Graves and Scriba against The Marine Insurance Company

Graves and Scriba against The Marine Insurance Company. V an insurance be on a return cargo, beginning the adventure “ from, and immediately following the loading thereof on board the said vessel," at the port of destination, with liberty to touch and trade at two intermediate ports, the policy will not cover the outward cargo from the port of destination to one of the intermediate ports, though the vessel was obliged to carry it there, in consequence of being refused permission to enter that of her destination; the premium,, therefore, must be returned, as the risk never attached. Assumpsit, for money had and received, to recover back the amount of premium, paid for insurance. The facts were these: The plainliffs shipped for La Vera Cruz a cargo, fully covered by other policies, in the usual form, and then effected the one on which the present action was brought, upon the return cargo, “.beginning the adventure upon the said goods and merchandises, from and immediately following the loading thereof on board of the said vessel, at La Vera Cruz, and so, &c., until the said goods shall be safely landed at New York,” with liberty to touch and trade at New Orleans, or the Havannah. On the outward voyage the vessel was captured, carried into Jamaica, detained there two months, liberated, and arrived at her place of destination, where she was not permitted to discharge her outward lading, or even remain within the port, although in distress from her mast being sprung and short of provisions and water. Thus circumstanced, she was, with her original lading on board, and without taking in anything in addition to it, compelled to depart for the nearest port the could make. She accordingly sailed for New Orleans, and there loaded with a cargo for New York, to the full amount of *whieh a policy had been underwritten previous to that subscribed by the defendants. A verdict having been taken for the plaintiffs, the case came before the court on this simple question, whether the policy ever attached ? If it did not, the verdict to stand; if it did, to be entered for the defendants. T. L. Ogden, for the plaintiffs. The goods insured by this policy never were on board. They were to be taken in at La Yera Cruz. By the outward policy, the cargo from New York may, perhaps, have been protected even to New Orleans, as the going there arose from an interi diction of commerce. 1 Emer. 542. If so, the plaintiffs were perfectly covered, out and home, without the policy subscribed by the defendants. For the case specifies there was one on the cargo from New-Orleans to New York, effected previously to that now in question. It is clear, therefore, that there was not a moment of time in which the defendants could be liable. Independent of this, the words of the policy are conclusive. Riggs, contra. That the plaintiffs were protected in the voyage from La Yera Cruz to New Orleans, by the outward policy may be the law of France, but certainly is not that of this country. Stress of weather may justify going to a port not mentioned, whilst in the prosecution of the voyage insured, but after the iter is concluded, the policy never can warrant going on a new voyage and to a new port. The case of Yrcdenburg was decided on prin-eiplcs analogous to those for which we contend. That is, that our policy attached on even the outward caago from La Yera Cruz to New Orleans. It was in the route of the very voyage we.insured, and covered the goods, though not absolutely shipped at the port specified in the instrument. In the determination I have alluded to, the cargo was shipped at New York, but this court held it within a policy on goods from the West Indies, containing the very clause upon the construction of which we now dispute. The reasoning there was, that being a trading voyage, like this, any. goods at the place from whence the insurance was to take effect, were within it. The same rule was adopted at nisi prins, in Slaight v. Rhinelander. There, some salt brought from a foreign port was held to be within a policy on goods shipped in New York. We were liable from La Yera Cruz to New Orleans. Had the loss happened even after leaving this last place, we must have .paid and could only have called *on the insurers on the other policy for contribution. We, therefore, are entitled to retain. Hoffman, in reply. This last argument is an attempt to introduce the English doctrine of contribution among underwriters, in the teeth of the clause in our policies. The insurance, when effected, was on a cargo contemplated to be laden on board'at La Yera Cruz, and no other can be covered by it. In Sleight v. Rhinelander the salt had been entered here, and was destined for the voyage insured. In Vredenburg’s Gase, the cargo was shipped for the voyage insured. There never was an instant in which the defendants were liable on their subscription, and therefore they must restore the premium. [MAJORITY — LiviNGSTON, J.] LiviNGSTON, J. delivered