The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-06-03
Decision I'm Admiralty ot Appeal.
UNITED STATES CIRCUIT CoUkT.
Before Hon. Judge Nelson.

MAY 30.-Aaron G. Higgirs us. the United States Mail
Steamship Company-This libel fled in the court be-
low to demurrage for tho unreasonable detention
of the ship Kanawha at the port Of Havana. She
freshted by the respondents with coal from New York
to that port and it is claimed that according to the
contract of aeightmen the vessel to be detained
not exceeding twelve running days in the discharge
her cargo whereas she was, in fact, detained some
twenty days in addition. The bill Of lsding,
signed by the master of the Kanawhathe only written
contract between the partes-makes mention Of the
number Of days within which the coal should be dis
charged. It in the usual FORM stipuaes that it
is o be delivered in like good order and condition. at
ed) unto Messrs Drake Co., to their assigns, he
they paying freight at 81 per tom with five cent
primags, and average accustomed" The limitation
to the number Of running days in the discharge
of the coal is sought to be made out by oral evil
deuce; and We have before us the testimony OF agents
of the owners the one side, aud of the shippers
the other, directly in conflict the subject 1t
undoubtedly true that this instrument is open to
PLANTATION q certain extent between the origin Il
parties to correct mistakes or imposition upon the
master. So far partakes of the of receipt
may be properly eIpa,naele and Is not conclusive
varying the contract by paro IN respsct to the matter
question According to the constitution of the bill of
delivery of the coal would be governed BY the custom
and usage the delivery OF eArgoes OF thai description
changes entirely the legal effect OF the to
the matter In question Even doubtful than
to the application OF the rule :luding the
para evidence of the omission insert ii
would lead incline In favor OF the testimony of the
witness, who denies that any such contract mads
made or not depends upon the of the
two parties who entered into the contract Of shipman
and which, have said Is directly in conflict We,
therefore, lay out Of the the oral agreement set up
by the ubeant Them as to the delivery of the coal
the respondents were possession of particular DOCK
or wharf at Havana where all the coal shipped for their
line steamers landed and inclined to think
that the master of the Kanawha right In snpposng
that he bound to discharge hts cargo at that place
Indeed, upon the Whence 1t would to have been
the only place where his cargo could be discharged
that port and being obliged to discharge there he
also sar obliged to conform TO the usage and
but two vessels could discharge at tne to wait for
his turn. Only one vessel vas permitted to discharge
her cargo before him over which he entitled to
ference. She engaged days in the delivery,
and fer this delay he had right to complain. The
court below found the delay to be twenty days
but that vas founded upon the oral contract whish We
have disregarded An objection is taken to the jarls
ction Of the court below upon the ground thst the
breach Of contract complained Of 10 not the breach OF
maritime contract But this is . msap Ac-
cordng to Interpretation OF the contract Of ship
ton at their wharf the Kanawhs for the delivery Of
the COAL according TO the and custom OF vessels
coetTsc over Shch the court had jurisdiction and It
is for breach OF it upon which the iioel founded
The refusal to permit the discharge of the cargo
cording to the Of the pae was as much breach
of the contract refusal 70 pay the freight, to
cept the cargo at where the bull of adiog provided for
acceptance We must therefore the decree be-
low and unless the parties agree upon the damages
days detention, reference must be made to
the clerk to ascertain them in conformity with this
opinion.
MAY 31-Jdcob Shurts The Steamboat Ncw Fork -
This libel filed by the owner OF the barge Hero,
which sunk in q storm the North River the
night OF the I'd of August 1854 Yonlers, while in
| tow of the tug New ork. She loaded with 213
tons of coal, and stationed In the middle OF the
front tier of the tow the arboird side OF the tug
which consisted of three boats Several grounds
taken upon the proofs, which voluminous in the
case order TO establish gross Negligence the part
OF the master Of the tug under the circumstances Of
the violence OF the storm In which the boat was lost
such that its position in the toy improper
one that tag moving at toe great speed the
time; Ii at she should bave to anchor de-
tachsd the boat from the tug to have prevented II
from being drawn under and sunk. We have looked into
this with view to toe several grounds OF complaint
against the conduct of the tug and agree witt tbs
Court below that neither of them sustained by the
proofs On the contrary the clear weight OF the evil
dence is that the sinking of the barge attributable
to the effect Of the storm that prevailed, without the
fault Of the tug to the negligence Of the master In
properly securing the forecaste hatch, in
quenee of which II forced open by the breaking Of
the water 1t. and letting 1t into her holi This
haeh described in the testimony, covered with
a box Of combngs rising from the deck, fitting tight
without any other fastening The other two matches
have beep with bars properly fastened, which bet
ter, and has since been adopted The master Of the
barge also Ia not altogether free from blame after the
storm had arisen and Danger apprehenied, as he neg
lected to watch the Unsecured hatch after his attention
had been called to 1t by of the hands of the tug
We think the decree beloE, dismissng the hbe right
and affirm the decree.