The Hawaiian gazette., 1870-11-23

What extent n NAV Be ressuicd formally adopted
Ia shis eantry is question 81 peculiar Interest.
suolecI 81 historical ard juris,ieal study 50 wen
as frOm sts eearipg rpon she marine 'eommvrce Of
these Islands, The point is too importau; 10 Dc
decided without fan Argument, and therv are
other points decisive Of this case Il will receive
farther notice The Spartan Ware, iE9; the P0ese,
IA, az, Keut's Comm, So D; the Huntrss,
Davis. IS ard so,o; nayisvs Caild, ID; 81: Rich
vs., ParEott CHI, 81, Rich vs.. Lambert. L Row.
s6l.
{ lSseers sssasrs nos ersessHesl Two preliminary
7 qavstiOas may nrst DC disposed o. The inst Is,
whether answers aneer oath. wheu called for by The
libsi, arr evidences Dunlap rSsrls sueh answers
evidence, but the decisions. unless ia cnc or two
cases DO rot support bis view. Tue Equity rule on
this sssseI dccs nc, exist in Admiralty but the de-
grse Of errait given IL sworn answer depends up0n
I the apparent good fsith OF the respondents. and
aPon all the facts, Dual Adm'y, ~; Beuedie,'s
I Adu'y 3 SIS; Hutson V Joruan, Ware, 4Ol: the
I Crusader. "a. sS4. eastman vs. RYAN. ST. %;
/ Andrews vs.. Wall, How, So; Tompklns vs., Salt.
march. 5 and 4. 81; 5 CT. Ey., s4lS
{ IESsrssu - Proefl The next preliminary question
Is one which always demands attention and that Is
eoueSruiDg the burden OF PrOOt Tie Civil and the
the los occurred fr0u no negligence Or fault Of his
own. lie loeataire esi dveAsTge De roeligatiou de
rvndre Ia chose, 81 Ia chose peri sans 81 iauie;
sis il dol; euseiguvr justiher CONNIE ellie peri
sntrvmsut ellie est presnmee svoir perr par "a futr
e est tsn= De destination" P0thier. Coutrsi De
Lousgv, I99. 1T has been held in Scotland. that
where any specific Injury has occurred, not mani
testify accidental the pro6ari Lies on the hirer
or sssSr,O justify himself by proving The accident
l Bells Comnl-, "a
E" In respect 10 6sPostaries for hire there seen TO
Be s0ue Discrepancies in the authorities whether the
ass rVoGNai Of pssigvucs lies GA the plaintiff or
Of rXcuipaiion the defendant in a suit brought
for the loss IL England, the former rule Is main.
taiuvd- In America, an inclination Of opinion has
sometimes been vxprsssed the other Wsy; yet per
hsps the weight Of authority comedies with the
English rule" SJory's Bailments. S454
In Daniel vs., Me,rop K. r. Co, s Law Req. Com.
Pleas, -, uS6S) the Court WiIes, J.. ssy: Il
ssree sntirvy With the COUNSEL for the defendants
that Ii Is NOT enough for the Plaintiff show that
there has been accident upon their line. and
thence 10 argue that therefore the Company arc
liable even prime fax. It Is necessary for tie
plaintiff to establish, by evidence, Circumstances
from Wbieh uisy siriy Dc Inferred that there is
reasonable probability that the accident occurred
fr0m the want Of some precsujion which the de-
PENDANTS might aud ought 10 hare rgsorsd to-
ard wbst particular precs uiiou should have been
taken But this burden Is not on the plsiutif in
an aeti0E for n0udelivsry OF goods BY private ear
riers ey SEA II be lJhe defendant would relieve
himself from liability, II Incumbent on him 10
show that the loss CT Injury 0ccssioned by the
risk excepted from disagreement It Ger
taiuly VA not the duty Of the Plaintiff to prove
negative BY showing that tie loss did NOT bappeu bv
p~rils q the sea- shaw vs Gardner. y Gray. 400;
Ccggs V. Bernard. Smiths Leading Cases. Hare
& Wsilaoe's Notes It : generally sid thxt the
reas0u Why common carriers must show snirms-
lively that the loss OF goods resulted from suuerior
force which they could have 10 control l. that
they have public franchise, imposing upon then.
