THE WATER WITCH, 66 U. S. 494 (1861)

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U.S. Supreme Court

The Water Witch, 66 U.S. 1 Black 494 494 (1861)

The Water Witch

66 U.S. (1 Black) 494




1. Two consignees of a cargo libeled the ship by which it was carried for damage suffered on the voyage, and the owner of the ship libeled the whole cargo for freight and primage. The district court heard the three causes as one, and finding the damages to be greater than the freight, dismissed the libel of the owners and decreed in favor of the consignees for so much as the damage to the cargo exceeded the amount of the freight. The consignees submitted, but the claimant of the ship appealed in all the cases to the circuit court. Held that the circuit court was right in modifying the decrees of the district court, so as to give to the owner of the ship the amount of his freight and the consignees the whole sum due them as damages.

2. The claimant of the vessel has no right to complain here of such change in the decree, because it benefited him by giving him the costs of his suit.

3. The parties cannot split up the claim for damages by applying a part to extinguish the claim for freight and taking a decree for the remainder.

4. A ship which has received a cargo, carried it to the consignees at the port of destination, and then libeled the cargo for freight, is estopped to deny her liability to deliver in like good order as received, with the usual exceptions.

5. A party who has made advances on the cargo of a ship and been treated as consignee by the owners has such a title as enables him to libel the ship for damages to the cargo.

6. Where the contract between the shipper and the master refers to the "capacity of the vessel," a doubtful inference may be drawn that the cargo was to be carried on deck; but this inference is repelled by the fact that the shipper refused to let such an agreement have a place in the bill of lading and bound himself to pay under-deck freight.

7. Where a cause in admiralty turns on a question of fact and the evidence is conflicting, and both the courts below decide the same way, it is not for this Court to hear arguments whether eleven deponents ought to be believed on one side rather than ten on the other, for the weight of testimony is not always with numbers.

Page 66 U. S. 495

Sheldon filed his libel in the District Court of the United States for the Southern District of New York against the brig Water Witch. The libellant claimed to be the consignee of two hundred and two bales of cotton, which had been shipped on board of that vessel at Lavacca, Texas, for transportation to New York, there to be delivered to him on payment of freight. The libel alleged that through the negligence of those in charge of the vessel, bad stowage and other careless management, the cotton was greatly injured. The answer put in issue the various allegations of the libel, and alleged affirmatively that the "contract mentioned in the libel did not, nor could in any wise bind the said vessel, nor was the same authorized or assented to," and the same had expired.

This cause, with two others -- one against the vessel for damage to other portions of the cotton belonging to another party, and the other by the owner of the brig against the entire cargo to recover freight and primage -- were tried together before the district court, which decided that the vessel was liable for the "sea damage" to the cotton consigned to the libellant. An interlocutory decree was accordingly entered, and after reference to a commissioner the parties agreed upon the amount of the "sea damage" and the commissioner made his report accordingly, upon the coming in of which a final decree was entered for the damages so ascertained, deducting therefrom the amount of freight chargeable upon the libellant's cotton.

The claimant appealed from this decree and the decrees in the other cases to the circuit court, and the three causes were again heard together before MR. JUSTICE NELSON, who modified the decrees below and decreed the whole amount of the damages, without deducting the freight on the cotton. The claimant appealed to the Supreme Court.

The facts of the case are briefly as follows:

In May, 1854, the brig Water Witch, the property of Clifton but at that time chartered by a firm in New Orleans, lay in the Bay of Matagorda, Texas, waiting for a cargo. A quantity of cotton having offered for shipment, a special contract was made

Page 66 U. S. 496

between the shipper at Lavacca and one Mitchell, who represented the charterers. By this contract, the shipper was to deliver the cotton at Lavacca, to be received on lighters by Mitchell and placed by him at his expense on board the vessel, to be carried to New York, for the freight of one and a quarter cents per pound. The vessel lay at the port of Indianola, situate in the same bay as Lavacca but several miles distant from that place. The cotton was carried on lighters from Lavacca to the vessel. After it was delivered from the lighters and received on board, the master refused to sign the bills of lading upon the ground that the cotton was not in good order and condition. The agent also objected to the bills of lading because they did not contain a stipulation that part of the cotton might be shipped on deck. The shipper refused to admit such a stipulation, as it was not contained in the agreement between the parties. Pending the dispute, the master sailed for New York with his cargo. The shipper, on learning that the vessel had sailed leaving the bills of lading unsigned, forwarded them to the consignees named in them with a letter stating the circumstances. The consignees made advances upon the cotton. On the arrival of the vessel at New York, the master notified the consignees and discharged his cargo, but in a badly damaged condition. He also demanded his freight, which they refused to pay. Whereupon the several parties instituted their suits.

