Same v. Same

Kent, Ch. J. delivered the opinion of the court.

To have entitled the plaintiffs to freight, there must have been a delivery of the cargo at Bremen, or a voluntary acceptance of it, at the Texel or Amsterdam., by the consignees, or by Field, the supercargo, or a refusal by him, upon an offer made, to have the goods sent on in another vessel. Neither of these events happened, except as to a small part of the cargo consigned to the Willincks. There is no sufficient evidence in the case of any other delivery or acceptance, nor of any offer by the captain to provide means to forward the goods. The case shoxvs, that the goods were of necessity discharged from the ship into lighters, and that xvhile in that situation they xvere seized. The freight xvas, therefore, lost to the plaintiffs. The next inquiry is, by what means it xvas lost, and whether if the seizure had not happened, the goods might not have been sent to Bremen by another vessel. If this might have been done, the omission to do it arose either from the voluntary neglect of the captain, or from the seizure. The underwriters, by the warranty in the policy, were to be exempt from loss by "seizure in port and the point is, xvhether it be a good defence, in any case, to an action on a policy on freight, that the shipowner refused, or neglected, to forward the goods by another vessel, when he had it in his power. We have not met with any decided case on this point; but it appears to be reasonable, and consistent with the principles of the contract, that the insurers should, in such case, be discharged. The contract is, for the insurance of the freight of the cargo on board the ship Dean, from Nen-York to Bremen. It is not of the essence of the contract, that the cargo should, in every event, be conveyed in the ship mentioned, because the party is allowed to change the ship from necessity. The delivery of the cargo is the cause of earning freight. The ship, on board of which the goods are laden, is the vehicle of conveyance agreed on, but it is only one of the means, and not, in all cases, the indispensable means, to attain the object. It is well understood and settled, that when the vessel is. disabled *20 in the course of the voyage, and the cargo remains, the captain is authorized to forward it by another vessel, and thereby to earn the freight. If the shipper, or his agenty will not consent to this, the captain will then be entitled to his full freight, and if he cannot, or will not, forward the goods, the freighter is then entitled to receive them, without paying any thing. (Griswolds v. New-York Ins. Company, 3 Johns. Rep. 321. 10 East, 393.)

If other means to forward the cargo can be procured, it depends entirely upon the captain’s volition whether he earns freight or not; and. if. it be lost by that volition, it ought not to be at the expense of the insurer, who only undertakes to answer for the loss of freight arising from vis major, and not from the act, unless it be the barratrous act, of the party. If the disabled ship be easily repairable, the shipowner is bound to do it, and he cannot, in that case, resort to the insurer for his freight. This was so decided in the case of the Griswolds v. The New-York Ins. Company. If it be equally in his power to procure another vessel, and he does not, there is the same reasoq that he should be precluded from placing the consequences of that neglect upon the insurer.

In the present case, it does not appear that the captain took any step, or made any effort, to forward the goods by. another conveyance. If he was prevented by other means than the seizure, it ought to have been shown; otherwise, the omission is justly imputable to that cause. That is the only apparent and proximate, and it was an efficient, cause.

The court are, therefore, of opinion, that the defendants are not answerable for the loss of the freight, and that they are entitled t« judgment.

Judgment for the defendants.