
    Josiah Lawrence v. J. McGregor et al.
    Bill of lading for articles received on board steamboat A., indorsed, “ Shipped at Cincinnati on board steamer T. to be reshipped at Louisville per steamer A.” Qwccre, as to the obligations of the freighter in unlading to pass the falls at Louisville.
    Assumpsit upon two bills of lading, of tbe same terms and date, adjourned from Hamilton county. The following is a copy of one ■of the bills:
    “Shipped, in good drder by Josiah Lawrence, for account *and risk of the shipper, in and upon- the good steamboat ■called the Amazon, whereof is master for the present voyage Captain McGregor, now lying in the Ohio river and bound for New Orleans, to say, thirty-four barrels of whisky, being marked .and numbered as in the margin, and are to be delivered, without delay, in like good order and well conditioned (the dangers of the river and unavoidable accidents only excepted), at the port of Now Orleans, unto Mr. Joseph S. Bogert, or unto his assignees, he or they paying freight for the said goods at the rate of seventy-five ■cents a barrel.” On the left hand margin, at the foot of the bill of lading, these words were written: “ Shipped at Cincinnati on board steamer Tecumseh, to be reshipped at Louisville per steamer Amazon.”
    
    The case made on trial was this: At the date of the bills of lading, the steamboat Amazon was lying at Shippingport, below the falls, in the Ohio. The Tecumseh was lying at Cincinnati, and took in the freight to be transported to Shippingport and reRhipped upon the Amazon. When the- Tecumseh arrived at Louisville, the state of the water was such that the pilot declined taking her over the falls. The goods were then placed n board a flat-boat, to be carried over the falls to the Amazon. The weather being boisterous and night coming on, it was concluded, by the advice of the pilot, to detain the flat until morning. She was moored on the outside of the Tecumseh, and about daylight the next morning was run upon by the steamboat Lady Franklin and sunk, and part of the cargo lost. This suit was brought .against the owners of the Amazon to recover this loss.
    In giving the case to the jury, the court instructed them that,, ' in legal contemplation, the bill of lading bound the defendants, to carry this merchandise, in the Tecumseh, to the Amazon, and that they had no right to substitute any other mode of transportation but at their own risk. A verdict was then taken for the plaintiff,, subject to the opinion of the court, upon that question of law. The defendants now move for a new trial, on the ground of error in the court, in the opinion expressed.
    *Storer & Pox, for the motion,
    cited Phil. on Ins. 14, 182, 425-427; 1 Johns. 205; 3 Johns. 221; Abbot on Ship. 294; 2 Burr. 887; 10 East, 378; 5 Bin. 525; Petersd. 107; 15 Johns. 18; 16 Johns. 363; 4 Wend. 54; Marsh on Ins. 171; 1 Camp. 50, note; 8 Cranch, 75; Park on Ins. 191; 1 Burr. 348; 6 Mass. 205-208; 3 Wend. 289; 2 B. & P. 430, 436; 1 Conn. 184, 197; 3 Conn. 14; 8 Pick. 14; 6 Mass. 422; 7 Mass. 300; 6 Cranch, 328; Doug. 512; 2 New R. 263; 2 Bay, 223; 7 Johns. 389; 10 Johns. 129; 11 Johns. 312, 397; 8 Cranch, 74; Rocius, 131; 1 Caine, 45; 1 Gall. 444; 4 Ohio, 334.
    Hodges, N. Wright and Hammond, contra,
    cited Phil. on Ins. 17, 182; 1 Stark. Ev. 423; 2 Stark. Ev. 335, 345; 8 Serg. & R. 533; 2 Stark. Ev. 145; 2 S. & R. 454; 1 Gall. 443; 3 Esp. 67, 131; 6 Johns. 177; 2 Kent’s Com. 327; 2 Condy’s Marsh. 707; 1 Phil. Ev. 435; 1 Johns. 430; 2 Johns. 335; 10 Mass. 28; 2 Burr. 1322; 4 Ohio, 345; 3 Serg. & R. 453; 15 Johns. 39; Story on Bail. 329.
   Wright, J.,

delivered the opinion of the court:

Several questions have been raised and elaborately argued by counsel in this case, but we confine our inquiries to one. Was th® opinion given by the court to the jury correct? A decision of this question necessarily involves the inquiry whether the memorandum in the margin of the bill of lading did not form a part of the contract of affreightment, and if so, whether the Tecumseh was not to be held subject to the usage of the river as to lighting over, or draying freight round the falls. If the marginal memorandum,, connected with the bill of lading, is to be taken as part of it, and of the contract, it would be understood as an undertaking to carry in the Tecumseh from Cincinnati to the Amazon, and in her to New Orleans. Whether these marginal memorandums are esteemed a part of the bill of lading or not, may depend on the usage of th® river, upon which we are not well informed. Our own opinions upon these questions do not perfectly harmonize. We doubt if the judge in ^giving the law to the jury did not express himself stronger than the law would warrant, and the difficulty is increased by the consideration that we are without certainty as to-the precise language used by him. The opinion, whatever it was, no doubt influenced the verdict, which was taken subject to our-opinion upon the law applicable to the facts. In such cases we think it best to give a new trial, that a more full investigation of the facts may be had before another jury, and an opportunity afforded for inquiry into the usage of the river in reference to this kind of bill of lading. Such light may be hereafter shed upon the question as will enable us more satisfactorily to settle the law arising upon it.

New trial is awarded. Costs to abide the event.  