We perceive no well founded objection to the right of the consignees to maintain these suits. They were the persons to whom the cotton was shipped, and were recognized by the master as the proper parties to receive it, and to whom it was delivered by him, and the freight demanded. They had made advances upon it in the usual way, and as between them and the owners for whose benefit the advances were made, they had the same interest in the cotton, as if the bills of lading had been duly executed.
We should have no difficulty in this case in holding the carrier to the common law liability on the shipment of cotton, even if no bill of lading or other agreement had been entered into by the master, as his consent to receive it on board his vessel and carry it to the port of destination subjected the ship to this liability.
But, in addition to this, the agent of the charterers, in whose service the brig was at the time, and who were interested in procuring cargo, entered into a written agreement, fixing the terms upon which the shipment was to be made. The vessel was bound by it, and although it does not contain the stipulations usual in bills of lading, it carries with it by implication the common law obligations of a common carrier.
We lay entirely out of view the charter party between the owner and the firm in New Orleans, as the shipper in this case had no notice of it; and, if therefore, there had been anything in this agreement repugnant to the charter party, it could not be permitted to affect injuriously his interests.
Having disposed of these somewhat technical questions, we come to the main question in the case—and that is, whether or not the damage to the cotton was the natural, if not necessary, effect of its condition at the time of shipment developed in the course of the voyage, or produced by the dangers of the navigation without any fault of the *244ship, or whether all or any part of it is attributable to bad stowage, or absence of proper care and attention on the part of the master ?
Some one hundred bales of the cotton were shipped on deck. It had been argued that the right thus to ship it is fairly to be inferred from the terms of the agreement between the shipper and the agent of the vessel. We think not. It is, also, argued that there was a usage of the trade between the ports of Texas and New York, in the shipment of cotton which justified the master in shipping it on deck. We think that the proof fails altogether to establish any such usage. The freight to be paid was the usual rate for cotton under deck.
It has further been strongly argued, that the whole damage to the cotton as disclosed on discharging it at this port, was the effect of the country damage existing at the time of the shipment, or was produced by a storm which the vessel encountered in the voyage. The evidence in the case is very conflicting upon these questions, and difficult, indeed impossible to be reconciled. The court below came to the conclusion that, according to the weight of it, the cotton had sustained sea damage, for which the vessel was responsible. We are inclined to concur in this conclusion. The testimony is pretty strong that the cotton was badly stowed, and, also, that sufficient attention was not paid to the sea water in the hold of the vessel by using the pumps. The cotton was very wet when discharged from the hold of the ship.
The court below, in the case of the libel of the owner to recover freight, dismissed the same after applying so much of the money awarded for damage to the cotton as equaled the freight money. This, we think, was erroneous. The consignees had each filed his libel to recover this damage, and has succeeded. It is true each set up in his answer to the suit for freight, damage to the cotton by way of abatement of the sum claimed. But these *245parties could not split up the claim for damages by applying a portion in extinguishment of the freight money, and then ask for a decree for the excess over this sum. If they insist upon recovering damages on an independent suit they cannot apply any portion of them, by way of abatement,, in the suit for the freight money. The damages are an entirety. .
We must, therefore reverse the decree in the ca$p of Clifton agt. a Quantity of Cotton, and direct a decree to be entered for the libelant for the full amount of the freight money and interest, with costs. And, as the full amount of freight at the rate of one and a quarter cents per pound will be recovered, the error will be corrected in the court below, reducing the freight of the portion of the cotton carried on deck to deck freight, and at the same time holding the brig responsible for the transportation of it under deck.
The decrees in the other two suits are affirmed, with costs.