I concur in the opinion just delivered, but there is one point made in the cause that has not been noticed, and which it appears to me necessary to decide before the plaintiffs can have judgment.
*214■ To malee out a right to abandon, it was insisted that the injury which happened to the cargo, would have rendered it of little or no value before it reached its port of destination, and that therefore the plaintiffs would have earned nothing by carrying it on, as the shipper might, in such case, have avoided payment of freight altogether, by an abandonment of the property.
That an owner of a vessel, after a literal performance of the terms of the charter-party, by carrying a cargo to its destined port, should be entitled to freight, whatever injury it may have sustained in transitu, so that it proceed from no fault on his part, appears a proposition so self-evident, that perhaps it never would have been questioned, but for what fell from Lord Mansfield in delivering judgment in the case of Luke v. Lyde. “ If the u merchant,” says his lordship, “ abandons the whole car- “ go, he is excused freight, and he may abandon all, “ though they are not all lost.” But, besides that a different point was then before the court, it is not certain, that Lord Mansfield intended to be understood, as speaking of an entire cargo, actually transported to its place of delivery. If he did, I can only say, that the opinions of the most learned judges, on points not at the time in issue, though entitled to respect, have not the force of authority, on those who follow them. This would be making the ship-owner, an insurer of goods to the amount of his freight, and exposing him to an entire loss of the latter, without any fault on his part. Where is the evidence of his having assumed the risk ? In the contract we look for it in vain; still less will the conclusion result from any fair course of argument. When a good vessel has been provided; when she has been well found; when she has performed the voyage, and is ready to deliver her cargo, there is nothing more which the merchant has required as a condition precedent to the payment of freight. Upon what pretext, then, after having used the vessel agreeably to the contract, can he throw on the master’s hands *215a cargo which may not be worth a cent, instead of paying ° J . , - the sum agreed on for the carriage of his goods ? What in such case is to become of the mariners ? Are they too, to lose the wages of their labour, which would lea natu* ral, but unreasonable, consequence of such a doctrine, for, generally speaking, if freight be not earned, no wages are due ; or are they also to come in for a dividend on a damaged and putrid cargo ?—Surely, they may say with the poet, hose in fwdera non v animus. If the injury arise from the misconduct of the owner, master, or mariners, or from unfitness, or want of sea-worthiness in the vessel, there is no hardship in depriving the owner of freight to the extent of the damage done, and rendering him liable for farther compensation, if necessary to make the merchant whole, and also for the seamen’s wages. Of the same ©pinion is Pathier* in his treatise on charter-parties.
New trial granted.
Charte-Partie, Part 1. Sec. 3. Art. 2. § 1.