Page 66 U. S. 498


The decree in favor of the libellant

Page 66 U. S. 499

in the circuit court was for a much larger sum than that rendered in the district court, and as there was no cross-appeal by the libellant, the decree of the circuit court is now challenged as erroneous for that reason; but this apparent inconsistency will be found not to exist in reality, by a short reference to the history of the case, as exhibited by the record.

The libellant claimed as consignee of two hundred bales of cotton shipped on board the Water Witch, to be carried from Lavacca, in Texas, to New York. The libel charged that the cotton had been greatly injured by reason of bad stowage and want of care on the part of the master and crew of the vessel.

As an excuse for not tendering freight, the libel alleged that the damage to the cotton far exceeded the freight and primage. Another consignee filed his libel at the same time for that portion of the cotton consigned to him, with the same allegations, and the claimants of the ship filed their libel against the cotton for freight and primage. These three suits, all depending on the same facts, were tried as one.

The great question of the case was whether the damage which it was admitted the cargo had received was caused by the fault of the vessel, or before it was received on board -- that is, whether it was sea damage or country damage, and if sea damage whether the vessel was liable for it. The district court decided that the vessel was liable for the sea damage, and sent the cases to a master to report the amount of sea damage suffered by the cotton and the sums severally due by the consignees for freight. Having these data by the report, that court, instead of entering a decree for each libellant for the sum found due to him, made a set-off of the freight due the ship against the amount of damage suffered by the cotton, giving a decree for each consignee for the balance, deducting freight, and dismissing the libel of the owners. The claimant of the ship appealed in all the cases to the circuit court. The several amounts found due by the master's report were adopted by that court and the decree in each case corrected so that the decree for the several consignees was for the whole damage, without set-off, and a decree in favor of the ship for

Page 66 U. S. 500

freight found to be due on the cotton, leaving the set-off to be made by the parties, or by order of the district court. The amendment made by the circuit court was in fact beneficial to the owners of the ship, as they recovered costs in their own suit. The court rightly decided

"that the parties could not split up the claim for damages by applying a portion in extinguishing the freight money and then ask a decree for the excess of this sum."

The appellants have therefore no reason to complain of the decree on this ground.

The amount of sea damage, as assessed in the report, was admitted to be correct. The refusal of the master of the ship to sign bills of lading could not affect the case. The ship having received the cargo and carried it to the consignees in New York and then libeled the cargo for freight, is estopped to deny her liability to deliver in like good order as received, with the usual exceptions.

It has been contended that the language of the written contract between Mitchell and Forbes permitted the cargo to be carried on deck, and that the phrase "capacity of the vessel" admitted of such construction, but the fact that the owners of cargo refused to have such an agreement made a part of the bills of lading and the agreement to pay under-deck freight repel any such doubtful inference from the phrase. The evidence does not support the allegation of any agreement by the shippers that the cotton, or any portion of it, should be carried on deck. The objection that Sheldon was not consignee, or if so had no title to support the action, has no foundation in fact or in law. The claimants treated him as such, and as such he had made advances on the cargo.

Whether this sea damage was caused, as charged in the libel, by the fault of the master or the ship was a question of fact, and encumbered, as usual, with a mass of conflicting testimony and opinions. The weight of the testimony, as decided by the judges of both courts, inclined in favor of the libellant, and we see no reason to differ from them. The weight of testimony is not always with numbers, and this Court should not have their time spent in hearing arguments whether the eleven

Page 66 U. S. 501

deponents on one side ought to be believed rather than ten on the other. In such cases, the concurrent finding of two courts ought to satisfy the losing party.

The decree of the circuit court is affirmed with costs.

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