
    [Philadelphia,
    December 27, 1824.]
    GILLINGHAM and another against DEMPSEY.
    In an action bn a bill of lading, for a loss in carrying goods, the measure of damages is, the nett value of the goods at the port of destination
    This action, which was tried before his Honour Judge Gibson at Nisi Prius, was brought by Gillingham and Randolph against Thomas Dempsey, on a bill of lading by which he engaged to carry certain crates of earthen ware belonging to the plaintiffs, from the port of Liverpool to the port of Philadelphia. In consequence of not stowing them properly, some of the lower crates were crushed by the weight of those above. The jury found a verdict for the plaintiffs, subject to the opinion of the court, on a point reserved, viz. Whether the plaintiffs’ loss was to be estimated at the first cost of the article, at the port of embarkation, or at the market price at the time of delivery at the port of destination ?
    Sergeant, for the plaintiff
    contended, that the jury had taken the true measure of damages, in calculating the loss upon the price of ihe goods at the port of delivery. This has been fully settled to be the rule in New York. Elliott v. Rossell, 10 Johns. 1. Brackett v. MlNair, 14 Johns. 170. Emory v. Mi Gregor, 15 Johns. 24. Watkinson v. Laughton, 8 Johns. '■13. Pothier on Charter Parties, sect. 6, no. 35, page 37, lays down the rule of the civil law to be, that the master is bound to pay the price for which the freighter might have sold the goods at the place of destination. He cites the following passage of the Digest, lib. 46, tit. 8: — il Law. Eat. rem. hab. Si commissa est stipulatio ra-tam rem dominum habiturum; in tantum competit, in quantum mea interfuit; id est, quantum mihi abest, quantumque lucrari potui.’’7 And the same rule has been adopted by Judge WASHINGTON, in Consequa v. Willing, 1 Peters’ Rep. 172. In Griffith v. Ingledew, 6 Serg. Sr Rawle, 429, the point was not raised, but the damages were estimated without dispute, according to the value of the goods at the place of delivery. As far, therefore, as authority goes, the verdict of the jury is supported, and that the rule is founded on principle, appears by analogy to other cases. The damages ought always to be, the injury sustained by the breach of contract, except in cases of warranty of land, which depend on different principles. In cases arising under the contract of insurance, it is true, the goods are valued at their first cost, but this is a contract of a peculiar nature, and is construed, not according to its terms, but according to practice, and it is always in the power of the insurer to make himself safe, by an insurance of profits. In most other cases, the actual injury sustained is the measure of damages. In contracts for the transfer of stock, the rule is, to take, the difference at the place of delivery. Thus, too, if the goods of A. are taken at an intermediate port, from necessity, to pay general expenses, he shall have them valued according to the price at the port of destination. JLbbott, 242. 8 Johns. 316. Phill. on Ins. 355, 356. In case of contribution for average, the goods are valued at the place of destination. Phill. on Ins. 355, 357. And where an injury accrues, by one ship running foul of another, the measure of damages is the actual injury sustained. 4 Dali. 206.
    
      Binney, for the defendant.
