Dorsey v. Smith

Porter, J., ’ ’ delivered the opinion of the court. 1 This is an action to recover the value of goods shipped on board a vessel belonging to the defendants, on a voyage from New-Orleans to Mobile, by the way of the river. The goods consisted of whisky, part of which was stowed on deck and a part under. Those on deck were washed overboard during 'the voyage and lost, in consequence of tempestuous weather.. The rule is well settled that owners of vessels are responsible for goods stowed on deck, unless such stowage is authorized by the consent of the shipper, or by custom. 3 Con. Rep. 9. 1 Caines, 43. Story’s Abbott, 354. In this case, exemption is claimed for the owners on both grounds, and the judge below thought the evidence on both to be' in favor of the defendants. The proof is contradictory and far from conclusive; but we are unable to say the court erred. Whether the consent of the plaintiff was proved or not, depends much on the credit due to the testimony of one of the witnesses. The judge who saw him and heard him, believed him, and his evidence has been rather corroborated than contradicted by the circumstances attending the transaction. It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.