American Insurance v. Griswold

14 Wend. 399 | Court for the Trial of Impeachments and Correction of Errors | 1835

The following opinion was delivered by Chief Justice Savage:

One question arising upon and presented by the report of Mr. Hicks is, whether the defendants are liable first for the whole amount of specie put on board. This is a question of minor importance, and has not been much discussed by counsel. I apprehend there can be no difference in principle between specie and any other lawful goods. The policies were all upon a trading voyage. The underwriters are answerable as well for the original cargo as for any other cargo or part of a cargo, for which the original cargo or part of it has been exchanged. This is supposed to be perfectly well settled, and was so understood and recognized by this court in Coggeshall v. American Ins. Co., 3 Wendell, 283, and cases there cited. The specie received on board at Callao is to be considered part of the cargo covered by the policies, or some of them, and must be accounted for in the same manner as any other goods. No question, therefore, can necessarily arise upon that part of the cargo, as depending upon any principle different from the residue of the cargo.

The question, and it seems to me the only question between these parties, is, whether the plaintiffs have a right to recover the full sum named in the policy, without reference to the part which was landed at Callao, as there was property remaining on board when the loss happened, exceeding in value the amount embraced in the policy. The defendants insist that the plaintiffs can recover only such portion of the amount insured as the amount of the policy bears to the amount of the whole cargo originally shipped at New-York. As there is a written contract between the parties, the ques-lion must be determined by the terms of that contract. By it the defendants have made insurance to the amount of $20,000. It is admitted that the loss exceeds that sum, and that it was occasioned by one of the perils insured against. The defendants have received the premium of per cent, upon $20,000. Upon what rule of construction is it that they are not liable for the amount insured ? It is said that they are entitled to contribution where there are other policies, and if none, then they are entitled to the like contribution from the owner, who is uninsured. This usage it is found in the case exists, when the loss either partial or total occurs, when the several policies are full, and before any part of the cargo has been landed. This policy contains a clause which it would seem was intended to exclude any such right to contribution; it is as follows: " and in case of any insurance " upon the said premises subsequent in date to this policy, a the said American Insurance Company of New-York shall “ nevertheless be answerable for the full extent of the sum Ci by them subscribed hereto, without right to claim contributrion from such subsequent assurers, and shall accordingly be entitled to retain the premium by them received, in (l the same manner as if no such subsequent assurance had “ been made.” Even if such right of contribution existed, it would seem to be a proper claim to be enforced against the other companies who have made insurance upon the same cargo, except as to so much of the cargo as was uninsured, and for which the plaintiffs were their own insurers, or rather so much of the cargo as was at their own risk. The object of insurance is indemnity; the insurer agrees to run the risk of the cargo to the amount of $20,000. The insured pays the premium demanded upon that sum. The agreement then is, that if the assured loses the property insured to the amount of the insurance, the insurer shall pay it. Suppose the whole cargo is worth $40,000 and the insurance $20,000, and the plaintiff at the first port sells or withdraws $20,000, and in going to the next port the whole remaining cargo is lost, is the contract between the parties changed 1 Because there was more at the risk of ^he ownerj does that vary the responsibility of the insurer ? His contract is full; the loss is precisely the amount against which he undertook to indemnify. • Does the owner diminish his security by putting other goods on board ? Is the insurer bound to return any part of the premium when the risk has been full 1 I understand the rule to be, that the premium is never returned, when the policy has once attached to the whole amount. 11 Johns. R. 239. The ground assumed by the plaintiffs is in accordance with the preceding suggestions, and they insist that they have a right to recover the full amount of the policy, there being property to that amount lost. The defendants insist that their insurance does not attach upon any particular part of the cargo, but upon the whole, and covers an undivided interest in the whole, equal to the amount of the policy •, and upon this principle it is, as they contend, that the usage rests which is conceded to exist—that if a partial loss takes place before the cargo or any part of it is landed, such loss must be sustained proportionably by the whole cargo, or by all the policies, if the whole is covered. If in this case the whole cargo had been seized and thus lost, it is clear that all the policies must have paid the amount of their subscriptions, and the plaintiffs must have lost the amount which was not insured. It is contended to be according to the usage, that if a part of the cargo had been seized before any of it had been withdrawn by the owner and landed, then the loss must have been apportioned ; and it is urged that, upon the same principle, the loss should be apportioned, having happened after part had been landed ; that the policies all having attached, they all remain ; and that when property is landed, it is withdrawn proportionably from all the policies, not from any one of them.

With respect to the clause respecting prior insurances, the defendants’ answer is, that the clause was introduced to prevent contribution in cases of double insurance ; that it was intended to have no other effect or application ; and that it has never in practice, or by any judicial determination, received any other application. “A double insurance is when the insured makes two insurances on the same risk and the same interest,” 3 Kents Comm. 280. 1 Cond. Marsh. 146. It is also defined to be, when the same man is to receive two sums instead of one, or the same sum twice over, for the same loss, by reason of his having made two insurance upon the same goods. When a man has made a double insurance, he may recover against which of the underwriters he pleases, but he can recover but once; an insurance is merely a contract of indemnity in case of loss. Parke on Ins. 373, 4. When two policies cover the same risk and the same interests, they are considered as making but one insurance. 1 Condy's Marsh. 146. In such cases ' the insured cannot receive a double satisfaction ; he can have but one satisfaction ; and the different policies formerly were bound to contribute rateably towards the loss. Such was the law and such was the rule which was intended to be changed by the clause respecting prior policies, as is contended by the defendants’ counsel. Several cases have been cited on both sides, which are supposed to have a bearing upon the question now before the court; but it is conceded that this precise point has not been decided, or at least that it is not to be found decided in any adjudged case.

The decision, I apprehend, must rest upon the clause respecting prior assurances ; and that we may the better understand it, in connection with the definition of a double insurance, I will again recur to its terms. The whole policy is not set forth in the case," but it is stated to be upon all kinds of lawful goods and merchandizes laden or to be laden on board the good ship China, and the sum subscribed is $20,000. The proviso is, “ Provided always, and it is hereby further agreed, that if the said assured shall have made any other assurance upon the premises aforesaid,” &c. Then follows that part which is applicable to this case: “ And in case of any assurance upon the said premises, subsequent in date to this policy,” the defendants will be answerable without right of contribution. What are we to understand by the premises ? If by those terms we understand the whole cargo, which was worth $47,-000, then the three policies were technically perhaps upon the said premises; but there was no double insurance, because the several policies attached upon separate and distinct interests in the goods; in other words, if by the premises we understand an undivided $20,000 worth of the whole $47,000, then the subsequent policies did not attach upon the said premises, because there was aliment enough for them all. In that view of it, is this a case which is at all affected by the proviso ? Had the whole cargo been worth but $20,000, the defendants would have stood insurers for the whole, and then subsequent insurances would undoubtedly have been double insurances to their extent, and would be relieved from contribution, and obliged to return the premium except one half per cent. Suppose, again, that the whole cargo had been worth $20,000 •, suppose the policy of the Atlantic company for $10,000 had been prior in time to the defendant’s policy, and a total loss ; in that case there would be a double insurance as to $10,000, and, according to the clause relating to prior insurances, or, as it is sometimes called, the American clause, the oldest policy for $10-000 must pay its whole subscription, and the defendants would be obliged to pay the balance, and return the premium upon so much as they would be exonerated from.

The doctrine of contribution in cases of double insurance seems not to have been established in England until the year 1763. A different decision was made in the case of The African Company v. Bull, 1 Shower, 132, about 1691. That was rather a case of over insurance. To an action on a policy subscribed by a number of underwriters, the defendant pleaded that the goods were worth but £2240, and that twenty-three persons had subscribed £100 each, and that the defendant was the next subscriber; and that, by the custom among merchants, he was discharged, and offered to return the premium—issue was taken, and the custom was proved by all the exchange, and the defendant had judgment. In Newby v. Reed, before Lord Mansfield in 1763, it was ruled and agreed to be the course of practice in case of double insurance, that though the insured is not entitled to double satisfaction, yet he may sue which he pleases and recover the whole sum insured ; and the defendants therein may recover a rateable proportion from the other insurers. 1 Black. 416. Parke, 374. A few years afterwards, came before the same learned judge the cases of Rogers v. Davis and Davis v. Gildart, Parke, 374, 5, &c., in which the question was discussed. Lord Mansfield says: “ The question seems to be whether the insured has not two securities for the loss that has happened. If so, can there be a doubt that he may bring his action against either ? It is like the case of two sureties, when, if all the money be recovered against one of them, he may recover a proportion from the other/’ In the subsequent case of Godin v. The London Assurance Co., Lord Mansfield says, as between the insurer and insured, upon the foot of commutative justice merely, there is no color why the insurers should not pay the insured the whole; for they have received a premium for the whole risk. If the insured is to receive but one satisfaction, natural justice says that the several insurers shall all of them contribute pro rata to satisfy that loss, against which they have all insured. 1 Burr. 492. The French rule is different. The ordinance of Lewis 14th declares, that if the sum insured by a single policy without fraud exceed the value of the goods, the policy shall be good to the extent of their true value; and in case of loss, every insurer shall contribute in proportion to his subscription, and return the premium upon the surplus. (This is conformable to the English rule in the case of African Company. Bull.) The ordinance proceeds: If the insurance be iby several policies, and the first amount to the value of the goods, it shall stand alone, and the underwriters upon the others shall be discharged and return the premium subject to the usual deduction. If the first policy be not sufficient to cover the full value, the second shall answer for the deficiency. If there be several dates to the several subscriptions In the same policy, each date makes a separate contract, and ascertains the order of the liability of each underwriter; but If several policies have the same date, they make but one policy. 1 Condy’s Marsh. 147, n. citing Valin, Pothier, Chirac, Emerigon, and Malynes. The doctrine of Lord Mansfield was discussed and adopted in the case of Thurston v. Koch, 4 Dali. 348. In that case it appeared that W. J. Yredenburgh, a merchant of New-York, had procured double insurance in New-York and Philadelphia upon his goods and merchandizes, on board a certain vessel from a port in the West Indies to New-York. The vessel was lost, and pe reCovered of the plaintiff and another insurer, who were th® New-York insurers, the whole amount of his loss. The defendant ICoch was one of the Philadelphia insurers, and the question was whether he was liable to make contribution. The judges, Paterson and Peters,went into a full discussionof the question, and agreed, both upon principle and authority, that contribution in such case was proper and should be made, and they gave judgment for the plaintiff. This case was decided in 1800, and is the earliest American case upon the subject. In consequence of the decision of this case, adopting the doctrine of Lord Mansfield, the clause relating to prior insuance was introduced into the policies at Philadelphia, and, as is understood, in all American'policies. The practice in Philadelphia was, before the case of Thurston v. Koch, in accordance with this clause, and opposite to the doctrine of that case. 1 Marshall, 152, a., n. 13. Phil, on Ins. 326. 5 Serg. & Rawle, 481. The object was to prevent contribution between different underwriters, and to render them liable in succession, according to the dates of their respective policies.

