Detouches v. Peck — 9 Johns. 210

Majority

p. 210

Detouches against Peck.

ALBANY,

August, 1812.

Headnote

A. the master of a vessel called the ¿7m- nia9 lying at Amsterdam, for 1,750 guilders paid by B. in advance, contracted for his passage^ and board in the said vessel, from Amsterdam to Batavia«The vessel put into New-York in distress, and the owner repaired and sent her on a different fered B. a not helvessel, ready topsail fr.oni via, and was a lsti' stud more commo though offer uot object to the vessel, but business to** pTladeiphia and could not immediately to Batavia, In an action brought by B. to recover back the passage money he had paid, it was held, he was not entitled to recover any part of it, as it was by his own act that he did not pursue the voyage, and the vessel in which he set sail deviated from her direct course from necessity; and the providing of diet and accommodations for his passage entering especially into the consideration of the advance for the voyage, part of which had actually been performed..

THIS was an action on the case, brought to recover back the passage money, paid by the plaintiff to the defendant, for a passage in the schooner TJrania, owned by Messrs. Minturn 8c Champlin, from Amsterdam to Batavia.

The 'cause was tried before Mr. Justice Thompson, at the Nerv-York sittings, in May, 1811.

The following receipt was produced on the part of the plaintiff. “Received of P. G. Detouches, the sum of .1,750 guilders, for passage and boarding on board of my vessel, the Urania, on her present voyage to Batavia, for which I engage myself to afford him my table, and every other accommodation, (liquors excepted.) Amsterdam, 3d October, 1809. John M. Peck.”

The Urania, after leaving Amsterdam,, for Batavia, put inte New-York in distress, where she arrived the 6th December, 1809. She did not proceed to Batavia, but: was, afterwards, sent on a voyage from New-York to Naples, for which place she cleared out the 21st December, 1809.

On the arrival of the Urania at New-York, Minturn 8c Champlin had another vessel, a large and very fine ship, called ^ the Thames, nearly ready to sail for Batavia; and told the plaintiff and the other passengers, that they should proceed in her to Batavia. All the other passengers, except the plaintiff, gladly accepted the proposal, as the Thames was a large and commodious ship, and in every respect preferable to the Urania, which was a small schooner, with very indifferent accommodations. The plaintiff made no objection to the change, but informed Champlin, one of the owners, through the witness, who acted as interpreter,

p. 211

that he had business of importance to transact at Philadelphia, and should not be able to proceed immediately to Batavia. It appeared that the plaintiff was indisposed from the time of his arrival at New-York, until after the sailing of the Thames for Batavia.

A verdict was taken for the plaintiff, by consent, for 760 dollars, subject to the opinion of the court, on the above case.

T. A. Emmet, for the plaintiff, admitted that no similar case was to he found in the books.

He said that the plaintiff did not demand a return of the whole passage money, but was willing to allow a pro rata freight for bis passage to New-York. In that view, it might be likened to the case of goods accepted by the owner or consignee, at an intermediate port. But he contended that a passenger, a reasonable and intelligent being, was not to be treated as a bale of merchandise, and transferred from one ship Its another, as it might suit the convenience or pleasure of «he captain, or Ms owners.

The plaintiff had a judgment to exercise, and a choice to make, as to the particular vessel in which he was to be carried. Having made bis election, and the defendant having engaged to carry him sn a particular ship, he ought not to be obliged, unless in a case of necessity, to proceed in another. It may be, he was better pleased with the Urania, and liked his accommodations in that vessel. He might also prefer the master, and have greater confidence in his skill as a navigator.

•Again, this may be considered as a contract rescinded by mutual consent, and the plaintiff, therefore, entitled to have, his money back.

Bristed and Robinson, contra, contended, that it was owing to the plaintiff’s own act that he was not carried to Batavia, as the Uranio.; put into New-York from necessity, and the defendant offered to «• provide, and did actually provide, another and a better ship.

They admitted that no case in point was to be foundbut on principles, they thought it a clear case for the defendant The defendant must have expended some part of the money he received, in providing diet and accommodation for the plaintiff; and ought, therefore, to retain to that amount, at least, besides, for the transportation pro rata, if that could be ascertained.^[1]

The plaintiff is not entitled to recover; for it'., was Jug own act that the voyage was not performed by him. The schooner Urania deviated from her direct course, and entered the port of New-York, from necessity, and as the plaintiff bad a better ship provided for his voyage, and made no objection to the change, but was prevented from sailing by his own private business or indisposition, he has no right to call for a return of the freight money, or any part of it. The providing of provisions and accommodations for his passage entered essentially into the consideration for the advance, and part of the voyage was performed. It would be difficult to find a just rule by which to liquidate a pro rata freight in such cases,^[1] but there is no reason, in this case, for giving the plaintiff the return of any part of the freight.

Judgment for the defendant.

(a) (a) See in a note to Ingersoil’s translation of Roccus, (p. 70.) the following ease decided in the supreme court of Pennsylvania. It is stated from the relation of one of the counsel in the cause. Maureau was master of a French vessel bound from Philadelphia to Bordeaux, on board of which Germain took his passage, and paid his passage money in advance. Two days after her sailing, the vessel was wrecked and totally lost in Delaware Bay. In an action brought by G. against M'., the court ruled that the plaintiff was entitled to recover hack the whole of the money he had advanced, deducting a reasonable compensation pro rata intineris, for the two days the plaintiff had been on board. See Roccus, n. 80. 3 Johns. Rep. 34 .