Barker v. Havens — 17 Johns. 234

Majority

p. 193

*Barker against Havens.

Headnote

Where the defendant. the owner of goods shipped them on board of the plaintiff's vessel,. lo be carried from A’<:w-York to Liverpool, and there delivered to C., the consignee, he paying freight for the, same, with pri-mage and average accustomed according to the bill of lading, signed by the master, who, on his arrival at Liverpool, delivered the goods to the consignee, without receiving the freight \ though he after-wards demanded it, and the payment was refused. Held, that the plaintiff might maintain an action for the freight against the consignor. It seems, that where the goods aro not owned by the consignor, nor shipped for his account and benefit, the carrier is not entitled to call on him for the freight, on such a bill of lading.

It is the duty of the master of a vessel, in all cases, to endeavor to get the freight from the consignee.

THIS was an action of assumpsit, brought to recover the freight and primage of ninety bales of cotton, shipped by the defendant, on board of the plaintiff’s vessel, to be carried from .A vw-York to Liverpool. The cause was tried at the New-Yorlc sittings, in June last, and a verdict taken, by consent, for the plaintiff, for 587 dollars, subject to the opinion of the court on the following case: The declaration stated, that the defendant, on the 1st of July, 1817, at the city of New-York, in consideration that the plaintiff, at his request, would take on board of the plaintiff's ship, called the Loan, ninety bales of cotton belonging to the defendants, and should safely carry (he same in the said ship to Liverpool, in England, and there deliver the said ninety bales of cotton to the consignees thereof, to wit, Messrs. Cropper, Benson, & Co., at Liverpool, agreeably to the bill of lading, the defendant undertook and promised the plaintiff to pay to him one penny sterling per pound weight, for the freight of the said ninety bales of cotton, and five per cent, thereon for the primage, which freight and primage amounted to 121/. I 9d. sterling, equal in value to 570 dollars and 83 cents. The plaintiff averred that the 90 bales of cotton were delivered to C. B. &f Co. on the 30th of August, 1817, according to the bills of lading, &c. The declaration, also, contained general counts for freight, work and labor, and quantum meruit.

The master of the ship deposed, that the bills of lading were in the usual printed form, the cotton to be delivered to ('.. B., & Co., of Liverpool, as consignees, they paying the freight as specified. The master did not demand payment of the freight before he delivered the cotton, nor any security for its payment. That after the cotton was delivered, he presented to C. B., & Co. a bill of the freight, which they refused to pay, on the ground of there being an open account between them and Thomas R. Hazard & Co., of Liverpool. But they did not state that there was a balance #due to them from T. R. H. & Co. The master said it was usual at Liverpool to deliver c.mroes before the freight was demanded or paid.

The defendant’s counsel produced one of the bills of lading signed by the master, which stated, that the cotton was “ to be delivered to C., R., & Co., (the consignees,) they paying freight for the same, one penny sterling per pound, with pri-mage and average accustomed.” The account of C., B., ⅝* Co. with the defendant was also produced, from which it appeared that they had charged the defendant with the amount of the freight and primage, deducted the same from the proceeds of the cotton, and paid him the balance.

It was agreed, that if the court should be of opinion that the

p. 194

plaintiff'ought to recover interest at the rate of screw per cent., tjjat ⅛011 die sum 0f 34 dollars and 47 cents should be added to the amount of the verdict, and a judgment be entered ae-cordingly. & J

Foot, for the plaintiff,

contended, that the consignor of goods is liable to the ship owner, or carrier, for the freight, if the consignee refuses to pay it. In Moore and others v. Wilson, (1 Term Rep. 659.) it was held, that the contract or agreement between the consignor and consignee, as to the payment of the freight, did not vary the rights of the carrier, to whom the consignor was always liable for the freight. (Tap ley v. Martins, 8 Term Rep. 451.) In Shephard v. I)e Bernales, (13 East Rep. 565.) Lord Ellenborough said, that the clause in the bill of lading, by which the master engages to deliver the goods- to the consignee or his assigns, he or they paying freight for the said goods, &c., was introduced for the benefit of the master only, not for the benefit of the consignee ; and that, therefore, the master might, if he thought fit, waive the benefit of that provision, and deliver the goods without first receiving the freight; and that his doing so, did not prevent him from maintaining an action against the consignor for the freight. The same point was adjudged in the court of C. B, in the case of Christy v. Row, (1 Taunt. 299.) and the same principle is stated by Abbot. (3d Ed. 276. Part 3. ch. 7. s. 4.)

