THE BEATRICE HAVENER. CROWELL6t
'/1. THE BEATRICE HAVENER.
(Dr.swtct Oourt,E. D. Nuw York.
March 24:, 1892.)
A vessel carrying her owner's goods only is not earning any freight as a sept arate interest; hence when she is lost at sea by collision her owner cannot recover, as for loss of freight, the estimated amount that such a vessel could have been cbartered for to carry a similar cargo on a similar voyage. The proper rule of 1nt is satisfied by taking the market value of the veSt port at the time she was devoted to the voyage, with interest sel at htir thereon, together with her stores, wages, and any other items of expense reason· ably for the voyage up to the tilDe of loss, with interest.
CARRYING OWNER'S GOODs-Loss Oll' VOYAGE-DAMAGES-How ASC1!:RTAINED-FREIGHT.
In Admir81ty. On exceptions to commissioner's report. Carter .&:. Ud'!lard,.for libelants. Owe-n,Gra'll&: Sturgis, for claimant.
BROWN, District Judge. Upon the reference to the commissioner to take proof of the libelallts' damage from the collision in the above cause, it appeared that at the time of collision the libelants' vessel, the Ethel A. Merritt, was bound upon a voyage from Philadelphia to St. Andrews, canyinp; the libelants' own goods exclusively. Besides the value of the vessel and cargo, the libelants have been allowed, as for loss of freight, the amount for which it was' estimated that such a vessel could have been chartered to carry It . similar cargo, less the estimated expenses of completing the voyage from the time of collision. If the vessel had been under charter, the loss of freight would have been computed and allowed for in that way. Exception hilS been taken, however, to that mode of elltimating the damage in the present case, because there was no charte:r in fact, and henoe no basis for applying that mode of . ascertaining the libelants' damage. The exception, I think, must be ,sustained. When freight has been allowed as a.nitem of damage, it is because the owner had a distinct interest sepa.rat.efrom the vessel, .known as "freight," arising out of some contract or under which freight as such was being earned; and the allowance was for the loss of that distinct interest. Such a distinct interest may accrue either under a charter that covers the whole ship, or under bills of lading, which are in effect charters of portions of the ship's carrying capacity. Such contracts create a definite, valuable interest; and when they are destroyed by the defendant's fault, the libelant is entitled to indemnity for that specific loss. But it is inadmissible, as it seems to me, to resort to the fiction of an imagined charter, when the libelants are transporting their own cargo. Under the liberal construction of policies of insurance, where the parties insure" freight" and pay a premium on "freight," a "n'asonable freight" has sometimes been deemed covered in favor of owners
THE BEATRICE HAVENER.
carrying their own cargo; because otherwise the intent of the insurance would be lost, and the common object be defeated. Flint v. Flemyng, 1 Barn. & Ado!. 45. But in cases of tort, there is no contractual relation; no question of the construction and intent of a contract arises, but only the question of indemnity to the injured party. While the general rule is that the indemnity shall be as complete as the nature of the case admits of, yet it is well settled that mere anticipated profits are excluded. The Scotland, 105 U. S. 24-35; The Oity of Alexandria, 40 Fed. Rep. 697; The City of New York, 23 Fed. Rep. 619. In collision causes the price of gMdsat the place of destination is on that ground excluded as incoinpetent,and only the price at the port of departure is allowed, withjntel'est an4 any incidental expenses. " ' In the absence of any charter or bill of lading, and of any contract whiph migllt furnish a basis for any indepE:lndent employment of the ship, or earning of "freight" as such, I do not feel at liberty to adopt any different rule, or to depart from the in the 'case of goods. The compensation for which the ship-owners look in the employment of their vessel to carry their own goods' is solely in the pectation olthe enhanced value of the goods at the place of discharge; and if that expectation of enhanced value cannot be considered in determining the owner's loss on the goods, I do not see how it canoe any the more considered as regards the loss of the ship, either directly or indirectly. Nor is that necessary, nor is the supposition of a fictitious charter necessary, in order to satisfy the rule of restitutio in integrum. That rule will be fully satisfied by allowing to the libelants, as in the pase of wholly lost at sea, the market value of their vessel at the port of sailing at the time she was devoted to the voyage, with interest from that date; and in addition thereto, whatever stores or special equipment of any kind may have been provided for the voyage, including the wages of officers and men from the time they were engaged, as well as any other items of expense, if any, reasonably incurred for the prosecution of the voyage up to the time of loss, with interest on such sums from the time they were supplied or paid. This rule will fully idemnify the libelants for their actual loss of the voyage, while excluding, as is necessary, all merely anticipated profits. Upon the widely divergent testimony concerning the value of the steamer, I am not satisfied that I could arrive at any better judgment than that of the commissioner; and I shall not, therefore, disturb his finding in that respect. If the parties do not agree upon a modified Bnm in lieu of that allowed for freight, the matter will be referred back to the commissioner for readjustment in accordance herewith.
