Stoughton v. Rappalo , 3 Serg. & Rawle 559 ( 1817 )

Tilghman C. J.

This is a replevin for 631 barrels of flour. In the month of March, 1813, the defendant agreed to carry this flour, from the port of Philadelphia to the Havanna, in the ship Minerva, of which he was master, on freight at the rate of four dollars a barrel. The plaintiff, the owner of the flour, put it on board the Minerva, just about the time when notice was received of the blockade of the Delaware by a hostile British squadron. Some days after this, the plaintiff demanded of the defendant, either to proceed on the voyage, .or return him his flour. The defendant refused to do either, except on conditions which the plaintiff would not accept. Issue was joined on the plea of property; so that the only question on the trial was, whether the property was in the plaintiff at the commencement of this action. That he had the general property, was not denied ; but the defendant contended, that the agreement to carry on freight, being not dissolved, but only suspended by the blockade, he had a right to detain the flour during the blockade, in order to carry it to the Savanna, when the obstruction should cease. Whether the contract was dissolved, or only suspended, is a difficult question. It has been very well argued, but the Court does not think it necessary to decide it in this action. Where freight is earned, the master may detain the goods till the freight is paid. But it is not pretended, that any freight was earned in this case. On what ground then, can the defendant support the right of detention ? It was to be expected, that the blockade would continue a long time. . Summer was approaching, and during the hot months flour is a perishable article, or at least it is subject to that kind of damage which renders it of little value. Was it to remain on ship board till it was spoiled, and then the very subject of the contract be destroyed, under the pretence of preserving the contract? This would be absurd. No authority has been shewn by the defendant’s counsel, against the plaintiff’s right to have his property re-landed and delivered to him, in a case like the present; and Valin, the most favourable of all the authors cited for the defendant, expressly says, (1 Valin, 628, art. 9,) that in case of blockade, the shipper has aright to release his goods, -without giving any security, although, in consequence of a French ordinance, he must indemnify the master, in case the goods are not re-shipped when the blockade ceases. In case of goods of a perishable nature, this indemnification would be a matter requiring good consideration. But I shall give no opinion on that point. If the law allows the master indemnification or compensation, it must be sought in an action on the case. The plaintiff having proved his property in this case, and the defendant having shewn no right to detain it, I am of opinion, that the verdict ought not to be set aside.

Gibson J. expressed his concurrence.

Duncan J.

However the law may be in England,, as to the action of replevin ; whether it only lies in case of distress, as is held by some, 3 Bl. 145, or, whether, as held by others, it lies in all cases where the goods have been taken out of the actual possession of the owner, it is the established law of Pennsylvania, that it lies in all cases where a man claims goods in the possession of another. 1 Dall. 156. 6 Binn. 8, It is a question of property. It is not like trover, which is an equitable action, and if the party has a legal or equitable ' lien on the property, it may be defalked in the damages assessed by the jury. But in a case where the claim of the defendant must be entirely uncertain, no fixed standard by which to ascertain it, the owner cannot know what sum to tender ; and if a verdict passed against him in replevin, because he tendered too little, his property would be lost. Here the goods were delivered to the plaintiff. If there is a verdict for the defendant, it must be a general one ; in which, case there would be judgment de retorno habendo, and the defendant might, for the value of the goods, and not for the amount of the lien claimed by him, proceed against the sheriff or the pledges. In the action the jury could not award damages to the defendant.

The taking here, not being tortious, the plaintiff must prove property. If the taking were wrongful, this burden would lie on the defendant. The plaintiff has proved property. The defendant cannot claim a lien on the ground of freight; for no freight was earned, and it is impossible to say certainly, that it would have been earned, had there been no blockade ; for still the voyage might not have been safely performed. The plaintiff had done every thing on his part. The defendant was not prevented from earning it by any breach of contract on the part of the plaintiff.

It is not necessary, as this case comes before the Court, to decide, whether the defendants were entitled to any compensation, and if to any, what. The occasion does not call for an opinion on the question, whether the contract is dissolved or suspended. Although no direct decision has been produced, yet it appears from writers, whose opinions are entitled to great respect, and such, too, would appear to be the reason of the thing, independently of direct precedents, that in case of a cargo such as this, perishable in its nature, which, if kept on board during the continuance of the blockade, would have been spoiled, or if secured on shore, must be greatly deteriorated, that the owner had a right to have such cargo unladen, and to the possession of it, and the power to sell it, without giving any security to replace it. If this be so, the defendant could have no lien on the cargo. For the doctrine of lien is founded on the possessor’s right to detain, until the lien is discharged. When the possession is gone, tbé lien is gone. The remedy of the defendant for compensation, if he has any, is not by detaining the goods, nor action for recovery of freight; but an action for the re* covery of damages for not being suffered to carry it.

New trial refused.