Willcox, Peck & Hughes v. Alphonse Weil & Bros.

THACHER, District Judge. The ease is here on exceptions to the commissioner’s report. There is little to be added to the carefully considered report of the learned commissioner. In his findings of fact and conclusions of law I concur. The right of the shippers to a separation of their cargo at Boston is clear, under the rule in The Julia Blake, 107 U. S. 418, 2 S. Ct. 692, 27 L. Ed. 595. The fact stipulated and found, that transportation on the ship from Boston to New York would subject this part of the cargo to serious risk of further damage, relieved the cargo owners from liability for all expense incurred in continuing the voyage to destination. Such expense, whether incurred before or after the physical separation and the owners’ assent thereto, was not incurred for the benefit of this cargo. In the face of serious risk of further damage involved in carrying these hides to New York, the master of the ship was unauthorized to subject this portion of the cargo to the payment of any portion of the expense of continuing the voyage, and was under the duty to make the separation himself in behalf of the owners if it was in their interest to do so. The Julia Blake, supra. It cannot, therefore, be successfully argued that any portion of this expense was incurred on the faith of any contribution to be made under the laws of general average by the owners of these hides. As the learned commissioner has well said, the law imposes no such 591 vicarious sacrifice. There is no evidence in this case that the owners refused delivery at Boston, after the risk of additional injury involved in the carriage to New York became known to them. Under these circumstances, I concur in the conclusion of the commissioner that the cargo owners are not liable for any portion of the expense incurred in the continuance of the voyage from'Boston to New York. Accordingly the exceptions to the commissioner’s report are overruled, the report is confirmed, and a decree may he entered, dismissing the libel, with costs.