Davy v. Hallett

3 Cai. Cas. 16 | N.Y. Sup. Ct. | 1805

Per curiam, delivered by

Kent, C. J.

This is a case of a valued policy upon freight, and the valuation becomes a very material fact in the consideration of the cause. The plaintiff was owner of vessel, cargo and freight, and had them all fully insured, and the vessel being captured after the return voyage had commenced, he duly abandoned all the subjects to their respective insurers. The insurance was for two thousand dollars in value, of freight; and if, at the time of the total loss, there was an inchoate right to a freight to the amount of the insure anee, the plaintiff must be entitled to recover. This principle was fully established in the cases of Montgomery v. Eggington, 3 D. & E. 362, and Thompson v. Taylor, 6 D. & E. 478. In the present instance, there was, when the vessel was captured, an inchoate freight attached, equal to 2000 dollars. There was some freight already earned when the capture took place, but the amount of it becomes immaterial, as the valuation in the policy precludes inquiry into the value, and this valuation is to be adhered to, if the case be fair and honest between the parties, notwithstanding events in the course of the voyage, may render the loss even advantageous to the insured. Shawe v. Felton, 2 East 109. It is sufficient if there be freight at risk, equal to the sum insured, when the loss happens, and that some freight has been already earned for the insured. If we were to sustain an inquiry into the value of the freight, it would be doing away the effect of "the valued policy.

Seven objections have been stated against the plaintiff’s right of recovery in this case, but it appears to me that they are capable of a sufficient answer.

The abandonment of the vessel took away from the insurer on the freight, the spesrecuperandi, or the chance of an ultimate recovery of the subject; because, as between the insurers on the ship and freight, the claim of the insurer on the ship to the freight, must be admitted to preponderate; and this seems to have been the opinion of Lord Ellenborough in the recent case of Thompson v. Rowcroft, 4 East 34. The abandonment of the ship did not affect the plaintiff’s right to a proportion of the freight oil the return voyage. This was so considered in the case of Lenox v. the United Insurance Company, which was finally determined in the court for the correction of Errors in 1801; and although the court was divided in that case, and the majority of the bench did not concur in any opinion on the merits of the cause, I am not now disposed to question the correctness, and much less the authority of that decision. It Was determined in that case, that Upon abandonment of the vessel, the owner of the freight being also owner of the ship, did not thereby abandon his freight in toto, but that he retained a certain part to be apportioned pro rata itineris, and, consequently, to be carried down to the time when the loss happened. The insured therefore upon the vessel, as between him and his insurer, still retained his right to a ratable freight, and if he has had the precaution to have his freight insured, Í do not see why he may not resort for indemnity to the insurer upon the freight. As long as vessel and freight are re* garded in our latv as distinct subjects of insurance, the inconvenience that I have suggested, .which falls upon the insurer on freight, seems to be inevitable. There is in this case conflicting rights, and some one must yield. The owner of ship and freight, is authorized to insure each sf them distinctly, and the law must have intended, that each of the policies should have a full and effectual operation, according to the established principles of insur-anee. It would be to maintain a paradox to contend, that by an abandonment of the ship in such a case, the remedy upon the policy upon the freight was forever gone. One contract cannot be destroyed by the operation of another Contract inter alios. The insurer upon freight must therefore submit to a total loss in every such case, with the exception of the ratable freight which does not go with the abandonment. The abandonment of the ship, is an act in which he has no direct concern, and his contract tvith the insured contains no control of that act. The loss of any chance of recovery of freight is a consequence incidental merely, to the abandonment of the ship, and arises from meeting with the paramount claims of the insurer on the ship; and he must be left to provide against it by some special contract with the insured, as was done in the case of Thompson v. Rowcroft,

Another objection to the recovery in this case is, that freight, to the amount of 2000 dollars, had already, during the course of the same voyage, been earned and received by the plaintiff. But the present insurance was not upon the totality of freight for the whole voyage, but upon so much freight in that voyage, as would amount to 2000 dollars. The observation, therefore, of Emerigon, 2 Vol. 222, does not apply, when he says, that the freight received by the insured in the course of the circuitous voyage, is received on account of the insurer, if by perils an abandonment becomes necessary. This author is there speaking of insurances upon the whole subject for an entire voyage. The present case is analogous to that cited in 2 Valin 87, and 2 Emer. 39, 40, in which one caused an insurance to be made to the amount of 1000 livres upon goods, on hoard 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. It is the opinion of these authors, and the same is confirmed by Polhier, 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. To apportion the less and gain in this case, so as to make the gain of one moiety of the outward freight enure to the insurer, and the loss of °ue moiety of the homeward freight to fall upon the insured, would be an arbitrary rule, and would not give the plaintiff his jus| indemnity. It would be changing the legal operation of this contract, and making it an insurance of one moiety only, of the outward, and one moiety of the homeward freight, instead of an insurance to the amount of the valuation on so much freight pending, when the loss arose. The payment of the double premium is a pretty sure index to the intent of the parties, that the policy should attach on the outward, or homeward freight, according to events. The policy was to be valid and operative, as long as there was aliment to keep it alive.

With respect to the subsequent contract between the plaintiff and the insurer on the vessel, it appears to me not to have any influence on the present demand. It was not a waiver of the abandonment, but a fair re-purchase of the right of redemption of the vessel, for a valuable consideration, and I think the present question ought to be decided in the same manner, as if no such contract and substitution had taken place. The abandonment had been accepted, and the right of property in the vessel absolutely vested in the insurer.

My opinion accordingly is, that the plaintiff is entitled to recover as for a total loss, subject nevertheless to a deduction of the small ratable freight, which did not pass with the abandonment of the ship, to be adjusted according to the principles established in the case of Lenox v. the United Insurance Company, and such is the decision of the court.

Livingston, J. having been concerned, gave no opinion.