406 Hogsheads of Molasses.

of the claimants it is insisted, that these words were intended only to guard against any waiver of the charter money, as between the charterers and the owner. I am inclined to

adopt the latter view.

The bill of lading contains the contract between the shipper and the master, and in it the latter stipulates to carry the cargo at a fixed rate; and it appears to me, that if he intended to qualify the contract in respect to the rate of the freight, he should have used more specific terms than those relied on. The shipper was specially interested in the matter of freight, as it was to be paid by him or his agent on the arrival of the cargo; and it is quite clear that he had a right to enter into this particular contract for the freight, without regard to the charter party. In the case of Heckscher v. McCrea, (24 Wend., 304,) it was held, that if the charterer had no cargo at the place stipulated in the charter party, the master was bound to take cargo offered by others, sign bills of lading therefor, and credit the proceeds of the freight to the charterer, and look to the charter party for any balance. The master may have had this rule of law in view when he consented to enter into the special contract of affreightment irrespective of the terms in the charter. Even if the charter party contained a clause hypothecating the cargo for the freight (which it does not,) it would be difficult to maintain the position that the consent by the master to ship the goods of a third party for a specific freight, differing from that in the charter party, should not be binding between the parties.

It was insisted, on the argument, that there was some collusion between Reid & Nash and T. R. Gordon, with a view to evade the lien or liability of the cargo for the charter money. I am not satisfied that the evidence in the case supports any such conclusion; but, if it did, the question here is solely between the shippers (C. E. Poujaud & Co.) and the owner, as the former were bound to pay the freight; and, if the cargo is liable for the balance of the charter money, instead of the price specified in the bill of lading, the loss would fall on them. At least, this is the necessary conclusion from

Williamson v. Suydam.

the terms of the bill of lading, and there is nothing in the proofs tending to contradict it.

Upon the whole, after the best consideration I have been able to give to the case, I think that the decree below should be reversed, with costs, and a decree be entered charging only the freight specified in the bill of lading; and, as this was tendered, this decree must be entered without costs.

WILLIAMINA H. WILLIAMSON AND OTHERS

vs.

JAMES H. SUYDAM.

Where, on a trial, in an action at law, a verdict was given for the plaintiff, subject to the opinion of the Court on a case to be made, and a case was then made containing the questions of law, and a reservation to either party, of the right, after the decision of the Court on the case, to turn the case into a bill of exceptions, and a motion for a new trial was then denied, and judgment entered for the plaintiff, and the defendant then sued out a writ of error to the Supreme Court, but, through inadvertence, the case was annexed to the record without changing it into the form of a bill of exceptions, and neither party observed the defect, and the case was argued in the Supreme Court on its merits, but that Court noticed the defect and affirmed the judgment below, because there was no bill of exceptions and no error on the face of the record, this Court afterwards allowed the defendant to turn the case into a bill of exceptions, on payment of the costs in the Supreme Court. (Before NELSON, J., Southern District of New York, May 20th, 1859.)

THIS was a motion, in an action of ejectment, to allow the defendant to turn into a bill of exceptions a case which had been made setting out the exceptions taken by him on the trial. The verdict was for the plaintiffs, subject to the opinion of the Court, on a case to be made. A case was made, containing the questions of law, and a reservation to either party of the right, after the decision of the Court on the case,

Williamson v. Suydam.

to turn the case into a bill of exceptions or a special verdict.. The Court denied the motion for a new trial on the case, and judgment was entered for the plaintiffs. The defendant then sued out a writ of error to the Supreme Court, but, through inadvertence, the case was annexed to the record, without changing it into the form of a bill of exceptions. The cause was argued in the Supreme Court, on the real questions involved, and no notice was taken by the counsel for either party of the irregularity in the form of the record; but the Supreme Court felt bound to notice the defect, (see Suydam v. Williamson, 20 How., 427,) and the judgment of this Court was af firmed, because there was no bill of exceptions, and no error on the face of the record, without the expression of any opinion by the Supreme Court on the real merits involved in the case. The defendant then made this motion, so as to be in a position to sue out another writ of error.

David Dudley Field, for the plaintiffs.

N. Dane Ellingwood, for the defendant.

NELSON, J. The questions involved in this case are deemed very important to the rights of the defendant, and have become interesting, for the reason that the decisions of the highest courts of New York are in direct conflict with the ruling made in this case at the trial. As the omission to change the case into a bill of exceptions was an inadvertence, and was, apparently, not discovered by the counsel for either party, and as both parties supposed that the questions were properly raised on the record, I am inclined to grant the motion, but it must be on payment of the costs in the Supreme Court.

The Kentucky.

THE KENTUCKY.

Where a steamer and a sailing vessel, before a collision between them, were approaching each other on opposite courses, on a clear starlight night, and the lights of each approaching vessel were seen by the hands on the other several miles from the place of collision, and were plainly in sight, and observed by them from the time they were first seen until the collision happened: Held, that it was the duty of the sailing vessel to keep her course, and that of the steamer to adopt the proper measures to avoid her.

(Before NELSON, J., Northern District of New York, May 26th, 1859.)

THIS was a libel in rem, filed in the District Court, by the owner of the schooner Cataract, against the propeller Kentucky, to recover damages for a collision which occurred on Lake Erie. The District Court held the Kentucky to be in fault, and decreed against her for $19,427.75. The claimants appealed to this Court.

NELSON, J. The collision in this case took place some twenty miles above Long Point, and several miles from the Canada shore, on the evening of the 19th of May, 1857. It was a clear starlight night, and the lights of each approaching vessel were seen by the hands on the other, several miles from the place of the collision, and were plainly in sight and observed by them from the time they were first seen until the misfortune happened. The wind was about an eight-knot breeze, and northerly, the schooner going up the lake with her starboard tacks on board, and the propeller coming down in a direction to enter the Welland Canal. It is agreed that, when the lights were first discovered, the vessels were approaching each other nearly dead ahead, the hands. on the schooner claiming that the propeller was rather to their starboard. The difference in this respect is, however, of no importance, as, under the state of facts not seriously in controversy upon the evidence, it was the duty of the schooner to keep her course, and that of the propeller to adopt the

United States v. Fields.

proper measures to avoid her. This is the settled rule of navigation, which both vessels were bound to observe, and the omission to observe it on the part of the propeller led to the collision; for the proof is clear that the schooner kept her course from the time she first discovered the propeller, several miles distant, until the vessels came together. It is unimportant to institute an inquiry into the particular ground of fault on the part of the propeller, which doubtless led to the collision, as the rule of navigation just stated fixes the responsibility, under the circumstances of the case, irrespective of any such inquiry. The schooner kept her course, and, besides this, I do not see that she could have done anything more than was done on her part to prevent the misfortune. The rule I have stated has been so frequently announced and enforced, both in the Supreme Court of the United States and in this Court, that I shall not stop to refer to the authorities. If any rule can be settled by authority, the one in question has been.

Some objections are taken by the counsel for the claimants to the damages awarded to the libellant. I have looked into them, but do not see that they are well founded. I think the Court below right in the views taken of the case, and shall affirm the decree.

THE UNITED STATES

vs.

THOMAS C. FIELDS, ADMINISTRATOR OF GEORGE A. GARDINER, DECEASED. IN EQUITY.

Where a defendant in a suit in Equity has neither been served with process nor appeared in the suit, a bill of revivor against his administrator, after his death, is not proper, and the Court will not make an order reviving the suit against such administrator.

(Before HALL, J., Southern District of New York, May 26th, 1859.)