Nelson v. Woodruff
These suits were brought in the District Court for the southern district of New York. They were cross-libels in personam on the same maritime contract, and the evidence was identical in both cases. Nelson and his associates were the owners of the ship Maid of Orleans, on board of which a cargo of lard in barrels and tierces was shipped at New Orleans for New York in July, 1854, consigned to Woodruff & Co., at New York. The ship-owners demanded the freight according to the bills of lading, and the consignees claimed damages for the non-delivery of a large part of the lard, which, they alleged, was lost by leakage during the voyage. The question of law raised was, whether the contract of affreightment, under the circumstances, made the ship-owners responsible for the loss.
On the hearing in the District Court, the deposition of the master of the ship was offered by the owners and objected to by the counsel of the consignees on the ground, 1. That no preliminary proof had been made of the witness's materiality. 2. That it was not sealed up; and, 3. That no notice was given of its being filed; but the commissioner who took the deposition being the clerk of the court, and the consignees' proctor knowing that the deposition had been taken, the court (Betts, J.) overruled the objections. At the argument, another objection was taken to the same deposition that the witness was interested. The court held that it was too late; it should have been made on the hearing.
After argument and consideration of the whole evidence in both cases, the District Court dismissed the libel of the consignees, and decreed in favor of the ship-owners for the freight; and these decrees being afterwards affirmed by the Circuit Court, the consignees took appeals to the Supreme Court
Mr. Dean, of New York, for the appellant, cited: Angel on Carriers, § 210; Warden vs. Greer, (6 Watts, 424;) Abbot on Shipping, 346; 1 Greenl. Ev., §§ 207, 305; Dezell vs. Odell, (3 Hill, 221;) Welland Can. Co. vs. Hathaway, (8 Wend., 483;) Bradstreet vs. Herren, (2 Blatch., 116;) Bank of Pittsburg vs. Neal, (22 How., 96;) Goodman vs. Simonds, (20 How., 363;) Clark vs. Barnwell, (12 How., 272;) Ellis vs. Willard, (5 Selden, 529.)
Mr. Goodman, of New York, for the appellees, cited: 3 Kent, 8th ed., 289; Angel on Carriers, §§ 211, 214; Clark vs. Barnwell, (12 Howard R., 272;) Downe vs. Steam Nav. Co., (5 Ellis & Bain, 195;) Trow vs. Vermont C. R. R. Co., (24 Vermont, 487;) Hawkins vs. Cooper, (8 Carr & Payne, 473;) Button vs. Hudson R. R. Co., (18 N. Y. R., 248;) Clark vs. Barnwell, (12 How. R., 272;) 2 Boulay Paty. Droit., Commercial, 309, 313; The Ship Martha, (1 Olcott Ad. R., 140;) Bradstreet vs. Herren, (1 Abbot Ad. R., 209;) Terega vs. Popp, (ib., 397;) Angel on Carriers, § 211; 3 Kent, 8th ed., 289.
Mr. Justice WAYNE.