The case of Kenney v. Clarkson & Van Horne, I Johns. R. 385, was upon a policy upon the vessel valued at $2000. It appeared that there was a prior insurance for $3000 ; the assured were permitted to prove that the vessel was of sufficient value to cover both policies. This point was not discussed ; but as it appeared that the vessel was worth $7000, there was sufficient aliment for both policies; and whether it was considered a double insurance or not, the plaintiff was entitled to recover; and had the policies not contained the clause as to prior insurance, it was not a case of contribution. The case of Murray Mumford v. Insurance Company of Pennsylvania, 1 Marsh. 152, n., 1 Hall’s Law Journal, 161, contained these facts: In October, 1803, the plaintiffs effected insurance in New-York, on the ship Hope from Gottenburgh to New-York, for $4000, valuing the ship at that sum. In December after, they effected insurance with the defendants for $4000, valuing the ship at $6000. The real value of the ship exceeded $6000. A partial loss took place. The New-York company paid an average calculated upon $4000, and the question was whether the defendants were liable at all upon « * the second policy. Both policies contained the clause relative to prior policies. Mr. Justice Washington held the defendants liable for the difference between the valuation of the ship in the first and second policies, ($2000,) upon which sum the defendants were compelled to pay an average. He says the case seems almost too plain to warrant an argument. The parties had agreed that the subject insured was worth $6000, and the defendants insured $4000. It turns out that $4000 of that value had been previously insured in WewYork. The defendants are therefore, as to so much, discharged from liability. But had the ship boen worth $8000, they would have been liable for $4000; but the defendants cannot be called upon for .more than $2000, as that is all left uncovered by the first poli,cy. This was, as to the $2000, a case of double insurance, and of a partial lossj and in such a case both policies were required to contribute, notwithstanding the first policy was not exhausted. The inferencia,, from this would be, that the clause under consideration was. applicable to a total loss only, and is in conformity with the usage stated in the case. On the argument of this case, the case of M’Kim v. Phœnix Ins. Co., Condy’s Marsh. 152, n., was cited. That was a case of two policies upon the same cargo of goods, on the same voyage. The first was for $12,-600. The amount of the second is not stated, but it was upon 125,000 pounds coffee, valued at 22 cents, and deducting the prior insurance, would leave $15,000. Both policies contained the clause in question. A total loss having happened, the first policy paid without suit by compromise. The defendants refused, and a suit was brought. It was held that the first policy was liable to the full amount, and the second for the residue. I infer, from the report of the case in 1 Marsh. 152, 6, n. and 1 Hall’s Law Journal, 166, that the second policy did not pay the whole amount insured by it; that therefore the clause in question was construed literally; that it was not a case for contribution. According to the argument of the defendants in this case, both policies should have paid rateable ; and in that event the second should have paid more than the first, being for a larger amount, but that was not the determination. The prsj- wag exhausted before the second was liable at all. These tw0 cases, considered together, seem to establish the proposition that the clause in question is applicable to total losses only. The same principle was adopted in the case of Kane v. The Commercial Ins. Co. of New-York, 8 Johns. R. 229. The action was brought upon the second policy, upon goat skins valued at 50 cents each, and the amount subscribed was $15,000. The policy contained the prior policy clause. The plaintiff had an insurable interest at invoice cost, &c. to the amount of $22,000. The vessel and cargo were captured and entirely lost to the plaintiffs. There had been a prior insurance to $22,000. The value of the goat skins at 50 cents was $23,983, making proper deductions. The question was, what amount the plaintiffs were entitled to recover. Thompson, justice, delivered the opinion of the court, and says: The policy in this case contains the usual clause respecting prior insurance; and it appearing that $22,000 had been previously insured, this must first be deducted and the underwriters made responsible for the residue only. The prior insurance was by an open policy upon the cargo generally—the present valued. In order to give effect to both policies, the first ought to be considered as attaching, in the first instance, upon that part of the cargo not covered by the latter, in order to have aliment for the latter. This case decides, that where there are two policies upon the same cargo, and both are not full, the first must be exhausted before the second becomes liable. Here both had attached ; and if contribution were the rule in such cases, it should have been applied. The distinction between the two cases consists in this: that in the present case all the policies had once been full; in the other not.

In Brown v. Hartford Ins. Co., 3 Day, 67, the court say it was evidently the intention of the contracting parties in these policies to avoid the inconvenience of contribution, by making the insurers liable in the order of time. This was anciently the law in England; modern practice there had introduced a different rule. The parties intended by inserting the clause in question, to abolish the modern and restore the ancient rule. In Potter v. Marine Ins. Co., 2 Mason, 476, it was decided that If two policies bear the same date, the actual time of execution may be shown; and if the policies contain the usual prior policy clause, the policy first executed bears the whole loss, if it covers the whole interest; and that when two policies are concurrently executed, the operation of the prior policy clause is excluded, and the assured may recover his whole loss upon either policy, and the others are liable for contribution.- Mr. Justice Story says that, by the very terms of the common clause, the underwriters on the second policy are liable for so much interest only as is uncovered by any prior policy. He recognizes and states the common law rule to be, that if the assured has the same interest insured by several policies, he may sue on which he pleases, arid is entitled to recover his whole loss upon either of the policies; and all that remains is a mere right in the party sued to recover contribution from the other underwriters. In this case the loss was equal to the first policy and $12,000 on the second. The advantages of the prior policy clause are, as Mr. Philips says, Phil. on Ins. 326, that the different underwriters are not made sureties for each other, and the assured is saved from paying more than one premium for the same risk, upon the same insurable interest.

The Columbian Ins. Co. v. Lynch, 11 Johns. R. 233, was an action on a promissory note given for a premium of insurance. The policy was for the sum of $20,000 on goods on board the ship Ann, at and from Bayonne to the first port she might make in the United States. There was a prior in-, surance in Philadelphia for the sum of $7000 on the same cargo, from Bayonne to Hew-York. The invoice price of the cargo was $9512. The vessel arrived in safety, but the cargo was partially damaged, to the amount of $2000 and upwards. The defendant claimed a proportionate part of this loss, to which the plaintiffs objected, on the ground that the prior policy must bear that loss, and that they were liable no further than their proportion of the invoice beyond the first policy. The defendant insisted that he was entitled to return of premium upon the amount of the prior policy, $7000, allowing the plaintiffs a reasonable compensation for the risk at Bayonne. The plaintiffs had a verdict, and it was agreed that if the court should be of opinion that the defendant was entitled to any return of premium, the amount was to be deducted from the verdict. The policy contained the clause providing that the plaintiffs should be liable only for so much as was uncovered by any prior policy, and should return the premium upon so much of the sum insured by them as they were exonerated from by such prior policy. The court held that the plaintiffs having been solely responsible for the cargo while at Bayonne, they were under no obligation to return any part of the premium. The risk to the port of destination might have been different. The plaintiffs’ policy was to any port in the United States ; the prior policy was confined to New-York. The court said the risk was not divisible, and having been run, there could be no return of premium. Mr. Justice Yates says, it must be admittted that the greatest part of the risk contained in the policy of the plaintiffs, according to the manner this voyage has been performed, is comprehended in the Philadelphia policy, and being prior in date, they were exclusively liable for that part assured by them, showing that the prior policy might be exclusively liable for a loss, and yet the subsequent policy not obliged to return the premium. In Seamans v. Loring, 1 Mason, 146, Mr. Justice Story says, an insurance, prior in date, is to exonerate the underwriter, and entitle the assured to a return of premium ; an insurance subsequent in date is to have no effect at all upon the present policy.

The Columbian Insurance Co. v. Catlett, 12 Wheat. 383, contains some principles which are applicable to this case. That case was upon a policy to the amount of $10,000 upon a cargo of flour, worth upwards of $16,000. The voyage was to St. Thomas and two other ports in the West Indies, and back to the port of discharge in the United States. This was held to be an insurance upon every successive cargo which might be taken on board at the ports where the vessel had liberty to touch. It was also held that such a policy covers an insurance of @10,000 during the whole voyage, out and home, so long as the assured has that amount of property on board, without regard to the fact of a portion of the original cargo having been safely landed at an intermediate port before the loss. On behalf of the company,- it was argued that the loss was to be borne by them, with reference to the whole cargo on board, when the risk first attacked, and not with reference to the value on board at the time of the loss, notwithstanding it exceeded the amount insured, Mr. Justice Story says, p. 394, 395, “We are of a different opinion. We think the true intent and object of the policy was to cover an insurance of $10,000 during the whole voyage out and home, so long as the assured had that amount of property on board. The contemplation of the parties manifestly is, that the premium should be paid during the round voyage, upon the full sum insured, and that the assured should have the full benefit of the insurance, so long as he had $10,000 on board. The intermediate landing of a portion of the cargo in the course of the voyage, was wholly immaterial in the understanding of the parties, so long as the value on board was sufficient to cover the insurance. If the clause, usual in policies in the eastern states, as to priority of insurance, had been here incorporated, and there had been a subsequent insurance, this, as the prior policy, must have first attached to the extent of the sum insured during the whole voyage ; if there had been a subsequent insurance without any such clause, it might form a case for contribution among the various underwriters, but should in no shape affect the rights of the assured.”

In Davy v. Hallett, 3 Caines, 21, 22, where the insurance was upon freight, Kent, Ch. J. says the policy was to be valid and operative, as long as there was aliment to keep it alive. The insurance in that case was upon so much freight in that voyage as would amount to $2000. A case is there cited from 2 Emer. 39, 40, in which insurance was made to the amount of 1000 livres upon goods on board a vessel from America to Marseilles. The vessel sailed with a cargo to the amount of 3000 livres, and discharged two-thirds thereof at Cadis,leaving goods on board for the remainder of the voyage to the amount of the insurance. It was said by the French writers, - Valin, Emerigon and Pothier, that the policy was not thereby reduced two-thirds in value, but operated still upon all the cargo on board to the amount of the 1000 livres.

