The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-08-07
Important rrarst,me Io,uranee Gaze.
surERloR couEr-0EsEHAL TERN.

ABSTRACT Or JusTieE MASS OPINION ~
CAust.
W,'1'or NeLSon ard otses rs George s. S,ee-sson,
The FAD William Nelson. william Nelson Jr., aud Aaron
Cohen wes owners OF the ship or vessel called the Pa
cic sailing between the port of New Orleans, in the
State Of Louisiana, ana the port o. New York in tho
state CT New York, ana employed in the carriage Of
goods and chattels for reward between those ports
On on ABOUT the 2v;h Cay OF November 10 thu year
1850 the SAID vessel thee lying at the said port Of New
Orleans and destined on a voyage % the port OF New
YORK enc Y. Huntington shipped board of the said
vessel GA barrels moasses TO be therein carried from
the port OF New Orleans To the mort OF New York for the
freeht and upon the terms contained bill Of Iaing
seheu ~ tne master or purser OF the said vessel and
The said vessel thereafter set sail for tia port OF
New YORK, with the sad GA barrels OF molasses on
ooAu. and arrived at the said port Of New York or
about the oath day OF December ia the year 1855 and
there upon the same, with the exception hereinafter
noneo Were IN pursuance Of the said bill Of lading de-
HVefeo 70 and were received by the said George s. Ste
phenson the consgnee in the said bill OF adng named
but OF the said barrels delivered to and received by
nm were tshs which were empty and did not contain
All of the said barrels OF molasses were well and pro
pey slowed ana none OF the molasses ia the said eight
nafes Wa kst by the periis OF the by
ieence or want OF care the part OF the
vessel ther agents or servants but whatever molasses
was lost from tue SAID eight barrels which emDty
al NE Tine OF delivery thereof was wasted lost solely
waste.
The counsel have correctly stated that the question
nov presented has not been judcialiy decided th,
saa]periiaps rot in this country, in England. Al
that have found in the shape of authority tae state
men OF chancellor Kent in his Commentaries (voi .,
225) that the freight is due The learned commentator
refers only TO Mollay, ard Firth w. Barker, John.
Rep 1927. The passage from MoIlay speaks only OF the
opinion OF the best experts among merchants upon
tested point Frtn vs. Barker may be treated as pro
paoy leading 70 the result but nothing In TRUTH
the question was left OPEN Mr. Abbotts treatise leaves
the case undetermined, indeed undiscussed in Eng
lsh court have found trace OF its having been
sidered anywhere in that country Under such crcum.
stances we are wartted in resotng to foreign autho
rites and especially those great lights upon Ttme
Invite French commenators-to aid our decision The
ordinance Of 1881 the 0h article of the Code of Com
merce, with the Gdon a. Ia Msr in declares that
in case like this the article may be abandoned for the
reght-that is, when casks containing liquids are
empty, or nearly So Voli and Delvincourt support the
On the ether side Pothier, Bouay Daty Ferrard and
the authors OF the Dictionary of Commercial Law Gou
get Merger published in 1852, insist that the code ad
mits OF Distinction that whn the leakage is atrbut
able TO the bad condition Of the casH, the
freighter must pay the freight but not, il it
b. Boucher discusses this subject with much soundness
OF reasoning. He says: 81 captain prevent
article from perishng or Injured from m proper size
He is therefore, paid bis frelgh, in such case But
he to be treated as able to prevent loss by leakage
especially he have declared that he received in good
order by his bill of ladDg. We may therefore, attribute
leakage TO bad storage which he bound to supernend
One hogshead leaks more than others from OF two
causes-eaner nom ,s worse continon or from worse
latter may not indeed be treated actually proven but
inasmuss as Is Just presumption, he IS to be dis,
the remnant for his freight.r-(nstuton du drot Mari
time, Paris 1905 p. 2s9) Mr.. Abbott states the
observes that however strong the reasoning OF litter
may be 10 showswha ought to be the rule, II doubtful
whether the language Of the code will admit Of his con
structcn In this state of the law as il may be gathered
from the French authorities the strength of prlcpe and
reasoning appear opposed TO the ri2dity Of statutory
rule II affords Us then instruction and assistance to lind
that the rules commended for by Pother the other dis
tngushed iurisconsults who agree with HIN, actually
prescribed the most ancient and for ages the most
M ms TINA Law xxh hnxsN
trace
Mr. Justice Drer his treatise on insurance. speaks OF
the Consoato del Mare governing the nations of South
Europe early the lib century and for long
series ofsbsequent years indeed probably s in force
IN Italy aid Spain From the 202d chapter Of that work.
with the of Casereges the Italian translator and
eminent hmsen as lawyer THESE propositions deduct.
bic Wbei the ship owner or master supplies the casks FOR
wines, (R was usual in the Med!terranean,) he was to
exhibit AID test the m in the presence OF the eigh.cr
who thel became responsible for or admitted their sun
cheney, well as when he himself supplied the casks.
