-

result from it. For profits anticipated beyond the voyage upon which the ship is engaged, the weight of authority is clearly against recovery. There must of necessity be some limit beyond which recovery for prospective profits cannot be permitted beyond which inquiry as to probable results would partake too much of the fanciful and speculative to afford a safe guide to conclusions. In the absence of a better limitation of inquiry, the courts have limited recovery to the voyage entered upon when collision occurs, and only then upon proof so clear that it is divested of all substantial doubts that, had the collision not occurred, profits for the voyage would have resulted to the ship.2

Sec. 203. Damage to cargo.- For injury to the cargo of a vessel in collision the cargo shares the fate of the vessel on which it is shipped, and recovery against the offending ship can only be had when the circumstances are such as entitle the carrying vessel to recover for injuries sustained by it. While the owner of the cargo may be an innocent party and not participate in the navigation of the ship, yet his goods are affected by its conduct, and he can recover

1 Jolly v. The Terre Haute Drawbridge Co., 6 McLean, 237; La Champagne, 53 Fed. R. 398.

In the case of The Freddie L. Porter, 5 Fed. R. 822; 8 Fed. R. 170, it was held that the net profits which the libelants would have realized from the agreement for the employment of the lost vessel, for the season under which it was sailing, was a proper allowance for part of the damages sustained.

It is not necessary, to entitle recovery, that the ship should at the date of loss be earning freight. In the case of The Cousett, 5 Prob. Div. 229, the vessel was in ballast, on a voyage from Antwerp to Montreal, to load grain, the char

ter being a profitable one, and which had to be abandoned by reason of the collision. The court held that recovery could be had for the net profits that would have been realized by its completion but for the collision.

In the case of The Iberia, 46 Fed. R. 301, a vessel under charter which ended at New York was sunk before reaching that place. Before the collision she had been rechartered on her arrival at New York to take a cargo to the port of Cadiz. Held, that recovery for freight from New York to Cadiz could be maintained.

Duggins v. Watson, 15 Ark. 118.

only when it can recover for the damages inflicted. The inability of the cargo owners to recover from the other vessel, when the carrying vessel is at fault, does not prevent a recovery from the latter for all the damages the cargo sustains by reason of its misconduct. Where one or both vessels are at fault the owners of the cargo may sue both jointly or each severally, as may be preferred. Where, however, the cargo owner sues jointly and recovers judgment, it has been held that such judgment is a bar to an action against them severally; and where suit is brought against the offending vessels severally and judgment rendered, the several judgment is a bar to an action jointly. Where injury is done to the cargo and expense is incurred in caring for and rescuing it, such expense, if the charge is reasonable, is a proper item of damage.2

In determining the value of the cargo the measure of damages is determined by adding to its cost at the place of shipment the cost of loading and the cost of transportation to the place of injury. The market price at the port of destination, and the probable profits there would have accrued but for the loss, are considered as too remote for computation, and the courts refrain from entering into their consideration. The application of the general rule confining the

1 Murray v. Lovejoy, 2 Cliff. 191. 2 The Alexandria, 10 Ben. 101. In case of mutual fault each vessel is liable in solido for the full amount of damages to the cargo of either. The Britannia, 39 Fed. R. 395.

3 Guibert & Sons v. The British Ship George Bell, 3 Fed. R. 581; The Amiable Nancy, 3 Wheat. 546; The Lively, 1 Gall. 315; Smith v. Coudry, 1 How. 28; The Vaughn and The Telegraph, 14 Wall. 258; The Aleppo, 7 Ben. 120; The City of New York, 23 Fed. R. 616; The Umbria, 46 Fed. R. 927; 59 Fed. R.

489; The Mary J. Vaughn, 2 Ben. 47; Dyer v. National Steam Nav. Co., 14 Blatch. 483; The Ocean Queen, 5 Blatch. 493.

Where the owner of a cargo endeavored to recover for delay in its delivery, the market for the goods being passed by reason of the ship's delay through collision, it was held that the price at the port of shipment was the price by which damages should be estimated, and that no recovery could be had for loss of market price at the port of destination. Smith v. Coudry, 1 How. 28.

value of the cargo to the prime cost at the place of shipment, and excluding all conjectural profits, is often a difficult matter. To apply the general rule in such a manner as to exclude profits, but so as not to deny substantial restitution to the injured party, is often a difficult matter, and the courts have adopted much ingenuity in the application of the rule. In the case of cargoes accumulated at sea, often representing large expenditures of capital, time, labor and risk, the courts, in the absence of an established value, there being no port of shipment, have adopted the market value of the product at a place where it has a market value, after deducting the expenses of transportation thither.'

Sec. 204. Demurrage.— Damages chargeable to the vessel at fault are not limited to actual injuries to the vessel, nor to the actual amount of money necessary to restore it to its former condition. Such a limitation of damages would manifestly work a hardship where the damaged vessel is at the time engaged in a lucrative trade, which it is obliged to forego by reason of the wrong-doing of the other. The object sought to be attained by the admiralty courts is a restitution of the injured party to its original condition, as nearly as may be, with the least loss possible to the innocent ship.2

1 Bourne v. Ashley, 1 Low. 27; Bartlett v. Budd, 1 Low. 223; Taber v. Jenny, 1 Sprague, 315; Swift v. Brownell, Holmes, 867; Dyer v. National Steam Nav. Co., 14 Blatch. 483.