I have thus examined several cases, which have been cited with a view to aid us in giving a construction to the clause in £he policy upon which this case depends, and it will be seen that the courts uniformly have understood the object of the prjor policy clause to be to restore the rights of parties to w^at they were before Lord Mansfield introduced the doctrine of contribution. Previous to that time, the law was in England as it now is, and then was in all the commercial states of Europe: that where there are several policies, of different dates, upon the same subject, the oldest policy must be first responsible to the amount insured; and of course is entitled, in case of over insurance, to retain the premium. It is supposed, however, that the usage agreed upon in the case, is at variance with this, principle, and that the usage must prevail. I do not concede that any usage whatever can control parties in the making their contracts. Certain it is that contracts may be so framed as to control usage, as between the parties to the contract. Parties may make the laws for their own contracts, if they are not inconsistent with the laws of the land. The usage is, that where there are several policies upon the same cargo, and interest to supply them all, if a loss happens, either partial .or total, the several policies contribute. This usage exists in regard to policies on time, and if the owner is uninsured for part, he contributes for such part. In so far as a total loss occurs under such circumstances, it is perhaps inaccurate to say that the policies contribute; they in fact pay the whole amount insured by them ; for the usage, as stated, supposes the policies all full, that is, interest to supply them all. But the usage is the same when the loss is only partial. If the term partial be understood in an enlarged sense, as contra-distinguished from total, then a partial loss may be a general average. “ Expenses incurred, sacrifices made, or damage sustained, for the common benefit of ship, freight and cargo, constitute general or gross average.” 1 Phil. on Ins. 230. If it becomes necessary for the general good to throw overboard any part of the cargo, that loss, being for the general benefit, should be borne by all proportionably. This rests upon principles of justice, bu,t I apprehend has no influence in deciding the rights of parties when a total loss takes place. By a partial loss a damage is done to the subject ,* by a total loss the whole subject is destroyed, as to the plaintiff, and he recovers a compensation for it to the extent of the insurance.

It cannot be expected that I should pursue the elaborate and able arguments of counsel, which have been presented to the court; but there are some points which should receive a more particular answer than is contained in the preceding remarks. It is said that where a part of the cargo was landed the underwriter was relieved, and Phil, on Ins. 329, is cited to sustain the proposition, that if a part of the goods insured are withdrawn, and the risk upon such part has terminated, the interest is proportionably diminished. This is no doubt true, if rightly understood. If the goods on board are worth 320,000, and the policy covers the same amount, and then any portion of'such goods are withdrawn, then, of course, the underwriter is relieved, because he is answerable for the actual loss only. We have a right so to understand this writer, for in that sense the remark is correct, but in any other it seems to me it cannot be. The insurance is upon goods laden or to be laden. Suppose no goods are in fact laden when the policy is subscribed, when goods to the amount of the policy are laden, then the policy is full. If they are then lost, the insurer is liable ; and if no other goods arc laden on board during the continuance of the risk, the insurer is liable for all loses, partial as well as total. Suppose then that double the amount is laden, then the policy attaches upon half i and when one-half is afterwards withdrawn, there is still aliment for the policy ; is there any'reason why he should not be responsible in the case of loss 1 Such is the letter of his contract, such is its spirit, and he has received a full consideration for the whole risk, not half. The insurer is not injured by other goods being put on board; on the contrary, he is benefited ; for in case of a partial loss, as above defined, all the property on board must bear a proportion of such loss, because, in the case of jettisons particularly, all the property is supposed to be benefited by such loss | not benefited positively, but saved from greater loss. This is the principle of general average, and this principle would apply between several owners, when there was no insurance. An insurer, for the purpose of the risk, becomes the owner to the amount of his insurance ; he does not, however, become the partner with the owner of the residue of the cargo. There is no reason arising out of his relation as such qualified owner, why his risk should be diminished by the landing of all the cargo, except the amount insured by him ; nor do 1 see any reason why a partial loss should be defrayed by contribution, other than the one already mentioned. The usage mentioned in the case, I apprehend, proves nothing as to the question before the court. If the term partial loss be understood in a technical sense, it is a loss borne wholly by the party upon whose property it takes place; and is then a particular average in distinction from a general average. Phil. on Ins. 369. Mr. Stevens says, Essay on Average, 140, “ A partial loss, properly so called, is a total loss of a part of the interest; ex. gr. in an insurance on twenty hogsheads of sugar, if one be washed out, that is called a partial loss.” In relation to partial loss thus understood, it must be conceded that the right to contribution must rest upon the usage alone, and not upon any analogy arising out of the principles of insurance. The case of The Columbian Ins. Co. v. Catlett was decided upon the principles above stated. The whole cargo was worth $16,000. The Columbian Insurance Company owned $10,000 and Catlett owned $6000,1 mean for the purpose of the risk. Upwards of $3500 worth of the cargo was sold at St. Thomas, and of course withdrawn; but that did not diminish the risk of the underwriters. They were compelled to pay the whole $10,-000, deducting the premium note and their proportion of salvage which had been received by the owner; so that the amount of the liability of the company was the, whole amount of their insurance. The only difference in principle between that case and this, consists in the fact that there was but one insurance, here there are three. In that case it was said by Mr. Justice Story, that if the clause as to priority of insurance had been there incorporated, and there ■ had been a subsequent insurance, this, as the prior policy, must have attached to the extent of the sum insured during the whole voyage. If the judge was right ¡in that opinion, he has decided this case in favor of the plaintiffs. Again upon the principle of double insurance, this case is with the plaintiffs; when the amount of the cargo was reduced to $27,000, the three policies covered the same amount of interests to their extent. If there had been no clause of prior insurances, it would have been a case for contribution upon the principle of Lord Mansfield, adopted in the case of Thurston v. Koch; but the clause being contained in the policy, the first policy must pay to the amount insured by it, and the balance by the second. Even if the defendants were entitled to contribution, that would be no defence against these plaintiffs.

It was the doctrine of Lord Mansfield that the insured might prosecute which of the underwriters he pleased, and recover from him the whole loss, if his policy was of sufficient amount, and the defendant in that suit could call upon the other insurers to contribute their proportion. Peters, J. informs us, 4 Dall. App, 32, that before the decision of Thurston v. Koch, the custom in Philadelphia had long been to settle losses, when there were double insurances, according to priority of policy in date, without regard to the time of signature; that is, not to call on the second set of underwriters, if those on the first policy were competent, or had paid the amount of subscription or loss. In that event, those on the second policy returned the premium, retaining one-half of one per cent. This practice was changed by that decision; arid to restore the ancient practice, no doubt, was the principal if not the only object of introducing the clause relating to pri- or, insurance. It is well settled, however, that a policy of insurance is to be construed by its terms, in the same manner as any other written instrument; and if the fair and evident meaning of the language used be to extend to all cases of prior and subsequent insurances, I know not what power the court has to limit the operation of the contract to double insurances only. It is the duty of the court to ascertain what was the intention of the parties, and that intention must be ascertained by the plain import of the language used by the contracting parties, and by nothing else, unless there is some obscurity or ambiguity which requires explanation. There is nothing in the clause itself which confines it to cases of double insurance. It is, “ And in case of any in- “ surance upon the said premises, subsequent in date to this 61 policy, the said American Insurance Company of New-York (l shall nevertheless be answerable for the full extent of the “ sum by them subscribed hereto, without right to claim “ contribution from such subsequent assurers, and shall ac- “ cordingly be entitled to retain the premium hy them receiv- “ ed in the same manner as if no such subsequent assurance “ had been made.”

From the agreement to return the premium in certain cases, an argument is drawn in favor of the defendants’ construction. The previous part of the clause contains this provision: “And “ the said American Insurance Company of New-York shall “ return the premium upon so much of the sum by them assur- “ ed, as they shall be, by such prior assurance, exonerated “ from.” This, it is said, can only be applicable to a case of double insurance, when by reason of a prior insurance the policy never attaches; because if the risk has once attached, the premium is never returned. The answer to this argument, is that the clause in question was introduced to abolish the doctrine of contribution. Now contribution is as inconvenient in a case like the present as in one confessedly of double insurance, and the equity in both is the same. If the clause in question intended to abolish contribution in cases of double insurances, how can we say that it was not also intended to abolish it in all cases depending upon the same principle ? It is then no objection to this construction, that the provision as to return of premium does not apply to all cases to which the other part of the clause does apply. On the other hand? the policy contains a clause relative to return of premium, from which the plaintiff’s counsel have drawn an argument in favor of their construction. The policy is for 18 months, and being upon a trading voyage, when the policies might be sometimes full and sometimes not, the insurers agreed “ to return a relative proportion of the premium for each month not commenced, no loss being claimed.” It was optional, therefore, with the insured to furnish aliment for the policies during the time. The plaintiffs were therefore at liberty to withdraw their cargo or a part of it, and it is asked if all the cargo but a few hundred dollars had been withdrawn in three or six months, would the plaintiff be compelled to pay a premium upon all the policies ? And if the doctrine of the defendants be correct,' that a part of the cargo withdrawn relieves the insurers rateably, it would seem to follow that they all remain, so long as any goods remain on board. If it be said that no premium is to be paid for the time, except upon the goods actually on board, still the construction leaves the plaintiffs liable to pay a triple premium upon such goods. This then makes a case of triple instead of double insuranee, and by the clause in question no premium is to be paid, and no liability is to attach, except upon the eldest policy. It seems to me, therefore, that these parts of the policy would be inconsistent with each other, upon the construction given by the defendants.

Upon the whole, my conclusion is, that when part of the goods were landed at Callao the younger policy was relieved from liability, and that relief extended in the inverse order of the dates of the policies; that the defendants are liable for the full amount insured by them, and according to the agreement of the parties, judgment must be entered for 029,831 93, with interest from the 11th May, 1832.

Judgment was accordingly entered. Whereupon the American Insurance Company sued out a writ of error, removing the record into the court for the correction of errors, where the cause was argued by

J. Buer B. F. Butler, (attorney general of the United States,) for the plaintiffs in error.

H. R. Storrs & G. Griffin, for the defendants in error.

After advisement, the following opinions were delivered in this court;

By the Chancellor.

Several minor questions are raised and have been discussed in this cause, which I shall in due time consider. The case also presents two questions of general importance to underwriters and to the commercial community, which I shall first examine. The first is as to the meaning and construction of what has been called the American clause in the policy. The second is as to the rule of contribution between the underwriter and the assured, upon a trading voyage on time merely, where a part of the cargo on which the policy originally attached has been landed and sold or exchanged, before the expiration of the time limited for the continuance of the policy and the risk; or as between the underwriters in sue» cesg;ve policies containing the American clause, where the cargo on board after the time limited for the commencement 0f the risk, has once been sufficient, to cover the whole amount underwritten by all the policies.