the opinion of the court. The premium on this insurance cannot be retained. The policy in explicit terms declares, “ the adventure shall begin from, and immediately following, the loading of the goods at La Yera Cruz.” At tbis port, whitber tbe outward cargo was insured, tbe Alert was not permitted to unload, or to remain in port, whereupon sbe sailed for New-Orleans m distress. Tbe parties clearly intended to insure only sucb goods as were taken on board at La Yera Cruz; or, in other words, tbe return cargo. Independent of the unequivocal terms made use of, tbe plaintiffs could not contemplate bringing back to New York tbe property they bad sent abroad; the warranty also of its being American, might have been true of the one cargo and not of the other. "Whether tbe outward policies, by tbe denial of an entry at La Yera Cruz, continued or not, after tbe vessel’s departure thence, will make no difference. Tbe hazard which tbe defendants would have run, on their present construction, is much greater than tbe one they actually assumed. Would they not have asked a higher premium for insuring goods which had been several months at sea, and might have been greatly damaged, on board of a vessel too, which had suffered a long detention by capture, whose masts were sprung, and which was otherwise in a shattered state, and short also of provisions and water, than for underwriting a cargo laden at the place where the policy was to attach, and on a vessel thoroughly repaired, and properly found for the voyage she was undertaking ? If these goods were really intended as the subject of insurance, the defendants could never have been called on for a loss, inasmuch as the vessel was not repaired, provisioned, or watered, as she ought *to have been. To what cause this was to be ascribed is of no importance, it always being part of the contract that such shall be the condition of every vessel at the commencement of a voyage. But here it is conceded, that her distressed plight was owing to perils insured against by former policies, and evinces that the defendants did not mean to take her up until after her safe arrival at La Yera Cruz. Again, is it not a part of the understanding, that tbe goods shall not have been damaged by tbe sea when' tbe voyage begins ? Who can say this was not tbe case here ? Suppose at New Orleans tbe cargo bad appeared «so much spoiled as to justiiy an abandonment, or a claim for a heavy partial loss, bow was it to be ascertained when tbe injury happened, before or after leaving La Yera Cruz? In this way tbe defendants would have been exposed to a loss which had been occasioned in a part of the iter, during which it is not pretended they run any danger. When it is agreed, then, 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. These arguments, although not urged at the bar, are conclusive in favor of the plaintiffs. But in Vredenburg v. Gracie, it is said a different construction was given to this clause, and that the goods shipped at New York were considered as covered by the policy, although the adventure was to begin from their loading in the West Indies. Such a decision certainly took place; but it appeared that the underwriter was informed that the goods intended to be insured were shipped from New York, and that the vessel had proceeded to the West Indies (where she was at the time of subscribing the policy) without insurance. A letter was also shown to him, stating the vessel’s arrival at Cape Nicola Mole, where she had disposed of a small part of the cargo, and was about proceeding to St. Mark’s with the residue. This explanation, which was admitted, presents a very different contract from the one on which we are now deciding, and which, therefore, cannot be governed by it. It was a trading voyage in the West Indies, where it is not usual to carry produce of one island to another. It was also, by the express understanding of the underwriter, a policy on goods shipped at New York, and the vessel being already in the West Indies, that part of the world was only mentioned as the place where the risk was to commence. *But with, all these explanations, we well remember that one of the first counsel who ever appeared at this or any other bar, and who was concerned with me for the plaintiff in that cause, entertained a very strong opinion that our client would have to apply to a court of chancery to amend his policy, to enable him to succeed in a court of common law. From this view of the question, it is not necessary to say how the interdiction to trade at La Yera Cruz affected the prior insurances. Whether they terminated there, or continued during the route to New Orleans, our opinion is the same. The cargo taken in at New Orleans being covered by prior insurances, the defendant was of course at no risk after the schooner left that place, and thinking, for the reasons mentioned, that the policy did not attach during her voyage from La Yera Cruz to New Orleans, the plaintiffs must have judgment. Postea to the plaintiffs.