
    Frith against Barker.
    Where ISO hogsheads of sugar licid been shipped at Surinam to be delivered at New-York, the vovage, edt owing3 to tempestuous hogsheads^of tile sugar were washed out, so that the casks were empty, and some of them had fallen to pieces, on the arrival of the Vessel at New-York, where 140 hogsheads were received by the consignee, who refused to pay for the residue; it was held that no freight was due for the empty hogsheads, the sugar being considered as lost by the perils of the sea. If the sugar had been wasted and lost by the internal decay, leakage, evaporation, or other causes, might the shipper have abandoned the casks for the freight ? Quere. Evidence of the usage of trade may be admitted to explain, but not to contradict a settled rule of commercial law.
    Tins was an action of assumpsit, for the freight of 190 hogsheads of sugar, in the ship Esther Lindo, of which the piaiutiff was master, from Surinam to Neio-YorJc. The * ’ _ cause was tried, at the New-York Sittings, the 6th June, 1806, before Mr. Justice Thompson.
    
    The goods were shipped at Surinam according to the of landing, to be delivered to I. S. at N. Y. or his assigns; the freight was stated to be at the rate of $7 per hogshead. At the foot of the bill of lading, which was endorsed to the defendant,was the Following N.B. “The’casks are in the common order of Surinam hogsheads, which is not good order. Cooperage and new casks when landed, to be paid by the consignee, with five per cent primage.” The'ship sailed from Surinam duly fitted for the voyage, with the 190 hogsheads of sugar, properly stowed. During the voyage, the ship leaked, owing to tempestuous weather, and fifty hogsheads of the sugar washed out, so that the casks w.ere empty on their arrival át Neiv-Yorlc, and. some of them, in consequence, fallen to pieces. The defendant received 140 hogsheads, but refused to receive or pay freight for the'residue. The plaintiff, at.the trial, offered to prove, that by the usage of merchants at New-York, freight was payable for the empty casks under the circumstanccs above stated. This evidence was, objected to, but admitted by the judge, reserving the question, by consent, as to its admissibility. The plaintiff then produced two merchants, Mr. Simond and Mr. Codman, who said, that it was the usage to pay for rum, sugar, and other goods, which had leaked out, when it appeared that they had been properly stowed. That when the consignee received part of the goods, and the wastage was not owing to bad stowage, he paid full freight for the whole, according to the bill of lading. ■ The witnesses produced knew of no usage that would warrant the abandonment of goods, perishable in their own nature, on account of their deterioration. A verdict was taken, by consent, for the plaintiff, for the freight of the whole .190 hogsheads of sugar, subject to the opinion of the court, on a case containing the above facts.
    The case was argued at the last term by Wells, for the plaintiff, and Colden, for the defendant.
    
      Wells, for the plaintiff.
    Two questions arise upon this case for the consideration of the court. 1st. Whether the evidence of usage was admissible or not ? 2d. Whether, independent of the evidence of usage, the consignee, of-goods, which are partly damaged and partly sound, but all included in ono bill of lading, can accept the sound and reject the damaged, and so exonerate himself from the freight of the latter?
    1. It is not intended to controvert the well-settled rule of law, that parol evidence shall not be admitted to contradict a written instrument; nor is that rule considered as at all interfering with the evidence of usage produced at the trial of this cause. It was introduced for the puiv pose of giving a construction to the bill of lading. In this view it was admissible, to show what was the intention of the parties. Commercial contracts are made in reference to the usage of trade: it becomes, of course, necessary to resort to this to give them the effect originally intended. Lord Kenyon's opinion, in the case of Cutter v. Powell,
      
       shows the great deference which the courts in England pay to evidence of this kind. The case of Newman v. Cazalet
      
       is also a strong authority on this point: for Mr. Justice Puller there expressly allows cd evidence of usage to give a construction to the con-? tract different from ths “ general law.” Lord Eldon did the same thing in Cochr-an v. Retberg. Indeed, that distinguished judge, in another case, considers the rule of construing a written instrument according to the usage of trade, as too well settled to be now called in question. Even statute and formal deeds have been expounded by the usage which had taken place under them.
    
