YOUNG V. UNION INS. CO.
279
the validity of the plaintiff's patent need not be passed upon. The evidence does not satisfy us that the respondent's plaque is an infringement. We are not convinced that the materials used are the same as those employed by the plaintiff. The testimony relied upon by the plaintiff is inconclusive, and should not, therefore, be held to overcome the presumption arising from the contrary judgment pronounced by the patent-office. The bills must be dismissed.
YOUNG
v.
UNION INS.
Co.
(Dl8trict Court, N. D. Illinois.
June IS, ISSS.}
1.
When the legal title to a vessel is wholly in a party as trustee, he may insure ;,er for the use of his beneficiary. 2. SAME - RIGHT TO ABANDON - Loss IN EXCESS OF HALli' AMOUNT INSUREDWhen a vessel has stranded, the insured may add the cost of repaIrs to the cost of getting her off the beach, and getting her to a port of safety and repair, for the purpose of making such an alUount as to equal or exceed half the alUount insured. STRANDED VESSEL-ADDING ExPENSE OF HEPAIRS AND COST OF GETTING VESSEL AFLOAT.
MARINE INSURANCE-INSURABLE INTEREST-TRUST.
3.
SAME-DELAY Oli' INSURED IN GIVING NOTICE OF AnANDONM"NT.
When the delayof the insured in giving notice of abandonment has not prejudiced the insurer, such delay will not impair or affect the rights of the insured.,
4.
Where the underwriter takes possession of insured property under the" sue and labor" clause in a policy, for the purpose of saving, and, if necessary, repairing the properly, he must make reparation and return within a reasouable , time, or he mr.kes the property hiS own, and is HaLle for a tolalloss.
SAME-"SUE AND LABOR" CLAUSE IN POLICy-UNDEUWRITER TAKING POSSESBION-COJliSTHUCTION-ToTAL Loss.
In Admiralty. W. L. Mitchell and G. D. Van Dyke, for libelant. Schuyler et Kremer, for respondent. BLODGETT, J. In this case, libelant seeks to hold respondent for a constructive total loss upou a policy, by which respondent insured to libelant a half-interest in the schooner H. D. Moore, her tackle, apparel, and furniture, for the sum of $2,500, against the perils of navigation upon the lakes, rivers, etc., from the first day of April, 1883, to the thirtieth day of November of that year; loss payable to libelant or to his order. The defenses set up are: (1) That libelant had no insurable interest in the schooner, but that he held the legal title as naked trustee for one James T. Young; (2) that, under the facts in the case, and the terms of the contract of insuraLce, the libelant was not entitled to abandon the schooner as for a constructive total loss; and respondent is not liable on said policy for such loss.
280
FEDERAL REPORTER.
There is little, if any, conflict in the testimony as to the material facts of the case. It is undisputed that, in March, 1880, James T. Young and one James McMullen purchased the schooner in question from H. D. Moore, each paying one-half the price; that said James T. Young directed that his interest in the purchase should be conveyed to the libelant, and accordingly a bill of sale in due form was executed and delivered by Moore to libelant, and the said Mr.NIullen, conveying to each of them an undivided half of said schooner, with her boats, tackle, etc.; that the said James T. Young, from the time of said purchase up to the time of the loss now in question, resided in Chicago, and acted as the manager and ship's husband of said schooner, and had the benefit of the earnings of the half interest stand· ing in the name of libelant; that, at bhe time the policy now in question was taken out, the agents of respondent were fully informed of the fact that the beneficial ownership was in the said James T. Young, and issued said policy with the knowledge and understanding that libelant was acting as trustee for said James T. Young, and insuring his interest. It also appears that on November 13, 1883, and while the policy was in full force, the schooner was stranded in a gale of wind upon the east shore of Lake Michigan near Kilderhouse Pier; that the captain of schooner telegraphed to the said James T. Young the fact that the schooner was so stranded, and said Young promptly communicated his information to Messrs. Keith & Carr, the agents of respondent in Chicago, and also informed them that the services of a tug and steam-pump would be necessary to get her off. On receiving this information Keith & Carr requested Young to telegraph to Manistee and ascertain if a tug could be obtained there, and at what price. Young sent a telegram to Manistee as requested, and received answer that a tug and steam-pump could be had for $185 per day. Keith & Carr then engaged the tug and pump, and sent Capt. Blackburn, their own by rail to meet the tug, and take charge of the work of getting the schooner off. The schooner was got afloat by the aid of the tug and pump on the twenty-first of November, but, while at work upon the Moore, the wreCking-master received instructions from Keith & Carr, respondent's agents, to take the schooner to Northport, about 40 miles from the place where she had been stranded, and then to take the tug to the assistance of another schooner, the Watertown, that had been stranded near Northport. The wrecking-master followed these instructions, and towed the Moore to Northport, which was not a port where she could be repaired, and then went to the relief of the Watertown. Having succeeded in getting the Watertown afloat and towing her also to Northport, Capt. Blackburn, on the seventh of November, attempted to tow the two disabled vessels to Chicago with the tug he had used in getting them afloat; but the weather became so tempestuous that he was obliged to return to Northport, where he laid the Moore up for the winter,
UNION
CO.
