1 Johns. Cas. 377 | N.Y. Sup. Ct. | 1800
In our law, freight is considered as a distinct subject of insurance. It is never deemed to be included in a policy, either on a ship or cargo. The different interests which form the subjects of insurance, are regarded as several in their nature, and independent of each other. From this single consideration, I think it follows, that an insurer upon a ship can in no event be liable for any damage or loss sustained by the freight or cargo which he did not insure, and e converso, in case of the loss of the ship, he can in no event gain by means of the freight or cargo.
The effect of an abandonment is merely to substitute the insurer in the place of the insured. It bears no analogy to a sale, which is an original and absolute contract, and at once ascertains and fixes the rights of the parties. An abandonment is no contract, but the exercise of a right derived from a previous contract contained in the policy. Its operation must, therefore, be regulated by the nature of the act, and the just construction of the policy. Considered in this light, I can discover nothing in support of the plaintiff’s claim to recover what he did not insure. Indeed, the rule appears to be sound and invariable, that on the one hand the insured can never recover more than an indemnity for his loss, and on the other, the insurer, on an abandonment, can never be entitled to receive more than the subject he insured. The plaintiffs insured the ship only, and they received the premium for that insurance ; they never could be liable for any other loss than that sustained by the ship, and of course cannot be entitled to claim any thing beyond the value of the ship, at the end of the voyage, for the performance of which they have ^undertaken by the policy, and [*379] for which they have been paid. ' To give them more, ,would be to give them a compensation without a risk, something for nothing.
On accepting the abandonment, the insurers stepped into the place of the insured, and by substitution, acquired the same rights, and became subject to the same duties in re-
The circumstance that the insured, in the present case, is the owner of both ship and freight, can make no difference. If they are distinct interests, it is immaterial [*380] *whether they belong to one or to different persons.
The whole adventure of a voyage, (ship, freight and cargo) may, and frequently does belong to the same person, but I believe it was never imagined to follow from hence, that an abandonment of the one could affect' the other. The rules of law must be fixed and uniform, and cannot depend on. such contingencies.
I am, therefore, of opinion, that the" plaintiffs are not entitled to recover any part of the freight, and that it belongs to the person who would have been entitled to it, if the voyage had been performed without any impediment.
It does not appear to be a settled point in the English law, what is the operation of an abandonment upon freight. There is no case that I have met with in which the point came into discussion, as it respected the insurer.
*In Luke v. Lyde, (2 Burr. 882,) a suit was sus- [381] tained by the owner of the vessel, notwithstanding his abandonment, against the shipper for a rateable freight earned previous to the abandonment. But in that case the right of freight, as between the insurer and insured, was not determined, nor did it come into view. The whole attention of the court appears to have been directed to the liableness of the shipper; and whether the plaintiff recovered for him
The present question seems, therefore, to be res integra, áñd it must be determined from the consideration of the. nature of abandonment, and from the application of known and analogous principles in the law.
The freight in the present cáse belonged to the insured, who owned the ship, add who abandoned her. We are not, therefore, to ■ examine what would > be the operation of an. abandonment- of the ship, if the ship should at the time* belong to a different person. Here the same person was owner of both ship and freight. ■ < -
Abandonment is a cessation of the right of the thing insured. If accepted, it is equivalent to an absolute sale and delivery of the property, and the insurer stands in the place of the insured, and is entitled to all the advantages of that situation. He must, consequently, become entitled to the freight subsequently earned, for freight is incident to the. ownership of the vessel, and follows it as closely as rent does the reversion. All the subsequent charges of the voyage must be borne by the insurer, and, as he Etakes the burden, he ought likewise to reap the advantage. And upon: principles equally strong, the insurer must be entitled to the freight earning or accruing at the time of the abandonment, in like manner as if a -person sell or mortgage, devise or surrender the land,, after the crop sown, or if he as-[*382] Sign the reversion before the' rent becomes ^payable, the emblements in the one case, and the rent in the other, will pass with the land. If any portion of the freight had already become due, the same would undoubtedly remain with the insured, and not be affected by the abandonment. But the growing freight must pass with the ship, for want of a precise and definite rule of apportionment.-. The case of a voyage partly performed, and broken or diverted by the perils of the Sea, is not susceptible of an accu- *
Freight is with us a distinct insurable interest, and this opinion has no tendency to render it less so. But although a distinct, it is so far a qualified interest, when belonging to the same person who owns the ship, that if he abandons the one, he must be considered as voluntarily relinquishing the other. The insurer is substituted for him by his own act, and succeeds to all his rights as owner of the ship. Freight may be a distinct subject of insurance without losing in other respects its quality as an incident. Tt is not necessary that it should be detached from its principal, beyond what is requisite to render it insurable. It must still in a great degree, be considered as merely appurtenant to the ship, and if distinctly insured, it is very questionable whether the owner can preserve his claim against the insurer of the freight, if he abandon the ship. (But see 3 Caines’ R, 16. 1 Johns. R. 333. 3 Johns. R. 49.)
