Bloomington herald. [volume] (Bloomington, I. T. [Iowa]) 1840-1849, 1844-01-26

18th inst, at Burlington on Thursday the 18th.
at Bloomington on Tuesday the 23d, and at
Dubuque, as we learn, on the l7ih. THIS is
a much later date than any with which we
have any acquaintance; aud the whole wln'eF'
thus far. has been the very reverse of the last.
~ Bya letter received from Mr.. Fay. by
his brother. dated Monday 22d. we learn that
his health was rupidy improving, and he ex.
pected to take his seat that day.
The Legal Construction Of the Clause tn a
mn OF Ladins, accepting the dangers OF
yv,acfgatjon, and for IIesbfa'nsent.
We give below an opinion upon the above
subject, which, is Of much Impotence TO the
Mercantile community generally.
OPINION.
SAMUEL RUSSELL. Din the District Court ,S,t
Wu,res,pss, ct. al. Piusburgh.
Owners Ct S. B. Norfolk. Opinion delivered
by Judge Shaler.
A case has been stated for the opinion OF the
court, in which the parties agree that Twelve
,ierces of Rice were shipped on board Inc
steamboat Norfolk, then lying at N. Orleans:
bound for Pittsburgh. to be delivered 10 good
order at the Pot of Pittsburgh, " the dangers
of the river only excepted" consigned 10 the
Plaintiff 's-,he defendants preserving the
privilege Of e.shipping on good boats" The
bill Of lading is In the usual form, and Is dated
June 9TH, 1910.
1t is further admitted that the twelve tierces
of rice were re.shipped at Cincinnati on board
the steamer Levi Welsh, which il is agreed
was good boat-and that at Blennerhassctts
Island the Levi WEIGH with the rice on board,
struck tone on the Ohio river, and knocked
hole in her bottom by which accident the
Rice became damgaged and lost.
Two qustions occur, lst. Does the privilege
Of transshipment reserve to the Defendants IN
the bill Of lading. if Git was done in good boats
as provided for,) discharge the defendants, the
carriers from all liability.
%. Does the fact alleged in the case stated
that the loss occurred by striking stone in
the Ohio river, and knocking hole in the
bottom Of the boat operate per SC to discharge
,tuotti,y ,,rv catrtoI i" virtue Of tho
clause in the bill Of lading excepting the dan
gers of the river from the carriers liability.
In considering these questions, propose to
reverse their order; and in the first place, what
is the meaning Of the phrase $ dangers Of the
river" now to be found in all our bills Of la
ding-to give it any reasonable and fair con.
siruction, it must be deemed to mean dangers
that are unavoidable, imminent hazars. lthas
been declared by very eminent Judge, in a
well examined case, involving the law Of the
western waters in relation to carriers, to be
equivalent 10 the words "periIs of the sea"
one Of the usual exceptions in marine bill Of
laciDg. That is unavoidable perils, such as
could not be prevented by good management,
skilful navigation or with circumspection and
diligence. l. is term which SO tradistin-
cuisines those perils that are deemed the acts
of God, as winds, tempests, lightnings, &c.
or the acts Of the public enemy, from those ac-
cidents that happen from running on sunken
and unknown rocks, the bars and sand banks
Of an unknown coast, collision with ships at
sea, or plumber by pirates, 10 all of which,
care, diligence, skill and activity must be
exercised for their prevention, without which,
the perils intended to be guarded against, form
no exception.
The phrase dangers of the river, according
to our Interpretation, is intended 10 relieve the
owner Of the boat from the liabilities OF a COM
mon carrier, SO far as those dangers peculiarly
incident to the river navigation cannot be guar
ded against by diligence, care and attention
the utmost care, attention and diligence; for
as with the utmost care and diligence the
common carrier is liable for all accidents and
losses unless they can be attributed to anavoi-
dable misfortune from winds, tempes,s, &C.,
or losses by the common enemy-so this
clause in the bill of lading is intended to pro-
tect him only in those cases where care and
diligence, skill and knowledge could not pre-.
vent accidents from happening from the ordi-
nary dangers Of river navigation such as sunk
en- rocks, planters, floating timber. collision of
boats, and numerous casualties of similar
nature, to which the navigation of our western
waters is liable.
Then comes the question:, the accident hay
ing happened, upon whom is The onus impo-
sed, IN showing that the carrier is within the
exception! In my view it lies clearly upon
the defendant, the carrier. Running ashore.
striking stone. getting impaled upon a plant
er, coming in collision with another boat, are
all dangers OF the river, under some circum-
stances, but are not under all circumstances.
unavoidable dangers; could human skill and
foresight have avoided them in the particular
instance! Who is to show these Running
on rock may sink vessel in some STAGES
OF the water is unavoidable, dut 10 such STAGES
1t may be gross negligence to run at all; was
the boat, at the time Of running, on stone.
navigated with skill and prudence. we'll nj.
loted-was all reasonable diligence used to
prevent the disaster! These are matters for
the party claiming the exemption to make out.
lie run upon rock, non constas, that this was
danger of the river he could not have avoid.
ded. He contracted to deliver goods. !" the
dangers of the navigation expected" Has he
delivered them No! Why not! He allie.
ges in excuse that his boat sunk tina, ia dan
ger Of the navigation: but it may be avoided
IN ninety-nine cases out Of hundred. bv dine
diligence. he run aground. run on rock and
struck descending boat, so sunk. Gould he
not have avoided these accidents Who then