281
having employed her captain to remain on board of her as shipkeeper. The proof also shows that the captain of the Moore objected to being taken to Northport, and insisted that he should be towed to a port of repair, or be allowed to sail to Chicago, which he testifies he thinks he could have done with safety; but Blackburn, the wreck· ing-master, told the captain that his orders were to take the schooner to Northport; and he did so against the objections of the captain. In the latter part of February, the libelant was informed that the charges for the services of the tug and steam-pump had not been paid, and that a libel of the schooner for such services was threatened, and was also informed that the schooner was in danger of being damaged by pounding against the pier or dock along which she was moored in Northport harbor, and on the seventh of March, 1884, notice of aban. donment as for a total loss was duly served on the proper agents of respondent, and in apt time thereafter proofs of loss and bill of sale to respondent in due form of all libelant's interest in said schooner, with the consent and by direction of said James T. Young, were duly de. livered, or tendered, to the proper agents of respondent, but respond. ents refused to accept said abandonment. It also appears that, in the latter part of April, the schooner was, by the direction of the agents of respondent, towed from Northport to the port of Chicago, where she arrived on April 30th. Soon after her arrival here, an ex parte survey was made at the instance of the respondent's agents as to the amount of repairs needed to restore the schooner to the condition she was in before the disaster. And after such survey the schooner was taken to a dry-dock here by orders of the agents of respondent, but, owing to some misunderstanding with the proprietors of the dock as to who was to pay for the needed repairs, she was run out of the dock and remained in the river until about May 24th, when she was again, by the direction of respondent's agents, taken into the dock and repaired in substantial accordance with the survey; and on the eleventh of June she was tendered to the libelant as fully restored to her condi· tion prior to the disaster. The libelant refused to receive her for two reasons (1) Because he insisted upon his right of abandonment, and to be paid as for a total loss; and (2) because she was not so fully and completely repaired as to restore her to the same servicea· ble condition she was in before the disaster. It further appears that respondent paid the captain for his services as ship-keeper from the time the schooner was laid up in Northport until she was put into dry-dock, and also paid the wages of seamen employed to assist in navigating the schooner from Northport to Chicago. It also appears that the expense incurred in getting the schooner off the beach and towing her to Northport, and from North· port to Chicago, and the wages of the ship-keeper until she went into dry-dock for repairs, and the wages of the seamen on the trip from Northport to Chicago amounted to $2,463.93, and that the expenses for the repairs amounted to $2,483.37. It is also conceded that at
282
time of the issue of the policy in question, another policy was issued by the Insurance Company of the State of Pennsylvania for the same amount, on the half interest of McMullen, co-owner of the schooner with libelant, and that the whole value of the schooner was fixed by the terms of each policy at $6,500, thus making the owners insurers for $750 each. And also that the same agents, Keith & Carr, represented the insurers in both policies. The proof also shows that at the time the schooner was tendered to the libelant, on June 2d, there were no sails or running rigging upon her, and her anchor was a second-hand one and much lighter than her old anchor, which was lost at the time of the disaster, that her center-board would not work in the box, and that her yawl or small-boat had been lost in the disaster and had not been replaced. It further appears that on August 30, 1884, schooner was again tendered to libelant by respondent, but that while another anchor of substantially the weight and usefulness of the one lost had been placed on board of her, she still had no running rigging, nor sails, nor yawl-boat. The policy in question contains the following clauses, which it becomes material to consider in the light of the facts in the proof: "It is agreed that the acts of the insured, or insurer, or its agent, in recovering, saving, and