Lakeman et al. v. Grinnell et al.

of great personal interest to themselves. They have kept the plaintiffs out of their money until that question was ruled against them. The decision was, that they were responsible, and ought to have paid at once. The plaintiffs will not obtain their full indemnity if they are deprived of interest from the time they should have received the amount, and the defendants have had an advantage in the retention of money which they should then have paid over.

The case of Dana v. Fiedler, (2 Kern., 40,) appeared to me to involve a principle which would authorize the charge of interest in the present case, and to make this charge a matter of legal right, not a case for submitting it to the discretion of a jury, to allow it or not, according to circumstances, and their judgment upon them. The cases in which the action is simply ex delicto, of which Walrath v. Redfield, (18 N. Y. R., 457,) is an example, seemed plainly distinguishable. (See also The Gold Hunter, 1 How. & Blatchf., 300; McGregor v. Kilgore, 6 Ohio R., 143; 6 Ham., 358, 361.)

But the case of Watkinson v. Laughton, (8 Johns. R., 213,) holds that where the carrier is free from fault, he cannot be charged with interest on the value of goods lost or destroyed while in his custody. The interest which the jury had added to the value of the goods was disallowed by the Court, and the amount of the verdict reduced. The rule thus stated has received some confirmation or recognition in Amory v. McGregor, (15 John. R., 24-38,) and in Richmond v. Bronson. (5 Denio, 55–57.)

I feel bound to yield to these authorities, and not at liberty to disregard them upon the mere strength of my conviction, that the principles which later cases contain, and which may be deduced by reasoning from later decisions, tend to show that the rule ought not to exist, and probably will be overruled by the Court of Appeals in carrying out its own doctrines in Dana v Fielder, (2 Kern., 40.)

I must consider, therefore, the ruling of the Judge in this particular to be correct.

2. The next important question is, whether the damages shall be estimated according to the value of the goods at the port of destination, Liverpool, or at the port of shipment, New York. The difference is $3,368.91 of principal. The goods were shipped

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on the 3d and 4th of September, 1849, in New York, and the fire occurred on the 5th of that month. The ship was to have sailed on the 6th.

The leading case in our Courts, that of Watkinson v. Laughton, (8 J. R., 213,) is one where the vessel had arrived at the port of destination, and part of the goods had been embezzled without the fault of the captain. The net value at that port was the standard adopted.

In Amory v. McGregor, (15 John. R., 24,) the vessel was on her voyage when the capture took place, from which the loss of the goods arose. The case of Watkinson v. Laughton was recognized as governing the question before the Court.

In Bracket v. McNair, (14 John R., 170,) the defendant had neglected, without good reason, to transport the salt as he had contracted to do. The difference of the value at the place to which it was to be carried, and the value at its place of intended shipment, was allowed.

Delamater v. Richardson, (3 Caines' R., 219,) is not of much bearing upon the question, as the case turned much upon the fact that the staves were taken by the plaintiffs, and transported at a dangerous season of the year.

In the case of Arthur v. The Cassius, (2 Story's R., 81,) the goods had arrived at the port of destination; the consignee refused to receive them; the master was held bound to have landed them there. His conduct was suspicious: there was misconduct on his part. In Wheelwright v. Beers, (2 Hall's R., 391,) the goods were shipped at New York for Omoa, and the vessel was driven into Norfolk. Portions of the goods were sold there, and other portions brought back to New York and sold. The rule of damages adopted by the Court (JONES, Ch. J., and HOFFMAN, J.,) was the difference between the amount of the total sales and the invoice price at New York. Mr. Justice OAKLEY alone advocated the rule of the difference between the prime cost and the net value at the port of destination. The jury had found a verdict of $2,500, estimating the loss of the market at Omoa at $1,500. The recovery was but for $1,000. The invoice was $3,744. The sales must have been $2,744, as the difference was $1,000.

This case seems to me to involve the proposition that if all the goods had been brought back to New York and sold there, the

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difference between the proceeds and the prime cost would have been the rate of damages. If so, the case is strong to show that, when all the goods have been lost in the port of New York before starting, the prime cost is the true rule.

The case of The Tribune, (3 Sumn. R., 144,) appears to be in favor of taking the port of lading as furnishing the standard of value, but is by no means decisive.

In The Gold Hunter, (1 Howl. & Blatch., 300,) portions of the goods, shipped at Havre for New York, were plundered or consumed on the passage, and part sold to raise money for repairs at Halifax, a port of distress. It was held that the market value at New York of the goods lost was to be recovered, with interest. Watkinson v. Laughton was referred to. The vessel arrived at New York.

