Cope v. Dodd

The opinion of the court was delivered by Bell, J. Our attention is principally to be directed to two points: First, will this action lie against any one ? and if so, then, secondly, is it well brought against the owners of the ship ? Subordinate to these, are certain questions of evidence. The answer to bo returned to the first point, depends on the nature and extent of the contract made with the plaintiff below; whether it was an absolute understanding to transport him from Philadelphia to Liverpool ? or, as the defendants contend, it imposed no further duty than to furnish a chance of passage, in a particular ship, which should be seaworthy, and sail on the day specified, leaving the passenger subject to any unavoidable contingency that might happen to defeat the voyage. Were the precise meaning of the contracting parties indicated [36] by the expressed terms of their agreement, or by unequivocal acts, there would of course be no room for legal construction. But in the absence of any such express manifestation, and of a governing custom, equivalent to it, we must have recourse to the object which led to the arrangement between the bargainors, as furnishing the most reliable standard by which to measure the extent of the obligation assumed. This will generally enable us to ascertain what in legal contemplation are the relative duties imposed by the undertaking of the parties. Apart from analogy, I think there ought to be but little difficulty felt in ascertaining the extent of these duties in the present instance. The ship, commanded by Captain Miercken, is about to sail for Liverpool; the plaintiff below was desirous of going thither; the receipt, signed by the captain, acknowledges to have received from the plaintiff, $80, “ for his cabin passage in the ship Thomas P. Cope, to sail this day, for Liverpool.” This is certainly expressive of an agreement to furnish a passage in the cabin of the ship to the port of Liverpool, in consideration of an ascertained price paid. Now if one seeks of another a means by which to reach a particular place, and that other agrees to furnish it, under his own guidance, it is apparent the object of both is the transportation of the former to his place of destination; and if tins fail, the contract is broken, and the price to be paid for its performance unearned. Nor is the nonperformance excused by inevitable accident or necessity, even though this proceed from the act of God himself. Brecknock Canal vs. Pritchard, 6 T. Rep. 750; Platt on Cov. 275. The conclusion I have stated would be the result of unassisted reason. But it is also fortified by authority. In the strictly analagous case of a contract of assignment, the price of transportation is not earned until the delivery of the goods at the appointed place, even though this be prevented by a temporary prohibition of alí intercourse. Barker vs. Hodgson, 3 Maul & Selw. 267.— It has been suggested by the defendants below, that freight and passage are subject to different rules, dependent on the fact that freight is not payable until after the determination of the voyage, while the fare for passengers is always pre-paid. But is the fact so ? In Lemon vs. Gordon, 8 Carr & Pay. 392, Lord Abinser said: “ As to freight, the usual practice is to pay it before the vessel sails, but it is also the law, it must be paid back, if the vessel does not arrive.” In truth the time of payment can work no distinction in the principle, by which the liability of the shipper is to be determined. In both freight and passage, the period of payment depends on the contract; (Watson vs. Duykinck, 3 Johnson’s Rep. 340-1; Andrew vs. Moorhouse, 5 Taunton 435,) and though it be admitted that where nothing is said on the subject, freight is usually payable after delivery of the goods, and the fare of a passenger before the beginning of the voyage, yet this is [37] practised, rather as a means of security, than with any intent to introduce or indicate a radical change in the nature of the contracts. All the cases cited on the argument shew this; no precedent has been brought to notice, favoring the opposite notion, upon which the defendants rest. In Lemon vs. Gordon, (supra,) it was ruled, that a wrecked passenger could not recover the pre-paid passage money from the owners of the lost ship, for want of proof of payment to them; yet the court seemed to entertain but little doubt it might be reclaimed from the captain, to whom it had been paid, though the vessel had reached the Cape of Good Hope, on her voyage to the East Indies; so Gillen vs. Simpkin, 4 Camp. 241, is founded on a concession of the ordinary right of a passenger to reclaim from the owner, for it was determined against the plaintiff, solely on the ground of a contrary custom, proved to prevail in "West India voyages. And the doctrine recognized in the American case of Howland vs. The Brig Lavinia, 1 Peters Adm. Dec. 126, is in full accordance with the instructions given to the jury by the court below. “Passage money and freight,” said Judge Peters, “ are governed by the same rules; it is, therefore, not due, before the passenger arrives at the port of destination, unless compensation, pro rata ittyieris, is agreed to be paid. His expenses, or the means of proceeding, must be tendered to passengers. If the passage money has been paid beforehand, it ought to be refunded, if the voyage be not completed, on the principle before stated,” and he cites Molloy de jure Maritimo 250-260. But the defendants intimate that a different custom prevails on voyages from Philadelphia to Liverpool; and they complain that they were prevented from proving it. I think the record shews, they were permitted to make the effort and failed. After their witnesses denied all knowledge of such a custom, they proposed to prove particular instances, like the present, in which passage money was not refunded, from which they would have the jury infer a custom. The court properly refused this offer. A usage which is to govern a question of right, should be so certain, uniform and notorious, as probably to be known to, and understood by the parties, as entering into their contract. U. S. vs. Duval, Gilp. 356. And it cannot be proved by single isolated instances. Dean vs. Swoop, 2 Bin. 72. This was the attempt here, after a failure to establish the alledged usage in the ordinary way. From what has been observed, it is obvious that if the court committed an error, in referring to the jury the task of ascertaining the disputed contract, it was a mistake of which the defendants ought not to complain, since the judge might have properly charged, that under the facts in proof, the plaintiff was entitled to be reimbursed the sum paid by him. But are the owners of the ship liable to be called on to refund ? It is evident, that Captain Miercken was their agent, in this busi [38] ness. In receiving the passage money, be must have acted in that capacity for the ship, and consequently, the means of transportation was theirs; and it is part of the case, they were entitled to, at least a portion of the sums, received for fare. True, the captain was - also entitled to a portion, but this was the result of a private arrangement between them, as employers and him as servant ; and intended to remunerate his services in conducting the ship, and his outlay in furnishing her cabin stores. But his right so to receive, in pursuance of this arrangement, did not make him less their servant and'representative, in all that related to the vessel and her earnings; consequently with that arrangement, the plaintiff had nothing to do; and proof of it was, therefore, irrelevant. This ruling is not in contradiction of Lemon vs. Gordon, (supra,) for there, so far as appears, the whole business of carrying passengers appertained to the captain of the vessel. The court was right, too, in refusing to inquire whether Captain Meirclcen laid in the usual provisions for the voyage, and how far a cabin passenger was entitled to maintenance, while on board ? If the view I have taken of the nature of the contract be correct, the right of the plaintiff under it would not be varied by affirmative proof of these asserted facts. The agreement was to convey him to Liverpool; and as was said by Gibbs, C. J., in Gillam vs. Simpkin, it was an entire contract to carry the party, from port to port. Every thing else was merely incidental and subsidiary; and a breach of it would be no more answered by proving that the master had made provision for the voyage, than by shewing he had shipped a competent crew, or furnished his berths with proper bedding. Judgment affirmed.