Marine Insurance v. United Insurance, 9 Johns. 186

Marine Insurance v. United Insurance

9 Johns. 186 | N.Y. Sup. Ct. | 1812

Per Curiam.

The question first to be considered is, whether any freight was earned, or became due to the shipowner, for if it be once admitted that there was such an acceptance of the cargo, as to entitle the shipowner to freight, the rule by which this freight is to be apportioned, appears to be settled with us, by the case of The United Insurance Company v. Lenox. (1 Johns. Cases, 377. 2 Johns. Cases, 443.) The principle contained in the final decision of that case is, that the freight, prior to the loss, goes to the shipowner, or to his representative, the insurer on freight, to whom it was abandoned, and that the freight earned subsequent to the time of the loss goes, on abandonment, to the underwriter on the ship; and it appears to be understood that his claim to such subsequent freight would prevail over that of the insurer on the freight. (1 Caines’ Rep. 578. 3 Caines’ Rep. 20. 251. 3 Johns. Rep. 55. 7 Johns. Rep. 432. Park, 6th edit. 228. 236.) *191The question, however, does not arise here between the insurers on ship and on freight; and if freight was due in this case, the plaintiffs would be entitled to a ratable proportion, and no more. But no freight was earned in this case; there was no delivery of the cargo at New-York, the port of destination; the ship was shipwrecked and lost, and the consignees of the cargo, as shipped from Halifax, and not the shipowner or his agent, saved it and brought it into port. The earning of entire freight is not pretended by the case, and the claim is founded wholly on the acceptance of the cargo at Halifax. But there was no acceptance there on which to raise an assumpsit to pay freight. After the vessel and cargo had been libelled by the captors, they were redeemed by the house of Forsyth, Smith & Co. on appraisement, and security given for the value; and the cargo was consigned by them to Lenox and Maitland, of New-York, their own agents, to be delivered to the owner on payment of an indemnity. Wood, the owner, refused to accept of the cargo, or to ratify the acts of Forsyth, Smith & Co. There never was any acceptance of the cargo by the owner or his authorized agent. The act of Forsyth Smith & Co. at Halifax, was an act of necessity, done by strangers, for the best interest of all concerned, and without prejudice to either party; but there must be a voluntary and unconditional acceptance by the owner, at the intermediate port, to form the basis of a new contract to pay a ratable freight. (10 East, 376. 526. 2 Campb. N. P. 466. 1 Condy’s Marshall, 281. a. note. 3 Binney, 437.) The acceptance of the net proceeds of the cargo by the defendants, formed no ground for a claim for freight. These proceeds belonged to them, as insurers of the cargo, after paying a total loss, and there was no lien for freight attached to that cargo. The insurer on the cargo has nothing to do with the freight of it; and it would be a most forced construction to deduce a promise to pay freight from the acceptance by the insurer of the salvage or remains of the cargo.

Judgment for the defendants.