#### * Dennison Wallis and Another *versus*Samuel Cook.

It was agreed, in a bill of lading, that the net proceeds in the foreign port of the goods shipped, after deducting freight and commissions, should be paid to the shipper in ninety days after the arrival of the vessel in the *U. S.;*the ship arrived in safety at her port of destination, where the goods were sold; on her return voyage she was stranded, and the cargo damaged fifty per cent.; the ship was afterwards got into port and repaired, so that she might have gone to her intended port of discharge, but did not; — it was holden, that the shipper was entitled to the net proceeds of the goods, without any deduction for the loss by stranding, although he had caused his interest to be insured for the voyage round.

The action was *assumpsit,*and was submitted to the opinion of the Court upon the following facts stated and agreed by the parties: — The plaintiffs shipped on board the ship *Osprey,*bound from *Salem*to *South America,*the goods described in a certain bill of lading in the case, signed by the defendant, wherein it was agreed that the net proceeds of the goods shipped, after deducting five per cent, commissions, and fourteen dollars for freight, should be *497paid to the shippers in ninety days after the arrival of the ship at her port of discharge in the *United States.*The ship proceeded to *South America,*where the said goods were sold, the net proceeds thereof amounting, after deducting duties, charges, and freight outwards, to 900 dollars 41 cents. The ship proceeded on her return voyage, bound for the port of *New York;*and on the 8th day of February, the ship, while proceeding towards *New York,*was driven, by the violence of the winds and waves, upon a reef of rocks near the lighthouse off *New London,*in *Long Island*Sound ; and while on the rocks, the .vessel and cargo were abandoned to the underwriters. The cargo was carried in lighters to *New London,*and there sold by order of the underwriters, the abandonment of the cargo having been accepted by them, and the assured settled with as for a total loss. The loss upon the whole cargo, in consequence of said shipwreck, was fifty per cent. The underwriters refused to accept the abandonment of the ship, but caused her to be repaired, and afterwards delivered her to the owners at *New London,*three months having been spent in getting her off the rocks, and in completing her repairs.

The plaintiffs caused themselves to be insured the sum of 1000 dollars upon their said adventure for the voyage round; and on the 14th of February,, abandoned to their underwriters.

No effects were ever shipped on board the said ship, on * her return from *South America,*by the defendant [*511 J on account of the plaintiffs ; but the defendant there invested the proceeds of the outward adventure in the cargo on his own account.

If the Court, upon these facts, should be of opinion that the defendant was liable to pay the net proceeds of said adventure to the plaintiffs, he agreed to be defaulted, and that judgment be rendered against him accordingly. If, in the opinion of the Court, the de fendant ought to pay a part only of said proceeds, then judgment was to be rendered for the plaintiffs for fifty-five per cent, of the said proceeds, with costs. If the opinion of the Court should be that the plaintiff was not entitled to recover any thing on account of the premises, he was to become nonsuit.

*Putnam,*for the plaintiffs.

We had, in fact, no interest in the voyage homeward, so that the vessel arrived at her port of destination The defendant took the proceeds of our adventure to his own account, and made himself liable to us, without regard to the consequent accidents to vessel or cargo.

*Saltonstall,*for the defendant,

contended that nothing was due to the plaintiffs, as the ship never arrived at her port of discharge. The cargo was discharged while the vessel was a wreck upon the *498rocks, and was sold from necessity at *New London,*at a loss of fifty per cent.

But if *New London*is to be considered as her port of discharge, the defendant, in that case, can be holden only for so much of the proceeds as were saved, agreed in the case to be fifty-five per cent, thereof. The returns of the adventure were at. the risk of the shipper, as appears from the time allowed after the ship’s arrival for the sale of them. This is also proved to be the plaintiff’s un derstanding of the contract, by his making insurance upon the return voyage. If the vessel had never arrived, the plaintiffs must have lost their whole adventure; then if but half the proceeds were saved, their claim must be proportionately reduced. This is a common contract in this and other seaports. [*512] * The shipper is entitled to the proceeds in the foreign port, and the profits of the return is the compensation to the ship-owner; but the risk is to be borne by the shipper.

