ROGERS v. MECHANICS' INS. CO., 20 F. Cas. 1121

STORY, Circuit Justice. My opinion is, that the report ought to be accepted, and the larger estimate,of the value of the blubber ($1,240) ought to be adopted. Nothing could be more conjectural and uncertain, in the ascertainment of the value of goods, thrown overboard in cases, of jettison, than to leave that value to be fixed by the probable or possible chances of the escape from the -impending danger. On the other hand, the intrinsic value of the

article at the time of the jettison, calculated upon its ordinary price, affords a just and uniform rule, applicable to all cases. But, in' fact, this is not a new question; but' has been long settled by the course of mercantile usage and practice. In every case of jettison, the uniform rule is, to estimate the value of the goods either at the prime cost, or original value, or, at their value at the port of destination. The latter rule is inapplicable to cases, where the vessel never arrives at her port of destination, or the

article is not, at the time of its jettison, in the perfect state in which it is to be carried there. .The former rule, of the prime cost or present value, is, therefore, justly applicable to cases like the present, where blubber, and not oil, is sacrificed, and where the value, it never having been at any market, admits of no absolute ascertainment, other than its ordinary average value on board of the ship .under common circumstances. No one ever heard of the value of goods in a case of jettison being ascertained by the diminished value, from the immediate danger in which all the property is placed.

In England, the rule adopted is that which has been stated; and Lord Tenterden has discussed its.foundation and stated its authority. Abb. Shipp. (Ed. 1S29) p. 3, c. 8, § 15. In the Roman law. the prime cost or value of the goods thrown overboard was always adopted in cases of jettison; but the value of the contributory goods to the loss was calculated by what they would sell for. Portio autem pro estimatione rerum, quae salvae sunt, et earum, quae amis-sae sunt, praestari solet; nec ad rem pertinet, si hae, quae amissae sunt, pluris veniri pote-runt, quoniam detrimenti non lucri, fit praas-tatio.

Sed in his rebus quarum nomine con-ferendum est, aestimatio debet haberi; non quanti emptae sunt, sed quanti venire pos-sunt. Dig. lib. 14, tit. 2, 1. 2, §§ 2, 4. And this continues still to be the favored rule in some modern maritime nations; but, in general, they have adopted the same rule as the French law, which ascertains the value of the goods contributing and contributed for, according to their value at the port of discharge. Emerig. Ins. Assur. tom. 1, pp. 635, 655, c. 12, § 42, note 6; Code de Comm, art. 415; Moll, de J. Mar. bk. 2, c. 6, | 4.

But in no country whatsoever, have I been able to find, that any such mode of valuation has prevailed, as that the price is to be the present value under the existing peril at the moment of the jettison. It would be as vague and uncertain, as it would be inconvenient and inadequate to the just purposes of compensation. The sum of $1,240 must, therefore, be allowed as the value of the blubber at the time of the jettison.