# Fretz v. Bull

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United States Supreme Court
53 U.S. 466
Fretz v. Bull
This was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.
The facts in the case are stated in the opinion of the court.
The cargo of flatboat No. 2 consisted of 3,136 sacks of corn, 31 barrels and one keg of lard, 315 sacks of oats, of which there were insured.
1,643 sacks of corn (4,125 bush. at 75c.) $3,093 00
158 sacks oats (353 bush. at 40c.) 141 20
17 barrels of lard 333 63
$3,567 83
Which was paid by the insurance company, with a small deduction. When paid, there was an argument between the insurance company and John C. Bull & Co., that the latter would include the insurance company in the libel.
The libel was filed by John C. Bull, William J. M'Clure, and Thomas S. Foreman, trading under the firm of John C. Bull & Co., in the District Court of the United States. They were the owners of the boat and of the corn, and filed the libel for the use of the insurance company. A variety of testimony was taken, the important parts of which are stated in the opinion of the court.
The District Court gave judgment in favor of the libellants, in the sum of $3,753.45.
The defendants appealed to the Circuit Court.
The Circuit Court affirmed the judgment of the District Court, and the defendants appealed to this court.
It was argued by My. Coxe, for the appellants, and submitted, on printed argument, by Mr. Clay, for the appellees.
The greater part of the argument consisted in an examination and comparison of the evidence, which cannot be reported.
Mr. Coxe, for the appellants, made the following law points:
In cases of collision, the law requires that there should be preponderating evidence to fix the loss upon the party sought to be charged, before he can be condemned to make compensation. The Ligo, 2 Hagg. Adm., 356; Curtis Adm. Dig., 144, sect. 6.
A collision may happen without blame being imputable to either party. In such case the loss must be borne by the party upon whom it happens to light. It may be the result of mutual negligence or misconduct. In such case, the Supreme Court of Louisiana has decided that the plaintiff cannot recover. 3 La. Ann., 441.
The general presumption in favor of the party charged is in this case corroborated by a single fact, in regard to which there is no contrariety in the evidence. It seems agreed, on all hands, that the head of the steamboat had passed the flatboat before the collision occurred, and before any one anticipated the danger. Nothing, under such circumstances, could have led to the catastrophe, but the unexpected movement of the flatboat, occasioned by the eddy.
As to the measure of damages, it is submitted that, in a case of this description, vindictive damages ought not to be allowed; nor is the party entitled to more than indemnification. Under this rule, where the property injured is in transitu, and has not reached the port of destination, the prime cost and the necessary expenses incurred, furnish the measure of damages. Amistad de Rues, 5 Wheat., 385; Amiable Nancy, 3 Id., 546; 1 Paine, 111; The Lively, 1 Gall., 308; The Apollon, 9 Wheat., 362.
Another question arises in this case. After the master and crew had been carried to New Orleans in the Memphis, in March, 1847, namely, in March, 1848, Bull and his partners bring this suit for the use of the Firemen's Insurance Company of Louisville. From the bill of lading, it appears that the cargo belonged to several individuals. The insurance effected by them, March 22, 1847, covered the entire cargo; but there was no insurance on the boat itself. The amount of loss, $3,496.48, was paid, May 4, 1847; and it was agreed that Bull & Co. should bring a suit for the recovery. The judgment was for $3,753.45, exceeding the loss paid by the insurance company, with interest, and manifestly included the boat, &c.
The action is brought, as the libel avers, (p. 4), exclusively for the use of the insurance company; yet the claim embraces the boat, on which there was no insurance.
1. It is submitted that, after the payment of the loss by the company, Bull & Co. had no right to bring this suit, he being already paid.
2. That if the insurance company brought suit, it was entitled to recover no more than what was actually paid by it.
3. That, in this action, the claim for the loss sustained by the cargo was improperly joined with a claim for the injury to the boat, the insurance company having no interest in the latter.
Mr. Justice WAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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