When The casks thus conside ed shipped good
condition, freight earned now hstandng any Leakage
Unless again lie loss could be attributed 10 tie bad
stovage OF the casks or fault ofthe master.
The French aud other authors, in discussing these
questions lay much stress upon the Obligations imposed
by the connoteH or bill OF lading Of the French law
That ob..ges the master to deliver tices Of the
quality the same quantity and in the same condition a.
the peris Of the without his fault. (Borlay Patty
vol J. p. 4Us; vol. . 30s, &C. This rule Is similar to,
and Of much greater force tina the Doctrine OF our own
W II. Penn. Rep a74)
worcs Of qualification, such as opprouvr, que a. ere,
lave become ordinary among French merchants
10 INIT the extent OF the obligation OF the bill OF adax
(bouay paty tome l, p los: Fmerigon 20s) In Cl1rk
Barnwe y Howard L. Req. 2s3 the phrase con.
tents unknov addict, and the Court speak OF II as
implying that the meant Only 10 acknowledge the
Shipment gcod order OF the merchandise, respects
external cor Gn o. 5a ,h as eS S
any implication to their quantity or quality or as 70
their condition when received on board (see Flanders
on shipping, SOL The result OF our examination OF the
subjcc; this The owner OF liquids any articles ship
rel IN casks OF desci p,ou, IN the hrst instance
snaiseaoe WITH the duty Q, snppns proper casks ana
IRON their insufcency defects. The elect Of an in
qualified bill OF iadng Is TO transfer this prcsumpve
sponsibity 10 the captain and owners OF the vessel
They therein acknowledge the good condition the casks
upon their reception on board, and engage TO deliver
ana 'v Whsn sn 70 sns sse
II the cssks be delivered en- PITY, nearly aud the
tua cause Of the leakage be unknown or conccura the
owners OF the vessel lose their freight They have moi
performed their yag' meni proportion OF freight
would also be lost for any number Of the casks delivered
empty a well as for any portion Of tue contents o. any
legally attributable TO the defect OF storage or som
which the master had control and for which
his contract makes him responsible. As, however, bill
OF Bdrg treated receipt Is not conclusive w. open
10 the hpowner aud master 10 prove explicitly that the
casks were, In ac rnsound or badly made and n such
the original responsibility OF the owner Tor their
condition restored and nc bound to pay the freight
bill Of ladlng may be 80 quaaei as 70 avoid am &C
know ledgment Of tie good order OF The casks OF
the nature OF their contents Like tie F-ench
phrases referred to. i may impor, only that
these matters are 50 represented In such case, the
hur,hcn thrown upon the shipper 10 establish the truth
81 hi statencLtsfor example upon question Of loss
10 make the the vessel responsible. And upon
question Of freight the casks be delivered would
he tsTned Whatever night be their condition, or the
condition Of their contents IN either explicit words
should he used 10 do away the obligations which the IN
terests OF have vigorously imposed upon the
masters Of vessels engaging to carry goods
for hire In the present instance mi 4 expressly
stated that all the barrels Of moasses were well and pro
al OF tho m BY the
perks Of the sea- by any negligence want Of care
the part Of the OF the vessel or their agents
but the waste loss solely By, or IN consequence
81 leakeage, fermentation, or Inherent waste Every
cause OF the leakage IL therefore necessarily ex
| Guided excep, the bad condition Of the bar
rels when shipped. The effect OF the scknovlegmen
in the bill o, laang therefore removed By proof o. tbs
fact The primary responsibility OF the shipper ior h'
sourcness &C the barrels q rensated and the obligation
10 pay the freight becomes complete As to the elect
the phase contents aud gauge unknown, used n tn
BIZ OF ladng II may be doubtful WHISTLER 4 means thu
was unknown, and therefore not Acknowledged TIA
the hogshcads contained moasse only that the luan
uty Of molasses contained was unknown. But L seem
L IN M m In any hsf n NOV