Polynesian., 1855-03-03
Gbe 11olpnesiau.
SUPREME COURT.-IS ADMIRALTY.

tors for Llbellant.
J. d. BLAIR, Esqr., Proctor for defendant.
The facts necessary to the understanding of thi
case, are briefly as follows:
In the month of NIay 1854, the British ship Conra'
was chartered for voyage from Liverpool TO Homo
lulu, to carry a cargo of merchandise. She proceed
ed to take in her cargo, part Of which consisted
lSl tons of coal the freight of which amounting t
EIOl0 I2s Cd was to be paid, as by charter party
upon delivery sin the like good order and condition
at the port Of Honolulu al and every dangers an(
accidents of the seas and of Navigation, Of what
soever nature and kind excepted) unto Robert G
Janion or his assigns" Having taken in the res
of her cargo, she set sail on the 2lst of May, bu
she discovered on the 26h June that she had sprung
a leak, and finding that the ship was making IN
ches of water per hour, she stood away for the
nearest port and arrived at Rio Janeiro on the 18th
July. The British Consul on the application of the
master, ordered survey of the ship, and the sur
veyor reported that it was necessary to discharge
cargo to get at the leak, which had been Occasoned
by the starting OF plank. Cargo was according
! ly landed the vessel repaired and the coal and
portion of the other cargo resbipped, when 1t was
discovered that the Goals which had been wet by
the rain in dischargng and reshppln-, notwlth-
standing every pains was taken to keep them dry
| began to heat. Thereupon, the captain called a
survey on the Goals, which were d1ly examined and
the surveyors reported that they had every reason
to believe, that the Goals would shortly take fire,
and that they did rot consider it prudent for the
ship to proceed with the Goals their present state
and therefore recommended that they be diScharg-
ed and sold for the benefit of whom 1t might con-
cern. The British Consul advised the sale OF
the Goals and the Captain acting his advice and
his own Judgment, had them sold, after due notice,
at public auction, thinking this the wisest course
for all concerned. 1t further appeared, from the
evidence in the case that though the Goals If car
RED on in their wet state, wonld have been liable
to spontaneous ignition, yet they might have been
prepared for reshipment by drying, and safely car
ried to the mort OF destination. The principal wit
ness on this point thought this process OF drying
would not consume more than or weeks, at the
outside, and in fine weather might have been done
in as many davs. After the Goals were sold, the
"Conrad" took in the balance of her cargo, and
again set sail on the 29th Oct. arriving at HonOlu-
lu, on the 9TH Feb 1855 Upon her arrival, ihe mas
ter declined to deliver the goods brought on, unless
he was first paid the freight of the Goals sold IN
Rio Janeiro. This the shipper refused to do, and
brought this action to recover possession OF his
goods, with damages for their detention.
CHIEF JUSTICE LEE, latter going over the facts
of the case, delivered judgment as follows;
The first question arising IN this matter Is, that
of the jurisdiction of this court. The h0ellant
pravs that the court will decree him possession OF
the cargo, ana tne ledTHeu COuilScl lOI AuC
ant contends that the court has no power or Juris-
diction to make such decree, but can only. IN such
cases, decree damages for the Hon-deIyery If the
master is in fault.
The contract upon which this suit is based is a
maritime contract and this action Is IN the nature
of libel in rem to recover the possessonot certain
goods which ibeant alleges the master OF the Con-
rad has agreed to deliver. l am unable to perceive
apv sound distinction between this action and those
shInS Ofhpr DrODpTtV to which
party is entitled by virtue of a maritime right, and
which is wrongfully withheld from him. AM OF the
opiuion therefore, that the court has jurisdiction IN
cases like this, which is analogous to the acton OF
replevin or detnue at the common law, IN which
the specific property Is recovered Instead OF DANA
res !: and think the doctrine not only consonant
with reason. but with the authorities. See Bene-
diets Admiralty S275, 276, and Appendix, p. 476.)
The usual practice Is, | believe, to bring the
suit in rem gainst the merchandise for possession,
and cite the captain to appear and answer, but tins
is a matter of form that does not go to the merits
of tie action.
The next and most important question is, wheth-
er the captain is entitled to claim freight on the
Goals, in default OF their delivery.
The general rule OF maritime law IS, that the
goods must be delivered at the place of destination,
sccordino to the charter party or bill of landing,
IN en,ite the owner of the vessel TO demand freight
The CONVEYANCE and delivery of the cargo Is con-
dition precedent, and must be fulfilled, and par
tiaI CONVEYANCE does not meet the terms of the
contract and consequently gives the ship owner no
claim for freight. e KentS Commentaries 2l9.)-
.The contract for the conveyance Of merchandise,
saws Lord Tenerden in his valuable treatise on ship
ping, q Abb Shipping, Eighth Eng. and Sixth Am
Ed 4J6l s.is in its nature an entire contracts and
unless II no completely performed by the delivery
of the goods at the place of destination, the mer-
chant will in general derive no benefit from the
time and labor expended III 4 partial conveyance,
and consequently be subject to no payment what
ever. although the ship may have been hired by the
month or week. (See also Holt on Shipping p.
1851 That freight is not due, unless the voyage
be performed, and the cargo delivered, ana tnat
partial performance IS not sulltcleh'' Is geherai
rne too we'll established, and too generally known,
to need the citation of any authorities IN Its sup
port.
But 10 this general rule there are some except
tons, founded upon principles OF equity and justice,
as applicable to particular circumstances, and now
let us see if this case is such one as comes with
in the spirit or sense of any of these exceptions.
The doctrine is now firmly established, both up
on principle and authority, that the merchant IS
bound to pay the shpowner full freight, II the car
90 IS carried to the port of destination, notwith-
standing at its arrival, it is, by reason OF sea dau-
age utterly ruined and worthless. 1.-THE shpowner,
or his agent the master, has conducted himself with
fidelity and vigilance in the course OF the voyage,
he has no concern with the dninutiOn of the value
of the cargo (Pothier, Charter Partie No 59, .
Kent's Comm. 225. Griswold IS n, y. lns. Co.; 3
Johns, Rep. 52l. Jordan vs. Warren ms Co
Story's r. 355.l
/ If casks contain wine, rum, or other liquids, or
sugar, and the contents be washed out or wasted
and lost by the pers of the sea- SO tnat the casks
arrive emptv. no freight is due for them but the
shp-owner would still be entitled TO his freight, II
the casks were well slowed, and their contents
were lost by other causes than perils the sea- suc
as internal decay leakage, inherent waste, evaPo-
ration. or imperfection of the casks kents
Comm. 225. Firth VS. Barker Johns. 521)
When cargo consists Of live stock, and some