    If, then, the evidence of this subject was rightly re-: ccived, it establishes on this ground the plaintiff’s right to freight for the whole of the 190 hogsheads of sugar. The testimony of the witnesses is in precise conformity with the language ofLord Mansfield, that a consignee, “ cannot pick apd chooseif he take any part of a bill of lading, he must pay freight for the whole, The defendant did take a part, and must, consequently, pay the entire
    if» ^pwever, this evidence should be rejected, the claim to full freight must prevail, upon general principles, as well as upon authority -
    The right of a consignee to abandon all the goods contained in a bill of lading on account of their deterioration, is not' the point in controversy. ' On this . subject foreign writers entertain ’different opinions, and the question has never yet been judicially decided either in England or in this state; though Mr. Justice Livingston expressed his individual opinion upon it pretty fully, in the case of the Griswolds v.' The New-Yorlc Insurance Company
      
       The assignee in .this case not having abandoned the whole of the sugars, but having actually received a part, the question is, whether this act draws after it the payment of the freight for the whole ? It is apparent from the case, that, the damage which a part of the sugars sustained didhiot arise from the neglect or default of the plaintiff. His vessel was competently fitted for-the transportation of the cargo which was properly stowed. As far as depended upon him, therefore, he has performed his part of the contract. If the damage had arisen from the defect of the vessel, or of stowage, the plaintiff would have lost his freight, and would, besides, have been answerable to the defendant for the damage: it would, therefore, seem to follow, that when the damage is not owing to these causes, but to others,"which-the plaintiff could not control nor prevent, he ought, in no degree, to be the sufferer, as he must.be, if he lose his freight. To. deprive him of freight in the present instance, would be to make a ship owner an insurer instead of a carrier.
    In this case, the casks are expressed in the bill of lading to be “.not in good order.” This circumstance, no doubt, contributed to the loss which happened. If they had been in good order, the wastage would probably have been less, or perhaps none at all: at least, there might have been enough left to have paid the freight. There would, therefore,' be a peculiar hardship in making us answerable, in any shape, for a loss arising from defective casks, admitted to be such at the time of shipping.
    The contract for'the transportation of goods is entire ; it cannot be divided so as to apply to one part of the subject matter, and not to the other. • The consignee cannot select, at his pleasure, out of a bill of lading, what he will receive, and what he will not. He must take the whole, or none.. If he accept any part of the goods carried, he is bound to pay freight for the whole. This principle is established in the case of Luke v. Lydé.
      
       The language of Lord Mansfield is explicit; the merchant, says he, “shall not take some and abandon the rest, and so pick and choose what he likes, taking that which is not damaged, and leaving that which is spoiled or damaged.”— jn Lutwidge and another v. Grey
      
       full freight was adjudged to be due for a cargo of tobacco, notwithstanding a part of it was so damaged as to have been burnt at the custom scales. So in Hotham v. East-lndia Company,
      
       the plaintiff was held to be entitled to the full freight of a cargo of pepper, although a part of it was greatly damaged. Roth of those eases arose, too, under charter parties, where greater strictness prevails, than where the contract is not so formal.
    It may be said, on the other side, that in the case before the court,.the freight is payable by the piece, and that the cases I have cited do not, therefore, apply.— There is, however, no solid distinction between the claim to freight, where it is payable by the ton, and where it is payable by the piece; the vessel is equally used in both instances, which is the foundation of the demand.
    
