for deterioration.' Where the evidence shows that the vessel can be duplicated for a less sum than the original cost, a full recovery of the original cost cannot be allowed. The general rule is that the value of the vessel is the open market value at the place where the collision occurred. This has no reference to what it is worth to the owner, nor what he could have sold it for, but what it would have brought offered unreservedly in open market. The general rule is that the valuation of the vessel is to be computed at the place where the collision occurs. In applying this rule the courts make an exception in the case of foreign vessels destroyed in American waters, where by reason of our navigation laws the market value is less than the real value, in which case the courts allow the market value at the home port of the ship. Where no evidence is offered showing the value at the home port, the value at the place of collision will prevail. By the term "market price" is not meant the price paid by the owner, but the sum for which it would sell in open market. The fact that the actual value of the ship, by reason of age or other cause, is less than the market value will not relieve the party in fault from full payment of the market value of the vessel destroyed. It may and does very often happen that the vessel, owing to some peculiarity of build, reputation or establishment in a given trade, has acquired a market value that a new or different vessel would not have, and that the substitution of a new or different ship, even of equal or greater value, would not recompense the owner for his loss. Where from such or other circumstances the price the vessel would have brought in 1 Leonard v. Whitwell, 19 Fed. R. 547. by the original cost, making proper allowance for depreciation by use. 2 The City of Alexandria, 40 Fed. La Normandie, 58 Fed. R. 427. R. 697. 3 The Laura Lee, 24 Fed. R. 483. Where the vessel is of a kind that is seldom bought or sold, so that there is no established market value, its value may be determined The Blenheim, 17 Fed. R. 608; 5 The Utopia, 16 Fed. R. 507. the open market is in excess of the amount it would cost to reproduce it, the law affords the wrong-doer no redress for such excess, he must pay the full market value. The converse of this rule is true: that the owner of the vessel lost can only recover the market value of his ship, although this may be less than the price paid for it or less than the cost of construction. Where, by reason of any circumstance affecting the market value of the vessel, it brings less than it otherwise would, the selling price is the measure of value, unless this is so manifestly disproportioned to the cost of building as to bear no fair relation to the original cost or intrinsic worth, and that a sale at such a price would, in effect, be practical confiscation. Under such circumstances the court may adopt a higher valuation. No fixed rule of depreciation can be safely adopted for the valuation of water-craft. The kind and quality of the materials and method of construction, the care, use and repair in which the vessel is kept, are all to be taken into consideration in determining its value.2 Sec. 202. Loss of freight.- Loss of freight is an item of damages properly chargeable to the offending vessel. In the allowance for loss of freight a distinction was sought to be created in the early decisions between total and partial losses. In case of partial loss of the vessel, both the English and American authorities agree in allowing as damages, against the offending ship, such profits as would have accrued had the voyage been completed, less the expense attend 1 The New Jersey, Olc. 444. Where the total loss of a Mississippi river steamer occurred, the court, in estimating the value of the boat at the time of collision, found that for vessels engaged in trade on the Mississippi river on which all necessary repairs had been made from time to time as required, the rule is that after the first year such boats are worth twenty per cent. less than when first built. The second year twenty per cent. should be deducted from its valuation at the end of the first year, and in the same manner deductions should be made during the entire age of the vessel, the amount left being the value at the date of collision. The Laura Lee, 24 Fed. R. 483. 2 The J. E. Trudeau, 54 Fed. R. 907. ing the completion of the same, even though such added damage exceed the value of the vessel injured.1 2 In cases of total loss the decisions have not been uniform as to the allowance of freight as an item of damage; some of the early English cases holding that the probable earnings of a vessel on an incompleted voyage are too remote and uncertain for allowance; interest on the value of the ship being allowed from the date of the loss in its stead. It is difficult to see any real objection to the allowance of freight, in case of a total loss, that cannot with equal propriety be urged where only partial loss is sustained. Even in England, where the doctrine of non-allowance of freight has prevailed in case of total loss, the decisions are not by any means harmonious, many decisions sustaining the right to recover freight instead of interest in total losses." It is now well settled that the admiralty courts of the United States do not recognize the distinction between total and partial losses, and allow in both cases, as part of the damage sustained, the net freight which the ship at the time of the collision is in process of earning. The freight so recovered must, however, be freight actually arising from the carriage of goods. And where the vessel-owner is the owner of the cargo, the freight not constituting a separate interest, the owner cannot recover for loss of freight an estimated amount which the vessel could have earned were it carrying a similar cargo for others. 