17 F. Cas. 490 | U.S. Circuit Court for the District of Southern New York | 1848
I have looked into all- the cases in the books upon this question^', both English and American, and am 'satisfied that the weight of authority is déddedly against the allowance of any freight,' under the circumstances of this case, as between the owner and the shipper. Whether, the underwriters would be liable for the freight under their policy, it is not necessary : to determine. The same conclusion must also be' arrived at on principle. By the contract of the parties, the freight was not to be payable until the arrival and discharge of the cargo at the port of delivery. No part of the' contract has been performed. There has !been no default on the part of the shipper,, nor has he done any act dispensing with performance: There is no doubt, that where the cargo is so much damaged that to proceed with .the voyage will endanger the safety of the . ship or render the cargo worthless, it is the "duty of the master to land and sell it at the port of' necessity, in the absence of instructions. from the shipper, even though it •may have been in a condition to be carried in specie to -the port of destination and there landed. In/eases of necessity happening during the voyage, the master is, by law, created the agent for the benefit of all concerned, and his acts: done under such circumstances, in the exercise .of a sound discretion, are binding upon;'all parties, in interest. But the question .still arises, whether, in such cases, the shipper.is to be subjected to the payment of freight. The voluntary acceptance of the cargo by the shipper at an intermediate port, will, it is admitted, have the effect to charge him with a ratable portion of the freight But there is no authority for subjecting him to freight, where the port of distress and of acceptance of the cargo is the port of shipment, and where no part of the voyage has been performed. In several such cases, freight has been denied. What, seems decisive of this case, and of the class of cases to which it belongs, is, that admitting the master to be the agent, at the port of distress, of all parties interested, and that he has acted bona fide and for the benefit óf all corn cemed, in the sale of the damaged cargo, yet, inasmuch as the goods were in a condition that would endanger the safety of the ship and the lives of the crew, if they were carried forward, it cannot be said that the voyage was broken up for the benefit of the cargo any more than for the benefit of the ship-owners. Independently of any- duty that the master owed to the cargo under the existing calamity, the interest of his owners dictated the breaking up of the voyage; and, it being broken up under those circumstances and for that cause, and the shipper having derived no benefit under his contract, it is difficult to find any principle, legal or equitable, that would subject him to any part of the freight. Judgment for plaintiff.
[See The Aim D. Richardson, Case No. 411.]