The American Insurance Company, by the decision of the supreme court, have- been charged with their proportion of the general average loss sustained in this case, and with the $20,000 underwritten by them, as if the goods and specie on board at the time of the seizure had been the only cargo originally shipped at New-York. The counsel for the plaintiffs in error insist that this was not the correct and legal mode of estimating the loss, under the circumstances of this case; that the provision of the American clause making the first underwriters liable- to the full extent of their policy, in the same manner as if no subsequent assurance had been made, does not apply to the case of a policy on time, upon a trading voyage, where the risk as to two or more policies has once attached by the lading of a sufficient cargo on board to fill all the policies; although by the landing or sale or exchange of a part of the cargo, during the time or voyage insured, the property at risk, at the time of the loss is so reduced in amount as to produce a double insurance upon what happens to be on board at that time. And even if there had been no subsequent insurances upon the same adventure, that the underwriters in this policy would only have been liable to contribution with the assured for the part of the original cargo which was seized in'the proportion which the $20,000 underwritten by them bears to the invoice price of the whole cargo at New-York: that is, in the same manner as if the whole cargo as shipped at New-York had remained at risk at the time of the loss, and only a part thereof had been seized.

If the amount of insurable interest in the goods insured exceeds the sum which is underwritten in a single policy, the. owner of the goods is considered as his own insurer for the excess; and upon the adjustment of a partial loss, the underwriter contributes only such a proportion of the whole amount of his subscription, as the loss sustained bears to the whole insurable interest in the goods at risk, estimating them at the invoice price at their places of lading, including premiums and commissions. Annesly, 103. Evans, 40. Parke, 104. Phillips, 375. If the whole property covered by the insurance, and also that which is uninsured, is totally lost, it is perfectly evident that the underwriter must pay the whole amount of his subscription to the policy, and there is nothing to be apportioned between him and the assured, except their ¡respective shares of general average, and the expenses incurred in endeavoring to save the property, and subsequently the salvage or proceeds of the spes recuperandi, if any thing should be afterwards recovered. This division of a partial loss between the underwriter and the assured, in cases of short insurance, is sometimes incorrectly called a particular average; but it may more properly be denominated the apportionment of a partial or average loss between the successive insurers under the American clause, or between the underwriters and the assured where the latter was his own insurer as to a part of the subject of the loss. The usage which is found in this case, as to such apportionment, where all the original cargo is on board at the time of the loss, is directly in accordance with the settled rule of law on this subject as between the underwriter and the assured, in case of short Insurance; the second or subsequent insurers being substituted in the place of the owner as to so much of the cargo at risk, at the time of the loss, as is not covered by the first insurance. The rule of apportionment as between the underwriter and the assured, it seems, is the same where the Insurance is upon a single voyage from one port to another, upon an entire cargo or lot of goods to be laden on board the vessel at the port of departure, and where a part of the goods have arrived at the port of discharge, and have been safely landed before the loss occurs. Gardner v. Smith, 1 Johns. Cas. 141. But I am not prepared to say that this rule of apportionment ought to apply, even in the case of a single voyage from port to port, where a part of the goods had been relanded at the port of departure, or lost in the course of the voyage, in consequence of a peril not insured against; so that the goods on board at the time of the loss covered by the policy do not exceed the amount of the underwriter’s subscription. It is admitted that in such a case the assured is not entitled to a return of premium upon the goods re]anded, or ]ost by a peril not insured against, if the risk of the underwriter has once attached; although the goods re-landed, or lost by a peril not insured against, reduces the amount of property on board, below the sum underwritten in the policy. The right to a return of premium, however, does not appear to settle the question as to the underwriter’s claim to an apportionment of a subsequent loss, which may happen to the goods remaining on board.

But whatever may be the rule of apportionment in the case of a short insurance upon an entire cargo, for a single voyage, from the port of lading to the port of discharge, I am satisfied it can have no application to a case like the present. Here is an insurance upon goods to be laden on board a vessel for a trading adventure for eighteen months, with liberty to the assured to extend it to two years, at the same rate of premium, without reference to any particular voyage, or any ports or places of lading or discharge, or any specific cargo upon which the risk was to attach for the whole eighteen months or two years. Both parties therefore understood and expected that the whole, or particular parts of the cargo, would be frequently changed in the course of the eighteen months, either by the voluntary acts of the assured or his agents, or by perils which were not insured against; and both must have intended that the risk, to the extent of the $20,000, should attach to any goods remaining on board from time to time, as often as such changes should occur, provided goods to that amount were on board at the time any loss should occur by the perils insured against. Even if the underwriters, at the time they subscribed the policy, had been informed that the vessel was to sail from New-York for South America and the Pacific ocean, they also undoubtedly knew that it was a very common occurrence for vessels engaged in trading voyages from this country to South America and the Pacific, to dispose of the whole or a part of their cargoes in one port, and to ship the whole or a part of the proceeds thereof in specie for another port, before completing the cargo for the homeward voyage ; and that the new cargo thus collected in South America, or in the islands of the Pacific, was frequently carried to the East indies or China, where it was disposed of in the same manner, and another cargo collected for the return voyage to Europe or to the United States. A policy of insurance upon such a trading voyage, or upon time merely, where the vessel is to sail upon such a voyage, is in the nature of a new insurance upon the new cargo, or the goods remaining at risk, every time the cargo is increased or diminished otherwise than by the perils insured against. But the total amount for which the underwriters are to be made liable during the whole time or voyage, except for general average or other expenses incurred for their benefit in preserving or attempting to recover the property insured, cannot exceed the amount of their subscription to the policy, upon which amount the premium of insurance is calculated. In such a case, therefore, if the policy was underwritten for $20,000, and one half of the first cargo was lost by the perils insured against, so that the underwriters had become liable to pay #10,000 on account of that loss, they would, upon the next change of the cargo, only be underwriters for the other half of their original subscription, and the shipper would be considered as his own insurer for the residue of such new cargo, for the purpose of apportioning a partial loss thereon between him and the underwriters. This is unquestionably the spirit of the decision of" the supreme court of the United States, in the case of The Columbian Ins. Co. v. Catlett, 12 Wheaton, 383 ; and the opinion of Mr. Justice Story, by whom the reasons of the court for their decision in that case were given, is entitled to great weight upon questions of commercial law. The decision of the court of king’s bench, in the case of Crowley v. Cohen, 3 Barn. & Ald. 478, is also in accordance with this construction of a policy on time, where, by the usages of trade or from the nature of the business in which the insured is engaged, the amount of the goods at risk, as well as the kinds and qualities thereof, must be frequently changed during the continuance of the risks assumed by the underwriters. In that case there was a policy underwritten by different insurers, to the amount of £12,000, on goods to be carried on board of thirty boats belonging to the assured, which were engaged in the transportation business on a canal, for the term of twelve calendar months. One of the boats, during the twelve months, was sunk in the canal by one t^e perj]s insured against, having on board goods to the amount of £1700 ; and it was held, that in apportionjng the partial loss occasioned by this accidental sinking of such boat between the several underwriters and the assured, the latter was entitled to recover such a proportion of the loss sustained, as the amount of the subscriptions of the underwriters bore to the whole amount or value of the goods which were afloat in all the boats at the time when the accident happened. The case appears to be rather imperfectly stated in the report; but I infer, from the language of Lord Tenterden, that the policy must have been underwritten, by different persons, to the whole amount of the £12,000; and that, in speaking of the proportion of the loss which the assured was entitled to recover, he had reference to the aggregate amount of his claims against all the underwriters, and not to the amount which the defendant in that cause was liable to pay, for he could not have intended to say, that if the whole value of the goods afloat at the time of the loss did not exceed £12,000, the assured would be entitled to recover the loss of $1700 of the defendant, who had only underwritten the policy for £1000. Emerigon, in the section of his treatise on the law of insurance which is entitled “ Merchandise Chargee dans un lien d’echelle Tom. 2, ch. 13, sec. 8, shows conclusively, by a reference to Cleriac, Valin, and Pothier, that, by the continental law of Europe, the same rule of apportionment prevails between, the assured and the underwriter, where the cargo upon which the policy first attached, has been changed by the master of the vessel after the commencement of the risk, under the clause de faire echelle ; which clause in a policy gives to the adventure upon which the insurance is made the character of a trading voyage. The risk assumed by the underwriter in such a policy, to the extent of his subscription, attaches upon the subrogated or substituted cargo as often as a change takes place ; and the apportionment of a subsequent loss is to be made in reference to the amount of the underwriters’ subscription, and the uninsured interest, if any, in such substituted cargo. See also Weskett, tit. Touching, p. 548.

In the case under consideration, the policy being upon a trading voyage on time merely, without reference to any particular voyage or specified ports of lading or delivery, there was nothing to prevent the assured from changing the whole or any particular part of the cargo, as often as they pleased, while their vessel was lying in the bay of Callao, in accord* anee with the general objects of a trading adventure; and although it might have been the intention of the master of the vessel, when he landed and sold a part of the original cargo at that place, to have disposed of the residue there also, he had a perfect right, so long as a part of the cargo remained on board, to change his intention and go on with that part of the cargo to some other port. Even after the original cargo had been landed and sold, if the master had learned that it would probably be for the benefit of his owners to re-purchase the same goods and take them on to some other port, the policy would have attached upon those goods as soon as they were re-shipped. The rights of the assured, or the liability of the underwriters, were therefore in no way affected by any unexecuted intention of the master of the vessel, to sell that part of the original cargo which was on board at the time of the seizure at Callao. The policy attached as a new risk, upon every change of the whole or any particular portion of the cargo on board, either in port or elsewhere. I therefore conclude that, as between the underwriters in the first policy and the assured, if that had been the only insurance, the loss which actually occurred by the seizure of the vessel and cargo by General Rodil must Slave been charged upon the American Insurance Company, in the proportion which their subscription bore to the value of the goods and specie on board at the time of the loss; estimating that part of the original cargo which remained on board at its invoice price at New-York, including premiums and commissions, if commissions had been paid; or if by custom, they are to be added to the invoice price, where the purchase of the goods has been made by the assured in person; and as there was a total loss of the cargo áben on board, which exceeded the amount of the sub* scription of these underwriters, they would be properly chargeable with the whole amount of their subscription.

