3 Johns. 321 | N.Y. Sup. Ct. | 1808
delivered the opinion of the court. The only material difference between the special verdict before us, and the case, which was made upon the former trial of this cause, is respecting the extent of the damage to the flour. It is now found that all the flour, except between IQO and 2pO barrels, became damaged, and wholly unfit to he reshipped, for that or any other* voyage, and that if the damaged flour had been carried to Barcelona, it would have been worth nothing there, and would have injured the sound flour, and that no prudent person would have taken the cargo as a gift, and carried it, subject to the expense of the freight. But it is also found, that the whole cargo was sold at New-York, at a loss of only 25 or 27 per cent, which was, of course, more than double the amount of the freight.
These facts do not appear to vary in any degree the application of the principles laid down by the court in the former consideration of this cause. When the plaintiffs abandoned, on the 5th of March, they had a cargo in charge worth more than double their freight. The ship was in a condition to be immediately and easily repaired, and in 17 days she was repaired, and ready for sea. If the plaintiffs, instead of abandoning to the defendants, had offered to proceed with the cargo, and the owners of it had refused, they would have made themselves liable for the full freight. If the owners had consented, the plaintiffs would have been bound to proceed, and run the risk (against which risk the defendants had assured by the policy) of losing the freight by the loss of the cargo, in the course of the voyage, or of earning freight by its
But it is said, that the cargo, if carried on to Barcelona, would not have been worth the freight. This is the import of the special verdict. Here, then, the question arises, whether the plaintiffs would not have had their remedy against the shipper, personally, for any deficiency in tfle freight, or whether the owners could discharge themselves completely, by abandoning the damaged cargo to the plaintiffs, after its arrival at Barcelona.
This question has not, hitherto, received any judicial decision in the English courts ; and it has been frequently mentioned in this court as a point unsettled. ' We are, therefore, called to examine the question upon principle, and upon the authority qf the marine law of foreign states.
The contract of affreightment, like other contracts of letting to hire, binds the shipper personally, and the /ze?z which the ship-owner has bn the goods conveyed, is only an additional security for the freight, This lien is not
The acquiescence of the defendants in the breaking up of the Voyage, and the abandonment of the freight, have been urged to the court as facts, better supported by the special verdict, than they were by the case made. There does not, however, appear any material alteration of the cause in this respect, and there is nothing which gives sufficient colour for such an inference. The acts of Kermit, the agent of the defendants, relative to the delivery of the cargo to the Commercial Insurance Company, went no further than was requisite to the unloading and repairing of the ship, of which the defendants were also the insurers. Every act is referable to that object. The assent "bf the defendants ought to have been found as a positive, substantive fact, if it ever existed. It would be úrijust to infer it from acts capable of a different explanation, and which at most were but equivocal.
"The coartare, accordingly, of opinion, that judgment mustbe rendered for the defendants.
Judgment for the defendants.
Mr. Justice Livingston.