Opinion · Nclaw North Carolina

GARDNER v. SMALLWOOD, 3 N.C. 349 (1805)

GARDNER DEVEREUX v. SMALLWOOD., 3 N.C. 349 (Superior Court of North Carolina 1805)

Type
Opinion
Court
Nclaw North Carolina
Jurisdiction
Nclaw
Date
1805-01-01
Topic
general

GARDNER v. SMALLWOOD, 3 N.C. 349 (1805) GARDNER DEVEREUX v. SMALLWOOD.Superior Court of North Carolina (Spring Riding, 1805.) 1. Taking a full price and stowing upon deck will subject the owner of a vessel to pay damages, if what is placed on deck be thereby lost or damaged; but if that did not occasion the loss, he will be no more liable for damage to that part of the cargo than for the rest of it. 2. A captain of a ship is not a competent witness for the owner, sued for the loss of a cargo, to prove that the loss was occasioned by stress of weather and not by negligence.

Citator

UpLaw has not yet analyzed GARDNER v. SMALLWOOD, 3 N.C. 349 (1805). The absence of a flag is not a finding that it is good law.

GARDNERv. SMALLWOOD,3 N.C. 349(1805)
GARDNER DEVEREUX v. SMALLWOOD.
Superior Court of North Carolina
(Spring Riding, 1805.)
1. Taking a full price and stowing upon deck will subject the owner of a vessel to pay damages, if what is placed on deck betherebylost or damaged; but ifthatdid not occasion the loss, he will be no more liable for damage to that part of the cargo than for the rest of it.

2. A captain of a ship is not a competent witness for the owner, sued for the loss of a cargo, to prove that the loss was occasioned by stress of weather and not by negligence.
DEFENDANT was owner of a vessel, bound to New York, and took in freight, part of a load belonging to the complainants, for which they gave him the full price. The captain stowed part in the hold and part on deck, as was contended. The cargo, as well in the hold as on deck, was injured by a storm.
PER CURIAM:
Taking a full price and stowing upon deck will subject the owner of the vessel to pay damages, if what is placed on deck betherebylost or damaged; but ifthatdid not occasion the loss, he will be no more liable for damage to that part of the cargo than to the rest of it.VideNew York Term Reports, 43. Goods shipped on deck, the shipper paying one-half freight, if ejected in a storm, shall not have contribution from the goods in the hold, and the owner of the vessel is not liable.

N. B. — In the above case the owner of the ship, the defendant, offered the captain as a witness to prove the loss to have been occasioned by distress of weather, and not by any neglect on his part; but the Court would not receive him till released by the defendant. The Court said it is not like the case of a shopkeeper's servant becoming a witness.Page 305