
    The Same against The Same.
    ALBANY,
    Jan. 1812.
    
      Insurance"on freight from New York to Bremen, with liberty to touch at Amsterdam, Rotterdam, and Tonningen, for a market} vrsrrflntfid from seisure in port.
    
    The ship having sprung a leak, the master, without any intenetion of going to Amsterdam, but from necessity, put into the Texel, M^was re,í. .¡ was detainee! by an embar. fereda"o Am° ring^this detention, a small part of the cargo. (a °C quantity of Peruvian bark) by the order of the government, and against the will of the master, was delivered and the freight paid. The embargo being taken off, the slup, with the rest of the cargo, returned to the Texel, for the purpose of pursuing her voyage to Bremen, but was further detained by a general regulation of the government, for four days, at the Texel, and while so detained, a violent storm arose, and for greater safety, and with the advice of the crew, the cables were cut, and the ship run on shore ; in consequence of which, she was so much injured as not to be worth repairing, if got off, which was deemed impracticable. The cargo having been discharged on board of lighters, was seized and detained by order of the government, and carried to Amsterdam, where it was put into the king’s stores. The cargo was not consigned hi any particular place or person g but was to be delivered to the order of the shippers; and both ship and cargo were placed under the direction of the supercargo, (a part owner and one of the insured,) as to the destination of the ship and management of the cargo.
    It was held, that to entitle the plaintiffs to freight, there must have been either a delivery of the cargo at Bremen, or a voluntary acceptance _ of it at the Texel or Amsterdam, by the consignee or supercargo, or a refusal by him, upon an offer made to carry on the goods in another vessel. That if the master or shipowner neglects to forward the goods by another vessel, when he has it in his power to do so, in consequence of which the freight is lost, the insurer is not liable. That it was incumbent on the insured to show that the master was prevented by some other cause than the seizure of the goods, from carrying them to Bremen, otherwise the omission to carry them, was imputable, to the. seizure, as the apparent and proximate cause.
    THIS was an action on a policy of insurance on the freight of the same ship, valued at the sum insured, being 2,500 dollars, and for the same voyage, as stated in the last case; and a verdict was found for the plaintiff, subject to the opinion of the court, on a . . . c , 1 case containing the same tacts.
    Colden, for the plaintiffs.
    The vessel having been totally lost by one of the perils insured against, there must be a total loss of freight. No freight was earned. A pro rala freight is due when goods are delivered at an intermediate port of necessity, to the consignee or his agents. Freight was payable on the delivery of the cargo at Bremen. It was never the intention of the master to go to Amsterdam. He was forced by necessity to go into the Texel. It was, therefore, a port of necessity, as much as if -vAmsterdam had not been inserted in the policy. All the facts show, that Bremen was the port of destination, and that there ( was no intention to touch at Amsterdam,, or deliver any part of the cargo at that place. The 25 boxes of Peruvian bark, intended for the Messrs. Willincks, were landed by order of the government, and the rest of the cargo was seized, on board of the lighters, and de- . ■, , .. , ’ lamed .by the government, lhe cargo was never delivered at the port of destination, or to the consignee or his agent, at a port of necessity.
    _ _ _ It will be said, that the policy contains a clause warranted free from seizure in port. But that clause does not apply to the freight, The vessel was never Seized, but the vessel and freight have been lost by the perils of the sea, against which the insurance was made. If there had been no seizure, yet the master was not bound to carry on the goods in another vessel, but might have abandoned them. And if, after the accident arising from the perils of the sea, he was prevented from carrying the goods,, by another peril not insured against, still the insurer is liable.
    
      C. I. Bogert and S. Jones, jun. contra.
    The whole of the freight was earned; for Amsterdam may be considered as the port of destination. The bark was consigned to the Willincks, who obtained a permit for its being landed, and paid the freight. But suppose Amsterdam to be a port of necessity, then the plaintiffs were entitled to a pro rata freight ; for the goods were delivered to Field, one of the plaintiffs, and who was consignee and supercargo. The goods were discharged into lighters by the master, under the direction of Field; and the moment they were delivered on board the lighters, the freight was earned. The-goods were carried up to Amsterdam before they were seized. If they had not been seized, they would have been in the hands of the consignee dr his agents. If they were prevented, by the seizure, from coming to the possession of the consignee, then it is a loss, for which the defendants, under the clause in this policy, cannot be liable. The clause does not refer to a seizure of freight; but it means, that if by reason of a seizure in port, either of the vessel or cargo, the freight should be lost, the insurers are not to be liable. So that, in either point of view, the plaintiffs cannot be entitled to recover. In the case of Levic v. Janson, the vessel was warranted free from American condemnation, and was stranded, by the perils of the sea, in going out of the port of New-York, and, while ashore, was seized by thé officers of the government of the United States, for a breach of the embargo; and the court of king’s bench held, that the total loss having ultimately arisen from a peril, excepted out of the policy, the insured was not entitled to recover.
    
