The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1849-11-25

the Secretary OF the Navy should require With all
officer We mast stl oonstrus the contract and give
effect to It, according to the conviction Of our own
judgments No doubt all parties, 1t respects the
government stopped from controverspg the vail
dty Of the Hen II the ships should be accepted
and the advance not refunded by the discount of the
defendants subject to the isn and sale under the
mortgage, unless they discharge II by payment. The
mode OF executing the mortgage or the mortgage itself
structon, vary or modify this contract Of the lth
Of August That is between different parties, and
involves different interests and rights The con-
cluson at which we have arrived upon this branch
Of the case, disposes Of the question ~ to the
removal Of the trustees; and, . necessary conse
quence, the appointment Of receiver, and the grant
Ing Of an injunction 1t also dsposes Of the question
arising upon the registry Of the Ohio AS has not
yet come under the trust. the registry properly
entered In the names Of the builders and owners In
respect to the delay in the and equipment
Of the steamships, and the action Of the court
prayed for in this preliminary proceeding, founded
thereon 1t is sufficient answer to say that from the
affdavits read upon the hearing, 1t appears that it
has been assented to and acquesced in by all the
parties concerned and has been occasioned by the
very great enlargement Of the tonnage and cspa-
city OF the ships, not only sssentsd to BY the
complainant but adopted by the defendants upon
his urgent solicitations Four Of the ships provided
for In the contract be Of the size Of fifteen hun
dred tons burden, and machinery in proportion. The
two nearly comprehensive Georgia and Ohio-ths
latter entirely with the exception OF copperng are
smo,t equal In tonnage to the four with machnsry in
proportion and stated in the opposing adavits will
cost an amount nearly equal to the cost Of the four
therefore, be naturally expected The complainant IL
deeply interested In the enlargement the defend
ants the government we're also Interested ~ one Of
the of the act of Congress- providing for the
construction eventual EN- ploy ment OF them in
the naval service Of the county for this the act
provides that they shal be render
them convertible ut the least possible expense, into
steamers Of the first class" The contract con-
tains similar provision and also for the taking OF
them into the exclusive service Of the government.
In respect to the preliminary arrangements with the
government, by which the Ohio and Falcon are en-
MD ed in mai serv bet NsW Ork Ia
Orleans, and Havana and Chagres, and the equities Of
the com paiDant in the earnings Of these vessels no
questions arising out of them nquirabe into In this
stage Of the proceedings These will properly
when the is ready for final hearing the plead
ipgs and proofs The motion for receiver and I'M
tion must be denied.
The Steamboat Rhode Island ads The Ndueatuek Trans
portston Company--ln Appeal JUDGE NElsoN-The
principal question is whether the beants entitled
to damages, in q Of collision. for the delay and
loss OF trips with their boat while she Is undergoing
the pecessary repairs The com missioner below al
lowed a compensation, which, according to the evil
dence would have enabled the to have supplied
the place Of the damaged boat and continued her
her place in the line, which $50 per day. On
exception this allowance set aside BY the court be-
the report sent back with directions to
tain the value the before the collision and to
allow six per cent. interest upon that amount rs cspi
tai invested In the boat do not understand this d.
