The Hawaiian gazette., 1871-02-22
Supreme Court-In Admiralty.
BEFORE cHIEF JUSTICE ALLEN.

This is libel filed against the schooner Sove
reign, by the owner Of cargo brought in the same
from San Francisco to this port, for damage don,
to the goods in the course of the voyage.
The libel charges that Horace Davis & Co
shipped on board the schooner Sovereign, at Sar
Francisco, in good order, and consigned to the
Libellant at Honolulu, a certain quantity Of -four
bread, and crackers in tins, which the master o.
said schooner has failed TO deliver in part, and il
good order. TO the value of S459.
The Lbellant alleges that owing to the Sover-
eign being in an unsound and unseaworthy con
dition, and owing to careless, negligent, and i'm
proper .stowage, and the large and excessive
quantity Of freight, and by reason of want oI
proper care on the part Of the master, etc. large
quantities Of sea-water came on board the deck
of said vessel which deck was false and open, by
which the merchandise was damaged to the
extent of S459O2.
The Respondent admits the shipping of the
goods, but denies that any damage was sustained
which was not caused by danger of the seas and
he AYERS that any damage incurred was caused by
one of the periIs excepted by the bill Of lading
that the Sovereign, on the 2Sth of November,
sailed from San Francisco, laden with assorted
cargo; was then staunch, tight and strong that
the merchandise was well and sufficiently slowed
and secured, matches well secured, caulked, COW
cred &c. that the deck was not false, and open
or leaky, but sound that the schooner was well
and sufficiently manned, yictualed, furnished, &c.
/ that she encountered rough weather, and gales
and heavy seas, which caused her to labor heav-
lily, and that the damage was by winds, weather,
and accidents of voyage.
The goods having been received at San Fran
cisco as per bill of lading to be delivered here in
good order, and the Respondent having failed to
fulfill the contract, 1t is incumbent on him, in
order to excuse himself, to show that the damage
was occasioned by the dangers of the sea, as that
is the only exception 10 the bill of lading.
The issue is, then, formally made. The prin-
cipes of law which are recognized as applicable
to a case of this kind are very well laid down in
the notes in Smiths Leading Cases, at page 1893.
The carrier is always liable for injuries resulting
from his own negligence including, of course, de-
fects in the means of transportation provided by
him. He is therefore liable for those injuries
which the violence of motion causes in conse-
quence of his negligence or defective means. BY
proving the delivery of the thing to be carried
b. him, the burden OF accounting for is thrown
upon him, and he may either show the safe de-
livery of the goods or prove that the loss occurred
by one Of the excepted causes.
All the authorities agree that after the damage
to cargo has been established, it is incumbent on
the Respondent to show that it was occasioned
by the pers excepted by the bill of lading and
in doing this he must show that the ship was
seaworthy and well found, and properly manned,
and managed in a seamanlike manner, and that
the cargo was properly slowed and dunnaged In
the case of Clarke VS.. Barnwell, IL Hannard l32,
the Court say that although the loss occurs by
the peril of the sea, yet if it might have been
avoided by skill and diligence at the time, the
carrier is liable. But in this stage of the case,
burden is on the plaintiff to establish the negli-
gence, as the affirmative lies upon him. The
doctrine of La Motto ct al. vs.. Angel, in l Haw.
R., 14O, is somewhat at variance with this case,
for there the Court say, that to impose upon the
merchant the obligation to prove negligence on
the part of the carrier would be great hardship,
for he does not usually accompany the ship he
is not acquainted with the incidents of the |
voyage whereas, it is an easy matter for the |
master, when he has used care and diligence in
transporting the property to show that care and |
the absence Of negligence on his part Prac-
tically, there may not be much difference in pre-
senting a case TO the Court, but it is clear to my
mind that it should be incumbent on the Re /
spondent to prove that the loss was occasioned |
by the perils of the seas, after having done his
full duty in furnishing a seaworthy vessel aud |
sailing her in a seamanlike manner with her cargo |
well slowed and dunnaged After he has thus |
made prina fdcie case, the Lbellant may. Of |
course, introduce rebutting evidence that the /
loss might have been avoided by skill and dill /
gence at the time.
For the defence, the first officer is introduced, /
who testifes that he has been mariner for /
twenty three or twenty-lour years, and has been 1
attached to the Sovereign since Nov. 2lst, last /;
has always served in schooners, except two or |
three years !; has been master, mate, and fore /
mast baiiu hau OittA seen llls vessel DclDIe
went on board in San Francisco. and have
known heE for eighteen months. She had been l
newly painted in her upper works, and copper 4
painted on the bottom her tonnage was SO .
tons" He says further, that she was in sea-
worthy condition, in his judgment that she was
well found for voyage of this kind, in sails and
rigging, cables and anchors, manned, and not
leaking, and was apparently strong vessel.
" She didn't work or complain to use his Ian
guage; the decks were apparently in good order.
and so were the pumps. He testi6es, further,
that they mad rough weather before reaching the
Farallones, encountering strong winds and a
heavy sea reeied the sails the vessel labored
very heavily shipped some water, and lost some
lumber overheard; the pumps we're promptly
attended to after the heavy weather. the vessel
made $50 strokes an hour. On the third day out,
the vessel labOred heavily, aud she was hove to
she made no water till the second day out that
The weather was stormy the first fifteen days out
and that she labOred heavily; no sails were split
Or carried away there was rip in the maInsai.
He says that the vessel was full below, and her
ieck load was dush with the rail, being some