The Portland daily press., 1866-10-11
Important Admiralty n.c;.;o,.

oWnefs Oi the brig w. Ii. Parks against her
cargo OF molasses, to recover for its transportaI
aoh from Cardenas to Portland, in March anu
April last.
The libel was fled on the 2lst OF April aiid
on the return day, Churchill, Browns - Ian s,d
son, merchants in this city, appeare1 a .Ia
claimed to be the owners OF Inc ea,s one of
the above firm, was at Cardenas IN fepr.laiy
and then made an arrangement WIFI one = u, ia,
| Ferrin. to purchase of him, IN Dehal OF inc
| frr, o,nn-haIf of one thousand hogsheadS OF
n,aiosSas To be delivered by Ferrin on shipboard
at that port, at certain price, to be shipped to
portland on Joint account and risk, of Ferrin
and Churchill, Browns 81 Manson. Manson
left Cardenas and in the month of March, Fer
rim in his own name, by written charter party,
chartered from her master, the w Ii. Parks,
"for full cargo of molasses, under and on
deck from Cardenas to Portland" The cargo
was delivered on board, forty-five casks being
properly slowed on deck, the captain signed
clean bills OF lading, prepared by Ferrln,
without any reference to charter party, for
the whole cargo, 4 consigned by Feirin to
Churchill Browns Sc Manson, no mention be-
ing made therein of any portion of the cargo
being on deck. On the voyage by the perlls
of the sea the deck load was lost. A portion OF
the molasses shipped on joint account was for
warded by the Lizabel, and Ferrin from time to
time drew drafts on Churchill, Browns & Man
son, without any appropriation of the drafts to
either cargo specifically. The invoices OF the two
earg0es amounted in currency to VIZ ,359.lS, ana
Ferrin's drafts on account OF these invoices
accepted by claimants to $19S4O.89 The bill
of lading Of the molasses in question was for
warded by Ferrin to Churchill, Browns Man
son. and the cargo was Insured accordingly, so
that the policy did notcoyer the deck load. Fhe
invoice of the cargo received from Ferrln was
headed, Invoice Of molasses &c, shipped Tor
account of whom it may concern consigned to
Messrs. Churchill, Browns ~ Manson. .s.,sy
The amount due for freight is not disputed,
but the claimants claimed thereffom recoup-
ment of the value OF the lost deck load and
rendered the balance of the freight money!
Fox j. By the terms of the charter party in
this case, the master was bound to receive on
board his vessel a full and complete cargo of
molasses in hogsheads, under and on deck, with
sufficient small stowage, the captain to sign
bills OF lading as presented without prejudice
to the charter party. The cargo was put on
board by Perrin, as casks being on deck, and
the master signed bills of lading for the full
cargo without any exception or statement that
any part was on deck, Ferrin being named as
consignor,. and Churchill, Browns & Manson
consignees. The deck load being totally lost
by the perils of the sea, would Perrin if he
were the claimant have the right under the
circumstances OF the case to offset or recoup
the. claim for freight by the value Of the deck
load. apprehend not. Eerrin is the person
named in the charter party as charterer of the
brig, and if he should be deemed the owner of
the cargo, the charter party is as between him
and the ship owner the instrument and evil
dencei OF the contract for the conyeyanceg of
the property, and the bill of lading is as be-
tween these parties only evidence Of the ship
ping of the particular merchandise to be con
veyed in pursuance of the contract ANY
terms therefore incorporated by the charterer
into the bill of lading either accidentally or by
design which are in conflict with the terms of
the charter party could not control the con-
trsIff evidenced thQ III arfa. -fx, IDas
sons in his treatise on maritime law, vol. 1, page
240 says: 1T is usual for the master to sign and
give bills of lading in like manner as if there
were no charter party. But nevertheless they
are little more than evidence of the delivery
and receipt and shipping of the merchandise,
for the charter party the controlling contract
as to all the terms and provisions WHICH it ex-
presses" a7eb esii bagf So .