reston intended to be laid down general rule to
govern Of this kind, but approximation to
indennitythe particular case under the peculiar
circumstances 1t was an allowance for supposed or
apparent loss incident to the damage done by col
sion for where settled rule could be found and in
respect to which opinions whether anythng should be
allowed not and II anything by what rule to be de-
termined conflicting and unsettled The difficulty
Is intrinsic arising out Of the nature and description
OF the loss the precise amount even reasonable
approximation to It cannot be ascertAined by the ap
plicstion Of any known fixed rule On this ground,
case, in the supreme Court q n Y (2i wsnd, s1a,
Blanchard vs.. Ely) That some loss enters into the
general damage TO the vessel on account OF the time
necessarily consumed In making the repairs 10 obvious
enough and results directly from the injury but the
difficulty lies In finding any rule by which to ascertain
the with the certainty required by law that IL
contingent and speculative, and depends upon the
profits Of the business In which the vessel engaged
II the owners had hired another vessel Of the KIND to
dergong repairs for reasonable compensation, there
mig have been something tangible the amount ac-
do not say this ~ouid be free from dicuty or that
II could be brought within any Fixed rule OF laval
to H. that there would be less
in the allowance than in the before where the
party did not at TO the risk and responsible
hty Of substitute. Tbs char.cter and profits Of the
busness the grounds doubtless upon which to de-
temns whether would be expedien for him 70 60 to
the e1pepse and trouble Of procuring another vessel
risk, perhaps which he had right to assume and
as the expense Of IL oocasioped by the collision
there would to be proprety In the allowance
a. an item OF damages But these considerations de not
enter into the when substitute has been pro-
cured How far the Court would feel itself In the
allowance, where weasel has been actually employed 10
question do not intend to determine As before said,
there dcutiss It. which should lead to
caution and hesitation in the adoption Of that sum
question whether 1t was practicable procure another
vessel; for IL it not after fair endeavor the al
been In fact obtained. Upon the whole, sm not In
opsd TO interfere with the allowance rs made not be-
cause hpk II founded upon any fixed or established
principle but because IL ust enough In ITSELF aud
have not been able to ind any principle that would
justify the adoption Of higher measure ofdamsses In
the given case The remaining questions are OF minor
oopsIderstop, and 1 think the whole properly dis
poted Of Decree below Affirmed
John "A. Bradstset .. James Hsrron and Oh~rs -
l. IsaAu all Aslfy sYsd fh0
Court This IL . libel to recover Q balance due the
master for freight cargo q cotton shipped from
New Orleans TO New York. Dsfence-thst the cotton
vas net delivered In good order and condition and that
the the balance Of the freight. The bill
OF lsoiug sgnes by the master admitted that the cot
ton received board the ship NJ New Orleans In
coed and well conditioned and stipulated TO de-
liver IL In like good order ct the port OF New YORK
The respondents Of the cargo and had
advanced large amount upon the cotton, the faith
OF the bill OF sding II IL admitted. that the words.
in good order ana we'll conditioned In the bill Of
ladnr have reference to the external condition Of
ths cotton that Is that the article was In good ship
ping condition at the time received on board aud does
refer TO warrant the internal quality state or
condition OF the cotton In the bale The question,
tbsrefor. TO- whether the cargo had sustained damage
from defects In the bsgging and manner OF securing
the bales frop injuries externally In the Transports
top damage existing externally and previous TO
the loading on board occaionsi BY exposure TO raj ms
wet weather without proper protection; or BY any
other IN usage in their interior transportation bsfors
u reached the ship sns which was readily visible upon
inspections or whsth.r no damage vas occssionsd BY
the internal had condition of tho cotton Witch vas n
visible to the eye at the time OF Shipment and could
be detected only by cutting the bales and inspect
ing the interior state and condition OF the srtice The
cottsn H. called country damage resulting from the
bad condition Of the cotton .ben baied, or rom
exposure to bad weather III usage In the interior
transportation and which nj the time OF shipment Is
not discoversble from an inspection OF the bales
Upon this question the testimony 10 seme~hst con-
nictipg ana contradictory but cobcurs generally In
the fact that the cargo was IN bad ship-
ping condition when u arrived aud was delivered At
this port that large part OF the bales we're old and
ross badly torn and damaged aud the cotton there
In consequently bros.n and disordered aud TO some
extent toied and damaged by exposure In tbs ship
me Mt and delivery. 1hs picker and mepder, who
overhaul.d the cotton aud put &c In order states that
10 was In bad order u the bales were rotten,
nun Der with roper of aud baysing torn portion OF
the baggipg old and rotten znd portion damaged by
wettibg that he oveihauled some Two hundred bales
Of the i've hundred and that several Of thsm had
burst open want ~ The injury to the
cotton bly,. FROM what is termed cosntry
dsmsge Which. m many Instances, arises out OF tbs
condition Of the cotton at the time II Ia bslsd being
vet. or not properly hued for ortation, aud
which damage Invisible t. the eye On inspection 81
tn. time oi shipments but, IN this instance the ~vgh'
eytde shows pretty tstsctOriiy that the