between the parties to allow it on the settlement of accounts. The jury (which was a special jury of merchants) found a verdict for the plaintiffs, and stated that it was their unanimous opinion that the allowance was a gratuity merely. Lens, serjeant, and Munroe, for the plaintiffs. Shepherd, S. G. and Best, serjeant, for the defendant. 1816. LEVI and Others v. BARNES. 1816. A. charters a vessel, and covenants to supply a full and sufficient cargo of cer THE BENSON V. SCHNEIDER and Others. HIS was an action on a charter party, dated name was The Canada, and the voyage was from tain commodi- London to Charlestown, or New Orleans, and from ties (describ- thence back again to any part of the United King ing them) others, of cot of which was at certain prices, per lb. for round bales, and dif. ferent prices for square or compressed bales. He fur and, amongst doms. The declaration alleged two breaches:ton; the freight 1st, That the defendants did not supply the ship to be paid for, with a full and sufficient freight. 2d, Non-payment of a part of the freight. The defendants took issue on these breaches. The defendants undertook by the charter-party to supply the ship with a full and sufficient cargo of wool, rice, or a cargo other goods. The freight to be paid for cotton. of compressed bales of cotton, Wools, in round bales, 2 per lb. ; for cotton wools, but neglects to in square or compressed bales, 24 per lb. net; and rice 77. per ton net, as far as 150 tons. In case of ing to the usage not finding a cargo at Charlestown the ship was to be at liberty to go to New Orleans. The plaintiff's counsel contended, that, though the defendwhence it was ants furnished compressed bales of wool, that it was imported. In their duty to have had the bales recompressed, for have the cot ton re-com pressed,accord of the trade, and the custom of the country, consequence of this omis sion the vessel has not a full and sufficient the purpose of stowage, and that they should have supplied a sufficient quantity of compressed bales, mated upon the Which, when recompressed, would have been a full cargo. The deficiency upon a survey was 129 cargo, as esti bales if they had been recompressed, though her cargo would have been full and sufficient, if the cotton had been stowed only in a compressed state. Held, that A. was liable for dead freight, and that it was his duty to have furnished the cotton in re-compressed bales, notwithstanding the words of the charter-party. 1816. BENSON v. bales of recompressed wool, for the dead freight of which the action was brought. A hundred bales in a compressed state were put on board whilst the captain was ill; and it was admitted that, if the SCHNEIDER bales were only to be compressed, the vessel had a full and sufficient cargo. It was in evidence that the custom at New Orleans was, when cotton was furnished in compressed bales, to send it to be recompressed; the owner of the cotton paying the carriage of the wool to the machine; and the recompressing was at the expence of the shippers. The recompressing does not injure the cotton : but there is a difference of opinion about it. The custom invariably was to recompress the bales, except the freight is small, or when the ship is not required to take a full cargo. A round bale is not called a compressed bale; but a compressed bale is a square bale, put in bags, and only slightly pressed by a sort of capstan. The compression and recompression are both the same process, but with different degrees of mechanical power. The compression takes place up the country, where the cotton grows. The object of recompressing was to make it fit for stowage. Lens and Vaughan, serjeants for defendants, contended, that the question is, whether, when the parties use known terms in the trade, and define what is meant by express words, any usage can be adduced to shew that they intended another thing. They covenant to pay for cotton wool in round bales, or in square compressed bales. The defendants, it is admitted, have furnished a full and and Others. 1816. BENSON sufficient cargo, if the cotton had been loaded in the round or compressed state. Undoubtedly, by machinery the ship might have been made to hold SCHNEIDER more; but the question is, have not the defendants and Others. supplied sufficient within the terms of the charter v. party. The parties have described the measure of the freight. There are three known classes of cotton bales:-1st, the round bale; 2d, the square or compressed bale; and, 3d, the re-compressed bale. If the parties had meant re-compressed bales, they would have used that term. This case does not turn upon usage, but upon the intention of the parties. BURROUGH, J.-It appears to me that the substance of the contract is, that the ship is to have a full and complete cargo of cotton wool, rice, or whatever other goods might be offered. What follows afterwards in the charter-party, as to the description of the form of the bales, is not of the substance of the contract. It regulates the price merely. If the parties were at liberty to put commodities in a bulky state on board, the owner would not have a full and complete cargo, and might be disappointed of the fair fruits of the voyage. I think the substance of the contract is the full loading. The particular kinds only regulate the price. Verdict for the plaintiff. Shepherd, S. G. Hullock and Campbell, for plaintiff. 1 Lens and Vaughan, serjeants, and F. Pollock, for defendants. This case was moved in the ensuing term; but the opinion of the learned judge, as expressed at the trial, was una nimously adopted by the Court, 1816. BENSON v. SCHNEIDER and Others. |