Pinto v. Atwater, I Day, 193.

The cost of transshipment is a charge solely on the freight; any excess above charter freight is a charge upon cargo. Thwing v. The Wash. Ins. Co., 10 Gray, 443.

Cutts Adm. v. Perkins, 12 Mass., 206.

Coffin v. Stover, 5 Mass., 352.

Lemont v. Lord, 52 Maine, 365.

Where there is an actual separation from the vessel, the cargo does not contribute in general average to the subsequent expenses of saving the ship.

McAndrews v. Thatcher, 3 Wall., 347.

CADWALADER, J.

This case having been argued by counsel, the Judge said: I think that the whole stipulated freight, as upon a full package, is payable on every package which retained its whole contents, or a quantity equal in value to the stipulated freight on such package; and that the stipulated freight should be thus assessed as if the packages partially emptied had not been refilled, but had reached Philadelphia and been delivered in their condition of partial emptiness.

I am also of opinion that any extraordinary charges of transportation which were necessarily incurred by the defendants are allowable as the deduction from the freight otherwise due.

I cannot, at present, perceive that, as between the parties here litigant, any question of general average can so arise as to affect the computation of either the freight or the deduction. But on this point a definitive opinion is not expressed under either head; and the subject may be elucidated by a pro forma dispacheur's adjustment if either party desire to exhibit it.

October 26, 1877.

Afterwards, a partial pro forma adjustment having been exhibited, the judge said:

The decision of this case may be prefaced by the remark that the Log Book shows the stranding to have been involuntary,

and not in any proper sense voluntary. The vessel could not have been kept from the beach.

This point, however, seems to be immaterial, and I mention it only because the stranding is described by the libellant as voluntary.

Recurring to the original question considered at the close of the former hearing, I retain my opinion then expressed as to the proper mode of estimating the freight which is to be allowed in the first instance.

The remaining question is what amount should be allowed by way of deduction from freight, and reimbursement of the excess, if any, of charges on the cargo above the freight.

On this point I am of opinion upon the facts that the services for saving the vessel were not with a view to making her the vehicle of continuing transportation of the cargo. Therefore the charges incurred in order to get her afloat were essentially distinct and different from those incurred for getting the cargo to its destination; consequently the case does not fall within the rule ordinarily applicable where the peril has originally been a

common one.

The accidental fact that the salvors were the same persons and the contract was a single one as to both vessel and cargo, does not, in itself alone, suffice to make the charges of both kinds a common burden upon both subjects. The charges must be apportioned, those incurred for getting the vessel afloat being assessable upon her, and those incurred in making the cargo transportable, and in transporting it, being assessable, first upon the freight, and afterwards, if in excess, upon the cargo.

If the libellant desires a reference to a commissioner to report whether any, and if any, what amount is due to him for freight upon the above principles, the reference will be made. Otherwise the libel will be dismissed.

Oral opinion by CADWALADER, J.

DISTRICT COURT.

ADMIRALTY.

NOVEMBER 14, 1877.

THE BRIG MURIEL.

WILLIAMS v. SHALLCROSS, OWNER AND
CONSIGNEE.

Part of a perishable cargo in a voyage of extraordinary duration at an unfavorable season with weather at times tempestuous, was lost, the proximate cause of loss being wetting by sea water. In this state of facts, in the absence of preponderating evidence that there was bad stowage, the vessel was not responsible in damages for the cargo.

1. LIBEL by Shallcross, owner and consignee of a cargo of potatoes, against the brig Muriel, for loss of a part of the cargo by wetting by sea water.

2. LIBEL by Williams, master, against the cargo for freight. In December, 1876, Hyndman shipped a cargo of potatoes upon the brig, to be carried to Philadelphia, freight at the rate of twenty cents per Winchester bushel, payable on the "output" by consignee. The master signed bills of lading by their terms exempting the ship from liability for loss arising from “perils of the sea," and receipting for 8,390 bushels, "more or less."

Upon arrival, the master delivered to Shallcross, who had purchased the bill of lading, 6,937 bushels in good condition, but the balance had become utterly destroyed by the action of sea water, and was a mere mass of mash. The consignee refused to receive this part, or to pay freight therefor. The master then shovelled the mash overboard, without any measurement of its quantity, and sued for his freight.

The suit for damage, being the first of the above actions, was first heard, and involved principally questions of fact in respect to stowage.

Roney, for libellant in first case, and for respondent in second.

Flanders, for respondent in first case, and for libellant in second.

CADWALADER, J.

We have here a perishable cargo, with a voyage of extraordinary duration, and weather which, however described by the witnesses, appears by the log to have been at a certain period tempestuous. The preponderating tendency of the proofs is that the cause of the damage suffered was wetting by sea water. The occurrences of the voyage suffice to explain this. The master of the vessel is therefore not liable to the merchant unless by reason of bad stowage.

The question as to stowage is twofold. First, was there proper and sufficient dunnage? On this point, I do not think that the case of the libellant is made out on the law and the facts. Secondly, is the proof of the grounding and shipping of water in the East River sufficient to show that the cargo theretofore taken in was wetted so that it was improper to complete the lading without reference to that occurrence? On this point, if the decision depended on the examination in chief of the steward, the decree should, I think, be for the libellant. But in the steward's cross-examination, he says that he did not see any shipping of water, and the master and the mate testify that no water was taken in. The case of the libellant is one of great hardship, but the libel must be dismissed with costs. Decree accordingly.

NOTE. For the report of the second of these cases, being the suit for freight, with the opinion of BUTLER, J. see 7 W. N. C. 148.

On September 3, 1877, Casselberry filed a libel for supplies against the schooner; the Court thereupon issued a writ of attachment which was duly returned "attached" etc. Pending

the writ, another libel was filed for supplies, and two for wages. These were libels of intervention. None of the claims were contested.

Upon September 28, an application having been made for the sale of the vessel, and having been refused, the Proctor for the original libellant then moved for and obtained a decree pro confesso and an order of appraisement and sale. A few days afterwards, but before the sale, the intervening libellants obtained decrees in their favor for the amount of their several claims.

The fund in Court was not sufficient to pay all the decrees. The original libellant claimed the whole fund.

The motion for distribution was three times argued, and at the second argument the Court decided that the wages of the mariners were to be paid first. The question of priority between the decrees for supplies was now argued.

Henry Flanders, for the original libellant.

It is the established rule in England that the superior diligence of the first suitor will be rewarded by payment in full, in such cases.

The Saracen, 6 Moore, P. C. 56.

The Clara, I Swabey, 1.

The Gustaf, 6 L. Times R. (N. S.), 660.

Cootes Admiralty, 134-5.

Maclachlan, C. XV.

This doctrine of prior petens has been adopted in the United States.

Woodworth v. Insurance Co., 5 Wall. 87.

Priority of seizure entitles the libellant to priority in payment. The Globe, 2 Blatchford, 428.

The Triumph, Id. 433 (Notes).

C. H. Howell (with whom was J. Warren Coulston), for the intervening libellant.

The doctrine of prior petens is inapplicable. There are no cases in England where all the decrees were obtained before the sale, as in this case, and that makes a material difference.