The defendant claims deduction OF the whole
amount of freight under the charter party, which
raises the principal question in the case
NELSON. Justice We have looked into all the
in the hoe ks the question both English and Amer
can, and satisfied that the weight OF authority
is decidedly against the allowance Of any freight
under the circumstances of this between the
and ship ptr. Whether the underwriters would
be liable under the policy is not necessary to ex.
press our opinion. We think, ais, thct the
clu be
of the parties the freight not to be payable
until the arrival and discharge Of the cargo at the
port of delivery No part of it has been performed;
there has been default the part Of the shipper,
has he done any act dispensing with performance
There is doubt that where the cargo Is much
dana ged that it will endanger the safety of the ship
become worthless by proceeding with the voyage 1t
the duty Of the master to land aud sell at port
of in the absence of instructions frcm the
shippers. though 1t may be in condition to be
carried to tie port of destination and there landed
In cases Of necessity happening during the voyage
the master is by created the agent for the benefit
Of all concerned and bis acts done under such cir
cumtt noes. in the exercise Of sound discretion.
binding upon all parties in interest But the que ion
t arises does this confederation subject the shippers
to the payment of freight The voluntary acceptance
Of the cargo at intermediate port by the shipper
is admitted will have the effect to charge him for
rsteabe portion Of the freight but have found no
and of Of the goods the port OF ship
ment. when nc part of the voyage had been per-
formed, but the contrary. In several cases freight
has been denied but what seeus decisive Of this case
all Of that class to which it belongs Is
that admitting the master to be an agent OF all parties
interested at the port Of distress; and that he has
acted fde and for the benefit Of all concerned in
the sae of the damaged cargo inasnuch as the goods
in aition that would endanger the safety Of
the chip and the lives of the crew II carried forward
IT. cannot be said that the voyage was broken up for
the be- net the cargo any than for the benefit
Of the shpowner That independently of any duty
that the owed to the cargo, under the existing
calamity, the interest Of his owners dictated the
breaking up of the voyages and being broken up
der those circumstances and for this cause and the
shippers having derived no benefit under their con
tract 1t II difficult to find any principle, legal equ
table that would subject him to part Of the freight
Fer these reasone in brief think the plaintiff Is
titled to the whole of the proceeds and under
the stipulation in the 1t must be referred for sd-
justment Of the balance due.
CoURr or OyrR AND TERMiNER, Oct 2'-The DC
ober terms q this and the Circuit Court were TO DC
opened this day by Mr. Justice Strong. HIS HONOR
however did not arrive and both Courts were opened
by Justice Edwards The Court Of Oyer and iermin
.r in mcdately adjourned, but the Circuit Court
i,nsipsd in sestfon until jury was sworn, after
which 1t was adjourned
superior Covnr, Oct. q The October term was
ctep.d by Mr.. Justice VaDderpool, ana jury swern
in a cause vas then cent Into the second branch
TO be tried nv MIR Justice SANFORD
Before Jutticc SAsproRD-Vm. Ntb'o VS.. TIE NORTH
.qmericen Insurance Compony.-This was an action