Where two vessels were in collision and one of them sunk and its cargo was a total loss, and both vessels were adjudged mutually in fault, it was held that the owners of the sunken vessel were bound, as between themselves and the owners of the other, to contribute for the cargo lost out of the damages due them for the loss of their

vessel; and the owners of the remaining ship, on a decree against them for the full value of the lost cargo, were entitled to retain out of the share coming to the owner of the lost vessel their proportion of the amount to be contributed by the lost vessel for damages to its cargo. Duncan v. The C. H. Foster, 1 Fed. R. 733.

2 The Cayuga, 14 Wall. 270; The Rhode Island, Abb. Adm. 100; The Blossom, Olc. 188; The New Jersey, Olc. 444; The Fannie Tuthill, 17 Fed. R. 87; Cannon v. The Potomac, 3 Woods, 158; The Baltic, 3 Ben.

To attain which, the injured party may recover for the loss of the use and services of his vessel during the period of repairs, such reasonable allowance for detention as the vessel is shown to have lost for the time when it otherwise could have been profitably engaged. Where the injured vessel is employed at the time of the collision, or where it appears that it would have been beneficially employed during the period of its detention, whatever actual loss is shown to have been incurred by reason of the interruption of its engagements by the collision may be recovered of the vessel or party at fault. The damages thus sustained must, however, be the direct and certain result of the injury, and not a remote or uncertain effect, and must be shown to be the reasonable value of the net earnings of the ship for the time actually detained. The court will not allow an exaggerated claim for demurrage, nor one greatly in excess of the reasonable value of the services of the vessel for the period of detention.3

When the proof clearly shows that at the time of the collision the ship was chartered for a definite length of time at a price above the current rates, no reason can be urged why the claim should not be allowed, although the damages sustained are greater than they would be at the current price for ships of its class.*

The measure of damages in all cases is the net amount

195; The Thomas Kiley, 3 Ben. 228; Coffin v. The Osceola, 34 Fed. R. 921; The Potomac, 105 U. S. 630.

1 The Fannie Tuthill, 17 Fed. R. 87; Williamson v. Barrett, 13 How. 101; Sturgis v. Clough, 1 Wall. 269; The Cayuga, 2 Ben. 125; 14 Wall. 270; The Joseph Nixon v. The George Lysle, 2 Fed. R. 259; The State of California, 54 Fed. R. 404.

2 Williamson v. Barrett, 13 How. 101; The Cayuga. 7 Blatch. 385; The Joseph Nixon, 2 Fed. R. 259; The Stromless, 1 Low. 153; The

Margaret J. Sanford, 37 Fed. R. 148.

Where a vessel damaged by collision became fast in the ice, by reason of which it was unable to reach a dry-dock for repairs, held, that demurrage for such detention should not be allowed, the detention not being the direct result of the collision. The Mina A. Reed, 30 Fed. R. 287.

3 The Excelsior, 17 Fed. R. 924. 4 The Margaret J. Sanford, 37 Fed. R. 148.

which the vessel could have earned during the period of detention plus the expenses actually incurred. It is the amount the vessel is worth to the owner during the period of detention, and not the market value of the ship's services.1 It is only when there is no fixed charter rate that resort is properly had to the opinions and estimates of witnesses to fix a value; nor is an amount computed on the value of the vessel detained a proper measure of damages, where it is shown that the vessel is chartered at a rate in excess of the market price. Where the charter-party provides a rate of demurrage, the courts hold that such provision affords no exclusive rule for the determination of the damages incurred.3 It often happens that the vessel-owner, for reasons of a special nature, in the charter-party provides for a smaller rate of damages for detention than the vessel would otherwise be entitled to. While this rate of demurrage might be binding between the parties to the contract, no logical reason can be urged why this rate of damages should be extended to a wrong-doer, a stranger to the charter-party. In such cases, as in all others not provided for by special contract, the loss actually incurred is the measure of damages. Nor is the general demurrage rate prevailing or generally accepted by

1 Grubbs v. The John C. Fisher, 22 Pitts. L. J. 122; The Cayuga, 14 Wall. 270; 7 Blatch. 391; The Favorite, 18 Wall. 598; The Emma Kate Ross, 46 Fed. R. 872; 50 Fed. R. 845.

In The Emma Kate Ross, 50 Fed. R. 845, the circuit court of appeals for the third circuit modify the decision in 46 Fed. R. 872, in this respect. When another vessel is substituted in place of the one damaged, the measure of damage is the cost of the one substituted, and not the value of the damaged vessel, computed on a basis of her charter contracts during the period of detention.

2 The R. L. Maybey, 4 Blatch. 439; Williamson v. Barrett, 13 How. 101.

3 The Hermann, 4 Blatch. 441. 4 The Sam Brown, 29 Fed. R. 650. In the case of The Margaret J. Sanford, 37 Fed. R. 148, it was held that neither the demurrage rate specified in the charter, nor the customary demurrage rates at the port of New York, supplied a satisfactory criterion by which to determine the amount of the damages sustained by detention, where it appeared by the evidence that the vessel would have earned $70 per day over and above expenses, the charter stipulations being for de