
    Henry Clark versus Massachusetts Fire and Marine Insurance Company.
    Fr eight was insured from Richmond to Nice. The ship sailed on the 2d of September, and in consequence of sea damage put into Kennebunk on the 9th to repair. ii was found that two months would be required for making the repairs, and unloading and reloading, and the owner of tobacco on board demanded that it should be sent on in another vessel, as otherwise the object of the voyage, which was to get the tobacco to the French market at the fall concours, would be defeated. The freight from Kennebunk would have been as high as that from Richmond, or higher, and the ship-owner declined hiring another vessel, but offered to repair his own and proceed on the voyage. The shipper insisted on the tobacco’s being sent on immediately or delivered up to him, otherwise it would be abandoned and the ship-owner looked to for damages. He stated also that the freight, if any were due, should be settled. The ship-owner then delivered the tobacco, and the shipper sent it on in a vessel belonging to himself. The freight was abandoned on the 12th of September. The underwriters knew that the cargo consisted of tobacco. Held, that the ship-owner might have made the repairs and detained the tobacco for the purpose of earning the freight, and that the underwriters were not liable.
    Assumpsit on a policy of insurance, dated the 24th of August 1821, whereby the defendants assured for the plaintiff 3000 dollars on the freight of the barque American, and 2000 dollars on property on board, at and from Richmond, in Virginia, (with liberty to stop at any places in the Chesapeake to complete her loading, and at Gibraltar,) to Nice, and at and from thence to Malaga ; and 5000 dollars on board the barque, and on her freight, at and from Malaga to her port of discharge in the United States.
    It was admitted that the plaintiff was interested in the freight of the vessel to the amount insured.
    The vessel sailed from Richmond on the 2d of September with a cargo of tobacco, and on the 3d she met with a severe gale, by reason of which, and of damages occasioned by the perils of the seas, it became necessary to seek a port for repairs ; and for this purpose she was put away for the port of Kennebunk, in Maine, where she arrived on the 9th. Her cargo was there discharged and a survey was had, the result of which was, that the vessel was not injured in her bottom, but so much in her upper works that it was necessary she should undergo considerable repairs, and that the making of these repairs would require two months’ time, in-eluding the time necessary to unload and reload. One Watts, wh° was a Part owner of the tobacco, was at Kennebunk at the time when the vessel was unladed, and for himself and the other owners demanded of the plaintiff, that he should take the tobacco on to Nice in another vessel ; which he declined, offering to repair the barque as soon as possible, and to pursue the voyage with her. Watts insisted upon the tobacco’s being immediately sent, or delivered up to the owners, stating that the object of the voyage would be defeated if they should wait for the barque to be repaired, and unless the plaintiff would send it on in another vessel, or deliver it to them, the tobacco would be abandoned and the plaintiff would be looked to for damages. He also stated that the freight, if any were due, should be settled.
    Under these circumstances the plaintiff permitted Watts to take the tobacco, 179 hogsheads of which were shipped on board the brig Floyd, belonging to Watts and others, which vessel sailed from Kennebunk for Nice on the 30th of September. The residue of the tobacco, 73 hogsheads, being found to be too much damaged to reship and send to Nice,, was sent by Watts to Boston, where it was sold by auction by direction of the underwriters. The freight was abandoned to the defendants on the 12th of September.
    Watts testified that the object of the owners, in the shipment, was to get the tobacco to the French market at the time of the fall concours, which was proved to be in the month of November, and that the object would have been defeated by the delay which would have been occasioned by the repairs of the vessel.
    There was evidence, that at the time of this shipment tobacco could not be imported into France in American vessels, so that those who shipped tobacco for the French market were obliged to send it to some neighbouring port, from whence samples were sent to Paris at the time of the concours, when the sales took place, at which the government or its agents were the purchasers ; and if sold, it was shipped from tlie foreign port to the port in France where it was agreed to be delivered. These concours were held twice a year, in May and November, conformably to notice previously given, and the sales were sometimes postponed or continued into December, and in the year 1821 they were so continued until the 6th of that month. No sales could be made in France, for consumption there, except at the concours, but tobacco not so sold might be sold in entrepot; or might be kept for the next public sale, or might be shipped to any foreign port.
    The plaintiff’s counsel contended, that as the delay of the barque until she was repaired would have rendered it impossible to have reached Nice in season for the tobacco to be offered for sale in the fall concours, and as the freight from Kennebunk to Nice would have been as high as • the freight he was to receive from Richmond, or higher, which was proved to be the case, he was not obliged to ship the cargo in another vessel, and that he was justified in giving it up to the shippers and looking to his policy for the freight.
    The defendants, by their counsel, contended that there was no sufficient reason for giving up the freight ; that the plaintiff ought either to have procured another vessel, or to have retained the cargo until his own vessel should be repaired ; and that having yielded to the claim of the ship pers, his remedy, if any, was against them, and not against the underwriters.
    The Floyd, which sailed as before mentioned, had a passage of sixty days from Kennebunk to Nice. A passage of about forty-five days would be a common one, of thirty, an extraordinary one. To reship the cargo at Nice for Marseilles, the usual port in France for such purpose, and get the samples from thence to Paris, would require from ten to thirty days, but the samples might be sent from any foreign port before the cargo should be landed in France.
    A question having arisen whether the agents of the insurers knew that the cargo consisted of tobacco, the jury were instructed to return a verdict for the plaintiff or defendants, according as they should find that fact, and they returned one for the plaintiff; which was to be considered in all other respects as a verdict by consent, subject to the opinion of the Court upon the law of the case, and to be set aside, confirmed or altered, according to the legal rights of the paries.
    