    The question presented by this case, is here altogether new; and, in considering it, the court should not regard the defendant as chargeable for negligence, but rather as liable by the marine law, in the nature of an insurer, whose responsibility is measured by the prime cost of the goods, though there seems to be no good reason for a different rule in case of negligence, from that which should govern where there is no negligence. The contract for sale and delivery, is. governed by the market; but the contract for carriage has no relation to the market. Holt, 55- — 105. The contract of a common carrier is closely analogous to that of an insurer. Both are liable, except in case of inevitable accident. In Forward v. Pittard, 1 T. R. 27, a common carrier by land, was held to be liable for loss occasioned by fire, without negligence, and his contract was assimilated to that of an insurer. In Garside v. Trent and Mersey Navigation Company, 4 T R. 582, an action of the same kind, the same language is held. It is by the custom of the realm, that a carrier insures the goods at all events. Gibbon v. Paynion, 4 Burr. 230Ó. The value of the goods at the place of delivery is not the rule. In Smithy. Richardson, 3 Caines, 219, which was an action for a. breach of contract, in not carrying goods, in consequence of which they were sent by another conveyance and lost, the rule laid down was, that the damages were to be estimated, not at what the goods would have sold for, had they arrived at their place of destination, but according to their value at the place of departure. In Massachusetts, the damages are estimated at the value of the goods at the place of shipment. Bridge v. Austin, 4 Mass. Rep. 115. And in Tennessee, the same rule prevails. Edmondson v. Baxter, 4 Hayward, 112. The only adjudged case which establishes the rule to be the value at the place of destination, is Wathinson v. Laughton, 8 Johns. 213, which was founded upon a mistake in the application of the rule in another case, viz. that where goods are sold from necessity, which produces an average loss, they are to be valued at their price at the port of delivery. But-that case differs totally from the one under consideration. That'is not a ease of breach of contract, nor is the master liable, because he had a right by the marine law to sell the goods. The goods sold are supposed to have been been carried, and therefore must be valued at the price for which the other goods sold which did arrive. 3 Rob. 196. I Emerig, 654. 2 Id. 445, 447, 448. It is like a jettison, and the goods are therefore estimated at the price at which the rest sold on their arrival at the place of destination. Stev. on, Average, 19. Abbott, 396. Emory v. M‘Gregor takes different grounds from Watkinson v. Laughton, and gives different reasons. Pothier cites the Digest, but the passage to which he refers is not to be found.
    
      B&ply. In practice, this point has long been settled. The damages have always been estimated according to the actual loss, which is the price the goods would have brought at the place of delivery. The contract of insurance is a contract of indemnity, and guarantys that the insured shall not lose his goods by the perils of the sea; but the carrier undertakes to deliver the goods at the place to which they are destined. A merchant may make a separate insurance on profits; but the contract of carriage is one. The rule contended for by the plaintiffs works fairly between the parties, and has this important advantage, that it affords no encouragement to the carrier to be guilty of fraud, while the opposite rule holds out great temptation to fraud, and often leaves the party injured merely a nominal remedy. Suppose the master fraudulently converts the merchandize to his own.uáe, trover cannot be maintained against the owner, who must be sued upon his contract of carriage, while an action against the master would, in most instances, be fruitless from his inability to pay the damages awarded against him. Many other cases may be put: — Suppose the goods to arrive in port, and then be lost, before delivery, by negligence. Surely their prime cost would be a most unfair standard of damages; and I agree, that there should be no difference as to damages between cases of loss by negligence, and those of loss by inevitable .accident, such as fire. The law presumes negligence in all cases of loss in carrrying goods, and in this ease there actually was negligence. Again, — suppose the carrier refuses to carry the goods; if the merchant can Only recover their value at the plaee at which he purchased them, his damages must be nominal, because he has not lost his goods. The only mode of doing justice between the parties, is to take the value of the goods at the place of their destination; and the only vestige of authority opposed to this standard is the case in 4 Hayward, 112, which proceeds on a mistaken view of the law of New York, and that in 4 Mass. Sep. 115, which is not applicable.
   The opinion of the court was delivered by

TiughmaN, C. J,

This is an action against the defendant, on a bill of lading, by winch he engaged to carry certain crates of earthen ware, the property of the plaintiffs, from the port of Liverpool in England, to the port of Philadelphia. A loss was sustained on the passage, by the breaking of a considerable quantity of this ware, for which it is conceded the defendant is liable. The point in dispute is, the measure of damages; that is to say, whether the plaintiffs’ loss is to be estimated according to the value of the goods, at the port of shipment, Liverpool, or the port of destination, Philadelphia. It does not appear, that this point has ever been expressly decided in Pennsylvania, though it has in other places. We have had the advantage of a very good argument, and I will consider it as it stands, 1st. Upon authority; and, 2dly. Upon principle.

