The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-09-24
United States Circuit Court.
DECISION In ADMIRALTY ON APPEAL.

~ ~H~s~Ss WeDAp Ues Wv s.'S'~
Unisoa Seasss Circuit Court
DECISION In ADMIRALTY on APPEAL.
Before Chief Justice Nelson.
srr 23.-Waliaan Il Beocher and others w George =.
Bektes and others.-1his LIBEL nlsd com
pensatiOn for the 0ss aud damsge sustained by the
o.nsrs of the chip B1snovento for the tuldmsa of
charter party catered into BY the respondents Tse
vessel which was of tao hundred and fy tons burthen,
cha the "a of Oct0ber 8f0 to carry cargo
OF lumber and timber from Charleston O. to B,rcs,
vessel except the part necessary for tho
of the officers aod shs stossge OF ssi cables and
Who agreed 10 furnish full and complse cargo OF lum
Der and timber for the ard to pay for the freight
Su per thousand sups heih iest. Win avs per cent
Aongeds OF the vessel within reach Of her tackles the
chsrter to when the vessel ready to
thereof gwen The vessel In pursuance Of this charter
party, sived at the port Of Charleston ON the 4h Of
the ready to nsE nogn anS Il s
Of the shippers delivered for the purpose oeins shipped
on board tvo large masts or spsrs-ths one fenty-
inches round tnibers and sixty feet in length. The
lumber received through port Ia tho for ward
o ts length and Of
spars the port being only twenty four inches square
which would not receive timber Of the length Of the
The port hole Of the usual size for vessels Of the
burden Of the Buenovento. The master having waited
sixty three days all for lumber and timber suta
BILE to the and capacity Of vessel and the agent
Of the shippers refusing to furnish other lumber till
spars taken board Ia stng that the port hole
should be enlarged TO receive tem landed the
tcn Of the cargo on board 10 OF odsrs from
the in New York, ard left for another port bal
uuIess the cs go Of the ship was psted good deal
Of evidence has been taken both edss upon hs poa
whether not the port hole could have bsen enlarged
without injury to the strergth and affecting the
worhness of the vessel II exceedingly doubtful upon
the evidence whether not the necessary alteration
could be made without dss bling render
her SID the ut teen
to three huLcr dosrs according to the edmate Of the
Witnesses shall not undertake to weigh this eviaence
either respects the question Of the prsccaby OF
the alteration, the Of t for In my judgment the
upon any just and proper construction Of the
charter party neither bound to make or to submit
TO- the requ change The charter entered into In
this city and tho vessel lay 10 thu port 1T the me AZ
io.ag me onarelers an opportunity 70 make any exam
fed and the only INFO In respect to her
character and condition by the that shs shall
be kept tight staunch well fitted tackled and provided
with every requisite and with men and provisions neces
cary for the and to receive board the vessel
ali such lawful goots and tbs chartsrers
may proper to ship-to be properly slowed BY the
ships crew. or other suitable persons the captain may
employ at the vessels EXPENSE the chartersrs agreeing
to furnish full and complete carg, Of Lumbar and tim
Der Iagree If the owners had undertaken to convey
and timber generally for specified price, that they would
have bees bound to have furnished vessel that could
have Isceivsd and shipped any description Of the article
doned which according to the usage and custom Of
the trade ordinarily ahippei at that port. Such
would have BEEN the fair and reasonable import Of the
contract But here such contract has been entered
into. They have simply chartered their vessel and
have stipulated that the whole Of It, with the exceptions
stated han be at the sole and disposal of the char
terers during the v0y aga, and that goods mer
ohan1ise whatsver shall bs laden on board ether wse
than from them their agents. without their consent
not that they win convey from and 70 the ports
mentioned given amount Of lumber timber for the
employed for par cusr voyage in the Of
this article II seems to me- therefors clear that the
undertaking . the char Is to furnsh cargo at the
port Designated o. such lumber suitable to the
capacity and condition of tas ship; and that would be
carrying the contract beyond the intent aud scope Of
to consider II the engagement to convey .
given quantity of the article generally and without
gard to the of the conveyance Some evidence has
been given terdipg to show that it is not unusus! TO
large the port hole OF vessels employ In the conveyance
Of lumber to Die them to receive board spArs Of
the Of those delivered in this But evdsnce
usage 10 the trade especially not in the
OF charter party Ike the In question. 1t may well
be tn II the owners catering into engagement gene
rally 10 convey given quantity of lumber and timber
might fDd II to alter materially the consrue
ton Of their to enable them to comply with the
terms and dtions Of their obligations under such
after they would be bound 70 carry any description
OF the article within the usage and custom of the
reference to any particular vessel or mode Of con
once, But % IN the present case where psrtca
lar the has besp chartered for tbs conveyance Of cargo
o. lonbsr the obga ion 10 different the chartersrs
bound 70 regard the capacity aud condition Of the vessel
IN Ietp Ct to the cargo to be furnished agree that
ror Of the vessel may be usual and Gus AIRY
ia the trade for the OF cargo may DO
pioe and the duty Of the .ners but changes Like the
s citing her safety and thereby
permanently essenrg her value Il seems to cannot be
regarded ~ falling within the contract and this
ther the damage 70 the vessel b or be not serious and
permanent The contract in my judgment does not i'm.
posed Upon the view, therefore, obliged take Of
tho think tbs decree below erroneous and should
b reversed and the case BE- reerred to tbs Clerk TO