12 F. Cas. 38 | S.D.N.Y. | 1867
I think that the libellants are entitled, as part of the damages sustained by them by the collision, to an allowance on account of the freight their vessel was earning at the time of the collision-on the cargo she was in the act of carrying. The libel expressly claims as damage the loss of the vessel and her freight, and states the aggregate amount of such damage at a larger amount than the commissioner has reported it to be. 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. The Gazelle, 2 W. Rob. Adm. 279; Williamson v. Barrett, 13 How. [54 U. S.] 101, 111. But this must be net freight, not gross freight There must be deducted from the freight the vessel was engaged in earning, the expenses she would have incurred if the voyage had been successfully performed, and which expenses would have diminished by so much the gross freight. In the present case the amount of freight allowed is $1,040. The exception to-the commissioner’s report is to the allowance of freight to that amount. The $1,040 is the gross freight, as testified to by the master in a deposition given by him for the hearing on the merits. The questions as to the amount of the freight, and as to what was the gross, freight, and what were proper deductions from it, and what was the net freight, were not raised before the commissioner. Hence the error in his report. Substantial justice will be done by referring the case back to-the commissioner for re-examination on further evidence by both parties, in accordance with the principles of this decision. Order accordingly.
[Subsequently, on appeal to the circuit court, the decree of the district court, allowing damages to the libelants, was affirmed. Case No. 6,417.]
