*1 OF THE UNITED consis- own as to vindicate opinion my wrong, tency. Columbian Co. Ins. Certificate, that the matters set forth defendant’s Catlett. are
pleas sufficient to bar the action* plaintiff’s
[Insurance.] Insurance Company, in Error, Plaintiffs Columbian Defendant in Error. dollars, 10,000 A policy for upon a at and voyage from Alexandria Thomas, Indies, St. ports and back two in the West ' States, port her discharge, upon in the United all lawful goods merchandise, laden or to be laden on board the Sic. be- ship, the adventure ginning upon goods said merchándise from Alexandria, tlw until the continuing at the same said lading arid Thomas, safely goods landed at St. &c. merchandise shall insurance, tKe States aforesaid United upon every suc- an taken board in cessive the course of the voyage out and home, a cargo, so as to cover retúrn the proceeds risk of the (cid:127) cargo. sales of the outward 10,000 an Such a covers insurance of dollars during the whole home, long so. as the voyage out and assured has that amount of board, without regard to the property portion bn fact of a of the safely original cargo having landed at intermediate before the loss. in the of the Where course outward voyage, and before its termination, separated was permanently from the ship by the total latter, of the cargo being perishable nature, its wreck value, injured its though half became necessary to sell it, prosecution the further with the same ship or car- held, go impracticable: became that this was a technical total on account breaking up voyage. deviation, a delay
Whether particular port at a constitutes a depends usage of trade with reference to object of selling the cargo. Where ports different are to be for this visited purpose, the has a right sell, owner to limit the at the master price which extent; a reasonable particular delay and a port, if bonafid> su IN COURT CASES SUPREME' THE deviation, oc- though purpose, made for that does not constitute casioned this restriction. Freight hands of the is not charge Columbian Ins. Co underwriters, or not. whether the assured is owner ' v. Catlett. n 'Mr. *2 This Webster and Taylor cause was Mr. argued by 3d. March error, for General and and plaintiffs Attorney by
Mr. Swann for the defendant in error. Story of Court March 9th. Mr. Justice delivered opinion the District Court of This is a óf the Circuit writ error Columbia, of at Alexandria. sitting insurance, dated of
The was action upon policy original 1822, í Columbian-Insu- the 6th of whereby February, thousand ten dollars, rance insured the plaintiff Company Thomas, lost lost, or and to St. at from Alexandria and two Indies, other back her port in the and West ports of lawful kinds Statesj all in the United discharge upon board the laden on merchandise, and laden or to be goods called the adventure Commerce, &c.; ship beginning at loading the said and upon merchandise goods Alexandria, same until the said goods continuing Thomas, &c. and merchandise shall St. landed at safely The States. to be va- good? United merchandise lued, contained as interest may appear. risks; and the on was three and three premium agreed usual cent, cenf., half return for each per per port quarters no loss are There used attempted,and happens. pro- will be hereafter commented on. policy, visions in the declaration loss breach is a total alleged by pe- seas, with usual rils averments of notice and non- payment. was had issue,
The trial a verdict upon general 10,000 dollars, found consent for the for sub- plaintiff, Court the demurrer evi- ject opinion filed in the dence case. It was farther agreed, be the Court, should was not opinion that the plaintiff insurance, the full entitled recover amount of the entitled to an then a reference ascertain average or to verdict average, the amount of the modify 385 THE UNITED OF auditor, sum, should he as to made other respect reported sum finally for the should given judgment ' Columbian however, to the Court, excep- and confirmed sübject, Cp. Ins. on that sub- Court tions of either to any opinion party Catlett. and, made, ject. accordingly reference the; its sn auditor’s pronounced coming report, $7,656 arid for opinion, plaintiff gave judgment cents, October, interest, with from the 14th evidence,
From the demurrer to ship appeared, sailed from 14th of Feb- Alexandria on her about the 1822, 2,297! board barrels ruary, having cargo flour $16,887 .cents, of the invoice both price owned On March being by the.plaintiff. 21st. she arrived with Thomás, her St. safety having met accident; and she continued at that until 30th of May following, purpose her car- selling and for no other cause. the master, go, During period who also sold retail 509i barrels; consignee, being *3 dollars instructions, barrel,.and limited,.by eight per for able to of the residue the procure price being on the 31st of he sailed cargo, May Cape Haytien it, had also on board some doubloons, to $480, amounting the of of former sales. He the proceeds part might Thomas; $7,50., at from to $7,75 sold his whole at St. cargo The of flour at Thomas, barrels sold St. 509| according 99, the amounted to $3,512 the value price, invoice leaving board, of the on exclusive of the doubloons, at the time cargo of the invoice, from port, according at'$12,328 sailing 25 cents.
