E. J. DuPont de Nemours & Co. v. Vance,
60 U.S. 162 (1856)

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E. J. DuPont de Nemours & Co. v. Vance, 60 U.S. 19 How. 162 162 (1856)

E. J. DuPont de Nemours & Co. v. Vance

60 U.S. (19 How.) 162


To be seaworthy as respects cargo, the hull of a vessel must be so tight, stanch, and strong, as to resist the ordinary action of the sea during the voyage without damage or loss of cargo.

A jettison rendered necessary by a peril of the sea is a loss by such peril within the meaning of the exception contained in bills of lading -- aliter if unseaworthiness of the vessel caused or contributed to the necessity for the jettison.

The owner of cargo jettisoned has a maritime lien on the vessel for the contributory share due from the vessel on an adjustment of the general average, which lien may be enforced by a proceeding in rem in the admiralty.

Where the libel alleged a shipment of cargo under a bill of lading and its nondelivery, and prayed process against the vessel, and the answer set up a jettison rendered necessary by a peril of the sea, and this defensive allegation was sustained by the court, it was held that the libellant was entitled to a decree for the contributory share of general average due from the vessel.

There are no technical rules of variance or departure in pleading in the admiralty.

As many points were decided by this Court which were not raised in the court below, it is proper to explain to the reader how this happened, and this will best be done by tracing the history of the case from its commencement.

In December, 1852, Dupont de Nemours & Co. shipped at their wharf, on the River Delaware, an invoice of gunpowder in kegs &c., the value at the place of shipment being, by the invoice, $6,325. The articles were shipped on board the Ann Elizabeth, bound to New Orleans and owned by the claimants in this cause. Two bills of lading were signed by the mate and delivered to the shippers. The brig sailed on December 21, 1852.

After the arrival of the vessel at New Orleans, the shippers

Page 60 U. S. 163

filed a libel in the District Court of the United States for the Eastern District of Louisiana, alleging that the following packages were missing, viz.:

972 kegs powder, at $4.50 . . . . . $4,374.00

563 half do. 2.37 1/2 . . . 1,337.13

99 quarter kegs, 1.33 3/4 . . . 132.41

12 cases canister 7.75 . . . . . 93.00

----- ---------

1,646 packages $5,936.54

===== =========

The libellants therefore held the vessel to her general responsibility for the nondelivery of the articles, and filed the bills of lading as exhibits.

After the usual proceedings in admiralty, John Vance, master and part owner of the brig, intervening for his own interest and for the interest of the other owners of the brig, filed his answer in June, 1853. In this answer, he gave a narrative of the voyage and alleged that the articles in question were thrown overboard for the safety of the vessel, and "that unless the same had been thrown over, your respondents believe, and so allege, that the vessel would have filled and gone down."

This answer was sworn to by the proctor and agent of respondent as being true to the best of his belief or knowledge.

Evidence was taken on both sides. For the libellants it consisted of the testimony of two persons in Delaware to prove the shipment and the testimony of two persons in New Orleans to prove the unseaworthiness of the vessel from examinations made after her arrival.

For the claimants, the evidence consisted of the notarial protest of the capitain, mate, and three of the crew and also the testimony of a stevedore, who unloaded the vessel to show her sound condition.

Upon this evidence the cause came on for trial, when the district judge decreed against the stipulators for $5,936.54, less $270.95 freight, equal to $5,665.59, with interest from 15th January, 1853, and costs.

Upon motion of the proctor for the claimants, a rehearing was granted, and fresh evidence was taken. On the part of the libellants it consisted of the depositions of two persons living in New Orleans to prove the value of the powder, and on the part of the claimants the depositions of three persons living in New Orleans, who were not on board of the ship during the voyage. Two testified to the condition of the vessel, and the third to some proceedings respecting an average bond.

With this additional evidence, the case came up again, when

Page 60 U. S. 164

the district judge decided that the notarial protest must be rejected as evidence and that, upon its being thrown out, there was nothing at all to prove the fact of the jettison. He therefore adhered to his former decree. The claimants appealed to the circuit court.

In the circuit court, additional evidence was taken on the part of the claimants, viz., the depositions of five persons, two of whom were not on board but testified as experts, and of the three who were on board, two were passengers and the third was one of the crew. These three testified to the fact of the jettison and the circumstances under which it was made and gave a narrative of the voyage.

When the case came up for trial before the circuit judge, he decreed that the claimants had sustained their answer, and dismissed the libel, each party paying his own costs.

The libellants appealed to the court.

Page 60 U. S. 165

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