THE JOSEPH OTERI, JR. OTERI et al. v. SCHMIDT et al., 66 F. 581

BRUCE, District Judge, after stating the facts as above, delivered the opinion of tbe court.

The testimony shows that Spanish Honduras was in a state of turbulence, and even war, at the time of the arrival of the vessel off that coast, and, on account of what had happened to this master and his vessel on a previous voyage to that country, when his vessel was seized by an armed force, and, against Ms protest, used for a time as a transport for troops, and it coming to Ms knowledge that his vessel would not be allowed to transact any business on that coast, we think he had good grounds for apprehension for the safety of his vessel and cargo if he landed at the ports to which he was destined.

After this, however, and after he had decided that he could not with safety land at Ceiba, or get to Truxillo, there seems to have been much delay, and it was not until the 14th, and even the 16th, of August, the last of the goods were disposed of at Livingston. It would seem that during this time the master could have returned to his home port with his cargo, and could have conferred with his owner and the shippers of the goods he had on board. In the case of The Julia Blake, 107 U. S. 427, 2 Sup.

Ct. 692, speaking of the necessity under which the master is authorized to sell ship and cargo, and quoting from the former case of New England Ins. Co. v. The Sarah Ann, 13 Pet. 387, the court say: “All will agree that the master must act in good faith, exercise his best discretion for the benefit of all concerned, and that it can only be done upon the compulsion of a necessity, to be determined in each case by the actual and impending peril to which the vessel is exposed.” The testimony, we think, shows a want of good faith on the part of the master in the matter of the disposition of his cargo.

He seems to have sought to avoid the responsibility of his position, turning the goods over to Anderson, consular agent, to be disposed of under his order. The purser, the witness Commegere, says he opposed this; but, under the advice of the consular agent, Anderson, a cargo of bananas was taken, and paid for in part from the proceeds of the sale of the goods as stated by the witness Commegere, and the vessel cleared for New York.

The conclusion is, we think, inevitable,.from the testimony on this subject, that the master was at fault in the matter of the disposal of the goods shipped by the libelants, and that the case is one in which damages should be awarded. This brings us to the question of the measure of damages, which, it is insisted, is the value of the goods at the port of destination.

If we are correct in the conclusion that the master was justified in not proceeding to and landing the goods at the ports of destination, according to the tenor and effect of the bills of lading, then we are of opinion that it devolved' upon the master to either dispose of the goods in good faith, and to the best advantage, in the nearest ports which he was able to reach, or to return the goods to the shippers, with reasons for nondelivery. It is not shown ..that he did either.

The bill of lading provides that, in the event of loss or nondelivery, the liability of the carrier is not to exceed the invoice value, — this to protect the carrier in ordinary cases where the goods are lost by some casualty.

In view of the fact that the carrier might have relieved himself from responsibility by returning the goods to the shipper, and as the proof shows that in the port of shipment the goods were of the value specified in the invoice, we are of opinion that, under the peculiar facts of this case, no substantial injustice results to the carrier from following the rule of damages adopted by the district court, to wit, the value of the goods as shown by the invoices at the port of shipment We' think the judgment of the court below should be affirmed, and it is so ordered.