      Prescott and F. Dexter, for the plaintiff.
    The ship must carry the goods to the place of destination, or the owner will not be entitled to freight. If the ship is damaged on her voyage, the master may put in to a port to repair, md may make the necessary repairs, if it can be done in a reasonable time, and may then carry the goods and earn the freight. What is a reasonable time, depends on the part cular circumstances of each case. Here the cargo being of a perishable nature, and shipped with a particular object, which would be defeated by delay, two months was an unreasonable time to compel the shippers to wait. The lr0s and inconvenience to them overbalanced the master’s rights in regard to repairing the vessel and pursuing the voyage. In such case the master may procure another vessel to cairy the goods, but he is not bound to do so, unless it will be of some advantage to the ship-owner. If he cannot or will not forward them, the shipper may demand them without paying any freight. It would have been of no advantage here to hire another vessel, since the master would have been obliged to pay as much for sending the goods from Kennebunlc to Nice, as the stipulated freight for carrying them from Richmond to Nice. If however another vessel had been procured, it would have made no difference to the underwriters, for they would have been answerable for the freight paid to such vessel. They cited Laws of Oleron, art. 4 ; Laws of Wisbuy, art. 16 ; Valin sur L’Ord. de la Marine, liv. 3, tit. 3, art. 11 ; Hunter v. Prinsep, 10 East, 394 ; Wilson v. Royal Exch. Assurance Co., 2 Campb. 624 ; Manning v. Newnham, Marsh on Ins. 585 ; Coolidge v Gloucester Mar. Ins. Co., 15 Mass. R. 341.
    
      Bliss, for the defendants,
    cited Bradhurst v. Col. Ins. Co., 9 Johns. R. 19 ; Mayo v. Maine F. & M. Ins. Co., 4 Mass. R. 374 ; Palmer v. Lorillard, 16 Johns. R. 343 ; Herbert v. Hallett, 3 Johns. Cas. 93 ; Griswold v. New York. Ins. Co., 1 Johns. Rep. 212 ; S. C. 3 Johns. R. 327 ; Lutwidge v. Grey, Abbott on Merchant Ships &c., 298 ; Luke v. Lyde, 2 Burr. 888 ; Anderson v. Wallis, 2. Maule & Selw. 240 ; Everth v. Smith, ibid. 278 ; M'Carthy v. Abel, 5 East, 388.
    The cause was continued for advisement, and at this term the opinion of the Court was delivered by
   Putnam J.

The defendants undertook to indemnify the plaintiff, if he should be prevented from earning his freight by any of the perils contained in the policy. The plaintiff alleges that he has lost the freight by reason of the sea damage which happened to the ship. The defendants, on the other hand, contend, that the plaintiff has given up the voyage without any reason for which the defendants are responsible.