On 6th of June the with her the ship, arrived cargo,1 qff and the Haytien, captain shore, on Cape having gone the took in, too far and was stretching ground wrecked. of this 155 of disaster, barrels flour-were to- consequence were 1,633 shore, on lost, got without tally part injury, was sold. greater damaged, whole part The gross of at sales was Cape Haytien amount $9,391 cents, 34 expenses salvage, including sales, commissions cents; the $4124,72 at- proportion captain’s expenses 78 on the Of taching cargo, cents. proceeds $285 Von. XII. 49 CASES THE IN
386 SUPREME COURT sa^esa* the sum of $4,953 89 was Cape invested Haytien, i 827. coffee, was where it shipped Baltimore, produced 40 on,y cents. The a claim makes plaintiff. $3’517 CIn»mCoaU of the á $2,104 cents, outward as cargo proper from the deduction proceeds. fol- As soon as he sent plaintiff heard of the date letter Insurance under lowing Company, from J a letter Gentlemen, 5th 1822: received uly, having the ship me that cáptain M‘Knight, (the informing master,) of the lost, I abandon the Commerce proportion &c.” in. office interested your Respectfully, exhi- were also and the captain’s survey ship, protest, aban- bited of August. on the 14th the Company directors, but finally accepted donment never .was them took between place plain- sundry negotiations which, tiff, however, led no effectual arrangement. in this first true upon question arising Construction Is as to the insured. itself construction policy voyage tohtbePvoy- insured, ¡t age time 6f from the insurance original cargo only upon until its final or is it an insurance upon loading discharge, which is taken on board in the course successive every cargo, a re- home, so out and cover risk sales the outward turn defendant in behalf of the risk The argument of the terms car- original upon policy only applies The terms are, at Alexandria. laden go, “at and from Alexandria to St. Thomas and voyage, Indies, in the West and back her two ports States,- all in the United lawful goods discharge &c.; to be on board the laden be- ship, mercbandise.laden and merchandise, said goods adventure ginning Alexandria, and the same continuing un- *4 lading shall and be landed at til the said merchandise goods safely the United States It is Thomas, St. &c. and aforesaid.” tie origi- words adventure to the up those supposed Alexandria, the risk is at- at because shipped nal cargo tp same continue on the at same port, on tach &c., St. Thomas, at and the States. landed until United safely lead strict grammatical might a construction very Perhaps con- But never been policies such a conclusion. UNITED OF THE ' The instrument manner. in such a strict rigid
strued \^27: received and has form, always in its loose itself somewhat of the nature to the with reference a liberal construction y. is the What intent of the parties.' and the voyage manifest face po- ?. It is nature voyage upon not only all lawful insurance goods, licy plainly an the home- Indies, but to the West the outward voyage must underwriters ward to the States. The United voyage the nature assured, to know be with the presumed, equally trade, course of such a It is for the voyage. purpose barter, for of the or outward sale exchange cargo, by could shut If we India of West productions. return cargo itsdoes, fact, of this to the belonging, our eyes knowledge na- commercial policy history intimately ih the laws, whole evidence itself, as in its tion disclosed furnishes abundant of its true notoriety. proofs p0ncy of the of the is to be meaning policy sought an-exposition ^, course and to this known words, usage reference usage must be India trade. The parties supposed West of their basis tacit engage- with a tract adoption under consideration of the clause object ments. as intended only point thus rationally expounded,
[he and términation of the risk commenc menfc e time and at different successively, periods voy- on goods, It would be the cargo. argu- age, pushing constituting extent, to a unreasonable ment suppose most on a contracted for risks homeward voy- deliberately parties to the known which, course according on goods age, commodities, nature not, the. were trade, very to be back to the be, brought intended and could United was for the whole We are States. opinion, policy return round, on and covered taken board' any West Indies. This designated at ports any bar, where a cases cited at the goods not like -the from adventure beginning at and port, particular taken thereof, not to held loading goods cover of in- cases Those are all aii port. board antecedent surance, known unaffected by passage, single of the par- the intentions to explain oftrade usage course ties. *5 CASES IN'THE SUPREME COURT next whether Thomas at St. delay a seventy as to constitute days unreasonable deviation. in the. Without delay unreasonable question, any
^n^Co10 this ordinary avoids progress voyage deviation, account. But what such a will constitute delay of the and depends upon usage nature voyage, Whether to wait trade. It a maybe very delay, justifiable con- Thomas* .business, and sell if that course of retail, be the port, stituted a de- vtation. such in a when would be inexcusable requiring delay voyage into no such entering authorizing delay. parties, to be insurance, the contract of are go- always supposed verned in the the voyage, premium by ordinary length therefore, which is and the course the trade. That delay, voyage according necessary objects accomplish made, if bona cannot trade, be ad- to the course fide the insurance. In the mitted avoid it is that the at St. Thomas was stay solelv for the proved, other cause. selling cargo, But, purpose that a sale have falten said, at St. might Thomas place if the whole orders of the owner had not con- a direction master the sale at St. Tho- tained limiting and that this dollars, mas to the eight limitation price ; unreasonable sole cause delay, was the .was under the to have sold at circumstances, master ought, or have a lower elected immediately another price, go of a different In Wre are almost opinion. every port. nature, of this where different undertaken ports-are trade, for the visited seek mar- to be purposes for the kets, it is almost universal owner to limits prescribe Such limitations never hitherto to the sales. of price insurance, or the of. rights vary supposed be, master, it. cannot entitled under party is .bound to sell at whatever only, sacri- single port go as he at fice, soon within port, arrives pe- unload, he reload sell, and at riod which return must, from the of the case, He nature have a very cargo. If at a market, he bad arrives subject. discretion . to wait a time for reasonable a rise of
must have and to market, to make effect inquiries, try suitable the whole partial sales. He not limited bound sell and. THE UNITED OF thus frustrate sacrifice, and be the once, whatever exercise in short, must adventure. he. projected interest discretion for the cases, a sound
this, in all other exer- concerned; reasonably it be fairly and if . of all *6 secured not to be deemed cised, injurious it ought rights interest of It is as much true owner policy. as it all time, and with in a proper despatch, sell reasonable should, sure, if the be is for the To owner underwriters. sum, to an or the should limit the master extravagant price all reasonable of a after of'mar- expectations delay change such ket were extinguished, circumstances might properly to a infer to a be left deviation. jury delay amounting .a remarked, And as former again,, point, may here, that underwriter is to know the every presumed ordinary trade, and to course of accord- regulate proceedings ingly. .
