17 Barb. 184 | N.Y. Sup. Ct. | 1853
The judge at the circuit was undoubtedly right in holding that the action was properly brought. The plaintiff, though not an owner, had such a special property in the vessel as enabled him to collect the freight. He was the contracting party. He, and not the owners, agreed with the defendant, through his agent, for the carrying .of the
• But I cannot agree with the learned judge in holding that the evidence failed to establish a case in which freight was recoverable. I know that it is a general rule that the contract for conveyance must be completely performed, by the delivery of the goods at the place of destination, before freight can be demanded. It is as much the duty of the carrier to deliver as it is to transport the cargo. But there are cases where the readiness of a party to perform an act, with notice of such readiness, is equivalent, in legal effect, to actual performance. I think this was such a case. The plaintiff upon his arrival had reported himself ready to deliver his cargo. The defendant was not ready to receive it. If his arrangements were such as to allow but one vessel to discharge at a time, then he was in fault for having freighted so many vessels, to arrive at the same period. He had not stipulated with the plaintiff for any delay. If he could provide for several vessels, to discharge at the same time, as it seems was subsequently done, then he was in default for not having sooner made such provision. In either case, it was the neglect or default of the defendant, and not of the plaintiff, which subjected him to the delay. He was in readiness from Tuesday until Saturday morning to discharge his cargo ; and had the defendant been ready to receive it, the cargo would have been delivered before the freshet commenced. The plaintiff had no alternative but to wait the convenience or pleasure of the defendant. To say, under these circumstances, that the responsibility of the plaintiff as a carrier still continued, would be unjust, in the extreme, I know of no rule of law that requires it. Having tendered a delivery of the coal, and being obliged, against his will and without any fault or neglect on his part, to retain the possession, his contract as a carrier was performed, and he held the coal as a mere bailee in deposit, liable only when chargeable with negligence.
This view of the case is abundantly sustained by authority. In Bradstreet v. Baldwin, (11 Mass. Rep. 229,) an action was brought to recover the freight of a vessel which had been char
Mr. Justice Platt, also, in Ostrander v. Brown, (15 John. 89,) referring to this class of cases, says,- “ If the consignee1 would not take charge of the goods, the carrier ought to have secured them on board his vessel, Or in some other place of safety, and that would have entitled him to his freight, with all extra charges.” •
The cas'e of Goold V. Chapin, (10 Barb. 612,) is very much in point. Indeed/ the principle which controlled the decision of that case must, I think, be regarded as- conclusive upon the question now under consideration.- The' action was against carriers, for the loss of goods. As in this case; the goods,- so far as the carriers were concerned, had reached their place of destination. The carriers had taken them fitom thé' bárge tí^on which they had been transported, and placed theta tipon a float lying
This, then, is the rule of law applicable to the case in hand. The plaintiff having arrived with his cargo at the place of destination and offered to dcliVer it, the owner of consignee was bound to receive it within a reasonable time. The owner or consignee having neglected; either from necessity or convenience, thus to receive the cargo, the plaintiff would have had the right, had it been practicable; to leave the cargo in store, and thus discharge himself from all further liability. In that case, the owner would have befen liable, not only for freight,
Nor can I entirely agree with my learned brother in his views upon the other branch of the case. It is true that demurrage, properly so called, is only payable when it is stipulated for ithe contract of affreightment. But it is also true that when a vessel has been improperly detained by the freighter or consignee of the cargo, the owner may have a special action for the damage resulting to him from the detention. (Abbott on Shipping, 304. Horn v. Bensusan, 9 Carr, & P. 709. Kell v. Anderson, 10 Mees, & W. 498.) In Evans v. Forster, (1 Barn, & Ad. 118,) the action was brought by the master of a vessel, who alleged in his declaration that the vessel had arrived at London, the place of destination, with the goods, and that he was ready to deliver them, of which the defendant had notice, and, although a reasonable time had elapsed, the defendants had not accepted and received the goods, for which detention he claimed to recover damages. Upon the trial before Lord Tenterden the plaintiff was nonsuited, not on the ground that such an action was not maintainable, but on the ground that the master of the vessel could not maintain it. It was held that though the master might sue for the freight upon a bill of lading, yet, when the action was for detention, it cotdd only be brought by the owner. Brouncker v. Scott, (4 Taunt. 1,) is to the same effect. In Jesson v. Jolly, (4 Taunt. 52,) the master was allowed to maintain such an action, upon the ground that it had been provided for in the bill of lading. In Robertson v. Bethune, (3 John. 342,) the action failed, upon the ground that there had been no detention of the vessel with which the defendant was chargeable.
There can be doubt, I think, that, when there has been ho ex
Watson, Wright and Harris, Justices.]
I am of opinion, therefore, that there was error at the trial, both in holding that the plaintiff was not entitled to recover for the freight until the cargo was actually delivered, and also in holding that damages could not be recovered for an unreasonable detention of the vessel. A new trial should therefore be awarded.
Wright, J. dissented.