
    William Purvis against Tunno & Price.
    
      Charleston,
    
    1803.
    Where a ves-denu’or oth-feakyandiin! whiie°rtaWng before ^she breaks ground on her voyage, it will justtfy the freighter in taking out the goods and shipping them on board another vessel. They are not bound to wait until she is repaired.
    SPECIAL action on the case, upon a contract for the; freightment of a brig from Charleston to Cowes and a market. Verdict for defendants. Motion for a new trial.
    *n ^"ls case ^ appeared, that defendants had chartered a ^rig from the plaintiff, on the voyage above mentioned ; that qbout 1,200 boxes of sugar, and 10 tons of logwood, were put on board of her while she lay in the dock; but she then began to draw more water than the dock conveniently afforded, in consequence of which the captain removed her out .to the end of the wharf, where there was deeper water, in order to take in the remainder of her loading. While laying at the end. of the wharf, she grounded, and by that means started the butt ends .of several of the planks of her bottom, and became so leaky that they were obliged to land that part of the cargo which had been put on board of her, and to put her into the hands of a ship carpenter to be repaired. The freighters, the defendants, however, in the mean time, conceiving they had a right to be off their contract on account of this accident, and that they were not obliged to wait till she was repaired, chartered another vessel, and sent forward the cargo they had ready, to s market. The jury under the charge and direction of the presiding Judge, (Trezevant,) after hearing the evidence, gave a verdict for the defendants. And the present was a motion for .a new trial, for misdirection on the part of the Judge, and because the plaintiff alleged die verdict was against law.
    The grounds on which plaintiff relied for a new trial, were the following. 1st. Because the accident which happened to the brig was not sufficient to warrant a decision of the contract; inasmuch as the defendants had their remedy in their own hands, and had a right to pay themselves out of the freight, .any damages which might be occasioned by the delay in repairing the vessel. 2d. That the brig had just been thoroughly repaired, and the planks put on her bottom were two inches thicker than usual, with a view to guard against damages by her taking the ground ; so that there was no neglect or omission on the part of the plaintiff; it was a reparable accident, and defendants should have waited a reasonable time, till she was repaired. 3d. That the captain was, pro hac vice, the agent of the freighters ; and they ought to be answerable for any misconduct on his part, in moving the brig out to a place which was more hazardous than the dock, where the first part of the cargo was taken in.
    For defendants it was contended, that by the Marine Law it was obligatory on the part of the owners, not only to see that a ship was stout and staunch, and in all respects fit for sea, before any part of the cargo was put on board, but that she should be kept in like good order by them, until she broke ground to proceed on her voyage. That if a vessel becomes leaky or unfit for sea, after she sets sail, the shippers are obliged to wait a reasonable time till she is repaired at any intermediate port where she may call for that purpose, unless another vessel is prepared to carry on the cargo to the port of destination. But in a case like the present one, where their goods were obliged to be put on shore, on account of an accident which happened before the voyage commenced, they were not obliged to lose the chance of a good market abroad, and wait till she was again made seaworthy, when they had an opportunity of procuring another vessel without delay, to send on their merchandise to a foreign market. That as to the power of paying themselves out of the freight, the amount of any damages they might sustain by the delay, and probably the loss of a good sale abroad, it was easy to foresee that it would be subjecting themselves to a contest or lawsuit in a foreign country, where it might be extremely difficult to ascertain and fix those damages with any degree of certainty ; and even if it was practicable, it was always attended with trouble and delay, together with much vexation and costs. That as to the captain being their exclusive agent, during the time of taking in that part of the cargo which had been put on board, they denied the principle in the manner contended for by the plaintiff, but admitted it in a qualified degree. As far as related to the care of the goods, and the proper stowing away on board the ship, they admitted he was their agent; but in every thing relating to the ship, her tackle, apparel and furniture, &c. he was the agent of the owners.
    Dessaussure, for plaintiff. Pringle, for defendants.
   The court, after hearing the arguments, refused to grant the new trial; as they were of opinion the law was with ihe defendants on all the grounds.

Rule for new trial discharged.

All the Judges present.  