Murray v. Columbian Insurance

| N.Y. Sup. Ct. | Aug 15, 1809

Thompson, J.

delivered the opinion of the court., There must, I think, be a return of premium in this case, on the ground that the policy never attached, and of course the underwriter not exposed to any risk. It is impossible to say, that a voyage from Madras to New-York is the same as a voyage from Calcutta to New-York. The parties have stipulated expressly in the policy, that the adventure is to begin, at and from Calcutta, and We have no right to substitute any other place. As this was an insurance to commence abroad, unless the underwriters knew something respecting the outward voyage, it would be very natural for them to require a representation, as to the situation of the ship, whether she was at Calcutta, or where, and when she was expected there, in order that they might judge of the risk.

In this case, the defendants being the insurers on the outward voyage, which was to terminate at Calcutta, wanted no information on this subject; they were possessed of all the information necessary, in order to make a calculation with respect to the risk, to which they were exposed. (1 Bos. & Pull. 200.) Park, in speaking of a risk, says, where insurance is made on the homeWard voyage, the beginning of the adventure must always depend upon the inclination of the insured, as expressed hi the contract, (Park, 23.) In the case of Graves and Smith v. Marine Insurance Company, (2 Caines, 342.) Mr. Justice Livingston, in giving the opinion of the court, says, when it is agreed that the risk shall commence from the lading of goods at a particular port, this is so far from being a nugatory provision, which we have a right to say means nothing, that the underwriter has a palpable interest in exacting a literal compliance, or to consider himself exonerated. The assured having a right to touch at Madras, cannot vary the case; this is not in the direct iter of the voyage from Calcutta to New-York; and if it was, I should not think it would be competent for the assured to select, at his pleasure, any point of the iter, and say the voyage insured shall commence there. Whether the risk was increased or diminished by the ship’s not going to Calcutta, may be uncertain; it is enough, that the parties have, by their contract, designated that as the place where the risk is to commence, and it is not competent for the court to substitute any other in its stead. The termini of the voyage, afford the surest criterion, by which to determine its identity. (1 Johns. Cas. 197. and cases there cited. 4 East, 130.)

The case of Hog and Kinlook v. Bogle and Scott, cited by the defendant’s counsel from Millar, (402.) has no application, even if we admit the accuracy of the case. The ship, there, was insured from the Frith of Forth, to Campvere, and she sailed from Dundee to the Frith of Forth, or within the precincts of the Frith of Forth, and then pursued her voyage ; she accordingly came to the place of departure mentioned in the policy, and from that time the policy may well be said to have attached. To make the present case analogous, the policy ought to have been from the Cape of Good Hope to New-York ; and ■then, perhaps, the policy would have attached on that part of the homeward voyage.

The opinion of the court, therefore, is, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.