preserving property insured in case of disaster shall not be considered.. a wai vel', or an acceptance of an abandonment, nor as affirming or denying any liability nnder this policy; but said act shall be considered as done for the benefit of all concerned, and without prejUdice to the right of either party. . "Further, the insured shall not have a right to abandon the vessel in any case,· unless the amount which the insurer would be liable to pay under an adjustment as of a partial loss shall exceed half the amount insured." As to the first point made by the defense, 1 understood at the time of the argument that it waS substantially abandoned, as the proof showed without dispute !hat the insurers were fully advised, at the time this policy was taken out, of the nature of the libelant's interest. and that he intended by such policy to insure the half interest standing in his name, for the benefit of his brother, James T. Young. Whether said point was abandoned or not, I am well satisfied that it is not well taken, as the authorities all seem to concur in the proposition that the legal title being wholly in libelant ae trustee, he had the right to insure the property 80 held by him for the use of his beneficiary. As to the second point made by the defense, the contention is that the insured cannot add the cost of repairs to the cost of getting the schooner off the beach, and getting her to .a port of safety and repairs, for the purpose of making such an amount as to equal or exceed half the amount insured. Without going into a discussion of the somewhat technical learning on the subject of the right of abandonment, either at common law or under the old forms of policy, or under what is known as the "Boston clause," it is sufficient to say that it seems to me the only qlJestion to be considered for the purpose of settling the right of aban-
YQUNG V. U:r."'ION INS. CO.
283
donment under the 50 per cent. clause in this policy is the amount of damage which the owner of the insured property received by reason of the disaster sustained by the schooner; and there can be no doubt from the proof that the damages by reason of the disaster in question consisted, first, in the expense of getting the schooner afloat, and getting her to a port of safety and repair, including the care and keeping of the schooner in the interval between the time she was got afloat and the time she reached a port of repdr, and the cost of repairing her, so as to put her in as good a condition as she was before the disaster; and the proof abundantly shows that, after deducting from the cost of the repairs one-third new for old, and charging to the owner's interest his portion of the salvage expenses, the amount of the salvage expenses and the repairs would equal one·half of the amount insured. It is argued that the owner should havEl exercised his right of abandonment at once when he learned of the disaster to the schooner, and that the insurers having, under what is known as the "sue and labor" clause of this policy, simply taken measures to get the vessel afloat and get her to a place of safety and repair, these expenses are to be adjusted as against all interests by a general average, and only the repairs are to be adjusted upon the basis of a partial loss, or particular average; but such course seems to be neither called for by the spirit or letter of this contract of insurance. The purpose and intent of the policy was to make the insured whole for any damage the schooner might receive from any of the perils insured against, and if such damage exceeded 50 per cent. of the amouIit insured, then the right of abandonment is given; and there can be no dispute but what the expense of getting the vessel off and of the necessary repairs, after making all deductions called for by the policy, more than equals 50 per cent. of the amount insured. I think the conclusion I have arrived at is fully supported by the opinion of Mr. Justice MATTHEWS in Wallace v. Thames &; M. Ins. Go. 22 FED. REP. 66. It is further urged that the insured is chargeable with unreasonable delay in giving his notice of abandonment,-the disaster to the schooner having occurred in November, and the notice of abandonment not having been given until the seventh of March following; but I do not see, under the peculiar facts in this case, how this delay can have worked any injury to the insurer, and. if it did not it seems to me it should not in any way impair or affect the rights of the insured in the premises. If the agents of respondent bad taken the schooner at once, upon getting her afloat, to a port where she could have been repaired, and where a survey could have been made to determine the cost of such repairs, it might have been the duty of the insured to have exercised his right of abandonment at an earlier time or as soon as an intelligent survey could be made, and the amount of damage by the disaster ascertained; but, inasmuch as the schooner in this case was detainea at Northport by the act of the respondent,