1 The Consett, 5 Prob. Div. 229; The Heroine, 1 Ben. 226; The Minnie, 26 Fed. R. 860; Williamson v. Barrett, 13 How. 101; The Cayuga, 14 Wall. 278; The Utopia, 16 Fed. R. 507. 2 The Columbus, 3 W. Robb. 164. 3 Guibert v. The British Ship George Bell, 3 Fed. R. 581. 4 The Betsey Carnes, 2 Hagg. 28; The Yorkshireman, 2 Hagg. 30; The Canada, Lush. 584; The Gazelle, Wm. Robb. 279. 5 The Rebecca, 1 B. & H. 347; The Amiable Nancy, 3 Wheat. 546; Williamson v. Barrett, 13 How. 101; The Heroine, 1 Ben. 226; The North Star, 44 Fed. R. 492; The C. P. Raymond, 28 Fed. R. 765; The Baltimore, 8 Wall. 386; The Cayuga, 14 Wall. 278; The Hope and The Freddie L. Porter, 5 Fed. R. 822; 8 Fed. R. 170; Egbert v. B. & O. R. R. Co., 2 Ben. 223. 6 Crowell v. The Beatrice Havener, 50 Fed. R. 232. In this case it Restitution to the condition before collision being the object sought, the wrong-doer being held to make good the damages resulting from his negligence, no good reason can be urged why the net freight which the vessel would have made, had not the voyage been interrupted, should not be allowed, together with the actual expenses incurred. In case of partial loss or detention, reasonable efforts ought always to be made by the injured vessel to secure other cargo for the voyage. Where cargo is secured, the measure of damages is the difference between the freight lost by collision and the freight on the cargo secured in its stead, together with such reasonable costs and expenses in securing the same as the vessel has incurred. It is no ground for reducing the allowance for detention that the vessel-owner does not hire another ship to complete the voyage of the one disabled, or continue the business contemplated by the charter. The injured party is not required to look beyond his own vessel to carry out its engagements, and where these are interrupted, the party in fault cannot insist on the substitution of another. Where it is impossible to secure fresh cargo, dead freight may be allowed, and it is a proper item of damages.3 How far, beyond the voyage entered upon, damages may be recovered, as for loss of anticipated profits, is not wholly a settled question. The most of the reported cases where anticipated profits have been allowed have been where there was a charter for a specific voyage, and where the elements was held the measure of damages was the market value of the cargo and vessel at the port of sailing, with interest from time of sailing, together with any item of expense for equipment or other expenditures that may have been incurred, with interest on them from the date of incurring the same. 1 The Gorgas, 10 Ben. 666. In this case a vessel was injured by collision and detained for repairs, thereby losing its charter; repairs taking less time than would have been consumed in the voyage, and there being no evidence of a want of other employment, the court refused to allow net freight for the voyage. 2 The Transit, 4 Ben. 138; The Cayuga, 14 Wall. 270; The Belgenland, 36 Fed. R. 504. The Cayuga, 14 Wall. 270; The C. P. Raymond, 28 Fed. R. 765. of uncertainty as to whether the voyage would be completed in safety were no greater than in most business ventures. Where, however, the vessel is chartered for a definite period beyond the voyage upon which it is engaged when collision occurs, requiring perhaps many successive voyages, attended by the perils and uncertainties of the sea, the general rule has been, in case of total loss, to allow the full market value of the vessel at the time of collision, together with the freight for the pending voyage, and interest on these amounts from the estimated date of the completed voyage. There are some American authorities, however, asserting a broader rule than has been generally followed by the courts; but it is difficult to reconcile them with the doctrine of the supreme court as laid down in the case of The Amiable Nancy, in which the probable profits of a voyage yet to be undertaken were disallowed. It is a safe rule not to allow damages for prospective profits, beyond the voyage entered upon, that cannot with reasonable certainty be shown to be likely to be realized; and it is doubtful if the supreme court will ever enlarge the rule here stated, limiting the freight recoverable to the voyage upon which the vessel has entered when collision occurs. Where the collision is shown to have been malicious, the court may in its discretion relax the strictness of the rule as to proof of anticipated profits, and permit them to be shown to a greater extent than is permissible in the absence of malice, or negligence so gross as to amount to malice." The law in this country is well settled that where the injured party can with reasonable certainty show that profits would have resulted had not the voyage been interrupted, recovery can be had for such anticipated profits of the voyage as are shown, with a fair degree of certainty, likely to 1 The Freddie L. Porter, 8 Fed. R. 170; The Siberia, 46 Fed. R. 301; The Argentino, L. R. App. Cas. 519. 23 Wheaton, 546. 3 Fabre v. The Cunard S. Co., The Iberia, 53 Fed. R. 288. 4 The Harriet Newhall, 3 Ware, 105. |