
    UNITED STATES CIRCUIT COURT.
    John H. Brower and others agt. The Brig Water Witch. William H. Sheldon agt. The Same. John Clifton agt. A Quantity of Cotton.
    
      Consignees, to whom, goods are shipped, and recognized by the master of the vessel as the proper parties to receive it, and to whom it was delivered by him and freight demanded, and who have made advances upon the goods in the usual way, can maintain a suit against the vessel for damages to the goods, although there were no bills of lading executed.
    "Where a master of a vessel consents to receive goods on board his vessel and carry them to the port of destination, he subjects the vessel to the common law liability of carrier, even if there is no bill of lading or other agreement entered into by the master. But' where there is a written agreement fixing the terms upon which the shipment is to be made, the vessel is bound by it.
    Where the shipper enters into an agreement repugnant to the terms of a charter party, of which he has no notice, his interests cannot be affected injuriously thereby.
    Held, upon the weight of testimony in this case that the cargo of cotton was badly stowed, and that sufficient attention was not paid to the sea water in the vessel, by using the pumps—the cotton being very wet when discharged from the hold of the ship. The vessel held liable for the damages.
    Where a libelant insists upon recovering damages to a cargo of cotton in an independent suit, he cannot apply any portion of them by way of abatement in a suit for the recovery of freight on the cotton, although he has set up in his answer to the latter suit such damages by way of abatement. The damages are an entirety.
    Where a portion of a cargo of cotton was shipped on deck, in violation of a fair inference from the terms of the agreement, and the freight to be paid was the usual rate for cotton under deck, held, on a question of right to recover for the rull amount of freight, as mentioned in the agreement, the freight of " that portion of the cotton carried on deck be reduced to deck freight, and at the same time the vessel held responsible for the transportation of it under deck.
    
      New York,
    
    
      October, 1859.
    The libels in the first two cases were filed to recover damages for injuries to a cargo of cotton, shipped in the brig Water Witch, from Lavacca, on the Bay of Matagorda, Texas, to this port, in May, 1854.
    The libellants were the consignees of the cotton. The libel in the third case was filed by the owner of the brig to recover his freight money. A special contract was made between the shipper at Lavacca, and one Mitchell, who represented himself as agent of the vessel. She lay at the port of Indianola, situated on the same bay as Lavacca, but several miles distant. The cotton was carried in a lighter from Lavacca to the vessel. After it was delivered from the lighter and received on board the vessel, the master refused to sign the bills of lading, upon the ground that the cotton was not in good order and condition, and pending this dispute he sailed for New York with his cargo. The shipper, on learning that the vessel had sailed without having signed the bills of lading, forwarded the bills unsigned to the consignees named in them, stating the circumstances of the refusal of the master to sign them. The consignees made advances upon the cotton. On the arrival of the vessel at this port, the master notified the consignees to whom the cotton was consigned, and discharged his cargo, but in a very damaged condition. He also demanded his freight from them, the payment of which was refused, and the above suits after-wards instituted by the respective parties.
    It is proper to state further, that the brig was under a charter party from the owners to a firm in New Orleans, and that Mitchell, with whom the contract was made for the shipment for the cotton, represented this firm. 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 of the vessel, to be carried to New York for the freight of one and a quarter cents per pound.
    This 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, which was in writing.
    Benedict, Burr & Benedict, for libelants in first two suits.
    
    Beebe, Dean & Donohue, for libelant in third suit.
    
   Nelson, C. J.

We perceive no well founded objection to the right of the consignees to maintain these suits. They were the persons to whom the cotton was shipped, and were recognized by the master as the proper parties to receive it, and to whom it was delivered by him, and the freight demanded. They had made advances upon it in the usual way, and as between them and the owners for whose benefit the advances were made, they had the same interest in the cotton, as if the bills of lading had been duly executed.

We should have no difficulty in this case in holding the carrier to the common law liability on the shipment of cotton, even if no bill of lading or other agreement had been entered into by the master, as his consent to receive it on board his vessel and carry it to the port of destination subjected the ship to this liability.

But, in addition to this, the agent of the charterers, in whose service the brig was at the time, and who were interested in procuring cargo, entered into a written agreement, fixing the terms upon which the shipment was to be made. The vessel was bound by it, and although it does not contain the stipulations usual in bills of lading, it carries with it by implication the common law obligations of a common carrier.

We lay entirely out of view the charter party between the owner and the firm in New Orleans, as the shipper in this case had no notice of it; and, if therefore, there had been anything in this agreement repugnant to the charter party, it could not be permitted to affect injuriously his interests.

Having disposed of these somewhat technical questions, we come to the main question in the case—and that is, whether or not the damage to the cotton was the natural, if not necessary, effect of its condition at the time of shipment developed in the course of the voyage, or produced by the dangers of the navigation without any fault of the ship, or whether all or any part of it is attributable to bad stowage, or absence of proper care and attention on the part of the master ?

Some one hundred bales of the cotton were shipped on deck. It had been argued that the right thus to ship it is fairly to be inferred from the terms of the agreement between the shipper and the agent of the vessel. We think not. It is, also, argued that there was a usage of the trade between the ports of Texas and New York, in the shipment of cotton which justified the master in shipping it on deck. We think that the proof fails altogether to establish any such usage. The freight to be paid was the usual rate for cotton under deck.

It has further been strongly argued, that the whole damage to the cotton as disclosed on discharging it at this port, was the effect of the country damage existing at the time of the shipment, or was produced by a storm which the vessel encountered in the voyage. The evidence in the case is very conflicting upon these questions, and difficult, indeed impossible to be reconciled. The court below came to the conclusion that, according to the weight of it, the cotton had sustained sea damage, for which the vessel was responsible. We are inclined to concur in this conclusion. The testimony is pretty strong that the cotton was badly stowed, and, also, that sufficient attention was not paid to the sea water in the hold of the vessel by using the pumps. The cotton was very wet when discharged from the hold of the ship.

The court below, in the case of the libel of the owner to recover freight, dismissed the same after applying so much of the money awarded for damage to the cotton as equaled the freight money. This, we think, was erroneous. The consignees had each filed his libel to recover this damage, and has succeeded. It is true each set up in his answer to the suit for freight, damage to the cotton by way of abatement of the sum claimed. But these parties could not split up the claim for damages by applying a portion in extinguishment of the freight money, and then ask for a decree for the excess over this sum. If they insist upon recovering damages on an independent suit they cannot apply any portion of them, by way of abatement,, in the suit for the freight money. The damages are an entirety. .

We must, therefore reverse the decree in the ca$p of Clifton agt. a Quantity of Cotton, and direct a decree to be entered for the libelant for the full amount of the freight money and interest, with costs. And, as the full amount of freight at the rate of one and a quarter cents per pound will be recovered, the error will be corrected in the court below, reducing the freight of the portion of the cotton carried on deck to deck freight, and at the same time holding the brig responsible for the transportation of it under deck.

The decrees in the other two suits are affirmed, with costs.  