284
and against the protest and objection of her master, acting as agent for the owners, so that the insured could not intelligently and fully ascertain the extent of the damage, and the probable cost of repairs, so as to determine the full extent of the damage by reason of the dis. aster; and inasmuch as, at the time the notice of abandonment was given, there was still ample time for the respondent to have repaired the schooner, or sold her without repair for the next season's business,-it seems to me it does not lie in the insurer's mouth to object to the delay. It certainly was not the fault of the owner of this schooner that she was kept from a port of repair and out of the possession of her own owner. What are called "salvage" expenses and the "repair" expenses, when added together, make more than 50 per cent. of the amount insured, and this fact seems to me to give the insured the right of abandonment, unless he has lost it by unreasonable delay; and as I do not see that the delay under the circumstances was unreasonable, it appears to me that the right of abandonment was not lost or waived. It also seems quite clear to me that the underwriters have dealt with this property since the disaster in such manner as to make it their own. From the time the wrecking tug took hold of the schooner to get her off the beach up to the time she was tendered to the libelant and his co-owner on the eleventh of June, 1884, she was continuously in the possession and control of the insurance companies; and when she was tendered, on the eleventh of June, she had not been so repaired as to restore her to the condition in which she was immediately prior to the disaster. The right to repair and return the insured property after disaster implied of itself the obligation to return her in as good condition as she was in before the stranding; and yet the proof shows that no sails or running rigging were tendered with her, nor was her anchor or yawl-boat replaced, as they should have been. After the refusal of the libelant to accept the schooner, instead of promptly completing the reparation, respondent retained the schooner, with. out any apparent excuse, until more than half the season of naviga. tion for that year had gone by, and then made another tender while she was still in an incomplete condition. I think there can be no doubt of the general proposition that where underwriters take pos. session of insured property under the "sue and labor" clause for the purpose of saving, and, if necessary, repairing the property, they must make reparation and return within a reasonable time, or they make the property their own, and are liable as for a total loss ; and, it seems to me, the case is therefore brought clearly, by the facts, within the operation of this principle, and that the insurance companies could not keep this property in their own control for nine months after the disaster and then compel the owners to take it back, especially in an incomplete condition. It was urged that the sails and running rigging of this schooner were stored in a sail loft, and where the owner could readily have
PEARSE V. QUEBEC STEAM-SHIP CO"
285
obtained them without expense for the purpose of putting them in place; but it was the duty of the insurers, who had assumed the task of restoring this vessel to her original condition, to have put her in complete sailing trim before they could compel the owners to accept her from their hands. They were not obliged to seek the sails and rigging where they had been stowed and tal{e the expense or delay of putting them in place, but had the right to insist that this should be done by the insurers as part of the repairs. I am therefore of the opinion that the libelant makes out by the proof in this case a clear right of recovery as for a constructive total loss; and the finding will therefore be for the amount of the policy, with interest after 60 daJ's from the time proofs of loss were sel"Ved.
PEARSE
QUEBEO STEA.M-SHIP
Co.t
(District Court, S. D. New l·OI'k. .Tune 10,1885.)
