Griswold v. New-York Insurance

| N.Y. Sup. Ct. | May 15, 1806

Lead Opinion

Kent, C. J.

I am of opinion that the plaintiffs might have carried on the flour without a re-inspection, and if the owners had refused to permit them, they would have been liable for the full freight for the voyage. The inspection law does not apply to the case of flour duly inspected and shipped, and relanded after the commencement of the voyage, for a temporary purpose merely. It might have been otherwise, if the voyage in question had been given up, and the flour afterwards purchased for another and distinct voyage. But as long as the voyage continues, the first inspection will be sufficient.

The plaintiffs had also a right, on refitting their ship in due season, to insist on taking on the cargo, or to be paid their full freight. This rule received a clear and full recognition, in the case of Lutwidge & How v. Gray, determined in the house of Lords in 1733; (Abbott, 249) and it was alluded to as being a settled rule, by the court of K. B. in the cage of Luke & Lyde. (2 Burr. 882.) But we have a nearer authority, in the case of Herbert v. Hallett, decided in this court in April Term, 1802. It was an action on a policy on freight, on a voyage from New-York to the Havanna. The voyage commenced, and the brig was stranded at Sandy-Hook. The cargo was unladen in an injured state, and brought back to New-York, and the vessel returned in three or four days, and in two or three weeks was completely repaired. The court held that the freight of the voyage was lost by the negligence or folly of the plaintiff, and not by the perils of the sea; for that he might have taken on the cargo, but having neglected to entitle himself to freight against the shipper, he ought not to recover it of the insurer*

The only remaining inquiry in this case is, whether the defendants accepted, and thereby made valid, the abandonment of the freight. The abandonment of the ship was made to them on the 7th of March, when she was in safety, and then there was no colour of right to abandon, nor was there any proof of an acceptance. The defendants did not, therefore, become owners of the ship, so as to have made it incumbent on them, to have offered to carry on the cargo. Nor is there any act of theirs, which looks towards an acquiescence in the abandonment of the freight. Their agent superintended the unlading of the ship, and that act was requisite for the repair of the ship; this superintendance was prudent and proper, as they were responsible for the damages and repairs, and it would be unreasonable to construe this act, which evidently had for its object only the repair of the ship, into an acceptance and ownership of the freight.

I suppose it unnecessary to examine the question, whether the shipper would be liable for any freight, after having abandoned his cargo to the owner of the vessel, in consequence of its great deterioration, because, we have no reason to conclude from the case, that the flour would not have been of sufficient value at the port of destination, to have paid the freight. The verdict before us is clearly against evidence and law, and ought to be set aside with costs to abide the event.

Tompkins, J. Spencer, j, and Thompson, J. concurred.

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Concurrence Opinion

Livingston, J.

I concur in the opinion just delivered, but there is one point made in the cause that has not been noticed, and which it appears to me necessary to decide before the plaintiffs can have judgment.

■ To malee out a right to abandon, it was insisted that the injury which happened to the cargo, would have rendered it of little or no value before it reached its port of destination, and that therefore the plaintiffs would have earned nothing by carrying it on, as the shipper might, in such case, have avoided payment of freight altogether, by an abandonment of the property.

That an owner of a vessel, after a literal performance of the terms of the charter-party, by carrying a cargo to its destined port, should be entitled to freight, whatever injury it may have sustained in transitu, so that it proceed from no fault on his part, appears a proposition so self-evident, that perhaps it never would have been questioned, but for what fell from Lord Mansfield in delivering judgment in the case of Luke v. Lyde. “ If the u merchant,” says his lordship, “ abandons the whole car- “ go, he is excused freight, and he may abandon all, “ though they are not all lost.” But, besides that a different point was then before the court, it is not certain, that Lord Mansfield intended to be understood, as speaking of an entire cargo, actually transported to its place of delivery. If he did, I can only say, that the opinions of the most learned judges, on points not at the time in issue, though entitled to respect, have not the force of authority, on those who follow them. This would be making the ship-owner, an insurer of goods to the amount of his freight, and exposing him to an entire loss of the latter, without any fault on his part. Where is the evidence of his having assumed the risk ? In the contract we look for it in vain; still less will the conclusion result from any fair course of argument. When a good vessel has been provided; when she has been well found; when she has performed the voyage, and is ready to deliver her cargo, there is nothing more which the merchant has required as a condition precedent to the payment of freight. Upon what pretext, then, after having used the vessel agreeably to the contract, can he throw on the master’s hands a cargo which may not be worth a cent, instead of paying ° J . , - the sum agreed on for the carriage of his goods ? What in such case is to become of the mariners ? Are they too, to lose the wages of their labour, which would lea natu* ral, but unreasonable, consequence of such a doctrine, for, generally speaking, if freight be not earned, no wages are due ; or are they also to come in for a dividend on a damaged and putrid cargo ?—Surely, they may say with the poet, hose in fwdera non v animus. If the injury arise from the misconduct of the owner, master, or mariners, or from unfitness, or want of sea-worthiness in the vessel, there is no hardship in depriving the owner of freight to the extent of the damage done, and rendering him liable for farther compensation, if necessary to make the merchant whole, and also for the seamen’s wages. Of the same ©pinion is Pathier^* in his treatise on charter-parties.

New trial granted.

* Charte-Partie, Part 1. Sec. 3. Art. 2. § 1.