The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-10-09
u, g. Giro saft Court.
Decisions by Hon. Judge Nelson.
APPEALS IN ADMIRALTY.


Decisions by Hon. Judge Nelson.
APPEALS IN ADMIRALTY.
Der 7.-Janrette Broicr, Us. the Birk Eivtra
Hnbeck NELSON, The libel states that the
lying At the port of Antwerp, and bound for New
York. ten packages and ono basket of goods, the
same being personal baggage and tools, al in good
order and condition, and that the mate of the
sci, acting on behalf Of the master and owners,
dertoek and agreed to deliver the at the port
of New York, to the libellant, or her order, the
damages of the sea only excepted; that eight of
the packages contaned the tools of the trade of
her son, put up in boxes, and two others were
trunks secured by lock ana key, and that the two
trunks and tho basket contained ne personal ap-
parel belonging 70 the libellant and family. That
the Evira Hsrbeck arrived from Antwerp safely, in
New York, on the 18th of August, l94e, and eight
of the packages delivered according to the bill
of lading executed by the mate but that the two
ibellant, though the same have been reQuently
demanded The answer denies the allegations in
the libel, and AYERS that all the packages were
delivered TO the lbellant, received on board the
ship II denies al negligence and charges that
il any of ths goods have been lost, they were lost
by the negl gence and ca-elessness of the libeant
The proofs show that the ibellant and her fami-
ly emigrated from AK Ia Chapells to this country;
that their goods were packed in eight boxes, two
trunks, and basket, which were forwarded to
Antwerp by the railroad, tina. the family had taken
their passage TO New ork in the ship Roscoe, then
lying at Antwerp, and that in consequence of this
vessel having left the port on her voy age before the
arrival Of the boxes of tools and baggage by the
cars, il became necessary to send them On another
vessel They were sent accordingly by the agent
OF the ibellant, in the ship ElTira Harb,ck, aud
receipt bill of ladng, for the goods duly executed
By the mate, then in charge OF the vessel at the
por. Of Antwerp Mr.. RamaIele, the brother Of
ide libelant, saT the goo Is put on board the yes
ael, and slowed way In the hold, the usual place
for stouirg away merchandise On the arrival Of
the vessel at this port! the eight boxes Of tools
duly delivered to the order of the loellaat;
but the two trunks and basket could not be
found, and, Of course, have not been delivered
The libel has been filed 20 recover the value Of
these goods. The ground of defence relied on, is
that the goods were shipped on passenger ship as
personal baggage, belonging TO passenger or pas
sengers: and that, nasnuch as the owner did not
take his passage on board the ship, and pay the
fare, which would include compensation for the
usual baggage, no compensation was paid in this
case !or the freight and the ship was entitled to
none; and hence, that the master and owners are
TO be regarded as gratutoIs bailees, and response
ole only for gross negligence, to be charged and
proved IN the transportion Of the property. Nov,
10 the first place, there Is no evidence that the
llbellant and her family took passage in the ship
her. ON the contrary, their passage was taken in
the Roscoe, and on which ship they expected to
have carried with them their personal efe,ts, but
were disappointed in consequence of their
arrival in the from Aix-laC happele, when the
vessel sailed. 1t was then arranged with their
agent to Sc nd them in some other vessel bound for
Z. A scCOnQ
that the bcllant and her family had eng aged their
passage in the Elvira Harbeck, but changed their
minds, and sailed, 70 complete the engagement AID
took passage in another ship, sending their bag
gage, however, in the Harbeck, it By no means
follows that the ship is not entitled to feie ht or
that the owners are to be regarded as gratut)us
bailees, and responsible only tor gross neglect in
the transportation Of tn. goods. On the contrary,
cannot doubt they would be entitled to reasonable
freight money, and 70 lien the goods until paid
IN cases where the passenger accompanies the
baggage, the fare charged for his passage includes
compensation for its trausp ortatioa; and the
rier becomes responsible for the safe delivery Of it,
II sent without the passenger accompanying il,
the carrier, of course, may claim comp snsa lion in
advance Tor its transportation or may postpone the
claim for the delivery, and rely bis lien. or the
personal responsibility Of the owners and do not
see Why the rule Of responsibility for the safe keep
ing and delivery should not be the same in both
cases. The actual payment Of the freight in the oae
case and actual liability and lien for the payment in
the other constitute the consideration for the under
taking But it is sufficient to say, in this that the
proofs show an Independent shipment of the goods
IN question, uneonnected with the owner pls,en
ger and falls, therefore, within the case of the
ordinary shipment Of goods. The words {" personal
goods"-in pen il marks upon the margin Of tho re-
ceipt when put on does not appear-cannot alter the
nature Of the undertaking. They neither exempted
the owner Of them from freight, nor the ship from
responsibility a. most, it but description of
the character Of the goods put on board | think
the libellaat "a entitled to recover; and must,
therefore, reverse the decree below, aud refer the
case to the clerk to take the value Of the property
lost.
Albert "A. HanT u.s. The Ship 81 Mary
be merits in this case are very clearly with
the libeilant, and / think the decree below
maintainsble upon principles Of law | lay out
OF view the mortgage given upon thevessel to
secure the dcmand question, and put the decision
upon the original indebtedness. The mortgage
was only collateral and IN no way interferes with
the remedy upon the claim for which il was given.
That the vessel would have been chsrgeable for
tbs claim, in the hands of French, the vender,
think cannot admit VI n doubt. The Der ceutaee
sgreedby him to be allowed the libellant for fitting
out, proc airing freight and passengers for the vsy-
age ITO San francisco, pensatiou for the ser.
wee and responsibility constitute, in reassn as well
as in law, as valid charge against the ship as the
disbursement thenselves made in the course Of the
service, n furnishing stores, g.: in fitting her out
J cannot perceive any difference in principle. The
claim pattskes Of the nature and ch tracter Of the
disbursement, and the remedy should be the sane.
II would be absurd to distinguish between them
The reasona beness OF the amount ia not in question
as French determined that for himself anl IL was
a matter in which he alone was concerned at the
time. For sOeht that appears the compeus alton
Was the customary rate alto we'd in fitting up aud
ireighiiDg these California passenger vessels.
As u respects other parts Of the claim which
! - conceded are properly chargesble against
the shp, ] do not sgree With The counsel that
eaeh cain must exceed the smouut Of City
collars, IN order to bring the lien within the
state statutt--(2 X. ;. I93). IL is sufficient
u the amount IN the aggregate reaches that
sum. agree that Shines 4 naisr had a prior lien
onthe the five thousa dollars and interest
the balance Of the purcha money nj the time they
resumed the possession Of her "a that they were
entitled 10 the payment out Of her proceeds,
before any distribution % the hbelant But then
It must be rememb cred, when he vessel passed into
their hands, under the Arrangements of the I'D No
vember, French bad an interest to the amount OF
$1,000 IN her, be having paid that portion of the
puTchate money. This interest passed into their
hands on the re transfer, and fairly subject to
the charges Of the lbellant She was am DE scou.
rty for beth demands. Beyond this balan nee Of the
purchase money. Shines 4 IIafer had no prior lien
on the vessel over the lib liant and il - apparent
from the t1ansacioni between all the parties that
they were fully aware Of his claim At the time
81 The arrangement ct the 22d Move IA Der The
hlclisIt had been engaged 10 equpping the
chip, and procuring freight aud passengers, from
the 18th september down to the 18th October,
when Simes IisGer became jointly concerned