Lakeman et al. v. Grinnell et al. II. The measure of damages is the value of the goods at the port of destination, at the time they would have arrived, with interest. Such value was proved on the trial. (Sedgwick on Meas. of Damages, 370; Gillingham v. Dempsey, 12 S. & R., 188; Watkinson v. Laughton, 8 J. R., 213; Elliott v. Rossell, 10 id., 1; Bracket v. McNair, 14 id., 170; Amory v. McGregor, 15 id., 24; Dana v. Fiedler, 2 Kern., 40; Joshua Baker, 1 Abb. Ad. R., 215; Gold Hunter, 1 Blatch. & H., 310.) III. The verdict should be set aside, and a new trial granted. Daniel Lord, for defendants. I. 1. Where, by an event importing no fault, the ship and goods are lost at the place of lading, the cost price or value at that place is the measure of the liability of the carrier. (Wheelwright v. Beers, 2 Hal 1 R., 391; Smith v. Richardson, 3 Caines R., 219; See also from Spencer, 8 Johns. R., 215; Watkinson v. Laughton.) 2. The cases where the rule adopting the price at the port of destination is applied are uniformly cases where the voyage has been proceeded on, and the goods carried away from the port of lading. (Watkinson v. Laughton, 8 John. R., 213; Elliott v. Rossell, 10 id., 1; Bracket v. McNair, 14 id., 170; Amory v. McGregor, 15 id., 24.) 3. When the ship and cargo are both lost before proceeding on the voyage, the cost or home value is the only certain rule, and it affords an exact indemnity. To give the value abroad involves speculative inquiries into price abroad, without the presence of the goods themselves, into the time of probable arrival abroad, into the fluctuations of the current market, into the duties abroad, and into the foreign charges. But the domestic value rests upon the actual cost, ascertainable by direct positive evidence, and is the sum with which the lost goods may be replaced. II. 1. Where a carrier is held liable, the allowance of interest is in the discretion of the jury, and not a legal right in the shipper, where there is any question of negligence. And where there is no question of negligence made, interest is not by law to be allowed. (Watkinson v. Laughton, 8 Johns. Lakeman et al. v. Grinnell et al. R., 213; Bracket v. McNair, 14 id., 170; Amory v. McGregor, 15 id., 24; Richmond v. Bronson, 5 Denio R., .55; Sedgwick on Damages, 357, 2d ed.) 2. This is in conformity with the law in the allowance or not of interest on unliquidated demands, in the absence of fault or agreement to pay interest. (Rensselaer Glass Factory v. Reid, 5 Cow., 587; Doyle v. St. James Church, 7 Wend. R., 178; Tucker v. Ives, 6 Cow. R., 193; Van Beuren v. Van Gaasbeck, 4 id., 496.) 3. The liability of the carrier for a loss like the one in question, is founded on mere positive law, similar to a statutory penalty or liability. It is not founded on equitable considerations, and is now limited by act of Congress. (U. S. Stat., March 3, 1851.) Nothing is to be added to it by any implication. The verdict should not be set aside. SLOSSON, J. 1. There is no question on the authorities but that the common carrier who has received goods for transportation and has actually performed the journey or voyage, is, in case of non-delivery of the goods, unless the failure to deliver is excused by the act of God, or perils of the sea, liable, as a general rule, for the value or price which they would have brought at the port or place of destination, if they had been delivered according to the contract. The defendants' counsel, however, insists that it would be unreasonable to adopt the valuation at the place of destination, when the goods have never left the place at which they were received by the carrier, but have been destroyed at such place by some cause other than the carrier's own negligence, and insists that in such a case the value of the goods, at the place where they were received by the carrier, is the true rule both in principle and on authority. The case of Wheelwright v. Beers, (2 Hall's Sup. Ct. R., 391,) is relied on. The defendant had undertaken to transport the plaintiff's goods from New York to Omoa, the vessel was forced by stress of weather into Norfolk, where she was found so much damaged that she was sold and the voyage broken up. A part of the plaintiff's goods was also sold, and the residue shipped Lakeman et al. v. Grinnell et al. back to him at New York and there sold. The loss on these sales was $1,000. On the trial the plaintiff proved what the goods would probably have brought at Omoa, and contended that he was entitled to recover according to such foreign valuation. Chief Justice JONES who tried the cause reserved the question of damages for the consideration of the Court, and the jury, under the direction of the Judge, assessed both values, that is, first, the difference between the invoice prices of the articles shipped and the net amount of the sales of the same articles after they were delivered to the plaintiff; and, second, the difference between the net amount of said sales and the prices which the articles would have brought at Omoa. The first they found to be $1,000 and they estimated the loss of the market at Omoa to be $1,500, and gave a verdict for the plaintiff for $2,500. When the case came before the Court in Bench, Judge OAKLEY gave an opinion in favor of the valuation at the place of destination. The Court, however, did not agree with him, and the Reporter adds: "That part of the foregoing opinion which relates to the rule of damages was the opinion of Judge OAKLEY merely, and not that of the Court. The Court gave judgment in favor of the plaintiff for $1,000, being the difference between the actual sales and the invoice price