The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-10
Decision In Admiralty.
UNITED STATES DISTRICT COURT.
n.GAzA L. I.l- -.-u.

Before Hon. Judge lngersoll.
FEB. s.-John w. Schmidt co al. VS.. The Bark George
Eicholcus, her tackle, de-, and her cargo-Ths libel In
this case was filed 70 recover the amount OF a bo.tomry
bond, executed BY the master Of the bark George Nicho-
haas upon the bark, her freight and cargo. The bark,
which was owed in Hamburg, was bound from a port
others than The owners Of the bark, to Hampton Roads
for orders, and thence to some other port Of the United
States to discharge. In March, 1852, she put into Rio
Janeiro in distress, and a survey being held she needed
repairs and supplies TO enable her to prosecute her voy.
aso deliver her cargo where ordered. The master OF the
bark bad no funds TO procure sue repairs and supplies,
and could not procure them either on his own credit or
therefore wished TO raise money upon bottomry, AMI
accordingly advertised for terms, but cogil only obtain
the needed funds BY a hypothecat,on Of the bark, her
freight and cargo, and at the rate Of interest mined In
the bond. The funds were accordingly advanced by
kessrs. Farrand y Wilmer, merchants at Rio, TO the
cary repairs of the bark, and a bottomry bond duly exc
eu;ed 10 them by The master, P~urpsrting to bind the
after the arrival of the bark At her port Of discharge, Of
iIs said principal, and s94o 20 prcnium-am uniting to
me bark Afterwards pursued her voyage to Hampton
Roads, and therc e &c the port Of New York 10 ~dischif9s.
Upon her arrival here she was libclled for scamen's
70 satisfy the .eamen's claim, The present libel was
f,ed by the lbellants, who have become the ~asslgnses Of
the bottomry bond against. the bark, her freight and
nay Il, and the Ibsliants are without adequate remedy
bark 90 rcs contest saa the right Of he useIlant. 70 the pro.
eeeds OF the bark and TO her freight. But the owners Of
the cargo lufisL ina the cargo Ia not nOluen Tor the IT.
benants' claim that no state Of facts existed at Rio ia.
metro, which authorised the master Of the bark to bind
the . ys,ssl even fSr y S . S Sspss 1scs ssGa, s .ss t a,sss there ss ., v:s
there were several f~reishting vesssIs at BIO bound for
the United States, IN which case It was the masters
duty TO have transhipped the cargo, an therefore he
Held BY the C~osrt-Tbat on the finding Of the facts as
above set forth, there was an absolute necessity that
the bark should have the repairs, and thsre was no way
In which the master could procure them, except BY boz
at q forced marshai's sale In this port, would be veryi In
adequate proof Of her value At Rio, or that she was not
T TSl,n : m nspasslD q .u vessel / in i ! sopsisu p Bort raih has .ss sDs rishs,
in case Of NECESSITY, TO bypothecate his cargo as wcli as
srder TO carry The cargo to its Destinations power
given him by the Law, without any express authority
from the owners, and required BY the necessities Of ma
The master OF a vessel Is . str anger to The cargo, when
hi owned by a ~freightsr, except for the purposes Of
seen necessity, the character Of agent is thro sn upon
him, not BY The appointment Of the ewner,. but BY the
power 20 q master In certain cases to control and dispose
81 the cargo Of . general ~freishter, and give him power
Charging his duty Of delivering Il at ia Destination. 10
such cases o! severe necessity the Law maxss him the
IA II i presumed the owners Would d.. Hence, as is :
well settled, In case o. necessity, he may sell ~perishabls
articles, or he may sell part Of the cargo, TO enable him
10 pursue bis voyage and carry the balance 20 its desti-
nation or he may destroy tins cargo BY throwing It over
board, II necessary % save the ship This power Of sell
not gwen him By the owners, butts thrown upon hira
by the law, and wi ltever he does by virtue Of Il, is as
binding upon the owners as II they had expressly au.
thorised Il. This power OF the master has long b..n re-
sognired by the courts Of admiralty. His power 70 ny
potheeate the whole cargo instead OF selling q part OF Il,
piEed by the courts until a more recent period, bat II
had been TIE practice o! shlpmasters 20 DO so some time
before Il had bten expressly decided BY any admiralty
decision, tina. they had the legal right TO DO 20. No eT-
press decision legslirinG The practice vas had until the
case Of the Gratitucine, 20 @. Robinson, r., ?. 49, IN
which Sir William Scott decided that the master had
such right: ne law, as lad down In that case, ha, not
, Judge Story in the case Of the packet % Mason, p. 1851
rays, 'the case Of the Gratitudns has estab shed upon
tho mos. satisfactory and conclusive grounds, the right
cargo as vel as the shif and freight
Bot 10 IL claimed by the respondents, that although
10 tranship II Il his duty 20 do so, and that when h has
such opportunity, and that Is know TO the bottomry
hinder, he cannot hypothecate the cargo for the repairs
In certain cases, a., for instance, whore a vessel 10 uu.
seaworthy and rnft 20 Be rspa'red, or where the master
canno. raise funds 10 repair her, II may be his duty to
tranship. Bot where the ship can DO maze seavorthy
within q reasonable time, and the master can rsise funis
for that purpose by bypothecatirg the ship, freight and
cargo, there 10 no IA. which 20 mskes y tbs duty Of the
master 20 tranship, that, II he fails 70 do 80, he shall not
have the power to hypothecate. That was expressly de.
eided IN the case OF he GTatitudine, which 10 sustained
tyyadss story in the case q the P.cfet
cate, bscaase he can tranship, nor 10 the lender Oh Dot
tcnry deprived Of his right TO look 10 the cargo hypothe-
est.d tssss,. hsISsd goo reason 70 be believe that s the
fhs rule that the master nay, In case Of necessity, hypo-
theeate his cargo for The repairs for his ship would be
~Atroga;sd in this port aud other large commercial ports,
bscause be would At all times have 10 in his power %
transhr his cargo on board another vessel.
me decree, therefore, must be 10 favor Of the libellant.
Ths baAaes OF the proceeds Of tbs bark remaining 10 the
! rersstry Of the Court, and the freight money, mus. be
csst applied 70 tie payment Of the nssllssts demand,
y aud he balance then rsmainirg doe inset te paid ~ The
easfc.