
    Hooe & Harrison and Others v. Mason.
    October Term, 1793.
    Ships — Whssv Entitled to Freight, Thotvgia Engaged in Battle. — A merchantman, having a letter of mamue, and having- taken goods on freight, may chase an enemy in sight, but cannot justify going out of her course to cruise. If, in the former case, she engage the enemy, and be so injured as to compel her to put into a port, other than that of her destination, she is entitled to freight, Tiut if the goods be not afterwards sent by the ship owner io the port of delivery, she is entitled only to freight - pro rata iteneris, unless prevented from doing so by the freighter.
    This was an action upon the case, upon an indebitatus assumpsit, and quantum meruit brought in the District Court of Dumfries, by the appellants, owners and masters of'the ship General Washington for freight and primage. Upon the plea of non assumpsit, the jury found a special verdict, in substance as follows: That on the 31st of August 1780, the defendant shipped at Amsterdam, on board of the General Washington, a letter of marque, bound for Alexandria, in Virginia, and owned by the plaintiffs, two parcels of goods, and paid the freight and primage on the small parcel, before the ship sailed.
    That the captain signed two bills of lading, binding himself to deliver the goods to the defendant, cr to his assigns, at Alexandria, the danger of. the seas only excepted; the defendant, paying, 12% per cent, freight, upon the net proceeds, upon their delivery at Alexandria, and the captain's primage, at the rate of five per cent.
    That the ship was a merchantman employed in transporting goods for hire, provided with a letter of marque and that by the ships articles, the captain, was not to cruise or sail out of his way after the enemy, for the purpose of making prizes or in pursuit of an enemy.
    That the captain, on his voyage, did change his course two or three points, and gave chase to a ship and brigantine belonging to the enemy, for three or four hours. That the ship was supposed to mount, 12, or 14, nine pound caronade guns, and the brig, 8 or ten four pounders; that the General Washington, mounted two nine pound-ers, and 16 double fortified six pounders.
    That the Gen. Washington, outsailed the ship and brig; the two latter, after the action began, acting upon the defensive & offensive. That the attack was begun by the captain of the General Washington, *who after a long engagement had nearly made prizes of the enemy, and would probably have done so, if he had not been too much disabled to pursue.
    That the captain, was then obliged to stop six or eight days to refit, and altered his course to Dartmouth, in New-Rngland, a good harbor, for ships ■ of the burthen of the General Washington. That the disabled situation of the ship, was produced by the action, and rendered it prudent in the captain to put into this port.
    That the goods were all landed, and stored at Dartmouth, and that it was necessary to unload, in order to refit, — -which being accomplished, the ship was fitted for a privateer, and sailed in about four months after her first arrival, and was taken.
    That the defendant wrote to colonel Henly of Boston, a letter dated the 22d of November, 1780, informing him, that he had goods on board this ship, which were intended for his own use, and not for sale, and requesting him, in case the ship should not be directed to Virginia, or the managers should not bring part of .the goods hither, to have all his goods stored, and forwarded by the first good vessel, to Poto-mack, or if none offered, then to send them to Philadelphia, or Baltimore: if the managers sent any part of the cargo to Virginia, then his goocls were to come by that conveyance.
    That in consequence of this letter, the agent for the owners, delivered the defendant’s goods to col. Henly; that they were imported for the defendant’s own use, and not for sale — That from Dartmouth, there was no opportunity to ship them to Virginia. —That they were removed from thence to Boston, from whence they were sent to Rappahanock river in Virginia, and from thence, by a circuitous land and water carriage, to the defendant.
    That as soon as the arrival of the ship at Dartmouth was known, the plaintiffs sent on an agent, to fit her out as a privateer, and to sell their own goods, which being made known to the defendant, produced the above letter.
    That it was frequently practised by merchants, during the late war, to receive and sell their goods, and to pay freight for them, tho’ landed at other ports, than the port of delivery.
    If upon the whole, the plaintiffs be entitled to full freight, they find for them £96: 3: 4% — if tu freigh t pro rata, then they find ^20 — if the law be for the defendant, then they find for him.
    *Upon this verdict, the District Court gave judgment for the defendant, from which the plaintiff appealed.
    Dee for the appellants.
    I shall put out of the case, the articles of agreement, entered into between the appellants and the captain, which, tho’ operating in our favor, are improperly brought into view, inasmuch as the defendant being no party to that agreement, they ought not in any manner to be affected by it.
    Freight, is a compensation for the carriage of goods, and is deserved, in proportion to the trouble. The appellee, therefore, ought unquestionably to pay for the carriage to Dartmouth; and if the nondelivery of the goods at the port of destination should be found to have been caused by himself, he will be answerable for full freight. I admit, that from the terms of such engagements as the present, if the goods be not delivered at the port of destination, in consequence of a voluntary and faulty departure of the captain, he is not entitled to claim any part of the freight. This will lead to an enquiry, into the conduct of the captain of the General Washington. It is found, that he went out of his course, a few points, for the purpose of attacking, and this, I contend, he was justifiable in doing. A letter of marque, is not obliged to act upon the defensive. She may chace, may attack, may even go a few points out of her course to do this; but she cannot cruise. Park on Insu. 341 — Dougl. Rep. S10. Thus far then the captain acted properly.
    His next step, was to put into Dartmouth, and this is found by the jury, to have been dictated by prudence. Being there, the owners were entirely at liberty, either to refit, and compleat the voyage, or to transport the goods to Alexandria in some other vessel. It is a right, of which the freighters cannot deprive the owners. Althoug-h the General Washington was not intended to bring the goods to Alexandria, yet, the owners might have sent them in some other ship, and in fact they did so with respect to a part of the cargo, belonging to other persons. The defendant’s might have been also sent, if his agent had not taken them.
    He ought not therefore to avail himself of this act of his own, to deprive the owners of full freight.
    Marshall for the appellee.
    I admit, that freight is a compensation for the carriage of goods, from one place to another. It is bottomed upon some contract, either written, or parol, and by the mercantile law it is considered, as being neither due nor de-mandable, until the service is performed. The performance *of the service, then, must be first established, before the reward can be claimed, and in strictness, it cannot be demanded, if from any cause whatever, the goods are not carried to the port of delivery agreed upon. I must admit that in some instances, the compleat fulfillment of the contract may be dispensed with; and yet, freight pro rato allowed. But as this is merely a matter of excuse, it must be proved by the owners, and must appear to be such an one, as fixes the blame upon them, or upon the captain. In this case, the conduct of the captain is attempted to be justified, and authorities for that purpose are relied upon. But it is easy to discern, that the cases cited by Mr. Ives, do not apply. They relate merely to disputes between the assurer, and assured, and not to the subject of freight, which involves quite different considerations.
    One party agrees to insure, provided the ■other conforms to certain rules, well established and known by both, and which are therefore calculated upon, in estimating the rate of hazard.
    If the captain be not permitted to cruize, or to act offensively, the risk is the less, and of course, the premium diminished. A deviation therefore, avoids the policy, and the cases cited, define what is such a deviation, as to produce this effect. But the freighter, knowing that the ship is by contract, (as in this case,) prohibited from chasing, and that his property is on that account, more safe in her than in another vessel is induced to give her a preference. • — A violation of this contract, is a plain fraud upon him, and consequently, deprives the owners of an excuse, for not strictly complying with their engagement. Were it otherwise, the captain would be thereby induced, to chace every vessel, of which there was a chance of making a prize, and thus not only prolong the voyage, but endanger the cargo. Though the defendant was no party to that agreement, yet as it is natural that his enquiries would go to every circumstance relating to'the risk, it is to be presumed, that it was known to him.
    As to the letter written by the appellee, to col. Henly, it appears to be very much misunderstood by the counsel who rely upon it. It is in the alternative ; if the Washington should not bring the goods, or if the owners should not chuse to send them in some other vessel, then, and not otherwise, his agent is directed to take possession of them. As it is not presumable, that the owners would have delivered the goods to Henly, without an order from the appellee, it is plain, that this letter was shewn to their agent. The goods being delivered, amounts to a declaration, on the part of the owner, that the Washington was not ^'intended to come to Alexandria, and that they did not mean to send the goods, in some other vessel. A different determination, afterwards formed, and executed, could not justify their prior conduct. Upon the whole, I think it clear, that the conduct of the captain in the first instance, and of the owners in the second, was such, as to destroy all claim to freight, either upon principles of justice, or of law.
    Lee in reply
    I willingly consent, that the agreement, between the owners and the captain, should be considered as part of the case. The second article of it, directs the mode of arming, and stipulates for a reward, to the mariner first discovering an enemy, which proves, that it was intended to chace, and to act offensively. Nor is it difficult, to reconcile this with the first clause, which was evidently meant to prohibit the captain from committing a deviation, which we find, from the cases cited, to mean cruizing and not going a few points out of the course to chace. In fact, it was intended to express, what would otherwise have been understood.
   The PRESIDENT

