The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-12-03

nlZeQ by Onlel justice Alien In
May VS.. Schooner Sovereign &c
Haw. 44). He says after refer
ring to the above case: at is
clear to my mind that it should be
incumbent on the respondent to
prove that the loss was occasioned
by the perils of the seas, after hav-
ing done his full duty in furnish
ing a seaworthy vessel, and sailing
her in a seamanlike manner with
her cargo we'll stored and dun
naged. After he has thus made a
prima facie case, the libellant may,
of course, introduce rebutting evil
dence that the loss might have
been avoided by skill and diligence
at the time" The case of Webb,
in re, C Scott n. R. 956; Angel
on Carriers sec. 213 N. g which
was brought for damage to freight
while in transportation, has the
following: mo act or omission
of an act has been proved to show
that the defendants were negligent
or that they did anything to in
jure the property. If they are
responsible, it arises from an in
ference of law that if property is
given to common carriers for trans
portation, and when given to them
is in a sound state, and that it is
in an unsound state when de-
livered, it is the duty Of the COM
mon carriers to show how it was
injured. For if the property was
in a sound state when delivered to
the carrier and found to be injured
when delivered to the owner, it
would be imposing on him a great
hardship to be obliged to show
some act of negligence on the part
of the carrier. For in order to do
so he must 60 on board of the YES
sci to come at the facts Of the case
and possibly would not succeed in
eliciting them. The law pre-
sumes that if the goods were safe
when put on board, the injury to
them arose from negligence on the
part of the defendants, unless they
show the contrary"
This reasoning applies also to
the circumstance of the loss of
goods while in the possession of
the carrier.
The court left the construction
of the bill of lading to the jury,
and the defendant excepted there
to as has been already stated.
The construction of contracts is
for the court, except in certain
cases where they contain technical
words, or words of local usage, the
meaning of which must be ascer-
tanned by evidence; or when doubt
is introduced by the existence of
collateral and extrinsic facts not
appearing upon the instrument,
making it necessary to seek the in
tention of the parties by recur-
renee to the state of facts as they
existed when the contract was en-
tered into. The contract in this
case is not within any of these ex-
ceptions, and should have been
construed by the court, even
though its meaning was disputed
by the parties, for such meaning
was to be ascertained by the in
spection of the contract it.
self, although its application
may have depended upon parol
evidence whether or not the de-
PENDANT was a common carrier over
the land part of the route. "When
a contract is reduced to writing it
may, and probably does, sometimes
happen, that one or both of the
contracting parties misapprehend
the legal effect Of the writing. Yet
if it be not altogether unintelli.
gible, the court will read the con,
tract for the parties, and they will
be bound by its legal effect. The
obscurity of such a writing, or the
difficulty of putting a satisfactory
construction upon it is no reason
for setting it aside or for leaving
both the fact of its execution anC
it's legal construction to the jury
(Rice VS.. Dwight, Man. Co., 2 Cush
S6).
This point is important, as the
jury may have, wrongly as it seems
to me, restricted the reservations o
liability contained in the contrac
to the sea route only; in which
case, if they found the defendan
to be common carrier, they would
naturally under the unquestionec
, instructions of the court, have fount
it liable for the loss without con
sidering the question of negligenc
at all, (Asegut VS.. King, 2 Haw
1889 which would have been I'm
just to the defendant and deprive
, it of the benefit of its reservation
in the bill Of lading. The cou1
should have charged the jury tina
J the exception in the contract az
5 piled to the whole route, and the
, the sole issue would have been tn
, question of the defendants negl
gence. The exception upon thi
point should be sustained and
new trial granted.
, The following is a form of til