It is a principle of maritime law, that where’there is a contract to transport goods on freight to a certain place, if the voyage be in part performed, and the owner voluntarily accepts them at an intermediate port, be shall pay freight pro rata itincris peraeti — that is, a rateable freight in proportion to the voyage actually performed. By the general rules of law, the master or owner of the vessel would not be entitled to freight, unless the whole voyage was performed ; and the goods delivered at the port of destination. But if the freighter will voluntarily accept them at an intermediate port, then this acceptance is the foundation of a new contract, and the law implies that he will pay a rateable freight. Such is the principle in the case of Luke v. Lyde, supported by all the decisions in England, and recognized by the case of Pinto v. Atwater in this state. No case can be found where it has been decided, that where the goods are received by the owner at an intermediate port, he shall pay reasonable or customary freight to the place where accepted ; for this would not be an equitable rule in many cases : as the goods at such place might be of less value than at the port of destination, and the expence of transporting them there might be more than from the place where the voyage commenced. To determine whether it would be reasonable to pay freight, it would be necessary to examine the state of the markets at the place where the goods were received, and the freight to the place of original destination. This would lead to such an endless enquiry, that courts have *2655¡¡".or admitted it. They have adopted tin; rule of allowing, in sindicases, a rateable freight 5 for if the owner voluntarily receives the goody at an intermediate port, he waives any claim for I lie fulfilment of the contract; and it is considered reasonable that he should pay for the part of the contract performed. If a man should hire another to labour for him for the term of a year, and at the end of six months, the hirer should consent to release the labourer for the remainder of the year, the law would imply a contract that he should pay rateable wages for the service performed. So, on the same principle, where the freighter releases the carrier from the performance of the residue of a contract, he shall pay for the part actually performed.

It is not now a subject of enquiry, whether this is the best rule that could have been adopted, It is sufficient to say, that it is the established rule of maritime law ; and though it might be possible, that a more equitable one might he discovered, yet it is now more advisable to adhere to it, tiran to risk the consequences of the experiment. Indeed, this rule being well known, it is easy for parlies so to conduct as to avoid any material inconvenience, while the adoption of a new one would lead to a long series of litigation, before the application of it could be perfectly settled. The parlies, know ing the rule, can make provision for such an ev ent as has happened in the present, case. If no such provision is made, then the master may perform the contract, by transporting the goods to the place of destination, and he will be entitled to the whole freight ; or if the owner should refuse, or prevent him from doing it, he would he entitled to the whole freight. The owner may refuse to accept the goods at an intermediate port, and insist, that the master shall carry them to the demined piare : if he refuse or neglect to do it, oris unable to do it, am! the owner is under the necessity of receiving the goods, then he will be, hound to pay no freight: or, in ail cases, lie may make a stipulation w it!i the * master respecting the terms on which he shall receive them, if no such stipulation is made, and the owner voluntarily receives them, he shall pay a rateable freight for the part, of the voyage performed.

This must he the time and the ’place, when and where the disaster happened, which caused the vessel to depart from her course, and not ihe place where the goods were accept *266ed; for such place may be further from the destined par? than the place where the cargo was originally received. If, however» no part of the voyage has been performed» as where the vessel is prevented from entering the destined port by blockade, and she turns back, no freight can be recovered.

Í am of opinion, that the plaintiff is entitled only to recover a rateable freight for that part of the voyage which he had performed at the time when his vessel was captured ; and that a new trial ought to be granted.

The plaintiff received on board the brig Hector a quantity of rice to transport to Bermuda, for a certain stipulated freight. This engagement he never performed. The delivery of the rice, was a condition precedent to any legal demand for compensation. Cook v. Jennings, 7 Term Rep. 381. Mulloy v. Backer, 5 East 316. Post and Russell v. Robertson, 1 Johns. Rep. 24. The Marine Insurance Company of New-York v. The United Insurance Company, 9 Johns. Rep. 186. 190.

Notwithstanding the original agreement was broken, it is contended, that the acceptance of the rice at Antigua, lays a legal foundation for the recovery of a reasonable freight, on an implied contract, from the place of the reception of the rice, to that of its delivery. This principle the court recognized ; and the jury might, and probably did, give the plaintiff the same compensation as they would have done, had (he rice primarily been destined to that island. This, most obviously, was incorrect. Were the question now to be decided, for the first time, I should be of the opinion, unhesitatingly, that the plaintiff is entitled to nothing. The mere acceptance of the rice at Antigua, may have been irreparably injurious to the defendant.» beneficial only to the plaintiff, and received merely to rescue the property from fut ure jeopardy. Reason and justice, the foundations of implied contract, do not authorize the assumption that the defendant agreed to pay any thing for the property received. But the point has been established by numerous and uniform dccis-*267ions, that some freight is due. A new contract has been implied from the acceptance of the goods, at a port different from the one to which they were destined, that the freighter shall pay a rateable proportion of the stipulated freight, for so much of the voyage as had been performed, when the disaster, which occasioned a deviation from it, took place. Luke & al. v. Lyde, 2 Burr. 882. Pinto v. Atwater, 1 Day 193. Cook v. Jennings, 7 Term Rep. 381. Mulloy v. Backer, 5 East 316. Williams v. Smith, 2 Caines 13. 21. Robinsons v. The Marine Insurance Company, 2 Johns. Rep. 323. Liddard v. Lopes & al., 10 East 526. Armroyd & al. v. The Union Insurance Company, 3 Binn. 437. The Marine Insurance Company of New-York v. The United Insurance Company, 9 Johns. Rep. 186. 190. I cannot persuade myself, that the principle has any warrantable foundation, or that the rule of damages is just, or relative to the case. A conformity, however, to the necessary rule of stare decisis, constrains me to sacrifice my own judgment, and to follow the precedents, so far as they lead. But I shall anxiously resist their extension a single hair’s breadth.