WISE tJ. THE CASSIE
. CCCf'CUCt Cwn qf
B'oUrch Circuit.. Aprn U. 1.>
L OoLLlltox-STBJ.JI ,um B.uL-LtGB'l'J,· A steamermoYing at midnight in the opeilllea, on a course B. W. J( W., aDd, proaohlng* schooner moving on a COUrBe N. E. by E., paBBeB the pohit tion otoour"E>I just befo." tohe 8Ohooner reacheB it, anel; Beeingthe schooner'B greea Jight, putll het helm hard'a-port; thereby produolDr. oo1llBiol1 with the aohool1e1', held, the BteaInerW81 in fault. i. ' ,. . , .. S....-Inl\lRnTt01UL . , ,.; Beetion 4284; Rev; Bt. U. B. requiring Ban·veBBels to show torch.llgbtll on the proaoh f Bteamel'B at night, does no.t apply, since the adoption Of. the internationill rules of navigation of \'eBsea upqn the high Beas or coast.-watera.
.. 84m1-J:',UU:tL:BL 4ND OBLIQUB COUBBliIfi,'·
.A. maneu'Vet which would havebeelt a proper one as to veBBels approaching each otber on parallel COllI'IIMm&y be a fatal one. if the velllelar.re movinr on OOUl'Ml obliquely intersecting. ' (Su&labua bU t1wi Ooun.)
Appeal from the Cil,'Cuit CQurt of the :United States for the District of Maryland. ' , In .'. ,., Foster (Jama Thomson, of counsel,) for appellant. Robert s,nith,. for appellees. Before FUUtEit, Justice, and HUGHES, Judge.
OPINIONB'Y' JUDGE HUGHllB.
A collision occurred between the Jteamer Lepanto and the schooner O. F. Bronson, 25 m.ilessouth of Long island, in the Atlantic ocean, shortly half·past 12 o'clook on the night of the 22d-23d April, 1890, from ass6S!leiatabout $10,000, and the which the schoQner sustained amount. Libel was filed in besteamer damagM claimed to the answered, and a cross-libel filed. The half of the sohooner, C)f MarylanQ. the libelant, the circuit court afdistriot firmed that decree, and the case has been appealed to this court. . The collisioIl,OCOurrn4 on:8 :clear Bight;; the deck officer of the steamer LepantQdescriQt!d .it '.$i '!fine, very fine, starlight" night. WitJ;lesses -everally say that objects coulc;!; seen at 2, 3, 4;, 6; and 6 miles distanto The Lepanto was running, half.laden, 10 to 11 miles an hour, on a course S. W. i W., and was first seen by the schooner when at a distance of 5 or 6 miles. She registers 1,489 and carries 3,000 tons. Her dimensions are not given. The Bronson is a four-masted schoone.r of 183 feet keel, 40 feet beam, and 2,000 registered tonnage. She was laden with 1,789 tons of coal. She was on a course N. E. by E., with