ABANDONMENT. This suit arose out of damage to cargo on board the steamer Radji in 1880. See Tlte Hadji, 16 FED. REP. 861; affirmed 20 FED. REP. 876. Libelant was the assignee of insurers, who, having paid a partial loss, claimed to be subrogated to the rights of the owners. Respondent objected that there was no subrogation because no abandonment; and hence no title. Hdd, (following Tlte Frank a.Fowler, 8 FED. REP. 360,) that the objection should be ovcrruled. 2. SAME-VOI,UNTARY PAYMENT BY INSUHEH-RWHT OF CARRIER TO QUESTION PAYMENT. As it was held in the case of The Hadji, supra, that the ship was unseaworthy, respondent contended that the payment by the insurer was voluntary, and therefore that the assignee was not entitled to recover in this action. Held, that a carrier who is liable for loss or injury is not entitled to raise that question as between insurer and insured, after the insurer has paid the loss. 8. BILL OF LADING-CONSTRUCTION OF EXEMPTION CLAUSE-" l::lHIP-OWNJ<RS WILL NOT BI!] LIABLE FOR MORE THAN INVOICE VALUE." The bill of lading was for 14 bales, three of which were damaged. It contained the clause that "in case of damage, loss, or non-delivery, the shipowners will,not be liable for more than the invoice value of the goods." The invoice value of the 14 bales was $2,692.16; the price obtained for the whole in the foreign market was $2,901.85. The invoice value of the damaged goods alone was $571.05; the actual price received for them was $184.85. Respondent relied on the analogy of insurance policies, aud the rule that where such policy contains the clause" free from average, unless general," under a certain per cent., the percentage of loss is calculated upon the subject insured as a whole, and that there can be no recovery for loss of a part less than the llgreed percentage calculated on the whole. Hespondent contended, therefore, that as the shipper realized on the whole cargo more than the invoice value, he could not recover the loss on the three packages. IIdd, that the liability of a common carrier is not simply on contract, like the liability of an insurance company, but in tort as well, and arises separately for each item of loss. That the above clause in the bill of lading should be construed according to its natural imp0rt and evident intention, not as a condition of any liability at all, but as a limitation of the extent of the carrier's liability, and as applying distributively upon each article damaged; and that he is to be held liable, in the sense of being account, able, for no more than the invoice value of the goods damaged. For the samo lReported by.l\. D. & Edward G. Benedict, Esqs., of tile New York bar.
reason, also, heZa, that on a partial injury the damage is to be computed on the basis of the invoice value of the goods damaged, and their net proceeds being credited against their invoice price and freight, the carrier is to be held for the difference only.
In Admiralty. Sidney Ohubb, for libelant. Butler, Stillman cf; Hubbard and Wm. Mynderse, for respondent. BROWN, J. The claim of the libelant in this case arises upon the same facts stated in the case of The Hadji, 16 FED. REP. b61. That case, haviQg been affirmed on appeal, (20 FED. REP. 876,) is conclusive in this court as respects the respondent's liability for the loss. The bill of lading here is also the same as in the former case. It provides that "in case of damage, loss, or non-delivery, the ship-owners will not be liable for more than the invoice value of the goods." 1. The libelant claims under an assignment from the insurers, who paid the owner for the ]oss; and the insurers' title rests upon subrogation only to the rights of the owner. As the loss was but partial, there was no abandonment of the goods to the insurers; and it is objected that the libelant's title is not made out, because there is no subrogation, as it is contended, except upon an abandonment. This point was considered by my predecessor, CHOATE, J., in the case of .The Frank G. Fowler, 8 FED. REP. 360, 364, and overruled. 2. A further objection is made that, under the ruling in the case of The Had}i, the insurers were not liable at all; because the defects in the ship that gave rise to the injury were there beld to render the ship unseaworthy for her voyage; and that the insurers' payment of the loss was therefore a voluntary payment, and that their assignee is therefore not entitled to recover anything in this action. It has been repeatedly held, however, that a carrier who is liable for the loss or injury is not entitled to raise that question as between the insurer and the insured after the insurers have paia. the loss. The Sidney, 23 FED. REP. 88, V6, and cases there cited; Sun Mutual Ins. 00. v. Mississippi Valley Transp. 00. 17 FED. REP. 919. 3. The principal question raised is in regard to the amount, if auything, recoverable under the limiting clause of the bill of lading. The bill of lading recites the shipment of 14 bales of goods: three were delivered damaged, and 11 were delivered uninjured, at the port of destination. The go'ods were invoiced at five cents per yard; their value at the place of delivery was six and one-half cents a yard. The three damaged bales upon sale there netted $184.85. Their invoice value was $571.05. Their value at St. Thomas, if sound, would have been $742.36. The adventure as a whole stands as follows: 14 Bales, invoice value Total 11 Bales at 6t cents per yard Th,ree Damaged Bales, net Total Freight
$2,692 16 $2,901 85
$2,717 00 184 8.5
PEARSE V. QUEBEC STEAM-SHIP CO.
