39 Mass. 163 | Mass. | 1839
delivered the opinion of the Court. It appears, that the assured had a contract of charter-party to carry a cargo of live-oak from St. John’s river, East Florida, to Charles-town, Massachusetts ; that a cargo was there ready to be taken on board, on the arrival of the vessel; and that the vessel sailed from New York in the execution of that contract, and was lost on the voyage. The assured had thus an inchoate right to freight, which was an insurable interest; it was lost by a peril insured against, and therefore the plaintiff has a right to recover. And although there was not a stipulated sum certain, to be paid for freight, yet taking the capacity of the vessel and the rate per cubic foot, the elements of a computation are given, by which the amount and value of the freight, under the contract, can be ascertained. Thompson v. Taylor, 6 T. R,
By a construction of the contract of insurance, now well understood, property carried on deck is not covered by a policy on goods, unless specially designated as carried on deck. The Court are of opinion, that the same rule applies to a policy on freight, and that a general policy on freight, will only cover freight to be earned by carrying goods under deck. But this construction must be presumed to be understood alike by both parties. The stipulation therefore in the charter-party, to carry timber on deck, need not be disclosed to the underwriter, without special inquiry, because it was not within the terms of his contract, and did not affect his liability. The policy must be considered as attaching to the freight, which would have been payable in respect to that portion of the timber, which the vessel could have carried under deck.
The question then is, for what amount the plaintiff is entitled to recover. This is not a valued policy, and the plaintiff must recover according to his real interest, to be proved. If the whole freight of the timber under deck, would have been $1000 or under, the plaintiff will recover his whole loss, that is, the whole sum thus computed. If the freight of the timber under deck would have exceeded $ 1000, then the plaintiff was insured in part only, by this policy, and must be considered as standing his own insurer for the residue, if not insured elsewhere. There being then a total loss, the defendants will be liable for $ 1000 and interest. In the latter case, had there been a partial loss, the defendants would be responsible for the same proportion of that loss, as $1000 would bear to the whole freight, payable in respect to the timber carried under deck.
According to the agreement of the parties, the case is to be referred to the auditor designated by them, to ascertain the amount of freight, payable by the agreement, for the timber carried under deck, at the rate therein stipulated, and to compute the loss accordingly.
