| U.S. Circuit Court for the District of Southern New York | Sep 23, 1856
It is objected that this suit is not brought in the name of the original parties to the contract; but it is every day’s practice, in the admiralty, to allow suits to be brought in the name of the assignee of a chose in action. The libellant is the real owner of the tickets, and, therefore, the proper person to bring the suit, and in his own name.
It is also objected, that the disabling of the New Orleans by stress of weather excuses the fulfilment of the contract at the time provided for. How this might be in a ease where the passenger was on the vessel at the time of the casualty which caused the delay in the voyage, it is not now necessary to determine. Certainly, until the passenger becomes connected with the vessel as a passenger on board, he is in no way subject to her casualties and misfortunes, occurring through stress of weather or otherwise. He is a stranger to her. The contract bound the owner to have his vessel, at the place and time designated. He had stipulated that .as part of the consideration for the price paid, and had assumed the responsibility of •performance; and the failure operated as a breach of the engagement, and made him liable to return the price paid. The winds .and waves, or the weather, are no excuse for the non-fulfilment of the contract as to the time of the commencement of the voyage. If those circumstances had been intended as •elements of it, they should have been expressly provided for by the owner; and then all parties concerned would have understood it
It is said that the passengers should have waited at Panama through the month of April, and that the owner had the whole month to furnish his vessel there. Admitting that he had the month, the utmost that can be claimed is, that the passengers took the risk, if the vessel arrived within the month, of losing their right to demand a return of the fare. There was no abandonment of the voyage, for the tickets for the passage-money were appropriated to the completion of it The passengers doubtless knew the disabled condition of the New Orleans, and that she could not arrive at Panama in time to fulfil her engagement; and it would have been an idle act to have waited through the month, especially as there seems to have been no provision made by the owners for the substitution of another vessel, nor indeed, for aught that appears, any interest or concern taken in the matter.
The decree below was right, and should be affirmed.