But,
said,
that
is no sufficient
there
evidence of the
,
in
It is
case.
to be
trade
remembered
usage
present
this is a case
before
that
which comes
this
a de
Court
to evidence. The
was not
murrer
bound
have
plaintiff
in the demurrer without
defendant’s
dis
joined
having
admitted,
record,
fact
which the
tinctly
every
evi
on his
dence introduced
behalf
rove;
conduced to
and that
p
was made,
when the
without
on this
joinder
insisting
preli
is at
the Court
to draw the
minary,
liberty
same inferences
in favour
which the
plaintiff,
.of
jury might
drawn
from facts stated. The
evidence
taken most strongly
demurring
party
evidence. This
in
Court,
settled doctrine
this
as
in
recognised
Pawling
States,
Cranch's
(4
United
and Fowle
Rep.
v. The
219.)
Common
Alexandria,
Council
(
case. cases of trade very and course are that .the usage dantly prove, be unreasonable whether delay material determine not.a is, whether has been a there total next loss. Whether there a two first, into distinct considerations; this divides itself
And of the cas"ecreated a abandon- the facts whether so, loss; and, a whe- ment as for technical total secondly, the assured. ther there legal there is not the first much room for point Upon difficdlty, not for single .The insurance the round passage, I’he home. in the course of out and cargo, voyage terminated, it before was mas- (for outward voyage, to another ter had still an election go arrival after separatedirom Haytien,) permanently Cape was a of the latter. perishable the total wreck cargo', accident, much does not though injured appear ; of one half its and it to the amount to be value was liable was a There farther deterioration. to still then, necessity, sale at immediate Cape for an farther Haytien, pro- or that secutibn became ship, frustrated. completely It was Under such impracticable. that, circumstances, we are opinion, according the es- law, of the commercial doctrine was a dear- tablished loss, on total account technical case breaking up much It is a than stronger- that of voyage. *8 v. The Insurance Dorr Mass. New-England Company, (4 Harrison, or Hudson v. Brod. (3 232.) Bing. 364.) Rep. & held losses total. where there, then,'a Was. due and abandonment? legal' The . as Question (cid:127) of abandonment admitted to have been sent in letter due. ^nt-abandon'' Mar, Hopkins, Salvador v. 3 1707. Vallance v. Burr. De 1 Campb. Rep. Ongier Jennings, Campb. Rep. 505. n. 182, 183. Phillips’ Insur. CASES THE IN- SUPREME COURT and, season, -terms, in its it amounts to a of the pro- .cession no- circumstances, Under it would furnish pérty. ordinary, arises The doubt. 'suspend difficulty which uPon ^ns^Co311 (cid:127)’ by. from two clauses in the of used particular form “ of case One is in terms: In company. following ad- loss, the same shall be after sixty paid days proof thereof, the amount deduction, without justment except is, it if then premium, unpaid.” other; in- abandon agreed, the insured shall not hereby notice until surers have sixty given days having after elapsed do, the loss event to them of intention of or entitle the The suit was insured may thereto.” until after and twenty days more than one hundred brought letter of the had made by elapsed from abandonment ,5th of No arises on this head. therefore, July. question, But notice must, of argument abandonment terms of the the actual abandonment precede policy, no notice that, either days; sixty1 has been no of intention or there at all such been given, at the letter actual' abandonment end that period. of must as a of July of either notice aban- operate of the Sth abandonment; former, then donment) or actual if the there of notice; act has been abandonment' following up soon, then it was made too latter, contrary if the Such the stress of the .stipulation. argu- terms ment. clauses, it to consider material construing,these parties, prin-
intention expounded by general to the contract. these princi- By law applicable ciples assured, season, an due ples, loss, reco- total an technical immediate acquires He is not bound underwriters. against wait. very their refusal signified acceptance until they valid, . if bound abandonment, nor, oe is he accepted, an commence immediately wait payment, is, in them. first clause action object loss, obtain a the case undisputed delay payment its But, from very after the for sixty days, adjustment. has been terms, can where there only apply n proof loss an, If and also proof adjustment. *9 393 UNITED
OF THE offered, as in case of a' 1827, no adjustment lias been ma^e, cases has been loss, clause supposed, tbe disputed then, is, underwriter to The bar, cited at the apply.a true object understood to waive privilege. to of abandon second clause the absolute right postpone enable until to ment notice of the days sixty after as. the ac to deliberation underwriters have time for made, it, or to avail them -when
ceptance rejection of for It all selves of intermediate events their benefit. assured, after a to
wholly consider whether unnecessary retract, notice of can if the underwriters abandonment, whether, if, to it; choose instead insist upon accepting notice, abandonment, a mere he tenders unequivocal accepted within the sixty days, underwriters nevertheless, has, a. it, if, within" withdraw events turn in his same period, up favour. The present case-does facts to such a leading question. clause is introduced into the manifestly underwriters, and not of advantage the assured. there But necessity giving strict any very interpre it to tation to the fair of its accomplish objects provisions. bad If Catlett written letter Mr. company, stating them, that he loss,.and notice to gave them of thereby abandon, his intention therein, and had then that at' added the, the termination of sixty days were deem that ap letter absolute abandonment, there could abe scarcely doubt that such letter would have been sufficient satisfy clause. would requirements give under writers full benefit written, of it. If he had at the same letters, time, two intention notice of his containing abandon, and the other that he abandonment, made an tajee effect the end of notice, after sixty days same legal result would seem to clause justified. does not insist upon an being made abandonment pre sentí, by,an instrument dated at the expiration sixty, days; only law, not, shall obliga-, point of. Robinson, Vos v. 9 a. Johns.Rep. Maryland 192. In Alleyne surance Johns. Company, Rep. Harr. & Vox».,XII. . CASES THE IN SUPREME COURT a94 as an seems This t°ry until period. üs a fair rational intention exposition *10 July clause. In what does of the 5th the letter respect differ from stated ? it written results above legal Catlett, of the po- reference known language stipulations now been and it must as it must