1. This question has been brought up, several times, beforfi the Supreme Court of New York, and it appears to have been long perfectly settled, that the value is to be taken at the port of destination. The first case in which this matter was touched, was Smith, &c. v. Sichardson, &c, 3 Caines, 219, (A. D. 1805.) That was an action against the defendant, for refusing to carry the plaintiff’s staves, which he had engaged to do. The plaintiff’, being disappointed by the defendant, endeavoured to carry them himself, and lost part on the passage. Arbitrators, to whom the cause was referred, gave the plaintiff the value of the staves at the port of destination, The award was set aside by the court, for several reasons; one of which was, that the value should have been estimated at the port of embarkation. It is to be remarked, however, that there were other good reasons for setting aside this award:— the staves remained in the hands of the plaintiff, and were not lost in the course of carriage by the defendant; nor was it certain that the loss did not happen from the plaintiff’s own imprudence, in attempting the voyage at an improper season, and from negligence or want of skill in conducting it. It was a voyage from a port in New York, down the St. Lawrence, to some port in Canada. Next came the case of Watkinson v. Laughton, 8 Johns. 213, (A. D. 1811.) That was an action on a bill of lading, for the carriage of goods from Liverpool to New York, part of which were embezzled by the crew. It was decided, that the damages were to be estimated according to the value of the goods in New York. Smith v. Richardson was cited, but said, by the court, not to be applicable, because, there, the goods were not carried or lost by the defendant. Then we have the case of Elliott, &c. v. Rossell, &c. 10 Johns. 1, (A. D. 1813.) That was an action for not carrying the plaintiff’s goods safely, from the Genesee river, to Montreal. The main point was, whether the loss arose from the act of Gon? The measure of damages was r.ot disputed, that point being considered as settled, viz. the value at the port of destination. In Bracket v. M‘Nair, 14 Johns. 170, the action was for the defendant’s neglecting to carry the plaintiff’s goods (salt,) from Oswego to Queenstown, which he had agreed to do. The rule of damages was held to be, the difference in the value of salt, at Oswego and Queenstown, deducting the freight. So that the authority of Smith v. Richardson, so far as it bears on this point, appears to have been directly overruled. The last New York case, is Emory v. M‘Gregor, 15 Johns. 24, (A. D. 1818,) where the measure of damages was decided to be, the nett value of the goods at the port of destination. The court said, that was the rule adopted in Watkinson v. Laughton.” In New York, therefore, the point is at rest. But the defendant’s counsel cited and laid some stress on the case of Bridge v. Austin, in the Supreme Court of Massachusetts, 4 Mass. Rep. 115, (A. D. 1808.) That case is very different from the present. It was an action against the defendant for receiving the plaintiff’s goods, as his bailiff, and taking on himself to carry them safely from Boston to Charleston, in South Carolina, on board the ship Rodney, (Burd, master.) The defendant engaged to dispose of them, at Charleston, on account of the plaintiff, and pay him the proceeds, and expressly took on himself all risks, except those of tho sea, and was to have a commission of five per cent. And it is an important circumstance, that the goods (a box of linens,) were declared, in the defendant’s written receipt and engagement, to amount to the sterling cost of eighty-four pounds, six shillings, and one farthing. The linens arrived safe, and were delivered by the captain to the defendant at Charleston, where they were stolen, without his fault, before he had an opportunity of selling them. He was held to be liable for the loss, according to the value at Boston, deducting five per cent. commission. In this case the defendant was supercargo, and his engagement seems to have been in the nature of an insurance in a valued policy; so that the general question now before us did not fairly arise. There was another case cited, Edmondson v. Baxter, 4 Hayw. 112, (Kentucky.) The rule there taken, was the value at the place of embarkation. The learned judges, who relied on the authority of the New York and Massachusetts decisions, were not, I presume, furnished with all the New York reports, or they might have been led to a different conclusion. 