Watson v. Duykinck

Kent, Ch. J. delivered the opinion of the court. The record in this case presents a question of some nicety and difficulty, arising under the marine law. The general rule undoubtedly is, that freight is lost unless the goods are carried to the port of destination. The rule seems also to go farther, and to oblige the master, in case of shipwreck, to restore to the shipper the freight previously advanced* The English books are almost silent on the subject, and afford little or no information ; but if we resort in this, as we are obliged to do, in many other instances, for light and information, to foreign compilations, and distinguished writers on maritime jurisprudence, we shall find the point before us to have been considered and decided. Cleirac, in his commentary on the judgments of Oleron, art. 9. no. 9. (les Us et Coutumes de la Mer, p. 42.) declares, that in cases of shipwreck, the master is bound to render to the merchants, the advances which they may have made upon the freight, and hé cites a decision of one of the early jurists, in confirmation of his doctrine: naufragio facto exercitor naula restituit quce ad mannm perceperat, ut qui non trajecerit. The ordinance of the marine (tit. du Fret, art. 18.) recognises this ancient rule, and ordains, that if goods be lost by the perils of the sea, the master shall be holden to refund the freight which had been previously advanced to him, unless there be a special agreement to the contrary. This agreement, according to Valin, (Comm. sur l'Ord. tom. 1. p. 661.) always contains an express stipulation, that the money advanced shall be retained in any event which may happen in the course of the voyage. The policy of the general rule on this subject, was to take away the temptations to negligence or misconduct, which the certainty of freight was calculated [340] to produce in the master. I ought, perhaps, to observe, tjmt t^re jg a ¿iCfUm 0f Mr. Chief Justice Saunders, stated in an anonymous case, in 2 Show. 291. which would seem to imply, that advance money for freight was, in no event, .to be refunded ; but I do not place reliance upon that very imperfect report, in opposition to the explicit opinions of the writers which have been mentiotied.(a) The general principle undoubtedly is, that freight is a compensation for the carriage of goods,- and if paid in advance, and the goods be not carried, by reason of any event not imputable to the shipper, it then forms the or--' dinary case of money paid upon a consideration which happens to fail. - The general rule being then well established, the present case turns upon this point, whether the agreement stated in the special verdict, be such as to take the case out of the operation of the rule. The parties agreed,that in. consideration of 100 dollars, to be paid immediately, the one would suffer the other to proceed and go : in the sloop, as a passenger, on the voyage, and to load on board for transportation, merchandise to the value of ; 6Ó0 dollars, and that he would also maintain him as a pas-' senger, during the voyage. .The other party assented and -! paid the money, and put the goods on board, and proceed- - ed with them as a passenger, until the disaster took place. This agreement did not go the length required by the [341] French law of stipulating that the money should at all events be retained, but it was still particularly confined to the permission to be received on board, as a passenger, and to load the goods on board. Both these parts of the agreement were literally complied with. This can easily be distinguished from an agreement to transport and deliver at the place of destination. In the one case, the master places his compensation upon the actual carriage and delivery of the goods. The safe arrival of the subject is a condition precedent to the payment. In the other case, the consideration is rendered by receiving the goods on board, and making all due and bona jide efforts to carry and deliver them. I think this latter is, upon the whole, the better construction of the agreement before us, especially as the practice of retaining the advance freight, in all such cases, must have been known to the parties, from the usage which has been found by the jury, and as the distinction between an agreement to receive on board, and an agreement to transport and deliver, is not a new refinement, but can be traced back to the text of the civil law. The doctrine is recognised and adopted by various authors, that if the agreement be to pay freight for the loading of the article on board, the freight is due, though the article perish in the course of the voyage. This is the language of the civil law. Gothofeedus, in his notes on the Digest,* (14.2.10.) states the distinction in more clear and explicit terms. Conduxisti vehenda mancipia: mancipium unum in navi mortuum est; quceritur, num vectura debeatur ? Si de mancipiis vehendis inita conventio est, non debetur; si de mancipiis tantum navi hnponendis debetur. Molloy (b. 2. c. 4. § 8.) and Abbott (p. 225.) seem to have followed the same authorities, but without making any discrimination between the cases where the money was, and where it was not actually advanced beforehand. Perhaps, no such discrimination is to be made, though I think the case of the money actually advanced is the stronger case, .as forming superior evidence of the intention of the par [342] ties that the freight received should, in every event, belong to the master. We conclude, upon the whole view of this case, that Watson, the plaintiff in error, was entitled to retain the money, and, consequently, that the judgment below ought to be reversed. Thompson, J. not having heard the argument in the cause, gave no opinion. Judgment reversed. Footnotes [(a)] JRoccus is also of opinion, that freight paid in advance must be i refunded, if the ship is lost during the voyage, or is prevented, by any sinister accident, from arriving at her port of destination. “ Naulum, , seu vect ura non debetur si locator navis propter amissam, navim, ve alium, easum in earn contingentem iter non fecerit, imo si solutum fuerit repetí- ■ tur.” De nav. et naulo. not. 80. This doctrine he derives from the Digest, (lib. 19. tit. 2.1. 15. § 6. Locat. conduct.) ' Straccha, (de navi. 3. n. 24.) with whom Loccenius {dejur. marit. lib. 3. c. 6. § 11.) and JRoccus (n. 81.) coincide, is of opinion, that, according-’ to this law, the master is entitled to freight, pro rata itineris, where hé " has not been in fault. This idea seems to be founded on a principle of the . contract of letting to hire ; but Poihicr, (Chartc-Parlic. n. 63.) with bet- , Ser reason, thinks the rule of the French ordinance the most equitable, and that no freight is due in such a case. [*] Lex Rhodia de jactu.