licy, have interpreted understood, and, indeed, to the subsequent proceed- looking was understood by we itas ings may company, say, both Neither them seems to acted have parties. other, that formal act aban- or more supposition, donment," in- was The letter of' an notice necessary. gives abandon, because, terms, an ac- tention in its includes . it abandonment, in it tual the clause a tacit reference abandon, as.a deemed must be policy, notice time, declaration it that shall same a and,' operate at the in the as soon as law it by an abandonment In may. abandonment, it was act continuing our judgment, absolute the end of the It was became sixty days, in take presentí, effect in Neither futufo. notice, the form of the nor abandonment, is prescribed (cid:127) the,clause. be in in one or two They may instruments-7 terms, inbe direct or fair and natural infe- they not how or rence. matters are given executed; it they fact, sufficient,- have been point or given is, executed. Our opinion accordingly true n interpretation of this last clause the letter of policy, the 5th of awas sufficient notice of an intention July that, abandon, and at the of the expiration sixty days, as an actual abandonment. operated abandonment, then, having duly made, Apportion- the next is, question that is to be arises how loss apportioned. The argument is, on behalf of the that as Company part the cargo Thomas, the landed at St. amount risked-by is to be them their of the diminished so proportion short, landed. loss is now be made up them with reference board, whole value when the risk attached, first and not with reference to the value on at the board time of the it ex- notwithstanding ceeded the amount insured. We are of a different opinion. We think intent and the true co- object of policy m>. UNITED STATES.
OF THE (cid:127) 10,000 the whole dollars during voyage án insurance ver home, assured had that amount of as the so out and long St; for a This is not policy on board. property Cj^m^an the argument which case might ap- justly Thomas only, -two other outward ports But policy . ply. homeward voyage. and also for the The. language (cid:127)voyage, 10,000 insure dollars that the underwriters Alexandria, two ports at and West In- dies, States. the United premium and back to ap- cent, half for a is to per accordingly, be returned portioned not used each attemptedand contempla- is, that the .premium should manifestly tion of parties full sum round insured,and voyage upon during paid the full benefit of the insurance, the assured should 10,000 dollars on board. The as he had interme-' long ihe of a course landing portion diate *11 cargo of in the the immaterial understanding wholly sufficient to cover' value on board was as so the. long parties, Clause, in If usual in eastern the policies the insurance. the States, insurance, as of had been here to incorpora- priority this, insurance, as the ted, and had been subsequent there of extent the the attached;to must have.first policy, prior If been a the whole there had insured voyage. sum during form clause, it insurance without such might any subsequent various, the a case for contribution underwriters: among loss, affect the of in no the assured. rights shape would in therefore, must be the between the apportioned' parties the insured .bears to the which of sum' amount proportion ioss, at the time of the as dol- is, 10,000 on board value 12,328 dollars. ,to lars bears is, the tji whether the freight Question ,be for outward
The next question as from the salvage, deducted allowed the be Voyage well as owner the ship who was assured, cargo. auditor is not the and the reported by disputed, amount it is a the whether the charge upon controversy fact, In of no freight of underwriters. point the hánds reason, for the plain in this case- could payable or could, and there owner-of the there- ship, assured was the its for or the the same. fore, lien upon be varied of supposed law But in point SUPREME IN THE COURT CASES . would for be a circumstance; charge if proper a third were owner of the ship, person on the salvage, Columbian jn it is no assured, hands there reason why allowed is owner. We not be when assured should As law on this settled'. consider point conclusively of owner of the the owner and the cargo, between ship tías a lien all which former for pro, or him, a full due and whether be payable becomes is a But charge upon rata freight. do not, event, underwriters whether of
