Whitney v. New-York Firemen Insurance

| N.Y. Sup. Ct. | Aug 15, 1820

Platt, J.

delivered the opinion of the Court. To sus-, tain such an'action on a policy for freight, the plaintiff must prove, that the ship was disabled by the perils insured against; and that the cargo could not have been carried from the port of necessity to the port of destination, for one half the freight valued in the policy. The rule is now perfectly established, that a policy on freight does not insure the soundness of the goods, but merely their safe cárriage to the port of destination. It is immaterial to the insurers whether the cargo arrive in good, or in bad condition, provided the goods specifically remain. If they perish from'internal causes of decay, or are spoiled by reason of the perils of the sea; still, if they are carried to the port of destination, and are ready to be delivered there, or if the master is able, and offers to carry them, but the owner of the goods voluntarily elects to receive them at an intermediate place, the ship owner is entitled to his full freight, although the goods are of no value to the shipper. (Herbert v. Hallett, 3 Johns. Cases, 93. Griswold v. New-York Insurance Company, 3 Johns. Rep. 321. Saltus v. Ocean Insurance Company, 14 Johns. Rep. 138.) If reasonably practicable, it was undoubtedly the duty of the master, as agent for the ship-owners, to have procured another vessel to carry the cargo from the Helder to Nezo-York. He was bound to earn the whole freight, if he could; and in ease of disaster, it was not an essential part of the contract of insurance on freight, that the goods should be transported in that particular ship. (Bradhurst v. Col. Ins. Co. 9 Johns. Rep. 17.)

•Whether Amsterdam, and the H elder are to be regarded as the same port, so as to oblige the master to resort to Amsterdam, to find a vessel to complete the voyage, has been strenuously contested by the counsel. Considering there-lative position of those two places, and their intimate commercial connexion, on the same arm of the sea ; I incline to the opinion, that if the master was bound to seek another ship to continue the voyage, his duty required him to resort to Amsterdam for that purpose, if none could be procured at the Helder. In Saltus v. Ocean Ins. Co. (12 Johns. Rep. 107.) it was held, that the master, under like circumstances, was not bound to go from Kinsale to Cork, (IS miles) to hire another vessel. Extreme cases often embarrass us, in the application of any rule; but, I think, a well founded distinction exists between the two cases; because, between Kinsale and Cork, there is mare apertum, and between the Helder and Amsterdam, it is mare clausum.

But, in this case, I am of opinion, that it is proved, to a reasonable certainty, that the master could neither dry the hemp, nor re-ship it for New-York, on board another vessel, in the wet and perishing condition in which it was. Brown and Ttllinghast, two masters, swear, that they would not have taken the wet hemp on board their vessels, and that there was probable danger of it’s setting fire to the ship; and, in their opinion, no prudent master of a vessel would take such a cargo on board. This opinion, of men so competent to judge, and according so perfectly with the common sense, and obvious reason of the case, seems to me abundantly sufficient to establish the fact, that any attempt to charter a vessel to carry a cargo in such a state across the Atlantic, would have been unsuccessful. Suppose there was no ground to apprehend danger of ignition; what shipowner, for treble freight, would expose his vessel, and every person having connexion with it, to the pestilential effluvia of a cargo of rotten hemp ? If private interest were not sufficient to restrain men from making such a shipment, it ought to be punished as an offence against the public safely. I assume, then, that without anyfault or neglect of duty in the master, the ship was rendered unseaworthy by the perils of the sea; that she entered the Holder as a port of real necessity; that she could not be repaired for half her value; and that another vessel could not be procured to carry the cargo to the port of destination, for one half the freight as valued in the policy. The plaintiff had a rignt. therefore, to break up the voyage, and to abandon the freight to the underwriters, as for a total loss. But I think it equally clear, that the defendants are entitled to a deduction for freight pro rata itineris, upon the whole cargo (including the Jettison) from Archangel to the Helder. The owner of the cargo did not abandon to the underwriters, as he had a right to do, but chose to settle with them, on the principle of a partial loss. lie, accordingly, by his supercargo, directed the sale at the port of necessity, and received the net proceeds there, as owner of the cargo. By such a course of conduct, the transaction is characterized as a partial, not a technical total loss of the cargo. And the shipper, having chosen to receive his goods, or the avails of them, in Holland, it presents a case in which the ship has earned pro rata freight. (Williams v. Smith, 2 Caines' Rep. 13. Robinson v. Marine Ins. Co, 2 Johns. Rep. 323. Bradhurst v. Col. Ins. Co. 9 Johns. Rep. 17. Schiefflin v. N. Y. Ins. Co. 9 Johns. Rep. 21.)

A reference must, therefore, be made to settle the amount of the recovery, pursuant to the stipulation in the case.

Judgment for the plaintiffaccordingly.