It appears that within a few days after the ship sailed from Richmond, she was obliged to put into Kennebunk to repair the sea damage she had sustained ; that the master offered to repair her ; and that she could have been repaired and could have proceeded upon the voyage in two months. Was the merchant obliged to wait that time to enable the master to make the repairs ? If he was, then the contract of affreightment was only suspended by reason of the disaster which befell the ship, and the master should have repaired his ship and proceeded. But if the contract was terminated by the perils which the ship encountered, the plaintiff must recover. 2Neither party is at liberty to abandon the contract, without the consent of the other, or without legal cause which was not procured or occasioned by the fault of the party who relies upon it.

The books are not very definite, as to the time allowable to the master to repair and go on with his voyage. Some of the foreign regulations seem not to be consonant with reason, experience or convenience, when applied to the usage of our own country. Thus, for example, according to the Laws of the Hanse Towns, three clays at most are allowed to the master to repair. By the Laws of Oleron, art. 4, if the master can readily repair his vessel, he may do it, or if he pleases, he may freight another ship to perform the voyage. By the Laws of Wisbuy, art. 16, it is said, that the master may fit out his ship, if he can do it in a little time. Molloy (bk. 2, c. 4, § 5,) remarks, that in such case the master may either mend his ship or freight another. He uses no words of restriction as to the time. And a distinguished English judge, (Lawrence,) in the case of Cook v. Jennings, 7 T. R. 381, adopts the general doctrine without limitation ; When a ship is driven on shore, it is the duty of the master either to repair his ship or to procure another. So in Beawes’s Lex Merc. 135 ; “ He may either mend his own ship or freight another.” In the Marine Ordinance of France, book 3, tit. 3, Of Freight, art 11, the rule is expressed without limitation as to the time ; “ If the master is obliged to cause his ship to be refitted during the voyage, the freighter shall be obliged to wait, or pay his whole freight.” Abbott (part 3, c. 7, § 10) says, if the master will, he may repair his ship, if he can do it speedily.

What is to be understood by repairing readily, or speedily, or in a little time, must depend upon the circumstances of the case. Chief Justice Kent, speaking of a ship which was repaired in seventeen days, observed that she was in a condition to be immediately repaired. Griswold v. New York Ins. Co., 3 Johns. R. 327.

The result would seem to be, that the master might, if he pleased, have repaired in a reasonable time. And that time may be illustrated by considering what a prudent master would have done, if there had not been any insurance, and if there had not been any objection on account of the market; with which it is well known that underwriters have no concern. It is said by Gibbs C. J., in Gernon v. The Royal Exch. Assurance Co., 6 Taunt. 387, that the assured is not to elect whether he will abandon or not as the markets rise and fall ; that he has no right to govern his conduct by any such rule, hut must act without reference to the state of the markets. And in the case at bar, it seems to us, that nothing but some other employment of the ship, or some other or more promising expectation relating to the disposition or destination of the cargo, or some circumstance affecting the market, would have altered the original plan of the voyage No prudent ship-owner would have hired another ship to carry on the cargo, when he could so expeditiously have repaired his own.

One test of this reasoning would be, to consider whether the merchant had a right to his goods at Kennebunk, against the will of the ship-owner, without paying freight. It has been already said, that the contract of affreightment is not to be terminated at the will of one of the parties only. Delays not occasioned by the fault of the owner or master of the ship may take place, which may operate most unpropitiously upon the merchant. Such are the delays by contrary winds, as that the best planned voyages are often frustrated. Such may be the case of an embargo. Such was the case in Palmer et al. in Error v. Lorillard, 16 Johns. R. 348, cited by the counsel in the case at bar. Palmer and others had undertaken to carry some tobacco from Richmond to New York for Lorillard, and the ship sailed upon the voyage in February ; but finding the Chesapeake blockaded, she returned to Richmond. Lorillard there demanded his goods in September, but the master refused to deliver them without being paid half of the freight, and in a few days the vessel and cargo were totally lost in a storm at the wharf. And the court held in that case, that the contract was only suspended by the blockade, and that the owners of the ship might detain the goods until they could prosecute the voyage in safety, unless the merchant would pay full freight. There the delay was three times as great as would have been suslavned by the plaintiff in the case at bar, if he had repaired his ship. The opinion of the court was pronounced by the learned Chancellor Kent, and the law upon this subject was stated in a most able manner.

