24 Wend. 303 | N.Y. Sup. Ct. | 1840
By the Court,
This is an action for dead freight, which the plaintiff below claimed to have earned under a special contract. The plaintiff agreed to allow a space of 330 tons measurement in the ship Mary, on her return voyage from China to New-York ; the defendants on . [ *307 ] their part *to fill so much of the ship and pay $32 per ton. The ship lay at Canton for the term stipulated, in the course of which time she received cargo from various shippers ', and, among others, the defendants filled up 200 out of their 330 tons. As to the residue, which all parties relied would be filled by Low, Wilson & Co., there was a failure, if we except the trifling amount of silk furnished by Russel & Co., who it is • agreed were the sole agents of the former at Canton, and were looked to by all concerned as the only persons who were expected to fill the 130 tons. This was as well known to Blight & Co., the plaintiff’s agents, and to the master of the Mary, as to any other person. All the defendants, resided in the city of New-York, and to them the ship was to be consigned. A good deal of intercourse by way of notes or letters and otherwise passed between Blight & Co., who had the charge of the plaintiff’s business at Canton in respect to the cargo of the Mary, and Russel & Co.; and by the 21st of April, about a week before the time fixed for her departure, all prospect having failed that Low, Wilson & Co. would be able to perform, Russell &
It may be conceded that if the offer of goods by Russell & Co. had proposed them in fulfillment of the stipulation in "the con- [ *308 ] tract, it would have been the duty of the plaintiff’s agent to refuse them on such terms. A tender of payment or performance must always be unqualified ; and in the case of cargo tendered under a charter party, this is in general especially important, because, by signing bills for less than the stipulated freight, though it may not affect the owner’s personal remedy against the merchant, the master may lose his lien for the balance. The owner is entitled not only to the security of the charty party ; but to the additional right of lien for the whole freight which grows out of the nature of the contract. It was upon this ground that Lord Ellenborough proceeded in the case of Hyde v. Willis, 3 Campb. 202. The defendant stipulated by his charter party to furnish a full cargo of sugar, and pay freight at the rate of 10s. 6d. per cwt. ; but on the ship arriving at Jamaica, his agent tendered the sugar, insisting that bills of lading shouM be signed at 10s. That was held to be a defective tender ; that the master might treat it as a refusal to perform ; might regard the contract as broken, and recover for dead freight. Lord Ellenborough did not say, however, that the bill of lading being signed in the terms proposed would discharge the defendant from his personal stipulation to pay 10s. 6d; and clearly it would not have any such effect. He said the master must deliver the goods, on payment of the freight mentioned in the bill of lading. This must have been, because it so provided by its own terms ; but such delivery would be in no way incompatible with a remedy by action for the agreed amount of freight in the charter party. The right-of lien is merely to secure what is due for the labor of the ship ; it is for the benefit of the master or owner, and may, like any other security, be waived by the party to be benefitted, without impairing his right to a remedy by action. Abbott on Ship. 280, 281, et seq. Am. ed.
But I forbear to pursue the inquiry as to the rights and obligations of these parties in their course towards a compliance with the contract. I agree that the owner and his agents might insist on its exact terms, at least the substance of them, being followed. The question, I think, is not alone whether Blight & Co. or the master were bound to take the goods offered by Russell and Co in performance. All idea of performance had by this time been abandoned by both sides. It was completely ascertained that Low, Wilson & Co. could not fill the 130 tons, and the ship was not even bound to remain till the lay days had expired with any view to performance. Blight v. Page, 3 Bos. & Pull. 295, note. Abbott on Ship. 428, Am. ed. of 1829. And if there were nothing more in the case, the master might have immediately weighed anchor and, sailed for home. The defendant’s contract might be considered as, pro tanto, already broken and the master absolved from the duty of all further stay.
The more grave question is, however, whether, under such a concourse' of circumstances, the master did not owe another duty to the defendants which he has unwarrantably refused to discharge. By failing to perform, and that promptly, I admit the defendants had already subjected themselves to an action for damages. That they do not deny ; but it by no means follows that where a man has hired out the services of his person or his property at a stipulated price, and the employer has failed to perform, the employee may, either by lying still, or omitting to engage otherwise in the general line of his business, as a matter of course subject his employer to a payment of the whole contract price. We lately had occasion to consider this [ *310 ] rule as applied to canal freight in Shannon v. Comstock, 21 * Wendell, 457. And I will only repeat as to the general ground, the remark of Mellen, Oh. J., in a case there cited: “ If the party entitled to the benefit of the contract can protect himself from a loss arising from a breach, at a reasonable expense, or with reasonable exertions, .he fails in his-social duty if he omit to do so regardless of the increased amount of damages for which he may intend to hold the other contracting party liable.” A doc
But the master chose to decline taking it. We have so far examined his right only. Having the power to rescue the shippers from more than one half the damages arising from their misfortune, (for no fraud is pretended,) was it his duty to do it ? It appears to me that Lord Tenterden answers this question directly, in Abbott on Ship. 428, ed. before cited, pt. 3, ch. 11, § 2. He is speaking particularly of a merchant hiring a ship to go to a foreign port, and covenanting to furnish a lading there, but his performance being prevented by a prohibition'of the foreign government against exportation. After citing cases to show that his obligation is not thereby dissolved, as it would be by a prohibition of the merchant’s own government, the book adds : “Butin such case, or if the default be owing to the personal neglect or inability of the freighter, and not to any general cause, the master on his arrival at the port of lading, should obtain another cargo, if possible, from other persons, and not sullenly hoist sail and depart, in order to charge the merchant with the whole freight. JLnd if, upon the ship’s arrival, he is informed that the merchant is unable to furnish the lading, he cannot, by waiting the time appointed in the charter party, eharge the merchant with the demurrage.” It is scarcely necessary to add that the learned writer thus puts the very ease at bar, and applies the very principle cited from the opinion of Mellen, Oh. J. and which we applied as the rule of damages for violating an agreement to furnish freight for a canal boat, in Shannon v. Qomstoch. The same rule in substance was asserted in an earlier edition by Lord Tenterden himself. Vide Am. ed. of 1822. Both the books were edited here by Mr. Justice Story, who seems judicially to approve of the rule in question by what he said of it in Kleine v. Catara, 2 Gallis. 75. The case of Blight v. Page, 3 Bos. & Pul. 295, note, is relied on in both editions; and that branch of the decision which denies all allowance to the master for demurrage does contain a principle sufficient to warrant the rule in the full extent to which it is laid down by the last edition of Abbott. It *shows not only that the master has a [ *314 ] duty to perform, but that if he do not perform it, and on the contrary, so conduct without necessity, and on full notice, as to enhance the mischief under a belief that the freighter must bear all the loss, he cannot recover in respect to damages thus incurred, thus drawn upon himself by his own voluntary unnecessary act. In the language of Lord Kenyon, there would be no pretence for damages.
The objection as to the form of the offer from Russell & Co. is answered-by the nature of the master’s duty. That was to seek for freight and oh tain it if possible. Of course he was bound to make the suggestion that it could be had, coming from persons respectable as Russell & Co. appear to have been, the foundation for inquiry and final acceptance of such freight as it might lead to, if that could be obtained on reasonable terms. He was bound to meet any offer more than half way.
I think, on the whole, that the plaintiffs in error have reason to complain of the rule of damages adopted "by the court below; and, for that cause, the judgment should be reversed; a venire de novo to go from that court, the costs to abide the event.