Trott v. Wood

STORY, Circuit Justice, directed the jury, that when goods were shipped on board of a vessel, to be sent to another port, the owner of the vessel had no right to change the vehicle of conveyance without necessity.2 That great inconvenience might arise from a contrary decision to the commercial world, as every merchant might well be presumed to ship his property in a particular vessel, not only from his knowledge or information of her character as to sailing" and seaworthiness, but also from his confidence in the master and owner of the ship. If, in the course of the voyage, the ship were disabled or wanted repairs, the master was bound to have the ship refitted, if it could be done within a reasonable time. But if the ship were incapable of répairs within a reasonable time, then he might transport tfie goods in another ship to the place of destination, and thereby earn his whole freight. In every such ease the master was justified in the change of the ship, by necessity only; and If done without necessity, the owner was responsible for all losses consequent thereon. And this was founded in good reason; for the shipper would, by the change of the ship without necessity, lose the security, which he might otherwise derive from any insurance made on the voyage.3 That in the present case, if the jury believed the evidence, there was no such necessity as authorized the transshipment. As to the question of usage, in order to support that defence, it was not sufficient that a few instances could be produced, in which masters in the trade had trans-shipped goods, and no objection had been made. The course of the trade must be uniform and general, to entitle it to be considered as a legal defence. It' should be so well settled, that persons engaged in the trade must be considered, as contracting with reference to the usage; and as the proof of such usage lay on the defendant, the jury ought not to change the general principles of the law, as to the rights of the parties, unless the usage were fully proved to be uniform, and independent of the consent of particular shippers. The jury found a verdict for the plaintiffs. Footnotes [2] S. P., Consolato del Mare, c. 89. [3] Roccus de Assec. N. 28; Santerna, p. 3, n. 35; Pelly v. Royal Exch. Assur. Co.. 1 Burrows. 351; Plantamour v. Staples, 1 Term R. 611, note: 1 Emerig. Ins. 424, 425.