The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-10-12
Important Commercial Decision.
UNITED STATES CIRCUIT COURT.
Before Hon. Judge Nelson.


UNITED STATES CIRCUIT COURT.
Before Hon. Judge Nelson.
OCTOBER 1l.-John H. Bro,uer 81 al rs. The Brig Water
Which, William H. Sheldon The Same, John Clinton
Quantity Of Cotton The hbels the two first cases
were filed to damages for injuries TO cargo Of
cotton shipped in the brig Water Witch from Iavacca
the bay Of Maagorda Texas to this port in May 1874
The lbelants the consgnees of the cotton. The
libel in the third fled by the owner of the brig
to the freight money. special contract was
made between the shipper at Iavacca and one Mitchell
who represented himself the agent Of the vessel She
lay at the port OF Indanoa situate in the same bay rs
Iayacca but several miles distant The cotton was carried
lighter from Lavacca To the vessel After it was de-
ivered from the lighter and received board tho YES
sell the master reused to sign the bills of lading upon the
ground that the cotton not good order and condi
ton and pending the dispute he sailed for New York with
his cargo The shipper learning that the vessel had sailed
without having signed the bills Of adng forwarded the
bills unsigned to the consgnees named in Them stating
the circumstances. The consgnees made advances upon
the cotton On the arrival OF the this port the
master notified the consgnecs Of the cotton and discharged
his cargo, but IN very damaged condition. He also de-
manded his freight from hem the payment of which was
refused and the above suits afterwards instituted by the
respective parties 1t is proper to state further that the
brig Under charter party from the owners 10 a firm
in New Orleans, and that Mitchell, with whom the con.
tract was made Tor the shipment Of the cotton, repre-
scented this rm BY this contract the shipper was to
liver the cotton at lavacca to be received lighters by
Mitchell and placed by him at his expense board Of the
vessel TO be carried TO New York for the freight of one
and quarter cents pound The agent also objected TO
the bills Of ladpg because they did not contain stpua
ton that part Of the cotton might be shipped deck The
shipper refused 10 admit such Ia stipulation it was
not contained in the agreement between the parties
which was not in writing. Frst-We perceive no well
founded objection to the right Of the consgnees TO main
tam Their SUITS They were the persons to whom the
ton was shipped and were recognized by the master us
the proper parties to receive it, and to whom
ivered by him and the freight demanded They had
made advances upon il in the usual way and had the
same interest in the cotton as If the bills of laing had
been duly executed. Second-We should have no din.
Guilty in this in holding the carrier to the common
law liability in the shipment Of cotton even if no bill of
lading or ether agreement had been entered into by the
master or his consent to receive il board his vessel
and carry to the port OF destination subjected the ship TO
this liability But in addition to this the agent of the
charteres In whose service the brig the time and
who were interested in procuring cargo, entered into
written agreement, fixing the terms upon which the
shipment was to be made. The vessel was bound by
1t, and although does not contain the stipulaons
usual in bills of lading, it carries with it by mpca-
ton the common law obligation of common carrier.
We may entirely lay out Of view the charter par
y between the and the firm in New Orleans as the
shipper IN this case had notice of IT, and it, therefore,
there had been anything in this agreement repugnant to
the charter party could not be permitted effect inu
rousy his interests. Third-Having disposed of these
somewhat technical questions, to the qucs-
ton in the and that is whether not the damage TO
the cotton the NATURAL not the necessary effect Of
its condition at the time of shipment developed in the
course of the voyage produced by the dangers Of the
navigation without airy fault OF the Ship whether all or
any part 1t is attributable TO bad stowage absence Of
proper care and attention the part of the master
Some landrcd bales of the cotton were shipped on
deck has been argred that the right thus TO ship it is
fairly TO be Inferred from the Of the agreement be-
tween The shipper and the agent Of the vessel We think
not IT, aso argued that there usage Of the trade
between the ports of TEXAS ant New York On the ship
ment OF cotton, which JUSTIFIED the in shipping
deck. We think that the proof fails altog her To estab
fish any such usage. The freight he raid was the usual
rate for cotton under deck 1t has fur been strongly
argued that the whole damage to the disclamed
dschargng at this port, the eec. OF the country
damages existing at the time Of shipment produced
by storm which the vessel encountered the voyage.
