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entitled to a large amount of freight, but the master might be entitled 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 payment of 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 in 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 Yorkshireman, 2 Hagg. 30, note.
In 1860, The Canada, Lushington, 584, was decided. That vessel was carrying cargo from Cadiz to St. Johns, under a charter to carry timber from Quebec to England. She was totally lost by a collision on the voyage to St. Johns. The
owners obtained a judgment in 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 ner loss was in process of earning. In The Rebecca, 1 B. & 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 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 not a 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
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 voyage;" 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. Restitutio in integrum 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 of the ship was total or partial, in the opinion of the court, the net profits which the libellants would have realized from the agreement for her employment, for the season under which she was sailing, were properly allowed by the assessor as part 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 complete it without subjecting himself to a claim for damages. The report finds "it was a profitable contract for the Hope to the extent of $150," if she had not been prevented from earning it by the wrong-doing of the Freddie L. Porter. The case, therefore, is within the principle of The Canada and The Consett, and the claim for the net profits of the contract for employment for the season was rightfully allowed.
The only 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 entered upon 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 cases the vessel was at the time of the loss sailing on an intermediate voyage to a port of destination, where her charter was to commence, 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 tends to sus
tain the claim of the libellants, as the Hope was sailing under the contract and earning the freight stipulated at the time of her destruction.
The libellants object to the sum of $950 allowed by the assessor as the value of the vessel. The testimony produced on this point before the assessor accompanies his report. It is sufficient to remark, that the usual conflict upon the value of a lost vessel exists; the estimates on the one side and the other varying from $750-to $2,600. The assessor is a man of large experience in such affairs, and no man in this state is better qualified to judge of such property. He has been a ship-master for many years, and of late a ship-broker and marine 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 description 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.
ROSENTHAL v. THE BARK DIE GARTENLAUBE, etc.
(District Court, 8. D. New York. October 15, 1880.)
1. MARITIME LIEN-CLOTHING FURNISHED SEAMEN.
Clothing furnished seamen do not become a lien upon the vessel, 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.
CHOATE, D. J. This is a libel brought against a foreign vessel to recover the price of certain clothing furnished to two of the crew while the vessel was lying in this port. The libel alleges that the vessel was “in need of materials and supplies, whereupon the libellant, at the request of her master, did furnish to and for the said vessel wearing apparel for the ship's slop chest, and clothing and materials for her crew, amounting in value to $55.50, which sum said master promised and agreed to pay;" that they were “furnished on the credit of the vessel, and became a lien thereon." The testimony on the part of the libellant tends to show the following facts: The vessel was in Brooklyn, discharging or about to discharge her cargo, when the libellant, a clothier, sent a man whom he employed, among other things, for soliciting business, to the vessel. This man saw the captain, and asked him if he could supply the sailors with clothing. The captain said he could if he would allow him, the captain, 10 per cent., and the captain said that he could supply each of the men to the amount of $50; that they had been on board a good while, and had plenty of money coming to them. The man agreed to pay the captain 10 per cent., and the captain said he would be responsible for the bills. Thereupon the man went among the sailors and asked them if they wanted clothing. Two of them said they did, but they had no money. The man went aft with them to the captain, who said they could have it to the amount of $50 apiece. Then the two sailors went with libellant's man to his store and selected clothing to the amount, together, of $55.50, which was sent the next day to the vessel and delivered to the captain, who gave it to the sailors.
At the time of the delivery the captain promised to pay the bill when the cargo was out. The libellant called on the captain several times for payment, but was put off on the pretext that he had not received his freight. He also told the libellant that the vessel was coming over to New York, where he should charter her for Valparaiso. Finally, the captain said he would pay the bill if the libellant would allow him 30