FEDERAL REPORTER.
THE
HOPE AND FREDDIE
L.
PORTER.·
(District CQUrt, 1.
Maine.
DeceJ;nber, 1880.)
COLJ.JSION-DAMAGES-UNEAltNED FREIGHT.
A vessel, chartered for a fixed term of time, was totally IOBt by collision, while in the performance of her employment, and before the contract had expired. that the owners were entitled to recover, as damages, the net profits which they would have reaIiieil. under the agreement, for the whole period, if the vessel had not been lost:-[ED.
Fox, D.;J. The Freddie fl. Porter having .been held aooountable iorthe loss of the Hope, the oase is now presented on in the matter of damexoeptions to the report of ages. The report finds that "at the time of her loss the Hope WM employed in oarrying stone for the season, by 'a verbal oontraot, and that at the oloseo£ the eeason her owners would have reoeived $450 for their proportion of the.net earnings £rOUl.. the date of ,the loss.", The value ,the Hope is fixed at $950, and these two sums, amounting to $1,400,are lowed by the assessor as damages sustained by her owners from the oollision, with interest from suoh date all the court may deem: equitable. The assessor ha.sals() ,filed with ,his report the,testimony, as taken from his minutes, which he admits are not full and complete. As reported, the e,vidence does not warrant the was hired for the seafinding of the assessor "that son," and the parties that, instead of recommitting the report, the witness, sh()uld be recalled and examined before me upon this point. "i It, is suffioient to remark that his testimony,. now given, fully sustains this finding "that the Hope was sailing, at the time of the loss, under a legal contract for her employment during the entire season, the net profits from which, to her owners, would have amounted to $450." Exception is made as to the allowance of $450 for the owners' share of her earnings from the date of the loss to the ""See 3 FED. REP.
89.
THE HOPE.
close of the season, the contract for her employment during that time. In cases of a partial loss of the vessel by collision, the authorities, both in England and this country, at the present day, agree in allowing as damages :against the wrong-doer the profits which would have accrued from a beneficial charter. One of the' latest is The GOrl,8ett, 5 Probate Div. 229, decided in June last by Sir RobertPhillimore. She was in ballast, on a voyage from Antwerp to Montreal, to load a cargo of grain. The collision occurred the tenth of October, and she was compelled -to put into Queenstown for repairs. The charter was a. profitable one; and the owners of the ship did not abandon it until it became apparent the ship 'could not be repaired in season to resume her voyage and perform her charter. The court decided that the abandonment of the charter was justifiable, and that the profit ·of the charter being thereby, lost was damage for ,which the appellants were liable. At the time of the collision the ship was not earning any freight,but she was bound, in to a port where she was to ·receive a cargo on board and transport theaame to Europe, and by so doing would. have made a profitable voyage. .There was the contingency in the first place of her ever reaching Montreal; and, secondly, of her ·charterers being ready to fUniishher with a cargo in accord· ance with their agreement; and, lastly, whether she would 4tccomplish the homeward voyage and earn her freight; but the court of ·admiralty held that,notwithstanding Bueh contingencies, the loss of the profit ffrom the charter; by reason ·of the collision, was so direct .all-d'cert8iinthat the guilty- party was chargeable for the loss thus sustained from his negligence. Where the vessel was sunk; 'and became a total 10Slh this principle has not always received the approval of admiralty court. In 1849, in 3 W. Rob. 164, (The G{)lumbusi) .Dr. Lushington said: for instance, that .this .ves.sel had Qeen an .East, Indiaman, bound on her outward voy:age tu the East Indies, .with .a valuable cargo on board,- fc;>r -the trausport.ation af whichl'naL,only would· the ownersb.fl ' .
824
entitled to a large amount of freight, but the master might be to considerable contingent profits from the allowances made to him upon such a voyage. Could this court take upon itself to decide upon the amount of these contingencies, and to decree the paymentdf the same, in addition to the payment of the full value of the ship ? I am clearly of the opinion that it could not. The true rule of law in such a case would, I conceive, be this, namely: to calculate the value of the property destroyed at the time of the loss, and to pay it to the owners as a full indemnity> to them for all that may have happened, without entering for a moment into any other consideration. If the principle to the contrary, contended for by the owners of the smack in this case, were once admitted,· I see no limit, in its application, to the difficulties which would be enforced upon the court. It would extend to almost endless ramifications, and ill every case I might be called upon to determine, not only the value of the ship, but the profits to be derived on the voyage in which she might be engaged, and, indeed, even to those of the return voyage, which might be said to have been defeated by the collision." In this case the court only allowed the value of the ship, and denied the claim of the master for the wages or average profits he would have earned from time of collision, 1 Parsons on Ship. & Adm. 540, 541, note. Notwithstanding this positive language of one of the most learned among the 'judges of the high court of admiralty, it is found that, in some instances, that court has not conformed to these views. In the Betsey Carnes, 2 Hagg. 28, a smack was run down through negligence, while engaged in rendering salvage service to another vessel, and Lord Stowell allowed, in addition to the value of the smack, damages for the loss of the expected salvage reward. See, also, The Yorkshire man, 2 Hagg. 30,note. In 1860, The Canada, 'Lushington, 584, was decided. That vessel was carrying cargo from Cadiz to St. Johns, under a chartar to carry timber from Quebec to England. She was totally lost by a collision on the voyage to St. Johns. The
THE ROPE.