Having arrived at the conclusion that the amount recovered against the plaintiffs in error, by the judgment of the supreme court, would have been properly chargeable upon them under this policy, if no subsequent insurance had been made, I shall proceed to consider the effect of the American clause upon the rights of the several underwriters and the assured in this case. By the continental law of Europe, and by the English law of insurance as it existed previous to the decision of Lord Mansfield in Newby v. Reed, 1 W. Black. R. 416, if there were several policies of different dates upon the same subject, and the amount of insurable interest was insufficient to cover the whole amount insured in both policies, so as to constitute a case of double insurance, the second policy only attached upon or covered so much of the insurable interest, as was not covered by the first policy; and the second underwriter was only entitled to retain the premium pro tanto, where the commencement and termination of the risks and the perils ins.ured against were the same. 3 Kents Comm. 281. Vanderlinden’s Comm. 655, b. 4, ch. 16, § 7. Miller on Ins. 266. By this ancient English rule and the continental law, the second underwriter was, as he always ought to be, merely substituted in the place of the assured, as to the uninsured interest of the latter which was not covered by the first policy ; so that the rule of apportionment between the first and second sets of insurers, where both policies when taken together were sufficient to cover the whole insurable interest, was precisely the same as it would have been between the underwriters in the first policy and the assured, if the second insurance had not been made. If the object of the American clause was to restore this ancient rule of apportionment between the underwriters in successive policies, as it originally existed in the mercantile law of England as well as the rest of Europe, it was hardly possible to do it in more appropriate and explicit language than is used in the last paragraph of this clause. That language is, that in case of an insurance subsequent in date to the first policy, the underwriters in the first policy “ shall neverthelesss be answerable for the full extent of the gam by them subscribed, without right to claim contribution from such subsequent assurers, and shall accordingly be entitled to retain the premium by them received, in the same manner as if no such subsequent assurance had been made that is, that they are to have no right to claim a contribution from the subsequent assurers, and are to be answerable to the assured in the same manner, as if the subsequent insurance had not been made, as well as to retain the premium in the same mannei’. It appears to be impossible, therefore, under this policy, that the circumstance of there being subsequent policies underwritten by others, could make any difference as to the apportionment of the loss as between the underwriter in the first policy and the assured, or those who represented the insurable interest in the goods on board at the time of the loss, not covered by that policy.

If either of the subsequent underwriters have paid to the assured, upon a compromise of the claims made upon them, more than they were legally bound to pay under their contracts, that is a matter with which the underwriters in the first policy have no concern ; since they are not bound to refund any thing to the subsequent underwriters, and never had any claim upon them for contribution. If the assured have received any thing under such a compromise which they cannot conscientiously retain, they should restore it to those from whom it has been received ; but the American Insurance Company or its stockholders have no equitable right to insist that it shall be allowed to them in discharge of their legal liability under the first policy. The technical rule of estimating the value of the goods insured, by the invoice price at the port of lading, loaves a very considerable portion of the actual loss in this case uncovered by any of the policies ; and if, upon the compromise with the Niagara company, it paid more than it was legally holden for, the assured have a stronger equity to retain it, than the underwriters in the two first policies have to. demand it of them under their policies, in which all claim for contribution as to the last insurer was expressly relinquished. Besides, as the Niagara Insurance Company were not legally liable for any part of the loss, the whole value of the cargo at the time of its seizure being covered by the two first policies, that company, under the stipu]atjon to return a rateable proportion of the premium for each month not commenced, were bound to return about $700 for the premium upon the twelve months not commenced at the time of the loss. The reservation of the spes recuperandi, or hope of obtaining compensation from the Spanish government for the goods seized, upon the compromise with the second and third insurers, in no way affected the rights or interests of the American company. By the abandonment, which remains in full force, the underwriters upon the first policy will be entitled to their full share of any thing which may hereafter be obtained from that source, so far as the property at risk at the time of the loss was covered by that policy; and the assured are, by the compromise with the Atlantic company, only entitled to the portion of the spes recuperandi which that company would have been entitled to if it had paid the whole amount of that part of the goods lost, which was not covered by the first policy ; and if the whole value of the goods at Callao is recovered under the Spanish treaty, the American company will be more than compensated for the loss which they are compelled to pay, including the ten years interest which has accrued since this litigation commenced.

The assured were not bound by the statement of O. H. Hicks, which was . presented to the several underwriters among the preliminary proofs of loss and interest oni the 13th February, 1826. The underwriters did not admit the correctness of the statement, and refused to pay the loss in conformity thereto. It would not, therefore, have been binding upon the assured, so as to prevent them from recovering what was actually due from the underwriters, upon the first and second policies, even if they had themselves assented to its correctness under a misapprehension as to their legal rights. But it appears the assured objected to the statement in their conversations with Hicks. It was nothing, therefore, but an offer to compromise with all the underwriters on the basis of that statement. It was not exhibited at that time as limiting the extent of the abandonment which had been made upon the second of the same month; and it appears by the special verdict that due proof of the loss and of the interest of the assured in the cargo, as required by the terms of the policy, was exhibited to the American company as early as December, 1825, six weeks before the abandonment was made.

Under the construction which I have found myself com-polled to put upon this contract of insurance, as a time policy upon a trading voyage, and upon the American clause contained therein, the amount for which the defendants in the court below have been held liable by the decision of the supreme court is no more than they were legally bound to pay by their contract with the plaintiffs. The judgment of the court below is therefore not erroneous, and it should be affirmed.

By Senator Tracy.

This case presents two important questions of marine insurance, both of which seem to be measurably unsettled; at least, no distinct and indisputable adjudication upon either of them, by a court of controlling authority, has been found. This fact, in connection with the probability that both must have been often practically resolved, is laid hold of by each party with about equal plausibility, as proof that the position for which he contends are so clear, that no one before the opposing party of the suit had presumed to bring them into controversy. But however satisfactory this course of reasoning may be to the parties respectively, it affords no aid to the court in the solution of the questions, except as it admonishes it of the propriety of greater diffidence and care in coming to its conclusions.

The question first discussed by the counsel, in the order of their argument, is, what rights and relations subsist between the insured and the insurers of a cargo for a trading voyage, where the policies are on time, and do not cover all the insurable interest of the insured in the cargo ? The second question, and in its bearings on the present case the most important, is what rights and relations subsist between different insurers, under time policies on the same cargo for a trading voyage, where the policies are of different dates, but have all fully attached, and where part of the insured interest is withdrawn from the risk, and the residue, being less than the amount insured by all, is totally lost ?

The first question presents itself wholly unembarrassed of wjjat js termed the American clause ; for it would occur in same form, and have to be resolved by the same rules, whether this clause was or was not in the policy. I shall endeavor, therefore, to keep it out of sight in this part of the case; and that the examination may be more simple, shall treat the question as though there were but one policy, and that to the amount of the three which the case discloses. It would then be a policy of $45,000 for eighteen months from the 17th of May, 1824, upon all kinds of lawful goods and merchandizes laden or to be laden on board the good ship China, “ upon any or all voyage or voyages, passage or passages, in ports, rivers, and at sea, during the time aforesaid, with liberty to touch and trade at any port or ports as frequently as the captain or agent may direct• which policy attached to a cargo of the value at the commencement of the risk of $47,096, and the ship with this cargo proceeded in safety to Callao, in South America, where she arrived the 6th of October following the date of the policy, where, after, unlading and discharging a part of the cargo and receiving on board about $2000 in specie, the ship and residue of the cargo, amounting to about $27,000, were unlawfully seized, and became wholly lost to the owners. The question upon these facts is, whether the insurers are liable for the whole loss, or only for a portion of it, in the ratio which the amount they insured bore to the whole insurable interest on board at the commencement of the risk, say about forty-five forty-sevenths. For the insurers it is insisted that the owners had no power to separate the insured from the uninsured part of the cargo, and therefore have no right to say that the part landed was that uncovered by the policy, and which had been at their own risk; that it is a prominent feature in a marine policy, distinguishing it from a fire policy, that the insurers, in case of loss, are liable only in the proportion which the sum they insured bore to the whole insurable interest, and not on the principle of indemnifying the insured against all the loss he may suffer in the general subject to which the policy relates ; that a marine insurance is upon a part of the whole, and not upon the whole of a part; and when the policy attaches, it is in the ratio which the sum it insures bears to the whole insurable interest then at risk, which ratio thus established cannot afterwards increase or diminish, or in any way change, until the whole risk insured against, is terminated, though the amount of the risk may be continually diminishing, and the policy relieved pro tanto by discharge of parts of the cargo. The insured, on the other hand, contend that they are entitled to a full indemnity for their whole loss, not exceeding the amount covered by the policy, without regard to any further interest originally existing, and discharged from the ship; that the insurance was on a given sum of interest in the cargo, and not on any specific part or proportion of it; that the pi'oportion which this sum of interest might bear to the whole interest of the cargo was accidental, and no way affected the contract of the policy, which bound the insurers always, in case of a total loss of the cargo on board, to indemnify them to the amount of the policy, without regard to any change made subsequently of the amount of the cargo; that the risk of the insurer neither expands nor contracts with such a change, but remains fixed and unalterable so long as the whole value at risk equals the sum of the policy; and that in this respect such a policy must be broadly distinguished from one on particular goods, which are described in it as the specific subject for the insurance.