which loss, or salvage, undertake partial the owner order obtain the indemnify cargo. owner, when hands become may salvage, the underwriters to for .the amount pay necessary lien, have a as it they freight, pay any other created the act of the owner charge cargo. this does riot or But nature extent of the change respon underwriters. As between themselves and sibility assured, to deduct the amount paid from the as mo manner, to recover it in ariy the use the latter. This was ex ney paid doctrine Bench, held the Codrt of in Baillie Mo pressly King’s Ins. and was confirmed digliani, (Marshall. 728.) fullest Court, manner in this in Caze the Bal Richaud v. & Cranch, timore Insurance Company, (7 358.) only objection Objections ft remains to notice an made to the form ^ J form the declaration, .said, It"is there is declaration. that' no averment in* declaration, proofs loss-were any preliminary .of- nor fered any promise Company, pay sixty after such terms of the proofs, according days *12 policy, notice, that nor abandonment, to the given under- or. It was, writers. in wholly avej our.judgment,, unnecessary Istte facts. The the notice thereof are hut matters evidence to establish- the fact a total- n which loss. is in averted the expressly declaration. As to of; other the it .part a- objection, proceeds upon mistake of the terms declaration. au There is express aver- ment, after the loss,, allegation of the on, Company, at,&c. &zc.had notice thereof, and means be- thereof came liable. in &c. and thereof consideration promised, STATES, UNITED
OF THE due, sum according would plaintiff,the that they pay J827. insurance.” This the said id the tmor and policy of effect according pay sufficient averment promise course general and conforms of.the .stipulations policy, in of precedents pleading. Court, of this that whole, it is the opinion
Upon below, so far as it allowed freight judgment erroneous, dollars assured is ought to he reversed; that, all other it ought respects, affirmed.
Mr. Justice I with Court in all concur Johnson. cause, decided in relates points this which except On that it is freight. have misap- my impression, they case, on which prehended the and the doctrine question, it so, turns. If it is not to if it should be wondered at ap- pear decided the authority adjudica- upon tions which have ho case. bearing upon the cause, arises from great Catlett’s disadvantage form in It raised presented. which question of this comes dnd confounded adjustment up matters, blended with well bewilder those who are more with conversant special than with pleadings, To .statements. mercantile give this a fair chance should have come lawyer, up action insti- tuted underwriters recover of owner ship mo- arose from of an ney proceeds abandoned cargo, remitted to the and had been owner. The questions on the would then have subject been distinctly present- wit, ed, to whether the had been earned, and whe- owner had not a ther-the set off against the pro- it. , ceeds of abandoned And who would then enter- snbject tain a doubt ? Would the owner have permitted over pay abandoned underwriters, and take his remedy shipper of.the No one can goods? such adoc- imagine trine. said, that the owner of shall,
throw the But the underwriter. there are such.cases, other interests always involved besides those *13 CASES IN THE SUPREME COURT °wner and underwriter owner of the The ship cargo. has his and is not bound to his lien on rights, forego ^0r absent, owner, and to freight, look to an or insolvent insurer, re- indemnity. agent master Catlett. ceive the well to re- as underwriter freight, agent'of mit the has to take care .salvage, bound, nay, right, of the interests of his employer. not, who It is thé owner of the throws therefore^ underwriter, owner but the freight ship, upon, It is rights. the fair his- unquestionable exercise then, thrown be
clear, upon lqgally freight may another, underwriters,, act even opposition must, ascertained, then, whe- the will of the insured. be It underwriter, thrown had the ther thus freight who has him, it from proceeds deducted upon' by having inAnd, or- insured. it from the can back recover salvage, will der to we examine suppose distinctly, the. been thus case has of a of a before the loss freight payment underwriter; is,' thrown before the have been realized of. remitted. n to his own owner, freight. and by'him applied what could insurer re- And on principle insured, be back, in such main- action cover ? tained that I am recollected, here be speaking must abandonment, aon in which of an loss, of absolute cases can earned. fotal a technical total but in that well ; earned .of be earned. It was disputed
known earned; and in this that freight, the argument, to cast loss abandonment sufficiency true, no,w It is the underwriters- underwriters, is decided. abandonment, not, ex- did not accept are now doing act, the salvage, they accepted press remit- the' salvage when claim.to they lay the-proceeds encumbered to Catlett. If do mean ted the re- claim to their withdraw them let freight, then remains mittance, possession Catlett lieu for freight. tó his cargo, subject The,case then, In which must, be considered
OF THE UNITED earned, and salvage both the ireight *14 to of the'latter remitted but the proceeds tb^ accepted; for The owner, ques- him retained freight. and by ship underwriter, who case, he, whether, in such a the tion will effect, to the freight,“can has thus been compelled, pay action, from form of the insured it, in recover ? abandonment of a valid The What the effect is “ to the the right freight here contended right pay true, in a to It sense out the is salvage.” applicable to throw the case, the insured has no right freight right abandon the insurer. implies positively indi- throw the the underwriter the right freight It is a if loss, him with a total and rectly. right charge wreck, from assert- insured has nothing only gets his him ed to their extent. rights acknowledged is convert a into to- right actual a technical partial loss. tal
There is technical total loss known law- familiarly I merchants, and which occurs without abondonment. yers are less in mean, where the saved than value goods is a between the complete analogy There freight. two is cases; in the latter expressly adjudged,' laid the best so down writers, the in- by elementary sured has a right apply salvage pay freight, Marsh. credit balance (2 588.) giving only Marsh. And underwriter.” this is (2 619.) precisely which Catlett contends for case. right results right apply unavoidably received and acknowledged consequences of abandonment.