1 am of opinion, that the charge to the jury was erroneous; and would, therefore, advise a new trial.

I concur in the opinion, that there ought to oc a new trial. Whether, according to original principles, the plaintiff is entitled to recover at all, upon the facts here disclosed, it is too late to inquire. For the case comes, plainly, within the rule, established in Luke v. Lytle, which has been too often recognized, to be questioned. But by that rule, the plaintiff here is entitled only to pro rata freight, according to the ratio fixed in the original contract of affreightment. The settled distinctions, as I understand them, are these : If the -shipper, whose goods have, by any inevitable misfortune, been carried to a wrong port, requires the master to transport them to the original place of destination, and the latter refuses to do it : no freight can be demanded : For it is the fault of the master, that they are not so transported. If the master, on the other hand, offers to carry them to the port of delivery, but the shipper declines the oiler, and takes them back into his own custody ; full freight is recoverable : Because complete performance of :he contract, by the master, is prevented by the shipper *268himself. But if the latter voluntarily receives the goods, without any such demand made, on his part, or refusal, on the other, and without any new express agreement, (in which case the non-performance of the residue of the voyage is not attributed, exclusively, to either party) freight is lo be paid, in proportion to the part of the voyage performed, at the time of the disaster. The case of Luke v. Lyde, and that now before the court, both come within the last rule. l,uf by the rule of daíi’ — ^s, ¡J mu to the jury, in the present case, the plaintiff is allow ed/uK freight, as upon a quantum mer-uit, without regard to the rale, agreed upon by the parties, in the contract of affreightment, and for another, and much longer, t oyage, ;:ian Ilia! embraced in the contract. This rule is not only unsupported I;\ ary legal principle, or authority, but replete with unjust and mischievous consequences : As it must frequently entitle a ship-owner, who has failed to perforin his contract with a freighter, to a much greater amount of freight, even tenfold more, as the case may be, than if he had fully performed it. Now, it is very obvious, that a rule, like this, is opposed not only to the principles of law and common justice, but to sound policy : Since it may often operate as a temptation to wilful and collr.-i co -J»n ifdions, under some pretence of nwessiiy.

The form of d( ‘■•ra*ii g, sn Ac sec.nui r<umt, is midoi.hledly right. Yu • if ! I:e plalntiffis c is is tie d to any vero*, ery, (ami this ihe cwfs, cited :;t the bar, fully cUahli-b,) it must he upon an hnrihd «.⅞pi¿7, This was the form of action, in Luke v. Lyde as in now ascertained (7 Term Rep, 385. Abbott. on Shipping 503); and the subsequent cases recognize it, an the only proper one, «pon a state of facts like the present. Upon the original express contr wt, the plaintiff can certainly recoser ucíhlrg: As it has not been fully performed, on his part. This point has been often settled. Bright v. Cowper, 1 Browul. 21. Clarke v. Garnell, 1 Bulsir, 167. Cook v. Jennings, 7 Term Rep. 381. In the present case, the delivery of the rice, at Bermuda, is in nature of a condition pm cedent; and no rule in the law is more familiar, than that he, who sues upon a contract, imposing upon him sucha condition, must aver, and show, performance of it.

£j;;1 if the express contract is abandoned, as the foundation <>t a suit. why. we are asked, is it not so, to every purpose ? Ami wire -hooh! not the plaintiff recover, independently el *269it, what the actual transportation is reasonably worth ? The principle, as I understand it, is, that a voluntary acceptance of the goods, by the shipper, in a case circumstanced like the present, is to he regarded as a waiver, by mutual consent, of the residue of the voyage, upon a tacit understandIng, that the ship-owner shall still be paid as much of the stipulated freight, as he has performed of the original voyage : And that a promise is hence implied, on the part of the shipper, to pay such a proportion of the freight, originaUy agreed for, as the part performed of the voyage, hears to the whole : The rate, or aggregate sum, fixed in the original express contract, being considered, ás an assessment by the parties, of reasonable freight for the whole voyage — anti therefore, as furnishing a ratio, with reference to which, rateable freight, for part of the voyage, ought to be apportioned. And the rule seems highly reasonable. Indeed, if this ratio -were rejected,--freight pro rata, for part of a voyage, might exceed the stipulated amount of full freight, for the whole voyage. ■ . ⅝.

New trial to he granted.