On first impression, it seems very strange that in the multitude of suits which marine insurance has given birth to in the English and American courts, that there should be found no distinct adjudication upon this point; but on reflection I am satisfied that a question of this character, between owners and underwriters, is likely to occur much more rarely than I had supposed. In a direct voyage it can scarcely happen that the insured could discharge his uninsured interest from the risk, except it was done under circumstances that would avoid the policy entirely, as for delay, deviation, &c.; and when the ship reaches her port of delivery, the policy continuing in force until the cargo is landed, the owner of course would not, if he could, withdraw the portion of it first landed from the protection of the policy, until the whole is out of risk; and until he withdraws the part absolutely, so that the insurer ¡s wholly discharged from any risk on account of it, there is as much reason why the owner should contribute towards the loss of the part yet remaining in the ship, as that the insurer should contribute for the loss of the part landed. The consequence is, that the loss of either part would be a partial loss, the principle of settling which is indisputable, while the loss of both parts would of course be a total loss, admitting of no controversy. Gardner v. Smith, 1 Johns. Cas. 141, was an action on a policy of insurance on goods from New-York to Jamaica) and 24 hours after the goods were landed. After part had been landed more than 24 hours, all the goods were seized, both those ashore and those yet on board ,* it was held that. 24 hours after the goods were landed meant 24 hours after all were landed, and that it was a total loss of all under the policy. Now if, instead of a seizure of all the goods, there had been a seizure of those only that were, or of those only that were not landed, it is plain, on the principle of this decision, that it would have been but a partial loss, and the interests in all the goods must have contributed rate-ably. I refer to this case only to illustrate the improbability that the question now under consideration should arise on policies for direct voyages. I think if was the difficulty of supposing a case of a single voyage, where the owner could withdraw his interest from the risk before the whole risk was terminated, except by some act which of itself would invalidate the policy, that produced the intimation of Mr. Justice Story in The Columbian Ins. Co. v. Catlett, that if the case should arise, it would be decided against the right of the owner to do so. The obscurity of this principle has been produced, I apprehend, from confounding or rather misapplying the term total loss. Of course, its true meaning is well understood to be the destruction or loss of the whole subject matter, to which the insurance applied, but the term is sometimes improperly used to denote the entire loss of the whole subject then exposed to the particular risk by which the loss occurred, though a part of the insurable interest, which had been removed from this particular risks but not discharged from all risk, was preserved. As in the common case of insurance on goods from one port to another and until safely landed, where, after a part of the goods are landed the residue on board are lost. This is frequently denominated a total loss, though it is really a partial loss, because the goods landed were not, until all the goods were landed, withdrawn from all the risks against which they were insured, although they were withdrawn from the particular risk by which the loss occurred, and therefore as the insurer would have to contribute in case of their loss, notwithstanding they were landed, it is only reasonable and just that the owner should contribute on account of those on board, the same as though the loss had occurred before any were landed.

But in this case the argument for the insurers is not put on the ground, that the goods discharged from the ship at Callao were still in any sense at their risk, but on a principle which if carried out would assert, that after the insurable interest had been diminished by withdrawing a part of the original cargo, by sale or otherwise, that a total loss could never occur: in other words, that the loss of less than the original whole, must be a partial and not a total loss, notwithstanding it was a loss of the entire subject then at risk. This argument in its effect establishes an indissoluble portnership between the insurers and the insured, in regard to the risks of the whole capital of the insured at the commencement of the voyage, which plainly would be inconsistent with equity and reason. No doubt insurers and owners are in some sort partners, in respect to losses that occur in the capital at risk; but this partnership is confined to the capital while at risk only, and does not extend to it when withdrawn from the risk; for the moment it is withdrawn, and is not exposed to any of the risks for which the insurer is liable, that moment the insurer ceases to have any relation with it. While the gross interest covered and uncovered by the insurance remain at a common risk, the relations of the owner and the insurer, so far and only so far as it may be affected by a loss, are in the nature of tenants in common ; but this tenancy does not extend to the dominion or ownership of the property, for that remains entirely in the insured. The property continues his as much as before the insurance, and he may make whatever disposition of it he pleases. It is erroneous therefore to say that the insurer is, for all purposes, in the relation to the uninsured interest which ^ owner js jn t0 that which is insured. Their relations are not reciprocal, and there is no reason why they should be. The insurer, for the premium, agrees absolutely to bear the risks upon a certain amount or value, which value he has no power to change by withdrawing a portion of the property constituting it $ but the owner makes no contract with the insurer in regard to any surplus value he may have on board beyond the value insured. Although for such surplus value he is sometimes called his own insurer, it means no more than that he has no insurance upon that value; and it is not intended that the unqualified control over this surplus value should not be as much with the owner as it would be if he had it in any other situation. If he throw it overboard, ox* sell it, or give it away, or in any other manner dispose of it so as not to increase the risk on what remains under insurance, the insurer has no right to complain. The mere fact that the fund is diminished from which contribution towards a partial loss could be exacted, is no more cause for complaint than it would be, that the fund for contribution towards an average loss was diminished by some other owner withdrawing his goods on board from the common risk. The principle upon which both contributions are made, is that the liability to loss is in the ratio of the property at risk, and that this ratio is necessarily the same, whether the property exposed be more or less. Thus the chance of 5, 10,15 or 20 per cent, loss, is no greater on five thousand than on fifty thousand dollars; and therefore for a general average every interest afloat, and for a particular average every article of the cargo not expressly excepted, and for a partial loss the whole subject on which the insurance is made, contribute to pay the loss, on the principle that each in proportion to its respective value has contributed to occasion it. If this were not so, and the risk on any particular interest was increased or diminished by the diminution or increase of other property, subject to the same hazard, it would be seen that parties to an insurance would regard this circumstance in their contracts, and the amount of the whole property which should be maintained at risk for the purpose of contributing to average or partial losses,- would be the subject of express stipulaíion; but such a stipulation I presume was never heard of. And whether the value insured is to constitute one-tenth or nine-tenths of the gross value of the subject to which the insurance applies, is not a matter of inquiry, and indeed not a matter of interest to the insurer; for his hazard of a total or of a partial loss is the same, whatever may be the proportion between the amount he insures and the whole amount of the adventure. If this circumstance, therefore, is deemed unimportant and wholly disregarded when the contract is made and when the risk commences, there is no possible reason why it is not equally unimportant and should not be equally disregarded at every subsequent period of the risk, and before a loss has occurred.

The cases given by the French writers show the rule established in France in trading voyages, but they seem not to have discovered what 1 suppose to be the principle of the rule, and which makes it a rule of universal application. The case from 2 Valin, 87, and 2 Emerigon, 39, 40, cited by Chief Justice Kent, in Davy v. Hallett, 3 Caines, 21, was where insurance to the amount of ÍQ0Q livres was made upon goods on board a vessel from America to Marseilles, The vessel sailed with a cargo to the amount of 3000 livres, and discharged two-thirds thereof at Cadiz, leaving goods on board for the remainder of the voyage to the amount of the insurance. This of course could not have been a case of insurance on a direct voyage, else the policy would have been avoided for deviation. No doubt the policy contained, what the French policies commonly do, the clause “ de fairs echelle ” which is equivalent to a license to touch and trade at intermediate ports; for we find another case put by Emerigon, exactly similar in principle, where this clause is stated to have been in the policy. It is that of insurances upon goods on board a vessel from the French islands to Cadiz and Bordeaux. The vessel touched at St. Andero, and was afterwards captured just before reaching Bordeaux. The question was whether the insured, by discharging a part of the goods at St. Andero, leaving still sufficient on board to fill the policies, furnished any just excuse to the insurers for not paying the whole amount of their insurance. It was answered it did not, for in such a case it was enough that the assured shows goods on board at the t¡me 0f Uie loss equal to tile Sum insured ; that the clause de /mre echelle confers the right of touching at any ports in the course of the voyage to discharge or to receive goods; that the policies being on goods laden or to be laden in the ship, would attach to goods put on board after the risk had commenced ; and therefore as the owner could increase the cargo, it followed that he might also diminish it, provided the insurer’s risk on the amount he insures is not thereby increased. Pothier agrees substantially with Yalin and Emerigon as to the right of the insured to withdraw his uninsured interest from the common risk. But he imagines a subtle distinction where the insured, when near the port of final destination, withdraws a part of the goods, for the sole purpose of avoiding the dangers of averages which he apprehends. But Emerigon denies the distinction and says, “ Supposing such a case should ever occur, I think it would be decided against the insurer. It is free to the insured to place the uninsured part of his interest in a place of safety, and to leave the insured part, only in the ship ; for he had recourse to an insurance to secure himself against maritime risk, and did not thereby contract with the insurer any partnership property so called. In doing so he has only exercised a right which he had. Nullus videtur dolo jacere, qui jure suoutitur.” Emerigon might have given to this hypothetical case of Pothier, another answer at least as conclusive, viz. that the risk of the insurer is not affected by the amount of value on board, whilst it is equal to what he insures; for in case of total loss his liability is always the same, and the risk from a partial loss is always in the same ratio to the cargo, whether that be more or less ; in other words, if the insurer, when there is a great excess value on board, has a larger fund from which he may draw contribution to a loss upon his own peculiar interest, that interest is also liable for losses happening to the other interests to the same extent, so that one liability exactly compensates the other, and it is therefore practically indifferent to the insurer whether the insured withdraws his uninsured interest or keeps it exposed to the common risk. It is for this reason that I cannot doubt that the English and American rule on this point must be the same as the French ; and without further speculating on the possibility of there happening a case like the one suggested by Justice Story, in 12 Wheaton, it seems beyond doubt to me, that in a case like the present, of a time policy on goods laden and to be laden in a trading voyage, where from its nature the policy cannot be invalidated by delay or deviation, and where the right is expressly given “ to touch and trade at any port or ports as frequently as the captain or agent may direct,” the owner may at any time withdraw from the risk any portion of the cargo, and replace it with any other lawful goods, and that the insurer becomes a stranger to any portion thus withdrawn, the moment it ceases to be at his risk, and has no better claim on it for contribution than if it had never been on board. J am also satisfied that on such trading voyage different from a single voyage, the risk is as divisible as the property, so that each portion of the cargo is withdrawn from it as soon as safely landed, though upon being re-shipped it xvould again come under the insurance the same as other goods that had not been before on board. On this point therefore, that the insurers are exclusively liable for the whole loss at Callao, I have no doubt.

The next and more perplexing inquiry is, what are the rights and relations of the different insurers betxveen themselves in respect to the loss for which some or all of them are liable; and particularly, have they a common liability for the loss, or is it a successive liability in the order in which their respective policies bear date ? This question has been most ingeniously and most confidently argued by the counsel of both parties, and in the admitted absence of any clear authorities to aid in resolving it, one should feel some diffidence of the correctness of the conclusions at which he arrives.

It is conceded that by the common law of England, xvhich in this respect our constitution makes the common law of this state, all insurers against the same risks become partners, or rather co-sureties, notwithstanding their contracts are of different dates, and notxvithstanding the insurance exceeds in amount the interest insured ; and that the last underwriter is as much bound to contribute to the loss, xvhelher total or partial, as the first. This is the rule given by Lord Mansfield, first in 1758, Goden v. London Assurance Company, 1 Burr. 492, and again in 1763, Newby v. Reed, and which has ever since been recognized. It is contended, however, that R Was a new rule which Lord Mansfield established, and contrary to the former one. So far as the present authority of the rule is concerned, it would not be important to inquire whether Lord Mansfield made the rule or only announced it, or whether the rule which he gave was in accordance or contradiction to the rule in France and in other countries ; for it is conceded on all sides, that after the case of Newby v. Reed, the rule became a settled one, governing-all cases that afterwards arose. But for more clearly comprehending the present question in dispute, it may be useful to inquire particularly what was ruled in Newby v. Reed; whether it was a new rule; and how it would affect the present case, if the American clause did not exist.