The case of The Joshua Barker, (1 Abb. Adm. R., 215,) was of a peculiar character. The cargo of flour was put on board a vessel at Albany, to be carried to New York. The vessel capsized at the wharf. The cargo was taken out damaged, and immediately sold by the carriers without waiting for orders from New York, which could have been received in a few minutes by telegraph, and in forty-eight hours by regular mail. The vessel itself was pumped out, and arrived at New York in a week after the accident. The value of the goods at the latter place, on the day of arrival, was adopted as the measure of damages, deducting freight and charges and adding interest. The interest was allowed as the appropriate recompense for the fault or misconduct of the party.

In Dusar v. Murgatroyd, (1 Wash. C. C. R., 13,) goods shipped to be transported to Hamburgh were damaged in the port of shipment. The Judge charged: "The profit which might have been obtained if the sugars had gone safely to Hamburgh was claimed at the opening, but was properly abandoned by the concluding counsel. The difference between the prime cost and charges and the sales here, forms a fair measure of the damage sustained."

Warden v. Green, (6 Watts' R., 424,) was the case of part of the goods being landed at the port of delivery. Some were damaged and some missing. The value there was the rule adopted.

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In O'Conner v. Forster, (10 Watts' R., 418.) there was a contract to convey wheat from Pittsburgh to Philadelphia, a proffer of the wheat by the shippers to the ship owners, and their refusal to receive and carry it. The damages were fixed at the difference between the market value of the goods at Philadelphia, at the time when they would have arrived, and their value at the place of intended shipment, with the freight.

Gillingham v. Dempsey, (12 Serg. & Rawle, 183,) is a leading authority. The subject was fully and ably examined. It is clear that the vessel had arrived at Philadelphia from Liverpool. The injury was sustained on the passage, and from improper stowage of the crates of earthenware. The value at Philadelphia was explicitly recognized.

Bridge v. Austin, (4 Mass., 115,) is carefully reviewed in the last cited case; and it does not afford much support to the proposition of the defendants in the case before us.

McGregor v. Kilgore, (6 Ohio R., 358,) was a plain case of neglect or misconduct of the carriers in not having efficient means of unloading and reshipping at the intermediate port. The right of doing so was given them in case of low water.

There are some other authorities which bear, though less directly, upon the present question.

It is entirely settled that when the goods, delivered to a carrier for transportation, are taken to the place of destination, but delivered in a damaged condition, or when some of the goods shipped are not delivered at all, but the vessel has arrived out, the value at the port of destination is the rule of estimating the damages. Brandt v. Bowlby, (2 Barn. & Adol., 932,) is a striking example of this rule.

So, if the vessel is driven by distress into an intermediate port, and part of the goods are there sold for the necessities of the ship, and she then arrives at her port of destination, the goods so sold are to be allowed for according to the price at the port of delivery, or the shipper has the right to elect to take the net proceeds of the sale. (Alers v. Tobin, cited Abb. on Ship., 372; Hallett v. Wigram, 9 Com. Bench R., 580.)

But in Atkinson v. Stephens, (7 Exch. R., 567,) it was decided that when a portion of the goods had thus been sold at a port of distress, and the vessel had then proceeded, but never arrived at Bosw.-VOL. V.

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her port of destination, the owners were not responsible for the value of the goods at the latter port. The question arose upon pleadings, and the judgment was restricted to that identical point. It was stated to be an uncertain question, whether the ship owner was liable at all if the vessel never arrived at the port of destination. Leave to amend the declaration was given, with a view to have this point considered.

The Commercial Code of France (art. 298) provides for these cases. Freight is due for goods which the master has been obliged to sell to furnish repairs, &c., he being accountable for the value of the goods thus sold, at the price of the rest, or of similar goods of the same quality at the place of discharge, if the vessel arrive safe. If the vessel be lost, the master shall account for the goods at the rate at which he sold them, retaining the freight according to the bill of lading.

Justice STORY, in Pope v. Nickerson, (3 Story C. C. R., 465,) followed the rule of the Code, and held that a subsequent loss of the ship did not discharge the liability.

Mr. Abbott, (p. 372 and note n.,) has referred to the foreign authorities upon the point whether, in the case of a sale of some goods at an intermediate port, and then a loss of the ship and of the remaining goods, the goods sold were to be paid for at all. M. Boulay Paty has examined the subject with his usual care. (Droit Commercial, tome 2, p. 219.) The Judgments of Oleron, the Ordonnances of Wisbuy, and the Assurances of Anvers, are quoted with the opinions of Emerigon, of Valin and Pothier. The two latter authors were of opinion that the owners were responsible for the goods. He then states that the Commission (appointed by Napoleon to prepare the Code) adopted the contrary view of Emerigon, but the Council came to a different result; and he cites the reasoning of M. Begouen before the Corps Legislatif, which induced the adoption of the article as it appears in the Commercial Code.

The learned author concludes thus: "There cannot, then, at this day, be any further controversy. Whether the vessel arrive in safety, or is lost after the sale of the goods, the price of those goods sold for the necessities of the vessel must equally be paid, deducting the freight. Yet there is this difference: If the vessel arrive at her destination, the goods are to be paid for at the price