New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-09-26
LAW INT'E'LLIGENCE.
T. 5. CIRCUIT COURT-Before Judge Nelson.
DECISION IN ADMIRALTY ON APpgAL.
naI aof AZ al

u =. 'lh'tit NC,lNt-
pEcIgos ~ ApnaaL x ON arss,L
The following Ia the opinion OF Judge Nelson, already
referred to
This ls libel to recover freight of the brig Brodrens
for the conveyance of bundles Of nail rod iron from New
castle upon Tyne the port Of New York. The bin Of
adng Is dated 18th May $780, and contains at the foot OF
i the exception mot accountable for rust On the ds
charge of the cargo portion of the iron was found Ia
jured by rust and the consgnees clamed deduction
from the freight Of the amount Of damage TO the IRON
which refused and this libel fled claiming the whole
amount The answer sets up that the damage was occa
stoned by bad sowage that sold at auction after
notice to the agents Of the ship and the loss occasoned
by the rust amounted TO si6i IA and tender OF tho
amount of the freight and above this and the
money brought into Court. Evidence was taken in the
Court below in respect TO the stowage OF the ron BY
which appeared that the portion damaged by rust was
slowed a the bottom Of the ship under large quantity OF
coal and that the rust occasioned by tins stowage
The Court below held the tender sufficient 10 cover tho
balance OF the freight and above the damage and
dismissed the libel with costs. IL has been urged on
the appeal that the exception in the bill Of ladng exems
the owner from responsibility for the damage although the
rust be attributable 10 the defective sowage But cannot
aQrco to this doctrine Even in the Of the usual OK
eepton OF damages Of the sea- II 4 can be shown tha inc
goods have been saved by the due and proper
and diligence Of the master and Notwithstanding tho
peril the ship answerabe for the loss These exceptions
in bills Of ladng do negligence want Of care
duty on the part Of the carrier Whether the carrier
employees stpulae for negligence or unsliuinessn
the uiment of their undertaking whether sound principles
OF public policy is perhaps not exactly judicaly settled
but tmsy least be safely said, that i any such right
can be set up must be inpnrsuance OF an express ana
positive agreement to that effect what may be me same
Thing necessary and unavoidable implication Nothing OF
the Kind appears in the bill Of adng In this cnse -
conceded the ru OccasoDed by negligence or uRskn
ness Of the stowage The bundles OF iron slowed upon
the tor Of the coal discharged In good order those
under it at the bottom Of tho shp or less damaged
by the rust The carrier therefore Yves clearly haoe Tor
this damage.
on account Of the confusion and want OF precision IN tho
evidence relied 10 establish H. There Is no aouDt DIV
the respondents entitled 20 abatement OF the ifeg
IL. a. awfar toff -
order 20 avoid being charged with costs or At least W en-
title Themselves cosis they must maintain tender or
before su brought II Is in proof that az offer 20. male
reueeedy before suit b pay the balance OF tbe neghl
deducting this os. TO be a.c.rtanea y gr sass
OF the damaged iron at auction. which wa refused ana
the whole amount Of The freight demanded also, n1,
after this sale at auction took place with notice TO the
agents Of the shp and the amounts Of the loss ~ Tits way
agceained But there seems have been no oaer actual
" made 20 pay the balance after thus asceraiDDs H. t
made On the fling Of the answer.
II quite clear however that tender again would have
been mere VI form. the agents had refused re-
resedy 10 accept s offer shortly before the suction sale
took place and for aught that appear they pegeetsd %
the imuleaon thar they still refused 10 adjust the dispute
In that way And If this eonclusoncen be properly man
tanned the tender the coming 10 o. ne ehs"ef as az
that could be essential TO support u1 orancn o. tne ns
feUe III IL had been ia fact made aster the balance was
asceained by the sale the would be free from dill
cnI aad III the conduct Of the agents fairly authorize
the eorcusiop ha the repetition OF would have been
but an idle ceremony, from Ge offers aud refusal: max
previously tD0k place then the must be regarded As
ttardux upyn the same footing
admit, liz tender c0uld not be manfaned, according
10 lie strict principles Of the common law Indeed, asthe
.urn IN controversy sounds Ia damages, Il eosid t have
been The r1bect Of a set of az all in action al Law IL
kilt have Seen given in evidence in sDaemen Of me
amount II lie iregh. claimed. The doctrine however o.
the Cogr Of Admiralty this subject Il leas sringen,
Tender may be made In salvage cases. where tnc anon
In controversy quite az uncertain and 1dsipe as mere
and sill be uhed even where there hs< been les icrnA,
iiy making than required a. law lns In.
tian 70 technical forms Of proceeding 10 the ma'ier
Vim Rob 17G, 100, and p. 500, 3af lb'a, ~ cro-'y
"a GriDneH " s. before Judge BETS hafeh 1901
Hag0 ia 4 C. Rob. 107, gen. b. 55sl
Tson the whole therefore think the decree below
right and should be affirmed
n-,.r cnrnr-sfEcllL TEk-f-Besors laase MsTcae.L