The case of Goden v. London Assurance Company, as well as that of Newby v. Reed, was where the insured had paid for insurance on a greater amount than had ever been at risk ; all the insurers had received their premium and were entitled to retain it. In the first, case the opinion expressed was, that “ if the insured is to receive but one satisfaction, natural justice says that the several insurers shall all of them contribute to satisfy the loss against which all of them insured.” In the other case “ it was ruled by Lord Mansfield and agreed to be the course of practice, that upon a double insurance, though the insured is not entitled to two satisfactions, yet upon the first action he may recover the whole sum insured, and leave the defendant therein to recover a rateable satisfaction from the other insurers.” That this was not a new rule appears from its being “ agreed to be the course of practice f and indeed it is not easy to see what other legal rule there could be. So far as the insurance applied to the same interest, which it must necessarily in case of double insurance, the different insurers were in the condition of co-sureties, and the principles of law applicable to other co-sureties were properly applied to them. The only case to be found wearing a different aspect, is that of the African Company v. Bull, 1 Show. 132, where the real point decided is, that a plea which would have been bad on demurrer may be sufficient after verdict. If the case of Newby v. Meed had not occurred, and the custom pleaded in the African Company v. Bull, were allowed to prevail, it seems to me that the question between the different insurers in the present case would be just the same that it now is. The custom claimed was that a subscription to a policy after the whole interest was covered should not be deemed to attach, and the insurer should not retain his premium ; but in the present case the whole interest was not covered by prior insurances, all the policies did attach, and all the insurers were entitled to retain the premium they had received. Again, the single principle settled in Newby v. Reed was, that the insured might recover of any of his insurers more than a rateable proportion of the loss, leaving him to seek contribution from the other insurers; but in this case the insured does not seek from one, what he admits the others are also liable to pay, but claims from him on the ground that the others are not liable to pay. If the French law be invoked, it does not, as I understand it, aid in resolving the present difficulty. The Commercial Code of France, b. 2, tit. 10, art. 35, corresponds substantially with the custom that was set up in 1 Shower, and it is as follows: “ S’il existe plusieurs contrats d’ assurance fait sans fraude sur le meme chargement, et que le premier contrat assure le entier valeur des effets charges, il subsistera seul; les assureurs qui ont signe les contrats subsequents sont liberes; ils ne recoivent que demi pour cent de la somme assuree, Si l’entier valeur des eííets charges n’est pas assuree par le premier contrat, les assureurs qui ont les contrats subsequents repondent l’excedant en suivant l’odre de la date des contrats.” This rule it is seen, is intended to prevent double insurance, that is, to secure the insured from paying two premiums for the same interest and the same risk. It provides therefore that the several policies shall attach in the order of their date until the whole interest is covered, and when it is covered that subsequent policies shall not attach at all; but it does not provide for a case where all the policies have fully attached, and the risk in respect to all equally commenced. The counsel assume that this rule is the same, whether the insufficiency of value was original so as to prevent the subsequent policies from ever attaching, or was superinduced after they had attached, by withdrawing a part of the subject at risk; and if at the time of the loss the value at risk was not equal to the value insured by all the policies, then the policies were to be exhausted successively in order of date; a subsequent policy not contributing át all until all prior policies were exhausted. If the French rule is carried to this extent, I confess I have not found evidence of it, unless it be in the confidence with which it is asserted by the counsel; certainly the article of the code does not warrant this conclusion, and no authority- that has been referred to, explains the relations that subsist between different insurers, whose policies have equally attached to the same subject. The inference that prior and subsequent insurers remain in the same relation to each other that thé owner is in as respects his uninsured interest, to his insurers, is not very plain ; and it is only by this inference that the French authorities showing the owner’s right to withdraw his uninsured interest can be made to apply. The principle of the two cases is different, and in the absence of direct authorities, one can hardly believe that the rule is the same. There is no reason why the rule in France should differ from that in England, where I apprehend it has been settled always, that when different policies attach to the same interest, the risk must continue alike, and the subsequent insurer will be no more relieved by withdrawing a part of the subject from the risk, than the prior insurer. This principle is not contradicted at all by “ the rare custom of merchants,” stated in Malynes Lex. Merc. 112, and by Miller on Ins. 286, or by the case in 1 Shower. That custom is exactly like the French law, and is stated to be that “ when a greater sum is assured than the goods are worth or amount unto when they are laden into the ship" then “ those assurers that have last subscribed bear not any adventure at all, and must make restitution of the premium by them received,” &c. In Holland, as we find quoted I Beawes Lex Merc. 486, the rule was positive that “ the last underwriter shall participate as much as the first either in profit or lossbut whether this was confined to cases where the aliment was sufficient to supply all the subscriptions, or extended to all cases like the existing English law, does not appear; nor is it important, for it is sufficient for my present view, if the English law has always been, that where a community of interest has been once established by the attaching of different policies to the same subject, that the same community of interest continues till the risk is terminated. The decision in Newby v. Reed was not necessary to establish this proposition, and indeed the point in the case is not that all the underwriters were liable to contribute rateably, but that particular underwriters were liable in the first instance beyond their rateable proportion, and the right of those whohad paid, to recover back arateable proportion from those who had not, was an undisputed and inevitable consequence not necessary to be stated, and which was only incidentally stated by the learned judge. The only possible light in which this decision can be viewed as innovating on the previous custom,is not because it made all insurers, whose policies had attached, rateably liable, but because it recognized the principle that a policy attached to a subject already fully covered, as effectually as if it were not coveredj thus putting the last policy, both as respects the right to retain the premium, and the obligation to contribute to the loss, on the same footing as the first. This last proposition it was which alone came into consideration in the case of Thurston v. Koch, 4 Dall. 348. It was a case where a prior insurer, whose policy covered the interest at risk, had paid the whole loss and sued a subsequent insurer for his contributive share. It seems that the existing usage in Philadelphia was to regard the subsequent policy as never having attached; but the court décided that the usage could not prevail against the law, that all the policies equally attached, and therefore, in the language of Lord Mansfield, natural justice required that all the insurers shall contribute pro rata to satisfy the loss against which all of them insured. This decision we have the authority of Mr. Condy and of Gibson, J. 5 Serg. & Rawle, 475, for saying, occasioned the introduction of what is termed the American clause. The counsel in this case, and all writers who have referred to this subject, admit that the intention of introducing this clause into the policy was to restore the rule or usage which the decision in Newby v. Reed was supposed to have disturbed. This usage, like the French law, avoided several inconveniences, which arose from applying to marine policies, common law rules of construction applicable to other contracts, and which inconveniences did arise, when Lord Mansfield, disregarding the custom of merchants, applied those rules strictly to contracts of insurance. These evils were, 1. The owner, though he could recover but one satisfaction for his loss, was exposed to pay and frequently had to pay for two or more insurances against it; 2. The insurer did not know for how much he insured, as his contract would be varied or cut down in amount by subsequent policies; and 3. The insurers were made sureties for each other, and liable to pay more than their proportion of the loss in the first instance, and then resort to strangers for their indemnity. The case of Thurston v. Koch exemplified these evils, flowing as they all did from double insurance ; and when judges and commentators speak of the American clause as adopted to cure these evils, they mean no more, and when their language is strictly analyzed they say no more, than it was adopted to prevent double insurance. But simple and single as is the acknowledged purpose for which the clause was framed, there are ambiguities and obscurities in it, which justify saying of it what Sir James Mansfield said on a former occasion of a policy of insurance, “ it is a very strange instrument, as we all know and feel.” It is capable of being construed many ways plausibly, and yet perhaps not capable of being construed any way so as to escape plausible objections. No doubt, however, whichever way it is construed, it is made effectual to prevent double insurance in those cases constituting the great majority of marine risks, where the interest at the commencement of the risk necessarily continues the same till the whole risk is teminated; but whether it provides for a case of double insurance, occasioned by a diminution of the interest insured after the risk commenced, as happened in this case, and which is liable to happen in all trading voyages, is the point of dispute between the parties, and which can only be resolved by a careful regard to the clause, in connection with the circumstances that gave birth to it. In looking out of the clause and only at these circumstances, one could hardly doubt that it was not intended to guard against cases of supervenient double insurance where all the policies had once been fully supplied, but only for such a case as Thurston v. Koch, where a subsequent policy made after the whole interest was fully insured, was allowed to come in and displace the prior policy for a part of the risk which it covered—and in looking at the clause in con-Election with the circumstances' that occasioned it, there is, I think, no great difficulty in confining its meaning to this latter case alone. No doubt if some of its terms be separately regarded and literally construed, they favor an interpretation making the prior insurer answerable in every case of loss for the whole amount of his policy, without any claim for contribution from subsequent insurers; but independently of the consideration that this mode of construing a contract, by regarding its parts separately, is repugnant to reason, and to the rule of law' which requires the parts to be construed together, it would, if adopted in this case, lead necessarily to a conclusion which all parties admit to be false.

The construction to be given to the first branch of the clause is not so much disputed in the present case, as that to be given to the second branch; but when the construction of this branch is fixed, it will afford, I think, a key for rightly construing the other branch. The words of it are, sc if the said insured shall have made any other assurance upon the premises aforesaid, prior in date to this policy, then the said American Insurance Company of New-York, shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the premises hereby assured, and the American Insurance Company of New-York shall return the premium upon so much of the sum by them assured as they shall be^by such prior assurance exonerated from.” The term premises, occurring in this branch, it is admitted by both parties, and it is indeed' beyond doubt, means the cargo belonging to the insured. The term answerable is more equivocal, but when construed with the concluding part of the sentence relative to the return of premium, admits, I think, but of one construction. The argument for the assured has the effect of construing this word to mean pay in case of loss, which would not only exonerate them from liability to contribute to any partial loss, less in amount than the sum covered by the prior policies, but construed as it must be with the concluding sentence, it would compel them to return all ^le premium, except on the part which they had to pay for a loss. Of course it is not this which the parties mean by answerdble ; but what they must mean is, that the insurer shall not assume the risk, except so far as it has not been assumed by the prior policy. If the interpretation I give to the term answerable need any confirmation other than that afforded by the whole context, it will be found by comparing the American clause with the article from the commercial code of France, to which I have already referred. The clause evidently was taken substantially and in some parts literally from this article, and it is, 1 apprehend, only by a mistranslation of the words “ repondent I’excedent,” that the doubt has arisen as to the meaning of the clause. “Repondent” though it may be translated do answer, should be translated do assume or become responsible for, and cannot properly be translated “ shall be answerable for,” so as in any sense to make the contract dependant on a future contingency, but only on an existing but unascertained fact.

