ter be excused for any error of judgment in supposing it were best to rebale the burnt cotton, and sell it all together for distribution? Who lcnows that he is not willing and ready to make that distribution, and pay over the proceeds on demand? I regret that the proof is so meager on this branch of the case, but the implications and inferences are, in my opinion, not at all in favor of the assumption of fact that the master was ab initio a thief or embezzler of this cotton, whatever he may have become afterwards by a misuse or wrongful withholding of the money paid to hiD;l as its proceeds,-if there has been any such misuse, which has not been proved, but only taken for granted, because defendants supposed they were protected from liability in any event, a.nd whatever he may have done. My conclusion is that the judgment should. be for the defendants absolutely, because, as to the fouf bales of cotton on hand when notice of plaintiffs' claim came, they were not the entire owners, and only had an undivided. iljlterest incapable of separation, and therefore a refusal of their demand did not. amount to a conve:-sion as to those four bales. Whether assumpsit would lie after sale for plaintiffs' share of the proceeds of those four bales, I am not sure, but think possibly not, for the same reason of a want of iden tifying their property. But at most they could be liable only for plaintiffs' share of those four bales, and the charges atld commissions retained by defendants. If any apologY' is needed for the extent of this opinion it must be found in the confused state of the authorities, the unaffected deference I have fOf the opinion of the learned circuit judge, the great. reluctance I feel in stating this dissent at all, the necessity that is upon me for justifying it as best I may, and a firm conviction that, notwithstanding the array of opinions to be produced that may be .thought to be, and perhaps the contrary, the defenqants are not liable upon the true princi" pIes. of law, as I understand th.em. The supreme court of the United States ought to be asked to settle the questions of this elise, and only because they have not heretofore had occasion to do so, do I conseotto& dissent, I believe, except pro forma, since I have been in this court.
(Di8trict Court, S.
York. April 9, 1889.)
BHiPPINa.;.,:.;OHARTlllR·PARTY'-:"'STIPtfLATION AS TO WEIGH'l'-MISTAKE-ExCESSIVE DRAUGHT-DAMAGES.
Respondent libelant's vessel for a lump sum, contracting to load ·lier with" not to exceed 850 tons" of guano. By error of both the master and the chatiterer's agent at the port of loading, the vessel took on board over 90 tons in excess of the charter amount, by reason of which additional weigh\ she was detained several days at the bar at her port of destination. Held, that both parties were liable for the ship's damage. '
·Reported by Edward G. Benedict, Esq., of the New York bar.
BRAW 11. FOLSOM.
SAlIE-REOOVERY OF CHARGES FOR ADDITIONAL FREIGHT.
H6ld, also, that the ship-owner could not, in addition to his claim for damages. recoVer pro rata freight for the transportation of the additional weight.
In Admiralty. Action for damages for detention of a vessel, and for incidental expenses, caused by excessive loading, as well as p"o rata freight for extra weight transported. Wing, Slwudy &- Putnam, for libelant. Biddle &- Ward, for respondent. BROWN, J. Bya charter-party dated August 29, 1887, the respond;. ent engaged the libelant's brig, the Emma L. Shaw, to proceed to Little Curagoa, and take a cargo of guano, to be delivered at Charleston, S. C" for a lump sum as freight of $2,500. The charterer contracted to load the ship with a cargo of guano, "not to exceed 850 tons." He supposed that to be the full carrying capacity of the ship; but she could carry 1,000 tons. The object of the owners in inserting the limitation was that the .ship might be under no difficulty in going over the bar at Charleston. At Little Curagoa there were no means of weighing guano accurately. It was loaded from lighters by estimate. Such was the custom. On reaching Charleston the vessel could not pass the bar on account of the excessive draught. She was detained there six days, including rough weather, during which time part of the cargo was lightened from the ship. On delivery at Charleston, the weight was found to be 9H tons in excess of the amount specified in the charter. It was this excess that prevented her passing the bar, and the libelant claims to recover for the detention and incidental expenses caused by the excessive loading, as well as for pro rata freight for the extra weight transported. I am not satisfied that there was any bad faith on the part of sporident or his superintendent, as respects the excessive Ue Curagoa. The master had equal, or nearly equal, means of judging what amount to put on board, though the rough weather prevented' exact observation of the vessel's draught; and the tally kept in the log would indicate that the master must have been aware on the -last day that it was likely that more was being loaded than was allowed by the chatter. He had a right to refuse anything offered in excess of 850 tons. But he was doubtless in a difficult position when the superintendent insisted that that weight had not been reached. The charter must be deemed to have been entered into in view of the uncertainty as to the exact weight that must attend loading at the guano islands. The specification of 850 tons was a limit of the charterer's engagement and of his right to load ; but not, I think, in the uncertainties of the place of loading, a strict and absolute warranty that in no event should more than 850 tons be put on board. The master might intentionally Qa\'e taken more; and, had that appeared to be the fact, the respondent could not be held for damages. But it is plain that the master had no such intention; that the amount put tiboard was a matter of difference and discussion; and I cannot find that there was bad faith or deception on either side, although the excess is luuch .
more than any usual variation front the amount designed to be loaded. I think ther¢Sponsibility of determining the correct. upon one as much as the other; that both are equally responsible for the excess put on board; and, as a loss to the ship resulted directly from the excessive loading, ;that both parties are alike chargoo.ble. with the loss. As nothingwal' ever said to the respondent connecting the 850 tons with the draught of water at Charleston bar, and as he knew nothing of it, and could not have contemplated these special damages in connection with any exceSS above the charter limit, I have some doubts whether this is proper legal damages; but, as the point was not raised or argued, I do not consider it. The libelant cannot, in addition to the claim for damages, recover also for the pro' rata freight for the transportation of the additional 9H tons; but heis entitled to include not only the expenses at Charleston, but the additional time of the vessel in loading and unloading the 91 t tons, for which I allow 2 days at $45 per day. This, with the delay at Charleston bar, and other expenses, and interest, amounts to $780.50, one half of which is $390.2.5, for which the libelant may take a decree, without any costs beyond the costs already paid with the payment of the freight.
O'NEIL et al.
(DiBtrict Court, W; D. Tennessee. March 4, 1889.)
CoLLISION-VESSELS AT WHARF-CUTTING BARGE ADRIFT TO SAVE STEAMER -INJURY TO OTHER VESSELS.' .
One ,has not the right to save his own property at the expense of another's. unless the property sacrificed in some sense threatens that which he seeks to save. Held, therefore, that a steam'boat was liable in a case where the mate cut adrift a fiat lashed to 'the steam,boat, which seemed to him to be in imminent danger of sinking and carrying with it the steam-boat herself, whereby the libelants' barge, lying below. and laden with coal. was sunk by collision with the drifting filit. .
Steam-boats. in a crowded harbor. coalinA' from '1' flat along-side, assume the duty of protecting the flat fro.m drifting logs. so far as relates to any danger to craft moored in the current below. should the flat be set adrift to save the steam·boat from the peril of its sinking along:side while lashed together, unless they bargain with the owner of the flat to give attention to its in navigation during the process of taking coal from it; and it is neglIgence in the steam·boat not to protect the flat meanwhile by fenders against the drift, or, if thellafety of the steam·boat demand that the fiat should be detached, not to hold.it with lines to prevent collision. if set adrift. with the craft lyinA' in the river below.
It is not inevitable accident which Causes the collision between a drifting flat and libelant's barge, moored to the Wharf, if the fiat has been tarjly adrift by a steam-boat, having,it attached along·side for coaling, although the mate of the boat cut it adrift while in a sinking condition !froUl· contact with a drift in the river, and in order to keep the steam-