Page:Federal Reporter, 1st Series, Volume 5.djvu/646

 634  FEDERAL REPORTER.

market value of the unsound goods at the time of delivery. It is, however, often difficult to arrive at the market value of unsound goods. It may be that damaged goods of the particular kind are not often dealt in. It is often difficult to find merchants who will buy unmerchantable goods at any price, although to the consumer they may be as serviceable as before they were damaged. In this case one of the principal iron merchants, called as a witness, said he would not have taken the damaged cotton ties at any price. I am satisfied, therefore, that it will be much safer to take as the market price of these damaged goods the price they actually produced when sold, there being no proof of any change in the market.

I think the libellants should recover the difference between the amount they have received from sale of the goods and the amount they would have received if the goods had not been damaged, together with the charges for putting them in a salable condition; less, however, the amount of rebate of duties allowed to them, and less the freight due the ship.

Bell v. Pidgeon and the Scow No. 1.

District Court, E. D. New York. January 3, 1881.)

1. COMMON CARRIER — PERIL OF THE SEAS — Damaged by Swell of Passing Boats—Negligence.

Where a scow, built and used by a party for his own transportation business, was at one time hired out by him to carry a load of chalk for another party up the East river at New York, and in passing up in tow of a tug, on a hawser, was met and passed on each side by two steam-boats, that raised such a swell as to make the scow roll her load of chalk overboard, and an action was brought to recover damages, held, that the owner of the scow was not a common carrier, and no negligence on his part or that of his agents being shown, was not liable for the loss of the chalk, although there was no exemption of "peril of the seas" in the contract made by him; he was only a bailee for hire.

A ship-owuer who carries goods on his ship for hire will not, by reason of his acceptance of the goods, be held liable as an insurer, in the absence of any stipulation to the contrary, against everything but the act of God and the public enemy, as is a common carrier.

In Admiralty.