8 Johns. 213 | N.Y. Sup. Ct. | 1811
The rule of damages in such a case as the present, does not appear to have been the subject of discussion and decision in any of the numerous commercial cases which have arisen in the English courts. Perhaps the rule has been so well understood and settled in practice, as not to be drawn into controversy. But as that practice is not stated in the case, nor known to the court, we must govern ourselves by the general principles which are established in the books. The case, in this court, of Smith & Delamater v. Richardson, (3 Caines, 219.) is not applicable, as that was not a case of loss, arising from the fraud, negligence or misfortune of the carrier, in the performance of his trust, for the defendant there never entered on the undertaking, and the suit was for a breach of contract in not carrying, and the plaintiffs, afterwards, became their own carriers, and lost the goods. There may then be a very material difference between the two. cases, as to the reason and policy of the rule of damages. Here was an embezzlement of part of the goods, in the course of the voyage, and it would seem to be the rule of the marine law in such cases, that the master must answer for the value of the goods missing, according to the clear, net value of goods of like quality, at the place of destination. All the ordinances and authorities declare this to be the rule, when the goods are sold by the master, from necessity, in the course of the voyage; (Abb. on Ship. part 3. c. 3. s. 10.) and why should not the same rule apply when the goods are missing by any other means ? The general doctrine is, that the master must make good the loss or damage ( accruing to the goods, which he undertook to carry safely, for hire; and Pothier (Charter Partie, No. 33. 35.) says that the rule is gene
The question of interest depends upon circumstances.
The jury may give interest, by way of damages, in cases in which the conduct of the master was improper. But here, no bad conduct is to be imputed to him, and interest is not, in every case, and of course, recoverable, because the amount of the loss is unliquidated, and sounds in damages, to be assessed by the jury.
The verdict is, therefore, to be reduced, not only to the sum of 1,3 79 dollars, but the sum must be further reduced, if necessary, to the net, instead of the gross, value, at the port of delivery. It would seem by the case, as we understand it, that the highest sum found was the gross price of the goods, but the plaintiff ought to deduct the charges for freight, &c. which he would have paid had the goods arrived, and take only the net price, without interest.
Judgment accordingly,