Bradstreet v. Heran.

or from ill usage in its interior transportation, and is not discoverable from an inspection of the bales at the time of shipment. Upon the question, from what the damage in this case arose, the testimony is somewhat conflicting; but it establishes generally, that the cargo was in bad shipping condition when it arrived and was delivered at New York, and that a large part of the bales were old and rotten, and badly torn and damaged, and the cotton therein consequently broken and disordered, and to some extent soiled and damaged by exposure in the shipment and delivery. The picker, who overhauled some two hundred of the bales and put them in order, states, that the cotton was in bad order; that some of the bales were rotten; that several had burst open for want of proper ropes; that others had the bagging torn; and that a portion of the bagging was old and rotten, and a portion damaged by wet. What is termed "country damage" arises, in many instances, out of the condition of the cotton at the. time it is baled, being wet, or not properly fitted for transportation, and is invisible to the eye on inspection at the time of shipment. But, in this case, the weight of the evidence shows satisfactorily that the effects of the " country damage" upon the external state of the cotton were developed at New Orleans before the cargo was put on board, and that the master was negligent and inattentive to its shipping order in this respect, or he would not have accepted it as “in good order and well-conditioned." The voyage was but some twenty days-a period of time hardly sufficient to account for the condition of the bales at the time of their delivery at New York, on the ground of concealed "country damage." On this ground, therefore, the decree of the Court below should be affirmed.

The consignees made large advances upon the cotton, on the faith of the representation in the bill of lading that it was shipped in good order. They were justified in doing so, and their security should not be lessened or impaired by permitting the master to contradict his own representation in that instrument. It might be otherwise if the question arose

The United States v. The Ship Recorder.

between the master and the owner of the cotton. The question of damage might, in that case, be well limited to that accruing in the course of the voyage, notwithstanding the bill of lading. But the respondents stand in the light of bona-fide purchasers, who become such on the faith of the representations of the master. It is true, that it may be shown that the cotton could have been sold for an excess beyond the advances, sufficient to cover the amount in controversy. But that does not satisfy the principle; for the respondents were entitled to the cargo in the condition described in the bill of lading, as security for their advances, without regard to the fluctuations of the market, or to sales to be made at any particular state of it.

Decree affirmed.

THE UNITED STATES VS. THE SHIP RECORDER.

Where a vessel was seized by a Collector for an alleged violation of the navigation laws of the United States, but was discharged from arrest by this Court on a hearing of the libel filed against her, on the ground that the statute had not been violated, and the Collector afterwards applied to the Court, under § 1 of the Act of February 24th, 1807, (2 U. S. Stat. at Large, 422,) for a certificate of reasonable cause for the seizure, and it appeared that the vessel was seized upon a construction of the statute adopted by the Secretary of the Treasury, in conformity with the opinion of the Attorney-General, and that the Collector acted under the instructions of the former officer in making the seizure: Held, that the certificate must be granted.

It makes no difference whether the Collector acted under a mistake as to facts on which he had reason to rely, or as to the law.

A reasonable ground of suspicion is reasonable cause for a seizure.

Where the application for the certificate was not made until more than two years and four months after the decision of the cause, and until after the claimant had brought suit against the Collector for the seizure: Held that, although the lapse of time was not a bar to the application, yet, as there had been laches in not making it until after the claimant had brought such suit and incurred consequent expenses, those costs must be paid him.

(Before NELSON and BETTS, JJ., Southern District of New York, November 23d, 1849.)

The United States v. The Ship Recorder.

THIS was an application on the part of the Collector of the port of New York, for a certificate of reasonable cause of seizure. The application was made in pursuance of the provisions of the 1st section of the Act of February 24th, 1807. (2 U. S. Stat. at Large, 422.) The vessel had been seized by the Collector as forfeited to the United States under the Act of March 1st, 1817, (3 U. S. Stat. at Large, 351,) for an alleged violation of that Act, and a libel filed praying her condemnation. On demurrer to special pleas, the vessel was ordered to be discharged from arrest and delivered up to the claimants. (1 Blatchf. C. C. R. 218.) This application was not made until more than two years and four months after the decision of the cause, and until after the claimants had brought suit against the Collector for the seizure.

BETTS, J. The omission to apply for this certificate on the decision of the cause, or for the period which has since elapsed, is not set up as a bar to the application; and the motion must stand, as to its merits, on the same footing as if it had been made at the earliest appropriate opportunity.

