The daily union., 1854-12-12
THE DAILY UNION

der the section referred TO- yet the provision extends only
the regulation of the berths and is confined to for
fixtures on that 1t does not repeal any of the
regulations in the of ls47 it in any respect in
consistent with them. And if the construction of the
claimant admitted to be the true one the regulations
of both acts would still stand, and be in force; the for
feure under the of s4s being confined the defect
of the berhs and affecting in any degree the provis
ions ls4 which forfeit for the want of space for the
and their luggage The of l84S passed
to provide additional security for the health OF the passen-
gers and not TO impair or lessen the security provided by
the previous law.
But the construction given to the aforementioned law by
the claimant cannot be maintained, where the for
feture demanded account of defects in the berths
The two relate to the subeetmatter and are
intended accomplish the objects, and must be con-
strued together And the eighth section of the last act
when speaks of the numbers be taken board and
brought into the United States refers to the numbers as
provided for in the act of lS47 and makes pro-
vision on that subject
These being the regulations of law upon this subject
proceed to examine the testimony as far it is mate
rial to the decision of the case
There is good deal of controversy as to the number OF
superficial feet the deck occupied by the passengers
But it is unnecessary cucumber this opinion with the
multitude Of figures and calculations brought forward in
the testimony 1t sufficient say that the evidence proves
to the satisfaction of the court that the deck large
enough accommodate 1876 passengers and no more ae
cordng the space prescribed by the act of Congress
In ascertaning the superficial contents OF ships deck
some difference will occasionally take place when it is
measured at different times by different persons The
width of the ship from stem to stern not being the same
the average width by which the contents are to be cacu
lated when ascerained by different lines in different sec
tons of the vessel will necessarily vary in some degree
from each other But the difference between the witnesses
in this case is greater than ought to exist if all of the
measurements had been made with ordinary care and
skill; and the wide differences between them show that
some must have been loosely or unskilfully made
Upon weighing the whole testimony think she was ca
pabe of accommodating the number of passengers above
mentioned and no more.
But it appears that years ago measurement was
made of this vessel and statement placed the files
Of the custom-house in Baltimore by which she en
tied to transport hundred and nnetwo passengers
| on this deck.
And copy of this statement given to the captain
OF the baraue and in several voyages preceding the one
in question he has brought to this port the number OF pas
sengers specified in that statement without objection And
the respondent contends that this certificate thus
placed in the hands of the MASTER and acted upon by him
in former voyages conclusive upon the government and
that in determining whether the number taken on board
in this instance exceeded by twenty the legal number the
capacity of the vessel ought to be rated at hundred
and ninety-two
But this point is altogether untenable The act of Con-
press does not authorize any particular officer to make
II is the duty of the shpowners to know how many they
can legally transport and if the fact is disputed it for
the judicial power to decide upon the whole testimony
Indeed if such principle should be sanctioned by the
court it might lead fragrant abuses. This case itself
shows evil tendency for here is vessel proved upon
careful measurement to be able to accommodate legally
only one hundred and eighty five passengers and yet the
captain is in possession of certificate from officer Of
the customs founded upon some measurement made loose
" or under improper influence which rates the capacity OF
the vessel Mt one hundred and nne-two and under the
proecton Of this certificate it appears has been illegally
crowdng passengers in former voyages and carrying on
The question Of OF not must be determined by
the actual capacity of the surface appropriated to the
of the passengers and have already said the whole
deck the barque Anna afforded space for one hundred
and eighty-fvc. But bukhead was put upabaft her
mzzen-mast very soon after the left Bremen Haven
and the space between this bulkhead aud the
filled with cargo or stores and the passengers excluded
| from it.
There is some controversy about the extent of the
space thus cut off But upon the whole evidence, think
it is shown that it contained superficial feet enough for
the accommodation of fifteen passengers according to the
proportion prescribed by law This left for only
one hundred and seventy while hundred and eighty
five were board Here then, is clearly of f
teen the legal number But this does not for
felt the vessel 1t must amount to five moretha is to
twenty-beore forfeiture be claimed And, in order
insisted on the part the United States that another bulk
head made from three feet forward of the fore
mast by placing hogsheads their ends the ship
from side side to prevent the passengers from
passing beyond it, and that the space between this bulk
head and the apron of the ship filled with boxes and
chests and that these boxes and chests for the most
IL not altogether contained cargo and were not appropr
aed the of the passengers their personal luggage
And this allegation be maintained the vessel is
doubtedly forfeited; for this bulkhead would cut OFF
than space for five passengers and make the illegal
placed between these bukheads much greater than twenty
But this allegation is denied by the respondents and
they insist that the hogsheads spoken of only two
bread casks which had aer being empted) been brought
up from the hold and filed with potatoes that the pota
toes were part of the provisions for the voyage and
originally placed in the hold of the vessel but that from
storms experienced during the voyage the hold had be-
come damp and the potatoes spong and that they
had brought up to be picked and dried and suffered
afterwards there because they accessible
the passengers that there each side Of them
to pass forward and that the boxes and chests placed
there contained the personal luggage of the passengers
with the exception of two three boxes which contained
beds or bedding rng articles of household fur
niture upon which he had charged rsight that like
the potatoes they had become from the effect of severe
storms and wer at the request of the owners brought up
to dry and suffered afterwards to remain.
This the main point in the dispute and has appeared
to the court the first statement of the that it must
turn upon the decision of this part Of the controversy
and many witnesses have been examined upon it by the
parties to support their respective allegations
II is proper to observe that there berths for