Gracie against Bowne

Gracie against Bowne. In a policy effected in New York upon goods at twelve cents per pound, the weight will be determined' by the English standard, though the invoice specify the weight to be Erench. This was an action on a policy of insurance on coffee, part of the cargo of the ship Arethusa, from Jeremie, in the West Indies, to Baltimore, or Hew York, valued at 20 cents per pound. By the bill of lading the coffee was to be delivered at Baltimore, paying two cents per pound freight, a note in the margin, declaring “ that the freight was to be calculated, and paid on the “ weight of the custom-house, at Baltimore.” The only matter in contest at the trial was, whether the coffee being estimated at twenty-five cents per pound, in the policy, the loss should be calculated on the English or Erench weight. It appeared in evidence, that the standard difference between English and Erench weight is eight per cent., 108 pounds English making 100 pounds Erench. That in Baltimore, it is the established custom, in cases *of valued policies on goods by weight, to bring the foreign into English, by adding or. subtracting from it, according to the standard; it being always understood, unless the contrary is expressed, that the English weight is the quantity actually insured; to bring French into which, eight per cent, is there added to the French. That in the city of blew York there is no such usage. That in paying the freight, where the contract is for so much per cent, the New York merchants are governed by the actual weight there, without regard to the foreign weight, expressed either in the bill of lading or invoice. That in truth, the difference between French and English weight, varies from one to eight per cent, according as the shipment is from different houses, but that the medium is five per cent. On these facts a verdict for the plaintiff was taken by consent for 1,187 dollars and fifty cents, to stand, if the opinion of the court should be, that the standard difference between French and English weight was to be the rule oi calculation : to be reduced, however, to 589 dollars and 80 cents, if the medium difference was to govern; and, should they determine that the French weight ought to prevail, then to be entered for 259 dollars and 8 cents. Hamilton and Hoffman, for the plaintiff. All contracts are to be expounded according to the interpretation the words will bear in the country where entered into. Thi3 is a valued insurance, and the valuation for no other reason than to prevent all reference to the invoice, which an open .policy might induce. In contracts for freight, the American acceptation of pound is resorted to. So it must be here, and the standard difference ought to govern, because it is the more certain and uniform. Otherwise there will be one rule for estimating against underwriters a claim for a loss, and another against the underwritten for a demand due on the freight. In Baltimore, our principle is allowed, and, to exclude it, the insurer ought to show a contrary üságé. Harison. and Pendleton, contra. A contract is not always to be interpreted according to the language of the lex loci It may, as here, refer to other countries. The policy attached in a foreign port, and supposing a total loss the invoice must have been referred to. It is only in case of arrival, that the weight can be ascertained here without *such a resort, and the very nature of insurance is against the contemplation of safety. The bill of lading is a strong argument for rejecting the standard difference. When that is to govern, it is expressed ; ergo,when not so specified, the French is to regulate; more particularly so, as the bill of lading is framed with a view to safe arrival, contrary to the motives of insurance. If, however, any reference is to be made to.the.English weight, the medium difference ought certainly to prevail, as being more consonant to equitable justice, and equally certain, for the jury have settled it at five per cent. Hamilton, in reply. When a contract made in one country is to be executed abroad, then the foreign parts are adverted to; but though the subject be abroad, if it be to be carried into effect where made, the lex loci contractus, the law of the place, is to govern. The word cents is used in the policy: this proves it was to be confided to this spot, and the pounds like the money, referible to the United States. The policy, too, was underwritten without information of the invoice; it must, therefore, be thrown out of the question, as the insurance can be interpreted only according to the knowledge of the parties, which never éxtended to the wording a paper'made in Jeremie. [MAJORITY — Spencer, J.] Spencer, J. delivered the opinion of the court. The only question arising in this cause is, whether the weight of the articles insured is to be considered French or American ? The difference between them as stated, and admitted by the case, is agreeable to the standard, eight per cent, that is to say, eight per cent, is added to the American, on the French weight, to ascertain the weight according to our standard. In the construction of policies of insurance, the intention of the parties is to be sought from the circumstances attending the transaction, and the usage of the trade. This policy was subscribed in New York, and it appears to us that the parties could have had reference to no other weight than that of the country where the insurance was effected. If other circumstances were wanted to manifest such intention, they might be found in the use of the currency of this country in making the valuation. In contracts here, referring to weight or currency generally, it appears *to us, that to intend any other than those in use here would be doing violence to the intention of parties. It is stated in the case, that in paying freight, where the contract is to pay so much per lb., it is the usage in the city of New York to be governed by the actual weight, without' regard to the foreign weight expressed in the bill of lading, but in cases like the present, there is no usage in New York. We think the usage, and the reason of it, as respects freight, applicable to the present case. In Baltimore it is stated that there is a usage in cases like the present, and that there the weight is ascertained by adding eight per cent, to the French. On the argument it was contended, for the defendants, that in consequence of prior insurances, the plaintiff was not entitled to recover beyond the premium; it was answered that the object of the plaintiff was to cover th« profits on the cargo. The agreement of the parties to the case before the court, supersedes the necessity of any examination of this point. It is expressly agreed, that if the court should be of opinion that the difference between French and English weight, as established by the legal standard, shall be the rule or guide, then the verdict to stand. We are therefore of opinion, that in judgment of law, the parties intended the American weight; and, that in ascertaining that, the standard difference eight per cent, ought to be added to the weight in the bill of lading, and that the plaintiff is entitled to his judgment accordingly. Judgment for the plaintiff according to the standard difference.