Livingston v. Columbian Insurance

| N.Y. Sup. Ct. | Feb 15, 1808

Kent, Ch. J.

delivered the opinion of the court. This was an insurance for an entire voyage, from New-York to the river La Plata, and from thence to Europe. The voyage was not divisible, and the risk had clearly attached on the whole freight, at the time of the abandonment. The charter-party gave an entirety to the contract of freight. The cases of Thompson v. Taylor, and of Horncastle v. Stuart, (6 Term, 478. 7 East, 400.) are in point, and decisive, that the risk on the whole freight had attached, when the alleged peril took place,

That there was an embargo or detention, arising from the act of the Spanish government, at Buenos Ayres, and that the same existed when the abandonment was made, is a fact, which I do not think is to be drawn in question, upon the consideration of the present case. If it was really a doubtful point, it ought to have been distinctly submitted to the jury upon the trial. The case, in one part of it, asserts the existence of the embargo, and we have no reason to question the verdict upon this ground.

These two points, viz. the commencement of the risk, and the existence of the embargo, being established, it is difficult to perceive any real objection to the plaintiff’s right to recover. The abandonment of the ship had no effect to destroy the right of recovery upon this policy. The court has already declared this opinion, in the cases of Davy v. Hallett,^* and Mumford v. Hallett.^† Freight is a distinct subject of insurance, and is to be considered as disconnected from the ship, in respect to the policy. Whether the abandonment of the ship deprives the insurer on freight of his salvage, or the hope of any indemnity, I need not say, although the better opinion is, that -it does. The effect of the abandonment of the ship, is immaterial. The plaintiff had a right to abandon in each case, and the defendants, by their policy, have treated the freight, as detached altogether from the ship. The plaintiff, therefore, calls for the value of his ship from the one insurer, and of his freight from the other ; and, whether the insurer upon the ship is, or is not, to account to the insurer upon the freight, for freight, which may be subsequently earned or recovered, is a distinct question, which is not now before us: That is to be left to be decided between those two sets of insurers, and the plaintiff has no concern with the question. For the reasons already given by this court, in the cases referred to, we must not confound the two subjects of insurance. The abandonment of the ship is not to be likened to a voluntary sale of the ship. It is an act arising out of the insurance, and imposed by necessity. To hold that the plaintiff may not abandon his ship, without destroying his remedy upon his freight policy, appears to me to be denying that freight is a distinct subject of insurance. It would be truly an anomaly in the law of insurance, if, when both ship and freight are separately insured, you cannot abandon the one subject, without thereby defeating your right on the other policy. But after the opinions which have already been given in this court, we consider the question as settled, and trust that it will no more be disturbed. The only remaining point is, upon what principles shall the loss, in the present instance, be liquidated.

This was termed an open policy, but whether a policy on freight, like a policy upon profits, (1 Johnson, 439.) must not, in all cases, where the value is not ascertained by the agreement of the parties, be deemed to be of the value of the subscription, we need not now inquire, since the charter-party has, in this case, fixed the entire freight at 18,000 dollars, of which one moiety only has been received by the plaintiff. He is, therefore, entitled to recover the remaining moiety, upon the ground of a total loss, and the verdict is to be adjusted accordingly.

Judgment for the plaintiff.

* 3 Caines, 16.

† 1 Johnson, 433.