Columbian Insurance v. Lynch

11 Johns. 233 | N.Y. Sup. Ct. | 1814

Yates, J.

delivered the opinion of the court. The important and leading question is, whether there ought to be a return premium of forty-five per cent, on seven thousand dollars, covered by the Philadelphia policy. The policy underwritten by the plaintiffs contained the usual printed clause, relative to prior assurances.

The definition of a double insurance given by Lord Mansfield, in the case of Godin and others v. The London Assurance Company, (1 Burr. 489.) will not aid the construction of the printed clause, as contended for by the defendant’s counsel. His lordship says, “ it is when the same man is to recover two sums instead of one, or the same sum twice over, for the same loss, by reason of his having made two insurances on the same goods, or the same ship.” His lordship could never have intended that twe insurances on the same ship, not for the same entire risk, was a double insurance; and if not, the case before us cannot be deemed one of that description. The case of Thurston v. Koch, (4 Dallas, 348. 1 Marsh. 115.) supports the principle that the risk must also be the same.

It must be admitted that the greatest part of the risk contained in the policy of the Columbian Insurance Company, 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 the part assured by them. If, then, the terms contained in the proviso of the New-York policy will warrant a return of premium, for the proportion of risk which that company could not be made liable to pay, it would, perhaps^ be desirable that it should take place. In order, therefore, to come to a correct decision, the question of apportionment or divisibility of risks must be inquired into.

The policy underwritten by the plaintiffs, is at and from Bayonne to the first port the ship might make in the Untied States, The one prior in date, and subscribed by the Philadelphia Com* party, is “from Bayonne to Neiv-Yorkleaving an opening for incidents which might have happened, making the plaintiffs lb able for a total loss; this would have been the consequence of a disaster while the vessel was lying at Bayonne, and for which risk the Philadelphia Company were not on the policy.:, -There is also a variance in the policies as to the port of destination ; the one prior in date, is from Bayonne to Neiv-York; the second is from Bayonne to the first port the ship might make in the United States;n so that if the destination of the ship had been to any port in the United States, except New-York, an exclusive responsibility might have been incurred by the plaintiffs for the whole amount insured. It is, in fact, a risk for an entire voyage, both at and from Bayonne, and the sum paid is in gross. There-is no part of the policy which will authorize a different com struction. The difficulty as to apportioning the premium, therefore, appears to me to be insurmountable. It is impossible to ascertain ihe degree of risk, without travelling out of the contract; or how much of the premium shall be apportioned to each different part—what amount for the risk at Bayonne, and how much as to the other part of the voyage.

I cannot discover how the plaintiffs ■ can be deemed to have estimated the difference of risk by their own act. They certainly had no agency in the first insurance* nor, for aught that appears,, had they any knowledge of it, when they subscribed their own policy They, consequently, cannot be bound by the act of others, any further than their own contract recognises that act, which contract must govern this case. The policy, therefore, can only be resorted to, and no part ot it warrants the construction, that the parties, in any event, contemplated a division of the risk. It must, therefore, |be viewed as one entire contract; and on such a contract the rule is inflexible, that if the loss happens any time after the commencement of the risk, there can be no return of premium. In this instance the risk commenced at Bayonne; no return óf premium, consequently, can be awarded.

The decision in the case of Bermon v. Woodbridge, (Doug. 75.} goes to establish this principle. The policy there was on the ship and cargo, at and from Honfleur to the coast of Angola, during her stay and trade there, at and from thence to her port or ports of discharge in St. Domingo, back to Honfleur. The vessel was captured before she reached St. Domingo; it was contended that the voyage insured ought to be considered as composed of three distinct parts, or voyages; 1. From Honfleur to Angola ;■ 2. From Angola to St. Domingo ; 3. From St. Domingo to Honfleur, and that as the voyage from St. Domingo had never taken place, no risk had commenced, and the premium ought, on this account, to be apportioned, and a return made Of that part which was paid to insure the risk from St. Domingo to Honfleur. Lord Mansfield, in giving the opinion of the court on the question of divisibility, says, it is an entire contract, and if the loss happen at any time after the commencement of the risk, there shall be no return of premium. Without, therefore,' violating this established rule in the law of insurance, it cannot'be done in the present case.

It is, perhaps, to be regretted, that the parties did not provide for it in making the contract, by expressly excepting prior insurances for the whole or any part of the voyage, and stating the amount of the risk at, and what it should be from, or establishing some rule of apportionment, so that the part covered by the prior assurance might be distinctly known and separated ; but as this has not been done, the proviso in the policy does not authorize the separation of the risk; and, consequently, no return of any part of the premium. Judgment must therefore be entered for the plaintiffs.

Judgment for the plaintiffs.