825
owners obtained a judgmentin the court of admiralty, and the damages were referred to the registrar and merchants. The registrar, in his reasons annexed· to his report, stated: "The principle which has always governed our decisions in cases of this description is to allow the gross freight, less the charges which would have been. necessarily incurred in carrying such freight, and which were saved to the owners by the· accident." The admiralty courts in this .country do not recognize the. distinction between cases of total and partial loss in fixing the damages caused by a. collision, but. in both cases they allow, . as part of the damages, the net freight· which the ship at the time of her loss was in process of earning; In The Rebeeca, IB. & H. 356, Judge Betts' allowed damages to the full value of the vessel and freight, although she was a total loss. In 2 Ben. 228, which was a case of total loss,. Blatchford, C.J., says: "The vessel having been in the act of earning freight, the freight which she was thus in the act of earning and was lost by collision is allowed as a just measure of compensation." In support of this, he cites The Gazelle, 2 Wm. Rob. 279, and Williamson v. Barrett, 13 How. 101, neither. of which were cases of total loss, as the injured vessel was repaired. The learned judge also refers to one of his own decisions, (The Heroine, 1 Ben. 227,) in which he says: "Upon the well-settled principle of allowing to the injured party as damages, in cases of collision, an indemnity to the extent of the loss sustained, the freight which the injured vessel was in the act of earning and has lost, is allowed as a. just measure of compensation, but this must be net and not gross freight." In that case the libel claimed for the loss of the vessel, but the report does not show whether she was or nota total loss· The question here presented was before the supreme court of the United States in The Baltimore, 8 Wall. 386. Judge Clifford there states as the rule: "If the vessel of the libellant is totally lost, the rule of damage is the market value of the vessel at the time of her destruction. Allowance for freight is made in such case, reckoning the gross freight, .less the
826
FEDERLL REPORTER.
charges, which would necessarily:have been incurred in earn· ing the same, and which were saved to the owner by the accident, together with interest on the same from the date of the probable termination of the vpyage;" referring to and adopting the rule as: stated by the registrar in The Canada, before cited.' The Cayuga, 14 Wall. 278; 4- FED. REP. 928. Restitutioiriinterrrum being the rule in cases of this .:nature, and the wrong-doer, by the weight of authority, being held to make good all the damages sustained by reason of his fault, whether the loss ofthe ship was total'orpartial, in the opinion of the court, the net profits· which the . libel1ants would have realized from the agreement for her employment, tor the season under which she were properly allowed by the assessor aspurt'of the damages. This contract was obligatory on both parties, according to the report of the assessor and the additional testimony, and neither party could refuse to completeif without subjecting himself to a claim for damages. report'finds "it was a profitable contract for the Hope to theex'tent of $450/'if she had not been prevented from earning it by the wrong-doing of the Freddie L.Porter. The case, therefoie, is· within the principle of The Canada and The Consett, an;d the claim for the net profits of the contract for employment for·the season was rightfully allowed. The ollly distinction between these cases and the present, waiving the question of total or partial loss, is that here the hiring of'the Hope was for a fixed term of time instead of her being chartered for a single trip. This contract she had enteredupon and in part completed; nearly one-half of the time of her employment had expired, and she was in the performance of it at the time of her destruction, while in the other case&the vessel was at the time of the loss sailing on an intermediate voyage to a port of destination, where her charter was to' <lommence, and she was to receive a cargo in accordance with her charter. In the opinion of the court, this difference does not afford any support to the claim of the schooner that the right to recover for the loss of freight is too remote and contingent to be allowed, but rather tendB to BUB-
ROSENTHAL
v.
BARl!: DIE GARTENLAUBE.
827
tain the claim of. the llbellants, s'sthe Hope was sailing under the and earning the' freight stipulated at the time of' her destruction. The libellants 6bJed to the sum of $950 allowed by the assessor as the value of the vessel. T·be testimony produced on this point ,before the asSessor accompanies his report. It is sufficient to remark,thltt the usual conflict upon the value of a lost vessel exists; the estimates on the One side and other varying from $750to i $2,600:' The assessor is a mati of large experience in such affairs, and no man in this state is better qualified to judge of sucb property. He 'has ,been a ship-master for many years, and of 'late a ship-broker and ma.rine insurance agent, and has had great experience as an average adjuster and appraiser of vessels. ' He stated to the court that he had had some acquaintance with vessels of the dElscription of the Hope and of their value. The court is satisfied with the value he has placed upon this vessel, and his report is therefore accepted and all objections are overruled.
THE BARK DIE GARTENLAUBE,
etc.
(District Oom't, S. D. NeAJJ York. October 15,1880.) 1. MARITIME LIEN-CLOTHING FURNISHED SEAMEN.
Clothing furnished seamen do not become a lien upon the veBsel, unless needed by the seamen, and essential to the prosecution of the voyage. 2. WAGES-COLLUSION WITH MASTER TO CHEAT SEAMEN.
A party colluding with a master to cheat seamen out of a part of their wages, or to induce them to apply their wages in anticipation , of payment to any purpose, not shown to be for their own good, will receive no relief in a court of, admiralty.-[Ed.
In Admiralty. W. B. Beebe, for libellant. Hill, Wing rt Shoudy, for claimants.