The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-03-04


the voyage prosecuted. The own
ers of the other two-thirds, have
asked it, but under circumstances in
which it became impossible for them
TO ship it. The parties have there
fore withdrawn from the contest,
without having been able to prose-
cute the voyage, or effectually to
seek its prosecution beyond the port
of Boston. The just operation of
the law upon this state of things,
in my Judgment, is that which l
have indicated. The owners of the
cargo are content to take their
goods here, and the ship-owners to
leave them here. 1t is, if l may
so say, reluctant acquiescence
forced upon them by an overriding
necessity. shall therefore deere
pro rata freight"
1t is implied by defendants
counsel that the master refused TO
forward the goods to the port of
destination, and therefore the ac-
eeptance by the defendants under
such circumstances does not in law
imply a promise to pay freight TO
the intermediate port. We are I'M
able to find in the submission any
evidence whatever, either direct or
/ inferential, that the master refused
to tranship the goods; neither is
there any evidence that the defend
ants insisted upon the performance
of the contract. So far as we can
gather from the case as submitted
to us, they freely and willingly,
after being in possession of the
facts, adopted the plan of giving
up the voyage, dissolving the
charter party and closing out the
cargo in Honolulu ; they preferred
this to a transhipment of the cargo,
unless such transhipment could be
made promptly, which was impos-
sible. The cases quoted by defend
ants counsel as authority upon this
point are hardly applicable /; that
portion of the case of The Nathaniel
Hooper, g SUNNI, 55O) referred to,
and Vlier6oom Us. Chapman, (1S NJ.
&W., 239) raised the question of
pro rata freight, which was not
allowed, upon perishable goods,
| which had been sold from absolute
necessity by the master in an inter-
mediate port.
Gaze as. Bait. ms. Co., G. Cranch,
36D was a case of abandonment,
and Metcdlf Us. BTittdRic ms. Co.,
2Q. B., 423, affirms the rule which
we have recognized but disallowed,
pro rata freight solely on the ground
that there was no evidence of a
mutual waiver of a prosecution of
the voyage or of voluntary ac-
ceptance of the goods at the inter-
mediate port.
In regard to the rule for ascer-
tanning the amount of freight to
| which the master is entitled, we
find that several methods have
been adopted by the Courts. Par
sons in l Shipping and Admiralty,
243, says, at is not quite certain
how the proportion shall be calcula-
ted when pro rata freight is due.
There are in fact but two ways of
doing this. The part of the voyage
for which freight is to be paid may
be a geographical part or COM
mercial (meaning pecuniary) part.
That is, the shipper may be held to
pay, as in the earlier cases, so much
per mile or league for what has
been done out of the whole voyage,
or else so much as it would cost to
bring them to the port at which
the goods are accepted. Every rule
must be a modification of one of
these. The latter rule is that which
we think is favored and will be
| generally adopted in this country"
This latter rule is supported in the
case of Coffin Us. Storer, ) Mass,
PSI.
We are unable for want of data
to use the first rule and would in
any case prefer the second in an
issue like the one before US, in
which the defendants appear to be
benefited by the transportation of
the goods to Honolulu in an amount
nearly coinciding with the regular
freight from Tacoma to Honolulu,
which is agreed upon in the sub
mission as $3.50 a thousand, which,
with the purchase price of SO is
about equivalent to the market
price in Honolulu.
We allow the plaintiff freight
accordingly, with the accustomed
rates for pickets, laths and short
lengths, and also his necessary ex-
penses for the removal from the
dock, piling and insurance of the
cargo, but not for the expense of
discharging the same, the charter
party providing for the delivery of
the cargo from the ships tackles.