Pelayo v. Fox , 9 Pa. 489 ( 1848 )

Gibson, C. J.

The exceptions to evidence have not been pressed, and the exceptions to the charge are resolvable into aAingle point. It has scarce been disputed that a transfer of the title to a general ship, transfers accruing freight. The implied contract is entire; and, generally speaking, till all is earned nothing is earned. The principle extends even to the mortgagee of a ship in possession, who, like a mortgagee of land in possession, is entitled to take the profits. It is inapplicable, however, to a chartered ship, the freight being payable according to the terms of the charter-party ; and hence the cases cited for the plaintiff in error are beside the point. But it is not demandable in any case before the cargo has been delivered; or, according to Mr. Chitty (Commercial L. 3 Vol. 410), who cites no authority for it, before it is ready for delivery. In this case, the transfer of the ship took place after her arrival, but before the entire delivery of the cargo, which was not perfected till the “ better part of a week had elapsedand the consignee insists that the voyage was ended the moment she touched the wharf; consequently, that the transfer was not made during it. There has been no decision that I am aware of, as to the precise point of limitation in regard to payment of freight, where the delivery has been delayed beyond a reasonable time; but in analogy to the ending of the voyage as regards the wages of seamen retained to discharge the cargo, we may say there was no unreasonable delay in this instance. The act of Congress of 1790, ch. 29, § 6, provides, that “ as soon as the voyage is ended, and the cargó and ballast fully discharged at the last port of delivery, every seaman or mariner shall be entitled to the wages that shall be then due, according to his contract;” and that if such wages shall not be paid within ten days after such discharge, he may libel the master and ship. Under this statute, Judge Peters allowed, in some instances, fifteen days to discharge the cargo: as in Thompson v. The Philadelphia, 1 Peters’ Adm. 210, and Edwards v. The Susan, lb. 165; and Judge Davis thought, in Holmes v. Bradshaw, Dis. Ct. of Mass. 1822, that fifteen working days should be allowed; and all concur that the voyage is not ended before that time, or the actual discharge of the cargo, to found a demand for wages; and why to found a demand for freight ? The difficulty is to discover what the ship does to earn freight while she is lying at her moorings. She conduces to the purposes of the voyage, if not in the further transportation of the property, at least in the preservation of it, till the consignee is ready to receive it; which is a part of her proper business. She was at every intermediate moment, therefore, earning the reward; and the judge charged properly, that if the transfer of the ship was made before the cargo was delivered, the transferee was entitled to the freight.

Judgment affirmed.