This charter party authorized the master to
take as q part OF the cargo q, reasonable deck
load. This was done with tile knowledge and
consent of Ferrin and the fact that the bills of
lading which appear to have been made out by
one OF FERNS clerks make no mention of a
part being on deck, wouM not render the ship
owner responsible to Ferrin for the value of the
deck load if lost. Such was not the bargain
and intention of the parties; it was on the con-
trary expressly agreed and understood that "a
portion of the cargo should be taken on deck
1t was placed there by the consent of Ferrin
NO new agreement was ever made respecting it,
OF the tact in the bill of ,lading will not pre-
vent the ship owner from falling back on the
terms of the charter party which it is admitted
was the only agreement ever made respecting
the way and manner of loading the cargo
But if there had not been a charter party the
result would have been the same il Perrin
were the claimant. The bill of lading it will be
observed is in the usual form and does not in
under or on deck. 1t is silent as to the nlafe
of stowage and from this silence a presilmp-
ton arises that the goods are to be slowed UNI
der deck, that being the usual and ordinary
method OF stowage. But if the contract or
bill of lading is not express ON this point: the
ship owner is then at liberty to rebut this pre-
sumption and prove that the shipper agreed to
the stowage of his goods ON deck This aues-
ton has been examined very carefully by Judge
Story in Vernard VS.. Hudson, 3 Sumner 436-
In delivering the opinion Of the Court the learn
ed Judge said: II take it to be very clear that
where goods are shipped under the common
bill of lading it is presumed that they are ship
ped to be put under deck as the ordinary mode
of slowing cargo. This presumption may be
rebutted by showing a positive agreement be-
tween the parties that the goods are to be car
ried on deck, or it may be deduced from other
circumstances, such for example as the goods
paying the deck freight only. The admission
of proof to this effect is perfectly consistent
with the rules of law, for it neither contradicts
nor varies anything contained in the bill of lad
ing but it simply rebuts presumption arising
from the ordinary course of business" A shin
owner, therefore, as against a shipper, would
certainly under this authority be at liberty to
show what was the agreement in this rasnact
and there is no dispute in the present case that
the agreement was that portion of the cargo
should be placed ON deck. Eerrin therefore
could not hold the ship owner responsible for
the deck load when lost. 81
The claimants contend that they stand in a.
very different relation to this cargo and that
thew q mi Nv
the doings of Ferrin. In fact they claim to be
the owners of the cargo by virtue of the bills
OF 'lading of the cargo consigned to them by
Ferrin upon the faith of which they have ac-
cepted Ferrin's drafts for large amount and
have procured insurance which did not cover
the deck load. 1t therefore becomes necessary
to determine their true relations to Ferrin and
the cargo, and how far they are affected nv
Ferrins dolngs and his consent to portion be-
ing placed on deck. it -
II appears that Mr.. Manson agreed with Fer
rim to purchase OF him IN behalf of the firm.
one half OF a thousand hogsheads of molasses.
of which this cargo is portion delivered on
ship board in the harbor of Cardenas at a fix
ed price, and that the same should be forward
ed to the claimants at Portland ON their Joint
account and risk. Under this agreement this
cargo was laden, and in my opinion the parties
became Jointly interested in this adventure.
and their relations to each other in respect to
It, were those of copartners The Court is not
NY ehC SOouS Doillg consigned to the
| claimants, but is at liberty to go behind the
documents and ascertain the true relations Of
| the parties, The fact that Ferrin once owned
the whole of the cargo does not vary the rela-
tons OF the parties from what they would have
been if he had purchased of planter this car
go. upon joint account, and afterwards shipped
| it in his own name to the claimants drawing
on them in payment therefor When laden on
board the brig, and Ferrin's drafts drawn on
the claimants for their proportion of the costs
| under the above agreement, the claimants be-
came jointly interested in the adventures with
all the conditions of an ordinary partnership
affecting it. The freight, with all other ex-
penses and charges, was to be borne by the COM
mon and joint interest, and the property from
moment of its shipment, was at the joint risk
for profit or loss. There can be no doubt that
under this agreement between these parties, il
this cargo had been lost on the voyage, without
insurance, the claimants would, notwith-
standing the loss, have been accountable to
Ferrin for one half of the amount of She in
voice, or if it had arrived, and loss had been
sustained in the adventure it must have been
shared alike between the parties. 1 think all
the elements of partnership are to be found
IN IN the agreement and proceedings touching
snis adventure, and it is common learning that