The seizure of the vessel was made upon a construction of the Act of March 1st, 1817, adopted by the Secretary of the Treasury, in conformity with the opinion of the AttorneyGeneral. This Court decided, on the hearing of the cause, that there had been no violation of the statute, and discharged the vessel from arrest. The case turned upon the construction of the statute, and of the Convention between the United States and Great Britain, of July 30th, 1815, (8 U. S. Stat. at Large, 228,) and presented points of considerable intricacy and difficulty. The official opinion of the law officer of the Government to the head of a Department, and the instructions of that Department to the Collector, afforded to that officer a fair reason for believing that the law had been infringed, and will, in a moral point of view certainly, excuse his having obeyed those instructions in seizing the vessel.

It makes no difference whether the Collector acted under a mistake as to facts on which he had reason to rely, or as to

the law.

Brissac v. Lawrence.

This has been explicitly settled by the Supreme Court. (The United States v. Riddle, 5 Cranch, 311.) The Court say: "A doubt as to the true construction of the law is as reasonable a cause for seizure as a doubt respecting the fact." A reasonable ground of suspicion, less than evidence which would justify a condemnation, is probable cause for a seizure. (Munns v. Dupont, 3 Wash. C. C. R. 31; Locke v. The United States, 7 Cranch, 339; The George, 1 Mason, 24.)

We think that the Collector is entitled to a certificate of probable cause. But, as there has been laches in not applying for it until after suit has been brought by the claimants and expenses have consequently been incurred by them, we shall direct that those costs be paid them.

BRISSAC & DE FONTAINE vs. CORNELIUS W. LAWRENCE.

In an action against a Collector of the customs, to recover the value of goods lost while on deposit in a Custom-House warehouse, under the provisions of the Act of August 6th, 1846, (9 U. S. Stat. at Large, 53,) no recovery can be had unless it appears that the defendant was guilty of actual personal negligence in regard to the safe-keeping of the goods, and that, in consequence of such personal negligence, they were lost.

Such negligence in the "Collector cannot be inferred from the mere loss of the goods. Whether such inference would be proper in an action against the store-keeper who had charge of the goods, quære.

The Collector is not personally responsible for the negligence of his subordinates in the Custom-House department.

The rule stated, as to the responsibility of a Collector for losses occurring through defects in the regulations established by the Treasury Department for the transaction of the business of the customs.

The fact that the bookkeeper in the warehouse was intoxicated daily, is not enough to render the Collector liable for a loss of goods stored in the warehouse, but it must be shown that the goods were lost from that particular

cause.

(Before NELSON, J., Southern District of New York, June, 1850.)

THIS was an action tried before NELSON, J., to recover the value of a case of goods that was lost while in one of the

I

Brissac v. Lawrence.

Custom-House warehouses in New York, during the time the defendant was Collector of that port. The facts were these: The goods were shipped by the plaintiffs, at Havre, consigned to a firm in New York, and, on their arrival, were deposited in one of the Custom-House warehouses there, under the provisions of the Act of August 6th, 1846, (9 U. S. Stat. at Large, 53,) and were either lost or mislaid therein, or were delivered therefrom to some person not entitled to them. For the purpose of establishing personal negligence on the part of the defendant, the plaintiffs, on the trial, gave evidence tending to show, that the manner in which the books containing the accounts of goods received at and delivered. from the warehouse were kept was imperfect, and they claimed this to have been carelessness on the part of the defendant, as the head of the customs department. They also proved that the bookkeeper at the warehouse was a person of intemperate habits, and unfit for that situation. The defendant proved that the books were kept in conformity with the mode usually adopted at the time for keeping books of that kind; that the intemperate bookkeeper had been discharged; and that, during a period of nineteen months, out of two hundred thousand packages of goods which had been received at the warehouse in question, only two packages had been lost.

Francis B. Cutting and William Emerson, for the plaintiffs.

Benjamin F. Butler and William Allen Butler, for the defendant.

NELSON, J., charged the jury in substance as follows:

There is but one question of fact for you to determine, on the ground assumed by the plaintiffs as entitling them to recover. It is, whether or not the Collector was guilty of personal negligence in respect to the case of goods which was lost. The question is not, whether there was any negligence