287
The respondents contend that the stipulation of the bill of lading should be construed as limiting their responsibility to the invoice value of the shipment as a whole; and that the carriers are not to be liable for any loss or damage, provided the shipper ultimately l'ealizes at the port of destination the whole invoice value. Upon that theory the respondents in this case would not be liable at all, because the owner has realized upon the whole shipment considerably more than the invoice value of the whole, notwithstanding the damage to three of the fourteen bales. In support of this contention, the analogy of insurance policies is adduced, and the construction adopted of the memorandum clause that insurance policies usually contain, ing the goods "free from average, unless general," under a certain per cent. In such cases, it has long been the established law of this country, and it is now the law of England, although for some 50 years, until comparatively recently, the opposite construction there prevailed, that the percentage of loss excepted in the memorandum clause is to be computed upon the subject insured as a whole, and not upon its separate parts, such as cases, packages, or hogsheads; unless the insurance be clearly declared to be made upon each pack. age or case separately. Under this rule, if a hundred boxes of oranges were insured "free from average, unless general," or "free from aver· age under 5 per cent.," and four of the hundred boxes were wholly lost by a sea peril, the remaining 96 being uninjured, no recovery could be had of the insurers for the total loss of the four boxes. Guerlain v. Columbian Ins. Co. 7 Johns. 527; Wadsworth v. Pllcijie Ins. Co. 4 Wend. 33; Biays v. Chesapeake Ins. Co. 7 Crunch, 415; Morean v. U. S. Ins. Co. 1 Wheat. 219; Ralli v. Janson, 6 El. & Bl. 422; Entwisle v. Ellis, 2 Hurl. & N. 549; Newlin v. Insurance Co. 20 Pa. st. 312; Hernandez v. Sun Mutual Ins. Co. 6 Blatchf. 317; 2 Arn. Ins. 865; 2 Phil. Ins. 505; Marsh. Ins. 173. The above rule in insurance cases is founded upon the nature of the insurance contract, which, unless the contrary appear, is an insurance of the cargo as a whole, and not a separate insurance upon each article. Humphrey v. Union Ins. Co. 3 Mason, 429,442. The memorandum clause is a condition of the contract that excludes partialloss, or a partial loss under a certain percentage, and the computation of the percentage therefore follows the nature of the insurance contract; that is, upon the goods insured as an aggregate. The liability of a common carrier for goods lost by negligence is not a liability upon contract only, but in tort also. The liability arises separately for each item of loss. The limiting clause in this bill of lading is not a condition of the existence of any liability at all on the part of the carrier; it is a mere limitation of the extent of his liability. It must be applied, therefore, according to the nature of the liability itself; that is, distributively, upon each article lost or damaged, for which the carrier is accountable. As a limitation, this court held it valid in the case of The Hadji, 18 FED. REP. 459; and a similar decision upon the
FEDERAL REPORTEB.