delivered the opinion of the court.

The deviation, and putting into Dartmouth, being found by the jury, to have been prudent and unavoidable, in consequence of the action, no objection against the payment of freight, can on that account be made, if the conduct of the captain, in attacking the enemy, were justifiable. The general jjrinciple of law, that a merchantman, having letters of marque, may chace an enemy in sight, but cannot cruize out of her course to look for one, is well established, and seems not to have been controverted at the bar. This is surely a very reasonable distinction; for since commerce is the principal object of such a vessel, it would be improper, that she should lose sight of this, and go in search of prizes. — On the other hand, as letters of marque are obtained at some expence, a vessel would have them to little purpose, if she could never act but on the defensive, and could not, whilst pursuing her great and primary object, embrace a probable chance of making prizes, so as to procure a reimbursement. But to this, t-wo objections are made by the counsel for the appel-lee. — 1st, That the doctrine, tho’ applicable to cases of insurances, is not so, to those, where the question is about freight. The court cannot discern any distinction between them; for if the insurer be supposed to know the principles and rules of insurance, and to calculate the rates of hazard accordingly, why is not the freighter to be presumed equally well informed?

*The second objection is, that the captain was restrained by the articles, from giving chace. But upon a view of those articles, it is evident, that the parties well understood the distinction between cruizing, and chasing an enemy in, or near the course, the former of which is alone intended to be prohibited. We are therefore of opinion, that the conduct of the captain, has not deprived the owners of their claim to freight. We are equally clear, that the claim cannot go beyond a freight pro rata. The letter of the appellee, did not prevent, or in the most distant manner, intend to prevent the owners, from sending the goods to the port of delivery; on the contrary, he appears to have preferred their doing so, and only requested the interference of his friend, in case they should not take that step. . The delivery of the goods to col. Henly, was evidence enough, that the owners had no intention of sending them, and that they had abandoned their claim to full freight.

Judgment reversed and entered for ^20.  