Emery v. Dunbar

By the Court. Daly, E. J. It is a well settled rule of law that if freight is paid in advance,and in consequence of the capture or shipwreck of the vessel, or other cause beyond the control of the master or owners, the goods are not carried to the place of destination, the freight is not earned, and may be recovered back, unless a special agreement was made to the [411] contrary. This was expressly adjudged to be the law in Watson y. Duykinck (3 Johns. R., 337). It is shown by a passage in Cleirac to have been a prevailing maritime rule when that work was published in 1671; Les Us et Coutumes de la Mer Jugemen D'Oleron, p. 42; and as such it was incorporated, ten years afterwards, in the celebrated marine ordinances of France in these words, “Ra freight shall be due for goods lost by shipwreck or taken by pirates or enemies.; and in that case the master shall be obliged to return what has been advanced to him, except there be some agreement to the contrary.” Art. XVIII. It was held to be the law in England in Mashiter v. Buller (1 Camp. R., 84). In Massachusetts in Griggs v. Austen (3 Pick., 20), and again adjudged in this State, to be the law in Phelps v. Williamson (5 Sandf., 578). Where a general rule or principle of law like this has been long and well established, it cannot be controlled by proof of any usage to the contrary (Hone v. Mutual Insuran e Co., 1 Sandf. S. C. R., 149; Frith v. Barker, 2 Johns. R., 327; Rankin v. The American Ins. Co., 1 Hall R., 619; Bowen v. Newell, 4 Seld. R., 195 ; Schieffelin v. Harvey, Anthon’s N. P. R., note 1, 2d ed., p. 80). This disposes of the defendant’s answer, which was an attempt to set up that by an “ immemorial custom and usage in the United States, and in the State of New York,” freight is not repaid in such a case, but is retained by the ship owner. Judgment was therefore properly given for the plaintiff on demunvr, and the decision at Special Term must be affirmed. Judgment affirmed.