Scott v. Libby , 2 Johns. 336 ( 1807 )

Thompson, J.

The claim to freight set up by the defendants cannot be sustained. It appears to be conceded by the counsel on both sides, that by the blockade of the port of discharge, the charter party:\v&s dissolved, and all claim to freight under it gone. {Abbot, 338.) Nor is this a case for pro rata freight. Here was no acceptance of the cargo at an intermediate port. A variety of cases may occur where the-owner of the goods may make himself responsible for freight, by an acceptance of his goods, short of the port of destination^. But this results'from an implied contract, raised by the acceptance of the cargo, and a supposed benefit received by the owner, from a partial transportation of his goods. But when the cargo, as in the present case, is brought back to the port, of lading, no such presumption can arise. No benefit has accrued to the owner, nor has he done any act, frontwbich an implied contract, to pay any freight can be raised. The case of the Hiram, decided by Sir William Scott, (3 Rob. Ad. 180.) is an analagous case; and notwithstanding it is not to be received as an authority, it is entitled to very, respectful consideration, as the decision of a learned and eminent jurist on the maritime law of England. In that case, after a part performance of the voyage, and a capture and re-capture, the vessel was brought back to the port, or quasi port of her departure. And after a consideration of the foreign authorities, and the case of Luke v. Lyde, it was held that neither under the particular terms of the contract, nor upon general principles and practice, was any freight due.

I am, therefore, of opinion, that judgment ought to be rendered for the plaintiff.

Kent, Ch. J. was of the same opinion. Spencer, J. not having heard the argument, gave no opinion.

Judgment for the plaintiff.^(a.)

(a.) To entitle to pro rata fre'ght, the acceptance mustbe voluntary. Welch v. Wicks, Plow. 504.