The evidence in this is very conflicting upon these
questions and difficult indeed impossible To be reconced
The Court below 10 the conc son that according
the right OF it, the cotton had sustained damage for
which the vessel was responsible. We inclined to
cur in this conclusion The testimony is pretty strong
that the cotton badly slowed, and also that sufficient
The cotton very wet when discharged from the hold
Of the ship The Court below, in the OF the libel Of
tne owner 70 recover iregh denied the same after ap
plying so much Of the money awarded for damage to the
cotton equalled the freight money. This think was
erroneous The consignees had each filed his
libel to his damages and has sue.
ceeded II is true each set up his to the suit
freight damage to the cotton by way of abatement the
sum claimed. But these parties could not thus split up
the claim for damages by applying portion in exnguish-
ing the freight money, and then ask decree for the
cess this sum. If they insist upon recovering dam
ages in independent suit they cannot apply any portion
Of them by of abatement the suit for the freight
money. The damages an entirety We must, there
FORE reverse the decree in the Court below in the
Clifton quantity Of cotton, &c. aud direct decree to
be entered for the belant for the full amount of the
frelght money ana interest, With costs. And the full
amount Of freight at the rate Of d cents per pound will
be recovered the will be the Court be-
low reducing the freight of the portion of the Cotton
red on deck to deck freight and the time holding
the brig responsible in the transportation of IL under
deck The decree in the other two suits affirmed with
costs
Der. sNelson Nealton H1elant u.s. The Ship Fanny
dikNEIsoN, c. 1.-THE libel filed in this against
the ship damages injury quantity Of wheat
shipped from New Orleans to this port The wheat960sacks
containing 2306 bushels put board the vessel the
month Of December 1857 and arrived here January follow
ing The Fanny Fosdck general cargo, had
When the wheat discharged port was claimed that
i emitted an offensive smell as with the odor Of
and fifty barrets had been slowed in the hold Of the ship
Of four which rested ground tier Of hogsheads
las M The hs rs ~ Eye not within twenty feet
decks The cargo well slowed and properly cared for
Of the wheat affords evidence Of unska stowage and want
of due and caution in the transportation. The wheat
sh1 Ike @
the
Of evidence upon the question whether or not there
vercd whether any exposing to the air short time with
ii
that coal oil would not produce the effect
this conrare of evidence part be found in the fact
that the article soa oil as commodity
hold the vessel not yet wen understood For this
and well known usage and respect to its stow
w p ssF he as S ss sssa w
ing upon the facts in the which think the libel
properly dismissed the Court below The wheat was
delivered from the ship in the sacks in lighters
charged from them into the lighters bulk minglng por-
ton slowed in the hold which in the vicinity OF the OIL
with that slowed between decks The consgnees respons
BILE for thus blending the two parcels and moi all
aasHed the evidence that the portion slowed
decks affected by the dsagreeabe flavor OIL II
had been otherwise in the portion slowed in the hold
the two hundred bags In the hold in the
the testimony are not TO interfere with
in airing and venang the wheat the offensive would
have disappeared and the damages slight any sample
brought into the court below, which the Judge
his opinion clearly failed to show that retained dscern
BILE effects of the in The decree Of the Court Diminishing
libel Is affirmed.
Supreme COurt-Genernl Term.
MOTION FOR A NEW TRIAL FOR FELIX SANCHEZ CON.
vICTED OF MURDER.
Before Hon. Judges Roosevelt Clerke and Sutherland
elix =.l.iuks In L.