The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-03-10

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may aoer further proofs Of payments The reference
being his favor alone, it must be at his expense ex
clusively
Peter Butler u.s. The Steamboat L,lty-Excep.ions were
port OF Sl25 03, due the libelhnt, shpwrght for
pairs ard alterations put by him on the steamer Con
siderable proc offered to show that the work i'm
perfectly DONE and the Court might the evidence Of
the various Witnesses conscer the fact doubtful whether
the hbelant bad fulfilled his contract according 70 its sp
parent import. Bat the claimant superia ended the
work personally and expressed his satisfaction with It,
spection by the Cour Of the evSepoe alone and par.
lary the judgment Of the Commissioners in av OF the
oeisn ON these facts after hearing the witnesses per-
sot ally. should have weight against such doubts Under
these views Of the case ths conclusion Of the Commits
soners is adopted by the Court The exceptions are
overru Cd, aud the report Is ordered confirmed with
Michael Collins the sloop L,brty-The hbslant
IN bs case oemands wsges 81 % per month ana - per
from April rs 10 September III but he wholly fails in tbs
attempt prove any balance due for thas SERVICE be-
yCnd the money he had been paid He only gives eEi-
eence that ms was an period Of time on b,Ara
the sloop after she ont of employment and hi at
martin service il rendered for hire and in any way
would be c,enzaSe BY thus court only BY forcs O. ths
70: esr
privilege under the statute unless proved t0 amount to
$50 There is evidence that such debt, If any,
owing him. The suit Is not atnsbe ia this CURT
and the libel must be Dismissed with costa.
James O. Church ~ The Schooner H. L Scranton The
ibeant claims recovery of payment OF wages made by
lin to hired for the schooner. he evide OF
oomIetent or authority In the beant 70 charge
the vessel Tor his advances measre but may be
ed primd fdce sufficient to put the master
defer &C. The man waS shipped as cook and was taken
board the schooner in that capacity after haviog
been paid twenty five dollars advance wages by the loci
The allegation that the cook old not perform the voysge
his continuance on board, after being placed there by
the chipping broker at the risk OF ship and she
acosprs him a. one Of the crew dscree tor
HbellaDt for twenty FIVE dollars with interest from Aug
20, 1854, and coats.
John a. HarbeeI and Others u.s. The ship Francis A.
Palmer, Rasse1 IT, Post and os1ry, claimants -rhe i'm
questions involved In this relate tue us
ciction Of the Court over the debt " msrme lieu un
der the general principles law by virtue of the
act for the collection of demands against ships vessels
G. r. = sos rec l. Laws ,s.n ssss p ia On con.
was held by the Court that the hbelsnts, who
sgness Of tbs builder Of The shie have higher priv
that the contract Of Perns wi The claimant
furnish labor and tsras their vessel build
Dor furnished his expense the ship be paid for
essvey the building proceeded ard each part
PAID for to ceceme The proper OF the that Pc
material man in giving credit TO the claimants for
his services ana expenditures upon the vessel but
in that of vendor OF tbs ship, step by step ard
parcel by parcel, fast he built ana com pleted
her according to the contract, the purchase money
he paid in instruments the various periods of her
builang This oeing domestic vessel the lea set up
cannot enforced in this Court if il be under the
law, unless it be also such oy tn. Sta
statute That the statute creates lien la behalf of
vtnder OF vessel Tor the consideration money pur
chase price This debt protected by the act must have
been contracted by party then OF the chip, his
master agent; contracts for building executory
and prospective their nature snd will not be regard
vessel in the purchaser until the ship fully completed
according 10 tue c0nrac. That independent of these
considerations, the contract between Perne and the
c'au ants was of personal credit to them and
inconsistent with the claim OF maritime lien the
vesse the common law lien, consomiant upon possess
sion OF the ship being the only compa b.e with the
agreement between the parties. Under these views of
the case this libel To enforce mari lime lien cannot be
maintsined Libel dismissed.
William Th,p,ng Charles G. Duncan and Others
The ship zsrisn owned by the hbelsnt was chartered
the 50 Of April 1854 to the respondent. freight
She WAS then loading at Providence Rhode Island for
Cuba and it was stated in the charter party" The
sail before the 18th Instant and weathsc psr.
hitting" The ship was laden, and wAs taken by tae
pilot from her DOCK and anchored at quaran ins the
morning Of the 18th took out her clearance and had
her crew on board, and was ready for In the
afternoon Of the same day but did not make sail until
proceeded directly to Havana, and was tasre Of
fe,ed to the respondents fulfill the charter. The
val there alleging she had not fulfilled her chsrter
failing to eail from Providence on the 18th CT April
The defence to the action is that the representation
in the charter party that the ship sail on the
16'h Was warranty condition preceoeat, and, not
being performed by the Hbeant, the respon tents
that courts lean against eonsxaiug statement Of that
character to be condition precedent, which, If not lite
ay ruined oy the snip, Will exonorAe the hirer from
hs obligations under the charter party a Cmsto,s r.
345.) That the ion of " wind ana her per-
nitre from the positive terms OF the rspressnta,n
prevents Its operating absolute WARRANTY, aud
leaves 1t open to reasonable construction. That the
representation OF the licensed pilot In Charge OF the ship
the 18TH to the master, that it not safs in the
then state OF the weather. to attempt proceed
with the ship being made in good faith BY the plot
and testified BY him 10 20 b the truth in his
Judgment was reasonable for the master to
consider The reservation Of the charter party apply
ing, and 70 excuse him tor making sail that day.
That strong storm of wind and snow having pre-
vailed during the whole forenoon, and the weather
continuing broken and unsettled the afternoon when
the ship wholly ready for the master justi
fed In conoing 10 the opinion and advice Of his pilot
10 IT, fitness If the weather for him to proceed although
1t nay be made to appear at this time by opp sug est
noby, that the Pill Il under Misrepresentation
the state Of the weather. and that the ship might have
been taken to seA safely That it ia net incumbent
the bellsnt to prove it impossible from the cond
ton Of the to carry tie ship OUT it ia enough
II there was reasonable for apprehending more
Than ordinary hazard and peril to the ship in making
the attempt There violation of the charter par.
y on the part OF the beant In delaying tbs departure
of the thp to the 16th and the resp bound
to make good the damages he had sustained from their
refusing to perform the contract their part.
ference to commissioner to ascertain those damages
IL directed.
Common Pieaa-(sencral Term.
Hon JUDGES Ipgraham, DAILY and Brady, presiding.