Callender v. Insurance Co. of North America , 5 Binn. 525 ( 1813 )

Tilghman C. J.

If this case were to be considered on principles of natural justice, there seems no reason why any freight should be paid; because it does not appear that any service was performed. The voyage was planned for St. Barts, at that time a neutral island, from whence a cargo might have been imported into the United States; but that could not be done from Jamaica, because the non-intercourse ^aw was *n f°rcei which prevented all communication between the United States and a British island. Neither ought any freight to be paid, if we look to the terms of the contract, because the stipulated voyage was not performed. gut jg sa-]C^ freight pro rata should be paid, because such is the precept of the marine law, which has been adopted as part of the common law. The ancient codes of marine law do not seem to be quite clear on this point. In Well-wood’s Abridgment of all Sea Laws, published in the year 1636, and said to be collected from all writings and monuments then existing, I find it laid down in page 75, as follows: “ If the ship in her voyage become unable, without “ the master’s fault* the master may either mend his ship or “ freight another; but in case the merchant agree not thereto, “then the master shall at least obtain his freight so far as he “hath deserved it.” For this the author cites the Laws of Oleron, and the Rhodian Laws, said by Lord Mansfield to be the most ancient in the world. Supposing this to be the law, it does not follow that any freight is earned in case the master will neither repair his ship, nor freight another. I know there are not wanting some ancient authorities in support of pro rata freight, when the ship becomes unable to perform the voyage without any fault of the master, although he does not offer to freight another vessel; but upon the whole I do not consider the point, so far as it rests upon ancient marine authority, as by any means clearly settled. The more material question, however, is what has been the principle recognised by the common law. The case principally relied on in support of freight, is Luke v. Lyde, 2 Burr. 883. There can be no doubt, but that case was rightly decided, because, according to Lord Mansfield’s statement of it, the merchant did not require the master to carry the goods to Lisbon, the port of delivery, but received them and carried them himself to another port. Under such circumstances, by fair implication, a new contract arose to pay freight pro rata, and on no other principle is that decision supported. But although the point decided in Luke v. Lyde, has never been denied by Lord Mansfield’s successors, yet it has been said by Lord EUenborough in Liddard v. Lopez, that it has been pressed beyond its fair bearing-, and where such pressure has been to the extent contended for in the argument of the case before us, — to an extent which erititles the master to pro rata freight, although the merchant requires him to procure another vessel, and complete the voyage, and he refuses to do so, — I think I may venture to assert that the doctrine has never been received with approbation. On the contrary, it seems to have been understood, that pro rata freight is not due, unless the consent of the merchant, either- by words or actions, has been expressly given, or may be fairly deduced, to accept his goods at an intermediate port; and such consent being given, the original contract is dissolved, and a new one arises. For this principle, I refer to the cases of Cooke v. Jennings, 7 T. Rep. 385., Liddard v. Lopez, 10 East 526., Hurtin v. Union Insurance Company, in the Circuit Court of the United States, Pennsylvania District, 1 Condy’s Marsh. 281. a. (notis); The Marine Insurance Company of New York v. The United Insurance Company, decided by the Supreme Court of New York, 9 Johns. 186., and Armroyd v. The Union Insurance Company, in this Court, 3 Binn. 437. The question then will be, whether there was any consent to receive the goods at Jamaica, in this case. I cannot see that there was. The vessel was unladen from necessity; and the master finding that the difficulty and expense of freighting another, were greater than he chose to encounter, the cargo was sold for the benefit of whom it might concern. The owner of the goods abandoned; and as for the underwriters, they knew nothing of what had been done, till long after the business had been concluded. I am of opinion upon the whole, that inasmuch as the original contract was not performed, nor any consent given to substitute a new one in the place, of it, the claim of pro rata freight cannot be supported.

Yeates J.

The general principle as to freight is, that it is demandable where the goods are delivered at the port of destination according to the terms of the bills of lading; for such is the contract between the parties. Indeed where some event has arisen, which has frustrated the voyage after it has begun, and the vessel has become innavigable, and the ship owner offers to transport the goods to the destined port, which the owner of the goods, or his agent, refuses, there full freight also is due. By the maritime law, where the owner of the goods or his agent voluntarily agrees to accept them at an intermediate port, he becomes liable to pay freight Pro rata itineris, though there be no express stipulation for that purpose. In Armroyd v. Union Insurant Company, I differed in opinion from the majority of the Court, and t^l0u8'^lt: that such circumstances existed in that case, as were equivalent to a voluntary receipt of the goods. The supercargo accepted the remnant of the cargo at Antigua, sold it to a good profit, and invested the amount, of sales in bills of exchange, on which a considerable profit arose to the concerned, which were accounted for to the company, allowing a small commission for the negotiation. I apprehended that the case was brought within the principle of former decisions, and according to the expressions of Lord Mansfield, in Baillie v. Modigliani, Park 53. 5th ed. the value of the goods being restored in money, was the same as the goods themselves, and therefore freight was due pro rata itineris. Be this as it may, there is no acceptance of the goods in this case at the intermediate port, nor any; substitution1 of money for them, nor any other circumstance upon which, in my idea, the law wgyJd .jmply a promiscua, .pay a rateable freight. I am therefore tff opinion, that judgment be rendered on the ^rdíqt^wíthout any abatement for such freight.

Brackenridge J. concurred with the Chief Justice.

Judgment for the plaintiffs.