of the goods, the loss of the market at Omoa being deducted from the verdict of the jury. The loss on the sale of the goods at Norfolk and New York was considered as the true rule as to damages, upon the ground that there was no fault or fraud on the part of the defendant from which the loss arose, and that the case showed only a breach of the implied warranty of sea-worthiness." This case is important, not only as showing that the valuation at the port of departure may be a proper measure of damage, even where the vessel has undertaken and partly prosecuted the voyage, but as also showing that in cases of this nature, where the action essentially sounds in damages, the good conduct or fault of the carrier may enter into the consideration of whether the valuation should be fixed according to the home market, or the market at the port of destination. The case of Smith & Delamater v. Richardson, (3 Caines, 219.) is also relied on. It was brought to recover damages for the breach of the defendant's contract, he having undertaken to con Lakeman et al. v. Grinnell et al. vey the plaintiffs' goods, consisting of staves, from a point in the State of New York to a place near Montreal, in Canada, and wholly failed to perform his agreement, by reason of which the plaintiff had been obliged to effect the transportation himself, in the course of which the goods were lost on the St. Lawrence. The Referees, to whom the case had been sent, gave the plaintiff the full value of the property which it would have brought in the Montreal or Quebec market; and on a motion to set aside their report, it was contended that at the utmost the defendant could only be made liable for the value of the staves "on the spot where they lay ;" and so the Court held, putting their decision on the ground, however, that the price in the Montreal or Quebec market was "too uncertain and unreasonable to be admitted as a rule of damages." In Watkinson v. Laughton, (8 Johns. R., 213,) where goods had been embezzled during the voyage, and in which the valuation at the place of delivery was held to be the rule, the case of Smith & Delamater v. Richardson was relied upon as conclusive on the rule of damages; but the Court held that case not to be 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," and they held that there might be a material difference between the two cases as to the reason and policy of the rule of damages, the case before them being one of embezzlement of part of the goods in the course of the voyage. The case of Dusar v. Murgatroyd, (1 Wash. C. C. R., 13,) resembles the one now before us most nearly in its circumstances. After the goods had been put on board for a foreign port, and before the vessel left the wharf, she nearly filled with water, in consequence of which the plaintiff's goods were damaged to about one-half their value; and the Judge charged the jury that the rule of damages was the difference between the prime cost and charges, and the sales at the place of shipment. In the case of Bridge v. Austin, (4 Mass. R., 115,) the defendant had received the plaintiff's goods on board his vessel at Boston, to transport to Charleston, under a special agreement to sell on Lakeman et al. v. Grinnell et al. his account and to account for the proceeds. The goods arrived at Charleston, and were there stored by the defendant, but before they were sold were stolen. The rule of damages adopted by Chief Justice PARSONS, was the value of the goods at Boston when shipped, less the five per cent commissions stipulated for in the special agreement. I should be unwilling to make the negligence or good conduct of the carrier the sole test by which to determine the measure by which to assess the plaintiff's damages in a case of this kind. Apart from the difficulty of proving negligence or fraud on the part of the carrier, the burden of doing which would, by such a rule, be thrown on the plaintiff an objection pointedly alluded to by the Court, in Watkinson v. Laughton-it would be introducing as decisive, in the computation of damages, a consideration which, if properly admissible at all, which I do not deny, is nevertheless not necessarily connected with the principal, if not the only object of damages in such a case, to wit, pecuniary indemnification to the plaintiff for his loss. The case of Delamater & Smith v. Richardson does not adopt such a test, though the Court in Watkinson v. Laughton, refer to the absence of fraud, negligence or misfortune, in that case, as one of the distinctions between it and the case then before them. The true test, I apprehend, is what will furnish the plaintiff a full indemnity. If the value of the articles, according to the invoice price, will fully compensate for the loss, that price should govern. If the value in the place where the goods were to be delivered is necessary to furnish a complete remuneration, that should be adopted; and hence the question whether the goods are lost in the place where they are received by the carrier, or in the place at which they were by the contract to be delivered, may become one of the last importance. I say may become, because I do not think that that is necessarily decisive in all cases; for I can well imagine a case in which the goods are lost in the port of departure, in which, from an impossibility of procuring other articles of the same kind, or from other causes, the value at the port of destination would furnish the only adequate indemnity to the plaintiff. In such a case it ought, except under special circumstances, to be adopted. But if the goods could be immediately replaced at the same price, and sent forward by |