Griswold v. New-York Insurance

Kent, Ch. J. 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 [328] safe arrival and delivery at the port of destination. How ¿¡oes jt appear that freight could not have been earned ? For the plaintiffs to abandon without assuming this risk, was treasonable and inadmissible. It would, no doubt, have suited very well with their convenience to have re» ceived the full freight for the voyage, without ever leaving the port of New-York, and to have employed the time which that voyage would have consumed, in earning freight on some other. But they cannot be permitted to enjoy this good fortune, unless they can show clearly that the freight insured was lost, either by the act of the shipper, or by the perils of the sea. Whether it would have been wise or foolish in the shipper, to have sent oh the flour, in the condition it was in, was a question not to be put by the plaintiffs. It was none of their concern. The risk of the value of the cargo at the port of delivery lay with the owners of the cargo, All that the plaintiffs had to do by their contract, was to provide the means to take on the cargo, by repairing their ship, or procuring another. 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 [329] ineompatible with the personal responsibility of the shipper, and does not extinguish it. The consideration for the freight, is the carriage of the article shipped on board, and the state or condition of the article at the end of the voyage has nothing to do with the obligation of the contract. It requires a special agreement to limit the remedy of the carrier for his hire to the goods conveyed. It cannot be deduced from the nature of the undertaking» The ship-owner performs his engagement when he carries and delivers the goods. The condition which was to precede payment, is then fulfilled» The right to payment then becomes absolute, and whether we consider the spirit of this particular contract, or compare it with the common law doctrine of carrying for hire, we cannot discover any .principle which makes the carrier, an insurer of the goods as to their soundness, any more than he is of the price in the market to which they are carried. If he has conducted himself with fidelity and vigilance in the course of the voyage, he has no concern with the diminution of their value. It may impair the remedy which his lien afforded, but it cannot affect his personal demand against the shipper. This conclusion appears to be so natural and just, that I cannot perceive any plausible ground upon which it has been questioned or denied. The weight of authority is certainly on this side. The French ordinance, of the marine (tit. du Fret, art. 25.) is explicit to the point. This code is not only very high evidence of what was then the general usage of trade, but from its comprehensive plan, and masterly execution, it has long been respected as a digest of the maritime law of all the commercial nations of Europe. Valin, in his commentaiy upon this ordinance, calls in question the equity of the rule ; but his reasoning, when we apply it to the true construction of the contract, is weak and superficial; and it has been exposed and answered, and the solidity of the rule vindicated, by a superior and more luminous jurist. (Valin, tom. 1. 670. Pothier, Charte-Partie, No. 59.) [330] But though this question has never been settled at Westminster-Hall, Mr. Abbott (p. 243.) says, that the assumed right to abandon deteriorated goods, at the port discharge, is not, in point of practice, claimed in that country, and his opinion is evidently in favour of the rule, as established in France. We have, however, the opinion of Lord Mansfield against it, according to the report of the case of Luke v. Lyde; and if we were certain of the accuracy of that part of the report, and that the observation was intended to apply to the very question before us, we ought to pause even over the dicta of so pre-eminent a judge. We cannot, however, bend our convictions to a mere extra-judicial saying, and when this cause was formerly before us, the weight of this dictum was greatly-diminished by the judicious reflections of one of the judges 6f this court,* who has since been elevated to the bench of un{ie¿ States. 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. Footnotes [*] Mr. Justice Livingston.