The second branch of the clause is, “ and in case of any insurance upon the said premises subsequent in date to this policy, the said American Insurance Company of New-York shall nevertheless be answerable for the full extent of the sum by them subscribed hereto, without right to claim contribution from such subsequent assurers, and shall accordingly be entitled to retain the premium by them received, in the same manner as if no such subsequent assurance had been made.” The word premises, occurring in this branch of the clause, it is agreed by the counsel, means the interest covered by the poliey, and giving to the word answerable the same meaning that it has in the first branch, and which is equally applicable to it in this, and then the plain purport of the provision is, that notwithstanding a subsequent insurance on the interest covered by this policy, the insurers shall assume the risk, or become security for the full extent of the sum by them subscribed, without right to claim contribution from subsequent insurers of the same interest, and without obligation to return any part of their premium, because of a subsequent insurance of. the same interest. By construing the clause in this manner, we make the two branches of it completely reciprocal, and place the policy in exactly the same relation to a subsequent policy which a prior policy bears to it—we protect the insured from paying two premiums on the same interest and the same risk, and protect the insurer in his legal right of retaining his premiúm, wherever he has been exposed to the risk he insured against. But by rejecting this construction, and giving, as is asked, an unqualified and literal force to the provision, that the assurer shall not claim contribution from subsequent insurers, it will reach cases of partial as well as total loss, and thus not only deny contribution where by universal law and usage it exists, but also involve the absurdity of supposing that the insured is more careful of the interest of subsequent insurers than of his own, by providing for them an exemption, which confessedly will not extend to his own uninsured interest on board. But if we confine this provision of claiming contribution to a case of double insurance as generally understood, that is to a case where the second policy is applied to an interest already covered to its full value by a prior policy, all the mischiefs of what is termed Lord Mansfield’s rule are remedied, the general analogous principles relative to contributions to partial losses are preserved, and the concluding provision relative to retaining the whole premium is made intelligible and sensible. Without this construction, what is the meaning or utility of this last provision ? Why was it inserted 1 . What necessity was there of saying that the insurers shall retain their whole premium, when there was aliment enough to feed their policy, except it be that their right to the premium should not be affected by a subsequent insurance upon the same premises which their policy covered ? It is plainly the provision reciprocal of that in the first branch, which is¿ that the insurers in case of a previous insurance upon the same premises, shall return the premium upon so much of the sum as they shall be by such prior assurance exonerated from. Mow, from what part of the sum by them insured could they be exonerated ? Certainly from no part except that already covered by a prior policy; and where there was a surplus interest beyond that covered by the prior policy, sufficient to supply the subsequent policy, the latter would not be exonerated from any part of the sum, and the sole contingency on which a return of premium was to be due, would not occur at the commencement of the risk ; and it could not occur afterwards, for the insurer is always entitled to retain the premium, where he has been at any time liable to the extent of the insurance for which it was given—no matter how much that liability may be subsequently diminished. This principle, that a return of premium for a short interest is never demandable unless the deficiency exist at the commencement of the risk, is an elementary one. In Tyrie v. Fletcher, Cowp. 668, where there was a time policy on a trading voyage, as in the present case, Lord Mansfield decided that where a risk had once attached, there could be no apportionment or return of premium afterwards. The rule in this respect is the same, whether it be a time policy or one on a designated voyage. Loraine v. Thomlinson, Doug. 585. If, then, this principle be preserved and connected with the proposition contended for, that the clause under consideration abolishes entirely the common law and common sense rule of rateable distribution of a loss, we should have a case which I think no parties to a policy ever contemplated—the insurer receiving premium on account of a risk which the insured has taken particular pains to exonerate him from. The admissions of the parties before the referee who reported the facts on which this question arises, as well as the universal usage, refute the proposition that subsequent insurers are not to contribute towards any loss till all prior policies are exhausted. Perhaps I am wrong in supposing that this proposition is contended for by the insured, or that they do not admit that the words “ without right to claim contribution from such subsequent assurers,” would not reach a case of partial loss, happening while all the original interest was at risk, although the amount of such loss should be less than the sum insured by the prior policy. But if this be so, it follows that the clause does not abolish entirely the common law rule of contribution ; that in the present case it existed in full force, notwithstanding the clause at some period of the adventure, and then the question occurs, who or what could suspend it ? I cannot see what power the owner had to suspend it by acts subsequent to the contract, or what motive he had to exercise the power, if be possessed it. Admitting, as I do, that on a trading adventure he could withdraw his own uninsured interest from the risk, does it follow that he could discriminate between the interests of the different insurers, withdrawing one and leaving another at risk—confining to particular goods policies that were over the whole of them—thus separating what the law had blended, and determining that risks which at one moment were equal, should by his own act the next moment become unequal ? And if the owner has this power, what motive can be found for his exercising it ? and what proof shall be required that he has exercised it ? The principle that equality is equity, is what establishes contribution for partial loss. Why should the insured be presumed to have violated this principle, when he has no motive for doing so 1 Bo far as his interests are affected by the American clause, it is indifferent to him whether the loss fall on all the insurers or on some of them. Under this clause it is not pretended that he could recover back from any the premium which they had received; for the risk is indivisible, and their policies had once attached. The stipulation to return a relative proportion of the premium for each month not attached is accidental, and forms no part of the American clause ; besides, it applies only to time that remains, after the whole risk is terminated. Both usage and authority give this construction to it. Hunter v. Wright, 10 Barn. & Cres. 704, was a case where the stipulation in a time policy for a year on a ship, was, that a part of the premium should be returned for every uncommenced month, if the ship was sold or laid up. It was held that laying up, meant laying up for the whole season, and where the vessel had been laid up for several months during the year, but was employed again within the year, the insured was not entitled to any return premium. But whatever construction be given to this stipulation, it should still be indifferent to the insured whether he obtained the return premium on the last policy, or rateably on all.

It seems to me, then, that in determining, as it is agreed on a]] hands it must be determined, that the American clause does not change the rule of contribution as to a partial loss, by all the interests on board, it must also be determined as a consequence that the common law principle of contribution is as applicable to all losses upon the common subject at risk, and to which the several policies have once attached, as it would be if the clause did not exist. In short, that every diminution of the insured interest, after the risk has commenced, is a diminution pro rata for the equal benefit of all the insurers ; and therefore the subsequent loss of a part only in value of the original value, to which the insurance applied, though it be the whole value then at risk, is necessarily in the nature of a partial loss, because it is in fact but a partial loss of the whole interest insured. That this was the construction given to the policies, by all the parties to them, is I think sufficiently manifest. The policies were, in all respects except dates and amounts, exactly alike—the rate of premium the same—a fact totally inconsistent with the material difference of liability now contended for. The loss was adjusted on the principle of equal liability, and so preferred by the insured as their claim against the respective insurers ; and more than all, the claim was compromised and paid by the subsequent insurers, on the principle on which it was adjusted by the broker. Perhaps the circumstances of the compromise with the Atlantic and Niagara companies, prevent the plaintiffs in error from availing themselves of the sums which they paid, notwithstanding those sums and the present judgment give to the insured more than their loss ; but the fact that these companies have paid on the principle of a distributive loss, furnishes the most striking evidence of the construction which all the parties must have given to these policies, and places the insured in the singular attitude of claiming for the subsequent insurers an exemption which they did not ask, which, because they did not possess, the insured has induced them to pay, and which it will not avail them now to have established.

In the conclusion of remarks already too extended, I will observe that the use of technical terms in marine insurances, which are not familiar to those whose knowledge of the subject is derived principally from litigations in respect to it, is apt to produce confusion and throw over the whole subject an appearance of greater intricacy and mystery than really belonged to it. Contracts for marine insurance are common law contracts, and, with some very few exceptions produced by established customs, are to be construed and controlled by the same rules that apply to other contracts with which we all are familiar. An insurance against loss by sea risk is substantially like an insurance against loss by any other risk; and if we apply to it the rules of contribution which are applicable to common cases of guaranty, we shall discover with greater distinctness, the principle on which different insurers, whose policies have once attached to the same subject, are afterwards to be treated throughout as co-sureties, notwithstanding their policies are of different dates. Taking, for illustration, the case of sureties for a public officer, or for the sale of property, where the security required is for a greater sum than any one surety is able or willing to assume—as where $20,000 is the whole sum, and the sureties propose to assume $5000 each—it is clear that the liability of the several sureties in case of loss would be exactly the same, whether they all signed the same instrument, or separate instruments of the same date or of different dates. It is sufficient that they all relate to the same responsibility or risk. Therefore, if a demand arise for the whole or any part of the amount for which the guaranty is given, each surety must pay an equal sum ; and if any thing occur to diminish the general responsibility or risk, it diminishes the responsibility or risk of each in the same ratio. Suppose, in the case put, of a guaranty for a debt, the debtor should pay half of it, or the creditor should z’elease half of it, neither the debtor in the one case nor the creditor in the other could say that the payment or z’elease should operate for the relief of one surety more than for another ; for the law, disregarding any such intention, however manifested, would apply it rateably for the benefit of all—for the surety first signing, equally as for the one last signing. Qn this principle precisely, in a case like the present, where there has been a diminution of the whole responsibility by the act of the insured, in withdrawing from the risk a part of the insured interest, the law will apply this diminution rateably to all the policies—to the first equally as to the last.

I have examined attentively the cases referred to on the argument, but find none of them that affect the conclusion to which I have come, except it be the remark of Mr. Justice Story, in The Columbian Ins. Co. v. Catlett, 12 Wheat. 394, which was purely speculative, on a state of facts which the case under consideration acknowledgedly did not present. I have therefore felt bound to treat the question as entirely open, and as one that has not been before judicially resolved.

My opinion is that the judgment of the supreme court is erroneous and should be reversed, and that a judgment should be given for the plaintiff below for only twenty forty-fifths of the sum lost by the seizure of the cargo on board at Callao, including of course the specie.

On the question being put, “ Shall this judgment be reversed 1” Senator Tracy and Senator Jones voted in the affirmative, and the President of the Senate, the Chancellor and twenty senators voted in the negative. Whereupon the judgment of the Supreme Court was affirmed»