Take the familiar case occurs ot time every day A war. vessel ; on the insurer captured by enemy it, abandonment, hears of tenders and it accept- Who, ed and at paid. would think.of period, making discount of from the ? It not been has earned; insured never was liable for it. But crew, her rescued her arrives voyage, safety, delivers her earned, Here cargo.
must he whom ? paid; the shipper, Certainly adventure, for he is divorced . from the and the much goods CASES IN THE SUPREME COURT 4UU if property underwriters as had purchased them. shipped I have abandonment; the case an accepted mentioned ^Ins^CcT” but the effect had, valid abandonment is same as if it Catlett, been accepted. bar,
In the case at did what of time tile transfer point ? interest place take at the instant when Certainly accident happened. the same effect board, as if the owner had insurer been on and the aban donment made at the moment the misfortune occurred. had not But then had earned; for it the liability and, law, aot insured; attached eye between him and underwriter, do more attach could on him bottom. than the By had then gone *15 abandonment, to it is as if it had the bottom. as to him gone situation, loss; law it a total it.in that places by declaring is, and the on this :hat he the books subject language to in worse situation than if placed the ought cargo bottom.” the Brown, had (Boyfield & 2 gone Str. et passim.) The insured never incurred the for the liability freight, ;did for the underwriters when the was earned, freight in insured. stood the the place show that a' the arguing for liability never freight did as attach insured between him and the under writer, have considered the transfer abandonment accident. But as to moment taking place further, effect law and consi goes ders the owner underwriter in the from the light commencement of the (Marshall, voyage. 2.) Upon 601 — this in the case of a insured and ship principle abandoned, the underwriter to whatever entitled freight In the afterwards earn. Mr. Marshall, she language “ the assignee insurer becomes legal owner, and, from all that time he is liable for her future outgoings, her all earnings.” entitled to future consequently, But if be earned why entitled ship, should hands liable for in his not the cargo remain instance is the in the, afterwards incurred'? Liability other. It is mistake altogether correlative of right vo call underwriter freight. this charging THE UNITED OF does the abandonment not dis- is, that affirmed proposition to which it for the freight, the lien charge Columbian Even in the insured. hands hands subject Co. Ins. unconditional; unlimited and owner, was not this liability Catlfitf. sea, not incurred, from in- (by damage perils salvage
ternal will goods decay,) pay is not bound the owner receive them. Of value, for himself; behalf he interest may judge only this that he must And when he does receive them . this pay. holds which Catlett out to alternative the un-
precisely derwriters. and, I-think, is a conclusive
There adjudica very strong, tion volume of the on in the third be found subject, Massachusetts it is Fotheringham the case Reports; Prince, vol. 3. p. are a; is to the
Wages what freight contingent fulfilment liability on the attaching only to, contract. In the insured referred had been vessel St. to a the United States. from Ubes discharge Cod, abandoned, but the She was cast away Cape and the wages, sufficient pay were to the underwriters. thus wages were remitted them, and compelled the owners were earned, pay underwriters, suit as well counting now brought received, had The Court money policy. were the underwriters refund mo- decided, that bound owner; and the is in adjudication wages ney paid for what is here contended for in behalf of precisely principle *16 in this Had the case salvage below. been re- the plaintiff underwriters, and Catlett his brought action for mitted his to recover it received and would freight, had money a.c,a'se with the on all-fours present. have been to decide that that point against It been supposed liablejbr underwriters, would be to make two insuran- them one it would that receiving premium; ..making ces upon cargo, and re- freight liable for both premium them on the cargo. only ceived said, is on the inconsistency that
But, it truly is in in favour of side; directly argument point njakitfg claim This is only this decision freight. n in- Von.m n CASES IN THE SUPREME COURT. liable on Catlett where he was his cargo, own insurer for the but is only, him lose freight making after freight it, and he had earned pay pockets underwriters into OotagJ- ‘ and, insured v, it, who had never therefore, could not acquire jt abandonment. another had insured Company in Supposp this instance, and Catlett abandoned to them, had can it be remit;* if the had doubted, been on the insurers the insurers on ted to the the freight entitled ? have recover it them so, would If it, for he was his own Catlett is entitled insurer on the we consider Whether him as freight. having.insured, it, his incontestible. having.earned But, it v. cases Baillie supposed; Modigli ani, and Caze & Baltimore Insurance Com Richaud doctrine. established pany, contrary appears it is too tome, much in placing confidence gene» indexes, notes, ral and and marginal misappre language op turns, this case the-mis hending the doctrine which take arises. hut a
We have nothing of that manuscript report case and Modigliani, Baillie one obviously the learn- made, whom the ed decision was little in- judge, very to his We it a debtéd mass of reporter. correct find order, without and thrown together without ob- principles, doubt, I make no which, the skeleton of very ject, a. which, correct had opinion; learned we the have furnished a it, would full whole of exposition of the qf But, as well that. doctrine as decision, Baillie v. Modigliani case of does touch- the present in that For, case, there was abandonment; case. France, was sold benefit rata pro and the owners wished freight, charge underwriters as a loss with the incident paid, capture. case arise did not there, could not arise does not in it comprise both loss, of technical total ingredients earned. ,what loss, That was a case of chose partial judge doctrine of of a about the case total say rnere be but dicta< would act of gratis charity, or *17 THE UNITED STATES.
