The Rhode-Island Republican. [volume] (Newport, R.I.) 1809-1841, 1838-12-19
IMPORTANT DECISION OF A
COMMERCIAL QUESTION.

For tie information Of those who are con.
cerncd in the transportation Of goods, coast
wise, between New York and Rhode Island,
we insert the following.
IN the matter Of the controversy bctwecn
;iENRY Bull and JosuUA G.. BrGLEy,
claimants /; and SIMON NEWTON, BORDEN
WooD, WILLIAM II. CRANDALL, and JonN
llEATn, defendants
The defendant Heath is the master, and
the other defendants are owners, Of the sloop
Rienzi- Abou' Nov. 1887, while the said
xloop was lying mt Newport, X. l., bound
for the City of New York, the claimants
shipped on board of her n quantity of Mo-
iasses, to be transported to New York, at
the usual, full freight, taking bill of ading
in The usual form. AT this time there was
sufficient room in the hold to receive the
molasses, and the master gave no notice of
any intention TO carry any part Of it on deck.
Part Of the molnsses was slowed on deck,
md, during the voyage, "a hogshends of the
quantity 50 slowed on deck, were necessn-
riIy sacrificed aid cast over r-board, in order
to tighten the vessel and save her, aud the
rxsidse Of the property on board, from u per
il of the sen.
A day or two before the vessel sailed Mr..
Bigley saw the molasses slowed on the deck,
and made no objection to its being carried
in that way.
II is admitted, however, ihnt the agree
ment for he shipment was made by Mr..
Bull, alone, and that Mr.. Bigley was Mt the
time he SD saw the molasses on the deck,
ignorant of the conditions on which it had
been shipped.
Ga this state of facts the parties have re-
f~rred it I" the Presidents Of the New York,
Ocean, and American Marine Insurance
Companies, to determine whether the Clnim-
ants shall recover the whole value of the
snid twenty y-fnur hogshenJs of molasses, or
recover in general average, or recover moth.
ing, and if they shall recover any thing,
how much
The first question is, can the loss Of The
claimants be brought into general average
contributionl 1t is well established that
goods slowed upon the deck of vessel are
not entitled to the benefit Of u general aver
age.
Abbotts Shipping 344, part chap g.
Smith VS. Wright Canes, N Y.R.i Al
Lenox VS. U. S. Co. Johnson's cases l19
Such goods are not considered part of
the cargo. aud would not be protected under I
that term in a policy of insurance.
Wolcott VS. Eagle Ins. Co. Picking Mass.
Reports 433.
This first question mast, then, Of course,
be answered in the negative.
The question then arises, have the mas
Ter aud owners failed in their duty under
The contract of shipments I,
The defendants rely upon the silence Of !
Mr.. Bigley, when he saw that the vessel G
about to sail with the molasses on deck, |
rs license to the master so to carry il. e
'h'nk this position is not sound. Asa gen. n
era' rule The law dies not require the party
VINO mas contracted for n service, To watch C
over ITS performance, or even to warn the a
'ther party of apparen, errors in his mode a
OF executing it. Such requsition would N
he very unreasonable since he who under. II
takes particular duty always professes !, !,
We possessed OF competent skill and jud gmen, III
7" 10 execute u properly; and most frequently n,
'"o e"P'oyer unable, from his ignorance
o' tue SUBJECT to determine whether the =,
proper means are adopted or not. When a Ia
parry ent''ied TO have given duty perfnrn- ~
ed, stands by, and with full knowledge q, -
his rights and Of the injury likely to ensur. ?,
witnesses without murmur or complain, an !,
Inadvenant deviation, his silence ought mn. :,
doubtedly 10 be Judged an acquiescence. !,
and equivalent to an express consent. II
This doctrise, however, is not founded "
upon any obligation imposed directly by the v
II arises from the principle ad- r
n''tted into every just system Of jnrispru-
hence, that the law should enforce the oh c
''e"t'ons Of good faith; aud. consequently, y
where silence can only be imputed TO some d
Injurious purpose, the law will odjudgs il a ..
consent. n
. Out these principles do not apply tn the o
present case. The master was bound 10 II
'ertorm bis contract without aid ar assis. d
sacs from the claimants. aud if he has NOT ~
one 30, he cannot excuse hlmself by aIler. W