P. & G. Lorillard v. Palmer

Thompson, Ch. J.

delivered the opinion of the court? The claim, in this case, is founded on the non-delivery of a quantity.of tobacco, shipped on board a schooner, of which the defendants were owners, to be transported from Richmond, in Virginia,, to New-York, and there delivered, pursuant to a bill of lading for that purpose, signed by the master of the schooner. The vessel, with the tobacco on board, sailed on the voyage about the 26th of January, 1813 ; but finding the Chesapeake blockaded by a British squadron, was unable to proceed on the voyage, arid some time in j)larch following returned to Richmond, where she remained with the tobacco on board, until the 16th of September, when the agent of the plaintiffs demanded the tobacco, which the master of the schooner refused to deliver, unless he was paid half freight, which the agent refused to pay; and on the 21st of the same month of September, the schooner, in consequence of a violent storm and sudden freshet, was sunk at the wharf, and the tobacco wholly ruined and lost.

The case does not warrant the conclusion that the loss was attributable to the negligence of the master, or the want of proper care of the vessel. Here has, therefore, been a dead loss, without any real or actual fault, other than the non-delivery of the tobacco when demanded.

The only question in the case is, whether the master was bound to comply with the demand without receiving the half freight claimed. It appears, by the case, that the blockade was not known to the parties at the time the schooner sailed from Riclwnond; and it continued until after the loss happened. Although it may appear equitable that the owners of the vessel should receive some compensation for the care they had taken of the plaintiffs’ goods, yet I know of no principle of law on which half freight could be claimed. The defendants had a right to demand either full freight, or none at all. But I think no freight could be claimed. Whenever any accident. occurs to a vessel, or there is any interruption of the voyage, the ship owner has a reasonable time to repair his vessel, or wait for the removal of the obstruction, and then to carry on the cargo and earn his freight. But there must be a limitation to such delay. It would be a monstrous doctrine to allow the ship owner to retain the cargo, and perform the voyage when he pleased. No time being specified in the bill of lading for the delivery of the goods, the general rule of law applicable to the performance of all other contracts, must govern, to wit, that it must be done in-a reasonable time. Although the right to freight commences bn the loading of the goods, it isa defeasible right, depending on the success of the voyage ; and in case no part of the iter is performed, to any beneficial purpose, no freight is earned. (3 Johns. Cas. 97.) If the ship owner is determined to have his freight, he must forward the goods. It is upon the delivery of the cargo that the right to freight depends, unless such delivery is waived, or some new contract is made respecting it. If the ship owner will not, or cannot, carry on the cargo, the freighter is entitled to receive his goods again without paying any freight. (Hunter v. Prinsep, 10 East, 393.) Any other rule would be hard and unjust upon the merchant. (9 Johns. Rep. 20.)

The question, in all cases of this kind, must depend, in a great measure, upon the particular circumstances of each case, according to the nature and cause, as well as the length, of the delay. In the case before us, the plaintiff had waited a reasonable time for the goods to be carried on. Nearly nine months had elapsed from the time of shipment, and the tobacco was wanted by the plaintiffs to be sent on in some •ether way; If the defendants were bent upon receiving their freight, they should have transported the goods in some way or other. If not by water, they should have sent them on by land, which might have been done, though at a much greater expense. But as the freight to be paid was a war freight, it might, perhaps, have warranted such transportation. The blockade of the Chesapeake was not such a temporary obstruction as that it could reasonably be calculated that it would be removed in a short time. From the length of time it had already continued, and the local importance of the place, rio doubt could be entertained but that it was intended as a permanent measure of hostility, to be continued as long as the war lasted, if in the power of the enemy to maintain it. There was, therefore, no reasonable prospect of the goods being carried on by water. It would be extremely unjust, if the merchant could not again obtain his goods,^either to sell, or send them on in some other way, without being charged with the freight, when no part of the voyage had been performed. The ship owners would not have been bound to keep their vessel with the cargo on . board until the blockade was removed. They must have had a right, after a reasonable time, to re-deliver the cargo, and discharge themselves from the bill of lading. There would be no reciprocity, unless the merchant might, within a reasonable time, demand his goods, when all prospect of sending them on had failed.

This is not like an embargo, or some temporary obstruction to the performance of the voyage, which might furnish án excuse for the delay, without putting an end to the contract. The effect of the blockade upon the bill of lading is very much the same as upon a charter party-. It is well settled, that by the blockade of the port of discharge, a charter-party is dissolved, and all claim to'freight under it is gone. Scott v. Libby and others, (2 Johns. Rep. 336.) is a very strong case on the point. The vessel was chartered on a voyage from New-York to the city of St. Domingo, and back to New-York. On arriving in sight of St. Domingo, she was turned away, on account of the port being blockaded. On her return to New- York, the owners of the vessel refused to deliver the cargo until the freight was paid. But in an action of frover for the goods, it was held that no freight was due ; that there could be no pro rata freight, because the goods were brought back to the port of lading, and no benefit accrued to the owner. So, in the case before us, the goods were brought back to the port of lading, and no benefit had accrued to the plaintiffs, and the compensation claimed must have f>eon in the nature of a pro rata freight.

Suppose, in this case, the tobacco had not been lost, and an action of trover had been brought by the owner, it would have been very analogous to that of Scott v. Libby. If an action of trover could have been sustained without paying the freight, it must follow, as matter of course, that the defendants are responsible for the loss ; because, they were in default in not delivering the tobacco when demanded. We are, upon the whole, of opinion, that under the circumstances of this case, the plaintiffs had waited a reasonable time for the defendants to send on the goods and earn their freight; and being in default, by not delivering the tobacco when demanded, they must be responsible for the subsequent loss. The plaintiffs must, accordingly, have judgjnent upon the verdict of the jury.

Judgment for the plaintiffs.