The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1851-05-31

belonging to third persons stand on the same foot.
ing 1t is true however, that the policy freight
in that case was valued policy.
1t is proper to add, that the standard Of freight
according to the usual and reasonable rate at the
port Of departure, is recommended by the consider
alton that it is something appreciable BY both
parties at the time of the contract. The other
theory leaves matters afoat, to be afterwards
trolled by distant and unforeseen contingencies.
When we speak of the usual and reasonable rate
of freight at the port of departure must be un-
dentood as contemplating the rate which could, in
the ordinary and legitimate course Of business, be
obtained by the ship-owner from others for goods OF
like nature. Because the owner might find ship.
pers who would contract to pay him $50 per ton for
the carriage of iron or hardware to California does
it follow that he can properly estimate the freight
Of bricks shipped by himself at that rate Putting
freight on bricks at $55 per ton as is charged in
the Russia's freight list bricks shipped by her
owner makes the freight at the rate Of about $l37
a thousand Could third person be found who
would have shipped bricks in the Russia, and con-
tracted to pay that price for their carriage! A
witness for the plaintiff, on his cross-examinaton,
says, he never knew any shipper, on his own ac-
count, to buy bricks here at 90 to 9l2 thousand
and pay freight for them the rate Of $l37 so per
thousand, payable here or at San Francisco" A
witness for the defendant says, consider it mad.
ness to make such shipment" Advices from
California, bearing date October 81, 1S49, and re-
ceived by merchant in New Orleans on the 18th
December. lS49, quoted bricks as worth there $40
a thousand.
We have thus given our opinion upon the promi.
nent questions of law presented in this case. Our
inability to agree, upon two important points, with
the ruling of the learned Judge of the District
Court, is perhaps sufficient reason for accedDg to
the application for new trial, which has been
earnestly pressed by the defendants.
But there is an additional ground for sustaining
this application. Upon the substantial merits of the
case, our minds are not satisfied to affirm the judg
ment.
The painful impression that the conAaeration of
the Russia was not accidental, which rested upon
the mind of every member Of this Court, at the
close OF the elaborate arguments of counsel upon
the facts of this case, has not been removed by a
subsequent examination of the evidence.
As this matter is to undergo further investiga-
tlon, 1t is not necessary that should CONNIE at
length upon the evidence. 1t is proper, however,
that we should state the principal points of diff
Guilty, which our minds have encountered in the
consideration of this cause.
The vessel, after interval of about fifty hours
from her departure from the South west Pass, was
destroyed by fire. at distance of few miles from
that place. Was her position the consequence of
adverse winds and currents, and the sailing quail
ties OF the vessel, or was it the result of design?
" hat progress had the confagration made when
the officers and crew abandoned her?
Gould assistance have been rendered to save the
vessel and cargo?
Does Payson tell the truth in saving that the
Captain told him there were ten or twelve barrels
OF powder on board; and Snow, in his asser ton,
that no attempt was made by the towboats to put
out the re, on account of the report about powder
was cargo for the owners account to the extent
asserted, on board the vessel at the time of her
destruction
Is the showing Of the freight list in the ordinary
course Of business?
Was there over-insurance, actual or supposed
nio !he asserted conversations of the Captain
with his paramour, before the loss, really take
place
These points of inquiry are not all of equal i'm.
Portance or equal difficulty, but they all have, in
greater or less degree, material bearing upon the
grave questions Of accident or design. Of fraud or
good faith.
1t is, therefore, decreed that the judgment of the
District Court be reversed, and that these causes
be remanded for new trial, according to law, the
costs of the appeal to be paid by the plaintiffs and
appellees.