same clause has been also made by Judge NIXON in the case of The Lydian Mona,rch, 23 FED. REP. 298. The principle of these decisions, so far as they uphold the carrier's right to limit his liability to some certain value, has been also recently affirmed by the supreme court in the case of Hart v. Pennsylvania R. Co. 112 U. S. 831; S. O. 5 Sup. Ct. Rep. 151; although the present question did not arise in that case, because the limitation was upon each item separately. The limiting clause in this case must be construed as applying distributively upon each article damaged, because that is the most natural meaning of the words, and that best accords with the presumed intention of the parties. The clear intent was to provide not merely for the loss of the whole shipment, or for damage to the whole shipment, but for the loss of any part, and for damage to any part. When it is stipulated that in case of damage or loss, the ship-owner "will not be liable for more than the invoice value of the goods," the goods referred to are plainly the goods damaged, and those only; otherwise the clause would not be valid. The law makes the carrier liable for the loss or damage of an.1J goods t4rough his own negligence. Any stipulation that would annul this liability is void. If the carrier should be allowed, in ascertaining the amount for which he was liable, to charge against the invoice p'ice of the whole the amount realized in a foreign market for the whole cargo, damaged and undamaged, that construction would be giving to the carrier the full benefit of the foreign market value, which is expressly denied to the shipper,-a result not presumably within the intention of the parties, and at variance with one of the reasons for upholding the clause in question, namely, the fixity and certainty it affords for the computation of damages. If'the construction contended for by the claimants were the proper meaning of this limiting clause, it would be void upon grounds of public policy, as unreasonable, and as affording a direct encouragement to the theft or non-delivery of the shipper's goods; for on every shipment, whether there was a loss or not, the carrier might, without accountability, appropriate to his own use enough of the owner's goods to reduce the aggregate value of what remained in the foreign market to the invoice value of the whole,-a result destructive of all commerce, because enabling the carrier to appropriate all its profits. A totally opposite construction of the clause, which, in my judgment, is equally at variance with its intention, would make it applicable only where the actual damage amonnted to the invoice value; leaving the carrier to pay any amount of damage, estimated according to the foreign market value, which should be less than the invoice value of the goods damaged. The words of the clause, however, are not that the owners will not be liable to pay more damage than the invoice value of the goods; but that they will not be liable for more than the invoice of the goods damaged. The true meaning value of the goods, i.
e.,
DE WOLF 'V. TUPPER.
289
of the language, as well as the true intention, is, that the carrier is not to be licLble, in the sense of being accountable or responsible, for mOre than the invoice value of the goods damaged or lost. Where there is a partial injury, therefore, the damage is to be computed upon the basis of the invoice value of the goods damaged, because the invoice value is the extent of the value for which the carrier assumes responsibility. Whatever is realized for the damaged goods must therefore 1;>e credited upon the invoice value, the same as though the goods were abandoned to the carrier, and the sale of the damaged goods were made by him. In that case he would pay the invoice value, and would receive the proceeds of the damaged goods. It is immaterial by whom the sale of the damaged goods is effected: whether by the carrier or by the owner. The carrier's responsibility .is for the whole invoice value of the goods damaged, and no more; and the net proceeds of the sale of the damaged goods, over all charges and expenses, if received by the owner, must therefore go in diminution of the invoice price and freight, and the carrier must pay the difference. Such, in effect, was the judgment of the court in the case of The Lydian Monarch, supra, in which it was said, (page 300:) "If it should turn out that the libelant has received from the sale of the damaged goods the invoice price, after deducting the costs of importation, sale, etc., the libel will be dismissed." Such seems to me to be clearly the proper interpretation of this clause. Thus construed, I can perceive no reasonable objections to its validity. In effect, it only applies to damaged goods carried to the port of destination the same rule that has been long applied in courts of admiralty to the loss of goods at sea through collision; namely, that the value at the port of shipment, and not at the port of desti· nation, shall control. The Scotland, 105 U. S. 24, 25; The City of New York, 23 FED. REP. 616, 619. The result is that the libelant is entitled to $386.20, the difference between the invoice value of the goods damaged and freight, and the net proceeds of the sale of them together with interest and costs, for which judgment may be entered:
Dlt WOLF
V.
TUPPER
and others.
(District Court, S. D. :New Yor". June 11, 1885.) PURCHASE OF VESSEL-LIABILITY FOP OUTFIT-AUTHORITY OF MAN..\GING OWNER -SUPPLIES. ·
By the terms of the contract under which the defendant T. was to acquire a one-eighth interest in the brig 0., then building by one P., the title would not pass to T. until the delivery of the brig, completed according to such contract. Before such delivery, libelant, on the order of P., who was afterwards managing owner, and who informed libelant that T. was a part owner, furnished
lRe"'>rled by R. D. & Edward G. Benedict, Esq·., of the New York bar.
v.24F,no.6-19