In the case before us, the freight must, be considered as almost wholly earned subsequently to the abandonment, and if any portion of it was earned before, there was none due at the time. The freight was merely earning, and the right to it was inchoate, and not absolute, which it could only have been at the delivery of the cargo, upon the completion of the voyage.
I am, therefore, of opinion, that the plaintiffs are entitled to judgment for the whole sum found by the verdict.
Previous to an immediate consi- [*383] deration of the question in this cause, I would state, “ that if a freighted ship becomes accidentally disabled on its voyage, (without the fault of the master,) the master has his option, either to refit it, (if it can be done within a convenient time,) or to hire another ship to carry the goods to the port of delivery. If the merchant disagrees to this, and will not let him do so, the master will be entitled to the whole
These appear to me to be the whole of the relative rights- and duties of merchant and master, requisite to be [*384] .*noticed, and I will only subjoin, as connected with the consideration of them, in reference to the present case, that I do not think the case above cited ought to be received as deciding further than that the merchant may render himself liable on the implied assumpsit I have mentioned,., to pay the freight, .and as prescribing a rule to ascertain the proportion or rate of it. It is true, that the suit there was by the master, the assured of the ship, and he had abandoned, and the assurer had accepted her ; both the court and counsel,
The question on which these respective claims depend, I conceive to be, whether, when a ship shall be abandoned to the assurer, and be accepted by him, the freight she was earning at the time of the accident, in consequence of which she was abandoned, does not also pass with her to the as-' surer. On this question, my opinion is in favor of the as-surer, and I shall very briefly state my reasons for this opinion.
*The right to" the freight is not extinguished by [*385] the abandonment of the ship, and if it does not pass to the assurer, it must still subsist in the assured, and if the latter, then-the assurer does not, by the abandonment, acquire a perfect or absolute, but only an imperfect or modified right in the ship. He takes her subject to a right in the assured to as much of the freight as can by any means, reasonably practicable by the assurer, still be eventually made, even as for the full voyage. The law will consider the right of the assured to the freight as the end, and will necessarily give him every requisite mean, to it, comprehending the instru
These considerations appear to me sufficient to show that the supposed right in the assured to the freight, after an abandonment of the ship, can néver be made to consist with right reason; and the least reflection will suggest, that I have not' pursued the case into many other .consequences or questions
The mistake on this subject I conceive to be, in supposing that as the ship and freight may, in the first instance, be insured as distinct interests, they continue as distinct interests to every other purpose throughout, until the event either of the loss, or of the safety of the freight, shall have happened ; without distinguishing that the ship is the principal, or subject, or thing which is to produce the freight, and that when the assured abandons the ship to the assurer, he transfers thereby to him his power over the ship, as the principal, and with it, his power over the freight, the accessory or incident; he transfers his power over the cause, and, consequently, his right to the eventual effect, if any. These interests may be likened to an interest in the land, and the emblements. By a special contract, the land may be transferred,, and the emblements *may be reserved, otherwise they [*387] will pass with it. If the owner dies intestate, the lands descend to his heir; but the emblements go to the personal representatives, and the law accordingly gives them a power over the land. They may enter on it, to preserve, promote, gather, and remove the crop. Suppose the vendor of land was, by a special contract, to insure to the vendee, that the land, if sold, should always sell for a certain price; so that the vendee might, at any time, abandon the land to the vendor at that price; if he abandoned it while a crop was growing on it, and if the vendor should accept it, it cannot be doubted but that the vendor, (the assurer,) would, and as under the original contract of insurance, be entitled to the crop, equally as if he had, on a general or ordinary contract of purchase and sale, repurchased and become repossessed of the land. In short, and which is the foundation of my opin
1 am, therefore, of opinion, that the plaintiffs are-entitled to recover the whole freight.
