N. L. & G. Griswold against The New-York Insurance Company, 1 Johns. 205

Kent, C. J. I am of opinion that the plaintiffs might have carried on the flour without a re-inspection, and if the owners had refused to permit them, they would have been liable for the full freight for the voyage. The inspection law does not apply to the case of flour duly inspected and shipped, and relanded after the commencement of the voyage, for a temporary purpose merely. It might have been otherwise, if the voyage in question had been given up, and the flour afterwards purchased for another and distinct voyage. But as long as the voyage continues, the first inspection will be sufficient.

The plaintiffs had also a right, on refitting their ship in due season, to insist on taking on the cargo, or to be paid their full freight. This rule received a clear and full recognition, in the case of Lutwidge & How v. Gray, determined in the house of Lords in 1733; (Abbott, 249) and it was alluded to as being a settled rule, by the court of K. B. in the cage of Luke & Lyde. (2 Burr. 882.) But we have a nearer authority, in the case of Herbert v. Hallett, decided in this court in April Term, 1802. It was an action on a policy on freight, on a voyage from New-York to the Havanna.

The voyage commenced, and the brig was stranded at Sandy-Hook. The cargo was unladen in an injured state, and brought back to New-York, and the vessel returned in three or four days, and in two or three weeks was completely repaired.

The court held that the freight of the voyage was lost by the negligence or folly of the plaintiff, and not by the perils of the sea; for that he might have taken on the cargo, but having neglected to entitle himself to freight against the shipper, he ought not to recover it of the insurer* The only remaining inquiry in this case is, whether the defendants accepted, and thereby made valid, the abandonment of the freight. The abandonment of the ship was made to them on the 7th of March, when she was in safety, and then there was no colour of right to abandon, nor was there any proof of an acceptance.

The defendants did not, therefore, become owners of the ship, so as to have made it incumbent on them, to have offered to carry on the cargo. Nor is there any act of theirs, which looks towards an acquiescence in the abandonment of the freight. Their agent superintended the unlading of the ship, and that act was requisite for the repair of the ship; this superintendance was prudent and proper, as they were responsible for the damages and repairs, and it would be unreasonable to construe this act, which evidently had for its object only the repair of the ship, into an acceptance and ownership of the freight.

I suppose it unnecessary to examine the question, whether the shipper would be liable for any freight, after having abandoned his cargo to the owner of the vessel, in consequence of its great deterioration, because, we have no reason to conclude from the case, that the flour would not have been of sufficient value at the port of destination, to have paid the freight. The verdict before us is clearly against evidence and law, and ought to be set aside with costs to abide the event. Tompkins, J. Spencer, j, and Thompson, J. concurred.