Myers v. The Harriet

17 F. Cas. 1116, 1848 U.S. Dist. LEXIS 63

Opinion

OPINION OF THE COURT.

General average is not allowed except when the vessel went to a port of necessity, from which its voyage was afterwards resumed.

, 2. That freight is not earned if the voyage is abandoned by the delict of the ship or master.

3. The captain was not justified in making sale of the cargo at Kingston. It does not appear that he made any exertion to obtain funds by the hypothecation of the vessel or by any maritime contract. Cln order to justify a sale of the cargo, the necessity must be absolute and unequivocal or the sale is a tort. The captain sold the cargo, not only to pay the repairs, but because he had determined the voyage should be broken up. It appears that one-half of the amount brought by the cargo would have been sufficient to pay all the repairs — even if such a course were allowable. The sale was without excuse. The cargo was not perishable, and the master has no right to dispose of the property of the shipper for the sole benefit of the shipowner. The goods appear to have been disposed of solely for the benefit of the transporter. The rule is, where the sale of the cargo is allowable, that no more shall be sold than is necessary, so that the remainder may be carried to its place of destination by another vessel.

4. The rule determining the amount of damages is the value of the cargo at the place of shipment, all expenses and interest from the time of shipment. If the libelant claims more than this, or the defendant asks to ne charged less, they must clearly and unequivocally show that the goods would, at the place of destination, bring the amount claimed to be the proper value.

Decree for libelants.

It is referred to the commissioner to ascertain the amount.

The defendant afterwards obtained leave to appeal to the circuit court.