Robertson v. Bethune

Van Ness, J. This was a; general ship, in which the defendants had no other interest than what they derived under the _ special contract. The plaintiff engaged to carry to Surinam certain specified articles, and to bring back 200 hogsheads of molasses, for which the plaintiff agreed to pay 2,600 dollars. The contract provides, among other things, that the defendants should be allowed 35 working days at Surinam, for discharging the outward and loading the homeward cargo; and it contains this further stipulation, that if any accident should prevent the delivery of the return cargo, (and this must mean a — 348 — delivery of it within the 35 days’) the defendants should, ' ’ m that event, be liable to pay 1,300 dollars for the freight 0f the goods out. When, therefore, the return cargo was not ready to be put on board, within the 35 days, the master was no longer bound to wait for it; but from that moment the contract terminated, to all intents and purposes, and both parties were absolved from all future liability under it. No provision was made, however, for any compensation for the detention of the ship, in case the 200 hogsheads of molasses should not be put on board within the 35 days. In charter-parties, there frequently is a stipulation that the ship shall, if required, wait a further time to unload and reload, for which the merchant covenants to pay a certain daily sum for demurrage. There is no stipulation of that kind in the present instance, and I cannot perceive any thing in the case from which a promise to pay for the detention of the ship ought to be implied. No obligation ought to be intended beyond those which are imposed by the written Contract. Carstairs, the consignee of the cargo, (but who had nothing to do with the ship) had no authority to bind the defendants by express stipulation to pay for the detention, -of the ship. But if he had such power, there is no evidence that - he did enter into such a stipulation. The master says, that when he urged Carstairs to be expeditious in providing the molasses, Carstairs told him that the defendants "were not going to pay 2,600 dollars, and not have their full cargo ; and that if he insisted on sailing, Carstairs said he would turn over to the defendants the 43 hogsheads of molasses which had been put on board for the plaintiff. It is evident, from these expressions, that Carstairs had no intention to make the defendants liable for any thing beyond the terms of the written contract, of which he had a copy ; and it is fairly to be inferred, from the master’s silence as to any extra compensation for the detention of the ship during the whole of the'transaction, that he also had no idea that his owners would have a right to demand it. There can be no doubt but that the — 349 — master waited for the molasses, with no other view than to secure the freight mentioned in the written agreement, to be paid for the homeward cargo. I cannot conceive upon what ground the authority of Carstairs to bind the defendants to pay for the detention the ship, can be maintained. An express authority from, the defendants is not pretended, and it certainly does not result from his being consignee of the goods. He was, it is true,, to furnish the return cargo, but this could give him no power over the ship. If he had a right to render the defendants responsible for the detention of the ship, for one day, he might for a longer period, and this right would be the same, whether the defendants had 5 or 500 hogsheads, of molasses. In this way, Garstairs might have subjected the defendants to the payment of a sum, amounting to double or treble the value of the molasses. And cases may easily be conceived, where a mere consignee of the goods (if the doctrine contended for by the plaintiffs should be recognised) might ruin the merchant. The case of Jamieson Co. v. Laurie, differs very essentially from the present. In that case, there was evidently a letting of the whole ship. Jamieson & Co. are said to have sent the ship to Cronstadt. They gave the captain his letter of instructions, and they consigned the ship to Atkyns Co. From these and other facts in that case, they appear to have had the exclusive management, possession and direction of the ship during the voyage. Another and a prominent fact in that case, is, that the ship was detained by Atkyns Co. who were the consignees of the ship, and this forms also a striking distinction between the two cases. The case of the hiring of a carriage, put in the argument, is not analogous to the one now under consideration. There, also, is a letting of the whole carriage, the custody and direction of which is parted with by the owner, for the exclusive use and benefit of the party to-whom it is let. Nothing is to be inferred against the defendants from the circumstance of their receiving the molasses on — 350 — the return of the ship. They considered themselves bound by the special contract to pay, and have therefore paid the 2,600 dollars, which they supposed was the' extent of their liability. There is reason to suspect that the present demand on the part of the plaintiff was an after thought. If he had supposed the defendants were responsible for it, it is not very probable that he would have delivered to them the molasses, until this demand, as Well as the 2,600 dollars, was paid. I am of opinión, therefore, that a judgment of nonsuit ought to be entered. Kent, Ch. J. and Y ates, J. were of the same opinion. Spencer, J. From the facts appearing in this case, it is evident that Carstairs, the agent of the defendants, detained the vessel for their benefit, from the 3d to the 23d day of January; for though the defendants’ portion of the return cargo was onboard on the 18th of January, the master and crew were employed from that time until the1 sailing of the vessel, in adjusting the cargo, and getting ready for sea. It remains to inquire, whether this action can be maintained for the detention. The general principle cannot be denied, that wherever one person does an act beneficial to another, at his request, or by his consent, and which act is not intended to be gratuitous, an action of assumpsit will lie for a compensation for the act performed. It was strongly urged, on the argument, that demurrage can only be claimed, where there has been a charter-party, or letting to hire of the entire ship, and then as a matter of stipulation by way of penalty ; but no authority was produced to support this doctrine; and I think that the contrary is established in the case of Jamieson v. Laurie. (Abbott, 158.) That case arose in Scotland, and was decided upon the principles of the English law, with a view to render the law of Scotland, in that respect, conformable to the law of England, and was finally decided in the House of Lords. — 351 — In that case, there was no charter-party, and the only evidence of the contract was a letter of instructions from Jamieson & Co. to the master. The vessel ought to have sailed on the 1st of September, on her return voyage ; but she waited for the homeward cargo to be shipped by Jamieson & Co. at the instance of their agent in St. Petersburgh, until the 28th of October, when the vessel cleared out. But it is said, that Messrs. Atkins, E. Rigeul & Co. the merchants at St. Petersburgh, were the consignees of the ship. It is true, that the ship was addressed to them by Jamieson & Co. who were rendered responsible, not because the merchants, to whom the ship was addresssd, had any positive controul over the ship, but because the master had waited at the request of the agents and correspondents of Jamieson 8? Co. It was admitted on all hands, that the master might have returned empty, or have obtained another cargo, after the 1st of September; and the House of Lords finally decided that Jamieson 8? Co. should pay the usual freight, and a compensation in the nature of demurrage, from the 1st of September, until the vessel cleared out, and was ready for sea. I can see no material difference between that case, and the one now before the court. They both proceed on the principle, that the plaintiff sustained an injury in remaining with his vessel, waiting for the defendants’ cargo, by the direction or means of their agent, and that the' party who has enjoyed the benefit, is bound to make compensation for the injury. The form of action appears to me to be the only one adapted to the case, and I know of no other which would so well comprehend the plaintiff’s claim. Some objection was made to the admissibility of the evidence, as to the extent of the injury arising from the detention. It was the only evidence that the nature of the case admitted. The demurrage is necessarily made up of various items, such as the wages and provisions of the crew, the wear and tear of the vessel, and loss of — 352 — employment during the detention. As there can be no accurate estimate on the subject, it is proper to receive the opinions of persons conversant in such matters, and acquainted with the nature of the trade. I am 0f opinion, therefore, that the plaintiff ought to have judgment. Thompson, J. not having heard the argument in the cause, gave no opinion. Judgment of nonsuit.