found in 9 St. 635, and was enacted in 1851, andis said in Jfoorev. Transportation Co., 24 How.i, to have been in. consequence of the decision in Navigation Co. v. Bank, 6 344, ap,plying the common-law liability of common carriers to carriers hy water.. ItS provisions are largely borrowed from similar in England. There ship-owners were first exempted from liability in case of loss or damage by fire by the statute of 26 Geo. III., re-enacted in 17& 18 Viet. c. 104, § 503. The acts of both nations are essentially alike. The courts of England. have ruled that the exemption of the statute corresponds with the ordinary exemption from the accidents of navigation, and dOL3 not touch liability to contribute towards a general average. Schmidt v. Mail Steam-Ship Co., 45 Law J. Q. B. 646; Orooksv. 5Q. B. Div. 38. Considering the previous state of the law, the object to be obtained, and the history of the legislation, there can exist no reasonable doubt of the correctnesS of these decisions. That in the law of insurance damage by water is attributed to the original peril by fire as a direct and proximate cause does not warrant a construction of the act in question which would seriously unsettle the law of general average, and was clearly without the intendment of congress. Exceptions to libel overruled.
'l'HE IBERIA.! FABRE
S. S. Co.
(Distrlct Oourt, E. D. New York. May 15, lS9L)
OoLLI!ION-DAMAGES-Loss OJ!' EXISTING CHARTER.
A vessel, under a charter whicll ended at New York, wall sunk by collision before reaching ber port of destination. Awaiting her at New York was a second charter from that port to Cadiz. The commissioner, in assessing damages against the colliding vessel, declined to allow as an item thereof the freight which the ves Bel would have earoed on the second voyage. Held, that such freight waa a proper item of the damages recoverabl.e against the colliding vessel.
In Admiralty. On exceptions to commissioner's report. R. D. Benedict, for libelants. Owen, Gray &: Sturges, for respondent.
BENEDICT, J. This case comes before the court upon exceptions taken by each party to the report of the commissioner to whom it was reJerred to ascertl:lin the damage sustained by the libelants by the sinking of the steamer Iberia in a collision with the steam-ship Umbria. The princi" pal objection to the report is that taken by the libelants upon the ground
JReported brEdward G. Be_UOt, Esq., of the Mew York Dar.
the 'rejection by the conllnis,sioner of, any allowance for the loss of freighHvhicll the steanwr would ha:veear'nedu"nder a charter which had been effected on 'Oct6ber 27, 18'88, Tn anticipation of her arrival in :New York,upon the completion of the charter, from New York to Adenarid back to New York. under which she was sailing to New York at the time she was sunk and became a tptal loss. Evidence was introduced before the commissione'r showing'ihat at the time of the sinking of the Iberiapy the collision in questionlhere was awaiting her in New York a charter-party, exe9uted October 27, 1888, for a voyage from New York to Cadiz to carry a cargo of tobacco and small stowage. That tobacco and had bpen actually a voyage, on which she would freight. of '$1l,6q?53. The commissioner declin,ed to aHow,theawount of freight that would have been earned by the steamer 'under the charter from NewYork to Cadiz,upon the ground that she qcyame,a:totalloss by nleans of the collision in question, and the of the offending party ends with, payment of total loss, with interest from the time of loss. I am unable to agree with the commissioner in this conclusion. The rule of rest:itutio ad integntm is applied to losses caused by collision, as also the rule that nothing can be allowed for damage that is uncertain, speculative, and remote. In this case there is nothing uncertain, speculati ve, or remote in the claim for the freight that hall been actually contracted for the Iberia under the charter from New York to Cadiz. The voyage had been determined on, the charter-party had been executed, and the cargo had been engaged; and it is certain that, but for the collision in qUejJtiou'; the Iberia would have lathed for her owners, under the charter to Cadiz, a sum that is capable of computation. If, at the time of her loss, the ship had-,been, engaged in performing a ter from Aden to New York and back to Cadiz, the loss of freight on the voyage to Cadiz would have been recoverable; and it is not seen how ali y difj'ei'ence'arises frOID. the fact tha:tat the time of the loss she was chartered for the same voyage by two charter-pa!·ties instead of one. 'J.'h,e spJJ:i:at the time of' her destrji:<;tion ,was not only performing the charter from New York to Cadiz, but she was also proceeding to New York for the purpose of taking on board the cargo which it had been agreed she sPK>uldcarJ'Yto Cadiz, 'lWdwhich was then,awaiting her arrival. The freight that the ship would hfl.Ve earned on that voyage seems, therefore, to me to have been actually last by. reason of the collision, and I am unable to discover any ground for rejecting any part of an which the. Jibelant susta,in,ed by .reason' of the destruction of his sbf,p.Cpu1'ts o(admiralty, are courts of 'equity, are not. the matter of,dam,l1ges than are the ,cou,rts of c?mmon more, law j, [.th., e, ,,1'\11e, of courts of. ,c,'QI)jlP10, n Jaw, assta:ted In Addison on § " . ' , . " , "Afthough ll"'plaintiff is not to be compensated for uncertain and doubtful
losses which will almost to a certamty happen."
This case comes: within t}lat rule. It seems. strange to say that the faCt that the ship ,R tota110ss by. pf the. dli'fenclant's negUgimce prevents the lilie1ants from recoveq.ng of defendant. !reight which his ship would,h\1:veearned but for her loss. ·,1 .ilmaware that the adjudged cases are ootin entire harmony upon the point under con'l:lideration, but I think the cases, namely, TMFreddie L.· Portel:, 5. Fed. Rep. 822; The Ginada, Lush.5S6;, 5. MarH. Law Cas. 34nj The Star oj Indiit, I Probe Div. 4;66;. The Mary Steele, 2 LOw. 370; The Belgenland, 36 Fed. Rep. Bupport fora decision, which lippears to ,!pe to be the only just decision in thi,s case, that 'the lossof the freight which the ship would have earned on the voyage from New York to Cadiz should be included in the recovery. The second exception taken by tho libelant is therefore allowed, and· the case will be referred back to the commissioner'to and report the amount of loss actually sustained by the libelant by reason·of having been prevented from performing tho charter from New York to Cadiz, which had been executed on October 24, 1888. The other exceptions taken by the libelants &ra oVt:rrult:d, aa are also the exceptions takeu by the resl'0uJent.
THE M. E.
FLANNERY tI. THE MEDUSA.. CENTER 11. THE
(District Court, E. D. ltew York. May 22, 18M.)
CoLLISION-STBAM AND SUL-PLEASURB YACIJT-DUTT OJ'
A steam-vessel is under the same obligation to avoid a sailing yactLt as any other vessel under sail.
In Admiralty. Suit to recover damages caused by collision. Hyland « Zttbmkie, for the M. E. Staples. Julian B. Shope, for the Medusa.
BENEDICT, J. At the time of the collision which gave rise to this action the sloop yacht Medusa and the tug M. E. Staples were proceeding down the New York bay above the Narrows, on crossing courses. The yacht, being a sailing vessel, had the right to hold her course, and it was the
IBeported b;y Edward G. Benediot, Esq., of the New York br.r..