2 Barron v. Stewart, Law R. 3 P. C. 199 (1870).
3 The Fanny and Elmira, Edw. Adm. 118; Idle v. Royal Exch. Ass. Co., 8 Taunt. 775; Green v. Royal Exch. Ass. Co., 6 Taunt. 68; Read v. Bonham, 3 Br. & B. 147; Robertson v. Clarke, 1 Bing. 445; Reid v. Darby, 10 East, 143; Hayman v. Molton, 5 Esp. 65; Allen v. Sugrue, 8 B. & C. 561; Somes v. Sugrue, 4' C. & P. 276; The Tilton, 5 Mason, 465; The Sarah Ann, 2 Sumner, 206, 215; Gordon v. Mass. F. & M. Ins. Co., 2 Pick. 249; Winn v. Columbian Ins. Co., 12 Pick. 279; Fontaine v. Phoenix Ins. Co., 11 Johns. 293; Patapsco Ins. Co. v. Southgate, 5 Peters, 604, 620; Scull v. Briddle, 2 Wash. C. C. 150; Am. Ins. Co. v. Center, 4 Wend. 45; Pope v. Nickerson, 3 Story, 465.
4 Ibid.; The Tilton, 5 Mason, 465; New England Ins. Co. v. The Brig Sarah Ann, 13 Peters, 387; Robinson v. Commonwealth Ins. Co., 3 Sumner, 220; Gordon v. Mass. Fire & Mar. Ins. Co., 2 Pick. 249; Hall v. Franklin Ins. Co., 9 Pick. 466; The Eliza Cornish, 26 Eng. Law & Eq. 579; 1 Spinks, 36.
§ 460. A case of moral necessity will be made out, whenever the vessel has suffered an actual total loss, and cannot be rescued at all from the peril; or when she has suffered a technical total loss, and her repairs.will cost more than her value after she is repaired; or when the means of repairing her cannot be procured.4 But the expense of making repairs is not to be estimated by their cost at the place where she lies, provided she can be put into a state to be navigated safely into a port where the repairs can be made for so much less a sum as to make it the duty of the master to repair her.5
1 New England Ins. Co. v. The Brig Sarah Ann, 13 Peters, 387; s. c. 2 Sumner, 206.
2 The Sarah Ann, 2 Sumner, 206. See The Grapeshot, 9 Wall. 129.
3 To justify the sale of a vessel in a foreign port, good faith and necessity must both exist. The Amelie, 6 Wall. 18 (1867).
4 Gordon v. Mass. Fire & Mar. Ins. Co., 2 Pick. 249; American Ins. Co. v. Center, 4 Wend. 45; Hall v. Franklin Ins. Co., 9 Pick. 466; New Eng-and Ins. Co. v. The Brig Sarah Ann, 13 Peters, 387.
5 Hall v. Franklin Ins. Co., 9 Pick. 466.
§461. Again, the master may also sell the cargo in two cases. First. In case the ship be wrecked, so that she is unable to proceed upon the voyage, he may sell the cargo, provided it be of a perishable nature, so that it cannot be transmitted by another vessel.1 If it be not of a perishable nature, it is his duty to forward it in another vessel to its port of destination; and if a vessel cannot be procured in the port where he is wrecked, he must go to a contiguous port to procure one.2 But he is not obliged to go further than a "port immediately contiguous," for the purpose of seeking another vessel.3 In case then he can find no vessel, in which to forward the goods, his duty would seem to be, if they were not perishable, to store the goods, and wait for orders from the shipper.4 Again; if, although the cargo be of a perishable nature, it nevertheless can be transmitted without injury, he is bound to transmit it, if he can find a ship, and if he cannot, his duty is to sell.5 If, again, the vessel can be repaired in a reasonable time, and the cargo be not perishable, the master may store it until the repairs are completed, and then proceed with it in his own ship.6 Where the cargo is of a perishable nature, much is left to the discretion of the master, as to reshipment or sale thereof; and the question is to be determined by the circumstances of each case, as it arises. It has, however, been laid down, that although the cargo be capable of being carried to its port of destination, yet if it be so much injured, or so susceptible of injury, that it will endanger the safety of the ship and cargo, or will greatly deteriorate, and be liable to be spoiled utterly, the master may sell it.1
1 Pope v. Nickerson, 3 Story, 465; The Gratitudine, 3 Rob. Adm. 240; The Packet, 3 Mason, 255; Shipton v. Thornton, 9 Ad. & El. 314; Jordan v. Warren Ins. Co., 1 Story, 342.
2 Wilson v. Royal Exch. Assur. Co., 2 Camp. 623; Schieffelin v. New York Ins. Co., 9 Johns. 21; Searle v. Scovell, 4 Johns. Ch. 218; Mumford v. Commercial Ins. Co., 5 Johns. 262. See Spaids v. New York Mail Steamship Co., 3 Daly, 139 (1869).
3 Saltus v. Ocean Ins. Co., 12 Johns. 112; Treadwell v. Union Ins. Co., 6 Cow. 270.
4 Saltus v. Ocean Ins. Co., 12 Johns. 112; Liddard v. Lopes, 10 East, 526; Treadwell v. Union Ins. Co., 6 Cow. 270; Wilson v. Millar, 2 Stark. 1; Am. Ins. Co. v. Center, 4 Wend. 52; Freeman v. East India Co., 5 B. & Al. 617; Abbott on Shipping, p. 240, 241, 243, and notes.
5 Pope v. Nickerson, 3 Story, 465; Jordan v. Warren Ins. Co., 1 Story, 342; Wilson v. Royal Ex. Assur. Co., 2 Camp. 623; Schieffelin v. New York. Ins. Co., 9 Johns. 21; Saltus v. Ocean Ins. Co., 12 Johns. 112.
6 Clark v. Mass. Fire & Marine Ins. Co., 2 Pick. 104; Palmer v. Lorillard, 16 Johns. 348.
§ 462. Second. The master may sell a part of the cargo, when it becomes necessary in* order to effect repairs upon the vessel, and to enable him to carry the residue forward.2 But he cannot sell the whole cargo for such purpose, and thus put an end to the adventure.3 So, also, he may sell a part of the cargo for the purpose of furnishing necessaries to the ship, if he have no other funds available,- but not otherwise.4
§ 463. But a master of a vessel has no right to sell the cargo, or any portion of it, unless in case of a moral necessity, and in order to prevent a greater loss to the shippers; and in doing so, he must exercise a sound discretion. In case he is obliged to sell a part for the necessary repairs of the vessel, or for necessary equipments or furnishings, the owner would, if the sale were justifiable, be liable to the shipper to the full amount of the sales.5 If he sell the goods because of their perishable nature, and to prevent loss to the shipper, he becomes agent, in so far, for the latter, and is liable for the proceeds.6
1 Jordan v. Warren Ins. Co., 1 Story, 342; Pope v. Nickerson, 3 Story, 465.
2 The Gratitudine, 3 Rob. Adm. 240; Abbott on Shipping, pt. 2, ch. 3, § 8; The Packet, 3 Mason, 255; Pope v. Nickerson, 3 Story, 465.
3 The Gratitudine, 3 Rob. Adm. 240; Searle v. Scovell, 4 Johns. Ch. 218; Hunter v. Prinsep, 10 East, 393; Saltus v. Ocean Ins. Co., 12 Johns. 107.
4 Pope v. Nickerson, 3 Story, 465. 5 Ibid.; and cases cited above.
6 Pope v. Nickerson, 3 Story, 465. See also cases cited above.