The case of Anderson v. Wallis, 2 Maule & Selw. 245, cited by the counsel for the defendants, is very strong to prove, that delays which frustrate the voyage by preventing an arrival at an intended market, are not a cause of abandonment. That was a policy on goods, with warranty against particular average, from London to Quebec. The ship sailed in September, and received sea damage, and was obliged to bear away for Cork. She was run into Kinsale harboui in October, but was so much damaged, that she could not be repaired in time to reach Quebec that season. The cargo existed, but in a damaged state. The assured abandoned and claimed a total loss. Lord Ellenborough delivered the opinion of the court, and a part of it is very applicable to the case at bar. He says, “ Disappointment of arrival is a new head of abandonment in insurance law. If wherever a disappointment were to arise, an abandonment might be made, then supposing the ship had sailed on her voyage, hut had not arrived in the river St. Lawrence until after the frost set in, and was consequently obliged to wait there until the next season, that would have been a cause of abandonment, according to this rule.” In that case the court held the disaster to have been only a cause of temporary suspension of the voyage ; assuming that a total loss of a cargo might be effected, not merely by the destruction of it, but by a total and permanent incapacity of the ship to perform the voyage. The delay in that case was three times as great as that which would have been sufficient to repaii the ship in the case at bar.

In the case of Hadley v. Clarke et al., 8 T. R. 259, the delay was occasioned by an embargo. That was a suit by the merchant against the owner of the ship, for not carrying a cargo of goods from Liverpool to Leghorn. The ship sailed from Liverpool to Falmouth in June 1796, and while there waiting for convoy, on the 27th July, 1796, an embargo was laid on all vessels bound to Leghorn, until the further order of the Board of Privy Council. In August 1798, the ship returned to Liverpool, where the master relanded the goods without the merchant’s consent. And in that case the court determined, that the embargo had not dissolved, but had merely suspended the contract.

In the case at bar, if the vessel, instead of receiving the sea damage which she did, had been prevented from arriv¿ng at Nice, her port of destination, in time for the fall cone ours, merely by contrary winds and tempestuous weather, the insurers would not have been answerable. Or if she had arrived before the concowrs, and there had been such great importations of tobacco as to render it impossible to sell the cargo, the defendants would not have been answerable.

Now Roccus, with great reason, as it seems to us, considers the detention of a ship in port by bad weather, upon the same footing as a detention to make repairs. Fid. Roccus, note 67, where he says, in such case the charter party is not dissolved.

We have seen that the underwriters have nothing to do with the market. They do not stipulate that the voyage shall be performed in a given time ; it is only that it shall not be prevented from being performed at some time, by the risks which they have assumed.

This case is not like that of the Isabella, 4 Rob. Adm. Rep. 77, where a cargo of fish would have been detained by an embargo so long that it could not support the delay. There it was held that the master was not entitled to any freight, because the court thought it was impossible that he could fulfil the contract. But the tobacco, in the case at bar, for any thing that appears, would have been in as good condition if it had been carried to Nice after the concowrs, as it would have been if carried there before that event.

The decision to which this course of reasoning leads, accords with the equ'ty of the case ; for the plaintiff ought to establish his right at law very clearly in such a case as is now presented. He has employed his ship but a very few days in the business. He has her at home, or near it, ready to be employed in any other adventure, and seeks to recover his freight from the underwriters, which it would have cost him much expense of money and time to have earned in proceeding to Europe. If however the disaster which happened had terminated the contracts, those consequences would have followed. But we are satisfied that the master has lost the freight by his own act in giving up the voyage. He had an interest in carrying the cargo, which he was not obliged to abandon on account of the accident that happenec^ 1:0 *e ship. He might lawfully have insisted upon detaining the goods while the repairs could have been made ; which it seems to us could have been made in a reasonable time.

The opinion of the Court is, that the verdict for the plaintiff must be set aside, and that the plaintiff should become nonsuit. 
      
       In Am. Ins. Co. v. Center, 4 Wendell, 54, Walworth, Chancellor, speaking of a case in which it is necessary to send on the cargo by another vessel, says, that “ if the expense of sending on the cargo will exceed a moiety of the freight, it is a technical total loss of the freight, which will authorize the insured to abandon.” See Center v. Am. Ins. Co., 7 Cowen, 584; Whitney v. New York Firemen's Ins. Co., 18 Johns. R. 210; Robinson v. Marine Ins. Co. 2 Johns. R. 326.
     