Talbot v. Wakeman , 19 How. Pr. 36 ( 1860 )

Held by the Court, Betts, Justice.

That although on trial at law, there would be a fatal variance, in that the Puget Mill Company would be deemed independent parties, and proof must be given of their interest, which proof is not furnished; yet this is but an irregularity in pleading, not ■ working a defeat of-an action in the admiralty, and the insertion of the Puget Mill Company may be disregarded.

. That the evidence shows that Lubeck & Co. were only brokers, and not parties in interest.

That there is proof that the shipment of the spars was made exclusively by the authority and direction of the master of the vessel, while in the case cited from 17th How. JR., there was evidence that the shipper knew and acquiesced in the stowage.

That on the evidence, the vessel was put on the voyage in an unseaworthy condition; that the stowage of the cargo on deck was made in a faulty and unsafe manner; ■that the proof is very spare and indefinite as to the necessity of a jettison or a sale of any of the cargo; and that -the defendants fail to prove a fulfillment of their engagements to receive cargo and passengers in China, and tran- • sport them to San Francisco.

Decree, therefore, for libelants, with a reference to a ■commissioner to ascertain the items of damage.