The contract for the carriage of these goods was made in *New- York; the plaintiff is, therefore, entitled to interest at seven per cent.

Henry, contra.

By the bill of lading, in this case, the master engages not to deliver the goods until the freight is paid. The payment of the freight is made a condition precedent to the delivery. The law gives the master a lien on the goods for the freight, and he may detain them until it is paid. (12 Mod. 447. 511. per Holt, Ch. J. 1 Molloy, 376. B. 2. ch. 4. s. 12.) Receives, Lex Mercat. 134. Abbot on Ships, &c. Part 3. ch. 3. s. 12.) Could the master himself, having signed such a bill of lading, maintain an action for the freight against the consignor of the goods ? Might not the latter say, “ By your contract you engaged to receive the freight of the consignee; and, having voluntarily delivered the goods, without doing so, you must take the consequence?” If the master could not, neither can the owner of the ship, maintain this action ; for the principal can be in no better situation than his agent, for whose conduct he is answerable. (Abbot, Part 2. ch. 2. s. 2, 3, 4. 6. Molloy, B. 2. ch. 2. s. 14.) Suppose there had been a settlement of the accounts between the defendant and the consignees, and the freight had been credited, as if it had been paid. There was not sufficient evidence of any commercial usage at L. on this subject. (1 Caines’s Rep. 45.)

p. 195

The contract was to be performed in England, where the freight was to become due and payable ; the interest, therefore, is to be regulated according to the law of that country.

Foot, in reply.

Suppose the goods arrive at the port of destination, in so damaged a state as not to be worth half the freight, if the consignee refuses to pay the freight, and the goods are landed and sold, is not the consignor of the goods liable to the ship owner for the freight ?^[1]

delivered the opinion of the court. The plaintiff's right to recover freight, depends on the legal import of the clause in the bill of lading, by which it is stipulated, that the goods should be delivered to Cropper, Benson, Co. “ they paying freight for the same, one penny sterling per pound, with primage and average accustomed.”

The effect of this clause has been repeatedly considered in the English courts, and the decisions have been uniform in both the King’s Bench and Common Pleas. In Shephard v. De Bernales, (13 East, 508.) Lord Ellenborough examined all the cases, and he considered the clause introduced for the benefit of the carrier of the goods only, and merely to give him the option, if he thought fit, to insist upon his receiving freight abroad, before he should make delivery of the goods; and that he had a right to waive the benefit of that provision in his favor, and to deliver, without first receiving payment, and was not precluded, by such delivery, from afterwards maintaining an action against the consignor. He observes, that the cases he cited, proved that such a clause did not, in general, cast the duty on the captain, at his peril, of obtaining freight from the consignee ; but that if he could not get it from him, he may insist on having it from the consignor. He admits, that the rule might be otherwise, in a case, differently circumstanced; and he lays stress on the fact, that the delivery was to be to the correspondents, factors and agents of the defendant. I should clearly be of opinion, that if it appeared that the goods were not owned by the consignor, and were not shipped on his account, and for his benefit, that the carrier would not be entitled to call on the consignor for freight; and 1 should incline to the opinion, that, in all cases, the captain ought to endeavor to get the freight of the consignee. In the present case, there can be no doubt that the cotton was the property of the defendant when shipped, and that it was consigned to Cropper, Benson, fy Co. to be sold on the defendant’s account; for he exhibited Cropper, Benson, &/■ Co.’s account,

p. 196

*by which it appeared, that the defendant was charged with the freight and primage, which bad been deducted from the proceeds of the cotton, and the balance had been paid to the defendant. It is evident, however, that Cropper, Benson, &f never pa¡¿ tjle freight, on being required by the captain to do so, after the delivery of the cotton, but declined to pay it, on the ground, that they had an open account with Thomas R. Hazard &f Co., of Liverpool. As this case stands, we think the decisions referred to in 13 East are in point; and whilst we feel that, on a commercial question, they are entitled to high respect, there is a peculiar fitness that the general rules regulating commercial negotiations should be uniform, where no principles of law stand in the way; and we think there are none in the present case.

The rate of interest ought to be five per cent.; for the contract was to be executed in England, and the plaintiff had a right to demand and insist on payment there.

Judgment for the plaintiff accordingly.