Hand v. Baynes

The opinion of the Court was delivered by Rogers, J. — This was an action to recover the value of one hundred slaughter hides, shipped' on board the Sloop Neptune, for Baltimore, via the Chesapeake and Delaware Canal. The suit is founded on a receipt in the following words : “ Philadelphia, January 14th, 1836. Received on board Hand’s Line for Baltimore, via Chesapeake and Delaware Canal, from J. Baynes, one hundred slaughter hides, on deck, which I promise to deliver to Joseph Davenport, at Balti [213] more, the dangers of the navigation, fire, leakage and breakage excepted, he or they paying freight eight dollars, and porterage one dollar and fifty cents. H. Hand, Per H. H. Eldridge.” This is a contract to carry the goods ;to the place of destination in a prescribed route. This construction of the contract, although not conceded to be correct, has been faintly denied. It cannot be pretended, that if a loss arises in an attempt to convey the goods by sea round Cape Charles, the owner would not be liable for the loss, unless they could show that the deviation arose from necessity. And yet the carriage by sea would be .optional with the carrier, unless the route through the canal is parcel of the contract. There is no mistaking the intention of the parties to the contract. It is well known to shippers, that the navigation is less dangerous by the canal, than by the outward passage. The risk is so much diminished, that it supersedes, in a great measure, the necessity of insurance on the goods, which no prudent' person would omit, if he should ship goods in the inclement season of the year, to be conveyed round the coast to the place of destination. And that there was a difference in the risk, was the impression of the owners of the vessel; for the advertisement of the 25th of March, presupposes the assent of the shippers to the alteration of the route, and the transfer of the goods to a vessel of a different description. But it is said, that although the contract was to carry the goods by the way of the Chesapeake and Delaware Canal, yet the deviation from the prescribed route arose from necessity. The evidence does not show with precision," the nature of the obstructions which prevented the passage of the vessel through the canal, but it sufficiently appears, that they were of the ordinary kind, and of a temporary nature. When the master discovered the impediments to the prosecution of the voyage, through the route called for in the contract, his duty was plain; he had one of two courses to pursue : to remain in a place of safety at the mouth of the canal, or in some convenient and safe place in the neighbourhood, until the obstructions were removed; or he should have returned and informed the owners and shippers, of the impracticability of proceeding through the canal. The legal effect of the contract, is an engagement to deliver the goods at Baltimore, in a reasonable time; and what would be a reasonable time must be determined under all the circumstances, with a view to the condition of the canal, the season of the year, the state of the weather, and such other matters as might enter into the question. If either of these courses had been pursued, and the shipper had brought suit for a breach of the implied contract to deliver the goods in a reasonable time, the condition of the canal at the' time, ■ would have entered materially into the question. But notwithstanding this, the case of Hadley v. Clarke, (8 T. R. 259,) shows that a temporary obstruction only suspends,. but does not [214] dissolve the contract. These principles apply to an implied contract: but suppose the contract to be express, as to deliver the goods in a prescribed time; would any temporary obstruction, or the impossibility of complying with the engagement, arising from the condition of the locks on the canal, or any other cause, bé a defence to a suit for failure to perform the contract 1 It is very clear that it would not. When the law creates a duty of charge, and the party is disabled to perform it, without .any default in him, and hath no remedy over, then the law will excuse him; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good; if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. This distinction is founded in feason and authority. Alleyn, 27. Hadley v. Clarke, (8 T. R. 259.) The Company of Proprietors of the Brecknock and Abergaveny Canal Navigation v. Pritchard and others, (6 T. R. 750.) But it has been urged, that varying-from the usual course of a voyage, in the case of an insurance, or any extraordinary delay, may be justified by necessity; that the master is the common agent of the concerned, and that it is his duty to manage their .interests according to his best judgment; and that when he acts with good faith; and according to his best judgment, all parties, insurers as well as others, are bound by his acts. And this is correct, when applied to implied covenants; but when the ■ covenant is express, it must be strictly complied with. Thus, in addition to the authorities above cited, there are others, as between insurers and insured. Thus in Shubrick v. Salmon, (3 Burr. 1637,) Lord Mansfield says, the distinction between implied covenants, by operation of law, and express covenants, is, that express covenants are taken more strictly. De Hahn v. Hartley, (1 T. R. 343,) is to the same point. It was an action upon promises, brought by an underwriter to recover back the amount of a loss which he had paid upon a policy of insurance. It was held, that whatever is written on the margin of a policy, is a warranty and must be literally complied with. It has also