New-York tribune., 1867-07-24
CIVIL COURTS.

OPINION BY JUDGE sIIIPMAN-LIABILITY OF Ship
OWNERS FOR CARGO AFTER IT'S CONsrRUC-
TIVE DELIVERY ON PIER--THB LIMIT OF
REQUIREMENT IN CERTAIN CASES.
James Kennedy and Others ship yeremsh TbcmpOu t
WIN. y Dodge and Others
SHJpMAH, J-This Is libel in perS0ndnr
geSoSeT e freight money on quayo
tin plate and iron rods shipped board the Thompson at
respoRdcnts in NewYork The bin OF ladng Is IN the
ordinary form, and the libel alleges performance OF tne
The answer admits that the goods were shipped as
stated aud arrived this port but ayers that they were
not delivered good ORDER that on the contrary the
cargo Of the ship was discharged in such an unskifu
aud negligent manner that tho dock ON when u was
preci,tated into Che river and greatly damaged The
also that the respondents were M great sx
plates in being Immersed in the water amounts to more
than the freight money sued for The respondents as ASK 70
recOup and set off this damage and expense 10 tne OK
tent Of the beants claim for freight ana recover tne
Before stating and applying the legal principles which
must govern this case It will be proper to state the Iacts
which developed on the trial ma the following
Frs That the ship arrived at this port about the ilth
Of August 1885, with general cargo @ inS S,na n
and also considerable quantity OF pig iron anu O'hcr
Second: That on tho application Of the ship, the Har
assigned hcr berth at Pier No 20 East Kvep
wh S sae G saa % % r day
Third. That the pier was good one WIN suinelene
strength TO have supported the cargs h@d IL Deen properly
Fonrta That as the cargo discharged from time
of which belonged to them and took portions Of it
from time time TO their warehouses as was convenient
40 oyeroaded the bridge Of the with the cargo and
especially with tie iron. that 1t gave way, and pre-
Sirih; That the goods thereby damaged and the
respondents incurred expense in recovering them from
SerenM: That by a standing agreement between the
ship her owners and tho respondents when the la latter ter
lbelants. and such goods remained on the dock over
night the maser or agent Of the snip was 20 employ g
the respondents, and that they did 80 in this case
Now n is insisted by the ibelans that these goods were
delivered to the respondents when they placed
the dock with notice 70 them. and were consequently at
this port under ordinary bills Of ading, from foreign
countries landing them at proper ume ana nPoH :,
delivery After such landing notice the takes
all the risks arising from every other cause except that
snit evidently recognized this rule of law when the
wschman was employed at the Of the respond
lin been stolen or removed by other parties without the
Intervention of'the officers agent Of the ship or
damaged by the elements the ship cOud not nave Deen
Bat this does rot the question before the Court
weight OF iron placed upon By direction Of tue master
No. and the respondent selected the dock and he
instantly remove their goods their being landed Is no
answer The notice to them was not notice ne
the rest oi her cargo nor against defectye pler Inc
master had no more right to break the doek down ana
had pile his iron crates OF cr0ckery and crush them
attribute TO him no intention to ure the pier os sns
respondents goods. speaking OF tho legal ana not
the moral quality of his acs e doubtless Thoughts tne
dock would spPOh tha 5e s SaG ss ne w hs &C.
auenees OF that mistake not to fall Oh the owners OF
r The ony doubt aye felt in the case is in Rotation 70
the responsibility OF te ship for the damages Tho mas
were injured There was a constructive delivery, and
the question has arisen in my mind whether after such
delivery the wrongful act 6f the master in
damaging the goods bo visited on the ship But this
wrongful act not malicious or on MS part
bat was committed In the Ornay discharge OF hs duty
master, and within the scope OF bis powers as ths
Much as during the hearing laid on the fact that
had notice any reason 70 suspect hat
support the load he was placing upon IT, There u. how
ever, evidence that he had doubts on this point
bound to deliver her cargo In proper PlacS-tnat -
place proper for the amount that 10 Dc landed ana
legal Observer N.Y. p 100 Judge IngersOs remarks,
D. 1861 This place selected by the ship aud &c
Is sufficient support the load which she places upon IT.
and that the weight Of the cargo Is properly distributed
The only remaining question IS whether the damages
Of the respondents arising out OF this accident can be
In their favor whether can be recovered In tnis
sait.
eouped the ght money which the hbeants woud
otherwise recover appears 20 ne nsaS m na~ a
Carth, ibd. Sg By way of recoupenent the.respond-
ent the arise out Of the same transaction
extlngush portion all Of the claim OF the hbeants
But they go further The Court cannot pronounce
In their favor for any in which their damages may
exceed the amount Of the beants demand In "Nchols
Agt Trewlett" Spngues Decisions So7, the Court says
uleaa I'm set-oH no statute having given It that
authority, and It has been Thought by some mat
a distinct claim by the respondents. founded upon
the violation OF the contract by the lbelant,
is In the OF setoG, and not cognizabe by this
Court But am OF opinion that when the counter claim
is founded upon tho eharterpary the respondent
may set in his answer so that the damages hat ne
has sustained may bo reeouped from the amount whch
tho libclnnt might But IN this case II the
damages sustained by the respondent should excuse the
for excess the utmost effect being to diminish or eI
ngush the claim of tho lbeant Nor could tho respond
not be permit ed 10 split mp his demand ana the
his clam for damages TO the Court ne must De conteh
with such relief rs the tribunal may afford him."
understand this 20 be correct statement OF the law
both in the AdmiraltVand Common Law Courts (sekee
agt. Patsop. Il wend 2), ana is as roilows Ihat tnls
render Judgment for the respondents 70
cover any excess beyond tile llbeinnts just claim
Had the respondents filed cross or independent lDe
Il tSo ato now They must content themselves with
dlminuton or extinguishment OF tho hbelants just
claim.
LET an order be entered referring the 10 Com
missioner take the proofs and report 10 this Court the
OF freight which might be due 20 the hbelants un
der the bin OF adnR and the amount Of damage which
the respondents have suffered by the injury 70 their
goods tho mentioned In The answer toether
with the expense which they incurred In recovering them
from the water. the ,coming In OF the report final
decree will be entered in conformity othe rule aid down
Before Judge BLATcuPoRD.
THE COURT "No COURT JUDGE BLATCHFoRp
IN AN UNPLEASANT POSITION.
The courtroom was we'll filled with lawyers
nnd others awaiting returns OF process and litigation In
several suits in bankruptcy. -
Judge Batchford, entering the courtroom SAID tnat
he wa pla rather unpleasant position That was
leut for him determine how to act He had
been acting heretofore Judge OF this District by virtue
OF commission from the President, which commission
expired at the end Of the Last session Of the IT, g. Senate
The newspapers had stated that his appointments had
been confirmed at the last sesnlOn VI tho sen
ate but his commission had not been sent
10 him and there now in consequence, no Judge In
This Disiet He had teegraphcd TO Washington within
Al abort fine TO have his commission sent knowing
that in case IL did not arrive In time the business In the
Courts would suffer from delay but, notwithstanding,