Hurtin v. Union Ins. Co.

WASHINGTON, Circuit Justice. If the cargo is not conveyed to the place of its destination, no freight can be demanded. If voluntarily accepted at any other port, by the owner or his supra-cargo, freight, pro rata itincris, is due. But if it is received by compulsion, and the supra-cargo or captain is acting for the best, for the benefit of all concerned, with a view to preserve it for the person entitled to receive the proceeds, no freight is earned; and a contradictory doctrine would make it the interest of the owner of the cargo or his agent, to sacrifice the cargo, or leave it to perish where the proceeds of it might fall short of paying the freight. The-receiving the proceeds under a compulsion, as in this case, must always be taken as done without prejudice. This is rather a stronger case than that of Simond v. Union Ins. Co. [Case No. 12,876], last term; but in both the cases sale was compulsory; in both, the own [1051] er of the freight abandoned, and the agent acted for the benefit of all concerned; decidedly so in this case, and in that to the same purpose. Judgment for plaintiff for a total loss.