Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1854-10-21

ded, that In an action brought BY common carrier
against the consgnee 10 recover the price of carry
ing, the defendant may set up as defence, negli-
gencei or want of skill in the Carrier whereby the
goods were deteriOrate6 in value Leech, VS. Bald
win, 5. Watts, 40. Humphrey, VS.. Reed, 6.
Wharton. 4S5. HerrisOn, vs.. Morton, ,. Ash
mead, $50.
1t being settled then, that the defendant NAV set
off damages arising from the negligence OF the
plaintiffs their agents. let us proceed to consider
the next question, namely, what is the nature Of
the damages in this case Are they the result of
negligence on the part of the carrier or did they
arise from causes for which the plaintiffs are not
table,
On one side it is said that the injury arose from
the ordinary deterioration Of the goods in the course
of transportation and from the dangers of the seas
and Is in nowise attributable to the neglect or mis-
conduct of the plaintiffs On the other hand it is
maintained that the injury was the result Of bad
sowage, neglect to pump the vessel and other care
lessness on the part of the carrier
large portion of the damaged goods on board
the =" Perla," 1t appears, We're injured by what is
termed 50 sweating,' which may arise from various
causes, such as the Confinement closeneSs 0r new
ness of the ship, and the nature of the gsds con
yeyed. Where goods become deterioratcd in ,,..a1
from any intrinsic principle of decay naturally IL
herent in the goods themselves, or tie sweat OF the
hold, where there has been proper stOwage and
negligence on the part Of the carrier, the merchant
must bear the loss, well pay the freight, for
the master and owners of the vessel in no fault,
nor does their contract contain any insurance
warranty against such an event. Abbott on ship
ping, 42S. Angel on Carriers, ) 2l0. But the
carrier is responsible for the careful sowage Of the
goods, (unless by usage agreement this business
is to be performed by the shipper) and is bound
to stow and arrange the different articles that they
may not be injured by each other or by the motion
or leakage of the ship. And where the goods are
perishabe in their nature, such as fruits, vegeta
bles &c, the master is bound to take all reasona-
bic of them and if they require to be aired
ventilated he must take the usual and proper meth
DDS for this purpose. Abbott ON Shipp., PIP. 346,
37l. Angell ON Carriers, ) 2I0, oil, 2l2 The
Schooner Reside, 2. Sumner, SCI.
From the evidence, it appears that the vessel was
furnished with proper dunnage and the goods were
we'll slowed, therefore, am clearly of the opinion
that the damage arising from the sweating" is
one for which the plaintiffs are not responsible
But with reference to the damage of the twenty
half bags of -four and twenty-five bags of beans,
which were injured with salt water, am Of diff
ferent opinion, for the plaintiffs are bound to
culpate themselves from the charge of negligence
in the case of those goods, and have failed to do
Of the goods shipped by the Adele" there
were twenty bags of bread missing, and twelve
damaged, which the defendant refused to receive.
For the twenty bags lost the plaintiffs must pay,
and it now remains to determine who must bear the
damage Of the twelve bags
This bread was transferred from the adele to
the French ship "Nil'' at Tahiti, and there is not
a particle of evidence submitted to the Court to
show how it was injured. Indeed, we are left en-
tirely in the dark respecting the bread shipped by
the Adele further than the facts, that it was
shipped in good order, transhipped in Tahiti, and
arrived in bad order. We are asked to presume
that the damage was not the result of negligence
the part of the carrier but in the absence of all
evidence the subject we think the legal and just
presumption is the other way. If merchandise in
good order is entrusted to carrier, and it arrives
at its destination in damaged state the carrier is
unless he show that the damage is
not the result Of his negligence. The Onus is upon
the carrier to show how the goods were injured, and
not upon the merchant. To impose upon the mer-
chant the obligation TO prove negligence the
part of the carrier would be great hardship,
for he does not usually accompany the ship, and is
not acquainted with the incidents of the voyage,
the contrary, it is am easy matter for
the master when he has used care and diligence in
the property, to show that care, and
the absence of any negligence on his part.
In the case Of Webb, an re. 6, Scott. n. r.
956, (cited IN Angell on Carriers, 2l3, note 81
which was action to recover damages for injuries
done to case of loOking-glasses shipped on board
the defendants vessel, Judge Oakley said "The
law presumes, that if the goods were safe when
negligence on the part Of the defendants, unless
they show the contrary" See also Angel on Car
riers, 2l2, note 2.
The next question IS, 8t what rate shall the de-
fendant be compensated for the twenty bags Of
bread lost, and the twelve injured by the adele"
and the flour and beans injured by salt water on the
"a Perlal' Shall it be at the pr. f Lrasc s:Tal-
paraisO, the port of shipment, ? - Honolulu, the
place of destination. In other worle, what is the
correct rule by which to measure the damages Of
the shipper in case of loss or injury 10 his gOOds
Judge COnking in his learned Treatise on Adj
miralty, SAYS After considerable research. have
not had the good fortune extraordinary as it may
seem, to find that any definite rule has len def
nitely established with respect to the measure tr
which the damages of the shipper, in case Of .1ss
or injury to his goods, to be estimated" Blu
be evidently inclines to the opinion reasoning b.
analogy from the rule in cases Of prize and Insu-
rance that the measure Of damages sh0uld be the
value of the goods at the time and place Of ship
ment, in case of loss, and in case Of damage the
diminution of value by reason of injury estimated
by the same standard. think, however, that
upon principle, the measure of damages. should be
the value of the goods at the place of destination,
and believe the weight of authority and late de
cisions will be found to accord with this view
90 All the ordinances and authorities say the Court
in the case Of Wilkinson, vs. Laughton, 8, John
sons r. 2l3; declare this TO be the rule, when
the goods are sold by the Master from necessity, IN
the course Of the voyage and why should not the
same rule apply, when the goods are missing by
othA means" IN casa Of loss the damage to the
plaintiff by the nondelivery of his goods it strikes
me- is the net price which the goods would have
brought, at the place of destination, and upon prin
ciple / cannot see how any other view well be
adopted If the goods should be of increased value;
at the place of delivery, they generally are, and
the liability of the carrier extends further than
the value at the place of shipment, there Is very
great temptation to fraud, and public policy re-
1uires, that a carrier should be remO1ed from all
temptation to convert the goods to his own
Eot q more ahla exnnsitinn of these views and a