the duty Of takEE all zoOd> 0n reasonable terms.
that they have exclusive coutroI over the goods 50
that The shipper could scarcely ever prove fraud or
eOlusioo viii thieves ard because the shipper does
not select the carriers fou any personal knowledge
or cou6dsuce in them, bat becsuse they are public
aesnts. having means Tor pubic accommodation, T
ard held to strict responsibility.
receut work lays down the following rule: ST |
the Plaintiff proves tbst he bss bssu injured BY su
act Of the defendant Of such nature that In similar
risrs IL las 5z1s tszs 40 ie- Is En0a7.
% ezse, he raises presumption saiust the def-nd-
att which the latter must overcome BY evidence
either Of his caressuess IN the performance Of the
act, Or Of some unusual circuulstarcs which makes
il at least probable hat the injury Eas caused By
some Circumstances With shich be had nothing 10
do Slesrmau ard RedfeId 90 Negligence. SIS
As the law presGmes nothing eriuiuaI, and as the
lbednts bring this seJiou solely the contract al
lezius eulpabie negiissuee, it Is sufficient for
them TO prove the eoutrsef, their compliance with
lie terms. sud uou-performauce BY the ryspou6snts
who are then put 10 their proofs Of loss for which
they are not accountable TrsadEeu - Joseph,
sam, s9I; L 5 Hayward : Gall, 49,; the
Blsck Warrior, l Neal, Iss; the Rhode Island
O.coJt, 5l1; Lichtsuh-im Is Prov. 2. r Co. II
CASA, - This view dos not e0aficr With the rule
adopted ia Asegut - King. HaW-, "a
lFlnfizgt o. tss EEsdsnes.I The evidence proves a
contract betEeea TIE parties FOR the charter Of the
Schooner, Ihs eharterrTs to IT, ran, and have Der
lader their exclusive charge, 90 voyage to wakes
IsGDt aud back for not less thaa three months Tor
over 81 m0aihs, for $50 m0ath-
The evi6sncs also proTes beyond reasonable
iO1ht 6eliysTy Of the vessel to tie respondents.
lad her departure under the charter contract sept
T. 1851, aad that she lost ia hurricane in the
ricritF Of Wakes Isll1d ab Ut O-t . Is67 There
/.
y uiseo1d1et the part OF the rszp0ndeuts or IF
be msster, ard this s Tot prssaua5le- There Is
1r00f that the schooner vas u1ssa4 orty AZ the time
be sailed. that h-r d-f-ets patent, and lbzre
il-s presumably knosu 70 The Ii5eILauts azd also.
th-tr vocation Is shipErizht., their Op
iortuniiiez for sxamiuatioa, sgd that one Of them
ailsd IN her. within he kEoElsdge Of the respond
cts before the sehOoH-r sailed
ISssEoTtliussa II has been Suggested that in szca
outrasrs thsre : inPlied If noI Al express s5ip-
lIiiou that the Esss-l : ss4EOrrhy- Pars ship
inz ard A6m'y- - HoEeEer this nay K IL
0atrlefs Of aHrsiyhfneut Ehza the ozner retains
barge 81 tie vessel OF aifb conmoa carriers. ship
Eilderz AID i1sgrsEz The rsasoas f1r sach Implied
Farrzury nay always b found il the zeusrll terms
= uEt1rs q tbs eoHiracf- Or i1 the Circumstances
ucsr shieh Il Eas uade- TIE rsspoadeuts
-Li thai they paid high rate f0r tie schooner o.
seouns Of th- rtsk the 0zner assumed In s=udInz
e. u SEA Tie evidence dos not support his
laiz- bEt tie calm IrseH Frb1rs any inplicztion
at the rszpoud-ats eJufrsctcd for = selEor1hg
ssseL There i eFid-ues o. 70 1zrrrElsut that the
asIauts srsssrtook 70 zsrFant seaz orrhiness adj
1Os 10 Bszzi przseuPfioa zhieh- Ea6sr tie cir
sastassss, can bold tssn 10 s1cA E1rrzafy- Cock
: GoEau. Is Gray, -
Z Fs-zr = IL 81 =-FI L.. 49, -bA ~