Lawson

Mr. Justice Terry concurred.

The question in this record turns upon the point, whether advanced freight can be recovered back by the charterer in case of the loss of the ship, or non-performance of the voyage otherwise than by the fault of the master.

In the case of Reina v. Cross, at the January term, 1856, we decided that freight paid in advance could be recovered back in case of the loss of the ship, and relied upon the cases of Griggs v. Austin, 3 Pick.; and Watson v. Duyckinck, 3 Johns. It is not disputed that this is the American and continental European doctrine; but it is insisted that the contrary is the rule in England, and that as the contract was made in that kingdom, the law which prevails there must govern this case. Upon an examination of the English cases, I do not find sufficient authority to warrant the conclusion that the rule there would be different from that of the rest of the world. Indeed, as was remarked by Chief J. Kent, in Watson v. Duyckinck, “the English books are almost silent on the subject, and afford little or no information.”

The principal cases (if not all) which have been decided in England, are stated and reviewed in Abbot on Shipping, 405…