Thompson, J.
This is an action of covenant upon a charter-party, and one of the questions arising from the case, is, whether, under the circumstances stated, the plaintiffs can recover, if at all, in this form of action ? From a view of the facts, stated in the case, I think the plaintiffs’ remedy for freight is not upon the charter-party. The contract of affreightment is am entire contract; and the general rule is, that unless it be entirely performed, by a delivery of the goods at the place of destination, no freight is due. (Abbott, 224) This is the rule, I apprehend, however, only where the ship is chartered for a specific sum, for the voyage, as in the case before us. In such case the general rule is, that if part of the cargo be lost by perils of the sea, and part conveyed to the place of destination, there can be no apportionment of - the freight, under the charter-party. Abbott, 244. “ The- cases u in which a partial payment may be claimed, are exceptions [27] “ to the general rale, founded on principles of equity, and « justice, as applicable to particular circumstances.7 Abbott, 224. According to the terms of the charter, the freight is made payable on the delivery of the cargo. The delivery, therefore, is a condition precedent. And where a contract is entire, and the promise to pay depends on a condition precedent, to be performed by the other party, such condition must be performed before the other party is entitled to receive any thing. 6 D. & E. Rep. 324.* The case of Cook v. Jennings, 7 D. & E. Rep. 381, expressly decides, that when an accident has happened to the ship, and the goods are accepted at an intermediate port, covenant will not lie on the charter-party ; but it must be a special action on the case, founded on the implied assumpsit, arising from the acceptance of the goods. (See also, Bright v. Cowper, 1 Brownlow, 21. and Clarke v. Gurnell, 1 Buls. 167.) I am inclined to think that the plaintiffs are entitled to recover some freight, and that this ought to be in proportion to the amount of the goods received; because, the right to freight aris es altogether from the acceptance of the cargo, which raises an implied promise to pay. This was the rule adopted in the case of Luke v. Lyde, 2 Burr. 832.* Nor can any thing be more consonant to principles of justice and equity. It is observable, also, that though it does not appear from the report in Burrow, what was the form of action; yet in the case of Cook and Joinings., Lord Kenyon states it to have been been a general assumpsit, for the freight of goods, founded on an implied contract. In the case of Luke v. Lyde, Lord Mansfield said, when the vessel is captured, and recaptured, and the salvage taken out, such part is deemed lost, and no freight payable for that; freight is only payable for the other half. It is a settled principle, that when a ship becomes accidentally disabled to prosecute the voyage, and the shipper accepts his goods, at any intermediate port, a pro rata freight is payable. I see no reason why the same rule should not be adopted, when a part of the goods are accepted at the place of destination. Nor can it make any difference in principle, whether it be the goods themselves or the proceeds thereof, [28] which are thus accepted, according to the case of Baillie v. Moudigliani, Park, 53. But, as it appears to me, the present is not the form of action applicable to the case, my opinion is, that judgment of nonsuit must be entered.
We cannot, I think, undertake to decide with respect to the conduct of the master and crew, in abandoning the vessel. This was a question which ought to have been submitted to the jury.
Kent, C. J. Spencer, J. and Tompkins, J. were of the same opinion.
Livingston, J.
Whether the plaintiffs be entitled to the whole, or any portion of freight for the voyage from St. Lucia to New-York, and if they are, whether it can be recovered in an action on the charter-party, are the questions to which the facts before us give rise.