      Golden, contra.
    1. No usage has been proved. Two witnesses only were sworn at the trial for that purpose. One of them gave his opinion, merely as to the usage in regard to rum. Evidence of this nature ought to be received with great caution. Questions of this kind are to be decided by the law-merchant, or general usage, not by the opinions of a few merchants in a particular place. In the cases which have been cited, the witnesses were admitted to prove the usage'of a particular trade, in order to control the operation of a written contract; to the meaning of certain words used in a charter party, or to aid the court in the true construction of such contract.
    This is different from establishing by witnesses a general usage, to operate as a general rule of property in all cases. 2. The present caséis distinguishable from.those to be found in the books on the subject of freight. It is not a" freighting by the ton; nor a contract for hiding or trans--portaiion merely. It is not the case of goods' arriving at the port of destination in a damaged state; nor that-of goods perishing from some inherent defect, nor of goods lost through the insufficiency of the casks. The present is a contract for the delivery of a certain number of hogsheads, for which freight was to be paid at a certain rate for each cask. Where the master or supercargo undertakes to carry and deliver goods, by the bale or cask, the freight is to be paid according to the number of casks or bales delivered. Ifsomepf the-casksbe lost or destroyed by the perils of the sea, it is an average loss, for" which an insurer may be responsible; but the master must lose his freight. In the case of hulee v. Lyde,
      
       though pro rata freight was allowed for the goods accepted by the owner, yet no freight was paid for the half of the cargo allowed for salvage, which was considered as lost.' The case of Lutwidge v. Grey arose on a charter party, by which freight was payable at so'múch per ton. Part of the-cargo was actually lost, and the residue, arrived in so .deteriorated a state, as to be good for nothing; and freight was allowed on the goods actually delivered, but not on those which were lost. The cases of Hotham, v'. East-india Company, 
       an.d Post mid Russellx. Robertson,
      £ 3" . . u are of the same kinds The master is not entitled to freight until the goods are actually delivered; for such are the terms of the contract expressed in the bill of lading.The delivery is a condition precedent to the plaintiff’s right to recover for freight, the performance of which must be alleged. The clause in the bill of lading, as to perils of the sea, may excuse the master for not delivering the goods, but he is not thereby entitled to freight.— Again, it is said, the master, not being in fault, ought to be paid his freight, and that the doctrine we contend for, would make him an insurer, to the amount of his freight. It is certainly equitable, when, by a misfortune of this nature, the owner has lost his goods, that the master also should bear a small portion in the loss of freight: and on the contrary doctrine, the merchant would become an insurer. The equity of the case is,, in truth, more in favour of the merchant who has lost his goods, than the master.
    
      Wells, in reply.
    The plaintiff has delivered the goods in specie, as far as they were susceptible of delivery; that the hogsheads were broken and empty has not arisen from any fault of the master. It is sufficient to entitle' the plaintiff to his freight, that the room of his ship has been occupied, and that .his vessel has been used by the merchant for the transportation of his goods. In the case of Lutwidge v. Grey, the tobacco was burnt; and the master could not have been entitled to freight, but on the principle that he had performed every thing required on his part, and that the deterioration of the goods was not his fault. That case, it is true, was upon a hiring by the ton, but it was agreed that four hogsheads should make a ton, which is equivalent to paying by the hogshead.— In Lulcc and Lyde the freight was payable at so much per quintal. On what principle of equity ought the master to share in the loss? He can gain nothing but the freight or price of hire. The merchant is to get his freight and a profit on his goods, and may indemnify himself by insara nee; but an insurer on freight, eo nomine, would not be liable when the vessel arrived in safety. '
    
      
      
        fibhol, 170.
    
    
      
       6 T. Rep. 324. '
    
    
      
      
        Parle, 5 Ih f.d. in notes, p. 424.
    
    
      
       3 Esp. Rep. 121.
    
    
      
      
        Anderson V. Pitcher, 2 Ros. Puli' igs.
    
    
      
      
        Vaughan, 169. Attorney Gen. v. Par-far. 3 Aik. 576. Withnett y. Garlham, 6 Term Rep. 388. Cooke v, Rooth, Cowp. 810.
    
    
      
      
         Bwr.p82.
    
    
      
      
         Guidon, . Chapl. '.iri, 10.11.1 Valin, JVb. 59, 60. Char. Pari. 676. Pothier,
      
    
    
      
       1 Johnson, 214.
    
    
      
       1 Burr.882.
    
    
      
      
        Abbot, 249.
    
    
      
      
        Doug. 272.
    