*Putnam,*in reply.

The plaintiffs misconceived their rights, when they made insurance on the homeward risk. They had no concern with the cargo home. Their whole risk depended on the arrival of the ship, as if they had lent their money on a contract of bottomry. She did arrive at her elected port of discharge, and might have proceeded to the original port of destination, if her owners had so chosen.

*Curia.*

The bill of lading, which is set forth in the case, contains, in effect, two distinct contracts between these parties. The first, for the transportation of the goods on the outward passage, differs in nothing from a common bill of lading. The goods were to be carried on the account and risk of the plaintiffs, and to be delivered to their consignee upon the payment of the stipulated freight. The plaintiffs, then, instead of having the net proceeds invested there in other goods to be shipped home on their account and risk, make a further contract with the defendant, by which those proceeds were to be loaned to the ship-owners on the terms expressed in the bill of lading. These terms very nearly resemble the those of a loan on *respondentia.*

If merchandise had been shipped home in the usual course, on the account and risk of the plaintiffs, they could recover nothing in case the ship had been lost. It was very natural, therefore, to agree that, in the like event, they should be paid nothing by the borrowers. The defendant was not bound by this contract to dispose of those proceeds in any particular manner. He might have expended the whole in repairs of the ship, or other charges of the voyage; or have invested the money in goods, to be shipped in this vessel, or in any other. The disposition which the defendant *499might make of the money did not concern the plaintiffs, and had no necessary connection with the homeward voyage.

* Accordingly, the plaintiffs take no chance of gain or [ * 513 ] loss, arising from the future negotiations of the defendant respecting it. There is nothing pledged to them, and nothing, either in the vessel or cargo, in which they have any property or interest. There is, therefore, no occasion for any stipulations for the allowance of partial losses, or for claims for salvage. The plaintiffs are to have the proceeds of their goods brought home and delivered to them without any charge for freight or other expenses; and they are exempted from any loss, which they might have incurred, if goods had been purchased for them, to be sold here; in consideration of which they give to the borrowers all chance of gain on the like purchases and sales, and also give them credit for the money, without interest, until ninety days after the termination of the voyage.

This appears to be the true nature and construction of the contract. It is, in effect, a loan on the personal responsibility of the defendant and his principals, to be repaid in full, if the ship arrives at her port of discharge in the *United States.*

The only question, then, is, whether the ship has so arrived, according to the intent and meaning of this contract. Of this there can be no doubt on the construction already given to the contract. The plaintiffs’ claim did not depend on her arriving without damage, or within any given time. Though *New York*was the intended port of discharge, the defendant might afterwards elect to discharge his cargo at any other port in the *United States,*which would then become the port of discharge within this contract. Even if *New York*were considered, under all the circumstances, as the port of discharge, the ship, after having been suitably repaired, might have gone to that port with a full cargo; and it would be no answer to this action to say that she had been delayed in her voyage three months in consequence of having been stranded. Still less would the defendant be discharged, because he thought proper not to * proceed to his port [ * 514 ] of original destination when it was in his power so to do.

The transactions of the plaintiffs with the insurers on their adventure can have no effect on this cause. If they misapprehend their legal rights under the policy of insurance, that cannot alter the construction of their contract with the defendant.

According to the agreement of the parties, the defendant must be defaulted, and judgment rendered for the plaintiffs for the net proceeds of their adventure, without any deduction, with the addb *500tion of interest after the expiration of ninety days from the time when the vessel was Surrendered by the underwriters to the owners

*Defendant defaulted.*

ADDITIONAL NOTE.

[As to the effect of a bill of lading, see *Lowry*vs. Russell, 8 *Pick.*360. — *Rowley*vs *Bigelow 12 Pick.*307.— *Crosby*vs. Fitch, *12 Conn.*410. — F. H.]