The Rhode-Island Republican. [volume] (Newport, R.I.) 1809-1841, 1838-12-19

jury we cannot tell, inasnuch as the verdic
may hive been founded upon the consent o
the shipper 2nd. The usage referred q
goods shipped on board of a vessel ofte
her hold was full.
IL - apparent that no usage whatever i
established by that case, but if il should b
Thought tha, usage was established there
by, then clearly il is not a usage govern
ing the present shipment, which was mad
when there was ample room in the hold.
True ii is, Mr.. Philips says, that" Il re
suits from these two cases that goods maj
be carried on deck epen ,cithout the eonssn
ct the oVner, where the usage of the trade
Is such, and thrown overheard for the gen.
eral benefit, without giving the owner oi
them any claim, either against the master
for slowing them in that manner, or ogains
the other shippers, for contribution" Blu
] attach no force 10 this remark Of MIR
Phillips. His results from cases are no
authority or entitled to any higher consider.
alton than those Of any other lawyer Of e.
quail lenrning, and his text is not deemed
authoritative by the courts Is Greenleaf 300.
IL he means to say that these cases estab-
lisb that such a usage exists, he is certainly
mistaken. IL he meant merely to asser,
that if such a usage existed, the latter case
is an authority that it would be valid u
sage, he may be right.
But 1t did not require these cases TO es-
tabllsh, that if "a master carries goods ac-
eording to the usage Of the trade, he per-
forms his whole duty and is not liable for
unavoidable casualties. Usage is The gov
erning principle. by the general usage of
trade master carrying goods upon The
hish seas, is bound to stow them 10 the hold,
and if he fail TO perform, this duty he fails
in complying with general usage, and is
consequently liable for negligence. 1t is
only because he violates the usage that he
is liable. If he could shew tia, he confor-
med to usage, he could not be charged.
When special usage can be shewn,
governing any particular trade, that mus
ter is al liberty to stow on deck any part Of
The goods shipped which he chooses to Sc
lect for exposure to that extra peril, revers-
ing the common sense. horne-spun maxim,
" first come first served" and with arbitra-
ry fnyoritism putting the " the las: first aud
The frs, last" then think this master may
of such all usage; do not believe it exists,
and II 1t does, II Is So unreasonable and un-
just that no intelligent court, in my opinion,
would ever sanction 1t.
have inquired Of Chef Justice Jones
and Jude Oakley, relative to The supposed
case of a shipment of cotton from N. York
10 Providence. Neither of them have any
recollection of any such case. The only
case in any degree analogous, which they
can remember, is Creery vs.. Holly, in IA
y. That was IN action against
The muster, who had given an ordluary bill
of lading on shipment of iron. 1t was for
a coasling voyage, i. G., between N. York
nnd Baltimore. On the trial 1t W as express-
ly proved, that when IA bill of ludine doe,
not expressly provide for stowage on deck,
il is understood according to the custom of
that the goods are TO be slowed
Ihder deck, and that on giving such bills of
aiding, the master slows the goods on deck |
,r under deck as best suits his convenience,
he taking The responsibility. if a jettison oc-
;urs us TO any article which ought to have
been slowed under deck.
This case is perfectly in point for the
claimants: Although The waters lying be-
veen Newport aud New York nre prnci-
'ally land-locked, yet that is no, the case
he whole way. Taking the whole trip, i,
$ as much voyage on The high seas as one
o Boston or Baltimore. 1t is only distin-
'uiShod from other marine voyages by being
mere consling voyage. The case Of Cree
y VS.. Holly is an express authority for pa-
'ng coaslIng voyages, and voyages across
l'e ocean, on The same footing, as respects
he present question.
On The whole, i can discover no reason I
o change the opinion before expressed, bu,
much to confirm il.
Oct. OH, 1898. Il
(Slgnedl CH O,GnNNnD II