When we look into the contract, we perceive that payment of freight was, by mutual agreement, to depend “ on the Jefu ferson’s return to New-York, and a delivery of the cargo.” Notwithstanding this express stipulation, ratified with all the solemnity which is supposed to attend the execution of an instrument under seal, the defendant is applied to for freight, although no part of the goods has been received, owing not to his fault, or refusal to take them, but to one of the perils, which excused a delivery altogether. Were we sitting here to make, not to expound, and enforce contracts, it is possible we might contrive some relief for the plaintiffs ; but having themselves agreed to ask no compensation, unless in the event of a delivery of the cargo, there can be no hardship in restricting them to terms of their own imposing, which very properly constitute a condition precedent in almost every charter-party. If the plaintiffs had been sued for not delivering the cargo, they would have found, in the terms of the contract, (the dangers of the sea being excepted) a valid defence. Why then should not the same instrument be alone resorted to, in determining the defendant’s responsibility ? But he received a moiety of the net proceeds, and therefore, it is contended, is liable to pay at least one half of the freight. Without recurrence to authorities, let [29] us see whether this be reasonable. The proceeds were received about two months after the vessel’s arrival at New-York, and after a sale at auction, which is generally attended with sacrifice. What the charges were in consequence of the libel, or what the property would have sold for on its does not appear. Now, unless taking the price in this way, be always, and in every respect, equivalent to a receipt of the merchandize itself, this act of the defendant, which was a thing not of volition, but of necessity, can form no just criterion in judging of his liability. The sugars may have been intended for exportation, and the price of some foreign market may have been the only inducement to their shipment. This object, which' we have a right to suppose was contemplated, has been entirely frustrated. The party may have been under contract to deliver them here, in which also he must have been disappointed : at any rate, he had an obvious interest in disposing of them in his own way, andón his own terms, and even this was not in his power. It is impossible, therefore, under any view of this question, to consider a proportion of the net proceeds, cast upon him in this way, as beneficial, as a timely and prompt possession of the goods themselves. Neither in fact, nor in contemplation of the parties, could it be so. No man in his senses would have agreed to pay freight under such circumstances. Nor can any argument be drawn, or new promise implied, from this act of the defendant. What was he to do ? The perils of the sea had prevented a compliance on the part of the owners of the ship ; against them, therefore, he had no recourse. It was his duty, then, to rescue as much of the property as he could from the jeopardy which had intervened. Whether he was acting for himself, oras an agent for underwriters, or for any one else, the claim he filed being a thing of necesity, should not prejudice, or involve him in any new, or implied engagements with those whose charter-party was dissolved from the moment the vessel was abandoned.
It is, however, imagined,' that this case is within the reasoning of certain decisions, allowing a freight pro rata itineris. If courts had not undertaken, on grounds of sup[30] posed hardship, to interfere with contracts, which always r _ r’ , . , . , /, proceed on an estimate ox the very interruptions which have induced these interpositions, the construction of a charter-party would have been liable to no uncertainty. At present, however explicit and intelligible its terms may be, and, however well the parties may have understood each other, is difficult to know when freight is earned or not. It is in vain for the shipper to say to the master, or his owner, “ you have not complied with the terms of your agreement; “ you have not carried my goods to the port of destination ; “ on the contrary, you have landed them further off than “ when put on board, and, therefore, you are entitled to nothing.” Though it be not denied that such was the bargain, and clear intention of the parties; yet if, rather than let the goods perish, the merchant receives them, be it ever so distant from their port; and, though, instead of being benefited, he may have received an irreparable injury, by the inability of the vessel to proceed, and would not on any consideration have shipped them, could he have foreseen the disaster, he must submit to pay a proportional freight in the very face of his agreement. However equitable this apportionment may appear, it will generally work injustice to the owner of goods. He may receive them at a port from which exportation is altogether impracticable, or very expensive, and may thus be forced to sell them at great loss, or be exposed to a second freight greater than the first, without having any remedy for the injury he has sustained.
If the master offer to repair his vessel, and to hire another, and the merchant insists on having his goods, then, and perhaps, in that case only, should freight, and a full freight be allowed. It is on this principle, that Lord Mansfield seems to have proceeded in the case of Luke v. Lyde. Perhaps, however, it was going too far to consider the merchant’s not desiring the master to provide another ship, as equivalent to an offer on the part of the latter, to carry the goods to their port of destination. Though the present case does not resemble the one just mentioned; yet, as it has been cited, and is an authority as far as it goes, I cannot avoid observing, that to me it has ever appeared a very hard deci[31] sion against the defendant. There was not only a total end of the voyage to Lisbon, by reason of the capture and recapture, but the cargo was carried to a market it did not suit, and for which it was not intended; a freight too, larger than the original