14 Johns. 138 | N.Y. Sup. Ct. | 1817
delivered the opinion of the court. There can be no claim for a total or partial loss on the policy on the freight as the vessel was repaired in season, so as to be in a capacity to earn freight. She arrived at Newport, on the 19th of May, and a survey was made the same day, in consequence of which she1 was unladen, and immediate measures taken to repair her, so that by the middle of July she was, (as stated in the case,) in a good condition; and on the 28th of the same month she was in a situation to proceed to sea. Being thus seasonably ready to prosecute the voyage, if the owners had" been disposed to do so, the insurers on the freight policy were completely exonerated.
In Griswold v. The New-York Ins. Company, (3 Johns. Rep. 328.,) this court says, if the owners had consented, the plaintiff would have been bound to proceed and run the risk (against which risk the defendant had insured by the policy) of losing the freight, by the loss of the cargo, in the course of the voyage, or of earning freight, by its safe arrival or delivery at the port of destination, without regard to the state or condition of the
The decision in the case of Saltus v. The Ocean Ins. Company, (12 Johns. Rep. 107.,) appears to be, in some measure, relied on by the plaintiff’s counsel, but it does not militate against the principles which must govern the decision of this cause. On an examination of the report of that case', it will be found that the situation of the vessel, and the consequent duty of the master, was the important inquiry. The question -was, whether the master was bound to find another vessel, to carry the goods to the place of destination, elsewhere, out of the port of distress, or out of a port immediately contiguous , and it was held that the captain was not obliged to travel sixteen miles, the distance between Kinsale and Cork, to procure another vessel. The counsel for the plaintiff attached too much importance to the remark made as to the situation of the cargo, and its re-shipment. It was mentioned, merely incidentally, as questionable, tvhether, in consequence of the peculiar situation of the hemp, the master, who acted in good faith, admitting that it would have been his duty, with an ordinary cargo, to procure a vessel at Cork, would not have been justified in not procuring one. The observation was not necessary, and might have been omitted; but it affords no ground to infer that the court meant to decide that a damaged cargo, at any time, would authorize an abandonment of the voyage, so as to entitle á recovery on the freight policy, where an opportunity to earn the freight had existed, or on the cargo policy, notwithstanding the memorandum. On the contrary, the principle cannot now be questioned, that the fidelity and vigilance of the captain," in the course of the voyage, without regard to the diminution in value of the cargo, where thé articles specifically remain, is the correct test as to the claim of freight on a policy like the present. In this case, the vessel was ready for sea, and the freight might have been earned; but it has not been done.- This must be deemed a sufficient protection to the defendants, as underwriters, who cannot be made liable for the freight, because the deteriorated state of the cargo rendered a sale necessary.
No claim can be sustained for a total or a partial loss on the cargo policy. It consisted of perishable articles included in the memorandum, and it was not lost, excepting the articles thrown overboard to lighten the ship. The defendants, there
The plaintiffs, however, seek to recover for a total loss, on the ground that the corn was deteriorated to more than a moiety of its value, but the rules applicable to a technical total loss, do not apply to this cargo. It consisted of articles within the memorandum, by which the underwriters are exempted from all average loss, unless general, so that if there was a technical total loss of the cargo, the defendants would be protected by the memorandum. What shall be deemed a total loss within the meaning of the policy is the important inquiry. On this subject the courts of K. B. and C. P., in England, are somewhat at vanance. In Cocking v. Fraser, (Marsh. 227.,) Lord Mansfield held, that there was no total loss of those articles as long as they specifically remained, but that there must be an absolute destruction of them to make the underwriters liable. In Dyson v. Rowcroft, (3 Bos. & Pul. 474.) the court of C. P. held, that where the cargo was so deteriorated as to be worth nothing, there was a total loss, although it specifically remained. We have adopted the doctrine of the King’s Bench. In Le Roy v. Gouverneur, (1 Johns. Cas. 226.,) it was held, that there must be an actual total loss, as distinguished from a technical total loss, in order to make the underwriter answerable. In Magrath and Higgins v. Church, (1 Caines’ 212.,) the above decision is sanctioned and enforced; and it is there said that the memorandum prevents the loss from being total, unless the article has been burnt, sunk, captured, or otherwise completely destroyed. This case also shows that a total loss, by reason of the loss of voyage, does not apply to a case where the cargo consists of articles within tie memorandum. In Cocking v. Fraser it is said, that in common cases where the voyage is obstructed, and not worth pursuing, it is a total loss, but the memorandum goes on the idea that the insurer is not to be liable for any damages, however great, while the subject exists. In Neilson v. The Columbian Ins. Company, (3 Caines’ 108.,) it is said, that so long as the corn physically exists, there could not be a total loss; and, though good for nothing, the underwriter was not liable, but projected by the clause in the memorándum. From these cases, it is evident that the plaintiff can*
It appears, that on the 30th of Jlpril serious apprehension was entertained with regard to the situation of the cargo; for between that period and the 4th of May, the sjúp, by the violence of the gale and sea, was knocked down upon her beams, and the leak in the stern was discovered, the masts were cut away, and the ¿rudder carried off. All this took place before the articles were thrown overboard. There are no reasonable grounds to that the injury to the cargo was the necessary consequence bf the jettison. The defendants, therefore, can be made liable for no more than their contribution or proportion towards the for which amount, on being ascertained according to the stipulation in the case, the plaintiff is entitled to judgment.
Judgment for the plaintiff accordingly. .