Polynesian., 1855-03-03
rforned. (Keut's Comm. 226. Abb. on shipping

not arrived in worthless state--they have not
wasted by any inherent principle of decay. Still;
there is another class of cases, where full freight
is DUE Notwithstanding the goods have not arrived
at the port OF destination, and there cases where
a pro rata freight is due notwithstanding the like
non-arrival, and with these we have mainly 10 DO n
the investigation and settlement of this case.
"The whole Of the cases." says Judge Story, "in
which the full freight is, upon the ordinary princi-
pies of commercial law, due, notw outstanding the
non-arriva of the goods at the port of Gestnsiion
I NAV be reduced to the single statement that the
non-arrival has been occasioned by no default ina
biity of the carrier Ship but has been by
the default waiver of the merchant-shipper. III
| the former case, the merchant-shipper cannot
avail himself of his own default TO escape
/ from the payment of freight; in the latter case
he dspenseS with The entire fulfment Of the orig
Iina contract for his interests and purposes
Thus, for example, if the goods be seizrd or de-
tanned at an intermediate port, for the illegal con-
duct wrongful act, of the shipper, if, at such
intermediate port he voluntarily insists upon receiv
ing, and does receive his goods, the carrier ship
being ready and able to carry them to their destin
aon there be doubt. that full freight is due
for the whole voyage" (ShIp Nathaniel Hooper
/ 3 Summers r. 545
Let us consider, now, how these principles apply
to the present case. The non-arrival of the goods
In this case has not been occaSoned perhaps by ans
default of the carrier but this is not sufficient to
establish the claim for freight for il remains to be
shown that il has been occasoBed by some default
or waiver Of the merchant shipper. The coats
were discharged in Rio, and when the repaits to
the vessel were completed, reshipped when il was
soon discovered that the Goals which wet IN
being discharged and reshipped, Notwithstanding
every care was taken to prevent it, soon began TO
heat Thereupon, the captain called survey on
the Goals and the surveyors reported that they
heated, and in their opinion would soon take fire;
hat hp Ar ho tn
her voyage in the present state of the Goals; and
recommended that they be discharged and sold for
the benefit Of whom 7 might concern. Acting upon
this advice and that CT tie British Consul the cap
tain sold the Goals, and hence their non-arrival-
Here was no default on the part of the shipper
and none is pretended. He did not consent t6 re-
ceive his goods at the intermediate port of Rio and
have them sold on account of their damage and
perIshabe nature, and therefore, did not grant any
waiver of his rights under the contract. He was
not on TIE spot in person or by his agent, and was
not and could not be consulted III relation to any
action taken in the premises There may have
been no default on either side, but if there was 1
cannot perceive any on the side of shipper and If
there was none and no waiver on his part, does the
present case furnish any good ground to the claim
for full freight? When the cargo is so damaged;
as to be in danger of ignition, and, if carried on:
will endanger the safety of the ship well as the
rest of the cargo and the lives of all board it
humanity to say that the master ought not IN the
exercise of sound discretion to land and sell the
same for the benefit of all concerned. 1t is case
of necessity, of unexpected and pressing calamity,
arising in the course of tie voyage, and what he
fairly and reasonably does, Under the circumstan
ces, should bind all parties. Still, while sale
made under such an emergency, might furnish
valid defense perhaps to suit brought by the ship,
per for a non-delivery of the goods, it does not,
humbly conceive, afford good foundation on which
10 base a claim for freight. (See Jordan ct. al vs
Warren Insurance Company-1. Story's R. 342.l
But there is still another view of this case TO be
taken. The Goals though wet and heated, it appears
could have been taken out of the vessel, dried pre-
pared for reshipment and brought in safety, and,
as the owner was not present, and did not consent
to the SALE it was the duty of the captain, Perhaps,
if he intended to claim freight have dried and
prepared the Goals for reshpment. This would
undoubtedly have retarded the voyage, but not for
more than fouror veweeks,and this temporary delay
is not sufficient excuse to justify claim for freight
in case of sale. The master may have done the
most prudent thinghe could do under all the cireum
stances of the case, and yet do not see bow he
can fairly throw the less of his freight upon the
libellant.
Again, tliere is another ground not raised by
the learned counsel, which involves the claim for
freight in obscurity, and that is, the failure of
the master TO pay over or tender TO the libellant
the proceeds realized from the sale of the Goals
He has used those proceeds, amounting in round
numbers to 5000, and without paying them over
or offering to do so, he insists on sebg paid some
five Thousand dollars, the amount Of full freight on
said Goals. II is not clear to me that this ground
alone would not 20 far to defeat the claim, but
prefer to decide the upon broader ground, and
being fully of the Importance Of establishing
sound principles of fconmercia law IN the the infan-
cv of our Admiralty Courts, I propose, at the
risk Of being tedious 10 examine some Of the most
important cases bearing upon this&lbject.
The first case we WIN look at IS that Of Hunfe
rs PrinSep, no East 37S.l Prinsep and otheIs5
owners of the ship Young Nicholas chartered her to
Hunter for a voyage from Falmouth to Honduras
to fetch a cargo of mahogany and other wood from
thence 20 London; and by the terms Of the charter
party the freight was to be paId, one third upon
right and true delivery of the cargo, and the re-
naming two-thirds by an accepted bill or bills on
the freirhter PAYABLE at three months date from
such delivery. The ship took in her cargo and
sailed on her homeward voyage, but was so dam
aged in a storm as 70 be Compelled to put into Sa-
vannah, in Georgia, to repair. H9viug been rent
ted she sailed again, but taken on her second
day out Of Savannah, by French privaieerand sub
sequentIy retaken by British sloof Of war, ana
sent to St Kits where she was driven on shore oy
a hurricane, and wrecked. The master, without
the privitv or consent of either party, applied to
the Vice Admiralty Court at st. Kits, for an order
of sale for the wreck and cargo, lie acting on That
occasion according to the best of his Judgment
for the benefit of al parties concerned. The car
90 was sold at public auction under order Of the
court, and the nett proceeds remitted to ana receiV
Cd by the ship owners Hunter, the freighter, then
brouyht an action TO recover The proceeds of the
goods sold, and the ship cwners insisted or re
tanning the whole thereof on account q ffeight-
The freighter the contrary insisted that he was
entitled TO recover the proceeds Of tie goods sold,
without any allowance for freight. The question
for the opinion Of the court was, whether any
freight was due and Lord Ellenborough, deliver
M iha indnrn,enf of the court said ;-s. The pfin-