sum agreed to be paid, was incurred to get it to Spain, and that after an immense salvage had been paid to the recaptors. What benefit, it may be asked, was done to Lyde by carrying his goods within sight of Lisbon, if, after all, they did not, and could not get there ? If all these circumstances did not produce a dissolution of the charter-party, what is to have that effect ? If Lyde had taken his goods out of the hands of the master, there might be some reason for adding to his other misfortunes, that of the payment of freight; but receiving them of the salvors in preference to a total dereliction, could never form the basis of a claim on the part of one, who had entirely failed in his contract, which was to carry them to Lisbon. It was a demand, sanctioned neither by the contract, nor any one principle of justice. How the form of action, for it was a general assumpsit for freight, could vary the essential rights of the parties, is equally incomprehensible; for as Lord Kenyon observes, in remarking on this decision, which it is very evident did not meet his approbation, “ what has the case of an implied, to do with an express contract ?” Lx~ pressum facit cessare taciturn. It may be added, what have the Rhodian laws, or the regulations in the Consolato del :mare, or the laws of Wisbuy, or the ordinances of Lewis the 14th, on which lord Mansfield so much relied, to do with a plain and positive agreement between two merchants ? They had a right, notwithstanding all such regulations, (which, if examined will not be found to support the doctrine laid down in Luke v. Lyde) to agree, that no freight should be paid, but on a completion of the voyage and delivery of the cargo. To interpret a charter-party made between two British subjects, by French ordinances, or by the municipal regulations of any other state, isnot less extravagant, than it would be, in the parliament of Paris, to declare a contract made in France, and valid by her laws, null and [32] void, because the parties had not conformed to the English statute for the prevention of frauds and perjuries. If an agreement contravene no law of the state, whereof the parties are subjects, and where it is made, that alone should be a guide in ascertaining their respective rights. The regulation of freight is as much an affair of municipal interference, and of private contract, as any other. There is no such thing as a law of nations on the subject; for every power legislates on this, as well as on other matters, as, it thinks best. I have ventured to express my disapprobation of the principles of this decisiori, as a reason for not applying them to any other case in which can be discerned the smallest shade of difference. The more we confine ourselves to the agreement of parties, the less injustice will be done. We may be assured that they understood themselves, and would have provided for the payment of freight, in case of accidents like the present, if they had intended that any thing, short of a delivery, should have subjected the defendant to this charge. It has already been noticed how important, in most instances, it must be, to receive the goods themselves, and that we have, therefore, no right to say, that a moiety of the proceeds from a forced sale, and after various deductions, is as advantageous as the delivery of the article itself. Thus far, then, the case is not governed by that of Luke v. Lyde In that case, a part of the goods were received; in this, only a part of the proceeds. Lord Mansfield, it is true, in Baillie v. Moudigliani,* says, that the “ value of goods being restored in money, is the “ the same as the goods, and, therefore, freight was certainly due pro rata itineris.” But that case is since the revolution, and the only point in it was, whether the underwriters on goods were liable to their owner for the freight they had paid. In Lutwidge and another v. Gray,† there appears to have been an offer to provide another ship ; when that is refused, there can be no hardship in making the party pay freight.
In Blight and others v. Page,‡. lord Kenyon only determined, that if a merchant will covenant to load a ship, which [33] becomes impossible by an act of government, he shall, notwithstanding, pay freight on the ground, that if he will undertake what he cannot perform, he shall answer to the party with whom he engages. I perceive no analogy between that case and the one before us. The owner of the vessel was ready to receive a cargo, and the merchant was considered in default. In one view that case is favorable to the defendant, for it shews how strictly the merchant was held to pay, though he could not perform what he had promised. If we test the plaintiffs’ claims by the same rule, what will become of them ? They covenanted to deliver the goods at New-Tork ; "they have not done it, and yet ask payment, At this rate, the merchant contracts On very unequal terms. If he cannot get a cargo, he must, nevertheless, pay freight, and if he obtains one, and the master is obliged to leave it by the way, even, on a desart island, he must, if he, or his agent touch the goods, also pay freight, though it may, afterwards, cost him ten times as much as the first sum he was to pay, to get them to their port. We cannot, then, without violating the plainest rules of law, without annulling a solemn and reasonable contract of the parties, and without manifest injustice to the defendant, say that any thing is due for freight, from St. Lucia to New-York.
It cannot be necessary, after being thus explicit as to the rights of the parties, to say any thing of the form of action. Nothing short of a delivery of the cargo at New-York, or some act which in law is equivalent, can be the foundation of an action on an instrument, which, on its very face, renders such delivery a condition precedent to payment. What fell from lord Kenyon, in Cook v. Jennings,§ must convince every one that freight, if any were due under the circumstances here disclosed, cannot be recovered in a suit on the charter-party. If I am right, it cannot be recovered in any way, and the defendant ought, therefore, to have judgment.
Judgment of nonsuit*