    
      
      
        Evanfo Obligations, Nof TtVol. 2- P-360,
    
    
      
      
        Mbot, 326. j^g3 Ch. 4, { 8.
    
    
      
      
        Allot, 226. 235-244-
      
    
    
      
      
         2 Bur. 882.
    
    
      
      
        Dovf- 2"“-
    
    
      
       1 Johnson, 24.
    
    
      
      
        Cook v. Jennings, 7 Term Rep. 381.
    
   Kent, Ch. J.

The question, whether the shipper at the port of discharge, may abandon his deteriorated goods to the owner of the vessel, and thus avoid the pay-meat of freight, does not necessarily occur in this case. If that question, which is not settled- in our law, should hereafter arise, it would deserve to be well considered; but in the present case, ! consider the’50 hhds. of sugar, about which the controversy exists, as having perished, on the voyage, by the perils of the sea; and if this be the fact, it will be admitted that no freight was due for them. No-freight is due for goods which perish during the course of the voyage. When the present voyage commenced, the sugar was properly stowed ; during the course of it, the ship leaked, owing to tempestuous weather, by means of which, the 50 hogsheads of sugar were washed out > and upon the arrival at Neiv-Yorlc, the hogsheads were empty, and some of them fell to pieces. The sugar was. in this case as effectually destroyed, as if it had been at once swept into the sea, and had gone to the bottom.— Bringing into port the empty hogsheads,"was not bringing the. hogsheads of sugar which the defendant had undertaken to do. A hogshead of merchandize is considered by Pothier (Charle Par tie, No. 6 0.) as having perished, if the cask arrives empty, because the goods no longer exist; and, consequently, the master cannot be said to have carried them to their place of destination.— And however the authorities may differ on the assumed right to abandon damaged goods in discharge of freight, •yet they all agree that you may abandon, casks, leaked out by the perils of the sea, as the subject matter of the contract ho longer exists. (Le Guidon, ch. 7.§ 11. Ord. du Fret. Art. 28. and Valin, 672. Pothicds Charle Partie, 60.) I wish to be understood, as confining this opinion strictly to the facts in the case which establish that the sugar was entirely gone,, by the perils of the sea, be-£ore arr¡vaj Gf the vessel in port. It will not, therefore, apply to the case, of an article that is lost by other causes than the perils of the sea, such as internal decay, leakage,, evaporation, and the like.

The next point is, whether evidence of usage in contradiction to this rule was admissible, and if it was, whether the usage proved, went the length of establishing that freight was in this case due for the sugar that was destroyed.

The testimony produced certainly did not reach this point. It only established, that the ship owner was entitled to his freight, notwithstanding the goods were dimiu-ished, or lost by wastage; and that he was not responsible for leakage, if the casks were well stowed. But the1 testimony did not show that this usage existed, if the contents of the casks had been lost by means of sea perils during the course of the voyage- I presume that no such usage exists. It would be repugnant to the general rule of maritime law- The true import of the testimony offered was, that the master is entitled to his freight, notwithstanding the ordinary diminution, or waste of an article, arising either from its nature, or the defect of the cask. It becomes, therefore, immaterial to examine, whether this evidence of usage- was or was not strictly competentbut as the question is frequently suggested, it may be proper to observe, that though usage is often resorted to for explanation of commercial instruments, it never is, nor ought to be, received to-contradict a settled-rule of commercial law. This was so determined in the-case of Edie v. East-India Company. (2 Burr. 1216.) The plaintiff must, therefore, deductfrom the verdict the amount of the freight allowed for the 50 hogsheads, and take his judgment for the residue only,

Thompson, J. was of the same opinion.

Spencer, J. not having heard the argument, gave no opinion.

Judgment for the plaintiff, for the freight of 140 casks only. 
      
       If the shi p is hi a capacity to proceed on her voyage, and the goods are.damaged, the owner will be entitled to hia freight, if he offers to car ry them on. Nothing but the actual destruction of the goods will prevent his earning freight, if be carries them to their port of destination. Herbert v. Hallett, 3 John. Cas. 93.
     