been ruled, that if a ship warranted to sail on or before a particular day, be prevented fro'm sailing on the day by an embargo, the warranty is not complied with. Horn v. Whitmore, (2 Cowp. 784.) Paxson v. Watson, (2 Cowp. 785.) The Court are further of the opinion, that the clause in the receipt, “ the dangers of the navigation,” does not apply to dangers caused by the canal’s being, by inevitable accident, rendered impassable. Occasional interruptions of trade, arising from breaches in canals, or other accidents, are inconveniences, but in no sense can they be considered as dangers of the navigation, coming within the exception. The contract excepts the dangers -by the navigation on the route of the canal, and when there maybe such a danger as is provided for, it will be time enough to decide when it arises. By an alteration of the voyage, the shipper was exposed to risks which he [215] would not have voluntarily encountered. The voyage by sea requires vessels of a different description, differently found, and differently manned; and although the shipper may have been willing to encounter the peril, in a vessel adapted to the trade, it does not follow that he would risk his property in a vessel whose ordinary route was through the, canal. He should not be exposed to the increased risk without, his consent, and without the opportunity of effecting an insurance on his property. ■ But it is said that tlie Court took the facts, from the jury. It appears from the record, that after the testimony was closed, the counsel for the plaintiff insisted, that the plaintiff was in law entitled to recover, and the counsel for the defendant insisted, that in law the plaintiff was not entitled to recover, and both parties requested the Court so to charge the jury. Both parties agreed to, or at least, did not dissent from, the course pursued by the judge, who directed the- jury to find for the plaintiff, subject to the opinion of the Court on all the points of law in the case, or upon the facts given in evidence. On the argument they have had the full benefit of all the facts and the inferences which the jury might draw from them, and we do not conceive, that the justice of the case requires, that the cause should be remanded on that ground. But can the consignor sustain the suit 1 This exception, after a full trial on the merits, is not entitled to much, favour; and we might be excused from noticing it altogether, as the exception does not appear as one of the errors assigned. The. plaintiff in error relies on Griffith v. Ingledew, (6 Serg. Rawle, 429.) There A. of Liverpool shipped goods which by the bill of lading were to be delivered to B. or his assignees in Philadelphia; the goods belonged to A., and the freight was payable in Liverpool; and it was held, that the bill of lading vested the property in the consignee, who might maintain an action in his own name against the ship-owner, for the negligent carriage of the goods. That suit was decided on the ground that the bill of lading vested the legal property in the consignee and that for the purpose of deciding the legal property, the Court would look to the face of the bill of lading. But this is not a bill of lading but a contract between the consignor and the carrier, and in actions against common carriers, the general principle is, that the right of action is attached to the property. There is nothing to show that Davenport is the owner of the goods, but it was in proof that Baynes was the owner. The receipt contains a contract with Baynes, to deliver the goods to Davenport, but whether as agent or vendee, does not appear. Baynes would be liable to payment of freight as is held in Barker v. Havens, (17 Johns. 234.) Shepherd v. De Barnales, (13 East, 565.) The case of Davis & Jordon v. James, (5 Burr. 2680,) is very like the present. That was an action against a common carrier for not delivering goods sent by him. The only [216] question was, in whose name the action ought to have been brought. It was held, that the action well lies against the carrier in the name of the consignor. And in Moore and Others v. Wilson, (1 T. R. 659,) it is held, that in an action by the consignor of goods, against a carrier, for non-delivery, where the plaintiff averred that the defendant undertook to deliver, &c. in consideration of the hire to be paid by the plaintiff, proof that the hire was to be paid by the consignee, was held to be no variance, the consignor being in' law liable. Buller, before whom the cause was tried, non-suited the plaintiff; but on considering the question, found he was mistaken in point of law; for that, whatever might be the contract between the vendor and vendee, the agreement for the carriage was between the carrier and the vendor, the latter of whom was by law liable. And the other two judges being of the same opinion, the rule was made absolute. So also Vale v. Bayle, (Cowp. 294,) to the same point. The case of Davis v. Peel, (8 T. R. 330,) was decided on the principle that the consignee was the owner of the goods, and in such a case, the action can only be brought by the consignee, unless there is some special agreement between the consignor and the carrier. But in cases where the right of property is not divested, the consignor can maintain a suit, for he is the person who has sustained the loss, if any, by the negligence of the carrier; and whoever has sustained the loss is the proper party to call for compensation, from the person by whom he has been injured. We are of opinion that the plaintiff is entitled to judgment; and that the proper measure of damages is the value of the goods. Judgment affirmed.