The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-04-16
BROOKLYN CITY.
TIE COURTS.
UNITED STATES DISTRICT couaT-N ADMIRALTY.

Appeal from a Commissioners Report-De.
cisi0n.
Before Judge Benedict.
James ". Cdldceu rs. the Steamboat Thomas
Keaey.-Judge Benedict yesterday rendered the fol-
lowing decision in this case:-
This case comes before me upon exceptions to the
Commissioners report. The action is brought to
Oy the striking Of canal boat laden eN with
ista o. January. 1857, in 0'v the port o ' Of
New York; II appears that the vessel
and taken the Atlantic dock The 1c coal boat
was taken out and sold at private sale, the dis.
charging occupying two and half days, and the
paired Almost Immediately on her arrival there she
was frozen in so that she could not put be upon the
out and the repairs to her completed. The commits.
soners allowed the ibeants demurage at the rate Of
seven dollars per day for the whole .periodof
exception Is taken. The Commissioner also allowed
dollar and fifty cents per ton for depreciation Of
and water, to which objection was also taken. OBJ
lection also taken to the allowance Of $43S for
% ne se on e nar OF The were
reason Of its vagueness which were obviated by
admissions on the argument. The plaintiff also
amount Of damage to the coal AS to the question of
demurrage am Of opinion that the libellants not
tention caused by the TACT that the boat was frozen
in at ElzabethpOrt, where she went to repair The
c0lllSi0n occurred IN the port OF new YORK, Where,
as the evidence shows, the repairs would have been
effected promptly and without any risk OF freezing
up X Is not shown that the repairs would have
been done more cheaply at EliZabethpOrt than in
New York. nor does II appear that that was the home
port OF the vessel nor IS any reason whatever sug
gested evidence for taking the boat to Eliza
bethport. The taking Of the boat, without
any sufficient reason, to q port where she was
in danger OF being frozen up and where she was, in
fact, frozen up Immediately after her arrival an
error on the part OF the master OF the canal boat for
the consequence OF which he alone Is responsible
lie cannot charge the respondents with loss which
the exercise OF ordinary prudence on his part won Id
have avoided. The report must therefore, be modi-
fed by reducing the demurrage to a period OF time
sufficient To complete the repairs under ordinary cir
TO Ezabethport must, for the same reason, be dsa
lowed. The objection Is TO the allowance of 81 so
per ton the damage to the cargo Of coal by mud
and water. II appears that the damage was never
appraised and that the coal was sold at private sale
In its damaged condition, without notice to the
spOndents, who TO be held responsible for the
| loss. dsapprove Of this mode of procedure. The
damage to the coal should have been ascertained by
proper examination or by sale upon notice to the
| respondent, in some other way not open TO the
suspicious always attending q private sale OF
damaged property without notice. The allowance
for this damage 10 the coal permit to stand. simply
because 1t appears aflrmatiyey that the coal was
wet and muddy, and l am OF the opinion.
looking a. the whole evidence, that sale at auction
notice would probably have shown as much loss
has been allowed, but shall mark my dsapproval
OF the course pursued by casting upon the lbeants
the fees Of the witnesses called to show the loss upon
necessity OF any witnesses would, probably have
been avoided. The Other items OF the report appear
10 be correct and the objections thereto overruled
IL the amount TO be decreed In accordance with tits
the Commission to reform the report In the particu-
lars referred 10.