      D. B. Ogden, in reply.
    The master swears he intended to go to Bremen, and that he went into the Texel only from necessity. Indeed, the facts in the case clearly show that Amsterdam was a port of necessity. Because some of the goods were consigned to Messrs. Willincks, it does not follow that they were to be delivered at Amsterdam; for the bill of lading expresses that they were to be delivered at Bremen. Besides, the bark only was delivered, and the other articles consigned to the Willincks, xvere directed to be carried to Bremen.
    
    To entitle the party to a pro rata freight, there must be some benefit conferred on the owner of the goods; there must be a ■ground for a quantum meruit. The moment the goods reached Amsterdam, they xvere seized in the lighters, and never came into the possession of the insured or Ms assigns.
    
      
      
         2 Johns. Rep. 323.
    
    
      
      
         12 East, 647. Peake's N. P. Cases 212
      
    
   Kent, Ch. J. delivered the opinion of the court.

To have entitled the plaintiffs to freight, there must have been a delivery of the cargo at Bremen, or a voluntary acceptance of it, at the Texel or Amsterdam., by the consignees, or by Field, the supercargo, or a refusal by him, upon an offer made, to have the goods sent on in another vessel. Neither of these events happened, except as to a small part of the cargo consigned to the Willincks. There is no sufficient evidence in the case of any other delivery or acceptance, nor of any offer by the captain to provide means to forward the goods. The case shoxvs, that the goods were of necessity discharged from the ship into lighters, and that xvhile in that situation they xvere seized. The freight xvas, therefore, lost to the plaintiffs. The next inquiry is, by what means it xvas lost, and whether if the seizure had not happened, the goods might not have been sent to Bremen by another vessel. If this might have been done, the omission to do it arose either from the voluntary neglect of the captain, or from the seizure. The underwriters, by the warranty in the policy, were to be exempt from loss by "seizure in port and the point is, xvhether it be a good defence, in any case, to an action on a policy on freight, that the shipowner refused, or neglected, to forward the goods by another vessel, when he had it in his power. We have not met with any decided case on this point; but it appears to be reasonable, and consistent with the principles of the contract, that the insurers should, in such case, be discharged. The contract is, for the insurance of the freight of the cargo on board the ship Dean, from Nen-York to Bremen. It is not of the essence of the contract, that the cargo should, in every event, be conveyed in the ship mentioned, because the party is allowed to change the ship from necessity. The delivery of the cargo is the cause of earning freight. The ship, on board of which the goods are laden, is the vehicle of conveyance agreed on, but it is only one of the means, and not, in all cases, the indispensable means, to attain the object. It is well understood and settled, that when the vessel is. disabled in the course of the voyage, and the cargo remains, the captain is authorized to forward it by another vessel, and thereby to earn the freight. If the shipper, or his agenty will not consent to this, the captain will then be entitled to his full freight, and if he cannot, or will not, forward the goods, the freighter is then entitled to receive them, without paying any thing. (Griswolds v. New-York Ins. Company, 3 Johns. Rep. 321. 10 East, 393.)

If other means to forward the cargo can be procured, it depends entirely upon the captain’s volition whether he earns freight or not; and. if. it be lost by that volition, it ought not to be at the expense of the insurer, who only undertakes to answer for the loss of freight arising from vis major, and not from the act, unless it be the barratrous act, of the party. If the disabled ship be easily repairable, the shipowner is bound to do it, and he cannot, in that case, resort to the insurer for his freight. This was so decided in the case of the Griswolds v. The New-York Ins. Company. If it be equally in his power to procure another vessel, and he does not, there is the same reasoq that he should be precluded from placing the consequences of that neglect upon the insurer.

In the present case, it does not appear that the captain took any step, or made any effort, to forward the goods by. another conveyance. If he was prevented by other means than the seizure, it ought to have been shown; otherwise, the omission is justly imputable to that cause. That is the only apparent and proximate, and it was an efficient, cause.

The court are, therefore, of opinion, that the defendants are not answerable for the loss of the freight, and that they are entitled t« judgment.

Judgment for the defendants.  