OF to did if he ever utter to his learning, suppose, justice “ him, wit, loss, to In case to- to words attributed Columbian insured, insurer and tal salvage, as between Ins. Co. saved, abandon, or but in take owner either part Catlett. throw the underwri- can freight upon neither case ters have not him ; indemnify because they engaged it;” it, do that he had in to with and have against nothing in which it was mind the sense those words possible only “was, correct; could'in he could be the un- case raise personal charge derwriters, had where sufficient pay to their hands.” never come oh the sense, Exchange
In merchant every was incorrect. that he London his lordship could have told decision applicable To have obtained judge the learned have been cause, the should pro- question. the present a case of technical total as applicable to him pounded the freight. cover an- sufficient with salvage rendered language would then have swer subject equally books, lawyers, a language insurers, is earned, Where freight the in- merchants, and has a propounded, sured, apply sal- is, in so to the paymeiit freightwhich manv vage Catlett what contends in the words, cause.
I reasoned all that it have makes along assumption the vessel and whether no difference principle individual, the same different owned by persons, conceded; and, indeed, and even unquestionable, consider is insured, not, abandon the vessel after where ment, law, the underwriter owner eye and so distinct from owner. ah origine, & case of Richaud v. The Caze Insurance Baltimore Cranch’s the counsel (7 358.) Company, Rep. attempted distinction; it, draw a but the Court did not listen to and in {heir decision it as immaterial consider obviously them. before case of is that which is Caze Richaud relied fatal on as most the claim in the present of freight cause.; axiom, that as an me appears plain cáse, made it a themselves different andadjudged CASES IN THE COURT SUFREME *18 it to be no the No present claim. authority against one 1827. that Catlett could have retained for if no pretends freight <“n had earned. But this is the freight been express decision v.- the case'of Court in the Caze was Michaud; and there & Catlett. due, no of what frejgj,t the was' consequence decision “ “ t6 that it was no lien un- say, the or that upon cargo,” the could ?”
derwriters not The be made to pro- the pay freight true, was It of the most indifferent' position equally person. no is of of that decision consequence the bearing this case, to or wrong inquire were right whether in deciding they that no so deciding, was earned. freight have made ait different in an case from this indispensable * circumstance, shown, earning freight; plainly could a decide have had in contemplation in case which had is the freight been which earned, case. I believe of- that we line myself, were every . wrong decision; that it will not commercial stand the lest of law in three propositions down. that it lays was this: a case vessel and cargo belonging same owner sailed Bordeaux for this country. insured, not. was the vessel and her freight On cargo voy- France, Great Britain and there war between age, being she Halifax, and carried into then was captured having crossed Atlantic, and three fourths of gone her way course' of destination. was her abandoned, and ; both condemned vessel and but- appeal, was reversed as both. condemnation mentioned there was no as to appeal report, the case is defective in whether claims showing separate were filed for or the two cargo, included joint If (cid:127)claim owner. could question joint, arisen. if, But from the as seems probable underwriters, into hands of cargo passing several, were then a be raised whether claims was not concluded acquiescence plaintiff ju- of a dicial decision tribunal the claim against competent This would have sustained freight. against judgment Court, in this had him been there no obstacle to his recovering.' UNITED THE
OF insured sum accepted, theAs 1827. into the hands of the un- cargo got the proceeds paid, Columbian was instituted re- had that suit money derwriters, and Co. Ins. Had prefetted ship-owner. use ceived Catlett while in the lying the proceeds claim cannot there be doubt that admiralty, of the British registry him in the distribution of the adjudged would have claimants. several among money affirms
The three propositions opinion are, Richaud, of Caze & can the no circumstances insured That under throw underwriters, -the even abandonment. in that earned rata, That even freight, pro
cause. his That of on cargo freight the lien the owner
eould affect question. theOn first no one will point, pretend maintain the af firmative Losses aré total, either general proposition. total. an actual total loss no technically partial,'or Upon arise, ever can freight of there is no freight earn of the case is In partial never admitted in ad ed. this the full ; and of the justments import decision in a -in Baillie of case Gibson Modigliani, v. The Phil Insurance and some others. delphia Company, It is a charge at after the arrival their payable goods destination, and therefore, never admitted into of a adjustment partial The loss. cases total loss are of. kinds, two technical noticed; has before the one with, been the other without abandonment. It is that, not contended in these, even can insured throw the freight upon underwriters other wise than abandonment. It incidentally by shown, that this is not all, which the principle doctrine rests, insisted Catlett by therefore,, be may, safely which, conceded to case oI and all Modigliani, others these dicta are be found. is, principle owner his cannot, by abandonment, devest the lien which the ship owner in the abandoned.” That the goods un Jias derwriter takes cum onere, rule cargo which held —a sacred even against hostile Der in 3 Mohr (the capture, Robinson.) The law that the master bound pari THE IN SUPREME CASES COURT fails in his does, he duty until his should be so bound is. more in Why paid. any thg cagc tjje abandonment, transfer by 0f than in any losses, of technical ? class total tranfer arises v: exceeds incurred value where thing decided, that saved, it the sal* expressly right apply it is ; and dis- impossible draw a exists the freight