In the examination ofvthe question presented for consideration in this cause, it is extreinely difficult to discover either principles or precedents that will afford satisfactory grounds for a just decision. Embarrassments arise on either side. To decide against the plaintiffs appears inequitable, since we should deprive them of the. earnings of the ship, which, after the abandonment, became their [*388) property. On the other hand, if *we. say that the plaintiffs must recover, the insurer on freight, who, it is to be presumed, has paid the amount to the Owner, and has a just claim on the subject for his reimbursement, will-' be injured. A loss must certainly fall on one of two parties, equally innocent, and having equal claims. It is to be regretted, that the court are not of one opinion on this occasion, foi’ .it is a case in which it is of more importance that the ride should be fixed and certain, than what such rule should be; When all parties know the extent of the hazard they are to run,' there will be no cause for complaint, nor ground' for any objections of injustice.
The case of Luke v. Lyde, is the only one to be found in the books,- that looks to the question now before the court; but it does not by any means reach the present case. As far,-however, as that case goes, I consider myself bound "by
It is, perhaps, to be wished, that our law on this subject was similar to that of France, where freight is hot allowed to be a distinct subject of insurance; but the owner to cover his freight, adds it to the value of the ship. In England, and in this country, it is otherwise; and freight, being a distinct subject of insurance, the doctrine *of [*389] abandonment and the benefit of salvage must attach to it, as far as the nature of the subject will permit. That they cannot to the same extent as in policies on ships or goods, will, I think, be manifest from the following cases.
Should the insurer on freight, in a case circumstanced like the present, be entitled to the freight after a peril has occurred that authorizes an abandonment of the ship, he could have a right to insist (if the ship be repairable) that the insurers on the vessel should repair her, and permit her to proceed on the voyage : And should' they refuse, he would have a right of action against them: Should he be owner of the ship also, and so his own insurer as to freight, this absurdity would follow; that he would have to controvert and deny, what as owner of the ship he had asserted and relied on, namely, her inability to prosecute the voyage. Should the ship be so disabled, as to be irrepairable, and another vessel be procured to transport her cargo to the port of discharge, her insurer
My opinion, therefore, is, that the freight in this case ought to be apportioned, and that the plaintiffs should recover so. much only as was earned subsequently to the peril incurred, that caused the abandonment.
Lansing, Oh. J. was of the same opinion.
The opinions of the judges being- thus divided, Benson, J. and Kent, J. being in favor of the plaintiffs’ claim for the whole freight, agreed with Lansing, Oh. J. and Lewis J. in giving judgment for the plaintiffs, for the amount of the freight earned pro rataitineris ;■ and judgment was given accordingly.
Judgment for the plaintiffs, for the freight pro rata. [*390J *N. B. The Court said, that if the plaintiffs should elect still to proceed for the whole freight, they would direct the verdict to be set aside, and grant a new trial, in order that a special verdict, or an exception might be taken to the opinion of the judge who might try the cause, so that the question might be brought before the court for the correction of errors; and in that case, the costs should abide the event of the suit.
а) The case was, afterwards, by consent of parties, put into the form of a special verdict, and a writ of error was brought into the court for the correction of errors, where, in February, 1801, the judgment of the court, as above stated,' for the freight earned subsequent to the abandonment, ór pro rata itineris, was affirmed.