The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-13
COURT OF ARBITRATION.

The following Is the opinion rendered by Judge
E. L. Fancher arbitrator In the case Of Busk &
Jevons against E. Pavenstedt Co. The plaintlns,
as owners OF the steamship PleIades, w. Lee
master, which lately arrived at the port OF New
York from Yokohama, Japan, with 4 cargo OF teas,
claim OF the defendants q difference OF freight
on SIS half chests consigned to them. The
measurement OF tie chests, according to the
bills or lading. was So 1910 tons. The plaintiffs
claim freight on 81 25-1O0 tons, which they al
lege was the true measurement OF the chests 1t
is asserted by the plaintins that the discrepancy
between the actual measurement at the port or
New York and that specified In the bills OF adlng
cannot be accounted Tor by any natural expansion
OF the chests aha their coverings but 1t Is attrbu
ted to an error in the measurement or IN the cal
sSa be- saw sns ss Mne
being discharged from the vessel and measure d
them, as 4 the custom. by samples; ana assum-
pies measured wDlca he testified was the TACT, the
whole SIS hall chests measured 81 25-l00 TONS He
teas in China ana japan was the same as is prac-
tlsed ia the port OF New York; that, in his judg.
o Of Ss @ ~
supposed expansion, and that 1t was to be
0r only On the o.
terers 20 pay freight Of the vessel at the rate
Ieet Japan aud China measuremsnt payable on
delivery at New York, 1.-The cargo to be measured
rithm rod on board the vessel or IN Godown as re-
quired by charterers or their agents" The bills
H o the is 10 Be IN NeM
York as per margin; and IN the margin It Is thus
So dao tons III, az s
Is presented, IN which be states that the SIS
hall chests we're shipped on board his vessel at
In Japan - ana that they ''were measured by the
shippers at that point containing So 1910 TONS"
ment Of them myself, and nndinG 1t 10 exceed that
amount declared to the shippers before signing
bills OF ladng my dissaislactlon ana dissent from
titled to receive freight on the measurement In
New York, amounting 10 81 25-100 tons. The certt
hcate OF the Captain clearly indicates that his
measurement was made alter that oi the shippers,
and that his expression OF dissatisfaction and dis
sent from their measurement was before the bills
OF adiDg were signed. Why, then, did he sign the
bills OF ladlng which specified the measurement to
and while, In lar as 1t partaKes OF the nature Of
receipt, tt may be open to explanation, 1t Is, In
the absence OF fraud or mistake pin aing upon the
and that OF the Captain differed. ana with lul
knowledge OF that fact the Captain voluntarily
of the Shippers was adopted, ana the amount or
the freight was stated on the basis OF that meas
uremsnt, 1t amounted to u waiver oil the Captains
expression OF dissa tislactiOn and dissent 1t
would be deprcctating the character and purpose
Of 6 Of Laying z, oeo WIT ITS INTENDED value &c, 70 make
expression OF dissa tisaction and dissent OF one Of
the parties. The Captain was not obliged to sign
the bill OF adtng IN the form In which 1t was pre-
scented to him. II erroneous he should have cor.
rected It, But having signed It and returned 1t 10
the shippers with iuli knowledge Of all the Iacts
he Is estopped thereby from alterward asserting
taat 1t was not true. The Captain Is, while IN
command Of vessel the agent for the owners
He represents the ship, and his act IN signing and
delivering the bills Of ladlng Is binding upon the
owners, unless there be soma fraud or mistake.
The New York measurer testified that he saw the
teas white being discharged from the vessel. He
then applied the logarithm rod TO portion oil the
chests. This measurement in New York was not
uffic.ent to invalidate the measurement made IN
Japan. The char ter party provided Tor Japan and
CHINA measurement by logarithm rod in presence
oil the Cap. ain, on board the vessel This the Cap
tain should nave required in Japan before or
1t would clearly be an inadmissible test
to make the measurement on the wharf, or while
the teas we're being removed from the vessel to
the wharf, where the mating and ties in the
strands OF cane which covered and hound the
chests may have become expanded by he damp
ness OF the voyage or by the jostling OF the I'M
loading very small expansion of the mating
or oil the knot Of the cane, over which the
logarithm rod Is laid when the measurement Is
taken would, where the bulk OF eAcn hall chest Is
small, increase considerably the cubic contents OF
the whole Shipment. Ii the increase be que to
expansion II Is we'll settled 1t not to affect
the measurement made at the port OF Shipment
chArtcrparty and the bills Of ladlng aps ear In this
case TO be explicit, and there does not appear to
have been any mistake or fraud sufficient TO set
aside such mutual stipuattons OF the parties.
There must therefore, be an award that the plain.
tins are not entitled to recover any additional
freight on the teas III question beyond the amount
specified In the bills OF ladtng.