vage cases, and the cases of teehnb class tinction between ,.oss abandonment. total cal produced therefore, assertion, in- latitude The'full insurer, sured cannot throw freight upon the of the conceded without affecting right party its down, but laid case. The rule is rightly is mistaken. application assu third of the position dispose The same observations v ob Richaud, must be since it
med Court in Caze & is all im ious, that the lien ship-owner of the apply, right to the question. portant to hold the master out freight grows change whatever interest bemay for the freight, of the owners in it the act cargo. produced the second consideration proposition cause, s is not material &Richaud'1 in Caze as de it shows that considered themselves than further reverse present. a case very ciding I, that the decision there made am Yet convinced decision, *20 1 will a that was hasty a rata freight against pro that, if the a ever subject conclude hope expressing exa- it will and Court, this should come before pause again- decision, that without mine the doctrine prejudice interest of great which it is one involves since principles -world, undertake which, say, and on I will mercantile the reviewed, found a will be should be there if ever decision, and of and the deal learning vast authority it. to sustain little very decide, -the Court case which the
In the profess very rata was the charge of same Baillie v. cáse pro Modigliani, bar, without and the by and paid acquiesced question. STATES, 407 UNITED THE
OF whole, I clearer any opinion never was Upon rendered against than that the decision now life, my sustained of is not to be allowance in this adjustment, either by authority. principle Catlett. of was delivered the Court opinion [After ascertained, incor- was parties that the auditors report rect, re- of (by in some disallowance freight,) and required spects, application different adjustment; made for accordingly these points. hearing upon additional following opinion delivered was subsequently Court.] Story. of Mr. Justice former 15th consequence opi- March dion cause, delivered in this found it ne- parties the auditor’s cessary re-adjust in several report particu- lars not at the former Indeed, suggested argument. assumed that argument, parties the. report per- correct, toas the item We have
fectly except freight. examined the and are satisfied report, original 6,626 is entitled to recover sum plaintiff dollars and cents, with interest from the 14th of October, 1822, 10,000 which residue the sum dollars insured by note Company, deducting premium the propor- tion to the underwriters, belonging been received original plaintiff; judgment the Circuit Court is to be reformed accordingly.
Judgment. on, This cause came &c. On considera- adjudged whereof, tion Court, ordered there is error in so much of the al- judgment .as lowed to the said deducted from the the sum of two thousand and salvage, dollars forty-one adjudg- cents. twepty-five And it is further ordered ed, the auditor’s re- reformation report; quired by the disallowance aforesaid and other- wise, there is now due and to the said Catlett the payable sum 6,626 dollars and cents, with interest together thereon, from October, 1822, 14lh of said sum be- insured, balance ing 10,000 dollars sum after *21 408 CASES THE IN SUPREME COURT the amount of the deducting due the premium policy, 3,76 viz. dollars, and also the be- proportion *° die said l°ng‘ng Columbian Insurance viz. Company, ¶®”’ Comp31 2,997 dollars and 82 said Catlett; received the cents, Ruggles. and Court, to the amount judgment Circuit of the said 6,626 sum of cents, dollars and 18 interest thereon be and October, 1822, hereby from the 14th of be and said affirmed; and as to judgment, residue be remanded to is to hereby reversed: and cause to enter said judgment Court, Circuit directions with beloyv parties said Catlett the. accordingly: the auditor’s so far as report, to open respects liberty doubloons, dollars, the item for 480 cents 37 over paid captain item 719 dollars for, to be varied Circuit judgment M-Knight; Court as these items be found for either execu- parly tion, however, balance of granted immediately said sum of 719 dollars and deducting judgment, cents.
[Insurance.] Company, Insurance Interest General Plaintiffs Ruggles, Error, Defendant Error. happened, had a.loss was effected after though Where an insurance assured, having the master omitted to communi- unknown owner, having expressed nis information intention cate owner, and taken measures prevent to' fact not write known, for being avowed’purpose enabling of the loss insurance, in consequence ef which information owner to effect parties the loss had at the was un- not reached time faith, : having good derwritten the .owner acted 'Held/ precluded recovery on account the policy master. misconduct fraudulent