The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-09-25
u 8 Circuit Court.
DECISION IN ADMIRALTY ON APPEAL.
Rp Ghiaf Inafioa Nals0n

SEPT 24-Andreu DedehaD Us Fyuncs Voss a. al
the OF bunds % n. ,od son ,o Ne Car
tie upon Tyre 20 tina port OF New York The bill Of
ding Ia daed l6tn May 1850 and contains at the foot OK
It The exception, not accountable Tor rust" On tho
discharge Ct the cargo, portion OF tins found in
urtd BY rust and ths consrees GAINED dsduc ion from
OF he amount OF the IRON which WAS
refused and this libel fled claiming che whole amount.
The answer seta that the damage oc5asinsd by
the agents Of The ship aaa tue loss oy the rut
amounted to hund ed and dollars and four
teen and tender OF the amount % the freight,
and above this and the money b ought Into
court Evidence taken in the irt oslow respeet
to the sosage OF the on by whica 1t appeared that
the portion can aged by rust slowed at ire bottom OF
the chip, under la,ge quantity Of coal sud tnsJ ths
rust vas occssioned by this stossgs. TIE court
below held the tender sufacent to cover tho
the bssr 90 Of the freight, and above he damage
and dismissed the libel with costs 1t been urged
the appeal that the exception IN the BIZ OF fading
although the rust bs s,tioutabs the defective stow.
age But cannot agce to this doctrine. Esen in the
can be shesp that the goods might hsye been saved BY
the due nd proper and dill o. master ara
crew tbe teri the ship s ans SCRABBLE
cover negligence or want of duty the part OF
the carrier Whether the carriers their employees
ieul.e for negligence or unskfulress in The fuldlmsns
Of their undertaking, within soand priadpss of public
policy, i perhaps not exactly jadica settled bet it
may Is least be safely said that il any such right
be up 1t be in pursuance Of An express and
positive agreement TO that effect. wha. may be the
same thing; Necessary and uuAvodseIe Inc pic alton
Nothing Of tho kind IN cha bill % adfng In this
case, 1t Ia conceded the rust occssioned BY nssl
geDcs or untkalress Of the sto rage TIE bundles Of
good ORDER those undo, it, At the bottom Of the ship
more Or less damaged BY the rust The carrer, there
difficulty upon the question Of tenders On aecoun OF the
confusion and want VI precision IN toe evidence rolled
to establish it. Thsre s no doab hs: tns respondents
are entitled to an abatement of the freight claimed TO
the extent Of the loss upon the IRON 6u. IN order 20
avoid being charged with COSTS at least 70 entitle
themselves TO costs, they must maintain tsnder, or
what in the admiralty Will be reyardsd an sqai, allen .
before suit brought 1t IL in proof that Offer was
freight dsductDe this oss to Be- b. srbis,s
on or sale Of the damaged iron q. which
refused and the whole OF the freight dsmAnded
also that AFTER this, sae 1t auction took place,
with notice to the agents Of the ship and the
amount Of the loss in this way asceraAed. But there
seems to have been no offer actually MADE 20 pay the
bancs after thus spcsrt,ning i. ti made on tne anx
OF the answer 1t is quite clear, however, that tender
bad refused ..sp. q. Il r snor
before the auction sale took p and for sught that
pesrs they neglected TO attend the SALE take any notice
oft thereby leaving the implication that they still refused
to adjust the dispute In that And THE conclusion
be mAnsinei the tender the coming on
Of the answer all that could be essential support
this branch OF tbs defercs had been fact made
after the balance was ascstsined BY the sale the
would B: free from difficulty ard Z the cenaost ., the
ton of IL would have been but Idle ceremony from
the offers and refusa that previously took place. thsn
footing admit this tender could rot BE- main.
tanned according to the STRICT principles OF the
ounds in could me MOI n.y. y b.su bo r
ject Of set off at all in action at Law. 1t might
have been given in evidence In abatement OF the
amount of tie freight claimed. Ths doctrine however
Of the Court of Admiralty this subject Is less gtrn
gent Tender may be made In salvage cases. where the
amount in controversy Is quite uncertain and iuds
mite as here and will b upheld whsre there has
been less ormaty in making 1t than req ured by law.
The Court look to the subtAnce and good faith Of the
tram RAJ her than 70 tschaica fsrcs Of proceed
ing In the matter e VIM. Rob 176, $780, and PIP. 3S3,
1874. Ibid H. Crosby Grinnen, n. s., before
Judge Belts March, 1851 HAgg, 2is A. O. Rob, LOT,
gen br. 532) Upon the whole, therefore .hnk the
decree below might and should be affirmed