Detouches v. Peck

9 Johns. 210

• Court: New York Supreme Court
• Decided: August 15, 1812
• Status: Published

Opinion

Per Curiam.

The plaintiff is not entitled to recover; for it'., was Jug own act that the voyage was not performed by him. The schooner Urania deviated from her direct course, and entered the port of New-York, from necessity, and as the plaintiff bad a better ship provided for his voyage, and made no objection to the change, but was prevented from sailing by his own private business or indisposition, he has no right to call for a return of the freight money, or any part of it. The providing of provisions and accommodations for his passage entered essentially into the consideration for the advance, and part of the voyage was performed. It would be difficult to find a just rule by which to liquidate a pro rata freight in such cases,

(a) but there is no reason, in this case, for giving the plaintiff the return of any part of the freight.

Judgment for the defendant.

See in a note to Ingersoil’s translation of Roccus, (p. 70.) the following ease decided in the supreme court of Pennsylvania. It is stated from the relation of one of the counsel in the cause. Maureau was master of a French vessel bound from Philadelphia to Bordeaux, on board of which Germain took his passage, and paid his passage money in advance. Two days after her sailing, the vessel was wrecked and totally lost in Delaware Bay. In an action brought by G. against M'., the court ruled that the plaintiff was entitled to recover hack the whole of the money he had advanced, deducting a reasonable compensation pro rata intineris, for the two days the plaintiff had been on board. See Roccus, n. 80. 3 Johns. Rep. 34.