1 know of no other American case. In' France, and I suppose on the continent of Europe generally, where the civil law prevails, the law is held as it is in New York. Pothier, in his chapter on charter parties, page 37, is express. The carrier,” says he, “is liable, for the value of goods of the same quality at the place of their destination.” For this he cites the Digest, lib. 46, tit. 8: — ■ Law rat. rem. hab. “ If a stipulation be entered into by the principal, that he will ratify the thing to be done, he is liable as far as I suffer damage; that is, for so much as is deficient of the thing, and so much as I could have made of it, by way of pro fit.” The learned counsel for the defendant, who argued the cause with great ingenuity, has been able to show no English authority contrary to the rule of the civil law. But, from what was said by Lord Mansfield, in Forward v. Pittard, 1 T. Pep. 31, and by Lord Kenyon, in Garside v. The Trent and Mersey Navigation Company, 4 T. Rep. 582, it has been attempted to draw an inference that the liability of a carrier ought to be as in case of insurance, viz. for the value of the goods, according to the prime cost and charges. There are events, says Lord Mansfield, in which the carrier is liable independent of his contract. By the nature of his contract, he is liable for all due care and diligence, and for any negligence he is sueable on his contract. But there is something more by the custom of the realm, that is, by the common law, a carrier is in the nature of an insurer. It may be doubted whether the assertion be strictly accurate, that for accidents where the carrier was not guilty of negligence, he is not liable on his contract, but only by the custom of the realm. In Lawes on Charter Parties, 359, it is said, that in the old forms of declaration against a carrier, it is alleged quod suscepit, and if so, the action certainly arises ex contractu. And I take it, that it does so arise, and the plaintiff may aver, that the defendant was guilty of negligence, which the law presumes, and will not suffer it to be contradicted, unless the defendant show that the loss arose from the act of God, or the public enemy. Lord Kenyon thus expresses himself; “ The case of a carrier stands by itself, on peculiar grounds: he is held responsible as an insurer; and the reason given in the books (whether well or ill founded is immaterial here,) is, to prevent fraud. But neither Lord Mansfield nor Lord Kenyon say, that the rule of damages, in case of loss, shall be, as in cases of insurance, which without doubt, is according to the prime cost and charges. Now, then, so far as authority goes, the measure of damages inclines strongly towards the value of the goods at the place of destination. And if we consider it on principle, the damage of the plaintiff is the loss which he-has suffered by the non delivery of his goods at the place of destination, and that loss is the nett price which the goods would have brought at that place. In insurance, the law is so well known, that the merchant who wishes to cover himself to the amount of his goods at the port of destination, may do so, by valuing them in the policy accordingly, or by a special insurance on profits. But this is never done in contracts for carriage — an argument of some weight, that it has been supposed the plaintiff may recover according to the value at the port of destination. Then, if we consider the policy which should regulate these contracts, it is best to remove from the carrier all temptation to fraud, which will be best done by making himself answerable for the value at the place of delivery. If the goods should be of increased value at the place of delivery, as they generally are, and the liability extends no further than the value at the place-of ship* ment, there is very great temptation to fraud; and it will be extremely difficult for the plaintiff to prove, whether the loss happened by fraud, negligence, or unavoidable accident. Indeed, I think Mr. Binney very properly observed, that he could see no reason for a different measure of damages in cases of fraud, and inevitable accident. And it would require very strong authority to satisfy me, that where the carrier fraudulently disposed of the goods at the place of delivery, and made great profit thereby, he, or his principal, should be responsible for no more than the value at the place where he had received them. It may be said, that in such case, the carrier himself, if the fraud could be proved, would be liable in an action of trover, for damages, to the full amount of what he made by his fraud. But that involves the plaintiff in the difficulty of proving the fraud, and besides, the carrier himself is often worth nothing, and his principal, the only person looked to, would not be answerable in trover. Upon the whole, then, my opinion is, that the measure of damages should be regulated according to the rule, to which authority, general convenience, and good policy incline, that is to say, to the nett value of the goods, at the place of destination.

Judgment affirmed.  