5 Johns. 262 | N.Y. Sup. Ct. | 1810
delivered the opinion of the court. It is not a point any xvhere adjudged in the English books,
In a case in which no English decisions are to be met with, it is usual and proper to listen, with attention and respect, to the foreign jurists ; for where positive regulations do not intervene, the law of insurance is part of the general law-merchant of Europe. Cleirac (Jugemens d'Oleron, art. 4. n. 4.) says, “ that the additional freight in these cases becomes gross average, and falls upon the ship and merchandsie.” If this were so, the insurer on the merchandise would have to'bear his proportion; but I see no ground for this opinion, for the case does not come within the reason of the rule for contribution, as this is not an expense incurred for the common safety. The ordinance of Amsterdam throws this expense upon the insurer. The French ordinance of the marine leaves the point doubtful; but Emerigon (tom. 1. 432.) is decidedly of opinion, that the increased freight arising from the necessary change of ship, ought to fall upon the insurer of the goods, and this; he says, is the language of the new ordinance of 1779. We have nothing to do with the municipal regulation of the ordinance, but the
No doubt arises, but that the freight in question was produced by the capture. The cargo was detained at Halifax, when the ship was liberated and ready to proceed. The owner of the goods was of necessity obliged to hire another ship, when his cargo was released. The ship first employed was gone, and was not obliged to stay; and she had justly earned her full freight, by tendering herself to convey the goods the remainder of the voyage.
Upon the whole, the plaintiff is entitled to recover upon the weight of authority, and the better construction of the contract.
Judgment for the plaintiff.